AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Exhibit 4
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the “Amendment”), dated as of March 17,
2010, is between Xxxxx Media Company, a Delaware corporation (the “Company”), and Mellon
Investor Services LLC, a New Jersey limited liability company, as rights agent (the “Rights
Agent”).
RECITALS
A. The Company and the Rights Agent are parties to a Rights Agreement, dated as of January 29,
2009 (the “Agreement”).
B. The Company and the Rights Agent desire to amend certain terms and provisions of the
Agreement as set forth in this Amendment.
AMENDMENT
In consideration of the foregoing premises, the mutual covenants and other agreements set
forth herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto covenant and agree as follows:
1. Certain Definitions.
(a) Definition of “Acquiring Person”. The definition of the term “Acquiring Person”
contained in Section 1(a) of the Agreement is hereby amended and restated in its entirety by the
following:
“Acquiring Person” shall mean any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of Common Shares equal to or in
excess of 20% of the Common Shares then outstanding, but shall not include (i) the Company,
(ii) any Subsidiary of the Company, (iii) any employee benefit plan of the Company or any
Subsidiary of the Company, (iv) any entity organized, appointed or established by the
Company for, or pursuant to the terms of, any such plan, or (v) any Person who, prior to the
Company’s public announcement of the Board’s approval of this Agreement, is the Beneficial
Owner of Common Shares equal to or in excess of 20% of the Common Shares then outstanding (a
“Current 20% Owner”); provided, however, that if following such public announcement of the
Board’s approval of this Agreement, such Current 20% Owner becomes the Beneficial Owner of
any additional Common Shares of the Company and is the Beneficial Owner of Common Shares
equal to or in excess of 20% of the Common Shares then outstanding, then such Current 20%
Owner shall be deemed an “Acquiring Person”. Notwithstanding the foregoing, no Person shall
become an “Acquiring Person” as the result of (a) an acquisition of Common Shares by the
Company which, by reducing the number of
Common Shares outstanding, increases the proportionate number of Common Shares
beneficially owned by such Person to 20% or more of the Common Shares then outstanding or
(b) the acquisition by such Person of newly-issued Common Shares directly from the Company
(it being understood that a purchase from an underwriter or other intermediary is not
directly from the Company); provided, however, that if a Person becomes the Beneficial Owner
of Common Shares equal to or in excess of 20% of the Common Shares then outstanding by
reason of share purchases by the Company or the receipt of newly-issued Common Shares
directly from the Company and, after such share purchases or direct issuance by the Company,
becomes the Beneficial Owner of any additional Common Shares of the Company and is the
Beneficial Owner of Common Shares equal to or in excess of 20% of the Common Shares then
outstanding, then such Person shall be deemed to be an “Acquiring Person”. In addition, if
the Board of Directors determines in good faith that a Person who would otherwise be an
“Acquiring Person”, as defined pursuant to the foregoing provisions of this Section 1(a),
has become such inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no longer be an “Acquiring
Person”, as defined pursuant to the foregoing provisions of this Section 1(a), then such
Person shall not be deemed to be an “Acquiring Person” for any purposes of this Agreement.
(b) Definition of “Definitive Acquisition Agreement”. The definition of the term
“Definitive Acquisition Agreement” is hereby added as Section 1(i-1) of the Agreement and shall
read as follows:
“Definitive Acquisition Agreement” shall mean an agreement, conditioned on the approval
by the holders of a majority of the outstanding shares of Common Stock, with respect to a
merger, recapitalization, share exchange, or a similar transaction involving the Company or
the direct or indirect acquisition of more than 50 percent of the Company’s consolidated
total assets.
(c) Definition of “Exemption Date”. The definition of the term “Exemption Date” is
hereby added to Section 1(k-1) of the Agreement and shall read as follows:
“Exemption Date” shall have the meaning set forth in Section 23(b) hereof.
(d) Definition of “Outside Meeting Date”. The definition of the term “Outside Meeting
Date” is hereby added to Section 1(l-1) of the Agreement and shall read as follows:
“Outside Meeting Date” shall have the meaning set forth in Section 23(b) hereof.
(e) Definition of “Qualifying Offer”. The definition of the term “Qualifying Offer”
is hereby added to Section 1(p-1) of the Agreement and shall read as follows:
“Qualifying Offer” shall mean an offer determined by a majority of independent
directors of the Company to have, to the extent required for the type of offer specified,
each of the following characteristics:
2
(i) a fully financed all-cash tender offer or an exchange offer offering shares of
common stock of the offeror, or a combination thereof, in each such case for any and all of
the outstanding shares of Common Stock at the same per share consideration; provided,
however, that such per share price and consideration represent a reasonable premium over the
highest reported market price of the Common Stock in the immediately preceding 18 months,
with, in the case of an offer that includes shares of common stock of the offeror, such per
share offer price being determined using the lowest reported market price for common stock
of the offeror during the five Trading Days immediately preceding and the five Trading Days
immediately following the date on which the Qualifying Offer is commenced;
(ii) an offer that, within 20 Business Days after the commencement date of the offer
(or within 10 Business Days after any increase in the offer consideration), does not result
in a nationally recognized investment banking firm retained by the Board rendering an
opinion to the Board that the consideration being offered to the stockholders of the Company
is either unfair or inadequate;
(iii) if the offer includes shares of common stock of the offeror, an offer pursuant to
which (a) the offeror shall permit representatives of the Company, including, but not
limited to, a nationally recognized investment banking firm retained by the Board, legal
counsel and an accounting firm designated by the Company to have access to such offeror’s
books, records, management, accountants and other appropriate outside advisers for the
purposes of permitting such representatives to conduct a due diligence review of the offeror
in order to permit such investment banking firm (relying as appropriate on the advice of
such legal counsel) to be able to render an opinion to the Board with respect to whether the
consideration being offered to the Company’s stockholders is fair, and (b) within 10
Business Days after such investment banking firm shall have notified the Company and the
offeror that it has completed the due diligence review to its satisfaction (or following
completion of such due diligence review within 10 Business Days after any increase in the
consideration being offered), such investment banking firm does not render an opinion to the
Board that the consideration being offered to the stockholders of the Company is either
unfair or inadequate and such investment banking firm does not after the expiration of such
10 Business Day period render an opinion to the Board that the consideration being offered
to the stockholders of the Company has become either unfair or inadequate based on a
subsequent disclosure or discovery of a development or developments that have had or are
reasonably likely to have a material adverse affect on the value of the common stock of the
offeror;
(iv) an offer that is subject only to the minimum tender condition described below in
item (viii) of this definition and other customary terms and conditions, which conditions
shall not include any financing, funding or similar conditions or any requirements with
respect to the offeror or its agents being permitted any due diligence with respect to the
books, records, management, accountants or any other outside advisers of the Company;
3
(v) an offer pursuant to which the Company and its stockholders have received an
irrevocable written commitment of the offeror that the offer will remain open
for not less than 120 Business Days and, if a Special Meeting Demand is duly delivered
to the Board in accordance with Section 23(b), for at least 10 Business Days after the date
of the Special Meeting or, if no Special Meeting is held within the Special Meeting Period
(as defined in Section 23(b)), for at least 10 Business Days following the last day of such
Special Meeting Period (the “Qualifying Offer Period”);
(vi) an offer pursuant to which the Company has received an irrevocable written
commitment by the offeror that, in addition to the minimum time periods specified in item
(vi) of this definition, the offer, if it is otherwise to expire prior thereto, will be
extended for at least 15 Business Days after (a) any increase in the price offered or (b)
any bona fide alternative offer is commenced by another Person within the meaning of Rule
14d-2(a) of the Exchange Act; provided, however, that such offer need not remain open, as a
result of clauses (vi) and (vii) of this definition, beyond (1) the time which any other
offer satisfying the criteria for a Qualifying Offer is then required to be kept open under
such clauses (vi) and (vii) or (2) the expiration date, as such date may be extended by
public announcement (with prompt written notice to the Rights Agent) in compliance with Rule
14e-1 of the Exchange Act, of any other tender offer for the Common Stock with respect to
which the Board of Directors has agreed to redeem the Rights immediately prior to acceptance
for payment of Common Stock thereunder (unless such other offer is terminated prior to its
expiration without any Common Stock having been purchased thereunder) or (3) one Business
Day after the stockholder vote with respect to approval of any Definitive Acquisition
Agreement has been officially determined and certified by the inspectors of elections;
(vii) an offer that is conditioned on a minimum of a majority of the outstanding shares
of the Common Stock being tendered and not withdrawn as of the offer’s expiration date,
which condition shall not be waivable;
(viii) an offer pursuant to which the Company and its stockholders have received an
irrevocable written commitment by the offeror to consummate as promptly as practicable upon
successful completion of the offer a second step transaction whereby all shares of the
Common Stock not tendered into the offer will be acquired at the same consideration per
share actually paid pursuant to the offer, subject to stockholders’ statutory appraisal
rights, if any;
(ix) an offer pursuant to which the Company and its stockholders have received an
irrevocable written commitment of the offeror that no amendments will be made to the offer
to reduce the offer consideration, or otherwise change the terms of the offer in a way that
is materially adverse to a tendering stockholder (other than extensions of the offer
consistent with the terms thereof);
(x) an offer (other than an offer consisting solely of cash consideration) pursuant to
which the Company has received the written representation and certification of the offeror
and the written representations and certifications of the offeror’s Chief Executive Officer
and Chief Financial Officer, that (a) all facts about the offeror that would be material to
making an investor’s decision to accept the offer have been fully and accurately disclosed
as of the date of the commencement of the offer within the
4
meaning of Rule 14d-2(a) of the Exchange Act, (b) all such new facts will be fully and
accurately disclosed on a prompt basis during the entire period during which the offer
remains open, and (c) all required Exchange Act reports will be filed by the offeror in a
timely manner during such period; and
(xi) if the offer includes shares of stock of the offeror, (a) the stock portion of the
consideration must consist solely of common stock of an offeror that is a publicly owned
corporation, and be freely tradable and is listed on either the New York Stock Exchange or
The NASDAQ Global Select Market, (b) no stockholder approval of the offeror is required to
issue such common stock, or, if required, has already been obtained, (c) no Person
(including such Person’s Affiliates and Associates) beneficially owns more than 20 percent
of the voting stock of the offeror at the time of commencement of the offer or at any time
during the term of the offer, and (d) no other class of voting stock of the offeror is
outstanding, and the offeror meets the registrant eligibility requirements for use of Form
S-3 for registering securities under the Act, including, but not limited to, the filing of
all required Exchange Act reports in a timely manner during the 12 calendar months prior to
the date of commencement of the offer.
For the purposes of the definition of Qualifying Offer, “fully financed” shall mean that the
offeror has sufficient funds for the offer and related expenses which shall be evidenced by (a)
firm, unqualified, written commitments from responsible financial institutions having the necessary
financial capacity, accepted by the offeror, to provide funds for such offer subject only to
customary terms and conditions, (b) cash or cash equivalents then available to the offeror, set
apart and maintained solely for the purpose of funding the offer with an irrevocable written
commitment being provided by the offeror to the Board to maintain such availability until the offer
is consummated or withdrawn, or (c) a combination of the foregoing, which evidence has been
provided to the Company prior to, or upon, commencement of the offer. If an offer becomes a
Qualifying Offer in accordance with this definition but subsequently ceases to be a Qualifying
Offer as a result of the failure at a later date to continue to satisfy any of the requirements of
this definition, such offer shall cease to be a Qualifying Offer and the provisions of Section
23(b) shall no longer be applicable to such offer. The Company shall promptly notify the Rights
Agent in writing upon the occurrence of a Qualifying Offer and, if such notification is given
orally, the Company shall confirm same in writing on or prior to the Business Day next following.
Until such notice is received by the Rights Agent, the Rights Agent may presume conclusively for
all purposes that a Qualifying Offer has not occurred.
(f) Definition of “Qualifying Offer Period”. The definition of the term “Qualifying
Offer Period” is hereby added to Section 1(p-2) of the Agreement and shall read as follows:
“Qualifying Offer Period” shall have the meaning set forth in the definition of
Qualifying Offer.
(g) Definition of “Qualifying Offer Resolution”. The definition of the term
“Qualifying Offer Resolution” is hereby added to Section 1(p-3) of the Agreement and shall read as
follows:
5
“Qualifying Offer Resolution” shall have the meaning set forth in Section 23(b) hereof.
(h) Definition of “Special Meeting”. The definition of the term “Special Meeting” is
hereby added to Section 1(x-1) of the Agreement and shall read as follows:
“Special Meeting” shall have the meaning set forth in Section 23(b) hereof.
(i) Definition of “Special Meeting Demand”. The definition of the term “Special
Meeting Demand” is hereby added to Section 1(x-2) of the Agreement and shall read as follows:
“Special Meeting Demand” shall have the meaning set forth in Section 23(b) hereof.
(j) Definition of “Special Meeting Period”. The definition of the term “Special
Meeting Period” is hereby added to Section 1(x-3) of the Agreement and shall read as follows:
“Special Meeting Period” shall have the meaning set forth in Section 23(b) hereof.
2. Amendment of Section 3(a). Section 3(a) of the Agreement is hereby amended and
restated in its entirety as set forth below:
(a) Until the earlier of (i) the Close of Business on the tenth Business Day after the
Shares Acquisition Date or (ii) the Close of Business on the tenth Business Day (or such
later date as may be determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person) after the date of the commencement by any Person
(other than the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any Person organized, appointed or
established by the Company for, or pursuant to the terms of, any such plan) of, or of the
first public announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of
the Company or any Person organized, appointed or established by the Company for, or
pursuant to the terms of, any such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the Beneficial Owner of Common
Shares aggregating 20% or more of the then-outstanding Common Shares, including any such
date which is after the date of this Agreement and prior to the issuance of the Rights (the
earlier of such dates being herein referred to as the “Distribution Date”), (x) the Rights
will be evidenced (subject to the provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof (which certificates shall also
be deemed to be certificates for Rights) or, for Common Shares held in book-entry accounts
through the direct registration service of the Company’s transfer agent, by such book-entry
accounts (together with a direct registration transaction advice with respect to such
shares), and not by separate certificates, (y) the Rights will be transferable only in
connection with the transfer of Common Shares and (z) each transfer of Common Shares
(including a transfer
6
to the Company) shall constitute a transfer of the Rights associated with such Common
Shares. As soon as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign, and the Company will (i) send or cause to be
sent (and the Rights Agent will, if requested and provided with all necessary information by
the Company, send) by first-class, insured, postage-prepaid mail, to each record holder of
Common Shares as of the Close of Business on the Distribution Date, at the address of such
holder shown on the records of the Company or the transfer agent or registrar for the Common
Shares, a Rights Certificate, in substantially the form of Exhibit B hereto (a “Rights
Certificate”), evidencing one Right for each Common Share so held, or (ii) credit the
book-entry account of such holder with such Rights and send a direct registration
transaction advice with respect to such Rights to such holder. As of and after the
Distribution Date, the Rights will be evidenced solely by such Rights Certificates or such
book-entry credits and related direct registration transaction advices. In the event the
Company elects to distribute any Rights by crediting book-entry accounts, the provisions in
this Agreement that reference Rights Certificates shall be interpreted to reflect that the
Rights are credits to the book-entry accounts, that separate Rights Certificates are not
issued with respect to some or all of the Rights, and that any legend required on a Rights
Certificate may be placed on the direct registration transaction advice with respect to such
Rights. The Company shall promptly notify the Rights Agent in writing upon the occurrence
of the Distribution Date and, if such notification is given orally, the Company shall
confirm same in writing on or prior to the Business Day next following. Until such notice
is received by the Rights Agent, the Rights Agent may presume conclusively for all purposes
that the Distribution Date has not occurred.
3. Amendment of Section 20(b). Section 20(b) of the Agreement is hereby amended and
restated in its entirety as set forth below:
(b) Whenever in the performance of its duties under this Agreement the Rights Agent
shall deem it necessary or desirable that any fact or matter (including, but not limited to,
the identity of any Acquiring Person, the determination of current market price of any
security and the existence of a Qualifying Offer) be proved or established by the Company
prior to taking, suffering or omitting to take any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed) may be deemed
to be conclusively proved and established by a certificate signed by any one of the Chairman
of the Board, the President, the Chief Executive Officer, any Vice President, the Treasurer,
the Secretary or the Assistant Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full and complete authorization and protection to the Rights
Agent and the Rights Agent shall incur no liability for or in respect of any action taken,
suffered or omitted by it under the provisions of this Agreement in reliance upon such
certificate.
4. Amendment of Section 23. Section 23 of the Agreement is hereby amended and
restated in its entirety as set forth below:
7
Section 23. Redemption and Termination.
(a) The Company may, at its option, at any time prior to the earlier of (i) the Close
of Business on the tenth day following the Shares Acquisition Date and (ii) the Final
Expiration Date, redeem all but not less than all of the then outstanding Rights at a
redemption price of $.001 per Right, as such amount may be appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the “Redemption Price”). The redemption
of the Rights by the Board of Directors may be made effective at such time, on such basis
and with such conditions as the Board of Directors in its sole discretion may establish. If
redemption of the Rights is to be effective as of a future date, the Rights shall continue
to be exercisable, subject to Section 11(a)(ii) hereof, until the effective date of the
redemption, provided that nothing contained herein shall preclude the Board of Directors
from subsequently causing the Rights to be redeemed at a date earlier than the previously
scheduled effective date of the redemption. The Company may, at its option, pay the
Redemption Price in cash, Common Shares (based on the current market value of a whole Common
Share at the closing price of a Common Share (as determined pursuant to the second sentence
of Section 11(d)(i) hereof) for the Trading Day immediately prior to, but not including, the
date of such payment) or any other form of consideration deemed appropriate by the Board of
Directors.
(b) In the event the Company receives a Qualifying Offer and the Board of Directors has
not redeemed the outstanding Rights or exempted such offer from the terms of this Agreement
or called a special meeting of stockholders by the end of the 90th Business Day following
the commencement (or, if later, the first existence) of a Qualifying Offer, for the purpose
of voting on whether or not to exempt such Qualifying Offer from the terms of this
Agreement, holders of record (or their duly authorized proxy) of at least 10% of the shares
of Common Stock then outstanding may submit to the Board of Directors, not earlier than 90
Business Days nor later than 120 Business Days following the commencement (or, if later, the
first existence) of such Qualifying Offer, a written demand complying with the terms of this
Section 23(b) (the “Special Meeting Demand”) directing the Board of Directors to submit to a
vote of stockholders at a special meeting of the stockholders of the Company (a “Special
Meeting”) a resolution exempting such Qualifying Offer from the provisions of this Agreement
(the “Qualifying Offer Resolution”). For purposes of a Special Meeting Demand, the record
date for determining holders of record eligible to make a Special Meeting Demand shall be
the 90th Business Day following commencement (or, if later, the first existence) of a
Qualifying Offer. The Board of Directors shall take such actions as are necessary or
desirable to cause the Qualifying Offer Resolution to be so submitted to a vote of
stockholders at a Special Meeting to be convened within 90 Business Days following the
Special Meeting Demand (the “Special Meeting Period”); provided, however, that if the
Company at any time during the Special Meeting Period and prior to a vote on the Qualifying
Offer Resolution enters into a Definitive Acquisition Agreement, the Special Meeting Period
may be extended (and any special meeting called in connection therewith may be cancelled) if
the Qualifying Offer Resolution will be separately submitted to a vote at the same meeting
as the Definitive Acquisition Agreement. A Special Meeting Demand must be delivered to the
Secretary of the Company at the principal executive
8
offices of the Company and must set forth as to the stockholders of record making the
request (x) the names and addresses of such stockholders, as they appear on the Company’s
books and records, (y) the number of shares of Common Stock which are owned of record by
each of such stockholders, and (z) in the case of Common Stock that is beneficially owned by
another Person, an executed certification by the holder of record that such holder has
executed such Special Meeting Demand only after obtaining instructions to do so from such
beneficial owner and attaching evidence thereof. Subject to the requirements of applicable
law, the Board of Directors may take a position in favor of or opposed to the adoption of
the Qualifying Offer Resolution, or no position with respect to the Qualifying Offer
Resolution, as it determines to be appropriate in the exercise of its duties. In the event
that no Person has become an Acquiring Person prior to the redemption date referred to in
this Section 23(b), and the Qualifying Offer continues to be a Qualifying Offer and either
(i) the Special Meeting is not convened on or prior to the last day of the Special Meeting
Period (the “Outside Meeting Date”), or (ii) if, at the Special Meeting at which a quorum is
present, a majority of the shares of Common Stock present or represented by proxy at the
Special Meeting and entitled to vote thereon as of the record date for the Special Meeting
selected by the Board of Directors shall vote in favor of the Qualifying Offer Resolution,
then the Qualifying Offer shall be deemed exempt from the application of this Agreement to
such Qualifying Offer so long as it remains a Qualifying Offer, such exemption to be
effective on the Close of Business on the tenth Business Day after (i) the Outside Meeting
Date or (ii) the date on which the results of the vote on the Qualifying Offer Resolution at
the Special Meeting are certified as official by the appointed inspectors of election for
the Special Meeting, as the case may be (the “Exemption Date”). Notwithstanding anything
herein to the contrary, no action or vote, including action by written consent, by
stockholders not in compliance with the provisions of this Section 23(b) shall serve to
exempt any offer from the terms of this Agreement. The Company shall promptly notify the
Rights Agent in writing upon the occurrence of the Exemption Date and, if such notification
is given orally, the Company shall confirm same in writing on or prior to the Business Day
next following. Until such notice is received by the Rights Agent, the Rights Agent may
presume conclusively for all purposes that the Exemption Date has not occurred.
(c) Immediately upon the action of the Board of Directors authorizing the redemption of
the Rights, written evidence of which shall have been filed with the Rights Agent and
without any further action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights with respect to such Rights
shall be to receive the Redemption Price for each Right so held. Promptly after the action
of the Board of Directors authorizing the redemption of the Rights, the Company shall give
written notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at each holder’s last address
as it appears upon the registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the transfer agent for the Common Shares. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made.
9
(d) Immediately upon the Close of Business on the Exemption Date, without any further
action and without any notice, the right to exercise the Rights with respect to the
Qualifying Offer will terminate.
(e) Notwithstanding anything contained in this Agreement to the contrary, all the
Rights outstanding at the Close of Business on January 29, 2013, shall automatically be
redeemed at the Redemption Price, without any further action being taken by the Board of
Directors. As promptly as practicable following any such redemption, the Company shall make
arrangements to mail a notice of redemption to, and to make appropriate payments with
respect to Rights held by, holders of record of Rights as of the Close of Business on such
redemption date (with prompt written notice thereof to the Rights Agent). On such
redemption date, and without further action and without any notice, the right to exercise
the Rights shall terminate and the only right of the holders of Rights with respect to such
Rights shall be to receive the Redemption Price for each Right so held. The notice of
redemption shall be mailed to the holder’s last address as it appears on the registry books
of the Rights Agent or, prior to the Distribution Date, on the registry books of the
Transfer Agent of the Common Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice. The notice
of redemption shall state the method by which the payment of the Redemption Price shall be
made, unless the notice is mailed together with such payment.
5. Exhibit C. Exhibit C to the Agreement is hereby amended and restated in
its entirety as set forth in the form of Exhibit C attached hereto.
6. Amendment. By its execution and delivery hereof, the Company hereby certifies that
this Amendment is made pursuant to and is compliant in all respects with Section 27 of the
Agreement. Except as expressly amended hereby, the Agreement shall remain in full force and
effect.
7. 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, obligations and liabilities 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.
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, null and 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; and
provided further, that if any such excluded term, provision, covenant or restriction shall
adversely affect
the rights, immunities, duties or obligations of the Rights Agent, the Rights Agent shall be
entitled to resign immediately.
10
9. Descriptive Headings. Descriptive headings of the several sections of this
Amendment are inserted for convenience of reference only and shall not control or affect the
meaning or construction of any of the provisions hereof.
10. 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 shall together constitute but one and the same instrument. This Amendment, to the
extent signed and delivered by means of a facsimile machine or other electronic transmission
(including transmission in portable document format by electronic mail), shall be treated in all
manner and respects and for all purposes as an original amendment and shall be considered to have
the same binding legal effect as if it were the original signed version thereof delivered in
person. At the request of either party hereto, the other party hereto shall re-execute original
forms thereof and deliver them to the other party, except that the failure of one party to comply
with such a request shall not render this Amendment invalid or unenforceable. Neither party hereto
shall raise the use of a facsimile machine or other electronic transmission to deliver a signature,
or the fact that any signature was transmitted or communicated through the use of a facsimile
machine or other electronic transmission, as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
[The following page is the signature page.]
11
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to Rights Agreement to be
executed as of the date first above written.
| COMPANY: XXXXX MEDIA COMPANY |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Title: | Chairman, Chief Executive Officer and President | |||
| RIGHTS AGENT: MELLON INVESTOR SERVICES LLC, as Rights Agent |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxxx | |||
| Title: | Vice President and Senior Relationship Manager | |||
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES UNDER PLAN ADOPTED BY
XXXXX MEDIA COMPANY
PREFERRED SHARES UNDER PLAN ADOPTED BY
XXXXX MEDIA COMPANY
Under certain circumstances set forth in the Rights Agreement, Rights beneficially owned by or
transferred to any Person who is, was or becomes an Acquiring Person or an Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement), and certain transferees thereof, will
become null and void and will no longer be transferable.
On January 29, 2009, the Board of Directors of Xxxxx Media Company (the “Company”) announced
the declaration of a dividend of one Right for each outstanding share of Common Stock (a “Right“),
par value $0.001 per share (the “Common Shares”), of the Company. The dividend was payable to the
stockholders of record on February 9, 2009 (the “Record Date”). Each Right entitles the registered
holder to purchase from the Company one ten-thousandth of a share of Series A Junior Participating
Preferred Stock, par value $0.001 per share (the “Preferred Shares”), of the Company at a price of
$40.00 per one ten-thousandth of a Preferred Share (the “Purchase Price”), subject to adjustment.
The description and terms of the Rights are set forth in a Rights Agreement, as amended (the
“Rights Agreement”) between the Company and Mellon Investor Rights LLC, as Rights Agent (the
“Rights Agent”).
Subject to certain exceptions specified in the Rights Agreement, until the earlier of (i) the
close of business on the tenth day after the first public announcement that a person or group of
affiliated or associated persons have acquired beneficial ownership of Common Shares equal to or in
excess of 20% or more of the then-outstanding Common Shares (an “Acquiring Person”), or (ii) the
close of business on the tenth day (or such later date as may be determined by action of the
Company’s Board of Directors prior to such time as any person becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender offer or exchange
offer the consummation of which would result in the beneficial ownership of such person or group of
20% or more of such outstanding Common Shares (the earlier of such dates being called the
“Distribution Date”), the Rights will be evidenced by the Common Share certificates (or, for Common
Shares held in book-entry accounts through the direct registration services of the Company’s
transfer agent, by such book-entry accounts (together with a direct registration transaction advice
with respect to such shares), will be transferable only by the transfer of the Common Shares
associated with such Rights and any transfer of the Common Shares (including a transfer to the
Company) will constitute a transfer of the Rights. As described below, after a person or group
becomes an Acquiring Person, the Rights may not be redeemed or amended.
Until the Distribution Date (or earlier redemption or expiration of the Rights), new Common
Share certificates issued after the Record Date, upon transfer or new issuance of Common Shares,
will contain a legend incorporating the Rights Agreement by reference (or, for Common Shares held
in book-entry accounts through the direct registration services of the Company’s transfer agent, a
legend on the direct registration transaction advice with respect to such shares.) Until the
Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer
of any certificates for Common Shares outstanding as of the Record Date,
C-1
even without such notation, or a copy of this Summary of Rights being attached, will also
constitute the transfer of the Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution Date, separate certificates
evidencing the Rights (“Rights Certificates”) will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date and such separate Rights Certificates
alone will evidence the Rights. In the event the Company elects to distribute any Rights by
crediting book-entry accounts, the provisions in this summary that reference Rights Certificates
shall be interpreted to reflect that the Rights are credits to the book-entry accounts, that
separate Rights Certificates are not issued with respect to some or all of the Rights, and that any
legend required on a Rights Certificate may be placed on the direct registration transaction advice
with respect to such Rights. Each Right is exercisable for one ten-thousandth of a Preferred Share
at any time after the Distribution Date.
The Rights are not exercisable until the Distribution Date. Pursuant to the “sunset
provision” contained in the Rights Agreement, if not earlier redeemed,
on January 29, 2013, the Rights will automatically terminate and the
only right of the holders of Rights will be to receive the $0.001 redemption price.
If a person or group of affiliated or associated persons becomes an Acquiring Person, each
holder of a Right (other than those described in the next sentence) will thereafter have the right
to receive, upon exercise, Common Shares (or, in certain circumstances, cash, property or other
securities of the Company) having a value equal to two times the Purchase Price of the Right
instead of Preferred Shares. Notwithstanding the foregoing, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by any Acquiring Person
(and certain related persons or transferees) will be null and void. However, Rights are not
exercisable following the occurrence of the event set forth above until such time as the Rights are
no longer redeemable by the Company as set forth below.
At any time after a person or group becomes an Acquiring Person and prior to the acquisition
by such person or group of 50% or more of the outstanding Common Shares, the Board of Directors of
the Company may exchange the Rights (other than Rights owned by such person or group which shall
have become null and void), in whole or in part, without any additional payment, for Common Shares,
at an exchange ratio of one Common Share (or of a share of a class or series of the Company’s
preferred shares having equivalent rights, preferences and privileges) per Right (subject to
adjustment).
At any time after the first date of public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such, if (i) the Company is the surviving corporation in a
merger with any other company or entity and the Common Stock of the Company is changed or exchanged
for securities of another person, (ii) the Company is acquired in a merger or other business
combination transaction, (iii) 50% or more of the Company’s consolidated assets or earning power
are sold, or (iv) an Acquiring Person engages in certain “self-dealing” transactions with the
Company, each holder of a Right (other than those whose Rights have become null and void) will
thereafter have the right to receive, upon the exercise thereof at the then-current Purchase Price
of the Right, that number of shares of common stock of the surviving or acquiring company which at
the time of such transaction will have a market value of two times the Purchase Price of such
Right.
C-2
With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price. No fractional Preferred
Shares will be issued (other than fractions which are integral multiples of one ten-thousandth of a
Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts)
and in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred
Shares on the last trading day prior to the date of exercise.
At any time prior to a person or group becoming an Acquiring Person, the Board of Directors of
the Company may redeem all, but not less than all, of the Rights at a price of $.001 per Right (the
“Redemption Price”). The redemption of the Rights may be made effective at such time, on such
basis and with such conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
The Rights Agreement further provides that if the Company receives a Qualifying Offer (that
has not been terminated and continues to be a Qualifying Offer for the period hereinafter
described) and the Board of Directors has not redeemed the outstanding Rights, exempted such
Qualifying Offer from the terms of the Rights Agreement or called a special meeting of the
stockholders for the purpose of voting on whether or not to exempt such Qualifying Offer from the
terms of the Rights Agreement, then stockholders representing at least 10% of the shares of Common
Stock then outstanding may request that the Board of Directors call a special meeting of
stockholders to vote to exempt the Qualifying Offer from the operation of the Rights Agreement,
such notice to be delivered not earlier than 90, nor later than 120, business days following the
commencement of such offer. The Board of Directors must then call and hold such a meeting to vote
on exempting such offer from the terms of the Rights Agreement by the 90th business day following
receipt of the stockholder demand for the meeting; provided that such period may be extended if,
prior to the vote, the Company enters into an agreement (that is conditioned on the approval by the
holders of a majority of the outstanding shares of Common Stock) with respect to a merger,
recapitalization, share exchange, or a similar transaction involving the Company or the direct or
indirect acquisition of more than 50% of the Company’s consolidated total assets (a “Definitive
Acquisition Agreement”), until the time of the meeting at which the stockholders will be asked to
vote on the Definitive Acquisition Agreement. If no Acquiring Person has emerged, the offer
continues to be a Qualifying Offer and stockholders representing a majority of the shares of Common
Stock represented at the meeting at which a quorum is present vote in favor of redeeming the
rights, then such Qualifying Offer shall be deemed exempt from the Rights Agreement on the date
that the vote results are certified. If no Acquiring Person has emerged and no special meeting is
held by the date required, the Rights will be redeemed at the close of business on the tenth
business day following that date.
A Qualifying Offer, in summary terms, is an offer determined by the Board of Directors to have
each of the following characteristics which are generally intended to preclude offers that are
coercive, abusive, or clearly illegitimate:
| • | is an all-cash tender offer or stock exchange offer or combination thereof for any
and all of the outstanding shares of Common Stock of the Company; |
C-3
| • | is an offer whose per-share price represents a reasonable premium over the highest
market price of the Common Stock in the preceding 18 months, with, in the case of an
offer that includes shares of common stock of the offeror, such per-share offer price
being determined using the lowest reported market price for common stock of the offeror
during the five trading days immediately preceding and the five trading days
immediately following the commencement of the offer; |
||
| • | is an offer which, within 20 business days after the commencement date of the offer
(or within 10 business days after any increase in the offer consideration), does not
result in a nationally recognized investment banking firm retained by the Board
rendering an opinion to the Board that the consideration being offered to the Company’s
stockholders is either unfair or inadequate; |
||
| • | is subject only to the minimum tender condition described below and other customary
terms and conditions, which conditions shall not include any requirements with respect
to the offeror or its agents being permitted to conduct any due diligence with respect
to the books, records, management, accountants and other outside advisers of the
Company; |
||
| • | is accompanied by an irrevocable written commitment by the offeror to the Company
that the offer will remain open for at least 120 business days and, if a special
meeting is duly requested by the Company’s stockholders with respect to the offer, at
least 10 business days after the date of the special meeting or, if no special meeting
is held within 90 business days following receipt of the notice of the special meeting,
for at least 10 business days following that 90-day period; |
||
| • | is accompanied by an irrevocable written commitment by the offeror to the Company
that, in addition to the minimum time periods specified above, the offer will be
extended for at least 15 business days after any increase in the price offered, and
after any bona fide alternative offer is made; |
||
| • | is conditioned on a minimum of a majority of the shares of Common Stock of the
Company being tendered and not withdrawn as of the offer’s expiration date; |
||
| • | is accompanied by an irrevocable written commitment by the offeror to the Company to
consummate promptly upon successful completion of the offer a second-step transaction
whereby all shares of Common Stock of the Company not tendered into the offer will be
acquired at the same consideration per share actually paid pursuant to the offer,
subject to stockholders’ statutory appraisal rights, if any; |
||
| • | is accompanied by an irrevocable written commitment by the offeror to the Company
that no amendments will be made to the offer to reduce the offer consideration or
otherwise change the terms of the offer in a way that is adverse to a tendering
stockholder; and |
C-4
| • | is accompanied by certifications of the offeror and its chief executive officer and
chief financial officer that all information that may be material to an investor’s
decision to accept the offer have been, and will continue to be promptly for the
pendency of the offer, fully and accurately disclosed. |
Any offers that have cash as all or partial consideration are subject to further conditions
for qualification as “qualifying offers,” as set forth in the Rights Agreement. These conditions
generally require assurance that the offer is fully financed and that the offeror has sufficient
committed resources to consummate the offer. Any offers that have acquiror common stock as all or
partial consideration are subject to further conditions for qualification as “qualifying offers,”
as set forth in the Rights Agreement. These conditions generally require certain safeguards
regarding, and access to, information about the acquiror to allow an informed determination as to
the value and risks of the stock, including safeguards against developments that adversely affect
the value of the stock, that the acquiror’s stock (which may not have subordinated voting rights or
have ownership be heavily concentrated in one person or group) is listed on a national exchange,
that the acquiror meets certain seasoned issuer standards under the Securities Act of 1933, and
that no acquiror stockholder approval of the issuance of the consideration to the Company
stockholders is necessary after commencement of the offer.
Any of the provisions of the Rights may be amended by the Board of Directors in its sole
discretion. However, after a person or group becomes an Acquiring Person, any such amendment must
not adversely affect the interests of holders of Rights (excluding the interests of any Acquiring
Person and certain related persons and transferees).
A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to Current Reports on Form 8-K, that we filed with the SEC on February 3, 2009 and March 19, 2010. A copy of the
Rights Agreement is available free of charge from the Company. This summary description of the
Rights does not purport to be complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.
C-5
