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EXHIBIT 4.7
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT is entered into as of this
____ day of February, 1991, by and between WALBRO CORPORATION, a Delaware
corporation (the "Company"), and XXXXXX TRUST AND SAVINGS BANK (the "Rights
Agent") amending that certain Rights Agreement (the "Rights Agreement") dated as
of December 8, 1988 between the Company and the Rights Agent.
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement, as authorized by Section 27 of the Rights Agreement, by altering,
adding, and deleting the provisions set forth herein in the manner set forth
below; and
WHEREAS, the parties have complied with or satisfied all conditions
necessary to the amendment of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in the Rights Agreement and this First Amendment, the parties hereby
agree as follows:
A. DEFINITIONS. All terms used herein as defined terms which are not
defined in this Amendment shall have the meanings ascribed to them in the Rights
Agreement.
2. AMENDMENTS. The Rights Agreement shall be amended as follows:
(a) Section 1(a) shall be deleted in its entirety and replaced
by a new Section 1(a), which shall read as follows:
(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with all
Affiliates, Associates, and Group Members (as such terms are
hereinafter defined) of such Person, without the prior written
approval of the Company given as provided in the last two
sentences of this Section 1(a), shall be the Beneficial Owner
(as such term is hereinafter defined) of 15% or more of the
Common Shares of the Company then outstanding, but shall not
include the Company, any Subsidiary (as such term is
hereinafter defined) of the Company, 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. Notwithstanding the foregoing, no Person shall become an
Acquiring Person as the result of (i) an acquisition of Common
Shares by the Company which, by reducing the number of shares
outstanding, increases the
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proportionate number of shares beneficially owned by such
Person to 15% or more of the Common Shares of the Company then
outstandingly; provided, however, that if a Person shall
become the beneficial owner of 15% or more of the Common
Shares of the Company then outstanding by reason of share
repurchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person
shall immediately thereafter be an Acquiring Person, or (ii)
such Person being a party to or bound by a certain Agreement
Among Shareholders Among Walbro Corporation dated as of
September 29, 1987, as amended. The Company's Board of
Directors, acting by majority vote, shall have the sole right
and authority to grant approval to a Person to, together with
such Person's Affiliates, Associates and Group Members, become
the beneficial Owner of 15% or more of the Common Shares of
the Company then outstanding; provided that for one year after
a majority of the Company's Board of Directors ceases to be
comprised of either Independent Directors (as hereinafter
defined) or Continuing Directors (as hereinafter defined),
such Board may not grant the approval provided for in this
Section 1(a). The approval provided for in Section 1(a) may be
subject to such conditions as may be determined by the Board
of Directors of the Company, including without limitation,
that a Person, together with such Person's Affiliates,
Associates and Group Members, maintain beneficial ownership of
less than a specified percentage of the Common Shares, and if
a Person granted a conditional approval fails to comply with
such conditions, such Person shall become an Acquiring Person
immediately upon the occurrence of such failure.
(b) Section 1(j) shall be deleted in its entirety.
(c) A new Section 1(u) shall be added, which shall read as
follows:
(u) "Continuing Director" shall mean any member of
the Company's Board of Directors who is duly serving on such
Board and who (A) is not (i) an Acquiring Person or an
Affiliate, Associate or Group Member of an Acquiring Person,
or a Person whose Series A or Series B Rights have become void
under the provisions hereof, or (ii) a Person nominated by, or
acting as a representative of or for the interests of any
Person described in clause 1(i)(A)(i) above, and (B) either
was a member of the Company's Board of Directors on the date
of this Agreement or, at the time such member was elected to
the Company's Board of Directors, such election was
recommended, nominated, approved or voted for by a majority of
the Continuing Directors at such time.
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(d) A new Section 1(v) shall be added, which shall read as
follows:
(v) "Independent Director" shall mean a director of
the Company who is not (i) a Continuing Director, (ii) elected
to the Board of Directors at a special meeting of shareholders
or by action of the Company's shareholders by written consent,
or (iii) serving after being nominated by, or in connection
with an attempt to facilitate a transaction with, an Acquiring
Person or Interested Person (as hereinafter defined), or an
Affiliate, Associate or Group Member thereof.
(e) A new Section 1(w) shall be added, which shall read as
follows:
(w) "Interested Person" with respect to any
transaction shall mean (x) any Person, other than the Company,
any Subsidiary of the Company, any employee benefit plan of
the Company or a Subsidiary, or any entity holding shares for
or pursuant to the terms of any such plan, who (i) is or will
become an Acquiring Person if a transaction were to be
consummated, without regard to any required approval of the
Company, or (ii) directly or indirectly proposed or nominated
a director of the Company which director (or a successor of
such Person elected to the Board of Directors for the purpose
of either facilitating a transaction with such Interested
Person or circumventing directly or indirectly the provisions
of this paragraph) is in office at the time of consideration
of the transaction in question, or (y) an Affiliate, Associate
or Group Member of such a Person.
(f) A new Section 1(x) shall be added, which shall read as
follows:
(x) "Permitted Offer" shall mean a tender or exchange
offer made at a price, and on terms, determined prior to the
purchase of shares under such tender or exchange offer, by the
Company's Board of Directors to be both adequate and otherwise
in the best interests of the Company, its stockholders (other
than the Person, or an Affiliate, Associate or Group Member
thereof on whose behalf the offer is being made) and other
relevant constituencies which directors may consider under
Delaware law; provided that for one year after the time when a
majority of the Board of Directors of the Company is comprised
of Persons who are not Independent Directors or Continuing
Directors, no offer by an Interested Person may be deemed a
Permitted Offer.
(g) Section 11(a) (iii) shall be deleted in its entirety.
(h) The following shall be added to the end of Section 13:
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Notwithstanding any provision in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction
if such transaction is consummated with a Person or Persons
who acquired Common Shares pursuant to a Permitted Offer (or a
wholly-owned Subsidiary of any such Person or Persons). Upon
consummation of any transaction with a Person acquiring shares
pursuant to a Permitted Offer as contemplated by the previous
sentence, all Rights hereunder shall expire.
(i) Section 23(c) shall be deleted in its entirety.
(j) Section 23(d) shall be deleted in its entirety and
replaced by a new Section, renumbered as Section 23(c), which shall read as
follows:
(c) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Series
A Rights pursuant to paragraph (b) of this Section 23, and
without any further action and without any notice, the right
to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the
Redemption Price. The Company shall promptly give public
notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not
affect the validity of such redemption. Within ten days after
such action of the Board of Directors ordering the redemption
of the Series A Rights pursuant to paragraph (b), the Company
shall mail a notice of redemption to all holders of the then
outstanding Rights at their last addresses as they appear upon
the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent
for the Common Shares. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption
will state the method by which the payment of the Redemption
Price will be made. Neither the Company nor any of its
Affiliates, Associates or Group members may redeem, acquire or
purchase for value any Rights at any time in any manner other
than that specifically set forth in this Section 23 or in
Section 24 hereof, and other than in connection with the
purchase of Common Shares prior to the Share Acquisition Date.
3. RIGHTS AGREEMENT. Except as amended hereby, the Rights Agreement
shall remain in full force and effect.
4. GOVERNING LAW. This First Amendment to Rights Agreement 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 made and performed entirely within such state.
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5. COUNTERPARTS. This First Amendment to Rights Agreement 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 one and same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Rights Agreement to be duly executed and attested, all as of the date first
above written.
ATTEST: WALBRO CORPORATION
By:
____________________ ________________________
Assistant Secretary Its:
_______________________
ATTEST: XXXXXX TRUST AND SAVINGS BANK
___________________
By:
_________________________
Its:
_________________________
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