AMENDMENT NO. 1 TO PREFERRED STOCK RIGHTS AGREEMENT
Exhibit
4.1
AMENDMENT
NO. 1
TO
This Amendment No. 1 to Preferred Stock
Rights Agreement (the “Amendment”) is
entered into as of July 1, 2009, by and between Medialink Worldwide
Incorporated, a Delaware corporation (the “Company”), and Mellon
Investor Services LLC, a New Jersey limited liability company (the “Rights
Agent”).
RECITALS
A. The
Company is a party to that certain Preferred Stock Rights Agreement dated as of
August 16, 2001 (the “Rights Agreement”)
with the Rights Agent. All capitalized terms used herein and not otherwise
defined shall have the meaning ascribed to them in the Rights
Agreement;
B. The
Company is entering into an Agreement and Plan of Merger (the “Merger Agreement”),
among the Company, The NewsMarket, Inc., a Delaware corporation (“Parent”) and TNM
Group Incorporated, a Delaware corporation and a wholly-owned subsidiary of
Parent (“Merger
Sub”), pursuant to which: (1) all of the issued and outstanding shares of
common stock, par value $0.01 per share, of the Company, and all Rights
associated with such shares, will be cancelled and converted into the right to
receive $0.20 in cash, without interest and less any applicable withholding
taxes on the terms and subject to the conditions set forth in the Merger
Agreement (as it may be amended and/or extended from time to time); and (ii)
Merger Sub will merge with and into the Company upon the terms and subject to
the conditions set forth in the Merger Agreement (such merger is referred to in
this Amendment as the “Merger”);
C. Concurrently
with the execution and delivery of the Merger Agreement, Parent, and certain
directors and executive officers of the Company are entering into a voting
agreement (the “Voting
Agreement”) pursuant to which such directors and executive officers will
agree to take the actions specified therein in furtherance of the
Merger;
D. The
Company desires to amend the Rights Agreement in connection with the execution
and delivery of each of the Merger Agreement and the Voting Agreement and the
consummation of the transactions contemplated thereby;
E. Pursuant
to Section 27 of the Rights Agreement, prior to the occurrence of a Distribution
Date, the Company and the Rights Agent shall, if the Board of Directors of the
Company so directs, but subject to the other provisions of Section 27,
supplement or amend any provision of the Rights Agreement without the approval
of any holders of Rights; and
AGREEMENT
NOW, THEREFORE, the parties
hereby agree as follows:
1. Amendments to Section
1.
Section 1
of the Rights Agreement is hereby amended by adding the following definitions,
which shall be inserted into Section 1 in alphabetical order:
“Merger
Agreement” shall mean the Agreement and Plan of Merger, dated as of July 1,
2009, by and among Parent, Merger Sub and the Company;
“Merger”
shall have the meaning set forth in the Merger Agreement;
“Merger
Sub” shall mean TNM Group Incorporated, a Delaware corporation and wholly-owned
subsidiary of Parent;
“Parent”
shall mean The NewsMarket, Inc., a Delaware corporation;
“Voting
Agreement” shall mean the Voting Agreement, dated as of July 1, 2009, by and
among Parent and certain directors and executive officers of the
Company.
The
definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is
hereby amended by inserting the following sentence at the end
thereof:
“Notwithstanding the foregoing or any
other provision of this Agreement to the contrary, none of (i) the approval,
execution and/or delivery of the Merger Agreement or the approval, execution
and/or delivery of any amendment thereto, (ii) the approval, execution and/or
delivery of the Voting Agreement or the approval, execution and/or delivery of
any amendment thereto, (iii) the consummation of the Merger, (iv) the
consummation of the other transactions contemplated in the Merger Agreement, or
(v) the announcement of the Merger, or any other transactions contemplated
thereby shall be deemed to result in Parent or Merger Sub becoming an Acquiring
Person.”
The
definition of “Distribution Date” in Section 1(l) of the Rights Agreement is
hereby amended by inserting the following sentence at the end
thereof:
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“Notwithstanding
anything in this Agreement to the contrary, none of (i) the approval, execution
and/or delivery of the Merger Agreement or the approval, execution and/or
delivery of any amendment thereto, (ii) the approval, execution and/or delivery
of the Voting Agreement or the approval, execution and/or delivery of any
amendment thereto, (iii) the consummation of the Merger, (iv) the consummation
of the other transactions contemplated in the Merger Agreement, or (v) the
announcement of the Merger or any other transactions contemplated thereby shall
be deemed to result in a Distribution Date.”
The
definition of “Expiration Date” in Section 1(q) of the Rights Agreement is
hereby amended and restated in its entirety to read as follows:
“Expiration
Date” shall mean the earliest to occur of: (i) the Close of Business on the
Final Expiration Date, (ii) the Redemption Date, (iii) the time at which the
Board of Directors orders the exchange of the Rights as provided in Section 24
hereof, or (iv) the Effective Time (as such term is defined in the Merger
Agreement). The Company shall give the Rights Agent prior written notice of the
Effective Time; provided, however that if the Company is the surviving
corporation under the Merger Agreement, the Company shall give the Rights Agent
prompt written notice of the Effective Time. Until such notice is
received by the Rights Agent, the Rights Agent may presume conclusively for all
purposes that the Effective Time has not occurred.
The
definition of “Shares Acquisition Date” in Section 1(hh) of the Rights Agreement
is hereby amended by inserting the following sentence at the end
thereof:
“Notwithstanding
the foregoing or any other provision of this Agreement to the contrary, none of
(i) the approval, execution and/or delivery of the Merger Agreement or the
approval, execution and/or delivery of any amendment thereto, (ii) the approval,
execution and/or delivery of the Voting Agreement or the approval, execution
and/or delivery of any amendment thereto, (iii) the consummation of the Merger,
(v) the consummation of the other transactions contemplated in the Merger
Agreement, or (vi) the announcement of the Merger or any other transactions
contemplated thereby shall be deemed to result in a Shares Acquisition
Date.”
2. Amendment to Section
7(a). Section 7(a) of the Rights Agreement is hereby amended
and restated in its entirety to read as follows:
“Subject to Sections 7(e), 23(b) and
24(b) hereof, the registered holder of any Rights Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time after the Distribution Date by surrender of the Rights
Certificate, with the form of election to purchase on the reverse side thereof
duly executed, to the Rights Agent at the office of the Rights Agent designated
for such purpose, together with payment of the Exercise Price for each
one-thousandth of a Preferred Share (or, following a Triggering Event, other
securities, cash or other assets as the case may be) as to which the Rights are
exercised, and prior to the earliest of (i) the Close of Business on the
Expiration Date, (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof, (iii) the time at which such Rights are exchanged as provided
in Section 24 hereof, and (iv) the moment in time immediately prior to the
Effective Time (as such term is defined in the Merger
Agreement).”
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3. Amendment to Section
13. Section 13 of the Rights Agreement is hereby amended by
adding the following new Section 13(g):
“(g) Notwithstanding the foregoing or
any other provision of this Agreement to the contrary, (i) the approval,
execution and/or delivery of the Merger Agreement or the approval, execution
and/or delivery of any amendment thereto, (ii) the approval, execution and/or
delivery of the Voting Agreement or the approval, execution and/or delivery of
any amendment thereto, (iii) the consummation of the Merger, (iv) the
consummation of the other transactions contemplated in the Merger Agreement, or
(vi) the announcement of the Merger, or any other transactions contemplated
thereby shall not be deemed to be a Section 13 Event and shall not cause the
Rights to be adjusted or exercisable in accordance with, or any other action to
be taken or obligation to arise pursuant to, this Section 13.”
4. Amendment to Section
30. Section 30 of the Rights Agreement is hereby amended by
inserting the following sentence at the end thereof:
“Further, nothing in this Agreement
shall be construed to give any holder of Rights or any other Person any legal or
equitable rights, remedies or claims under this Agreement by virtue of (i) the
approval, execution and/or delivery of the Merger Agreement or the approval,
execution and/or delivery of any amendment thereto, (ii) the approval, execution
and/or delivery of the Voting Agreement or the approval, execution and/or
delivery of any amendment thereto, (iii) the consummation of the Merger, (iv)
the consummation of the other transactions contemplated in the Merger Agreement,
or (vi) the announcement of the Merger, or any other transactions contemplated
thereby.”
5. Direction. By
its execution and delivery hereof, the Company directs the Rights Agent to
execute this Amendment.
6. Full Force and
Effect. The Rights Agreement, as amended by this Amendment,
shall remain in full force and effect in accordance with its terms. In the event
of any conflict, inconsistency or incongruity between any provision of this
Amendment and any provision of the Rights Agreement, the provisions of this
Amendment shall govern and control. Without limiting the foregoing,
the Rights Agent shall not be subject to, nor required to interpret or comply
with, or determine if any other Person has complied with, the Voting Agreement
or the Merger Agreement, even though reference thereto may be made in this
Amendment and the Rights Agreement.
7. Exclusive
Benefit. Nothing in this Amendment shall be construed to give
to any Person other than the Company, Parent, Merger Sub, the Rights Agent and
the registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares) any legal or equitable right, remedy or claim under
this Amendment; but this Amendment shall be for the sole and exclusive benefit
of the Company, Parent, Merger Sub, the Rights Agent and the registered holders
of the Right Certificates (and, prior to the Distribution Date, the Common
Shares).
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8. Severability. If
any term, provision, covenant or restriction of this Amendment is held by a
court of competent jurisdiction or other authority to be invalid, void 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; provided, however, that if such
excluded provision shall affect the rights, immunities, duties or obligations of
the Rights Agent, the Rights Agent shall be entitled to resign
immediately.
9. Successors and
Assigns. All the covenants and provisions of this Amendment by
or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
10. Governing
Law. 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; provided,
however, that all provisions regarding the rights, duties and obligations of the
Rights Agent shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed entirely
within such state.
11. Counterparts. This
Amendment 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 together shall constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the
parties have caused this Amendment to be duly executed as of the day and year
first written above.
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MEDIALINK
WORLDWIDE
INORPORATED
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Chief
Financial Officer
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MELLON
INVESTOR SERVICES LLC, as
Rights
Agent
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By:
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/s/ Xxxx X. Xxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxx
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Title:
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Associate
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