Exhibit 4.1
X.X. XXXXXXXX TOBACCO HOLDINGS, INC.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
(000) 000-0000
December 18, 2002
VIA FACSIMILE AND FIRST-CLASS MAIL
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The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attention: Stock Transfer Administration
Re: Amendment No. 2 to the Rights Agreement
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Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement, dated as of May 17,
1999, as amended (the "Rights Agreement"), between X.X. Xxxxxxxx Tobacco
Holdings, Inc., a Delaware corporation (the "Company"), and The Bank of New
York, a New York banking corporation, as rights agent, the Company, by
resolution adopted by its Board of Directors by an action taken by written
consent, hereby amends the Rights Agreement as follows:
1. The definition of the term "Acquiring Person" in Section 1 of the
Rights Agreement is hereby amended and restated in its entirety as follows:
"'Acquiring Person' means any Person who, together with all Affiliates
and Associates of such Person, shall at any time after June 14, 1999 be the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include (i) any Passive Institutional Investor
who, together with all Affiliates and Associates of such Passive
Institutional Investor, is the Beneficial Owner of less than 17.5% of the
shares of Common Stock then outstanding or (ii) an Exempt Person; provided,
however, that (a) if the Board determines in good faith that a Person who
would otherwise be an "Acquiring Person" became, together with its
Affiliates and Associates, the Beneficial Owner of a number of shares of
Common Stock such that the Person would otherwise qualify as an "Acquiring
Person" inadvertently (including, without limitation, because (x) 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 (y)
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, then such Person shall not be deemed to
be or have become an "Acquiring Person" for any purposes of this Agreement
unless and until such Person shall have failed to divest itself, as soon as
practicable (as determined by the Board of Directors of the Company), of
Beneficial Ownership of a sufficient number of shares of Common Stock so
that such Person would no longer otherwise qualify as an "Acquiring
Person," provided, however, that such Person need not divest itself of such
Beneficial Ownership if the Board of Directors of the Company determines
that such divestiture is not necessary; and (b) no Person shall become an
"Acquiring Person" as the result of any acquisition of shares of Common
Stock by the Company which, by reducing the number of shares of Common
Stock outstanding, increases the proportionate number of shares of Common
Stock beneficially owned by such Person to (A) in the case of a Person that
is not a Passive Institutional Investor, 15% or more, or (B) in the case of
a Person that is a Passive Institutional Investor, 17.5% or more, of the
shares of Common Stock then outstanding; provided, however, that if (I) a
Person that is not a Passive Institutional Investor shall be the Beneficial
Owner of 15% or more, or (II) a Person that is a Passive Institutional
Investor shall be the Beneficial Owner of 17.5% or more, of the shares of
Common Stock then outstanding by reason of such share acquisition by the
Company and such Person 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 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 such
Person or such Person's Affiliates or Associates becoming the Beneficial
Owner of such additional shares of Common Stock (X) such Person that is not
a Passive Institutional Investor does not beneficially own 15% or more, or
(Y) such Person that is a Passive Institutional Investor does not
beneficially own 17.5% or more, of the shares of Common Stock then
outstanding."
2. The following definition of the term "Passive Institutional
Investor" is hereby added to Section 1 of the Rights Agreement:
"'Passive Institutional Investor' shall mean:
(a) a Person that is the Beneficial Owner of shares of Common Stock
and has a Schedule 13G (or any comparable or successor report) on file with
the Securities and Exchange Commission pursuant to the requirements of Rule
13d-1 under the Exchange Act with respect to such Beneficial Ownership, so
long as such Person either (i) satisfies the criteria set forth in both
Rule 13d-1(b)(1)(i) and Rule 13d-1(b)(1)(ii) under the Exchange Act as in
effect on December 10, 2002 and is not obligated to, and does not, file a
Schedule 13D (or any comparable or successor report) with respect to
securities of the Company; and
(b) any Affiliate or Associate or such Person that is not obligated
to, and does not, file a Schedule 13G (or any comparable or successor
report) or Schedule 13D (or any comparable or successor report) with
respect to any securities of the Company."
3. The Rights Agreement shall not otherwise be supplemented or amended
by virtue of this Amendment No. 2 to the Rights Agreement, but shall remain
in full force and effect.
4. Capitalized terms used without other definition in this Amendment
No. 2 to the Rights Agreement shall be used as defined in the Rights
Agreement.
5. This Amendment No. 2 to the Rights Agreement 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, except that the rights and obligations of the Rights Agent
shall be governed by the laws of the State of New York.
6. This Amendment No. 2 to the Rights Agreement 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.
7. This Amendment No. 2 to the Rights Agreement shall be effective as
of the execution and delivery hereof, and all references to the Rights
Agreement shall, from and after such time, be deemed to be references to
the Rights Agreement as amended hereby.
8. Exhibit B to the Rights Agreement shall be deemed amended in a
manner consistent with this Amendment No. 2 to the Rights Agreement.
Very truly yours,
X.X. XXXXXXXX TOBACCO HOLDINGS, INC.
By: /s/ XxXxxx X. Xxxxx,III
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Name: XxXxxx X. Xxxxx, III
Title: Vice President, Deputy General Counsel
and Secretary
Accepted and agreed to as of the
effective time specified above:
THE BANK OF NEW YORK
By:/s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
Title: Vice President
