Exhibit 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT dated as of March 17, 2004 (this "Amendment"), to the
Rights Agreement dated as of December 11, 2000 (the "Rights Agreement"), between
Apogent Technologies Inc., a Wisconsin corporation (the "Company"), and
EQUISERVE TRUST COMPANY, N.A., as successor by assignment from Fleet National
Bank, a national banking association as Rights Agent (the "Rights Agent"). Terms
used but not defined herein shall have the meanings assigned to them in the
Rights Agreement.
WHEREAS, the Company proposes to enter into an Agreement and Plan of
Merger, dated as of March 17, 2004 (as amended from time to time, the "Merger
Agreement"), among Xxxxxx Scientific International Inc., a Delaware corporation
("Parent"), Fox Merger Corporation, a Wisconsin corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), and the Company.
WHEREAS, the Board of Directors of the Company has determined that
the Merger Agreement and the terms and conditions set forth therein and the
transactions contemplated thereby, including, without limitation, the Merger (as
such term is defined in the Merger Agreement), are advisable and are fair to and
in the best interests of the Company and its shareholders;
WHEREAS, the Board of Directors of the Company has determined, in
connection with the execution of the Merger Agreement, that it is desirable to
amend the Rights Agreement to exempt the Merger Agreement, the execution thereof
and the transactions contemplated thereby, including, without limitation, the
Merger, from the application of the Rights Agreement as set forth in this
Amendment;
WHEREAS, Section 27 of the Rights Agreement provides that, prior to
the Distribution Date (as defined in the Rights Agreement), the Company and the
Rights Agent shall, if the Company so directs, supplement or amend any provision
of the Rights Agreement without the approval of any holders of certificates
representing shares of Common Stock of the Company upon delivery of a
certificate from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of Section 27
of the Rights Agreement, provided that the Rights (as defined in the Rights
Agreement) are not redeemable at the time of such supplement or amendment;
WHEREAS, there has been no such Distribution Date as of the time
immediately prior to this Amendment, and the Rights are redeemable as of the
date of this Amendment; and
WHEREAS, pursuant to the terms of the Rights Agreement and in
accordance with Section 27 thereof, the Company has directed that the Rights
Agreement should be amended as set forth in this Amendment prior to the
execution of the Merger Agreement and has delivered a certificate to the Rights
Agent (as defined in the Rights Agreement) that this Amendment is in compliance
with the terms of Section 27 of the Rights Agreement.
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NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendments to Rights Agreement. The Rights Agreement is
hereby amended as follows:
(a) The definition of "Acquiring Person" in Section 1(a) of the
Rights Agreement is amended by inserting the following new sentence at the end
of such definition:
"Notwithstanding anything in this Agreement to the contrary, none of
Parent, Merger Sub or any Affiliate or Associate of either of them shall
be deemed to be an Acquiring Person or a Beneficial Owner of Common Stock,
either individually or collectively, solely as a result of (i) the
execution and delivery of the Merger Agreement or (ii) the consummation of
the Merger or any of the other transactions contemplated in the Merger
Agreement."
(b) The definition of "Stock Acquisition Date" in Section 1(dd) of
the Rights Agreement is amended to add the following sentence at the end
thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as a result
of (i) the execution and delivery of the Merger Agreement or (ii) the
consummation of the Merger or any of the other transactions contemplated
in the Merger Agreement."
(c) The following definitions are added to Section 1 of the Rights
Agreement:
"(jj) 'Merger' shall mean the merger of Fox Merger Corporation, a
wholly-owned Subsidiary of Xxxxxx, with and into the Company, or an
alternative transaction mutually agreed upon by the Company and Xxxxxx, in
accordance with the terms and conditions of the Merger Agreement.
(kk) 'Merger Agreement' shall mean the Agreement and Plan of Merger,
dated as of March 17, 2004, by and among Xxxxxx, Xxx Merger Corporation
and the Company, as amended from time to time."
(d) Section 3(a) of the Rights Agreement is amended to add 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 solely as the
result of (i) the execution and delivery of the Merger Agreement or (ii)
the consummation of the Merger or any of the other transactions
contemplated in the Merger Agreement."
(e) Section 7(a) of the Rights Agreement is modified, amended and
restated in its entirety as follows:
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"Subject to Section 7(e) hereof, at any time after the
Distribution Date, 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(a) hereof) in whole or in part 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
principal office or offices 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-hundredths of a share (or other
securities, cash or other asserts, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earliest of
(i) the time immediately prior to the Effective Time (as such term is
defined in the Merger Agreement), (ii) 5:00 P.M., New York City time,
on December 12, 2010, or such later date as may be established by the
Board of Directors prior to the expiration of the Rights (such date, as
it may be extended by the Board (the 'Final Expiration Date'), or (iii)
the time at which the Rights are redeemed or exchanged as provided in
Section 23 or Section 24 hereof (the earliest of (i), (ii) and (iii)
being herein referred to as the 'Expiration Date')."
(f) Section 11(a)(ii) of the Rights Agreement is amended to add the
following at the end thereof immediately prior to the period:
"; provided, however, that, notwithstanding anything in this
Agreement to the contrary, a Section 11(a)(ii) Event shall not be deemed
to have occurred solely as a result of (A) the execution and delivery of
the Merger Agreement or (B) the consummation of the Merger or any of the
other transactions contemplated in the Merger Agreement."
(g) Section 13(a) of the Rights Agreement is amended to add the
following at the end thereof immediately prior to the period:
"; provided, however, that, notwithstanding anything in this
Agreement to the contrary, a Section 13 Event shall not be deemed to have
occurred solely as a result of (i) the execution and delivery of the
Merger Agreement or (ii) the consummation of the Merger or any of the
other transactions contemplated in the Merger Agreement."
(h) Section 25 of the Rights Agreement is amended to add the
following new section at the end thereof:
"(c) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be required to give any notice hereunder to any holder
of a Rights Certificate solely as a result of (i) the execution and
delivery of the Merger Agreement or (ii) the consummation of the Merger or
any of the other transactions contemplated in the Merger Agreement."
Section 2. Interpretation. The term "Agreement" as used in the
Rights Agreement shall be deemed to refer to the Rights Agreement as amended
hereby.
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Section 3. No Other Effect. The Rights Agreement shall not otherwise
be supplemented or amended by virtue of this Amendment, but shall remain in full
force and effect as amended hereby.
Section 4. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Wisconsin and for all purposes
shall be governed by and construed and enforced in accordance with the laws of
such State applicable to contracts to be made and performed entirely within such
State.
Section 5. 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.
[Signature page follows]
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused
this Amendment to be duly executed as of the day and year first above written.
APOGENT TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President-
Administration, General Counsel and
Secretary
EQUISERVE TRUST COMPANY, as Rights Agent
By: /s/ Xxxxx Xxxxxx-Xxxx
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Name: Xxxxx Xxxxxx-Xxxx
Title: Managing Director
