SECOND AMENDMENT TO PREFERRED STOCK RIGHTS AGREEMENT
Exhibit 4.1
SECOND AMENDMENT TO PREFERRED STOCK RIGHTS AGREEMENT
This SECOND AMENDMENT TO THE PREFERRED STOCK RIGHTS AGREEMENT, dated as of November 16, 2009
(this “Amendment”), is entered into by and between SCM Microsystems, Inc. a Delaware
corporation (the “Company”), and American Stock Transfer & Trust Company, LLC (the
“Rights Agent”).
WHEREAS, the Company and the Rights Agent entered into a Preferred Stock Rights Agreement,
dated as of November 8, 2002, as amended December 10, 2008 (the “Rights Agreement”);
WHEREAS, Section 27 of the Rights Agreement provides that, in certain circumstances, the
Company may supplement or amend the Rights Agreement in any respect, without the approval of any
holders of Rights, and the Rights Agent shall execute such supplement or amendment;
WHEREAS, the Company has entered into entered into a Business Combination Agreement (the
“Business Combination Agreement”) with Bluehill ID AG, a stock corporation incorporated in
Switzerland (“Bluehill ID”), which provides for, among other things, a public
share-for-share offer by the Company to all of the Bluehill ID shareholders (the “Offer”),
and the issuance of new shares of the Company’s common stock (“New Shares”) to shareholders
of Bluehill ID who accept the Offer;
WHEREAS, on September 20, 2009, the Board of Directors of the Company approved the Business
Combination Agreement and determined that the transactions contemplated by the Business Combination
Agreement are advisable and in the best interests of the Company and its stockholders;
WHEREAS, as a result of the Offer, certain shareholders of Bluehill ID, who may or may not be
considered a “group” within the meaning of Section 13(d) of the Securities and Exchange Act of 1934
and who may be deemed to be affiliates of one another, will be acquiring, both individually and in
the aggregate, a substantial percentage of the Company’s outstanding common stock;
WHEREAS, on November 10, 2009, the Board of Directors of the Company resolved to amend the
Rights Agreement to revise the definition of an “Acquiring Person” so that certain of its
stockholders and affiliates will not be deemed to be an “Acquiring Person” as a result of the Offer
and to cause such other provisions of the Rights Agreement to be amended, as the authorized
officers or any one of them may deem necessary or appropriate in their sole discretion, to cause
the Rights Agreement in its entirety to be consistent with the foregoing; and
WHEREAS, the Company desires to modify the terms of the Rights Agreement in certain respects
as set forth herein, and in connection therewith, is entering into this Amendment and directing the
Rights Agent to enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
1. Effect of Amendment. Except as expressly provided herein, the Rights Agreement
shall be and remain in full force and effect.
2. Capitalized Terms. All capitalized, undefined terms used in this Amendment shall
have the meanings assigned thereto in the Rights Agreement.
3. Amendments to Section 1.
(a) The definition of “Acquiring Person” in Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
“‘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 Common Shares then outstanding, but shall not include (1) the Company,
any Subsidiary of the Company or any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity holding Common Shares for or pursuant to
the terms of any such plan, or (2) the persons or entities set forth on Annex
A hereto, as the same may be amended from time to time (each a “Bluehill ID
Shareholder” and, collectively, the “Bluehill ID Shareholders”) for so
long as (a) each Bluehill ID Shareholder, together with its respective Affiliates
and Associates, beneficially owns (but excluding any Common Shares that may be
deemed to be beneficially owned through any other Bluehill ID Shareholder, even if
such other Bluehill ID Shareholder may be deemed to be an Affiliate or Associate of
the subject Bluehill ID Shareholder) no more than 15% of the Common Shares then
outstanding; and (b) all of the Bluehill ID Shareholders, together with all of their
respective Affiliates and Associates (the “Bluehill ID Shareholder Group”),
collectively beneficially own no more than 30% of the Common Shares then
outstanding. Notwithstanding the foregoing, no Person shall be deemed to be an
Acquiring Person as the result of an acquisition of Common Shares 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 (or, in the case
of the Bluehill ID Shareholder Group, more than 30%) of the Common Shares of the
Company then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more (or, in the case of the Bluehill ID Shareholder
Group, more than 30%) of the Common Shares of the Company then outstanding by reason
of share purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Common Shares of the Company
(other than pursuant to a dividend or distribution paid or made by the Company on
the outstanding Common Shares in Common Shares or pursuant to a split or subdivision
of the outstanding Common Shares), then such Person shall be deemed to be an
Acquiring Person unless upon becoming the Beneficial Owner of such additional Common
Shares of the Company such Person does not beneficially own 15% or more (or, in the
case of the Bluehill ID Shareholder
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Group, more than 30%) of the Common Shares of the Company then outstanding.
Notwithstanding the foregoing, (i) if the Company’s Board of Directors 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 (including, without limitation, because (A) such Person was unaware
that it beneficially owned a percentage of the Common Shares that would otherwise
cause such Person to be an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph (a), or (B) such Person was aware of the extent of the
Common Shares it beneficially owned but had no actual knowledge of the consequences
of such beneficial ownership under this Agreement) and without any intention of
changing or influencing control of the Company, and if such Person divested or
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 paragraph (a), then such Person shall not be deemed to
be or to have become an “Acquiring Person” for any purposes of this Agreement
including, without limitation Section 1(gg) hereof; (ii) if, as of the date hereof,
any Person is the Beneficial Owner of 15% or more (or, in the case of the Bluehill
ID Shareholder Group, more than 30%) of the Common Shares outstanding, such Person
shall not be or become an “Acquiring Person,” as defined pursuant to the foregoing
provisions of this paragraph (a), unless and until such time as such Person shall
become the Beneficial Owner of additional Common Shares (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding Common
Shares in Common Shares or pursuant to a split or subdivision of the outstanding
Common Shares), unless, upon becoming the Beneficial Owner of such additional Common
Shares, such Person is not then the Beneficial Owner of 15% or more (or, in the case
of the Bluehill ID Shareholder Group, more than 30%) of the Common Shares then
outstanding; and (iii) neither Xxxxxx nor any of its affiliates or stockholders
shall be deemed an Acquiring Person on account of the execution or delivery of the
Merger Agreement or the Ancillary Agreements or the consummation of the transactions
contemplated thereby (including, until the termination of the Stockholder Agreement
in accordance with its terms, as a result of any Xxxxxx stockholder being deemed the
Beneficial Owner of any Common Shares solely as a result of their being a party to
the Stockholder Agreement).”
(b) Annex B attached hereto hereby replaces Exhibit C to the Rights Agreement.
(c) The definitions contained in Section 1 of the Rights Agreement shall be supplemented by
adding the following definitions in alphabetical order:
“‘Bluehill ID’ shall mean Bluehill ID AG, a stock corporation incorporated in
Switzerland.”
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“‘Business Combination Agreement’ shall mean the Business Combination Agreement
between the Company and Bluehill ID, dated September 20, 2009.”
4. New Section 36. Section 36 is hereby added to the Rights Agreement to read in its
entirety as follows:
“Section 36. The Business Combination Agreement. Notwithstanding anything
contained in this Agreement to the contrary, neither the approval, execution or
delivery of the Business Combination Agreement, nor the consummation of the
transactions contemplated thereby or the performance by the Company of its
obligations thereunder shall cause (a) the Rights to become exercisable, (b) a
Triggering Event to occur, (c) a Shares Acquisition Date to occur or (d) a
Distribution Date to occur.”
5. Effective Date. This Amendment is effective as of November 16, 2009.
6. Governing Law. This Amendment shall be governed by, construed and enforced in
accordance with the laws of the State of Delaware without reference to the conflicts or choice of
law principles thereof.
7. Counterparts; Facsimile Signatures. This Amendment may be executed in any number
of counterparts (including facsimile signature) each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same instrument.
8. Headings. The headings in this Amendment are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as
of the day and year first above written.
| SCM MICROSYSTEMS, INC. |
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| By: | /s/ Xxxxx Xxxx | |||
| Xxxxx Xxxx | ||||
| Chief Executive Officer | ||||
| AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President | |||
[Signature Page to Amendment to Rights Agreement]
Annex A
Bluehill ID Shareholders
1. Xxxxx X. Xxxxxx
2. Xxxxxx X. Xxxxxx
3. Xx. Xxxxxxxxx Xxxxxxx
4. Mountain Partners AG
5. BH Capital Management AG
6. Mountain Super Angel AG
[Annex A to Rights Agreement]
Annex B
Exhibit C
STOCKHOLDER RIGHTS PLAN
SCM MICROSYSTEMS, INC.
SCM MICROSYSTEMS, INC.
SUMMARY OF RIGHTS
DISTRIBUTION AND TRANSFER OF
RIGHTS; RIGHTS CERTIFICATE:
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The Board of Directors has declared a dividend of one Right for each share of Common Stock of SCM Microsystems, Inc. (the “Company”) outstanding. Prior to the Distribution Date referred to below, the Rights will be evidenced by and trade with the certificates for the Common Stock. After the Distribution Date, the Company will mail Rights certificates to the Company’s stockholders and the Rights will become transferable apart from the Common Stock. | |
DISTRIBUTION DATE:
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Rights will separate from the Common Stock and become exercisable following (a) the tenth business day (or such later date as may be determined by the Company’s Board of Directors) after a person or group acquires beneficial ownership of 15% or more (or, in the case of the Bluehill ID Shareholder Group, more than 30%) of the Company’s Common Stock or (b) the tenth business day (or such later date as may be determined by the Company’s Board of Directors) after a person or group announces a tender or exchange offer, the consummation of which would result in ownership by a person or group of 15% or more (or, in the case of the Bluehill ID Shareholder Group, more than 30%) of the Company’s Common Stock. | |
PREFERRED STOCK PURCHASABLE UPON EXERCISE OF RIGHTS: |
After the Distribution Date, each Right will entitle the holder to purchase for $30.00 (the “Exercise Price”), a fraction of a share of the Company’s Preferred Stock with economic terms similar to that of one share of the Company’s Common Stock. |
[Annex B to Rights Agreement]
FLIP-IN:
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If an acquirer (an “Acquiring Person”) obtains 15% or more (or, in the case of the Bluehill ID Shareholder Group, more than 30%) of the Company’s Common Stock, then each Right (other than Rights owned by an Acquiring Person or its affiliates) will entitle the holder thereof to purchase, for the Exercise Price, a number of shares of the Company’s Common Stock having a then-current market value of twice the Exercise Price. | |
FLIP-OVER:
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If, after an Acquiring Person obtains 15% or more (or, in the case of the Bluehill ID Shareholder Group, more than 30%) of the Company’s Common Stock, (a) the Company merges into another entity, (b) an acquiring entity merges into the Company or (c) the Company sells more than 50% of the Company’s assets or earning power, then each Right (other than Rights owned by an Acquiring Person or its affiliates) will entitle the holder thereof to purchase, for the Exercise Price, a number of shares of Common Stock of the person engaging in the transaction having a then current market value of twice the Exercise Price. | |
EXCHANGE PROVISION:
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At any time after the date on which an Acquiring Person obtains 15% or more (or, in the case of the Bluehill ID Shareholder Group, more than 30%) of the Company’s Common Stock and prior to the acquisition by the Acquiring Person of 50% of the outstanding Common Stock, the Board of Directors of the Company may exchange the Rights (other than Rights owned by the Acquiring Person or its affiliates), in whole or in part, for shares of Common Stock of the Company at an exchange ratio of one share of Common Stock per Right (subject to adjustment). | |
REDEMPTION OF THE RIGHTS:
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Rights will be redeemable at the Company’s option for $0.001 per Right at any time on or prior to the fifth day (or such later date as may be determined by the Company’s Board of |
[Annex B to Rights Agreement]
| Directors) after public announcement that a Person has acquired beneficial ownership of 15% or more (or, in the case of the Bluehill ID Shareholder Group, more than 30%) of the Company’s Common Stock (the “Shares Acquisition Date”). | ||
EXPIRATION OF THE RIGHTS:
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The Rights expire on the earliest of (a) November 25, 2012 or (b) exchange or redemption of the Rights as described above. | |
AMENDMENT OF TERMS OF RIGHTS:
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The terms of the Rights and the Rights Agreement may be amended in any respect without the consent of the Rights holders on or prior to the Distribution Date; thereafter, the terms of the Rights and the Rights Agreement may be amended without the consent of the Rights holders in order to cure any ambiguities or to make changes which do not adversely affect the interests of Rights holders (other than the Acquiring Person). | |
VOTING RIGHTS:
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Rights will not have any voting rights. | |
ANTI-DILUTION PROVISIONS:
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Rights will have the benefit of certain customary anti-dilution provisions. | |
TAXES:
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The Rights distribution should not be taxable for federal income tax purposes. However, following an event which renders the Rights exercisable or upon redemption of the Rights, stockholders may recognize taxable income. |
The foregoing is a summary of certain principal terms of the Rights Agreement only and is
qualified in its entirety by reference to the Preferred Stock Rights Agreement dated as of November
8, 2002 between the Company and American Stock Transfer & Trust Company as Rights Agent, as amended
(the “Rights Agreement”). The Rights Agreement may be amended from time to time. A copy of the
Rights Agreement was filed with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated November 14, 2002, and amendments to the Rights Agreement
were filed with the Securities and Exchange Commission as an Exhibit to a Form 8-K on each of
December 11, 2008, and November 16, 2009. A copy of the Rights Agreement is available free of
charge from the Company.
[Annex B to Rights Agreement]
