AMENDMENT NO. 2 TO THE RIGHTS AGREEMENT
Exhibit 4.1
EXECUTION VERSION
AMENDMENT
NO. 2 TO THE
RIGHTS AGREEMENT
RIGHTS AGREEMENT
AMENDMENT, dated as of May 10, 2011 (this
“Amendment”), between CKx, Inc., a Delaware
corporation (the “Company”), and Mellon Investor
Services LLC as Rights Agent (the “Rights Agent”) to
the Rights Agreement, dated as of June 24, 2010, as amended
(the “Rights Agreement”), between the Company and the
Rights Agent.
RECITALS
WHEREAS, the Company and Mellon Investor Services LLC, as
Rights Agent, are parties to the Rights Agreement, as amended by
Amendment No. 1 to Rights Agreement dated as of
July 13, 2010;
WHEREAS, the Company, Colonel Holdings, Inc., a Delaware
corporation (“Parent”), and Colonel Merger Sub, Inc.,
a Delaware corporation and wholly-owned subsidiary of Parent
(“Merger Sub”), intend to enter into an Agreement and
Plan of Merger to be dated as of the date hereof (as it may be
amended from time to time in accordance, the “Merger
Agreement”);
WHEREAS, as a condition and inducement to the willingness
of Parent and Merger Sub to enter into the Merger Agreement, one
or more stockholders intend to enter into a support agreement
with Parent to be dated as of the date hereof (collectively, as
they may be amended from time to time, the “Support
Agreements”);
WHEREAS, the Company desires to amend the Rights
Agreement to render such agreement inapplicable to the Offer and
the Merger (each as defined in the Merger Agreement), the other
transactions contemplated by the Merger Agreement, the Support
Agreements and the other transactions contemplated by the
Support Agreements, and to make such other amendments to the
Rights Agreement as contained in this Amendment;
WHEREAS, pursuant to, and subject to the terms of,
Section 27 of the Rights Agreement, at any time prior to
the time at which any Person becomes an Acquiring Person, the
Company may from time to time supplement or amend the Rights
Agreement without the approval of any holders of Right
Certificates, any such supplement or amendment to be evidenced
by a writing signed by the Company and the Rights Agent;
WHEREAS, no Person has yet become an Acquiring Person and
the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is
necessary and desirable and the Company and the Rights Agent
desire to evidence such amendment in writing; and
WHEREAS, all acts and things necessary to make this
Amendment a valid agreement, enforceable according to its terms
have been done and performed, and the execution and delivery of
this Amendment by the Company and the Rights Agent have been in
all respects duly authorized by the Company and the Rights Agent.
Accordingly, the parties agree as follows:
1. Amendment to Definition of “Acquiring
Person”. Section 1(a) of the Rights Agreement is
amended to add the following sentence after the last sentence
thereof:
“Anything in this Section 1(a) or this Agreement to
the contrary notwithstanding, none of Colonel Holdings, Inc., a
Delaware corporation (“Parent”), Colonel Merger Sub,
Inc., a Delaware corporation and a wholly-owned subsidiary of
Parent (“Merger Sub”), any stockholder of the Company
party to a support agreement with Parent to be dated as of
May 10, 2011 (collectively, as they may be amended from
time to time, the “Support Agreements”) or any of
their respective Affiliates or Associates, is, nor shall any of
them be deemed to be, an “Acquiring Person” by virtue
of (i) the execution of, or their entry into, the Agreement
and Plan of Merger, to be dated as of May 10, 2011 by and
among the Company, Parent and Merger Sub (as it may be amended
from time to time, the “Merger Agreement”);
(ii) the execution of, or their entry into, any of the
Support Agreements; (iii) the execution of, or their entry
into, any other contract or instrument in connection with the
Merger Agreement or any of the Support Agreements;
(iv) their acquisition or their right to acquire,
beneficial ownership of Common Stock as a result of their
execution of the Merger Agreement; or (v) the consummation
of the Offer (as defined in the Merger Agreement) or the Merger
(as defined in the Merger Agreement), in each case in accordance
with, pursuant to, and on the terms and subject to the
conditions set forth in the Merger Agreement; it being the
purpose of the Company that neither the execution of the Merger
Agreement or the Support Agreements by any of the parties
thereto (after giving effect to any amendment to the Merger
Agreement entered into by the Company
and/or any
amendment to a Support Agreement to which the Company has
consented (such consent not to be unreasonably withheld,
condition or delayed)) nor the consummation of the transactions
contemplated thereby, in each case in accordance with, pursuant
to and upon the terms and conditions of the Merger Agreement and
the Support Agreements, shall in any respect give rise to any
provision of this Agreement becoming effective.”
2. Amendment to Section 1(d).
(a) Section 1(d)(ii) of the Rights Agreement is
amended to add the following proviso after the last sentence
thereof:
“; provided, further that the foregoing
or any provision to the contrary in this Agreement
notwithstanding, none of Parent, Merger Sub, any of the
stockholders of the Company party to a Support Agreement or any
Affiliate or Associate of any such Persons shall be deemed under
this clause (ii) to have the right or obligation to
acquire, or the right to vote, pursuant to an agreement,
arrangement or understanding, any securities of the Company
solely by reason of such Support Agreement or the fulfillment by
any Person of its obligations thereunder;”
(b) Section 1(d)(iii) of the Rights Agreement is
amended to add the following proviso at the end thereof:
“; provided, further that the foregoing
or any provision to the contrary in this Agreement
notwithstanding, none of Parent, Merger Sub, any of the
stockholders of the Company party to a Support Agreement or any
Affiliate or Associate of any such Persons shall be deemed under
this clause (iii) to have an agreement, arrangement or
understanding with any Person for the purpose of acquiring,
holding, voting or disposing of any securities of the Company
solely by reason of such Support Agreement or the fulfillment by
any Person of its obligations thereunder;”
3. Amendment to Definition of “Distribution
Date”. Section 1(h) of the Rights Agreement is
amended to add the following sentence after the last sentence
thereof:
“The foregoing or any provision to the contrary in this
Agreement notwithstanding, a Distribution Date shall not occur
or be deemed to have occurred as a result of the approval,
execution, delivery or performance of the Merger Agreement or
the Support Agreements or the announcement or consummation of
the transactions contemplated thereby, in each case in
accordance with, pursuant to and upon the terms and conditions
of the Merger Agreement and the Support Agreements.”
4. Amendment to Section 7(a). Section 7(a)
of the Rights Agreement is amended by adding the following the
words and the end of the last sentence:
“or (iv) immediately prior to the earlier to occur of
the Acceptance Time and the Effective Time (each as defined in
the Merger Agreement).”
5. Amendment to Definition of
“Shares Acquisition Date.” Section 1(u)
of the Rights Agreement is amended to add the following sentence
after the last sentence thereof:
“The foregoing or any provision to the contrary in this
Agreement notwithstanding, a Shares Acquisition Date shall
not occur or be deemed to have occurred as a result of the
approval, execution, delivery or performance of the Merger
Agreement or the Support Agreements or the announcement or
consummation of the transactions contemplated thereby, in each
case in accordance with, pursuant to and upon the terms and
conditions of the Merger Agreement and the Support
Agreements.”
6. Amendment of Section 30. Section 30 of
the Rights Agreement is hereby modified and amended to add the
following sentence at the end thereof:
“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 the
approval, execution or delivery of the Merger Agreement or the
Support Agreements or the consummation of the Offer or any other
transactions contemplated by the Merger Agreement or the Support
Agreements, in each case in accordance with, pursuant to and
upon the terms and conditions of the Merger Agreement and the
Support Agreements or the public announcement of any of the
foregoing.”
7. Amendment to Add Section 37. The Rights
Agreement is hereby amended by adding a new Section 37 at
the end thereof:
“Section 37. Treatment of Rights at the Acceptance
Time or the Effective Time. Any provision to the contrary in
this Agreement notwithstanding, all Rights will expire in their
entirety immediately prior to the earlier to occur of the
Acceptance Time and the Effective Time (each as defined in the
Merger Agreement) (each as defined in the Merger Agreement)
without any payment to be made in respect thereof.”
8. Termination of Merger Agreement. If for any
reason the Merger Agreement is terminated, then this Amendment
shall be of no further force and effect and the Agreement shall
remain the same as it existed immediately prior to execution of
this Amendment, without prejudice to any action taken prior to
such termination in compliance with the Rights Agreement as
amended hereby.
9. Effectiveness. This Amendment shall be deemed
effective as of the date first written above, as if executed on
such date. Except as specifically amended by this Amendment, all
other terms and conditions of the Rights Agreement shall remain
in full force and effect and are hereby ratified and confirmed.
10. Miscellaneous. 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. This
Amendment 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. If any provision, covenant or
restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal 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 effected, impaired or
invalidated. Except as otherwise expressly provided herein, or
unless the context otherwise requires, all terms used herein
have the meanings assigned to them in the Rights Agreement. The
Rights Agent and the Company hereby waive any notice requirement
under the Rights Agreement pertaining to the matters covered by
this Amendment.
11. Notice to Rights Agent. The Company agrees to
notify the Rights Agent promptly after the occurrence of the
earlier to occur of the Acceptance Time or the Effective Time,
in either case resulting in the expiration of the Rights.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date
and year first above written.
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Attest:
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CKX, INC. | |||||
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By:
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/s/ Xxxxx X. Xxxxxxx | By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxx X. Xxxxxxx | Name: Xxxxxx X. Xxxxxx | |||||
| Title: Senior Counsel and Vice President | Title: Executive Vice President, Chief Financial Officer and Treasurer | |||||
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Attest:
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MELLON INVESTOR SERVICES LLC, as Rights Agent |
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By:
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/s/ Xxxxxxx Xxxxx | By: | /s/ Xxxxx Xxxxx | |||
| Name: Xxxxxxx Xxxxx | Name: Xxxxx Xxxxx | |||||
| Title: Vice President | Title: Vice President | |||||
