FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of May 12, 1999 (this "Amendment"), to
Rights Agreement, dated as of December 31, 1997 (the "Rights Agreement"),
between Midas, Inc., a Delaware corporation (the "Company"), and First
Chicago Trust Company of New York, a New York corporation (the "Rights
Agent").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company, at a meeting held
on May 6, 1999 and based in part on the recommendation of the Company's
financial advisors, has determined that it is advisable and in the best
interest of the Company to amend the Rights Agreement to lower the thresholds
set forth in Sections 1(a) and 3(a) from 15% to 13.0%;
WHEREAS, at the date of this Amendment, the Distribution Date has
not occurred and there is no Acquiring Person; and
WHEREAS, in compliance with Section 27 of the Rights Agreement, the
Company and the Rights Agent are willing to amend the Rights Agreement as
hereinafter set forth and the Company and the Rights Agent have each executed
and delivered this Amendment.
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NOW, THEREFORE, in consideration of the Rights Agreement and the
premises and mutual agreements herein set forth, the parties hereby agree as
follows:
1. Section 1(a) of the Rights Agreement is hereby amended and
restated to read as follows:
"(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of 13.0% or more of the shares of Common
Stock then outstanding, but shall not include the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person
organized, appointed or established by the Company for or
pursuant to the terms of any such plan. Notwithstanding the
foregoing, (i) no Person shall become an "Acquiring Person" as
the result of an acquisition of shares of Common Stock by the
Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned
by such Person to 13.0% or more of the shares of Common Stock
then outstanding; PROVIDED, HOWEVER, that if a Person shall
become the Beneficial Owner of 13.0% or more of the shares of
Common Stock 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 shares of Common
Stock (other than pursuant to a dividend or distribution paid or
made by the Company on the outstanding Common Stock or pursuant
to a split or subdivision of the outstanding Common Stock), then
such Person shall be deemed to be an "Acquiring Person" and (ii)
if, as of May 12, 1999 or prior to the first public announcement
of the adoption of the First Amendment dated as of May 12, 1999
to Rights Agreement between the Company and the Rights Agent
(which, for purposes of this definition, shall include, without
limitation, the inclusion of such First Amendment to Rights
Agreement by the Company in any public filing that it shall make
with the SEC), any Person is or becomes the Beneficial Owner of
at least 13.0% but less than 15% of the shares of Common Stock
outstanding, such Person
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shall not be deemed to be or to become an "Acquiring Person" unless
and until such time as such Person shall, after the first public
announcement of the adoption of such First Amendment to Rights
Agreement, become the Beneficial Owner of any additional shares of
Common Stock (other than pursuant to a dividend or distribution
paid or made by the Company on the outstanding Common Stock or
pursuant to a split or subdivision of the outstanding Common
Stock), unless, upon becoming the Beneficial Owner of such
additional shares of Common Stock, such Person is not then the
Beneficial Owner of 13.0% or more of the shares of Common Stock
then outstanding. Notwithstanding the foregoing, if the Board of
Directors of the Company 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, and such Person divests as promptly as practicable
(as determined in the good faith by the Board of Directors) a
sufficient number of shares of Common Stock 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 an "Acquiring Person" for any purposes of
this Agreement."
2. Section 3(a) of the Rights Agreement is hereby amended by
replacing the reference to the percentage "15%" contained therein with a
reference to the percentage "13.0%".
3. The first sentence of the legend contained in Section 3(c) of
the Rights Agreement is hereby amended and restated to read as follows:
"This certificate also evidences and entitles the holder hereof
to certain rights as set forth in the Rights Agreement between
Midas, Inc. (the "Company") and First Chicago Trust Company of
New York (the "Rights Agent") dated as of December 31, 1997, as
amended (collectively, the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a copy of
which is on file at the principal offices of the Company."
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4. The first sentence of the first paragraph appearing on page B-2
of the form of Rights Certificate attached as Exhibit B to the Rights
Agreement is hereby amended by replacing the phrase "Rights Agreement, dated
as of December 31, 1997 (the" contained therein with the phrase "Rights
Agreement, dated as of December 31, 1997, as amended by the First Amendment
dated as of May 12, 1999 thereto (collectively, the".
5. The last sentence of the first paragraph of the Summary of
Rights to Purchase Preferred Stock attached as Exhibit C to the Rights
Agreement is hereby amended and restated to read as follows:
"The description and terms of the Rights are set forth in a
Rights Agreement, dated as of December 31, 1997, as amended by
the First Amendment dated as of May 12, 1999 thereto
(collectively, the "Rights Agreement"), between the Company and
First Chicago Trust Company of New York, as Rights Agent."
6. 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 with in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
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7. This Amendment may be executed in two or more counterparts, each
of which shall for all purposes be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
8. Any capitalized term used herein without definition shall have
the meaning specified in the Rights Agreement.
9. Except as otherwise expressly set forth herein, this Amendment
shall not by implication or otherwise alter, modify, amend or in any other
manner affect any of the terms, conditions, obligations, covenants or
agreements contained in the Rights Agreement, all of which are hereby
ratified and confirmed in all respects and shall continue in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and attested, all as of the day and year first above
written.
Attest: MIDAS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ R. Xxx Xxxxxxx
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Xxxxxx X. Xxxxxxxx R. Xxx Xxxxxxx
Vice President, Secretary Executive Vice President
and General Counsel and Chief Financial Officer
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxx X. Xxxxxx Xxxxxx Xxxxxxxxxx
Customer Service Officer Assistant Vice President
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