AMENDMENT TO RIGHTS AGREEMENT
Exhibit
4.1
AMENDMENT
TO RIGHTS AGREEMENT
THIS
AMENDMENT (the “Amendment”), is made effective as of April 28, 2009, between X.
Xxxxxxxxx'x Corporation, a Tennessee corporation (the “Company”), and
Computershare Trust Company, N.A., as successor Rights Agent to SunTrust Bank,
Atlanta (the “Rights Agent”).
W I T N E
S S E T H:
WHEREAS,
on May 16, 1989, the Company entered into that certain Rights Agreement between
the Company and the Rights Agent (as heretofore amended, the “Rights
Agreement”);
WHEREAS,
the Board of Directors of the Company declared a distribution of one Right for
each outstanding share of Common Stock issued (including shares distributed from
Treasury) by the Company thereafter as well as each share of Common Stock issued
by the Company prior to the Distribution Date (as defined in Section 3(a) of the
Rights Agreement);
WHEREAS,
the Rights Agreement was previously amended by the Amendments to Rights
Agreement effective February 22, 1999, the Amendment to Rights Agreement
effective March 22, 1999, the Amendment to Rights Agreement effective May 6,
1999 and the Amendment to Rights Agreement effective May 14, 2004;
WHEREAS,
the Board of Directors of the Company has determined that it is in the best
interest of the Company and its shareholders to further amend the Rights
Agreement as set forth in this Amendment;
WHEREAS,
pursuant to Section 26, the Company and the Rights Agent, at the direction of
the Company's Board of Directors, may supplement or amend the Rights
Agreement;
WHEREAS,
terms used in this Amendment that are defined in the Rights Agreement are used
with the meanings ascribed to them in the Rights Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereby agree as follows:
1. Amendment. Effective
as of the date of this Amendment, the Rights Agreement shall be amended as
follows:
(a) Section
1(a), as amended, defining “Acquiring Person” shall, as of the effective date of
this Amendment, be amended and restated so that henceforth it shall read in its
entirety as follows:
“Acquiring
Person” shall mean (i) any Person which shall be the Beneficial Owner of 20% or
more of the shares of Company Common Stock then outstanding, or (ii) any Market
Accumulator, but shall not include the Company, any subsidiary of the company,
any shareholder of the Company who as of the date of this Agreement is the
Beneficial Owner of 20% or more of the shares of Company Common Stock, or any
employee benefit plan maintained by the
Company
or any of its Subsidiaries or any trustee or fiduciary with respect to such plan
acting in such capacity. Notwithstanding the foregoing, no Person shall become
an “Acquiring Person” as the result of an acquisition of Company Common Stock by
the Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 20% or more
of the Company Common Stock then outstanding; provided, however, that if a
Person becomes the Beneficial Owner of 20% or more of the Company Common Stock
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 Company Common Stock, then such Person shall be deemed to be an
“Acquiring Person”.
(b) Section
1(d) is amended to delete the term “Nashville” and replace it with “the
Commonwealth of Massachusetts”.
(c) Section
1(e) is amended to delete both references to the term “Nashville” and replace
each with “Eastern”.
(d) Section
2 is amended to delete the second sentence in its entirety and replace it with
the following new language:
“The
Company may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable, upon ten (10) days’ prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in
no event be liable for, the acts or omissions of any such Co-Rights
Agent.”
(e) Section
5(a) is amended to insert the term “or facsimile” after the term “manual” in the
fourth sentence thereof.
(f) Section
7(a), as amended, which sets out the definition of “Final Expiration Date,” is
amended to delete the phrase “May 16, 2009” and to substitute therefor the
phrase “May 31, 2012.”
(g) Section
21 is amended as follows:
(i) to
delete the phrase “, and to the holders of Certificates by first-class mail” in
the first sentence thereof; and
(ii) to
insert the following new sentence after the first sentence thereof:
“In the
event the transfer agency relationship in effect between the Company and the
Rights Agent terminates, the Rights Agent will be deemed to have resigned
automatically and be discharged from its duties under this Agreement as of the
effective date of such termination, and the Company shall be responsible for
sending any required notice.”
(h) Section
25 is amended as follows:
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(i) to
delete the Company notice information and replace it with the
following:
X.
Xxxxxxxxx’x Corporation
0000 Xxxx
Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
R. Xxxxxxx Xxxxx, Secretary
(ii) to
delete the Rights Agent notice information and replace it with the
following:
Computershare
Trust Company, N.A.
000
Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Client Services
(iii) to
insert the following new language into the first sentence thereof after the term
“delivered”: “by overnight delivery service or first-class mail, postage
prepaid”.
(iv) to
delete the following language in the first sentence thereof: “(including by
telex, telegram or cable)”.
(i) Section
26 is amended to insert the following language at the end of the fourth sentence
thereof, “provided that such supplement or amendment does not adversely affect
the rights, duties or obligations of the Rights Agent under this
Agreement”
(j) Section
31 is amended to insert the following language at the end of the first sentence
thereof, “, except that the rights, duties and obligations of the Rights Agent
shall be governed by, and construed in accordance with, the laws of the
Commonwealth of Massachusetts applicable to contracts executed in and to be
performed entirely in such State.”
(k) The
Rights Agreement is amended to insert the following new Section 34 at the end
thereof:
“Section
34. Force Majeure. Notwithstanding anything to the
contrary contained herein, the Rights Agent shall not be liable for any delays
or failures in performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts, shortage of supply,
breakdowns or malfunctions, interruptions or malfunction of computer facilities,
loss of data due to power failures or mechanical difficulties with information
storage or retrieval systems, labor difficulties, war, or civil
unrest.”
2. Effective
Date. The Amendment shall become effective as of the date
hereof and shall not under any circumstances have retroactive
effect.
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3. Rights
Agreement. Except as set forth in Section 1 above, the Rights
Agreement shall remain in full force and effect.
4. Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute a single
instrument. A signature to this Amendment transmitted electronically
shall have the same authority, effect, and enforceability as an original
signature.
IN WITNESS WHEREOF, the parties have
caused this Amendment to be executed and delivered by their duly authorized
officers or agents all as of the date first above written.
X.
XXXXXXXXX'X CORPORATION
By: /s/ Xxxxxx X.
Xxxxx XX
Name: Xxxxxx
X. Xxxxx XX
Title: Chairman,
President and CEO
COMPUTERSHARE
TRUST COMPANY, N.A.
By: /s/ Xxxxxx
X. Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: Managing
Director
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