Exhibit 4.1
FIRST AMENDMENT TO THE AMENDED AND RESTATED PREFERRED SHARES RIGHTS
AGREEMENT AND CERTIFICATION OF COMPLIANCE WITH SECTION 27 THEREOF
Pursuant to Section 27 of the Amended and Restated Preferred Shares
Rights Agreement (the "Agreement"), dated as of August 6, 1999, between Quantum
Corporation, a Delaware corporation (the "Company"), and Computershare, Inc. as
rights agent (the "Rights Agent"), successor to Xxxxxx Trust and Savings Bank,
the Company and the Rights Agent hereby amend the Agreement as of October 28,
2002, as provided below:
Section 1. Certain Definitions. Section 1 of the Agreement shall be
amended as follows:
"(a) 'Acquiring Person' shall mean any such Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of (i) 20% or more of the DSSG Common Shares then outstanding
or (ii) 20% or more of the HDDG Common Shares then outstanding, but shall not
include the Company, any Subsidiary of the Company or any employee benefit plan
of the Company or of any Subsidiary of the Company, or any entity holding Common
Shares for or pursuant to the terms of any such plan (provided, however, that
Private Capital Management, Inc. and its Affiliates and Associates shall not be
deemed to be an Acquiring Person until such time as Private Capital Management,
Inc. and its Affiliates and Associates shall be the Beneficial Owner of (i) 25%
or more of the DSSG Common Shares outstanding or (ii) 25% or more of the HDDG
Common Shares then outstanding, or until such time as Private Capital
Management, Inc. and its Affiliates and Associates announce a tender offer to
acquire (i) 25% or more of the DSSG Common Shares outstanding or (ii) 25% or
more of the HDDG Common Shares outstanding (together, the "Limitations")).
Notwithstanding the foregoing, no Person shall be deemed to be an Acquiring
Person as the result of an acquisition of Common Shares by the Company which, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to (i) 20% or more of the DSSG Common
Shares then outstanding or (ii) 20% or more of the HDDG Common Shares then
outstanding (or with respect to Private Capital Management, Inc. and its
Affiliates and Associates, increases such proportionate number of shares to (i)
25% or more of the DSSG Common Shares then outstanding or (ii) 25% or more of
the HDDG Common Shares then outstanding); provided, however, that if a Person
shall become the Beneficial Owner of (i) 20% or more of the DSSG Common Shares
then outstanding or (ii) 20% or more of the HDDG Common Shares then outstanding
(or with respect to Private Capital Management, Inc. and its Affiliates and
Associates, shall become the Beneficial Owner of (i) 25% or more of the DSSG
Common Shares then outstanding or (ii) 25% or more of the HDDG Common Shares
then outstanding) by reason of share purchases by the Company and shall, after
such share purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Shares in
Common Shares or pursuant to a split or subdivision of the outstanding Common
Shares), then such Person shall be deemed to be an Acquiring Person unless upon
becoming the Beneficial Owner of such additional Common Shares of the Company
such Person does not beneficially own (i) 20% or more of the DSSG Common Shares
then outstanding or (ii) 20% or more of the HDDG Common Shares then outstanding
(or with respect to Private Capital Management, Inc. and its Affiliates and
Associates, does not beneficially own (i) 25% or more of the DSSG Common Shares
then outstanding or (ii) 25% or more of the HDDG Common Shares then
outstanding). Notwithstanding the foregoing, (i) if the Company's Board of
Directors determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently
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(including, without limitation, because (A) such Person was unaware that it
beneficially owned a percentage of the Common Shares that would otherwise cause
such Person to be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), or (B) such Person was aware of the extent of
the Common Shares it beneficially owned but had no actual knowledge of the
consequences of such beneficial ownership under this Agreement) and without any
intention of changing or influencing control of the Company, and if such Person
divested or divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph (a), then such Person
shall not be deemed to be or to have become an "Acquiring Person" for any
purposes of this Agreement; and (ii) if, as of the date hereof, any Person is
the Beneficial Owner of (x) 20% or more of the DSSG Common Shares then
outstanding or (y) 20% or more of the HDDG Common Shares then outstanding (or
with respect to Private Capital Management, Inc. and its Affiliates and
Associates, is the Beneficial Owner of (x) 25% or more of the DSSG Common Shares
then outstanding or (y) 25% or more of the HDDG Common Shares then outstanding),
such Person shall not be or become an "Acquiring Person," as defined pursuant to
the foregoing provisions of this paragraph (a), unless and until such time as
such Person shall become the Beneficial Owner of additional Common Shares (other
than pursuant to a dividend or distribution paid or made by the Company on the
outstanding Common Shares in Common Shares or pursuant to a split or subdivision
of the outstanding Common Shares), unless, upon becoming the Beneficial Owner of
such additional Common Shares, such Person is not then the Beneficial Owner of
(i) 20% or more of the DSSG Common Shares then outstanding or (ii) 20% or more
of the HDDG Common Shares then outstanding (or with respect to Private Capital
Management, Inc. and its Affiliates and Associates, is not then the Beneficial
Owner of (i) 25% or more of the DSSG Common Shares then outstanding or (ii) 25%
or more of the HDDG Common Shares then outstanding)."
The undersigned officer of the Company, being an appropriate officer of
the Company and authorized to do so by resolution of the board of the directors
of the Company dated August __, 2002, hereby certifies to the Rights Agent that
this amendment is in compliance with the terms of Section 27 of the Agreement.
QUANTUM CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
Acknowledged and Agreed:
Computershare, Inc.,
as Rights Agent
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Director, Client Services
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