AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 1
THIS AMENDMENT No. 1, dated as of November 15, 2006 (this “Amendment”) amends certain
provisions of the Rights Agreement, dated as August 30, 2005 (the “Rights Agreement”),
between Pac-West Telecomm, Inc., a California corporation (the “Corporation”), and Wachovia
Bank, National Association as rights agent (the “Rights Agent”). Except as otherwise
expressly provided herein, capitalized terms used but not defined herein shall have the meanings
set forth in the Rights Agreement.
WHEREAS, the Corporation and Pac-West Acquisition Company, LLC, a Washington limited liability
company (“Pac-West Acquisition Company”), have proposed to enter into a Preferred Stock
Purchase Agreement to be dated as of the date hereof (the “Stock Purchase Agreement”)
pursuant to which Pac-West Acquisition Company is expected to purchase (a) 48,158 shares of newly
designated Series B-1 Preferred Stock, par value $0.001 per share (the “Series B-1 Preferred
Stock”) for per share consideration of $1.137505, and (b) 830,959 shares of newly designated
Series B-2 Preferred Stock, par value $0.001 per share (the “Series B-2 Preferred Stock”)
for per share consideration of $1.137505, in each case, with such rights, qualifications,
limitations and restrictions as are set forth in the Certificate of Designation in the form set
forth as Exhibit A hereto (the “Certificate of Designation”)
WHEREAS, the Corporation desires to amend the Rights Agreement to render the Rights
inapplicable to transactions contemplated by the Stock Purchase Agreement and the associated
Transaction Agreements (as defined in the Stock Purchase Agreement);
WHEREAS, the Corporation deems this Amendment to be necessary and desirable and in the best
interests of the holders of the Rights and has duly approved this Amendment; and
WHEREAS, Section 28 of the Rights Agreement permits the Corporation and the Rights Agent at
any time prior to the time any Person becomes an Acquiring Person to amend the Rights Agreement in
the manner provided therein.
NOW, THEREFORE, the Corporation and the Rights Agent agree as follows:
SECTION 1. Amendments to the Rights Agreement. The Rights Agreement is hereby amended
as follows:
(a) SECTION 1. “Definitions,” of the Rights Agreement is hereby amended by adding the
following subsections at the end of such Section 1:
(jj) “Exempted Transaction” shall have the meaning set forth in Section 1(a).
(kk) “Pac-West Acquisition Company” shall means Pac-West Acquisition
Company, LLC, a Washington limited liability company.
(ll) “Stock Purchase Agreement” shall mean the Preferred Stock Purchase Agreement
dated as of November 15, 2006 by and among the Corporation and Pac-West Acquisition Company.
(mm) “Transaction Agreements” shall have the meaning ascribed to such term in the
Stock Purchase Agreement.
(b) SECTION 1(a). Shall be amended by inserting the following at the end of such Section
1(a):
“Notwithstanding anything in this Section 1(a) or the Rights Agreement to
the contrary, neither Pac-West Acquisition Company nor any of its Affiliates
shall be, or shall be deemed to be, an Acquiring Person, either individually
or collectively, solely by virtue of (A) the execution and delivery of the
Stock Purchase Agreement; (B) the execution and delivery of the Transaction
Agreements; (C) the consummation of the transactions contemplated by the
Stock Purchase Agreement; or (D) the consummation of the transactions
contemplated by the Transactions Agreements. Each event described in
clauses (A), (B), (C) and (D) above is referred to herein as an
‘Exempted Transaction’.”
(c) SECTION 1(e). Shall be amended by inserting the following at the end of such Section
1(e):
“Notwithstanding anything in this Section 1(e) to the contrary, neither
Pac-West Acquisition Company nor any of its Affiliates, whether individually
or collectively, shall be deemed to be a ‘Beneficial Owner’ of, to have
‘Beneficial Ownership’ of, or to ‘beneficially own,’ any securities solely
by virtue of or as a result of any Exempted Transaction.”
(d) SECTION 1(dd). Shall be amended by inserting the following at the end of such Section
1(dd):
“Notwithstanding anything in this Section 1(dd) to the contrary, a Shares
Acquisition Date shall not be deemed to have occurred by virtue of or as a
result of any Exempted Transaction or the public announcement thereof.”
(e) SECTION 3(a). Shall be amended by inserting the following at the end of such Section
3(a):
“Notwithstanding anything in this Section 3(a) to the contrary, a
Distribution Date shall not be deemed to have occurred by virtue of or as a
result of any Exempted Transaction.”
SECTION 2. Full Force and Effect. Except as expressly amended hereby, all of the
provisions of the Rights Agreement are hereby ratified and confirmed to be in full force and
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effect
in accordance with the provisions thereof on the date hereof.
SECTION 3. Governing Law. This Amendment shall be deemed to be a contract made under
the laws of the State of California 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.
SECTION 4. Counterparts. This Amendment may be executed in any number of
counterparts, all of which shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the Corporation and the Rights Agent have caused this Amendment to be duly
executed as of the day and year first above written.
| Attest: | PAC-WEST TELECOMM, INC. | |||||||
By:
|
/s/ Xxxxxx X. Xxxxxxxx | By: | /s/ Xxxxx X. Xxxxxxxxx | |||||
Name:
|
Xxxxxx X. Xxxxxxxx | Name: | Xxxxx X. Xxxxxxxxx | |||||
Title:
|
Secretary | Title: | President and Chief Executive Officer | |||||
| AMERICAN STOCK TRANSFER AND TRUST COMPANY | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Name: | Xxxxxxx X. Xxxxxx | |||||||
| Title: | Vice President | |||||||
[Signature Page to Amendment No. 1 to Rights Agreement]
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