EXHIBIT 4.01
AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this "AMENDMENT"), dated as of
August 7, 2006, to the Rights Agreement dated as of April 18, 2001, between The
Xxxxxxxx and Xxxxxxxx Company and Xxxxx Fargo Bank, N.A., as successor to Mellon
Investor Services LLC, as Rights Agent (the "RIGHTS AGENT"), as amended on
October 26, 2004 (the "RIGHTS AGREEMENT").
WITNESSETH
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, Universal Computer Systems Holding, Inc. a Delaware
corporation ("Parent"), Racecar Acquisition, Inc. a Ohio corporation and a
wholly owned indirect subsidiary of Parent ("MergerCo") and The Xxxxxxxx and
Xxxxxxxx Company, a Ohio corporation (the "Company"), propose to enter into an
Agreement and Plan of Merger (the "Merger Agreement") pursuant to which MergerCo
will merge with and into the Company, with the Company as the surviving
corporation and whereby all the Company's issued shares of common stock will be
converted into the right to receive cash;
WHEREAS, the Board of Directors of the Company has approved the Merger
Agreement and the voting agreements among Parent, MergerCo, on the one hand, and
Xx. Xxxxxxx X. Xxxxx III. and Xx. Xxxxxxx X'Xxxxx (the "Voting Agreements");
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement; and
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and has approved this Amendment, and the
Company and the Rights Agent desire to evidence such amendment in writing.
NOW, THEREFORE, the Company and the Rights Agent hereby amend the
Rights Agreement as follows:
1. AMENDMENT OF SECTION 1.
Section 1 of the Rights Agreement is hereby amended and supplemented
to add the following definitions in the appropriate alphabetical locations:
"MERGERCO" shall mean Racecar Acquisition, Inc. a [Ohio] corporation
and a wholly owned indirect subsidiary of UCI.
"MERGER" shall mean the "Merger" as such term is defined in the Merger
Agreement.
"MERGER AGREEMENT" shall mean the Agreement and Plan of Merger, dated
as of August 7, 2006, by and among UCI, MergerCo and the Company, as it may be
amended from time to time.
"UCI" shall mean Universal Computer Systems Holdings, Inc.
2. AMENDMENT OF DEFINITION OF "ACQUIRING PERSON". The definition of
"Acquiring Person" in Section 1 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, neither
UCI, MergerCo, nor any of their Affiliates or Associates shall be deemed to
be an Acquiring Person as a result, directly or indirectly, of (i) the
approval, execution, delivery or performance of the Merger Agreement, (ii)
the consummation of the Merger or any other transaction contemplated by the
Merger Agreement or (iii) the public announcement of any of the foregoing."
3. AMENDMENT OF DEFINITION OF "DISTRIBUTION DATE". The definition of
"Distribution Date" in Section 3(a) of the Rights Agreement is hereby amended
and supplemented by adding the following proviso immediately after the words
"evidenced solely by the Right Certificate":
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as the
result, directly or indirectly, of (i) the approval, execution, delivery or
performance of the Merger Agreement, (ii) the approval, execution, delivery
or performance of the Voting Agreements, (iii) the consummation of the
Merger or any other transaction contemplated by the Merger Agreement or the
Voting Agreements or (iv) the public announcement of any of the foregoing."
4. AMENDMENT OF DEFINITION OF "STOCK ACQUISITION DATE". The definition
of "Stock Acquisition Date" in Section 1 of the Rights Agreement is hereby
amended and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
"Stock Acquisition Date" shall not be deemed to have occurred solely as the
result, directly or indirectly, of (i) the approval, execution, delivery or
performance of the Merger Agreement, (ii) the approval, execution, delivery
or performance of the Voting Agreements, (iii) the consummation of the
Merger or any other transaction contemplated by the Merger Agreement or the
Voting Agreements or (iv) the public announcement of any of the foregoing."
5. AMENDMENT OF SECTION 3. Section 3 of the Rights Agreement is hereby
amended and supplemented by adding the following sentence at the end thereof as
a new Section 3(d):
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"Nothing in this Rights Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedies or
claims under this Rights Agreement by virtue of (i) the approval,
execution, delivery or performance of the Merger Agreement, (ii) the
approval, execution, delivery or performance of the Voting Agreements,
(iii) the consummation of the Merger or any other transaction contemplated
by the Merger Agreement or the Voting Agreements or (iv) the public
announcement of any of the foregoing."
6. AMENDMENT OF SECTION 7(A). Section 7(a) of the Rights Agreement is
hereby amended and supplemented by deleting "(i) the Close of Business on May
11, 2009 (the "Final Expiration Date")" and replacing it with the following:
"(i) the earlier of (x) the Close of Business on May 11, 2009 and (y)
immediately prior to the Effective Time (as defined in the Merger
Agreement) (such earlier date, the "Final Expiration Date").
7. AMENDMENT OF SECTION 11(A)(II). Section 11(a)(ii) of the Rights
Agreement is amended by adding the following sentence to the end of that
section:
"Notwithstanding anything else set forth in this Agreement, no event
requiring an adjustment under this Section 11(a)(ii) shall be deemed to
have occurred by reason of (i) the approval, execution, delivery or
performance of the Merger Agreement, (ii) the approval, execution, delivery
or performance of the Voting Agreements, (iii) the consummation of the
Merger or any other transaction contemplated by the Merger Agreement or the
Voting Agreements or (iv) the public announcement of any of the foregoing."
8. AMENDMENT TO SECTION 13. Section 13 of the Rights Agreement is
amended to read as follows:
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING
POWER. (a) In the event that, directly or indirectly, at any time after a
Person has become an Acquiring Person, (x) the Company shall consolidate
with, or merge with and into, any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section 11(o)), and the
Company shall not be the continuing or surviving corporation of such
consolidation or merger, (y) any Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)) shall
consolidate with, or merge with or into, the Company, and the Company shall
be the continuing or surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all or part of the
outstanding shares of Common Stock shall be changed into or exchanged for
stock or other securities of any other Person or the Company or cash or any
other property, or (z) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or earning power
aggregating 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as
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a whole) to any Person or Persons, other than the Company or one or more of
its wholly-owned Subsidiaries in one or more transactions each of which
complies with Section 11(o), (other than, in the case of any transaction
described in (x), (y) or (z) above, the Merger), then, and in each such
case, proper provision shall be made so that: (i) each holder of a Right,
except as provided in Section 7(e), shall thereafter have the right to
receive upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, and in lieu of shares of
Common Stock of the Company, such number of validly authorized and issued,
fully paid, nonassessable and freely tradable shares of Common Stock of the
Principal Party (as such term is hereinafter defined), not subject to any
liens, encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then current
Purchase Price by the number of shares of Common Stock for which a Right is
exercisable immediately prior to the first occurrence of a Section 13
Event, and dividing that product (which, following the first occurrence of
a Section 13 Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by (2) 50% of the current
market price (determined pursuant to Section 11(d)) per share of Common
Stock of such Principal Party on the date of consummation of such Section
13 Event; (ii) such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such Section 13 Event, all the obligations and
duties of the Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 shall apply only to
such Principal Party following the first occurrence of a Section 13 Event;
(iv) such Principal Party shall take such steps (including, but not limited
to, the reservation of a sufficient number of its shares of Common Stock)
in connection with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its shares of
Common Stock thereafter deliverable upon the exercise of the Rights; and
(v) the provisions of Section 11(a)(ii) shall be of no effect following the
first occurrence of any Section 13 Event.
(b) "PRINCIPAL PARTY" shall mean:
(i) in the case of any transaction described in clause (x) or (y) of the
first sentence of Section 13(a), the Person that is the issuer of any securities
into which shares of Common Stock of the Company are converted in such merger or
consolidation, and if no securities are so issued, the Person that is the other
party to such merger or consolidation; and
(ii) in the case of any transaction described in clause (z) of the first
sentence of Section 13(a), the Person that is the party receiving the greatest
portion of the assets or earning power transferred pursuant to such transaction
or transactions;
PROVIDED, HOWEVER, that in any such case, (1) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange Act, and such Person is
a direct or indirect Subsidiary of another Person the Common Stock of which is
and has been so registered,
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"Principal Party" shall refer to such other Person; and (2) in case such Person
is a Subsidiary, directly or indirectly, of more than one Person, the Common
Stock of two or more of which are and have been so registered, "Principal Party"
shall refer to whichever of such Persons is the issuer of the Common Stock
having the greatest aggregate market value.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer, (other than the Merger), unless the Principal Party shall have
a sufficient number of its authorized shares of Common Stock which have not been
issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as practicable after
the date of any consolidation, merger, sale or transfer of assets mentioned in
paragraph (a) of this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the Act, with
respect to the Rights and the securities purchasable upon exercise of the Rights
on an appropriate form, and will use its best efforts to cause such registration
statement to (A) become effective as soon as practicable after such filing and
(B) remain effective (with a prospectus at all times meeting the requirements of
the Act) until the Expiration Date; and
(ii) will deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply in
all respects with the requirements for registration on Form 10 under the
Exchange Act.
The provisions of this Section 13 shall similarly apply to any successive
mergers or consolidations or sales or other transfers (other than the Merger).
In the event that a Section 13 Event shall occur at any time after the
occurrence of a Section 11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the manner described in
Section 13(a).
8. EFFECTIVENESS. This Amendment shall be effective as of the date
first written above, as if executed on such date. Except as specifically amended
by this Amendment, all other terms and conditions of the Rights Agreement shall
remain in full force and effect and are hereby ratified and confirmed.
9. MISCELLANEOUS. This Amendment shall be deemed to be a 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 made and to be performed entirely within such State. 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 of such counterparts
shall together constitute 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, void or unenforceable, the
remainder of the terms, provisions, covenants, and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated. Except as otherwise expressly provided herein, or
unless the context otherwise requires, all terms used herein have the meanings
assigned to them in the Rights Agreement. The Rights Agent and the Company
hereby waive any notice requirement under the Rights Agreement in connection
with the entering into and delivery of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the day and year first above written.
Attest: THE XXXXXXXX AND XXXXXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X'Xxxxx
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X'Xxxxx
Title: Executive Vice President Title: Chief Executive Officer
General Counsel and Secretary
Attest: XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President Title: Vice President
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