EXHIBIT 4.1
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
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Amendment No. 1, dated as of November 18, 1996 (this "Amendment No. 1"), to
the Rights Agreement between ABC RAIL PRODUCTS CORPORATION, a Delaware
corporation (the "Company") and LA SALLE NATIONAL TRUST, N.A., a national
banking association, as Rights Agent (the "Rights Agent"), dated as of September
29, 1995 (the "Rights Agreement").
W I T N E S S E T H
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WHEREAS, the parties hereto have entered into the Rights Agreement;
WHEREAS, the Rights Agreement contains a typographical error in that it
references the par value of the preferred stock of the Company as $.01, rather
than $1.00 as authorized by the Company's Amended and Restated Certificate of
Incorporation;
WHEREAS, pursuant to Section 27 of the Rights Agreement, without the
approval of any holders of Rights Certificates, the parties to the Rights
Agreement have agreed to correct provisions in the Rights Agreement that are
defective by correcting such typographical error in each place in which it
appears in such Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, without the
approval of any holders of Rights Certificates, the Company has deemed it
necessary, appropriate and desirable, and the parties to the Rights Agreement
have agreed, to amend the definition of Acquiring Person (as defined therein) in
the Rights Agreement to eliminate the provision that states that an Acquiring
Person shall not include any Affiliate (as defined therein) of the Company and
to replace it with a provision that states that an Acquiring Person shall not
include any Subsidiary (as defined therein) of the Company;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION I. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have the meanings given to them in the Rights Agreement.
SECTION II. Amendments to Rights Agreement. The Rights Agreement is hereby
amended as follows:
2.01. The words "Series A Junior Participating Preferred Stock, par value
$.01 per share" in each and every place in which they appear in the Rights
Agreement, including in Exhibits A, B and C thereto, are hereby amended by
replacing such words with the words "Series A Junior Participating Preferred
Stock, par value $1.00 per share".
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2.02 The words "'Series A Junior Participating Preferred Stock,' par
value $.01 per share" in each and every place in which they appear in the Rights
Agreement, including in Exhibits A, B and C thereto, are hereby amended by
replacing such words with the words "'Series A Junior Participating Preferred
Stock,' par value $1.00 per share".
2.03 The words "preferred stock, par value $.01 per share" in each
and every place in which they appear in the Rights Agreement, including in
Exhibits A, B and C thereto, are hereby amended by replacing such words with the
words "preferred stock, par value $1.00 per share".
2.04 The definition of "Acquiring Person" in Section 1 of the Rights
Agreement is hereby amended by amending and restating such definition in its
entirety as follows:
"'Acquiring Person' shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 15% or more
of the Common Shares of the Company then outstanding, but shall not include
the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any person or entity
for or pursuant to the terms of any such plan. Notwithstanding the
foregoing, no Person shall become an 'Acquiring Person' as the result of
(i) 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 of the Common Shares of
the Company then outstanding, or (ii) the acquisition by such Person of
newly-issued Common Shares directly from the Company (it being understood
that a purchase from an underwriter or other intermediary is not deemed for
purposes hereof to be a purchase directly from the Company); provided,
however, that if a Person shall become the Beneficial Owner of 15% or more
of the Common Shares of the Company then outstanding by reason of share
purchases by the Company or the receipt of newly-issued shares directly
from the Company and shall, after such share purchases or direct issuance
by the Company, become the Beneficial Owner of any additional Common Shares
of the Company (and thereafter remains a Beneficial Owner of 15% or more of
the Common Shares of the Company), then such Person shall be deemed to be
an 'Acquiring Person'; provided further, however, that any transferee from
such Person who becomes the Beneficial Owner of 15% or more of the Common
Shares of the Company then outstanding shall nevertheless be deemed to be
an 'Acquiring Person.' Notwithstanding the foregoing, if the Board of
Directors 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 paragraph, has become such inadvertently, and such
Person divests as promptly as practicable (and in any event within ten
business days after notification by the Company) 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, then
such Person shall not be deemed to be an 'Acquiring Person' for any
purposes of this Agreement."
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SECTION III. Miscellaneous.
3.01. Governing Law. This Amendment No. 1 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 the State of Delaware
applicable to contracts to be made and performed entirely within the State of
Delaware.
3.02. Counterparts. This Amendment No. 1 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.
3.03. Descriptive Headings. Descriptive headings of the several Sections
of this Amendment No. 1 have been inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
3.04. Ratification. This Amendment No. 1 is limited as specified and shall
not constitute a modification, acceptance, consent or waiver of any other
provision of the Rights Agreement. The Rights Agreement, including the Exhibits
thereto, as hereby amended is in all respects ratified and confirmed, and all
the rights and powers created thereby or thereunder shall be and remain in full
force and effect. From and after the date hereof, all references in the Rights
Agreement, the Exhibits thereto and all other documents related to the Rights
Agreement shall be deemed to be references to the Rights Agreement after giving
effect to this Amendment No. 1.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be duly
executed and attested, all as of the day and year first above written.
Attest: ABC RAIL PRODUCTS CORPORATION
By: /s/ Jo Xxxxx Xxxxxx By: /s/ X. Xxxxxxxx MacDonald
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Name: Jo Xxxxx Xxxxxx Name: X. Xxxxxxxx MacDonald
Title: Executive Assistant Title: Senior Vice President &
CFO
Attest: LA SALLE NATIONAL TRUST, N.A.,
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx Xxxxxxx Name: Xxxxx X. Xxxx
Title: Assistant Secretary Title: Group Vice President
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