Exhibit 4.1
EXECUTION COPY
AMENDMENT NO. 2 TO
RIGHTS AGREEMENT
AMENDMENT NO. 2 (the "Amendment"), dated as of April 4,
2005, to the Rights Agreement, dated as of December 6, 1996, between Maxcor
Financial Group Inc., a Delaware corporation (formerly known as Financial
Services Acquisition Corporation) (the "Company"), and Continental Stock
Transfer & Trust Company, as rights agent, as amended by Amendment No. 1,
dated as of July 26, 2001, and as modified by the agreement on removal of
rights agent and appointment of successor rights agent, dated as of September
9, 2003, by and among the Company, Continental Stock Transfer & Trust Company
and the Bank of New York (the "Rights Agent") (together, the "Rights
Agreement").
RECITALS
WHEREAS, BGC Partners, L.P., a Delaware limited partnership
("Purchaser"), Magnet Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Purchaser ("Sub"), and the Company contemplate
entering into the Merger Agreement (as defined below) pursuant to which Sub
will merge with and into the Company (the "Merger"). The Board of Directors of
the Company has approved the Merger Agreement.
WHEREAS, in connection with the Merger and the Merger
Agreement certain officers and/or directors of the Company (collectively, the
"Stockholders") contemplate entering into support agreements (the "Support
Agreements") with Parent pursuant to which, among other things, they would
agree to vote all shares of the Company's common stock, par value $0.001 per
share (the "Common Stock"), held by such Stockholders in favor of adoption of
the Merger Agreement and not to sell or otherwise transfer any shares of
Common Stock.
WHEREAS, pursuant to Section 27 of the Rights Agreement,
prior to the 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 without the approval of any
holders of certificates representing shares of Common Stock.
WHEREAS, no Distribution Date has yet occurred and there is
not any Acquiring Person and, in accordance with Section 27 of the Rights
Agreement, an officer of the Company has delivered a certificate as to the
compliance of this Amendment with said Section 27.
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 other 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.
NOW THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and in the Rights Agreement, the parties hereto,
intending to be legally bound, agree as follows:
A. Amendment of Section 1. Section 1 of the Rights Agreement
is hereby amended and supplemented to add the following definitions in the
appropriate locations:
"Purchaser" means, collectively, BGC Partners, L.P., a
Delaware limited partnership, and Magnet Acquisition Corp.,
a Delaware corporation.
"Merger" shall mean the "Merger" as such term is defined in
the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of April 4, 2005, by and among the Company,
BGC Partners, L.P. and Magnet Acquisition Corp., as it may
be amended from time to time.
"Support Agreements" shall mean the "Support Agreements" as
such term is defined in the Merger Agreement, as thereby may
be amended from time to time.
B. Amendment of the definition of "Acquiring Person". The
definition of "Acquiring Person" in Section 1(a) 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, neither Purchaser nor any of its Affiliates or Associates
shall be deemed to be an Acquiring Person for purposes of this Rights
Agreement solely by virtue of one or more of (i) the approval,
execution or delivery of the Merger Agreement, (ii) the approval,
execution or delivery of the Support Agreements, (iii) the public or
other announcement of the Merger Agreement or the Support Agreements
or the transactions contemplated thereby, (iv) the consummation of
the Merger or (v) the consummation of any other transaction
contemplated in the Merger Agreement or the Support Agreements (each
such event, an "Exempt Event")."
C. Amendment of the definition of "Stock Acquisition Date".
The definition of "Stock Acquisition Date" in Section 1(cc) 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 an Exempt Event."
D. Amendment of definition of "Section 11(a)(ii) Event". The definition of
"Section 11(a)(ii) Event" in Section 1(a) 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 Section 11(a)(ii) Event shall not be deemed to have
occurred solely as a result of an Exempt Event."
E. Amendment of definition of "Section 13 Event". The
definition of "Section 13 Event" in Section 1(a) 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 Section 13 Event shall not be deemed to have occurred
solely as a result of an Exempt Event."
F. Amendment of definition of "Triggering Event". The
definition of "Triggering Event" in Section 1(a) 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 Triggering Event shall not be deemed to have occurred
solely as a result of an Exempt Event."
G. Amendment to Section 3(a). Section 3(a) of the Rights
Agreement is hereby amended and supplemented by adding the following proviso
immediately following the words "...the earlier of (i) and (ii) being herein
referred to as the `Distribution Date'" in the fourth parenthetical in Section
3(a):
"; provided however, that notwithstanding anything in this
Rights Agreement to the contrary, a Distribution Date shall not be
deemed to have occurred solely as the result of an Exempt Event."
H. 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
an Exempt Event."
I. Amendment of Section 11. Section 11 of the Rights
Agreement is hereby amended and supplemented to add the following clause at
the end thereof as Section 11(a)(iv):
"(iv) Notwithstanding the foregoing or anything else in this
Rights Agreement to the contrary, this Section 11(a) shall not apply
to any Exempt Event."
J. Amendment of Section 13. Section 13 of the Rights
Agreement is hereby amended and supplemented to add the following clause at
the end thereof as Section 13(e):
"(e) Notwithstanding the foregoing or anything else in this
Rights Agreement to the contrary, an Exempt Event shall not cause the
Rights to be adjusted or exercisable in accordance with, or any other
obligation to arise pursuant to, this Section 13."
K. Amendment of the Rights Agreement to add a new Section.
The Rights Agreement is hereby amended and supplemented to add the following
Section 35:
"Section 35. Termination of this Agreement.
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As of the Effective Time (as defined in the Merger
Agreement), this Agreement shall terminate and shall forthwith become
void and have no effect, without any liability or obligation on the
part of the Company, the Rights Agent or the holders of any Rights."
L. Effectiveness. This Amendment shall be deemed effective
as of, and immediately prior to, the execution and delivery of the Merger
Agreement. Except as amended hereby, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
M. 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 affected, 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date and year first
written above.
MAXCOR FINANCIAL GROUP INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Chief Operating Officer
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
