EXHIBIT 4.1
XXXXXXX-XXXXXXX COMPANY
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the "Amendment") is made as
of December 10, 1998 between XXXXXXX-XXXXXXX COMPANY, a California corporation
(the "Company"), and CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New Jersey
limited liability company (the "Rights Agent").
B A C K G R O U N D
The Company and the Rights Agent entered into a Rights Agreement as of
September 30, 1996 (the "Rights Agreement"). They now wish to amend the Rights
Agreement as set forth below. This Amendment has been approved by the Board and
each of its members. All terms not defined in this Amendment that begin with
initial capital letters have the meanings assigned to them in the Rights
Agreement.
ACCORDINGLY, THE COMPANY AND THE RIGHTS AGENT HEREBY AGREE AS FOLLOWS:
1. Each and every "15%" that appears in Sections 1(a) and 1(j) of the
Rights Agreement is hereby replaced with "10%". However if, when the Board
approved this Amendment, any Person had already become the Beneficial Owner of
10% or more (but not 15% or more) of the outstanding shares of Common Stock,
then that Person shall not be treated as an Acquiring Person so long as that
Person does not become the Beneficial Owner of at least that percentage of the
outstanding Common Stock that equals the sum of the percentage of such stock
that Person Beneficially Owned at the close of business on the day the Board
adopted this Amendment plus one percent of the outstanding Common Stock.
2. A new sentence is hereby added to the end of Section 1(a) of the
Rights Agreement that reads as follows: "Notwithstanding the foregoing, if,
within five Business Days after a Person would otherwise have become an
Acquiring Person but for this sentence, that Person notifies the Board that such
Person did so inadvertently and, within two Business Days after such
notification, that Person is the Beneficial Owner of less than 10% of the
outstanding Common Stock, that Person shall not be deemed to have become an
Acquiring Person."
3. The definition of "Continuing Director" as set forth in Section 1(i)
of the Rights Agreement is hereby deleted. All references in the Rights
Agreement to "Continuing Directors" shall be considered references to the Board.
All requirements in the Rights Agreement that certain decisions be made by the
Board and a majority of the Continuing Directors shall be requirements that
those conditions be made by the Board alone.
4. Section 2 of the Rights Agreement is hereby modified and amended by
deleting from the first sentence thereof the following clause: "and the holders
of the Rights (who, in accordance with Section 3 hereof, shall before the
Distribution Date also be the holders of the Common Stock."
5. A new sentence is hereby added to the end of the first paragraph of
Section 18 of the Rights Agreement that reads as follows: "Anything to the
contrary notwithstanding, in no event shall the Rights Agent be liable for
special, indirect, punitive, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Rights
Agent has been advised of the likelihood of such loss or damage."
6. Except as specifically modified by this Amendment, the Rights
Agreement shall remain in full force and effect in all respects.
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IN WITNESS WHEREOF, the Company and the Rights Agent have signed and
delivered this Amendment as of the date that appears in its first paragraph.
XXXXXXX-XXXXXXX COMPANY
By: /s/ W. Xxxxx Xxxxxxx, Jr.
-------------------------
W. Xxxxx Xxxxxxx Jr.,
President and Chief
Executive Officer
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Xxxxxx X. Xxxxxxx
Assistant Vice President
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