1
EXHIBIT 4.2(a)
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1, dated as of May 28, 1999, is between VENATOR
GROUP, INC., a New York corporation (the "Company"), and FIRST CHICAGO TRUST
COMPANY OF NEW YORK, as Rights Agent (the "Bank").
WHEREAS, the Company (formerly known as Woolworth Corporation) and the
Rights Agent, entered into a Rights Agreement dated as of March 11, 1998 (the
"Rights Agreement");
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
desires to amend the Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. AMENDMENT OF SECTION 1.
1. Section 1 of the Rights Agreement is amended by deleting
the second sentence contained in the definition of "Acquiring Person"
and substituting in lieu thereof the following:
"Acquiring Person" shall not include any Person who becomes an
Interested Shareholder (an "Interested Shareholder") within
the meaning of Section 912 of the NYBCL (i) solely as a result
of a reduction in the number of shares of Common Stock
outstanding due to the repurchase of Common Stock by the
Company, unless and until such time as such Person or any
Affiliate or Associate of such Person shall purchase or
otherwise become (as a result of actions taken by such Person
or its Affiliates or Associates) the Beneficial Owner of
additional shares of Common Stock constituting 1% or more of
the then outstanding shares of Common Stock other than
pursuant to a Qualifying Offer, or (ii) pursuant to a
Qualifying Offer;
2
2. Section 1 of the Rights Agreement is amended by adding
thereto, following the definition of "Final Expiration Date" and prior
to the definition of "Person", the following:
"Independent Director" shall mean any member of the
Board of Directors of the Company who (i) is not, and
has not within the last ten years been, an officer or
employee of the Company, (ii) is not the Beneficial
Owner of 5% or more of the Common Stock or an
Affiliate or Associate of any such Beneficial Owner,
and (iii) is not the Person (or an Affiliate or
Associate thereof) who has made the tender offer
which is the subject of Section 11(a)(ii) hereunder.
3. Section 1 of the Rights Agreement is amended by deleting
the definition of "Qualified Offer" and substituting in lieu thereof,
the following:
"Qualifying Offer" shall mean a tender offer as
described in Section 11(a)(ii).
4. Section 1 of the Rights Agreement is amended by deleting
the words "other than pursuant to a Qualified Offer" from the end of
the sentence defining "Stock Acquisition Date."
2. AMENDMENT OF SECTION 11(a)(ii).
Section 11(a)(ii) of the Rights Agreement is amended by
deleting such section in its entirety and substituting in lieu thereof the
following:
(ii) In the event 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 Person
or entity organized, appointed or established by the Company
for or pursuant to the terms of any such plan), alone or
together with any of its Affiliates and Associates, shall, at
any time after the Rights Dividend Declaration Date, become an
Interested Shareholder, unless the
2
3
event causing the Person to become an Interested Shareholder
is a transaction set forth in Section 13(a) hereof, or is an
acquisition of shares of Common Stock pursuant to a tender
offer for all outstanding shares of Common Stock which meets
all of the following requirements:
(1) on or prior to the date such offer is commenced
within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, such
Person has, and has provided the Company, (a) with
respect to any cash portion of the offer, firm
written commitments from responsible financial
institutions, which have been accepted by such Person
or one of its Affiliates, to provide, subject only to
customary terms and conditions (which shall in no
event include conditions requiring access by such
financial institutions to non-public information to
be provided by the Company, conditions based on the
accuracy of any information concerning the Company
other than such as would be the subject of
representations and warranties in a public financing
by the Company, or conditions requiring the Company
to make any representations, warranties or covenants
in connection with such financing) funds for such
offer which, when added to the amount of cash and
cash equivalents which such Person or group then has
available and has irrevocably committed in writing to
the Company to utilize for purposes of the offer if
consummated, and to keep available for such purposes
until the offer is consummated or withdrawn, will be
sufficient to pay for the cash portion of the
consideration payable for all shares outstanding on a
fully diluted basis and all related expenses and/or,
as the case may be, (b) with respect to any
securities portion of the offer, the opinion of a
nationally recognized investment bank, ranking in the
top ten United States domestic mergers and
acquisitions advisors for the most recent year,
jointly chosen by the Person and the Independent
Directors, and which investment bank has not provided
services for either the Company or such Person (with
costs for the services of such investment bank to be
paid by such Person), that the value of the
securities offered as consideration in the offer for
each share of Common Stock receiving such securities
is, at the time of the expiration of the offer, equal
to or greater than the cash offered as consideration
in the offer for each share of Common Stock not
receiving securities;
3
4
(2) after the consummation of such offer, such
Person, alone or together with any of its Affiliates
and Associates, owns at least 80% of the then
outstanding shares of Common Stock;
(3) such offer must remain open for at least 120
days; provided, that (x) if there is any increase in
the price of such offer, such offer must remain open
for at least 20 Business Days after the last such
increase, and (y) such offer must remain open for at
least 20 Business Days after the date that any bona
fide alternative offer is made which, in the opinion
of one or more investment banking firms designated by
the Company, provides for consideration per share in
excess of that provided for in such offer; provided
further, however, that such offer need not remain
open, as a result of this clause (3), beyond (i) the
time which any other offer satisfying the criteria
for a Qualifying Offer is then required to be kept
open under this clause (3), or (ii) the announcement
prior to the then scheduled expiration date, of any
other offer with respect to which the Board of
Directors has agreed to redeem the Rights immediately
prior to acceptance for payment of shares thereunder
(unless such offer is terminated prior to its
expiration without any shares having been purchased
thereunder); and
(4) prior to or on the date such offer is commenced
within the meaning of Rule 14d-2(a) of the Rules and
Regulations under the Exchange Act, such Person makes
an irrevocable written commitment to the Company and
in the offer to purchase relating to the offer:
(a) to consummate promptly upon completion
of such offer a transaction whereby all shares of
Common Stock not purchased in such offer will be
acquired at the same price per share paid pursuant to
the offer, and otherwise not to purchase any shares
of Common Stock following completion of the offer;
(b) that such Person or group will not
materially amend such offer, except to increase the
price offered; and
(c) that neither such Person nor any of its
Affiliates or Associates will make any offer for any
equity securities of the Company for six months after
commencement of the original offer if the original
offer does not result in the
4
5
tender of the number of shares required to be
purchased pursuant to clause (2) above, unless
another tender offer for all outstanding shares of
Common Stock is commenced (a) at a price per share in
excess of that provided for in such original offer,
(b) on terms satisfying clauses (1) and (4) of this
Section 11(a)(ii) (in which event, any new offer by
such Person or by any of its Affiliates or Associates
must be at a price no less than that provided in such
original offer) or (c) with the approval of the Board
of Directors of the Company (in which event, any new
offer by such Person or by any of its Affiliates or
Associates must be at a price no less than that
provided for in such approved offer),
an offer meeting the requirements set forth above being
referred to herein as a "Qualifying Offer"; provided, however,
that if such Person shall have become an Interested
Shareholder solely as a result of a reduction in the number of
shares of Common Stock outstanding due to a repurchase of
shares of Common Stock by the Company, then such Person shall
not be deemed an Interested Shareholder and this Section 11(a)
(ii) shall not apply unless and until such Person shall
purchase or otherwise become (as a result of actions taken by
such Person or any of its Affiliates or Associates) the
Beneficial Owner of additional shares of Common Stock
constituting 1% or more of the then outstanding shares of
Common Stock other than pursuant to a Qualifying Offer, then,
promptly following the occurrence of such event, proper
provision shall be made so that each holder of a Right (except
as provided below and in Section 7(e) hereof) shall thereafter
have the right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this
Agreement, in lieu of a number of one two-hundredths of a
share of Preferred Stock, such number of shares of Common
Stock of the Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then number
of one two-hundredths of a share of Preferred Stock for which
a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and (y) dividing that
product (which, following such first occurrence, shall
thereafter be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by 50% of the
Current Market Price (determined pursuant to Section 11(d)
hereof) per share of Common Stock on the date of such first
occurrence (such number of shares, the "Adjustment Shares").
The Independent Directors shall be permitted, by action of a
majority thereof, to shorten any time frame established
pursuant to this Section 11(a)(ii).
5
6
3. AMENDMENT OF SECTION 13(d).
Section 13(d) of the Rights Agreement is amended by deleting
such section in its entirety and substituting in lieu thereof the following:
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described
in subparagraphs (x) and (y) of Section 13(a) hereof if (i) such
transaction is consummated with a person or persons who acquired such
shares of Common Stock pursuant to a Qualifying Offer (or a wholly
owned subsidiary of any such Person or Persons), (ii) the price per
share of Common Stock offered in such transaction is not less than the
price per share of Common Stock paid to all holders of shares of Common
Stock whose shares were purchased pursuant to such Qualifying Offer and
(iii) the form of consideration being offered to the remaining holders
of shares of Common Stock pursuant to such transaction is the same as
the form of consideration paid pursuant to such Qualifying Offer. Upon
consummation of any such transaction contemplated by this Section
13(d), all Rights hereunder shall expire."
4. EFFECTIVENESS.
This Amendment No. 1 shall be deemed effective as of May 28, 1999 as if
executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
5. MISCELLANEOUS.
This Amendment No. 1 shall be deemed to be a contract made under the
laws of the State of New York 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 No. 1 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 term, provision, covenant or
restriction of this Amendment No. 1 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 No. 1 shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
6
7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed as of the date and year first above written.
VENATOR GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President,
General Counsel and Secretary
FIRST CHICAGO TRUST COMPANY OF NEW
YORK, as Rights Agent
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
7
