AMENDMENT NO. 4 TO RIGHTS AGREEMENT
AMENDMENT
NO. 4 TO RIGHTS AGREEMENT
This
Amendment No. 4, dated February 11, 2008 (the “Amendment”), by and between
Stamford Industrial Group, Inc. (formerly, Net Perceptions, Inc.) a Delaware
corporation (the “Company”) with its principal executive offices at Xxx Xxxxxxxx
Xxxxxx, 00xx
Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, and American Stock Transfer & Trust Company
(the “Rights Agent”), a New York corporation with its principal executive
offices at 00 Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000, amends the Rights Agreement,
dated as June 1, 2001, between the Company and Xxxxx Fargo Bank, N.A., as rights
agent, as amended by Amendments No. 1, 2 and 3 on December 22, 2003, April
21,
2004 and September 22, 2006, respectively (as so amended, the “Agreement”).
Capitalized terms used but not defined herein shall have the meanings ascribed
to such terms in the Agreement.
WHEREAS,
the Company has experienced substantial operating losses in previous years,
and
under the Internal Revenue Code of 1986, as amended (the “Code”), and rules
promulgated by the Internal Revenue Service, and the Company may “carry forward”
its net
operating losses (the “NOLs”) in certain circumstances to offset current and
future earnings, and thus reduce its federal income tax liability (subject
to
certain requirements and restrictions);
WHEREAS,
if the Company experiences an “Ownership Change,” as defined in Section 382
of the Code, its ability to use its NOLs could be substantially limited or
lost
altogether;
WHEREAS,
Pursuant
to Section 27 of the Agreement, the Company and the Rights Agent may supplement
or amend the Agreement in accordance with the provision of such Section 27;
and
WHEREAS,
the Company believes that its NOLs are a substantial asset of the Company and
that it is in the best interest of the Company and its stockholders that the
Company adopt an amendment to its Agreement pursuant to Section 27 thereof
to
provide for the protection of the Company’s NOLs on the terms and conditions set
forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
set
forth, the parties hereby agree as follows:
1. Appointment
of Rights Agent.
The
Company hereby appoints the Rights Agent to act as agent for the Company and
the
holders of the Rights (who, in accordance with Section 3 of the Agreement,
shall
prior to the Distribution Date also be the holders of the Common Stock) in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment.
2. Amendment
of Section 1(a).
Section
1(a) of the Agreement is hereby amended and restated in its entirety as follows:
“(a)
“Acquiring Person” shall mean any Person (other than (i) the Company,
(ii)
any
Subsidiary of the Company, (iii) any employee benefit plan of the Company,
or of
any Subsidiary of the Company, (iv) any Person or entity organized, appointed
or
established by the Company for or pursuant to the terms of any such plan, and
(v) any Exempt Person) who or which, together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner of 4.9% or more of the then
outstanding Common Stock (other than as a result of a Qualified Offer);
provided,
however,
that:
(i) if, as of February 11, 2008, any Person is the Beneficial Owner of 4.9%
or
more of the outstanding Common Stock, such Person shall not be deemed to be
an
Acquiring Person unless and until such time as (A) such Person or any Affiliate
or Associate of such Person thereafter becomes the Beneficial Owner of any
additional Common Stock, other than as a result of a stock dividend, stock
split
or similar transaction effected by the Company in which all holders of Common
Stock are treated substantially equally, or (B) any other Person who is the
Beneficial Owner of Common Stock thereafter becomes an Affiliate or Associate
of
such Person, 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 4.9% or more of the then outstanding Common Stock,
and (ii) a Person will not be deemed to have become an Acquiring Person solely
as a result of an acquisition of Common Stock by the Company which reduces
the
number of Common Stock outstanding 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 Stock, other than as a result of a stock dividend,
stock split or similar transaction effected by the Company in which all holders
of Common Stock are treated substantially equally, or (B) any other Person
who
is the Beneficial Owner of Common Stock thereafter becomes an Affiliate or
Associate of such Person. Notwithstanding the foregoing, if the Company’s Board
of Directors determines 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 (including, without limitation, because (A) such
Person was unaware that it Beneficially Owned a percentage of Common Stock
that
would otherwise cause such Person to be an Acquiring Person or (B) such Person
was aware of the extent of its Beneficial Ownership of Common Stock but had
no
actual knowledge of the consequences of such Beneficial Ownership under this
Agreement), and such Person divests as promptly as practicable (as determined
by
the Company’s Board of Directors) a sufficient number of shares of Common Stock
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 unless and
until such Person shall again become an Acquiring Person.
3. Amendment
of Section 1(c).
Section
1(c) of the Agreement is hereby amended by adding the following language after
the phrase “Exchange Act” and before the “.”:
“,
and to
the extent not included within the foregoing clause of this Section 1(c),
shall also include, with respect to any Person, any other Person (other than
(i)
the Company, (ii) any Subsidiary of the Company, (iii) any employee benefit
plan
of the Company, or of any Subsidiary of the Company, (iv) any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan, and (v) any Exempt Person) whose Common Stock would be deemed
constructively owned by such first Person pursuant to the provisions of
Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”),
or any successor provision or replacement provision, provided,
however,
that a
Person will not be deemed to be the Affiliate or Associate of another Person
solely because either or both Persons are or were directors of the
Company.”.
4. Amendment
of Section 1(d).
Section
1(d) of the Agreement is hereby amended by adding the following sentence to
the
end of such Section 1(d):
“Notwithstanding
anything in this definition of a Beneficial Owner to the contrary, to the extent
not within the foregoing provisions of this Section 1(d), a Person shall be
deemed the “Beneficial Owner” of and shall be deemed to “beneficially own” or
have “beneficial ownership” of, securities which such Person (i) would be deemed
to constructively own pursuant to Section 382 of the Code, or any successor
provision or replacement provision; or (ii) would be deemed to have a direct
or
indirect economic or pecuniary interest, including, without limitation,
interests or rights acquired through derivative, hedging or similar transactions
relating to such securities with a counterparty, as determined by the Company’s
Board of Directors in its sole and absolute discretion.
5. Amendment
of Section 1(x).
Section
1(x) of the Agreement is hereby amended and restated in its entirety as follows:
(x) “Rights
Agent” shall mean American
Stock Transfer & Trust Company, a Delaware corporation with its principal
executive offices at 00 Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000
6. Amendment
of Section 1.
Section
1 of the Agreement is hereby amended by adding the following clauses following
Section 1(ss):
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(tt)
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“Exempt
Person” shall mean a Person whose Beneficial Ownership (together with all
Affiliates and Associates of such Person) of 4.9% or more of the
then-outstanding Common Stock will not, as determined by the Company’s
Board of Directors in its sole discretion, jeopardize or endanger
the
availability to the Company of its NOLs, provided,
however,
that such a Person will cease to be an “Exempt Person” if the Company’s
Board of Directors makes a contrary determination with respect to
the
effect of such Person’s Beneficial Ownership (together with all Affiliates
and Associates of such Person) upon the availability to the Company
of its
NOLs.
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(uu)
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“NOLs”
shall mean the Company’s net operating loss carryforwards, to be used to
offset its taxable income in the current year or future year or
years.
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7. Amendment
to Section 7 (Exercise Rights; Purchase Price; Expiration Date of
Rights).
Section 7(a)(i) of the Rights Agreement is hereby amended and restated in
its entirety as follows:
“
the
time at which the Company’s Board of Directors determines that the NOLs are
fully utilized or no longer available under Section 382 of the Code (the “Final
Expiration Date”),”
8. Amendment
to Section 22 (Issuance of New Right Certificates).
Section 22 of the Rights Agreement is hereby amended by adding the
following language after the phrase “made in lieu of the issuance thereof” in
the second sentence thereof and before the “.”:
“;
and
provided
further, however,
that no
Right Certificates shall be issued if, and to the extent that the Company’s
Board of Directors determines that the issuance of such Right Certificates
could
have a material adverse tax consequence to the Company or to the Person to
whom
or which such Right Certificates otherwise would be issued.”
9. Amendment
to Section 29 (Determination and Actions by the Board of Directors,
etc.).
Section 29 of the Agreement is hereby amended by adding the following
language after the phrase “Exchange Act” and before the “.” from the first
sentence thereof:
“or
the
provisions of Section 382 of the Code, or any successor provision or
replacement provision, as applicable.”
10. Exhibit
B and Exhibit C.
Exhibit
B (Form of Right Certificate) and Exhibit C (Summary of Rights to Purchase
Preferred Stock) are hereby amended to the extent necessary to give effect
to
this Amendment.
11. Effectiveness.
This
Amendment shall be deemed effective as of the date first written above. Except
as amended hereby, the Agreement shall remain in full force and effect and
shall
be otherwise unaffected hereby.
12. 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. This Amendment may be executed in counterparts,
each
of which shall be deemed to be an original, and which together shall constitute
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 affected, impaired or invalidated.
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Amendment has been duly executed by the Company and the
Rights Agent as of the day and year first written above.
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By:
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/s/
Xxxxxxxx XxXxxxx
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Name:
Xxxxxxxx XxXxxxx
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Title:
Chief Financial Officer
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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as
Rights Agent
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By:
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/s/Xxxxxxx
X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Vice President
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