AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit
4.1
Execution Version
AMENDMENT NO. 2
TO RIGHTS AGREEMENT
TO RIGHTS AGREEMENT
This Amendment No. 2, dated as of April 3, 2011 (this “Amendment”) to the Rights
Agreement, dated November 8, 2001, as amended (the “Rights Agreement”), is made by and
between XxXxxxx, Inc., a Delaware corporation (the “Company”), and Registrar and Transfer
Company, as rights agent (the “Rights Agent”). Capitalized terms not otherwise defined
herein shall have the meaning given to such terms in the Rights Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may from time to time
supplement or amend the Rights Agreement in accordance with such Section 27; and
WHEREAS, the Board of Directors of the Company has approved, and the Company intends to
execute, the Agreement and Plan of Merger (the “Merger Agreement”) dated April 3, 2011, by
and among the Company, Xxxxxxxx Incorporated, a corporation organized under the laws of Delaware
(“Parent”), and DLBMS, Inc., a Delaware corporation and a direct, wholly-owned subsidiary
of Parent (“Merger Subsidiary”); and
WHEREAS, the Company has determined that in furtherance of the transactions contemplated by
the Merger Agreement, it is desirable to amend the Rights Agreement as provided herein.
NOW, THEREFORE, in consideration of these premises and the mutual agreements contained herein,
and intending to be legally bound, the Company and the Rights Agent hereby agree as follows:
1. Amendments. The Rights Agreement is hereby amended as follows:
A. The definition of “Acquiring Person” set forth in Section 1(a) of the Rights Agreement is
amended by inserting the following sentence at the end of such definition:
“Notwithstanding anything in this Rights Agreement to the contrary, (i) none of Ducommun
Incorporated, a corporation organized under the laws of Delaware (“Parent”), DLBMS, Inc., a
corporation organized under the laws of Delaware (“Merger Subsidiary”), or any of their
respective Affiliates or Associates (collectively, the “Exempted Persons”), either
individually, collectively, or in any combination, shall be deemed to be an “Acquiring Person” by
virtue of or as a result of (A) the Merger, (B) the announcement, approval, adoption, execution,
delivery or performance of the Merger Agreement by the Exempted Persons, or (C) consummation of any
other transaction specifically contemplated by the Merger Agreement (the events in clauses (A), (B)
or (C), collectively, the “Exempted Transactions”).”
B. The definition of “Expiration Date” set forth in Section 1(o) of the Rights Agreement is
replaced in its entirety with the following:
“Expiration Date” shall mean the earlier of the Close of Business on November 7, 2011 or the
Effective Time (as defined in the Merger Agreement).”
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C. The definition of “Stock Acquisition Date” set forth in Section 1(aa) of the Rights
Agreement is amended by inserting the following sentence at the end of such definition:
“Notwithstanding anything in this Rights Agreement to the contrary, a “Stock Acquisition Date”
shall not be deemed to occur by reason of any of the Exempted Transactions.”
D. Section 1 of the Rights Agreement is amended by inserting the following subsections into
Section 1:
“(dd) “Merger” shall have the meaning set forth in the Merger Agreement.”
“(ee) “Merger Agreement” shall mean the Agreement and Plan of Merger dated April 3, 2011, by and
among the Company, Ducommun Incorporated, a corporation organized under the laws of Delaware
(“Parent”), and DLBMS, Inc., a corporation organized under the laws of Delaware
(“Merger Subsidiary”).”
E. Section 3(a) of the Rights Agreement is amended by inserting the following sentence at the
end of that Section:
“Notwithstanding anything in this Rights Agreement to the contrary, a “Distribution Date” shall not
be deemed to occur by reason of any of the Exempted Transactions.”
F. Section 7(a) of the Rights Agreement is amended by inserting the following sentence to the
end of that Section:
“Notwithstanding anything in this Rights Agreement to the contrary, the Rights may not be
exercised, and the holder of any Right Certificate may not exercise the Rights evidenced thereby,
in whole or in part, at any time with respect to any of the Exempted Transactions.”
G. Section 11(a) of the Rights Agreement is amended by inserting the following sentence to the
end of that Section:
“Notwithstanding anything in this Rights Agreement to the contrary, the Exempted Transactions shall
not constitute any event described in clause (a)(i) of this Section 11(a).”
H. Section 13 of the Rights Agreement is amended by inserting the following sentence to the
end of that Section:
“Notwithstanding anything in this Rights Agreement to the contrary, the Exempted Transactions shall
not constitute any event described in this Section 13.”
2. Interpretation. Except as otherwise expressly provided herein, or unless the context
otherwise requires, all terms used herein have the meanings assigned to them in the Rights
Agreement.
3. Severability. If any term, provision, covenant or restriction of this Amendment is held by
a court of competent jurisdiction or other authority to be invalid, void or unenforceable,
Execution Version
the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain
in full force and effect and shall in no way be affected, impaired or invalidated. It is the intent
of the parties hereto to enforce the remainder of the terms, provisions, covenants and restrictions
of the Rights Agreement, as amended by this Amendment, to the maximum extent permitted by law.
4. Waiver. The Rights Agent and the Company hereby waive any notice requirement under the
Rights Agreement pertaining to the matters covered by this Amendment.
5. Certification. In accordance with Section 27 of the Rights Agreement the undersigned
authorized officer of the Company certifies that this Amendment is in compliance with the terms of
said Section 27 and does not increase the Rights Agent’s duties, liabilities or obligations
thereunder.
6. Counterparts. This Amendment may be executed in any number of counterparts, and each such
counterpart shall for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile or electronic means shall be as effective as delivery
of a manually executed counterpart of this Amendment.
7. Governing Law. 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 in accordance with the
laws of such State applicable to the contracts to be made and performed entirely within such State.
8. Effectiveness. This Amendment shall be deemed effective immediately prior to the execution
and delivery of the Merger Agreement on and as of the date first written above, as if executed on
such date. Except as amended hereby, the Rights Agreement shall remain in full force and effect
and shall be otherwise unaffected hereby.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
attested as of the day and year first written above.
| XXXXXXX, INC. | ||||
By: |
/s/ Xxxxx X. XxXxxxx | |||
| Name: Xxxxx X. XxXxxxx | ||||
| Title: President and Chief Executive Officer | ||||
| REGISTRAR AND TRANSFER COMPANY | ||||
By: |
/s/ Xxxxxx Xxxxxxxxxx | |||
Name: |
Xxxxxx Xxxxxxxxxx | |||
Title: |
Vice President Stock Transfer Operations | |||
