EXHIBIT 4.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as
of April 5, 1999, is between BancTec, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent").
Recitals
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WHEREAS, the Company and the Rights Agent are parties to the First
Amended and Restated Rights Agreement, dated as of May 26, 1998 (the "Rights
Agreement");
WHEREAS, Colonial Acquisition Corp., a Delaware corporation ("Merger
Sub") and the Company propose to enter into an Agreement and Plan of Merger (the
"Merger Agreement") pursuant to which Merger Sub will merge with and into the
Company (the "Merger"), the Board of Directors of the Company having approved
the Merger Agreement and the Merger; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, 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 and the Rights Agent desire to evidence such
amendment in writing;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
(a) Amendment of Section 1(a). Section 1(a) of the Rights Agreement
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is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither Merger
Sub nor any of its affiliates shall be deemed to be an Acquiring Person
solely by virtue of (i) the execution of the Merger Agreement or (ii) the
consummation of the Merger."
(b) Amendment of Section 1. Section 1 of the Rights Agreement is
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amended to add the following at the end thereof:
(o) "Merger" shall have the meaning set forth in the recital to
Amendment No. 1 to Rights Agreement.
(p) "Merger Agreement" shall mean that certain Agreement and
Plan of Merger, dated as of April 5, 1999, by and between
Merger Sub and the Company, as amended from time to time.
(q) "Merger Sub" shall mean Colonial Acquisition Corp., a
Delaware corporation.
(c) Amendment of Section 3(a). Section 3(a) of the Rights Agreement
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is amended to add the following sentence at the end thereof:
"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
execution of the Merger Agreement or (ii) the consummation of the Merger."
(d) Amendment of Section 18(a). Section 18(a) of the Rights Agreement
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is amended to read as follows:
"(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, damage, judgment, fine, penalty,
claim, demand, settlement, cost or expense, incurred without
gross negligence, bad faith or willful misconduct on the part of
the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending
against any claim of liability in the premises. The indemnity
provided herein shall survive the termination of this Agreement
and the termination and the expiration of the Rights. The costs
and expenses incurred in enforcing this right of indemnification
shall be paid by the Company. Anything to the contrary
notwithstanding, in no event shall the Rights Agent be liable for
special, punitive, indirect, consequential or incidental loss or
damage of any kind whatsoever (including but not limited to lost
profits), even if the Rights Agent has been advised of the
likelihood of such loss or damage. Any liability of the Rights
Agent under this Agreement will be limited to the amount of fees
paid by the Company to the Rights Agent."
(e) The parties hereto hereby amend the Rights Agreement by adding
the following Section 35 to the Rights Agreement:
"Section 35. Termination. Immediately prior to the effective
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time of the Merger, (i) the Agreement shall be terminated and be
without any further force or effect, (ii) none of the parties to
the Agreement will have any rights, obligations or liabilities
thereunder, provided however, Section 18 of the Agreement shall
survive termination of the Agreement, and (iii) the holders of
the Rights shall not be entitled to any benefits, rights or other
interests under the Agreement, including without limitation, the
right to purchase or otherwise acquire shares of the Preferred
Stock or any other securities of the Company."
(f) Effectiveness. This Amendment shall be deemed effective as of the
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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.
(i) Miscellaneous. This Amendment shall be deemed to be a contract
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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.
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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 parties hereto have caused this Amendment to
be fully executed, all as of the date and year first above written.
BANCTEC, INC.
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Senior Vice President
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Vice President
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