EXHIBIT 4.1
FREESCALE SEMICONDUCTOR, INC.
0000 Xxxxxxx Xxxxxx Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
September 23, 2005
Mellon Investor Services LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Client Relationship Executive
Mellon Investor Services LLC
Newport Office Centre VII
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Legal Department
Re: First Amendment to Rights Agreement
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Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement, dated as of
July 7, 2004 (the "Rights Agreement"), between Freescale Semiconductor, Inc., a
Delaware corporation (the "Company"), and Mellon Investor Services LLC, as
rights agent (the "Rights Agent"), the Company, by resolution adopted by its
Board of Directors, hereby amends the Rights Agreement as follows (this
"Amendment"):
1. The second paragraph of the preamble to the Rights
Agreement is hereby amended and restated in its entirety as follows:
"The Board of Directors of the Company has authorized and
declared a dividend of one preferred share purchase right (a "Class A
Right") for each Class A Common Share (as hereinafter defined) of the
Company outstanding on July 20, 2004 (the "Record Date") and a dividend
of one preferred share purchase right (a "Class B Right") for each
Class B Common Share (as hereinafter defined) of the Company
outstanding on the Record Date (the Class A Rights and Class B Rights
together, the "Rights"), each Right representing the right to purchase
one one-hundredth of a Preferred Share (as hereinafter defined), upon
the terms and subject to the conditions herein set forth, and has
further authorized and directed the issuance of one Class A Right with
respect to each Class A Common Share and one Class B Right with respect
to each Class B Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption
Date and the Final Expiration Date (as such terms are hereinafter
defined)."
2. Paragraph (a) of Section 1 of the Rights Agreement is
hereby amended and restated in its entirety 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 (i) 15% or more of the Class B Common Shares then
outstanding or (ii) any combination of Class A Common Shares and Class
B Common Shares representing 15% or more of the Common Shares then
outstanding, but shall not include (A) the Company, (B) any Subsidiary
of the Company, (C) any employee benefit plan of the Company or any
Subsidiary of the Company, or (D) any entity holding Common Shares 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 of Common Shares by the Company which, by reducing
the number of Common Shares outstanding, increases the proportionate
number of Common Shares beneficially owned by such Person to (i) 15% or
more of the Class B Common Shares then outstanding or (ii) any
combination of Class A Common Shares and Class B Common Shares
representing 15% or more of the Common Shares then outstanding;
provided, however, that, if a Person shall become the Beneficial Owner
of (i) 15% or more of the Class B Common Shares then outstanding or
(ii) any combination of Class A Common Shares and Class B Common Shares
representing 15% or more of the 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, other than as a result of a stock dividend, stock split
or similar transaction effected by the Company in which all holders of
Common Shares are treated equally, then such Person shall be deemed to
be an `Acquiring Person.' Notwithstanding the foregoing, if the Board
of Directors of the Company 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, and such Person 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 an `Acquiring Person' for any purposes of this Agreement."
3. Paragraph (a) of Section 3 of the Rights Agreement is
hereby amended and restated in its entirety as follows:
"Section 3. Issue of Right Certificates. (a) Until the earlier of (i)
the tenth day after the Shares Acquisition Date or (ii) the tenth
Business Day (or such later date as may be determined by action of the
Board of Directors of the Company prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement by any
Person (other than the Company, any Subsidiary of the Company, 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) of a tender or exchange offer the consummation
of which would result in any Person becoming the Beneficial Owner of
(A) 15% or more of the then outstanding Class B Common Shares or (B)
any combination of Class A Common Shares and Class B Common Shares
representing 15% or more of the then outstanding Common Shares
(including any such date which is after the date of this Agreement and
prior to the issuance of the Rights; the earlier of such dates being
herein referred to as the `Distribution Date'), (x) the Rights will be
evidenced (subject to the provisions of Section 3(b) hereof) by the
certificates for Common Shares of the Company registered in the names
of the holders thereof (which certificates shall also be deemed to be
Right Certificates) and not by separate Right Certificates, and (y) the
right to receive Right Certificates will be transferable only in
connection with the transfer of Common Shares of the Company. As soon
as practicable after the Rights Agent receives written notice of a
Distribution Date, the Company will prepare and execute, the Rights
Agent will countersign, and the Company will send or cause to be sent
(and the Rights Agent will, if so requested in writing, and provided
with all reasonably necessary information, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Shares
as of the Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Class A Right
Certificate, in substantially the form of Annex B hereto (a `Class A
Right Certificate'), evidencing one Class A Right for each Class A
Common Share so held, and a Class B Right Certificate, in substantially
the form of Annex C hereto (a `Class B Right Certificate,' together
with the Class A Right Certificate, the `Right Certificates'),
evidencing one Class B Right for each Class B Common Share so held. As
of the Distribution Date, the Rights will be evidenced solely by such
Right Certificates. The Company shall notify the Rights Agent in
writing upon the occurrence of the Distribution Date."
4. Section 26 of the Rights Agreement is hereby amended and
restated in its entirety as follows, and the Company and the Rights Agent hereby
agree that the addresses set forth in this Section 4 shall constitute the proper
addresses for notice relating to this Amendment:
"Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of
any Right Certificate to or on the Company shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) or by
facsimile transmission as follows:
Freescale Semiconductor, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: Law Department - Corporate Secretary
Facsimile No.: (000) 000-0000
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by
the holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the
Company) or by facsimile transmission as follows:
Mellon Investor Services LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Client Relationship Executive
with a copy to:
Mellon Investor Services LLC
Newport Office Centre VII
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Legal Department
Notices or demands authorized by this Agreement to be given or made by
the Company or the Rights Agent to the holder of any Right Certificate
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such holder
as shown on the registry of the Company."
5. Section 27 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"Section 27. Supplements and Amendments. The Company may from time to
time supplement or amend this Agreement without the approval of any
holders of Right Certificates subject to the other terms and conditions
of this Agreement in order to cure any ambiguity, to correct or
supplement any provision contained herein, which may be defective or
inconsistent with any other provisions herein, to shorten or lengthen
any time period hereunder or to make any other provisions with respect
to the Rights which the Company may deem necessary or desirable, any
such supplement or amendment to be evidenced by a writing signed by the
Company and the Rights Agent; provided, however, that, from and after
such time as any Person becomes an Acquiring Person, this Agreement
shall not be amended in any manner which would adversely affect the
interests of the holders of Rights. Without limiting the foregoing, the
Company may at any time prior to such time as any Person becomes an
Acquiring Person amend this Agreement (A) to make the provisions of
this Agreement inapplicable to a particular transaction by which a
Person would otherwise become an Acquiring Person or to otherwise alter
the terms and conditions of this Agreement as they may apply with
respect to any such transaction, and; (B) to lower the thresholds set
forth in Section 1(a) and 3(a) hereof to not less than (i) 10% or more
of the Class B Common Shares then outstanding or (ii) any combination
of Class A Common Shares and Class B Common Shares representing 10% or
more of the Common Shares then outstanding (the "Reduced Threshold");
provided, however, that no Person who beneficially owns a number of
Class B Common Shares or a combination of Class A and Class B Common
Shares equal to or greater than the Reduced Threshold shall become an
Acquiring Person because of such amendment unless such Person shall,
after the public announcement of the Reduced Threshold (with written
notice to the Rights Agent of such public announcement), increase its
beneficial ownership of the then outstanding Class B Common Shares or
combination of Class A and Class B Common Shares (other than as a
result of an acquisition of Common Shares by the Company or as a result
of a stock dividend, stock split or similar transaction effected by the
Company in which all holders of Common Shares are treated equally) to
an amount equal to or greater than the greater of (x) the Reduced
Threshold or (y) the sum of (i) the lowest beneficial ownership of such
Person as a percentage of the outstanding Class B Common Shares as of
any date on or after the date of the public announcement of such
Reduced Threshold, plus .001%, or (ii) the lowest beneficial ownership
of such Person as a percentage of a combination of the outstanding
Class A and Class B Common Shares as of any date on or after the date
of the public announcement of such Reduced Threshold, plus .001%. Upon
delivery of a certificate from an appropriate officer of the Company
and, if requested by the Rights Agent, an opinion of counsel, that
states that the proposed supplement or amendment is in compliance with
the terms of this Section 27, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in this
Agreement to the contrary, the Rights Agent may, but shall not be
obligated to, enter into any supplement or amendment that affects the
Rights Agent's own rights, duties, obligations or immunities under this
Agreement. Prior to the Distribution Date, the interests of the holders
of the Rights shall be deemed coincident with the interests of the
holders of the Common Stock."
6. Capitalized terms used without other definition in this
Amendment shall be used as defined in the Rights Agreement.
7. 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.
8. 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.
9. This Amendment shall be effective as of the date first
written above, and all references to the Rights Agreement shall from and after
such time be deemed to be references to the Rights Agreement as amended hereby.
[Signatures Appear on Following Page]
Very truly yours,
FREESCALE SEMICONDUCTOR, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President,
Secretary and General Counsel
Accepted and agreed to as of the
effective time specified above:
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
