FIRST AMENDMENT TO RIGHTS AGREEMENT
Exhibit 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
This FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of December 10, 2008 (this
“Amendment”), is entered into by and between SCM Microsystems, Inc. a Delaware corporation
(the “Company”), and American Stock Transfer & Trust Company (the “Rights Agent”).
WHEREAS, the Company and the Rights Agent entered into a Rights Agreement, dated as of
November 8, 2002 (the “Rights Agreement”);
WHEREAS, Section 27 of the Rights Agreement provides that, in certain circumstances, the
Company may supplement or amend the Rights Agreement in any respect, without the approval of any
holders of Rights, and the Rights Agent shall execute such supplement or amendment;
WHEREAS, the Company has entered into an Agreement and Plan of Merger (the “Merger
Agreement”) by and among the Company, Xxxxxx Electronics Corporation, a California corporation
(“Xxxxxx”), Deer Acquisition, Inc., a California corporation and a wholly owned subsidiary
of the Company, and Xxxx Acquisition LLC, a Delaware limited liability company and a wholly owned
subsidiary of the Company, pursuant to which through a two-step merger Xxxxxx will become a new
Delaware limited liability company and a wholly owned subsidiary of the Company (the
“Merger”) and the Company will issue shares of its common stock and warrants to purchase
shares of its common stock to the former stockholders of Xxxxxx as merger consideration;
WHEREAS,
on December 9, 2008, the Board of Directors of the Company approved the Merger
Agreement and the Merger and determined that the Merger and the other transactions contemplated by
the Merger Agreement are advisable and fair to, and in the best interests of, the Company and its
stockholders;
WHEREAS,
on December 9, 2008, the Board of Directors of the Company resolved to amend the
Rights Agreement to ensure that none of the execution or delivery of the Merger Agreement and
consummation of the transactions contemplated thereby, or the execution or delivery of the
ancillary agreements contemplated by the Merger Agreement or the consummation of the transactions
contemplated thereby, will cause (a) the Rights to become exercisable under the Rights Agreement,
(b) Xxxxxx or any of their affiliates or stockholders to be deemed to be an “Acquiring Person,” or
(c) a “Triggering Event,” the “Distribution Date” or the “Shares Acquisition Date” to occur; and
WHEREAS, the Company desires to modify the terms of the Rights Agreement in certain respects
as set forth herein, and in connection therewith, is entering into this Amendment and directing the
Rights Agent to enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
1. Effect of Amendment. Except as expressly provided herein, the Rights Agreement
shall be and remain in full force and effect.
2. Capitalized Terms. All capitalized, undefined terms used in this Amendment shall
have the meanings assigned thereto in the Rights Agreement.
3. Amendments to Section 1.
(a) The definition of “Acquiring Person” in Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
“‘Acquiring Person’ shall mean any Person, who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of 15% or
more of the Common Shares then outstanding, but shall not include the Company, any
Subsidiary of the Company or any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity holding Common Shares for or pursuant to
the terms of any such plan. Notwithstanding the foregoing, no Person shall be
deemed to be an Acquiring Person as the result of an acquisition of Common Shares by
the Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or more of
the Common Shares of the Company then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Shares in Common
Shares or pursuant to a split or subdivision of the outstanding Common Shares), then
such Person shall be deemed to be an Acquiring Person unless upon becoming the
Beneficial Owner of such additional Common Shares of the Company such Person does
not beneficially own 15% or more of the Common Shares of the Company then
outstanding. Notwithstanding the foregoing, (i) if the Company’s Board of Directors
determines in good faith that a Person who would otherwise be an “Acquiring Person,”
as defined pursuant to the foregoing provisions of this paragraph (a), has become
such inadvertently (including, without limitation, because (A) such Person was
unaware that it beneficially owned a percentage of the Common Shares that would
otherwise cause such Person to be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this paragraph (a), or (B) such Person was aware of the
extent of the Common Shares it beneficially owned but had no actual knowledge of the
consequences of such beneficial ownership under this Agreement) and without any
intention of changing or influencing control of the Company, and if such Person
divested or divests as promptly as practicable a sufficient number of Common Shares
so that such Person would no longer be an “Acquiring Person,” as defined pursuant to
the foregoing provisions of this paragraph (a), then such Person shall not be deemed
to be or to have become an “Acquiring Person” for any purposes of this Agreement
including, without limitation Section 1(gg) hereof; (ii) if, as of the date hereof,
any Person is the Beneficial Owner of 15% or more of the Common Shares outstanding,
such Person shall not be or become an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this
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paragraph (a), unless and until such time as such Person shall become the
Beneficial Owner of additional Common Shares (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Shares in Common
Shares or pursuant to a split or subdivision of the outstanding Common Shares),
unless, upon becoming the Beneficial Owner of such additional Common Shares, such
Person is not then the Beneficial Owner of 15% or more of the Common Shares then
outstanding; and (iii) neither Xxxxxx nor any of its affiliates or stockholders
shall be deemed an Acquiring Person on account of the execution or delivery of the
Merger Agreement or the Ancillary Agreements or the consummation of the transactions
contemplated thereby (including, until the termination of the Stockholder Agreement
in accordance with its terms, as a result of any Xxxxxx stockholder being deemed the
Beneficial Owner of any Common Shares solely as a result of their being a party to
the Stockholder Agreement).”
(b) The definition of “Distribution Date” in Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
“‘Distribution Date’ shall mean the earlier of (i) the Close of Business on the
tenth (10th) Business day (or such later date as may be determined by action of the
Company’s Board of Directors) after the Shares Acquisition Date (or, if the tenth
(10th) Business Day after the Shares Acquisition Date occurs before the Record Date,
the Close of Business on the Record Date) or (ii) the Close of Business on the tenth
(10th) Business Day (or such later date as may be determined by action of the
Company’s Board of Directors) after the date that a tender or exchange offer by any
Person (other than the Company, any Subsidiary of the Company, any Person pursuant
to the Merger Agreement or the Ancillary Agreements, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the terms of any such
plan) is first published or sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act, if, assuming the successful
consummation thereof, such Person would be an Acquiring Person; provided that, if
such Person is determined not to have become an Acquiring Person pursuant to Section
1(a) hereof, then no Distribution Date shall be deemed to have occurred by virtue of
such event.”
(c) The definition of “Shares Acquisition Date” in Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
“‘Shares Acquisition Date’ shall mean the first date of public announcement
(which, for purposes of this definition, shall include, without limitation, a report
filed pursuant to Section 13(d) of the Exchange Act, but exclude any public
announcement or report relating to the transactions contemplated by the Merger
Agreement or the Ancillary Agreements) by the Company or an Acquiring Person that an
Acquiring Person has become such; provided that, if such Person is determined not to
have become an Acquiring
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Person pursuant to Section 1(a) hereof, then no Shares Acquisition Date shall
be deemed to have occurred by virtue of such event.”
(d) The definition of “Triggering Event” in Section 1 of the Rights Agreement is hereby
amended to read in its entirety as follows:
“A ‘Triggering Event’ shall be deemed to have occurred upon any Person becoming
an Acquiring Person; provided that, if such Person is determined not to have become
an Acquiring Person pursuant to Section 1(a) hereof, then no Triggering Event shall
be deemed to have occurred by virtue of such event.”
(e) The definitions contained in Section 1 of the Rights Agreement shall be supplemented by
adding the following definitions in alphabetical order:
“‘Ancillary Agreements’ shall mean all agreements, documents and instruments
required to be delivered by any party pursuant to the Merger Agreement, and any
other agreements, documents or instruments entered into at or prior to effective
time of the Merger in connection with the Merger Agreement or the transactions
contemplated thereby.”
“‘Deer Merger Sub’ shall mean Deer Acquisition, Inc., a California corporation
and a wholly owned subsidiary of the Company.”
“‘Xxxx Merger Sub’ shall mean Xxxx Acquisition LLC, a Delaware limited
liability company and a wholly owned subsidiary of the Company.”
“‘Xxxxxx’ shall mean Xxxxxx, a California corporation.”
“‘Merger Agreement’ shall mean the Agreement and Plan of Merger, by and among
the Company, Xxxxxx, Deer Merger Sub and Xxxx Merger Sub, pursuant to which through
a two-step merger Xxxxxx will become a new Delaware limited liability company and a
wholly owned subsidiary of the Company (the “Merger”).”
“‘Stockholder Agreement’ shall mean the Stockholder Agreement, by and among the
Company and the Xxxxxx stockholders a party thereto.”
4. New Section 35. Section 35 is hereby added to the Rights Agreement to read in its
entirety as follows:
“Section 35. The Merger Agreement. Notwithstanding anything contained in this
Agreement to the contrary, neither the approval, execution or delivery of the Merger
Agreement or the Ancillary Agreements, nor the consummation of the transactions
contemplated thereby or the performance by the Company of its obligations thereunder
shall cause (a) the Rights to become exercisable, (b) Xxxxxx or any of its
affiliates or stockholder to be an Acquiring Person, (c) a Triggering Event to
occur, (d) a Shares Acquisition Date to occur or (e) a Distribution Date to occur.”
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5. Effective Date. This Amendment is effective as of December 10, 2008, immediately
prior to the execution and delivery of the Merger Agreement.
6. Governing Law. This Amendment shall be governed by, construed and enforced in
accordance with the laws of the State of Delaware without reference to the conflicts or choice of
law principles thereof.
7. Counterparts; Facsimile Signatures. This Amendment may be executed in any number
of counterparts (including facsimile signature) each of which shall be an original with the same
effect as if the signatures thereto and hereto were upon the same instrument.
8. Headings. The headings in this Amendment are included for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as
of the day and year first above written.
| SCM MICROSYSTEMS, INC. |
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| By: | /s/ Xxxxx Xxxx | |||
| Xxxxx Xxxx | ||||
| Chief Executive Officer | ||||
| AMERICAN STOCK TRANSFER & TRUST COMPANY |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Amendment to Rights Agreement]
