EXHIBIT 4.1
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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment"), dated as
of April 12, 2005, is between BKF Capital Group, Inc., a Delaware corporation
(the "Company"), and Mellon Investor Services LLC, as rights agent (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of June 8, 2001 (the "Rights Agreement"); and
WHEREAS, pursuant thereto and the provisions of the certificate of
incorporation of the Company, the Company distributed a Right (as defined in the
Rights Agreement) to each holder of Common Shares (as defined in the Rights
Agreement) of the Company; and
WHEREAS, the Company desires to amend the Rights Agreement pursuant to
Section 27 of the Rights Agreement as set forth below.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. AMENDMENT OF SECTION 1(A).
Section 1 of the Rights Agreement is amended by deleting
subsection (a) thereof and replacing it in its entirety with the following:
(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 10% or more of the Common Shares of the Company
then outstanding (other than as a result of a Permitted Offer), but
shall not include (i) the Company, (ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the
terms of any such plan, or (iv) a Director or Officer or any Permitted
Transferee. As used in this Section 1(a), "Director or Officer" shall
mean Xxxxx Management Co., Inc., Xxxx X. Xxxxx & Co., Inc., or any
Person who serves as a director or officer (as such term is defined in
Rule 16a-1(f) of the Exchange Act) of the Company, Xxxxx Management
Co., Inc. or Xxxx X. Xxxxx & Co., Inc. as of the date of this
Agreement; and "Permitted Transferee" shall mean any heirs or legatees
of a Director or Officer, transferees by will, laws of descent or
distribution or by operation of law of any of the foregoing (including
of any such transferees) (including any executor or administrator of
any estate of any of the foregoing), any trust or foundation to which
any of the foregoing has transferred or may transfer securities of the
Company, any trust established for the primary benefit of, or any other
Person the beneficial owners of which consist primarily of, any of the
foregoing; or any Affiliates or Associates of any of the foregoing
(including any trustee, manager or director of any of the foregoing or
any other Person serving any such entity in a similar capacity), or any
other transferees approved of in writing by the Board of Directors of
the Company. 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 of the
Company outstanding, increases the
proportionate number of Common Shares of the Company beneficially owned
by such Person to 10% or more of the Common Shares of the Company then
outstanding, or as the result of the issuance or sale by the Company of
Common Shares directly to such Person; PROVIDED, HOWEVER, that, if a
Person shall become the Beneficial Owner of 10% or more of the Common
Shares of the Company then outstanding by reason of such share
purchases or such direct issuances or sales by the Company and shall,
after such share purchases or such direct issuances or sales by the
Company, become the Beneficial Owner of any additional Common Shares of
the Company, 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. Notwithstanding the
foregoing, no Person shall be an "Acquiring Person" if such Person
shall, as of the close of business on May 29, 2001, be the Beneficial
Owner of 10% or more of the Common Shares of the Company outstanding on
such date; PROVIDED, HOWEVER, that, if such Person shall, after such
date, acquire beneficial ownership of any additional Common Shares of
the Company, then such Person shall be deemed to be an "Acquiring
Person" unless (i) the Board of Directors of the Company determines in
good faith that such additional Common Shares were inadvertently
acquired, and such additional Common Shares are divested as promptly as
practicable, (ii) such acquisition of additional Common Shares is in
connection with a corporate transaction approved by the Board of
Directors of the Company, such as a distribution or dividend to all
holders of Common Shares of the Company, or (iii) such acquisition of
Common Shares in the aggregate does not exceed 1% of the then
outstanding Common Shares of the Company (exclusive of any Common
Shares acquired as permitted by clauses (i) or (ii) of this sentence
but inclusive of any Common Shares previously acquired pursuant to this
clause (iii)).
2. AMENDMENT OF SECTION 1.
Section 1 of the Rights Agreement is amended by adding a new
subsection, subsection (x), at the end thereof, which shall read in its entirety
as follows:
(x) "PERMITTED OFFER" shall mean a tender or exchange offer
(1) that is for all of the outstanding Common Shares of the Company at
the same price, (2) as a result of which the offeror shall have
acquired beneficial ownership of a majority of the outstanding Common
Shares of the Company, and (3) after which the offeror shall provide
for a subsequent offer period in accordance with the Exchange Act and
the rules and regulations promulgated thereunder at the highest price
at which Common Shares of the Company were acquired in such offer.
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3. ADDITION OF SECTION 34.
The Rights Agreement is amended by adding the following new
Section 34 immediately after Section 33:
Section 34. TIDE COMMITTEE REVIEW.
(a) It is understood that the TIDE Committee (as described
below) of the Board of Directors of the Company shall review and
evaluate this Agreement in order to consider whether the maintenance of
this Agreement continues to be in the best interests of the Company,
its stockholders and other relevant constituencies of the Company at
least once every three years, or sooner than that if any Person shall
have made a proposal to the Company or its stockholders, or taken any
other action that, if effective, could cause such Person to become an
Acquiring Person hereunder, if a majority of the members of the TIDE
Committee shall deem such review and evaluation appropriate after
giving due regard to all relevant circumstances. Following each such
review, the TIDE Committee will communicate its conclusions to the full
Board of Directors of the Company, including any recommendation in
light thereof as to whether this Agreement should be modified or the
Rights should be redeemed. The TIDE Committee shall be comprised of
members of the Board of Directors of the Company who are not officers,
employees or Affiliates of the Company and shall be the Nominating and
Corporate Governance Committee of the Company as long as the members of
the Nominating and Corporate Governance Committee meet such
requirements.
(b) The TIDE Committee, and the Board of Directors of the
Company, when considering the redemption of, or any supplement or
amendment to, the Rights, shall have the power to set their own agenda
and to retain at the expense of the Company their choice of legal
counsel, investment bankers and other advisors. The TIDE Committee, and
the Board of Directors of the Company when considering redemption of,
or any supplement or amendment to, the Rights, shall have the authority
to review all information of the Company and to consider any and all
factors they deem relevant to an evaluation of whether to maintain or
modify the Agreement or terminate the Rights.
4. MISCELLANEOUS.
Except as expressly amended hereby, the Rights Agreement shall
continue in full force and effect in accordance with the provisions thereof on
the date hereof. 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. This Amendment may be executed
in any number of counterparts, 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. Terms not defined herein shall, unless the
context otherwise requires, have the meanings assigned to such terms in the
Rights Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date set forth above.
BKF CAPITAL GROUP, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President, General
Counsel and Secretary
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By: /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
