EXHIBIT 4.4
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as
of December 6, 2004 to amend that certain Rights Agreement (the "Rights
Agreement") dated as of June 26, 2003, by and between Mindspeed Technologies,
Inc., a Delaware corporation (the "Company") and Mellon Investor Services LLC, a
New Jersey limited liability company, as Rights Agent (the "Rights Agent").
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Rights Agreement.
WHEREAS, the Company and the Rights Agent are parties to the Rights
Agreement;
WHEREAS, the Board of Directors of the Company has determined it to be
in the best interests of the Company and its stockholders to amend the Rights
Agreement as set forth herein;
WHEREAS, subject to certain provisos, Section 27 of the Rights
Agreement provides that the Company may from time to time supplement or amend
the Rights Agreement without the approval of any holders of Rights in order to
cure any ambiguity, to correct or supplement any provision contained in the
Rights Agreement, or to make any other provisions with respect to the Rights or
in regard to matters or questions arising under the Rights Agreement which the
Company may deem necessary or desirable, any such supplement to be evidenced by
a writing signed by the Company and the Rights Agent;
WHEREAS, this Amendment does not change or increase the rights, duties,
liabilities or obligations of the Rights Agent under the Rights Agreement; and
WHEREAS, no Person has become an Acquiring Person.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1(a) of
the Rights Agreement shall be restated in its entirety to read as follows (with
changes thereto indicated herein in bold font):
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which on or after the Record Date,
together with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, shall be the Beneficial Owner
(as such term is hereinafter defined) of 15% or more of the shares
of Common Stock then outstanding, but shall not include the
Company, any Subsidiary (as such term is hereinafter defined) of
the Company, Conexant, any employee benefit plan of Conexant, the
Company or any Subsidiary of the Company, or any entity holding
Common Stock for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an
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"Acquiring Person" as the result of (I) an acquisition of shares
of Common Stock by the Company which, by reducing the number of
shares of Common Stock outstanding, increases the proportionate
number of shares of Common Stock beneficially owned by such Person
to 15% or more of the shares of Common Stock then outstanding
(provided, however, that if a Person shall become the Beneficial
Owner of 15% or more of the shares of Common Stock then
outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial
Owner of any additional shares of Common Stock, other than an
acquisition that does not directly or indirectly increase the
proportionate share of the shares of Common Stock then outstanding
beneficially owned by such Person, then such Person shall be
deemed to be an "Acquiring Person") OR (II) THE PURCHASE OF SHARES
OF COMMON STOCK (OR SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE
FOR SHARES OF COMMON STOCK) DIRECTLY FROM THE COMPANY BY A PERSON
WHO HAS A BONA FIDE INTENT AT THE TIME OF SUCH PURCHASE TO RESELL
SUCH SHARES OF COMMON STOCK (OR SECURITIES CONVERTIBLE INTO OR
EXCHANGEABLE FOR SHARES OF COMMON STOCK) IN AN OFFERING THAT IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED, PURSUANT TO RULE 144A OR REGULATION S
PROMULGATED THEREUNDER. 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 shares of Common Stock 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.
2. Except as set forth herein, the Rights Agreement shall remain in
full force and effect.
SIGNATURE PAGE FOLLOWS
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IN WITNESS HEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
Mindspeed Technologies, Inc.,
a Delaware corporation
By: /s/ Simon Biddiscombe
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Name: Simon Biddiscombe
Title: Senior Vice President, Chief
Financial Officer, Secretary and
Treasurer
Mellon Investor Services, LLC
a New Jersey limited liability company
By: Sharon Knepper
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Name: Sharon Knepper
Title: Vice President
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