EXHIBIT 4.3
SECOND AMENDMENT TO RIGHTS AGREEMENT
SECOND AMENDMENT dated as of October 10, 2003 (this "Amendment") to the Rights
Agreement (the "Agreement") dated as of August 20, 1993 between ▇▇▇▇▇▇
International Inc., a Massachusetts trust organized under the laws of the State
of Washington (the "Company"), and Computershare Trust Company of Canada, the
successor to Montreal Trust Company of Canada, as rights agent (the "Rights
Agent"), as amended pursuant to the First Amendment to the Rights Agreement
dated as of August 5, 2003 (the "First Amendment"). Capitalized terms used
herein and not otherwise defined shall have the respective meanings ascribed to
such terms in the Agreement.
WHEREAS, the Company has proposed to sell $82,500,000 of its 8.5%
Convertible Senior Subordinated Notes due 2010 and, in connection therewith, has
proposed to amend the Agreement to provide that purchasers of such notes will
not inadvertently become Acquiring Persons under the Agreement as a result of
the acquisition of such notes;
WHEREAS, the Company deems this Amendment to the Agreement to be necessary
and desirable and in the best interests of the holders of the Rights and has
duly approved this Amendment;
WHEREAS, no event has occurred that would cause any Person to be deemed an
Acquiring Person; and
WHEREAS, Section 26 to the Agreement permits the Company at any time prior
to the Distribution Date to amend the Agreement in the manner provided herein.
NOW, THEREFORE, the Agreement is hereby amended as follows:
Section 1. Deletion and Replacement of Subsection 1(a). Subsection 1(a) to
the Agreement is hereby deleted and replaced by 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 15% or more of the aggregate of the shares of Common Stock then
outstanding and the Issuable Note Shares, but shall not include the
Company, any Subsidiary of the Company, any employee benefit plan of the
Company or any Subsidiary of the Company, or any Person organized,
appointed or established by the Company for or pursuant to the terms of any
such plan.".
Section 2. Amendment to Subsection 1(d)(iii). Subsection 1(d)(iii) to the
Agreement is hereby amended by adding thereto between the phrase "as an
underwriter of securities" and the phrase "to be the "Beneficial Owner" of," in
the seventh and eighth lines thereof the following phrase to be inserted between
the two foregoing phrases:
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"(either in a public offering or an offering pursuant to Rule 144A and/or
Regulation S under the Act or other transaction in which securities are
purchased from the Company for resale)".
Section 3. Addition of New Subsection 1(o). A new Subsection 1(o) to the
Agreement is hereby added:
"(o) "Issuable Note Shares" shall mean shares of Common Stock into which
the then outstanding Notes are convertible as if the then outstanding Notes
had been fully converted.".
Section 4. Addition of New Subsection 1(p). A new Subsection 1(p) to the
Agreement is hereby added:
"(p) "Notes" shall mean the 8.5% Convertible Senior Subordinated Notes due
2010 of the Company issued under the indenture dated on or about October
10, 2003 between the Company and ▇▇▇▇▇ Fargo Bank, Minnesota, N.A., as
trustee.".
Section 5. Amendment to Section 1. Section 1 to the Agreement is hereby
amended by renumbering current Subsections 1(o) through 1(ee) to the Agreement
as Subsections 1(q) through 1(gg), respectively, to the Agreement.
Section 6. Amendment to Subsection 3(a). Subsection 3(a) to the Agreement
is hereby amended by deleting therefrom the phrase "Beneficial Owner of 25% or
more of the shares of Common Stock then outstanding" from the ninth and tenth
lines thereof and replacing the same with the following:
"Beneficial Owner of 15% or more of the aggregate of the shares of Common
Stock then outstanding and the Issuable Note Shares".
Section 7. Amendment to Subsection 11(a)(ii)(B). Subsection 11(a)(ii)(B) to
the Agreement is hereby amended by deleting therefrom the phrase "become the
Beneficial Owner of 15% or more of the shares of Common Stock then outstanding,"
from the fifth and sixth lines thereof and replacing the same with the
following:
"become the Beneficial Owner of 15% or more of the aggregate of the shares
of Common Stock then outstanding and the Issuable Note Shares,".
Section 8. Amendment to Exhibit C.
(a) Exhibit C (the Summary of Rights to Purchase Preferred Stock) to the
Agreement is hereby amended by deleting therefrom, in its entirety, the
second full sentence of the second paragraph thereof and replacing the same
with the following:
"The Rights will separate from the Common Stock and a Distribution Date
will occur upon the earlier of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the aggregate of the then
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outstanding shares of Common Stock and shares of Common Stock into which
the 8.5% Convertible Senior Subordinated Notes due 2010 of the Company (the
"Notes") are convertible (the "Issuable Note Shares") as if the then
outstanding Notes had been fully converted (the "Stock Acquisition Date"),
or (ii) 10 days following the commencement of a tender offer or exchange
offer that would result in a person or group beneficially owning 15% or
more of the aggregate of the then outstanding shares of Common Stock and
the Issuable Note Shares."
(b) Exhibit C to the Agreement is hereby further amended by deleting
therefrom the phrase "beneficial owner of more than 25% of the then
outstanding shares of Common Stock" from the fourth and fifth lines of the
fifth paragraph thereof and replacing the same with the following:
"beneficial owner of more than 15% of the aggregate of the then outstanding
shares of Common Stock and the Issuable Note Shares".
Section 9. Full Force and Effect. Except as expressly amended hereby and by
the First Amendment, the Agreement shall continue in full force and effect
unamended and in accordance with the provisions thereof on the date hereof.
Section 10. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of Washington applicable to
contracts to be made and performed entirely within such State.
Section 11. Counterparts. This Amendment may be executed in two
counterparts and by facsimile, each of which shall be deemed an original, but
both of which together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Rights Agent have caused this
Amendment to be duly executed as of the day and year first above written.
▇▇▇▇▇▇ INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇
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Name: ▇▇▇▇▇ ▇.▇. ▇▇▇
Title:
COMPUTERSHARE TRUST COMPANY OF CANADA
By: /s/ ▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ Au
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