EXHIBIT 4.1.1
AMENDMENT NO. 1 TO
RIGHTS AGREEMENT
AMENDMENT (the "Amendment"), dated as of August 9, 2005, to the Rights
Agreement, dated as of October 28, 2002 (the "RIGHTS AGREEMENT"), between
Xxxxxxxx.xxx, Inc., a Delaware corporation (the "COMPANY"), and American Stock
Transfer & Trust Company, as Rights Agent (the "RIGHTS AGENT").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
WHEREAS, Ranger Holdco, Inc., Ranger Mergerco, Inc., and the Company
contemplate entering into an Agreement and Plan of Merger (the "PLAN") pursuant
to which Ranger Mergerco, Inc. will merge with and into the Company (the
"MERGER"). The Board of Directors of the Company has approved the Plan.
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to a
Distribution Date (as defined in the Rights Agreement) the Company may, and the
Rights Agent shall if the Company so directs, from time to time supplement and
amend the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Company and the Rights Agent desire to
evidence such amendment in writing.
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:
A. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement is hereby
amended and supplemented to add the following definitions at the end of Section
1:
"Parent" collectively means Ranger Holdco, Inc., a Delaware corporation,
and Ranger Mergerco, Inc., a Delaware corporation and wholly-owned
subsidiary of Ranger Holdco, Inc.
"Merger" shall mean the "Merger" as such term is defined in the Plan.
"Plan" shall mean the Agreement and Plan of Merger, dated as of August 9,
2005, by and between the Company and Parent, as it may be amended
from time to time.
B. AMENDMENT OF THE DEFINITION OF "ACQUIRING PERSON". The definition of
"Acquiring Person" in Section 1 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
Parent shall not be deemed to be an Acquiring Person solely by virtue of
(i) the execution of the Plan, (ii) the consummation of the Merger or (iii)
the consummation of any other transaction contemplated in the Plan,
including without limitation the consummation thereof."
C. AMENDMENT OF THE DEFINITION OF "DISTRIBUTION DATE". The definition of
"Distribution Date" in Section 1 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as the result
of (i) the execution of the Plan, (ii) the consummation of the Merger, or
(iii) the consummation of any other transaction contemplated in the Plan,
including without limitation the consummation thereof."
D. AMENDMENT OF THE DEFINITION OF "STOCK ACQUISITION DATE". The definition
of "Stock Acquisition Date" in Section 1 of the Rights Agreement is hereby
amended and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Stock Acquisition Date shall not be deemed to have occurred solely as the
result of (i) the execution of the Plan, (ii) the consummation of the
Merger, or (iii) the consummation of any other transaction contemplated in
the Plan, including without limitation the consummation thereof."
E. AMENDMENT OF SECTION 3. Section 3 of the Rights Agreement is hereby
amended and supplemented to add the following sentence at the end thereof as
Section 3(d):
"Nothing in this Rights Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable rights,
remedies or claims under this Rights Agreement by virtue of the execution
of the Plan or by virtue of any of the transactions contemplated by the
Plan, including without limitation the consummation thereof."
F. AMENDMENT OF SECTION 7(A). Section 7(a) of the Rights Agreement is
hereby amended and supplemented by deleting "(i) the Close of Business on the
tenth anniversary of the Record Date (the "Final Expiration Date")" and
replacing it with the following:
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"(i) the earlier of (x) the Close of Business on the tenth anniversary
of the Record Date and (y) the consummation of the Merger (such earlier
date, the "Final Expiration Date")"
G. EFFECTIVENESS. This Amendment shall be deemed effective as of the date
first written above, as if executed on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
H. 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, 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. 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.
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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.
Attest: XXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxx Xxxxx
Name: Xxxx Xxxxxxxx Name: Xxxxx Xxxxx
Title: General Counsel and Title: Interim Chief Executive
Secretary Officer
Attest: AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary Title: Vice President
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