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EXHIBIT 4.1
RIGHTS AGREEMENT AMENDMENT
This Amendment, dated as of December 11, 1998, to the Rights
Agreement, dated as of December 31, 1996 (the "Rights Agreement"), is between
Xxxxxxxx Gold Corporation, a Delaware corporation (the "Company"), and Xxxxxx
Trust and Savings Bank (the "Rights Agent").
The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement. Pursuant to Section 27 of the Rights
Agreement, the Company and the Rights Agent may from time to time supplement or
amend the Rights Agreement in accordance with the provisions of Section 27
thereof and the Company desires and directs the Rights Agent to so amend the
Rights Agreement. All acts and things necessary to make this Amendment a valid
agreement according to its terms have been done and performed, and the execution
and delivery of this Agreement by the Company and the Rights Agent have been in
all respects authorized by the Company and the Rights Agent.
In consideration of the foregoing premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereto agree as follows:
1. Section 1(a) of the Rights Agreement is hereby modified and
amended to read in its entirety as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner (as
such term is hereinafter defined) of 15% or more of the Shares of
Common Stock then outstanding, but shall not include (i) an Exempt
Person (as such term is hereinafter defined) or (ii) Placer Dome Inc.
or any Affiliate thereof ("Parent"); provided, however, that Parent
will become an "Acquiring Person" in the event that Parent becomes the
Beneficial Owner of an aggregate of 15% or more of the Common Stock of
the Company then outstanding other than pursuant to the terms of the
Agreement and Plan of Merger, dated as of December 11, 1998 (the
"Merger Agreement"), between the Company and Parent; provided, however,
that (i) if the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an "Acquiring Person" became
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
without any intention of changing or influencing control of the
Company, and if such Person as promptly as practicable divested or
divests itself of Beneficial Ownership of a sufficient number of shares
of Common Stock so that such
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Person would no longer be an "Acquiring Person," then such Person shall
not be deemed to be or to have become an "Acquiring Person" for any
purposes of this Agreement; (ii) if, as of the date hereof, any Person
is the Beneficial Owner of 15% or more of the shares of Common Stock
outstanding, such Person shall not be or become an "Acquiring Person"
unless and until such time as such Person shall become the Beneficial
Owner of additional shares of Common Stock (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding
Common Stock in shares of Common Stock or pursuant to a split or
subdivision of the outstanding Common Stock), unless, upon becoming the
Beneficial Owner of such additional shares of Common Stock, such Person
is not then the Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding; and (iii) no Person shall become an "Acquiring
Person" as the result of an acquisition of shares of Common Stock by
the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares of Common Stock
beneficially owned by such Person to 15% or more of the shares of
Common Stock then outstanding, provided, however, that if a Person
shall become the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding by reason of such share acquisitions by
the Company and shall thereafter become the Beneficial Owner of any
additional shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common
Stock in shares of Common Stock or pursuant to a split or subdivision
of the outstanding Common Stock), then such person shall be deemed to
be an "Acquiring Person" unless upon becoming the Beneficial Owner of
such additional shares of Common Stock such Person does not
beneficially own 15% or more of the shares of Common Stock then
outstanding. For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date hereof.
2. Section 1(aa) of the Rights Agreement is hereby amended by
adding as the final sentence thereto the following:
Notwithstanding anything in the Agreement to the contrary, no
Stock Acquisition Date shall be deemed to have occured solely
as a result of (i) the approval, execution or delivery of the
Merger Agreement, or (ii) the consummation of the Merger (as
defined in the Merger Agreement).
3. Section 3(a) of the Rights Agreement is hereby amended by
adding as the final sentence thereto the following:
Notwithstanding anything in this Agreement to the contrary, no
Distribution Date shall be deemed to have occurred solely as a
result of (i) the approval, execution or delivery of the
Merger
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Agreement, or (ii) the consummation of the Merger (as defined
in the Merger Agreement).
4. Section 7(a) of the Rights Agreement is hereby amended to
add "or (iv) immediately prior to the Effective Time of the Merger (as defined
in the Merger Agreement)."
5. Section 11(a)(ii) of the Rights Agreement is hereby amended
by adding as the final sentence thereto the following:
Notwithstanding anything in this Agreement to the contrary, no
Flip-In Event shall be deemed to have occurred solely as a
result of (i) the approval, execution or delivery of the
Merger Agreement, or (ii) the consummation of the Merger (as
defined in the Merger Agreement).
6. Section 13(a) of the Rights Agreement is hereby amended by
adding as the final sentence thereto the following:
Notwithstanding anything in this Agreement to the contrary,
none of the events described in clauses (i) through (iii) of
the first sentence of Section 13(a) shall be deemed to have
occurred solely as a result of (i) the approval, execution or
delivery of the Merger Agreement, or (ii) the consummation of
the Merger (as defined in the Merger Agreement).
7. Except as expressly amended hereby, the Rights Agreement
remains in full force and effect in accordance with its terms.
8. This Amendment to the Rights Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
9. This Amendment to the Rights Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed an original, and all such counterparts shall together constitute but
one and the same instrument.
10. Except as expressly set forth herein, this Amendment to
the Rights Agreement shall not by implication or otherwise alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Rights Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Rights Agreement to be duly executed as of the day and year
first above written.
XXXXXXXX GOLD CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President, Chief Financial
Officer and Secretary
XXXXXX TRUST AND SAVINGS BANK,
as Rights Agent
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Account Administrator
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