EXHIBIT 4.01
AMENDMENT NO. 1
to
RIGHTS AGREEMENT
AMENDMENT NO. 1 dated as of July 25, 2003 (this "AMENDMENT") to the
Rights Agreement dated as of September 10, 2001 (the "RIGHTS AGREEMENT") between
DEL GLOBAL TECHNOLOGIES CORP., a New York corporation (the "COMPANY"), and
MELLON INVESTOR SERVICES LLC, a New Jersey limited liability company, as Rights
Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have previously entered
into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to a
Distribution Date (as defined in the Rights Agreement), the Company may from
time to time supplement or amend any provision of the Rights Agreement without
the approval of any holders of Rights in accordance with the terms of Section
27;
WHEREAS, a Distribution Date has not occurred as of the date hereof;
and
WHEREAS, the Board of Directors of the Company has determined that
it is in the best interests of the Company and its shareholders to amend the
Rights Agreement as hereinafter set forth and has duly approved this Amendment
and authorized its execution and delivery;
NOW, THEREFORE, the parties hereto agree as follows:
1. All capitalized terms used herein, unless otherwise defined
herein, shall have the meanings given to them in the Rights Agreement, and each
reference in the Rights Agreement to "this Agreement", "hereof", "herein",
"hereunder" or "hereby" and each other similar reference shall be deemed to
refer to the Rights Agreement as amended hereby.
2. Section 1 of the Rights Agreement is hereby amended by amending
and restating the definition of "Final Expiration Date" to read in its entirety
as follows:
"Final Expiration Date" shall mean September 30, 2003.
3. Exhibit A to the Rights Agreement is hereby amended by amending
and restating such Exhibit to read in its entirety as set forth in Attachment 1
hereto.
4. Exhibit B to the Rights Agreement is hereby amended by amending
and restating such Exhibit to read in its entirety as set forth in Attachment 2
hereto.
5. This Amendment shall be deemed to be a contract made under the
laws of the State of New York 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.
6. 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 one and the same instrument.
7. Except as expressly amended hereby, the Rights Agreement shall
remain in full force and effect.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, this Amendment is executed as of the date first
set forth above.
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
ATTACHMENT 1
EXHIBIT A
FORM OF RIGHTS CERTIFICATE
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER THE EARLIER OF (i) SEPTEMBER 30, 2003, (ii) THE DATE
TERMINATED BY THE COMPANY OR (iii) THE DATE THE COMPANY EXCHANGES THE RIGHTS
PURSUANT TO THE RIGHTS AGREEMENT. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH RIGHTS AGREEMENT.]*
RIGHTS CERTIFICATE
DEL GLOBAL TECHNOLOGIES CORP.
This certifies that __________________________, or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement dated as of September 10, 2001, (as amended,
the "Rights Agreement"), between Del Global Technologies Corp., a New York
corporation (the "Company"), and Mellon Investor Services LLC (the "Rights
Agent"), to purchase from the Company at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to 5:00 P.M., New
York time, on September 30, 2003 at the office of the Rights Agent designated
for such purpose, or at the office of its successor as Rights Agent, one fully
paid and non-assessable share of Common Stock, par value $0.10 per share (the
"Common Shares"), of the Company, at an Exercise Price of $25.00 per Common
Share (the "Exercise Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related Certificate duly
executed. The number of Rights evidenced by this Rights Certificate (and the
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* The portion of the legend in bracket shall be inserted only if applicable and
shall replace the preceding sentence.
number of Common Shares which may be purchased upon exercise hereof) set forth
above are the number and Exercise Price as of September 17, 2001, based on the
Common Shares as constituted at such date. As provided in the Rights Agreement,
the Exercise Price and the number and kind of Common Shares or other securities
which may be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening of
certain events.
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the principal executive offices of
the Company and the above-mentioned office of the Rights Agent.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Rights Certificate (i) may be redeemed by the Company, at its
option, at a redemption price of $0.01 per Right or (ii) may be exchanged by the
Company in whole or in part for Common Shares, substantially equivalent rights
or other consideration as determined by the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor and date evidencing Rights entitling the holder to purchase a like
aggregate amount of securities as the Rights evidenced by the Rights Certificate
or Rights Certificates surrendered shall have entitled such holder to purchase.
If this Rights Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
No fractional portion of less than one Common Share will be issued
upon the exercise of any Right or Rights evidenced hereby but in lieu thereof a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the Common
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of ____________, ______.
ATTEST: DEL GLOBAL TECHNOLOGIES CORP.
------------------------------- ----------------------------------
By: By:
Its: Secretary Its:
MELLON INVESTOR SERVICES LLC, Rights Agent
----------------------------------
By:
Its:
EXHIBIT A
Form of Reverse Side of Rights Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED _____________________ hereby sells, assigns and
transfers
unto__________________________________________________________________________
(Please print name and address of transferee)
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this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ________________________
Attorney, to transfer the within Rights Certificate on the books of the within
named Company, with full power of substitution.
Dated: _____________, ____
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Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [_] is [_] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring Person,
or an Affiliate or Associate of any such Person (as such terms are defined in
the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [_] did [_] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of any such Person.
Dated: _____________, ____
-----------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
Form of Reverse Side of Rights Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Rights Certificate)
To: ___________________
The undersigned hereby irrevocably elects to exercise ____________________
Rights represented by this Rights Certificate to purchase the number of Common
Shares issuable upon the exercise of such Rights and requests that certificates
for such number of Common Shares issued in the name of:
Please insert social security or other identifying number
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(Please print name and address)
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If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number
--------------------------------------------------------------------------------
(Please print name and address)
Dated: _____________, ____
-----------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [_] are [_] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Person (as such terms are
defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [_] did [_] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of any such Person.
Dated: _____________, ____
-----------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
Form of Reverse Side of Rights Certificate -- continued
NOTICE
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
ATTACHMENT 2
EXHIBIT B
RIGHTS AGREEMENT
DEL GLOBAL TECHNOLOGIES CORP.
Summary of Rights
Distribution Date; Transfer of Pursuant to a Rights Agreement (as amended,
Rights; Rights Certificates: the "Rights Agreement"), the Board of
Directors has declared a dividend of one
Right for each share of Common Stock of Del
Global Technologies Corp. (the "Company")
outstanding. Prior to the Distribution Date
referred to below, the Rights will be
evidenced by and trade with the
certificates for the Common Stock. After
the Distribution Date, the Company will
mail Rights certificates to the Company's
shareholders and the Rights will become
transferable apart from the Common Stock.
Distribution Date: Rights will separate from the Common Stock
and become exercisable following (a) the
tenth business day (or such later date as
may be determined by the Company's Board of
Directors) after a person or group (other
than those exempted under the Rights
Agreement) acquires beneficial ownership of
20% or more of the Company's Common Stock
or (b) the tenth business day (or such
later date as may be determined by the
Company's Board of Directors) after a
person or group announces a tender or
exchange offer, the consummation of which
would result in ownership by a person or
group of 20% or more of the Company's
Common Stock.
Common Stock Purchaseable After the Distribution Date, but before an
upon Exercise of Rights: acquiror obtains 20% or more of the
Company's Common Stock, each Right will
entitle the holder to purchase for $ 25.00
(the "Exercise Price"), one share of the
Company's Common Stock.
Flip-In: If an acquiror, other than those exempted
under the Rights Agreement, obtains 20% or
more of the Company's Common Stock (an
"Acquiring Person"), then each Right (other
than Rights owned by an Acquiring Person or
its affiliates) will entitle the holder
thereof to purchase, for the Exercise
Price, a number of shares of the Company's
Common Stock having a then-current market
value of twice the Exercise Price. For
example, at an exercise of $25 per Right,
each Right not owned by an Acquiring Person
(or by certain related parties) following
an event set forth in this paragraph would
entitle its holder to purchase $50 worth of
Common Stock (or other consideration, as
noted above) for $25. Assuming that the
Common Stock had a per share market value
of $5 at such time, the holder of each
valid Right would be entitled to purchase
10 shares of Common Stock with a cumulative
value of $50.
Flip-Over: If, after an Acquiring Person obtains 20%
or more of the Company's Common Stock, (a)
the Company merges into another entity, (b)
an acquiring entity merges into the Company
or (c) the Company sells more than 50% of
the Company's assets or earning power, then
each Right (other than Rights owned by an
Acquiring Person or its affiliates) will
entitle the holder thereof to purchase, for
the Exercise Price, a number of shares of
Common Stock of the person engaging in the
transaction having a then current market
value of twice the Exercise Price.
Exchange Provision: At any time after the date on which an
Acquiring Person obtains 20% or more of the
Company's Common Stock and prior to the
acquisition by the Acquiring Person of 50%
of the outstanding Common Stock, the Board
of Directors of the Company may exchange
the Rights (other than Rights owned by the
Acquiring Person or its affiliates), in
whole or in part, for shares of Common
Stock of the Company at an exchange ratio
of one share of Common Stock per Right
(subject to adjustment).
Redemption of the Rights: Rights will be redeemable at the Company's
option for $0.01 per Right at any time on
or prior to the tenth day (or such later
date as may be determined by the Company's
Board of Directors) after public
announcement that a Person has acquired
beneficial ownership of 20% or more of the
Company's Common Stock (the "Shares
Acquisition Date").
Expiration of the Rights: The Rights expire on the earliest of
September 30, 2003 or redemption or
exchange of the Rights as described above.
Amendment of Terms of The terms of the Rights and the Rights
Rights: Agreement may be amended in any respect
without the consent of the Rights holders
on or prior to the Distribution Date;
thereafter, the terms of the Rights and the
Rights Agreement may be amended without the
consent of the Rights holders in order to
cure any ambiguities or to make changes
which do not adversely affect the interests
of Rights holders (other than the Acquiring
Person).
Voting Rights: Rights will not have any voting rights.
Anti-Dilution Provisions: Rights will have the benefit of certain
customary anti-dilution provisions.
Taxes: The Rights distribution should not be
taxable for federal income tax purposes.
However, following an event which renders
the Rights exercisable or upon redemption
of the Rights, shareholders may recognize
taxable income.
The foregoing is a summary of certain principal terms of the Rights
Agreement, as amended. It may be further amended from time to time. A copy of
the Rights Agreement was filed with the Securities and Exchange Commission
("SEC") as an Exhibit to a Registration Statement on Form 8-A dated September
10, 2001. A copy of the Rights Agreement is available free of charge from the
Company.
