AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit
4.1
AMENDMENT
NO. 2 TO RIGHTS AGREEMENT
AMENDMENT
NO. 2 (this “Amendment”) dated as
of May 18, 2010, to the Rights Agreement dated as of December 11, 1998, as
amended by Amendment No. 1 dated as of December 10, 2008 (as amended, the
“Rights
Agreement”), between BENCHMARK ELECTRONICS, INC., a Texas corporation
(the “Company”), and
COMPUTERSHARE TRUST COMPANY, N.A., a federally chartered trust company, as
rights agent (as successor rights agent to ▇▇▇▇▇▇ Trust and Savings Bank) (the
“Rights
Agent”).
WHEREAS,
the Board of Directors of the Company has determined to amend the Rights
Agreement in order to change the Final Expiration Date (as defined in the Rights
Agreement) and to make certain other changes, all as set forth below;
and
WHEREAS,
the Company has directed the Rights Agent to enter into this Amendment pursuant
to Section 27 of the Rights Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereby agree as follows:
Section
1. Amendments to Section
1.
(a) The
definition of “Acquiring Person” set forth in Section 1 of the Rights
Agreement is hereby amended by deleting each reference to “15%” set forth
therein and substituting therefor “20%”.
(b) The
definition of “Close of Business” set forth in Section 1 of the Rights Agreement
is hereby amended by deleting the words “Houston, Texas” set forth therein and
substituting therefor the word “Eastern”.
(c) The
definition of “Distribution Date” set forth in Section 1 of the Rights
Agreement is hereby amended by inserting the parenthetical “(other than a
Qualified Offer)” immediately after the words “a tender or exchange
offer”.
(d) The
definition of “Final Expiration Date” set forth in Section 1 of the Rights
Agreement is hereby amended by deleting the date “December 11, 2018” set forth
therein and substituting therefor the date May 18, 2013”.
(e) Section 1
of the Rights Agreement is hereby amended by inserting the following definition
in appropriate alphabetical order:
“‘Qualified Offer’
shall mean an offer determined by the Board of Directors of the Company to have
each of the following characteristics:
(i) a
fully financed all-cash tender offer for any and all of the outstanding shares
of Common Stock (whether such shares are outstanding at the commencement of the
offer or become outstanding thereafter upon the exercise or conversion of
options or other securities that are outstanding at the commencement of the
offer);
(ii) an
offer that has been commenced and is made by an offeror (including Affiliates or
Associates of such offeror) that beneficially owns no more than 10% of the
outstanding Common Stock as of the date of such commencement;
(iii) an
offer whose per share offer price is greater than the higher of (a) the highest
reported per share market price for Common Stock in the immediately preceding 24
months and (b) the amount that is 25% higher than the Current Market Price per
share of Common Stock;
(iv) an
offer that, within 20 Business Days after the commencement date of the offer (or
within 10 Business Days after any increase in the offer consideration), does not
result in a nationally recognized investment banking firm retained by the Board
of Directors of the Company rendering an opinion to the Board of Directors of
the Company that the consideration being offered to the holders of the Common
Stock is either inadequate or unfair;
(v) an
offer that is subject only to the minimum tender condition described below in
item (vii) of this definition and other customary terms and conditions, which
conditions shall not include any financing, funding or similar condition or any
requirements with respect to the offeror or its agents or any other Person being
permitted any due diligence with respect to the books, records, management,
accountants and other outside advisors of the Company;
(vi) an
offer pursuant to which the Company has received an irrevocable written
commitment of the offeror that the offer will remain open for at least
120 Business Days and, if a Special Meeting is duly requested in accordance
with Section 23(c), for at least 10 Business Days after the date of the Special
Meeting or, if no Special Meeting is held within 90 Business Days following
receipt of the Special Meeting Notice in accordance with Section 23(c), for at
least 10 Business Days following such 90 Business Day period;
(vii) an
offer that is conditioned on a minimum of at least two-thirds of the outstanding
shares of Common Stock being tendered and not withdrawn as of the offer’s
expiration date, which condition shall not be waivable;
(viii) an
offer pursuant to which the Company has received an irrevocable written
commitment by the offeror to consummate as promptly as practicable upon
successful completion of the offer a second-step transaction whereby all shares
of the Common Stock not tendered into the offer will be acquired at the same
consideration per share actually paid pursuant to the offer, subject to
statutory appraisal rights, if any; and
(ix) an
offer that is otherwise in the best interests of the Company and its
shareholders.
For
purposes of this definition and related provisions of this Agreement,
(a) ‘commencement’ and ‘commenced’ shall have the meanings given to such
terms pursuant to Rule 14d-2(a) under the Exchange Act and (b) ‘fully
financed’ shall mean that the offeror has sufficient funds for the offer and
related expenses which shall be evidenced by (x) firm, unqualified, written
commitments from responsible financial institutions having the necessary
financial capacity, accepted by the offeror, to provide funds for such offer
subject only to customary terms and conditions, which conditions shall not
include any requirements with respect to such financial institutions or any
other Person being permitted any due diligence with respect to the books,
records, management, accountants and other outside advisors of the Company,
(y) cash or cash equivalents then available to the offeror, set apart and
maintained solely for the purpose of funding the offer with an irrevocable
written commitment being provided by the offeror to the Board of Directors of
the Company to maintain such availability until the offer is consummated or
withdrawn, or (z) a combination of the foregoing, which evidence in each
case has been provided to the Company prior to, or upon, commencement of the
offer. In considering whether the condition set forth in item (ix)
above is satisfied, the Board of Directors of the Company may take into account
the factors set forth in Article 13.06 of the Texas Business Corporation Act as
in effect on the date of this Agreement and any other factors it deems
relevant.
If an
offer becomes a Qualified Offer in accordance with this definition, but
subsequently ceases to be a Qualified Offer as a result of the failure at a
later date to continue to satisfy any of the requirements of this definition,
such offer shall cease to be a Qualified Offer and the provisions of Section
23(c) shall no longer be applicable to such offer, provided the actual
redemption of the Rights pursuant to Section 23(c) shall not already have
occurred.”
Section
2. Amendments to Section
21.
(a) Section
21 of the Rights Agreement is hereby amended by inserting the words “in the
event that the Rights Agent or one of its Affiliates is not also the transfer
agent for the Company,” immediately before the word “to” and after the word
“and” in the first sentence thereof;
(b)
Section 21 of the Rights Agreement is hereby amended by deleting the words “,
and, at the expense of the Company, to the holders, if any, of the Rights
Certificates by first-class mail” in the first sentence thereof;
(c)
Section 21 of the Rights Agreement is hereby amended by inserting the words “or
entity” immediately before the word “organized” and after the word “corporation”
in clause (a) and before the word “described” and the
word “corporation” in clause (b) thereof.
Section
3. Amendments to Section
23.
(a) Section 23(b)
of the Rights Agreement is hereby amended by inserting the words “or the
effectiveness of the redemption of the Rights pursuant to Section 23(c)”
immediately after the parenthetical therein.
(b) Section
23 of the Rights Agreement is hereby amended by inserting the following new
Section 23(c):
“(c) In
the event that the Company, not earlier than 90 Business Days nor later than 120
Business Days following the commencement of a Qualified Offer, which has not
been terminated prior thereto and which continues to be a Qualified Offer,
receives a written notice complying with the terms of this Section 23(c)
(the ‘Special Meeting
Notice’) that is properly executed by the holders of record (or their
duly authorized proxy) of at least 10% of the shares of Common Stock then
outstanding directing the Board of Directors of the Company to submit to a vote
of shareholders at a special meeting of the shareholders of the Company (a
‘Special
Meeting’) a resolution authorizing the redemption of all but not less
than all of the then outstanding Rights at the Redemption Price (the ‘Redemption
Resolution’), then the Board of Directors of the Company shall take such
actions as are necessary or desirable to cause the Redemption Resolution to be
submitted to a vote of the shareholders of the Company, by including a proposal
relating to adoption of the Redemption Resolution in the proxy materials of the
Company for the Special Meeting. For purposes of a Special Meeting
Notice, the record date for determining eligible holders of record shall be the
90th Business Day following the commencement of a Qualified
Offer. Any Special Meeting Notice must be delivered to the Secretary
of the Company at the principal executive offices of the Company and must set
forth as to the shareholders of record executing the request (i) the name
and address of such shareholders, as they appear on the Company’s books and
records, (ii) the class and number of shares of Common Stock which are
owned of record by each of such shareholders and (iii) in the case of
Common Stock that is owned beneficially by another Person, an executed
certification by the holder of record that such holder has executed such Special
Meeting Notice only after obtaining instructions to do so from such beneficial
owner. Subject to the requirements of applicable law, the Board of
Directors of the Company may take a position in favor of or opposed to the
adoption of the Redemption Resolution, or no position with respect to the
Redemption Resolution, as it determines to be appropriate in the exercise of its
duties. In the event that no Person has become an Acquiring Person
prior to the redemption date referred to in this Section 23(c), and the
Qualified Offer continues to be a Qualified Offer and either (i) the
Special Meeting is not held on or prior to the 90th Business Day following
receipt of the Special Meeting Notice, or (ii) at the Special Meeting, the
holders of a majority of the shares of Common Stock outstanding as of the record
date for the Special Meeting shall vote in favor of the Redemption Resolution,
then all of the Rights shall be deemed redeemed by such failure to hold the
Special Meeting or as a result of such shareholder action, as the case may be,
at the Redemption Price, and the Board of Directors of the Company shall take
such other action as would prevent the existence of the Rights from interfering
with the consummation of the Qualified Offer, effective either (i) as of
the Close of Business on the 90th Business Day following receipt of the Special
Meeting Notice if a Special Meeting is not held on or prior to such date or
(ii) as of the date on which the results of the vote on the Redemption
Resolution at the Special Meeting are certified as official by the appointed
inspectors of election for the Special Meeting, as the case may
be.”
Section
4. Amendment to Section
33. Section 33 of the Rights Agreement is hereby amended by
inserting the following sentence immediately after the first sentence
therein:
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“A
signature to this Agreement transmitted electronically shall have the same
authority, effect and enforceability as an original
signature.”
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Section
5. Amendments to Exhibit
B. Exhibit B to the Rights Agreement is hereby amended by
deleting each reference to the date “December 11, 2018” set forth therein and
substituting therefor the date “May 18, 2013”.
Section
6. Amendments to Exhibit
C. Exhibit C to the Rights Agreement is hereby amended by (a)
deleting the reference to “15%” set forth therein and substituting therefor
“20%”, (b) deleting the date “December 11, 2018” set forth in the third
paragraph thereof and substituting therefor the date “May 18, 2013”,
(c) inserting the parenthetical “(other than a Qualified Offer (as defined
in the Rights Agreement))” immediately after the words “a tender or exchange
offer” and (d) amending and restating the tenth paragraph thereof in its
entirety as follows:
“At any time until 10 days following
the Stock Acquisition Date, the Company may redeem the Rights in whole, but not
in part, at a price of $.01 per Right (the “Redemption Price”), payable, at the
option of the Company, in cash, shares of Common Stock or such other
consideration as the Board of Directors may determine. In addition,
not earlier than 90 business days nor later than 120 business days after
the Company receives a Qualified Offer, the holders of record of 10% of the
shares of Common Stock shall be entitled to deliver a written notice to the
Company requesting a special meeting of the shareholders of the Company to vote
upon a resolution authorizing the redemption of all but not less than all of the
then outstanding Rights at the Redemption Price. If either
(i) the special meeting is not held on or prior to the 90th business day
following receipt of the notice, or (ii) at the special meeting, the
holders of a majority of the shares of Common Stock outstanding shall vote in
favor of the redemption resolution, then all of the Rights shall be deemed
redeemed at the Redemption Price. Immediately upon the effectiveness
of the action of the Board of Directors ordering redemption of the Rights or the
effectiveness of the redemption of the Rights pursuant to the Qualified Offer
redemption provisions, the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.”
Section
7. Certification. The
officer of the Company executing this Amendment on behalf of the Company hereby
certifies on behalf of the Company that this Amendment complies with the terms
of Section 27 of the Rights Agreement.
Section
8. Governing
Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Texas and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to contracts
made and to be performed entirely within such State.
Section
9. Execution in
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.
Section
10. Rights Agreement as
Amended. Upon the effectiveness of this Amendment, the term
“Agreement” as used in the Rights Agreement shall refer to the Rights Agreement
as amended hereby.
Section
11. Ratification of Rights
Agreement. Except as otherwise expressly set forth herein, the
Rights Agreement is hereby ratified and confirmed and remains in full force and
effect as originally entered into as of December 11, 1998, and as amended as of
December 10, 2008.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
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BENCHMARK
ELECTRONICS, INC.
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by
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/s/
▇▇▇▇ ▇. ▇▇
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Name: ▇▇▇▇
▇. ▇▇
Title: Chief
Executive
Officer
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Attest:
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by
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/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Secretary
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COMPUTERSHARE
TRUST COMPANY, N.A., as Rights
Agent
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by
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇▇▇▇▇
Title: Vice
President
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Attest:
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by
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/s/
▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇
▇▇▇▇▇
Title: Branch
President
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