Exhibit 4.03
XXXXXX AUTOMATION, INC.
AMENDMENT TO RIGHTS AGREEMENT
This Amendment (this "Agreement"), dated as of October 23, 2001, to the
Rights Agreement dated as of July 23, 1997 (the "Rights Agreement"), between
Xxxxxx Automation, Inc., a Delaware corporation (the "Company"), and Equiserve
Trust Company, N.A. successor Rights Agent (the "Rights Agent").
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WHEREAS, the board of directors of the Company has approved a certain
agreement and plan of merger (the "Merger Agreement") by and among the Company,
PRI Automation, Inc., a Massachusetts corporation ("PRI"), Pontiac Acquisition
Corp., a Massachusetts corporation wholly owned by the Company ("Xxxxxx Merger
Sub") at a meeting of the board of directors of the Company held on October 23,
2001 (the "Meeting"), pursuant to which Xxxxxx Merger Sub will be merged with
and into PRI (the "Merger"), and the stockholders of PRI will become
stockholders of the Company.
WHEREAS, upon the effectiveness of the Merger, PRI may acquire more than
15% of the outstanding shares of the Company's Common Stock, $.01 par value per
share (the "Company's Common Stock").
WHEREAS, the acquisition of more than 15% of the outstanding shares of the
Company's Common Stock would result in the acquiring entity or entities being
deemed to be an "Acquiring Person" under the Rights Agreement, which would
trigger certain events pursuant to the terms of the Rights Agreement.
WHEREAS, at the Meeting the board of directors of the Company determined
that it is in the best interest of the Company to amend the Rights Agreement
prior to the Company entering into the Merger Agreement so that PRI and its
Affiliates will not become Acquiring Persons under the Rights Agreement.
WHEREAS, capitalized terms used but not otherwise defined in this
Amendment No. 1 shall have the meanings given them in the Rights Agreement.
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AMENDMENT OF FIRST SUBPARAGRAPH OF SECTION 1. The first subparagraph of
Section 1, definition of "Acquiring Person," is hereby amended and restated so
that such subparagraph reads 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 of the Company
then outstanding, but shall not
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include (i) the Company, (ii) any Subsidiary of the Company, (iii)
any employee benefit plan of the Company or any Subsidiary of the
Company, (iv) any entity holding Common Shares for or pursuant to
the terms of any such employee benefit plan, (v) Xxxxxx X. Xxxxxxxx,
any members of his immediate family or any of his or their
Affiliates or Associates, (vi) any person that is the Beneficial
Owner of 15% or more of the Common Shares of the Company outstanding
as of the close of the Nasdaq National Market on the date hereof;
provided, however, that after such date such person does not become
the Beneficial Owner of additional Common Shares of the Company in
an aggregate amount (net of any sales) of the greater of 200,000
Common Shares or the number of Common Shares equal to 2.6% of the
then outstanding Common Shares (as measured as of the date of the
then acquisition of Common Shares by the Beneficial Owner); and
provided, further that such person shall be treated as any other
holder of Common Shares of the Company and shall no longer be
entitled to the exclusion set forth in this clause (vi) after such
time as such person becomes the Beneficial Owner of less than 15% of
the Common Shares of the Company then outstanding or (vii) PRI
Automation, Inc., a Massachusetts corporation ("PRI"), or any of its
Affiliates if and only if, PRI or such Affiliates shall become the
Beneficial Owner of 15% or more of the Common Shares of the Company
then outstanding as a result of the execution of the Agreement and
Plan of Merger authorized and approved by the Board of Directors of
the Company at the meeting of the Board of Directors held on October
23, 2001, as it may be amended from time to time (the "Merger
Agreement"), or the consummation of the transactions contemplated
thereby, and/or any options to purchase or proxies to vote Common
Shares of the Company granted by the Company or any stockholder of
the Company to PRI in connection with the Merger Agreement or any
agreements or arrangements entered into by the Company and PRI in
connection therewith. Notwithstanding the foregoing, (1) no Person
shall become 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 so become the Beneficial Owner of 15% or more of the
Common Shares of the Company then outstanding by reason of an
acquisition of Common Shares by the Company and shall, after such
share purchases by the Company, become the Beneficial Owner of an
additional 1% of the outstanding Common Shares of the Company, then
such Person shall be deemed to be an "Acquiring Person"; (2) 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, has become
such inadvertently, and such Person 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, then such Person shall not
be deemed to have become an "Acquiring Person" for any purposes of
this Agreement; and (3) an underwriter or underwriters which become
the Beneficial Owner of 15% or more of the Common Shares of the
Corporation then outstanding in connection
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with an underwritten public offering with a view to the public
distribution of such Common Shares shall not become an "Acquiring
Person" hereunder."
2. REAFFIRMATION OF RIGHTS AGREEMENT. Except as specifically amended by
this Amendment, the Rights Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXX AUTOMATION, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President of
Finance and Administration and
Chief Financial Officer
EQUISERVE TRUST COMPANY, N.A
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Managing Director
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