Exhibit 4.1
AMENDMENT TO RIGHTS AGREEMENT
This AMENDMENT, dated as of May 3, 1998, is between Echlin
Inc., a Connecticut corporation (the "Company"), and BankBoston, N.A., as
rights agent (the "Rights Agent").
Recitals
A. The Company and the Rights Agent are parties to a Rights
Agreement dated as of June 21, 1989, as amended (the "Rights Agreement").
B. Dana Corporation, a Virginia corporation ("Parent"), Echo
Acquisition Corp., a wholly owned direct subsidiary of Parent ("Merger Sub")
and the Company have entered into an Agreement and Plan of Merger dated as of
May 3, 1998, as it may be amended from time to time (the "Merger Agreement"),
pursuant to which Merger Sub will merge with and into the Company (the
"Merger"). The Board of Directors of the Company has approved the Merger
Agreement and the Merger.
C. Pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable in connection with the
Merger, and the Company and the Rights Agent desire to evidence such amendment
in writing.
Accordingly, the parties agree as follows:
1. AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"None of Parent (as defined herein), Merger Sub (as defined
herein), and each of their respective existing or future
Affiliates or Associates shall each be deemed to be an Acquiring
Person solely by virtue of and in connection with (i) the
execution of the Merger Agreement (as defined herein) or the Stock
Option Agreement (as defined herein), (ii) the acquisition of
Common Stock or other capital stock of the Company pursuant to the
Merger Agreement or the Stock Option Agreement or the consummation
of the Merger (as defined herein) or (iii) the consummation of
other transactions contemplated by the Merger Agreement or the
Stock Option Agreement."
2. AMENDMENT OF SECTION 1(t). Section 1(t) of the Rights
Agreement is hereby amended to add the following proviso at the end thereof:
"; provided, further, that no Triggering Event shall result solely
by virtue of (i) the execution of the Merger Agreement or the
Stock Option Agreement, (ii) the acquisition of Common Stock or
other capital stock of the Company pursuant to the Merger
Agreement or the Stock Option Agreement or the consummation of the
Merger or (iii) the consummation of the other transactions
contemplated by the Merger Agreement or the Stock Option
Agreement."
3. AMENDMENT TO SECTION 1. Section 1 of the Rights Agreement
is hereby further amended to add the following subparagraphs at the end
thereof:
(u) "Merger" shall have the meaning set forth in the Merger
Agreement.
(v) "Merger Agreement" shall have the meaning set forth in
Section 35 hereof.
(w) "Merger Sub" shall have the meaning set forth in Section
35 hereof.
(x) "Parent" shall have the meaning set forth in Section 35
hereof.
(y) "Stock Option Agreement" shall have the meaning set
forth in Section 35 hereof.
4. AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred
solely by virtue of (i) the execution of the Merger Agreement or
the Stock Option Agreement, (ii) the acquisition of Common Stock
or other capital stock of the Company pursuant to the Merger
Agreement or the Stock Option Agreement or the consummation of the
Merger or (iii) the consummation of the other transactions
contemplated by the Merger Agreement or the Stock Option
Agreement."
5. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights
Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Amendment to the contrary,
none of (i) the execution of the Merger Agreement or the Stock
Option Agreement, (ii) the acquisition of Common Stock or other
capital stock of the Company pursuant to the Merger Agreement or
the Stock Option Agreement or the consummation of the Merger or
(iii) the consummation of the other transactions contemplated by
the Merger Agreement or the Stock Option Agreement shall be deemed
to be events that cause the Rights to become exercisable pursuant
to the provisions of this Section 7 or otherwise."
6. AMENDMENT TO SECTION 11. Section 11 of the Rights Agreement
is amended to add the following sentence after the first sentence of said
Section:
"Notwithstanding anything in this Rights Amendment to the contrary,
none of (i) the execution of the Merger Agreement or the Stock
Option Agreement, (ii) the acquisition of Common Stock or other
capital stock of the Company pursuant to the Merger Agreement or
the Stock Option Agreement or the consummation of the Merger or
(iii) the consummation of the other transactions contemplated in
the Merger Agreement or the Stock Option Agreement shall be deemed
to be events of the type described in this Section 11 or to cause
the Rights to be adjusted or to become exercisable in accordance
with this Section 11."
7. AMENDMENT TO SECTION 13. Section 13 of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Amendment to the contrary,
none of (i) the execution of the Merger Agreement or the Stock
Option Agreement, (ii) the acquisition of Common Stock or other
capital stock of the Company pursuant to the Merger Agreement or
the Stock Option Agreement or the consummation of the Merger or
(iii) the consummation of the other transactions contemplated in
the Merger Agreement or the Stock Option Agreement shall be deemed
to be events of the type described in this Section 13 or to cause
the Rights to be adjusted or to become exercisable in accordance
with this Section 13."
8. ADDITION OF SECTION 35. The Rights Agreement is hereby
modified, supplemented and amended to add the following new Section 35:
"Section 35. Merger With Merger Sub.
Dana Corporation, a Virginia corporation ("Parent"), Echo
Acquisition Corp., a wholly owned direct subsidiary of Parent
("Merger Sub") and the Company have entered into an Agreement
and Plan of Merger, dated as of May 3, 1998, as it may be
amended from time to time (the "Merger Agreement"), pursuant to
which Merger Sub shall merge with and into the Company, and
Parent and the Company have entered into a Stock Option
Agreement, dated as of May 3, 1998, as it may be amended from
time to time (the "Stock Option Agreement"). Notwithstanding
anything in this Rights Agreement to the contrary, (x) if the
Merger Agreement shall be terminated for any reason, then
(a) the last sentence of Section 1(a) hereof shall be deemed
amended and restated without any further action on the part
of the Company or the Rights Agent to read as follows:
"Neither Parent nor any of its existing or future Affiliates
or Associates shall be deemed to be an Acquiring Person
solely by virtue of and in connection with (i) the execution
of the Stock Option Agreement (as defined herein), (ii) the
acquisition of Common Stock or other capital stock of the
Company pursuant to the Stock Option Agreement or (iii) the
consummation of other transactions contemplated by the Stock
Option Agreement." and
(b) the proviso at the end of Section 1(t) hereof shall be
deemed amended and restated without any further action on
the part of the Company or the Rights Agent to read as
follows: "; provided, further, that no Triggering Event
shall result solely by virtue of (i) the execution of the
Stock Option Agreement, (ii) the acquisition of Common Stock
or other capital stock of the Company pursuant to the Stock
Option Agreement or (iii) the consummation of the other
transactions contemplated by the Stock Option Agreement;"
and
(y) if, after the termination of the Merger Agreement, the
Option (as defined in the Stock Option Agreement) is not exercisable in
accordance with the terms of the Stock Option Agreement, then (a) the last
sentence of Section 1(a) hereof shall be deemed repealed and deleted without
any further action on the part of the Company or the Rights Agent and (b) the
proviso at the end of Section 1(t) hereof shall be deemed repealed and deleted
without any further action on the part of the Company or the Rights Agent.
9. TERMINATION. Immediately prior to the Effective Time (as
defined in the Merger Agreement), pursuant to and in accordance with Section
5.3(o) of the Merger Agreement, (i) the Rights Agreement shall be terminated
and be without any further force or effect, (ii) none of the parties to the
Rights Agreement will have any rights, obligations or liabilities thereunder,
and (iii) the holders of the Rights shall not be entitled to any benefits,
rights or other interests under the Rights Agreement, including without
limitation, the right to purchase or otherwise acquire shares of the Preferred
Stock or any other securities of the Company.
10. EFFECTIVENESS. This Amendment shall be deemed effective as
of the date first written above, as if executed on such date. Except as
amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.
11. MISCELLANEOUS. This Amendment shall be deemed to be a
contract made under the laws of the State of Connecticut and for all purposes
shall be governed by and construed in accordance with the laws of the State of
Connecticut applicable to contracts to be made and performed entirely within
the State of Connecticut without giving effect to the principles of conflict
of laws thereof. This Amendment may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed an
original, and all such counterparts shall together constitute but one and the
same instrument. If any provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other authority to be invalid,
illegal 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.
EXECUTED under seal as of the date first set forth above.
Attest: ECHLIN INC.
/s/ E.D. Toole By: /s/ Jon P. Leckerling
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Name: E.D. Toole Name: Jon P. Leckerling
Title: Vice President and Title: Senior Vice President
Assistant Secretary
Attest: RIGHTS AGENT: BANK BOSTON, N.A.
/s/ Angela R. Dray By: /s/ Carol Mulvey-Eori
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Name: Angela R. Dray Name: Carol Mulvey-Eori
Title: Account Manager Title: Administration Manager