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EXHIBIT 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 to Rights Agreement, dated as of January ___, 2001
(this "Amendment"), is by and between Dynamex Inc., a Delaware corporation (the
"Company"), and ComputerShare Investor Services, LLC (formerly Xxxxxx Trust and
Savings Bank) (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have entered into a Rights
Agreement (the "Rights Agreement"), dated as of July 5, 1996 (capitalized terms
not otherwise defined herein shall have the respective meanings set forth in the
Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement and,
pursuant to Section 27 of the Rights Agreement, hereby directs the Rights Agent
to join in this Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
1. Section 1(a) of the Rights Agreement shall be amended hereinafter to
read as follows:
(a) "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 shares of Common Stock of
the Company then outstanding, but shall not include (i) the Company,
(ii) any Subsidiary of the Company and (iii) any employee benefit plan
of the Company or of any Subsidiary of the Company or any entity
holding such shares of Common Stock for or pursuant to the terms of any
such plan. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition by the Company of
its shares of Common Stock which, by reason of reducing the number of
such shares of Common Stock outstanding, increases the number of shares
of Common Stock Beneficially Owned by such Person to 15% or more of
such shares of Common Stock then outstanding; provided, however, that
if any Person, other than a Person excepted in the first sentence of
this definition, shall become the Beneficial Owner of 15% or more of
such outstanding shares of Common Stock by reason of any purchase by
the Company of its shares of Common Stock and shall, after such
purchase, become the Beneficial Owner of any additional such shares of
Common Stock, then such Person shall be deemed to be an "Acquiring
Person".
2. Section 3(c) of the Rights Agreement shall be amended hereinafter to
read as follows:
"(c) Certificates for shares of Common Stock of the Company
which become outstanding (including, without limitation, shares of
Common Stock referred to in the last sentence of this subsection (c)
which shall be subsequently reissued) after the Record Date and prior
to the earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date shall also be deemed to constitute certificates
for the Rights, but shall
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have impressed, printed or written thereon, or otherwise affixed
thereto, a legend in substantially the following form:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the Rights
Agreement, dated as of July 5, 1996 and as amended to date
(the "Rights Agreement"), between Dynamex Inc. and
ComputerShare Investor Services, LLC, the terms of which are
incorporated herein by reference and a copy of which is on
file at the principal executive office of Dynamex Inc. Under
certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Dynamex Inc.
will mail to the holder of this certificate a copy of the
Rights Agreement without charge after receipt of a written
request therefor. Under certain circumstances described in the
Rights Agreement, Rights issued to or held by any Person who
is, was or becomes an Acquiring Person or an Affiliate or
Associate thereof (as such terms are defined in the Rights
Agreement), whether currently held by or on behalf of such
Person or any subsequent holder, may become null and void.
Certificates containing the foregoing legend, until the Distribution
Date or the earlier of the Redemption Date and the Final Expiration
Date, shall also be deemed to constitute certificates for the Rights
associated with the shares of Common Stock represented by such
certificates, and the surrender for transfer of any such certificate
shall also constitute the transfer of the Rights associated with the
shares of Common Stock represented thereby. In the event that the
Company shall purchase or acquire any of its shares of Common Stock
after the Record Date but prior to the Distribution Date, any Rights
associated with such shares of Common Stock shall be deemed cancelled
and retired so that the Company shall not be entitled to exercise any
Rights associated with shares of Common Stock which are no longer
outstanding."
3. Section 21 of the Rights Agreement shall be amended hereinafter to
read as follows:
"SECTION 21. CHANGE OF THE RIGHTS AGENT. The Rights Agent or
any successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 30 days' prior notice mailed to the Company.
The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' prior notice mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the
Common Stock and Preferred Stock by registered or certified mail,
postage prepaid, and to each registered holder of the Rights
Certificates by first-class mail, postage prepaid. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor Rights Agent. If the
Company shall fail to make such appointment within 30 days after giving
notice of such removal or after receiving notice of such resignation or
incapacity either from the resigning or incapacitated Rights
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Agent or from the registered holder of a Rights Certificate (who shall,
with such notice, submit his Rights Certificate for inspection by the
Company), then the Rights Agent or the registered holder of any Rights
Certificate may apply to any court of competent jurisdiction for the
appointment of a successor Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be (a) a
corporation or trust company (or similar form of entity under the laws
of any state of the United States or a foreign jurisdiction) authorized
to conduct business under the laws of the United States or any state of
the United States, which is authorized under such laws to exercise
corporate trust, fiduciary or stockholder services powers and is
subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $10,000,000 or (b) an Affiliate
controlled by a corporation described in clause (a) of this sentence.
After its appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock
and Preferred Stock, and mail notice thereof to the registered holders
of the Rights Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent
or the appointment of any successor Rights Agent."
4. Except as provided above, the Rights Agreement shall continue
unmodified and in full force and effect.
5. 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 contracts to be made and
performed entirely within such State.
6. This Amendment may be executed in any number of counterparts, each
of which shall for all purposes be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
[signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and their respective corporate seals to be affixed and attested,
all as of the day and year first above written.
DYNAMEX INC.
By: /s/ Xxxxxxx X. XxXxxxxxxx
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(Corporate Seal) Name: Xxxxxxx X. XxXxxxxxxx
President
Attest:
By: /s/ Xxxxxxx X. XxxXxxxxx
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Name: Xxxxxxx X. XxxXxxxxx
Title: VP-Finance and Asst. Secretary
COMPUTERSHARE INVESTOR SERVICES, LLC
AS RIGHTS AGENT
By: /s/ Xxxxxxx X. Xxx
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(Corporate Seal) Name: Xxxxxxx X. Xxx
Relationship Manager
Attest:
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
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