EXHIBIT 4.1
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Execution Version
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of May 10, 2005, to the Rights Agreement
dated as of January 25, 2004 (the "RIGHTS AGREEMENT"), between Xxxxxxxxx
International Inc., a Delaware corporation (the "COMPANY"), and Mellon Investor
Services LLC, a New Jersey limited liability company, as Rights Agent (the
"RIGHTS AGENT"). Unless otherwise provided in this Amendment No.1 all
capitalized terms have the respective meanings assigned to them in the Rights
Agreement.
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement, specifying the terms of the Rights (as defined therein);
WHEREAS, the Company desires to amend the Rights Agreement to amend the
definition of "Exempt Stockholder";
WHEREAS, the Company further desires to amend the Rights Amendment to
renumber certain sections of the Rights Agreement which were incorrectly
numbered in the original Rights Agreement;
WHEREAS, the amendment of the Rights Agreement set forth in this
Amendment No. 1 has been approved by the Committee in accordance with the Rights
Agreement; and
WHEREAS, the amendment of the Rights Agreement set forth in this
Amendment No. 1 does not affect the rights, duties or obligations of the Rights
Agent and therefore does not require the approval of the Rights Agent.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1(j) of the Rights Agreement is amended by deleting
the definition of the term "Exempt Stockholder" set forth therein in its
entirety and substituting therefore a new definition of the term "Exempt
Stockholder" reading as follows:
"EXEMPT STOCKHOLDER" shall mean (a) Xxxx Xxxxx of Crossharbour
and any Person that is and remains a controlled Affiliate of Xxxx Xxxxx
of Crossharbour, including as of the date hereof Xxxxxxxxx Inc.;
PROVIDED, that each such Person shall only be deemed to be an Exempt
Stockholder for so long as Xxxx Xxxxx together with all his controlled
Affiliates beneficially own no more Class B Common Shares or Class A
Common Shares than Xxxx Xxxxx and his Affiliates beneficially own as of
January 24, 2004, which represent approximately 73% of the voting power
represented by all Common Shares; and PROVIDED, FURTHER that any equity
securities of the Company that may be issued, granted or purchased
2
by Xxxx Xxxxx following the date of this Agreement pursuant to any
employee benefit plan of the Company or any of its Subsidiaries or
otherwise received as compensation from the Company shall not be
counted for purposes of calculating the percentage beneficially owned
by Xxxx Xxxxx for purposes of the immediately preceding proviso; and
(b) RSM Xxxxxxx Inc. ("XXXXXXX"), in its capacity (but solely in its
capacity) as (x) interim receiver, receiver and manager of the assets,
undertakings and properties of Ravelston Corporation Limited ("RCL")
and Ravelston Management Inc. ("RMI") pursuant to the Receivership
Order of the Ontario Superior Court of Justice dated April 20, 2005,
and (y) monitor of RCL and RMI pursuant to the CCAA Initial Order of
the Ontario Superior Court of Justice dated April 20, 2005 (Xxxxxxx, in
its capacities as interim receiver, receiver, manager and monitor
pursuant to the foregoing orders of the Ontario Superior Court of
Justice, is referred to as the "RECEIVER"), and any Person which as of
April 20, 2005 was a direct or indirect Subsidiary of RCL or RMI (a
"RAVELSTON SUBSIDIARY"); provided, that each such Ravelston Subsidiary
shall only be deemed to be an Exempt Stockholder for purposes of this
clause (b) for so long as (x) it is and remains a Ravelston Subsidiary,
(y) Xxxxxxx remains Receiver, and (z) Xxxxxxx, in its capacity as
Receiver, beneficially owns no more Class B Common Shares or Class A
Common Shares than were beneficially owned by RCL and RMI on April 20,
2005.
2. The following Sections are hereby renumbered as follows:
ORIGINAL RENUMBERED
SECTION NUMBER SECTION HEADING SECTION NUMBER
-------------- --------------- --------------
22 Change of Rights Agent 21
23 Issuance of New Right Certificates 22
24 Redemption; No Rights Until Determination 23
Date
25 Exchange 24
26 Notice of Certain Events 25
27 Notices 26
28 Supplements and Amendments; Special 27
Committee Review
30 Successors 28
3
ORIGINAL RENUMBERED
SECTION NUMBER SECTION HEADING SECTION NUMBER
-------------- --------------- --------------
31 Determinations and Actions by the Board 29
33 Benefits of this Agreement 30
34 Severability 31
35 Governing Law 32
36 Consequential Damages 33
37 Counterparts 34
38 Descriptive Headings 35
3. The term "Agreement" as used in the Rights Agreement shall
be deemed to refer to the Rights Agreement as amended hereby.
4. This Amendment shall be effective as of the date first written
above and, except as set forth above, the Rights Agreement shall remain in full
force and effect and shall otherwise be unaffected hereby.
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to be
duly executed as of the date first written above.
XXXXXXXXX NTERNATIONAL INC.
By /s/ Xxxxx X. Xxx Xxxx
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Name: Xxxxx X. Xxx Xxxx
Title: VP, General Counsel
and Secretary
Acknowledged as of the date first set forth above:
MELLON INVESTOR SERVICES LLC,
As Rights Agent
By /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Relationship Manager
