Exhibit 4.1
[FORM OF]
AMENDMENT NO. 2 TO THE RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO THE RIGHTS AGREEMENT, dated as of September
19, 2006, is made between Xxxxxxxx Corporation, a Missouri corporation (the
"Company"), and UMB Bank, N.A. (the "Rights Agent").
W I T N E S S E T H
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement originally entered into August 25, 1998 and amended on August 29,
2006 (the "Rights Agreement");
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of Section 27 thereof;
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 pursuant to Section 27;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Section 1(a) of the Rights Agreement is hereby deleted in its
entirety and is hereby replaced with the new Section 1(a) which reads as
follows:
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all Affiliates (as
hereinafter defined) and Associates (as hereinafter defined) of
such Person, without the prior written approval of a majority of
the Board of Directors, shall be the Beneficial Owner (as
hereinafter defined) of securities of the Company constituting 15%
or more of the Voting Power (as hereinafter defined) of the Company
or was such a Beneficial Owner at any time after the date hereof,
whether or not such Person continues to be the Beneficial Owner of
securities representing 15% or more of the Voting Power of the
Company, but shall not include the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any Subsidiary
of the Company, any entity holding securities of the Company to the
extent organized, appointed or established by the Company or any
Subsidiary of the Company for or pursuant to the terms of any such
employee benefit plan. Notwithstanding the foregoing:
(i) no Person shall become an "Acquiring Person"
as the result of (A) an acquisition of Common Stock by means of
shares issued directly by the
Company which increases the proportionate Voting Power of such
securities beneficially owned by such Person to 15% or more of the
Voting Power of the Company, where such acquisition is approved by
a majority of the Board of Directors; provided, however, that such
Person was not an Acquiring Person prior to such acquisition of
shares from the Company; (B) an acquisition of voting securities of
the Company by the Company which, by reducing the amount of such
securities outstanding, increases the proportionate Voting Power of
such securities beneficially owned by such Person to 15% or more of
the Voting Power of the Company; provided, however, that if a
Person becomes the Beneficial Owner of securities constituting 15%
or more of the Voting Power of the Company by reason of purchases
by the Company and shall, after such purchases by the Company,
become the Beneficial Owner of any additional voting securities of
the Company (other than pursuant to a stock dividend, stock split,
capitalization or similar transaction that does not affect the
percentage of voting securities beneficially owned by such person),
then such Person shall be deemed to be an Acquiring Person;
(ii) if a majority of the Board of Directors then
in office determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to this
Section 1(a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of shares of
voting securities of the Company so that such Person would no
longer be an Acquiring Person, then such Person shall not be deemed
to be an "Acquiring Person" for purposes of this Agreement; and
(iii) With respect only to Steel Partners, L.L.C.
and Steel Partners II, L.P., together with either their Affiliates
or Associates, all references to 15% in this Section 1(a) shall
instead be replaced by 20%.
2. Section 3(a) of the Rights Agreement is hereby deleted in its
entirety and is hereby replaced with the new Section 3(a) which reads as
follows:
(a) Until the earlier of (i) the Close of Business on the
tenth day after the Stock Acquisition Date or (ii) the Close of
Business on the tenth day (or such later date as may be determined
by action of a majority of the Board of Directors prior to such
time as any Person becomes an Acquiring Person) after the date of
the commencement of, or first public announcement of the intent of
any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of
the Company, or any entity holding securities of the Company to the
extent organized, appointed or established by the Company or any
Subsidiary of the Company for or pursuant to the terms of any such
employee benefit plan) to commence (which intention to commence
remains in effect for five Business Days after such announcement),
without the prior written approval of a majority of the Board of
Directors, a tender or exchange offer which would result in any
Person becoming the Beneficial Owner of securities representing 15%
or more of the Voting Power of the Company (including any such date
which is after the date of this Agreement and prior to the
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issuance of the Rights; the earlier of such dates being herein
referred to as the "Distribution Date"): (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for the Common Stock registered in
the names of the holders of the Common Stock (which certificates
for Common Stock shall be deemed also to be Right Certificates) and
not by separate Right Certificates, as more fully set forth below,
and (y) the Rights (and the right to receive certificates therefor)
will be transferable only in connection with the transfer of the
underlying shares of Common Stock, as more fully set forth below.
As soon as practicable after the Company has notified the Rights
Agent of the occurrence of the Distribution Date, the Company shall
prepare and execute, and the Rights Agent shall countersign and
send, at the expense of the Company, by first-class, insured,
postage prepaid mail, to each record holder of the Common Stock as
of the Close of Business on the Distribution Date, at the address
of such holder shown on the records of the Company, a right
certificate, in substantially the form of Exhibit B hereto (the
"Right Certificate"), evidencing one Right for each share of Common
Stock so held. As of and after the Distribution Date, the Rights
will be evidenced solely by such Right Certificates.
Notwithstanding the foregoing, with respect only to Steel Partners,
L.L.C. and Steel Partners II, L.P., together with either their
Affiliates or Associates, all references to 15% in this Section
3(a) shall instead be replaced by 20%.
3. Section 23(a)(ii) of the Rights Agreement is hereby deleted in
its entirety and is hereby replaced with the new Section 23(a)(ii) which
reads as follows.
(ii) In addition, prior to any event described in Section 13(a), a
majority of the Board of Directors may redeem all but not less than
all of the then outstanding Rights at the Redemption Price (A)
following the occurrence of a Stock Acquisition Date either: (x) if
each of the following shall have occurred and remain in effect: (1)
a Person who is an Acquiring Person shall have transferred or
otherwise disposed of a number of shares of voting securities of
the Company in a manner satisfactory to the Board of Directors such
that such Person is thereafter a Beneficial Owner of securities
having less than 15% of the Voting Power of the Company, and (2)
there is no other Person, immediately following the occurrence of
the event described in (1), who is an Acquiring Person; or (y) in
connection with any transaction not involving an Acquiring Person
or an Affiliate or Associate of an Acquiring Person; or (B)
following a change (resulting from a proxy or consent solicitation)
in a majority of the directors in office at the commencement of
such solicitation if any Person who is a participant in such
solicitation has stated (or, if upon the commencement of such
solicitation, a majority of the Board of Directors of the Company
has determined in good faith) that such Person intends to take, or
may consider taking, any action which would result in such Person
becoming an Acquiring Person. Notwithstanding the foregoing, with
respect only to Steel Partners, L.L.C. and Steel Partners II, L.P.,
together with either their Affiliates or Associates, all references
to 15% in this Section 23(a)(ii) shall instead be replaced by 20%.
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4. The second paragraph of the Summary of Preferred Stock Purchase
Rights which is attached as Exhibit C to the Rights Agreement is hereby
deleted in its entirety and is hereby replaced with the following paragraph:
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate
Right Certificates will be distributed. Until the earlier of (i)
ten days following the first to occur of (a) a public announcement
that, without the prior written consent of the Board of Directors
of the Company, a person or its affiliated or associated persons
other than the Company, a subsidiary of the Company or any employee
benefit plan of the Company or a subsidiary of the Company (an
"Acquiring Person") has acquired, or obtained the right to acquire,
outstanding shares of Common Stock of the Company representing 15%
or more of the voting power of the Company or (b) the date on which
the Company first has notice or otherwise determines that a person
has become an Acquiring Person (the "Stock Acquisition Date") or
(ii) ten days following the commencement or announcement of an
intention to make a tender offer or exchange offer, without the
prior written consent of the Board of Directors of the Company, for
outstanding shares of such Common Stock representing 15% or more of
the voting power of the Company (the earlier of the dates in clause
(i) or (ii) above being called the "Distribution Date"), the Rights
will be evidenced, with respect to any of the Company's Common
Stock certificates outstanding as of and after the Record Date
(other than shares held in the Company's treasury), by such Common
Stock certificates. Notwithstanding the immediately preceding
sentence, with respect only to Steel Partners, L.L.C. and Steel
Partners II, L.P., together with either their affiliated or
associated persons, references to 15% in such sentence shall
instead be replaced by 20%. The Rights Agreement provides that,
until the Distribution Date, the Rights will be transferred with
and only with the Company's Common Stock. Until the Distribution
Date (or earlier redemption, exchange or expiration of the Rights),
new Common Stock certificates issued after the Record Date, upon
transfer, new issuance or issuance from the Company's treasury of
the Company's Common Stock, will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date (or
earlier redemption, exchange or expiration of the Rights), the
surrender for transfer of any of the Company's Common Stock
certificates outstanding as of and after the Record Date will also
constitute the transfer of the Rights associated with the Common
Stock represented by such certificates. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of
record of the Company's Common Stock as of the close of business on
the Distribution Date and such separate certificates alone will
then evidence the Rights.
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5. The third paragraph of the Summary of Preferred Stock Purchase
Rights which is attached as Exhibit C to the Rights Agreement is hereby
deleted in its entirety and is hereby replaced with the following paragraph:
Notwithstanding the above, a person will not be deemed to
be an Acquiring Person if such person, together with that person's
affiliated or associated persons: (x) becomes the owner of
outstanding Shares of the Common Stock of the Company representing
15% or more of the voting power of the Company by means of an
acquisition of shares of Common Stock directly from the Company if
such acquisition is approved by a majority of the Board of
Directors of the Company (unless such Person was an Acquiring
Person prior to such acquisition); (y) becomes the owner of Common
Stock representing 15% or more of the voting power of the Company
following an acquisition of the Company's voting securities by the
Company, unless such person subsequently acquires additional voting
securities of the Company (other than by means of a stock dividend,
stock split, recapitalization or similar event); or (z) has become
an Acquiring Person inadvertently and divests promptly a number of
voting securities so as to no longer be an Acquiring Person.
Notwithstanding the immediately preceding sentence, with respect
only to Steel Partners, L.L.C. and Steel Partners II, L.P.,
together with either their affiliated or associated persons,
references to 15% in such sentence shall instead be replaced by
20%.
6. The tenth paragraph of the Summary of Preferred Stock Purchase
Rights which is attached as Exhibit C to the Rights Agreement is hereby
deleted in its entirety and is hereby replaced with the following paragraph:
At any time prior to a person becoming an Acquiring Person
or September 7, 2008, the Company's Board of Directors may elect to
redeem the Rights in whole, but not in part, at a price of $.01 per
Right and prior to an event giving rise to the Merger Right (i)
following a change in a majority of the Directors of the Company or
(ii) following the Stock Acquisition Date, provided that either (a)
the Acquiring Person reduces its beneficial ownership to less than
15% of the voting power of the Company in a manner satisfactory to
the Board of Directors and there are no more Acquiring Persons, or
(b) such redemption is incidental to a merger or other business
combination involving the Company but not involving the Acquiring
Person. Immediately upon the action of the Board of Directors
electing to redeem the Rights, the Company shall make announcement
thereof, and the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the
redemption price. Notwithstanding the immediately preceding
sentence, with respect only to Steel Partners, L.L.C. and Steel
Partners II, L.P., together with either their affiliated or
associated persons, references to 15% in such sentence shall
instead be replaced by 20%.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to the Rights Agreement to be duly executed as of
the day and year first above written.
XXXXXXXX CORPORATION
By:
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Name:
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Title:
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UMB BANK, N.A.
By:
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Name:
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Title:
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