FIRST AMENDMENT TO RIGHTS AGREEMENT
Exhibit 4.1
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO RIGHTS AGREEMENT (this “Amendment”) is made as of November
26, 2008 by Del Global Technologies Corp., a New York corporation (the
“Company”), and Continental Stock Transfer & Trust Company, a New York
corporation (the “Rights Agent”).
W I T N E
S S E T H
WHEREAS,
the Company and the Rights Agent are parties to a Rights Agreement dated as of
January 22, 2007 (the “Rights Agreement”);
WHEREAS,
the Board of Directors of the Company (the “Board”) has determined that it is
desirable and in the best interests of the Company’s stockholders to repurchase
shares of the Company’s common stock;
WHEREAS,
Section 27 of the Rights Agreement grants the Board the exclusive power and
authority to amend the Rights Agreement; and
WHEREAS,
pursuant to Section 27 of the Rights Agreement, the Board 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 and the Rights Agent desire to
evidence such amendment in writing.
NOW,
THEREFORE, BE IT RESOLVED that the parties hereto hereby amend the Rights
Agreement to the extent and as provided as follows:
1. Section
1(a) of the Rights Agreement is hereby amended and restated to read in its
entirety as follows:
(a) "ACQUIRING
PERSON" means any Person (other than the Company, any Related Person or any
Exempt Person) who or which, together with all Affiliates and Associates of such
Person, is the Beneficial Owner of 5% or more of the then-outstanding Common
Shares; PROVIDED, HOWEVER, that (i) any Person who would otherwise qualify as an
Acquiring Person solely as a result of acquiring Common Shares of the Company
pursuant to a rights offering by the Company ("Rights Offering Shares") shall
not be deemed to be an Acquiring Person for any purpose of this Agreement on and
after such date of acquiring such Rights Offering Shares until such time as (A)
such Person or any Affiliate or Associate of such Person thereafter becomes the
Beneficial Owner of additional Common Shares representing 1% or more of the
then-outstanding Common Shares, other than as a result of a stock dividend,
stock split or similar transaction effected by the Company in which all holders
of Common Shares are treated equally (such percentage increase subject to
downward adjustment if the Company's Board of Directors, in its sole discretion,
determines that such percentage increase shall jeopardize or endanger the
availability to the Company of its NOLs), or (B) any other Person who is the
Beneficial Owner of Common Shares representing 1% or more of the
then-outstanding Common Shares thereafter becomes an Affiliate or Associate of
such Person (such percentage subject to downward adjustment if the Company's
Board of Directors, in its sole discretion, determines that such percentage
increase shall jeopardize or endanger the availability to the Company of its
NOLs), PROVIDED that the foregoing exclusion shall cease to apply with respect
to any Person at such time as such Person, together with all Affiliates and
Associates of such Person, ceases to Beneficially Own 5% or more of the
then-outstanding Common Shares, (ii) subject to (a)(i) hereof, any Person who
would otherwise qualify as an Acquiring Person as of the Close of Business on
February 2, 2007 shall not be deemed to be an Acquiring Person for any purpose
of this Agreement on and after such date unless and until such time as (A) such
Person or any Affiliate or Associate of such Person thereafter becomes the
Beneficial Owner of additional Common Shares representing 1% or more of the
then-outstanding Common Shares, other than as a result of a stock dividend,
stock split or similar transaction effected by the Company in which all holders
of Common Shares are treated equally (such percentage increase subject to
downward adjustment if the Company's Board of Directors, in its sole discretion,
determines that such percentage increase shall jeopardize or endanger the
availability to the Company of its NOLs), or (B) any other Person who is the
Beneficial Owner of Common Shares representing 1% or more of the
then-outstanding Common Shares thereafter becomes an Affiliate or Associate of
such Person (such percentage subject to downward adjustment if the Company's
Board of Directors, in its sole discretion, determines that such percentage
increase shall jeopardize or endanger the availability to the Company of its
NOLs), PROVIDED that the foregoing exclusion shall cease to apply with respect
to any Person at such time as such Person, together with all Affiliates and
Associates of such Person, ceases to Beneficially Own 5% or more of the
then-outstanding Common Shares, and (iii) a Person shall not be deemed to have
become an Acquiring Person solely as a result of the acquisition of Common
Shares by the Company that, by reducing the number of Common Shares outstanding,
increases the percentage of shares beneficially owned by such Person together
with Affilates and Associates of such Person; except that such Person shall be
deemed to be an Acquiring Person if such Person would become an Acquiring Person
(but for the operation of this subclause (iii)) as a result of the acquisition
of the Common Shares by the Company, and (A) such Person, or any Affiliate or
Associate of such Person, thereafter becomes the Beneficial Owner of an
additional number of Common Shares representing 1% or more of the
then-outstanding Common Shares, other than as a result of a stock dividend,
stock split or similar transaction effected by the Company in which all holders
of Common Shares are treated equally (such percentage increase subject to
downward adjustment if the Company's Board of Directors, in its sole discretion,
determines that such percentage increase shall jeopardize or endanger the
availability to the Company of its NOLs), or (B) any other Person who is the
Beneficial Owner of Common Shares representing 1% or more of the
then-outstanding Common Shares thereafter becomes an Affiliate or Associate of
such Person (such percentage subject to downward adjustment if the Company's
Board of Directors, in its sole discretion, determines that such percentage
increase shall jeopardize or endanger the availability to the Company of its
NOLs). Notwithstanding the foregoing, if the Board of the Company
determines in good faith that a Person who would otherwise be an "Acquiring
Person" as defined pursuant to the foregoing provisions of this Section 1(a),
has become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such Person would no
longer be an "Acquiring Person" as defined pursuant to the foregoing provisions
of this Section 1(a), then such Person shall not be deemed to be an "Acquiring
Person" for any purposes of this Agreement.
2. All
capitalized terms used herein but not otherwise defined herein shall have the
meaning ascribed to them in the Rights Agreement.
3. Except
as specifically amended by this Amendment, the Rights Agreement shall remain in
full force and effect.
4. Any
Reference to “this Agreement or “the Rights Agreement” shall be deemed to be a
reference to the Rights Agreement as amended hereby.
5. The
governing law of this Amendment shall be as set forth in Section 30 of the
Rights Agreement.
6. This
Amendment may be executed by the parties in one or more counterparts, all of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment effective
as of the day and year first above written.
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By:
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/s/
Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Chief
Financial Officer
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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Vice
President
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