AMENDMENT NO. 1 TO STOCKHOLDER RIGHTS AGREEMENT
Exhibit 4.2
AMENDMENT NO. 1 TO
STOCKHOLDER RIGHTS AGREEMENT
STOCKHOLDER RIGHTS AGREEMENT
This Amendment No. 1 (the “Amendment”) is dated as of May 4, 2011 and amends that certain
Stockholder Rights Agreement (the “Rights Agreement”), dated as of August 14, 2009, between Xxxxxx
International Inc., an Ohio corporation (the “Company”) and American Stock Transfer & Trust
Company, LLC, a New York limited liability trust company, as Rights Agent (the “Rights Agent”).
WHEREAS, the Company intends to enter into an Agreement and Plan of Merger (as it may be
amended or supplemented from time to time) (the “Merger Agreement”), by and among the Company, INC
Research, LLC, a Delaware limited liability company (the “Parent”) and Triangle Two Acquisition Corp., an Ohio
corporation and a subsidiary of Parent (the “Merger Sub”);
WHEREAS, on May 4, 2011, the Board of Directors of the Company determined it is in the best
interests of the Company and its stockholders to amend the Rights Agreement on the terms set forth
herein;
WHEREAS, in accordance with Section 27 of the Rights Agreement, prior to the occurrence of a
Section 11(b) Event (as defined in the Rights Agreement), the Company and the Rights Agent shall,
if the Board of Directors of the Company so directs, supplement or amend any provision of this
Agreement as the Board of Directors of the Company may deem necessary or desirable without the
approval of any holders of certificates representing shares of Common Stock of the Company; and
WHEREAS, the Rights Agent is hereby directed to join in the amendment to the Rights Agreement
as set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual agreements herein set forth,
the parties hereby agree as follows:
AGREEMENT
1. Amendment of the Rights Agreement.
(a) Section 1(a) of the Rights Agreement is hereby amended by inserting the following
sentence immediately after the last sentence in the definition of “Acquiring Person”:
“Notwithstanding anything in this Section 1(a) or otherwise in this
Agreement to the contrary, none of INC Research, LLC (“Parent”), Triangle
Two Acquisition Corp. (“Merger Sub”), or any of their respective Affiliates
or Associates, (collectively, the “Exempt INC Persons”), either individually
or collectively, shall be deemed to be an “Acquiring Person” by virtue of or
as a result of (A) the approval, adoption, execution, delivery or
performance of the Merger Agreement, (B) the public or other announcement or
disclosure of the Merger, the Merger Agreement or any
of the other transactions contemplated by the Merger Agreement or (C) the
consummation of the Merger at the Effective Time or any of the other
transactions contemplated by the Merger Agreement (the transactions
described in clauses (A), (B) and (C), together with any related
transactions, the “Exempt INC Transactions”). “Effective Time” and “Merger”
shall have the meanings set forth in the Merger Agreement and “Merger
Agreement” shall mean the Agreement and Plan of Merger, dated as of May 4,
2011 by and between the Company, Parent, and Merger Sub, an Ohio
corporation, as it may be amended or supplemented from time to time.”
(b) Section 1(f) of the Rights Agreement is hereby amended by inserting the following
new clause (vi) immediately after clause (v):
“(vi) Notwithstanding anything in this Section 1(f) or otherwise in this
Agreement to the contrary, none of the Exempt INC Persons, either
individually or collectively, shall be deemed the Beneficial Owner of or
deemed to “Beneficially Own” or have “Beneficial Ownership” of any
securities beneficially owned by any other Exempt Persons by virtue of or as
a result of any Exempt INC Transaction.”
(c) Section 1(hh) of the Rights Agreement is hereby amended by inserting the following
sentence immediately after the last sentence in the definition of “Stock Acquisition Date”:
“Notwithstanding anything in this Section 1(hh) or otherwise in this
Agreement to the contrary, a Stock Acquisition Date shall not be deemed to
have occurred by virtue of or as a result of any Exempt INC Transaction.”
(d) Section 3(a) of the Rights Agreement is hereby amended by inserting the following
sentence immediately after the last sentence of Section 3(a):
“Notwithstanding anything to the contrary in Section 3(a) hereof or
otherwise in the Agreement to the contrary, a Distribution Date shall not be
deemed to have occurred by virtue of or as a result of any Exempt INC
Transaction.”
(e) Section 11(b) of the Rights Agreement is hereby amended by inserting the following
sentence immediately after the last sentence of Section 11(b):
“Notwithstanding anything in Section 11 or Section 13 hereof or otherwise in
this Agreement to the contrary, a Section 11(b) Event shall not be deemed to
have occurred by virtue of or as a result of an Exempt INC Transaction.”
(f) Section 13(a) of the Rights Agreement is hereby amended by inserting the following
sentence immediately after the last sentence of Section 13(a):
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“Notwithstanding anything in Section 11 or Section 13 hereof or otherwise in
this Agreement to the contrary, a Section 13 Event shall not be deemed to
have occurred by virtue of or as a result of an Exempt INC Transaction.”
(g) Section 7(a) of the Rights Agreement is hereby amended and replaced in its entirety
with the following:
“(a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly executed, to
the Rights Agent at the office or offices of the Rights Agent designated for
such purpose, together with payment of the aggregate Exercise Price for the
total number of one one-thousandths (1/1,000) of a share of Common Stock (or
other securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercised, at or prior to the earlier of (i) the
Close of Business on the fifth anniversary of the Record Date (the “Final
Expiration Date”), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the “Redemption Date”), (iii) the time at
which such Rights are exchanged as provided in Section 24 hereof (the
“Exchange Date”) or (iv) immediately prior to the Effective Time of the
Merger (but only if the Effective Time shall occur) (the earliest of (i),
(ii), (iii) or (iv) being herein referred to as the “Expiration Date”).
Except as set forth in Section 7(e) hereof and notwithstanding any other
provision of this Agreement, any Person who prior to the Distribution Date
becomes a record holder of shares of Common Stock of the Company may
exercise all of the rights of a registered holder of a Right Certificate
with respect to the Rights associated with such shares of Common Stock of
the Company in accordance with the provisions of this Agreement, as of the
date such Person becomes a record holder of shares of Common Stock of the
Company.”
(h) A new Section 36 with the heading “Termination at the Effective Time” is hereby
added to the Rights Agreement reading in its entirety as follows:
“(a) This Agreement and the Rights established hereby will terminate in all
respects immediately prior to the Effective Time.
(b) The Rights Agent shall not be subject to, nor be required to comply
with, or determine if any event has occurred under (including, but not
limited to, the occurrence of the Merger or the Effective Time), or any
Person has complied with, the Merger Agreement or any agreements and
documents related to or referred to in the Merger Agreement or any other
agreement between or among the parties thereto, even though reference
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thereto may be made in this Agreement, or to comply with any notice,
instruction, direction, request or other communication, paper or document
other than as expressly set forth in this Agreement.”
(i) Section 26 of the Rights Agreement is amended and restated in part to update the
address of the Rights Agent by deleting the language which reads:
“Xxxxxxx X. Xxxxxx
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: General Counsel”
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: General Counsel”
and replacing such language, in its entirety, with the following:
“American Stock Transfer & Trust Company, LLC
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Department
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Corporate Trust Department
With a copy to:
American Stock Transfer & Trust Company, LLC
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel”
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel”
2. Termination of Merger Agreement. If the Merger Agreement is terminated, then from
and after such time this Amendment shall be of no further force and effect and the Agreement shall
remain exactly the same as it existed immediately prior to execution of this Amendment. The
Company hereby agrees to notify the Rights Agent promptly upon the termination of the Merger
Agreement.
3. Notice of Effective Time. The Company agrees to notify the Rights Agent promptly
after the occurrence of the Effective Time, which notice shall specify (i) that the Effective Time
has occurred, and (ii) the date upon which this Agreement and the Rights established hereby were
terminated.
4. No Other Amendment; Effect of Amendment. Except as and to the extent expressly
modified by this Amendment, the Rights Agreement and the exhibits thereto shall remain in full
force and effect in all respects without any modification. By executing this Amendment below, the
Company certifies that this Amendment has been executed and delivered in compliance with the terms
of Section 27 of the Rights Agreement. This Amendment shall be deemed an amendment to the Rights
Agreement and shall become effective and shall be deemed to be in force and effect immediately
prior to the execution of the Merger Agreement. In the event of a conflict or inconsistency between
this Amendment and the Rights Agreement and the exhibits thereto, the provisions of this Amendment
shall govern.
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5. Counterparts. 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. A signature to this Amendment
transmitted electronically shall have the same authority, effect, and enforceability as an original
signature.
6. Severability. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain
in full force and effect and shall in no way be affected, impaired or invalidated.
7. Miscellaneous. This Amendment shall be deemed to be a contract made under the laws
of the State of Ohio 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 to be performed entirely within such
State.
[Remainder of Page Intentionally Left Blank. Signature Page Follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed as
an instrument under seal and attested, all as of the day and year first above written.
Xxxxxx International Inc. | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx
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Name: | Xxxxxx X. Xxxxxxx | |||||
Title: | Vice President, Chief Legal Officer and Secretary | |||||
American Stock Transfer & Trust Company, LLC as Rights Agent |
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By: | /s/ Xxxxxxxx X. Xxxxxx
|
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Name: | Xxxxxxxx X. Xxxxxx | |||||
Title: | Counsel |
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