Exhibit 4.1
PRINTCAFE SOFTWARE, INC.
AMENDMENT
DATED AS OF FEBRUARY 26, 2003
TO
STOCKHOLDERS RIGHTS AGREEMENT
DATED AS OF FEBRUARY 13, 2003
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This AMENDMENT, dated as of February 26, 2003 (the "Amendment"), to
the Stockholders Rights Agreement, dated as of February 13, 2003 (the "Rights
Agreement"), by and between Printcafe Software, Inc. (the "Company") and Mellon
Investor Services LLC, a New Jersey limited liability company, as Rights Agent
(the "Rights Agent").
RECITALS
The Company and the Rights Agent have heretofore executed and entered into
the Rights Agreement;
The Company, Electronics for Imaging, Inc., a Delaware corporation
("Parent"), and Strategic Value Engineering, Inc., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), are entering into an Agreement
and Plan of Merger, dated as of February 26, 2003 (as amended or supplemented
from time to time, the "Merger Agreement"), pursuant to which Merger Sub shall
be merged with and into the Company;
Pursuant to Section 27 of the Rights Agreement, the Company, by action of
its Board of Directors or any duly authorized committee thereof, may supplement
and amend the Rights Agreement; and
Pursuant to resolutions adopted on February 25, 2003, the Special Committee
of 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 the Company desires to evidence such amendment in
writing.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. AMENDMENT OF SECTION 1.
(a) The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is amended by changing "15%" each time it occurs therein to "30%".
(b) The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is amended by deleting subparagraph (iv) thereof in its entirety and
replacing it with the following new subparagraph (iv):
(iv) None of Parent, Merger Sub, or any of their Affiliates or
Associates shall be deemed to be an Acquiring Person solely by virtue of
(1) the approval, execution or delivery of the Stockholders Agreement
and/or the Merger Agreement, (2) the consummation of the Merger in
accordance with the provisions of the Merger Agreement, (3) stockholder
approval of the Merger Agreement, (4) the consummation of any other
transaction to be effected pursuant to the Merger Agreement in accordance
with the provisions thereof, or (5) any actions taken or effected pursuant
to the Stockholders Agreement in accordance with the provisions thereof
(including, without limitation, the grant or delivery of any irrevocable
proxy or the voting of any shares of Common Stock, in each case in
accordance with the provisions of the Stockholders Agreement).
(c) Section 1 of the Rights Agreement is supplemented and amended by adding
the following definitions in the appropriate locations therein:
"Agreement" shall mean this Stockholders Rights Agreement, dated as of
February 13, 2003, by and between the Company and the Rights Agent, as
amended as of February 26, 2003, and as may be amended thereafter from time
to time.
"Merger" shall mean the merger of Merger Sub with and into the Company
pursuant to the terms of the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated
as of February 26, 2003, by and among the Company, Parent and Merger Sub,
as it may be amended, supplemented or replaced from time to time.
"Merger Sub" shall mean Strategic Value Engineering, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent.
"Parent" shall mean Electronics for Imaging, Inc., a Delaware
corporation.
"Stockholders Agreement" shall mean the Stockholders Agreement, dated
as of February 26, 2003, by and among Parent, a Delaware corporation, and
each of the stockholders of the Company that are party thereto, entered
into and delivered in connection with the Merger Agreement.
(d) The last sentence of Section 1(c) is amended to read in its entirety as
follows:
Notwithstanding anything in this definition of Beneficial Ownership to
the contrary, (A) the phrase "then outstanding," when used with reference
to a Person's Beneficial Ownership of securities of the Company, shall mean
the
number of such securities then issued and outstanding together with the
number of such securities not then actually issued and outstanding that
such Person would be deemed to Beneficially Own hereunder; and (B) none of
Parent, Merger Sub, or any of their Affiliates or Associates shall be
deemed the Beneficial Owner of, or to Beneficially Own or to have
Beneficial Ownership of the shares of Common Stock subject to the
Stockholders Agreement solely by reason of (1) the approval, execution or
delivery of the Stockholders Agreement and/or the Merger Agreement, (2) the
consummation of the Merger in accordance with the provisions of the Merger
Agreement, (3) stockholder approval of the Merger Agreement, or (4) any
actions taken or effected pursuant to the Stockholders Agreement or the
Merger Agreement in accordance with the provisions thereof (including,
without limitation, the grant or delivery of any irrevocable proxy or the
voting of any shares of Common Stock, in each case in accordance with the
provisions of the Stockholders Agreement); PROVIDED, HOWEVER, that if the
Stockholders Agreement is hereafter amended without prior approval of the
Board of Directors, then this clause (B) of this Section 1(c) shall no
longer be applicable or of any further force and effect.
(e) The definition of "Stock Acquisition Date" in Section 1(z) of the
Rights Agreement is amended by adding 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 the result
of (i) the approval, execution or delivery or public announcement of the
approval, execution or delivery of the Merger Agreement, (ii) the
consummation of the Merger in accordance with the provisions of the Merger
Agreement or any public announcement relating thereto or (iii) the
consummation of any other transaction to be effected pursuant to the Merger
Agreement in accordance with the provisions thereof or any public
announcement relating thereto.
2. AMENDMENT OF SECTION 3(A). Section 3(a) of the Rights Agreement is
amended to read in its entirety as follows:
(a) Until the earlier of (i) the Close of Business on the tenth
Business Day after the Stock Acquisition Date and (ii) the Close of
Business on the tenth Business Day (or such later date as may be determined
by action of a majority of the Board of Directors prior to such time as any
Person becomes an Acquiring Person and of which later date the Company will
give the Rights Agent prompt written notice) after the date that a tender
or exchange offer by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan maintained by the Company or any of
its Subsidiaries or any trustee or fiduciary holding Voting Stock for, or
pursuant to the terms of, any such plan, acting in such capacity) is first
published or sent or given within the meaning of Rule 14d-4(a) of the
Exchange Act Regulations or any successor rule, if upon consummation
thereof such Person would be the Beneficial Owner of shares of Voting Stock
representing 30% or more of the total Voting Power of the
aggregate of all shares of Voting Stock then outstanding (including any
such date that is after the date of this Agreement and prior to the
issuance of the Rights) (the earlier of (i) and (ii) above being the
"DISTRIBUTION DATE"):
(x) the Rights will be evidenced (subject to the provisions of
paragraph (b) of this Section 3) by the certificates for shares
of Common Stock registered in the names of the holders of shares
of Common Stock as of and subsequent to the Record Date (which
certificates for shares of Common Stock shall be deemed also to
be certificates for Rights) and not by separate rights
certificates; and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company).
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
approval, execution or delivery of or public announcement of the approval,
execution or delivery of the Merger Agreement, (ii) the consummation of the
Merger in accordance with the provisions of the Merger Agreement or any
public announcement relating thereto or (iii) the consummation of any other
transaction to be effected pursuant to the Merger Agreement in accordance
with the provisions thereof or any public announcement relating thereto. As
soon as practicable after the Distribution Date, the Company will prepare
and execute, the Rights Agent will countersign, and the Company will send
or cause to be sent (and the Rights Agent will, if requested and provided
with all necessary information, send) by first-class, insured, postage
prepaid mail, to each record holder of shares of Common Stock as of the
Close of Business on the Distribution Date, at the address of such holder
shown on the records of the Company, one or more rights certificates, in
substantially the form of Exhibit A (the "RIGHTS CERTIFICATES"), evidencing
one Right for each share of Common Stock so held, subject to adjustment as
provided herein. In the event that an adjustment in the number of Rights
per share of Common Stock has been made pursuant to Section 11(i) or
Section 11(p) hereof, at the time of distribution of the Rights
Certificates, the Company may make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are distributed and
cash is paid in lieu of any fractional Rights. As of and after the
Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
3. AMENDMENT OF SECTION 7(A). Section 7(a) of the Rights Agreement is
amended to read in its entirety as follows:
(a) Prior to the earlier of (i) the Close of Business on February 13,
2013 (the "FINAL EXPIRATION DATE"), or (ii) immediately prior to the time
at which the consummation of the Merger occurs, or (iii) the time at which
the Rights are
redeemed as provided in Section 23 hereof, or (iv) the time at which the
Rights are exchanged as provided in Xxxxxxx 00 xxxxxx (xxx xxxxxxx xx (x),
(xx), (xxx), and (iv) being the "EXPIRATION DATE"), the registered holder
of any Rights Certificate may, subject to the provisions of Sections 7(e)
and 9(c) hereof, exercise the Rights evidenced thereby (except as otherwise
provided herein) 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 (as
hereinafter defined) for the number of shares of Common Stock (or half
(1/2) shares thereof or, if applicable, such other securities, cash or
other assets, as the case may be) for which such surrendered Rights are
then exercisable.
4. AMENDMENT OF SECTION 11(A)(II). Section 11(a)(ii) of the Rights
Agreement is amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, none of (i) the
execution, delivery or approval of the Merger Agreement, (ii) the
consummation of the Merger in accordance with the provisions of the Merger
Agreement or (iii) the consummation of any other transaction to be effected
pursuant to the Merger Agreement in accordance with the provisions of the
Merger Agreement shall cause the Rights to be adjusted or become
exercisable in accordance with this Section 11(a)(ii).
5. AMENDMENT OF SECTION 13(A). Section 13(a) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, none of (i) the
execution, delivery or approval of the Merger Agreement, (ii) the
consummation of the Merger in accordance with the provisions of the Merger
Agreement or (iii) the consummation of any other transaction to be effected
pursuant to the Merger Agreement in accordance with the provisions of the
Merger Agreement shall be deemed an event of the type described in clauses
(x), (y) or (z) of this Section 13(a) and shall not cause the Rights to be
adjusted or exercisable in accordance with the terms of this Agreement.
6. AMENDMENT OF SECTION 30. Section 30 of the Rights Agreement is amended
by adding the following sentence at the end thereof:
Nothing in this Agreement shall be construed to give any holder of Rights
or any other Person any legal or equitable rights, remedies or claims under
this Agreement by virtue of the execution, delivery or approval of the
Merger Agreement or by virtue of the commencement or consummation of any of
the transactions to be effected pursuant to the Merger Agreement in
accordance with the provisions of the Merger Agreement.
7. EFFECTIVENESS. This Amendment shall be deemed effective as of the date
first written above, as if executed on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
8. MISCELLANEOUS. 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 to be made and performed entirely within such State; PROVIDED,
HOWEVER, 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. 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 provision, covenant or restriction of
this Amendment is held by a court of competent jurisdiction or other authority
to be invalid, illegal or 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 effected, impaired or invalidated.
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IN WITNESS WHEREOF, the undersigned have caused this amendment to be duly
executed, all as of the date first above written.
PRINTCAFE SOFTWARE, INC.
By /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
President and Chief Executive Officer
MELLON INVESTOR SERVICES LLC,
AS RIGHTS AGENT
By /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
