AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 2
TO
This AMENDMENT NO. 2 (this “Amendment”) is entered into as of November 22, 2015 between Xxxxxx Investment Management Corp., a Maryland corporation (the “Company”), and Computershare Trust Company, N.A., a federally chartered trust company, as Rights Agent (the “Rights Agent”), and amends and modifies that certain Rights Agreement (as defined below). All capitalized terms used in this Amendment and not otherwise defined herein shall have the meaning given them in the Rights Agreement.
WHEREAS, the Company and the Rights Agent entered into the Rights Agreement dated as of June 29, 2015, as amended by Amendment No. 1, dated as of November 16, 2015, between the Company and the Rights Agent (as amended, the “Rights Agreement”), providing for, among other things, a dividend of one preferred share purchase right (a “Right”) for each share of Common Stock outstanding as of the close of business on July 9, 2015;
WHEREAS, the Rights Agreement provides that if any person or group becomes an Acquiring Person, then each Right (other than the Rights held by the Acquiring Person and certain affiliated persons) would become exercisable and could, among other things, entitle the holders of Rights to purchase securities or assets of the Company (or, in certain cases, securities of certain other entities), upon the terms and subject to the conditions set forth in the Rights Agreement;
WHEREAS, the Board of Directors of the Company has determined that it is in the best interest of the Company and its stockholders to allow Xxxxx Street Capital Management, LLC and its Affiliates and Associates (“Xxxxx Street”) to purchase certain additional shares of the Common Stock of the Company without Xxxxx Street being deemed an Acquiring Person, which could result in the Rights becoming exercisable;
WHEREAS, Section 27 of the Rights Agreement permits the Company, from time to time, to supplement or amend the Rights Agreement without the approval of any holders of Rights;
WHEREAS, the Board of Directors of the Company adopted a resolution approving the execution of this Amendment and, pursuant to Section 27 of the Rights Agreement, hereby amends the Rights Agreement as set forth herein; and
WHEREAS, all acts and things necessary to make this Amendment a valid agreement, enforceable according to its terms, have been done and performed, and the execution and delivery of this Amendment by the Company and the Rights Agent have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the rights and obligations contained herein, and for other good and valuable consideration, the adequacy of which is hereby acknowledged, the parties agree as follows:
Section 1. Amendment of the definition of “Exempted Entity”. The definition of “Exempted Entity” in Section 1(j) of the Rights Agreement is hereby amended by deleting such definition in its entirety and replacing it with the following:
““Exempted Entity” shall mean (1) the Company, (2) any Subsidiary (as defined below) of the Company (in the case of subclauses (1) and (2) including, without limitation, in its fiduciary capacity), (3) any employee benefit plan of the Company or of any Subsidiary of the Company, (4) any entity or trustee holding Common Stock for or pursuant to the terms of any such plan or for the purpose of funding any such plan or funding other employee benefits for employees of the Company or of any Subsidiary of the Company, (5) Birch Run Capital Advisors, LP and its Affiliates and Associates (“Birch Run”); provided, however, that Birch Run shall cease to be an Exempted Entity upon Birch Run becoming the Beneficial Owner of shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding (it being understood that Birch Run shall not be deemed to be an “Acquiring Person” in accordance with clause (y) of the definition thereof 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 Birch Run such that Birch Run beneficially owns shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding; provided, however, that if Birch Run shall become the Beneficial Owner of shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding by reason of such share acquisitions by the Company and thereafter becomes 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 Birch Run shall cease to be an Exempted Entity and shall be deemed to be an “Acquiring Person,” subject to the proviso set forth in the first sentence of Section 1(a), unless upon the consummation of the acquisition of such additional shares of Common Stock Birch Run does not beneficially own shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding), or (6) Xxxxx Street Capital Management, LLC and its Affiliates and Associates (“Xxxxx Street”); provided, however, that Xxxxx Street shall cease to be an Exempted Entity upon Xxxxx Street becoming the Beneficial Owner of shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding (it being understood that Xxxxx Street shall not be deemed to be an “Acquiring Person” in accordance with clause (y) of the definition thereof 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 Xxxxx Street such that Xxxxx Street beneficially owns shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding; provided, however, that if Xxxxx Street shall become the Beneficial Owner of shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding by reason of such share acquisitions by the
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Company and thereafter becomes 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 Xxxxx Street shall cease to be an Exempted Entity and shall be deemed to be an “Acquiring Person,” subject to the proviso set forth in the first sentence of Section 1(a), unless upon the consummation of the acquisition of such additional shares of Common Stock Xxxxx Street does not beneficially own shares of Common Stock having 25% or more of the total voting power of all shares of Common Stock then outstanding).”
Section 2. Amendment of the definition of “Acting in Concert”. The definition of “Acting in Concert” in Section 1(b) of the Rights Agreement is hereby amended by adding the following sentence at the end of such definition:
“Notwithstanding the foregoing, and for the avoidance of doubt, Xxxxx Street Capital Management, LLC and its Associates and Affiliates and Birch Run Capital Advisors, LP and its Associates and Affiliates shall not be deemed to be Acting in Concert solely by virtue of the execution, and compliance with the terms, of (A) that certain letter agreement, dated as of November 16, 2015, among Birch Run Capital Advisors, LP, Xxxxxx Xxxxxxxx and the Company and (B) the Investor Agreement, dated as of November 22, 2015, among the Company, Xxxxx Xxxxxxxx, Xxxxx Street Capital Management, LLC and certain other parties thereto.”
Section 3. Entire Agreement. This Amendment constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, between the parties hereto with respect to the subject matter hereof. Except as amended by this Amendment, the Rights Agreement shall continue in full force and effect.
Section 4. Severability. If any term or other provision of this Amendment is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Amendment is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Amendment so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated by this Amendment are consummated as originally contemplated to the greatest extent possible.
Section 5. Counterparts. This Amendment may be executed in any number of counterparts and 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. A signature to this Amendment executed and/or transmitted electronically shall have the same authority, effect and enforceability as an original signature.
Section 6. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of Maryland 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
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performed entirely within such State, provided, however, that all provisions regarding the rights, duties, liabilities and obligations of the Rights Agent shall be governed by and construed in accordance with the laws of the state of New York applicable to contracts made and to be performed entirely within such state, without regard to the principles or rules concerning conflicts of laws which might otherwise require application of the substantive laws of another jurisdiction.
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.
| XXXXXX INVESTMENT MANAGEMENT CORP. | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Vice Chairman and Chief Executive Officer | |||
| COMPUTERSHARE TRUST COMPANY, N.A. | ||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Rights Agreement Amendment]
