Exhibit 4.1
AMENDMENT TO
RIGHTS AGREEMENT
This AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"),
dated as of July 19, 2001, amends that certain Rights Agreement, dated as
of March 22, 1993, as amended and restated as of May 7, 1999 (the
"Agreement"), between Alltrista Corporation, an Indiana corporation (the
"Company"), and EquiServe Trust Company, N.A., a national banking
association ("EquiServe" or "Rights Agent"), as successor in interest to
The First Chicago Trust Company of New York, a New York corporation ("First
Chicago") as Rights Agent. Unless defined elsewhere herein, capitalized
terms used in this Amendment shall have the meanings assigned to such terms
in the Agreement.
R E C I T A L S:
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WHEREAS, the Company and First Chicago have heretofore
executed and entered into the Agreement; and
WHEREAS, EquiServe has succeeded to First Chicago as Rights
Agent pursuant to the Agreement; and
WHEREAS, pursuant to Section 27 of the Agreement, the
Company may from time to time supplement or amend the Agreement in
accordance with the provisions of Section 27 thereof; and
WHEREAS, on July 19, 2001, the Board of Directors of the
Company determined that it is necessary and desirable to amend the
Agreement and direct the Rights Agent to enter into this Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Appointment of Successor Rights Agent. The
Company hereby appoints EquiServe to succeed to First Chicago as Rights
Agent for the Company and the holders of the Rights (who, in accordance
with Section 3 of the Agreement, shall, prior to the Distribution Date,
also be the holders of the Common Stock) in accordance with the terms and
conditions hereof and the Agreement, and EquiServe hereby accepts such
appointment to succeed to First Chicago as Rights Agent. As of the date
hereof, all references in the Agreement to "Rights Agent" shall be deemed
to refer to EquiServe and EquiServe shall be fully responsible for all
responsibilities and obligations of the Rights Agent under the Agreement.
Section 2. Amendments to Agreement. The Agreement is hereby
amended as follows, effective as of the date first written above:
(a) The definition of Acquiring Person set forth
in Section 1(a) of the Agreement is hereby amended and restated in its
entirety as follows:
(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 fifteen percent (15%) or
more of the shares of Common Stock then outstanding, but shall not
include:
(i) the Company;
(ii) any Subsidiary of the Company;
(iii) any employee benefit plan of the
Company or of any Subsidiary of the Company and any
Person organized, appointed or established by the Company
for or pursuant to the terms of any such plan;
(iv) any Person who becomes the
Beneficial Owner of fifteen percent (15%) or more of the
shares of Common Stock then outstanding as a result of a
reduction in the number of shares of Common Stock
outstanding due to the repurchase of shares of Common
Stock by the Company unless and until such Person, after
becoming aware that such Person has become the Beneficial
Owner of fifteen percent (15%) or more of the then
outstanding shares of Common Stock, acquires beneficial
ownership of additional shares of Common Stock
representing one percent (1%) or more of the shares of
Common Stock then outstanding; or
(v) any such Person who has reported
or is required to report such ownership (but less than
20%) on Schedule 13G under the Securities Exchange Act of
1934, as amended and in effect on the date of this
Agreement (the "Exchange Act") (or any comparable or
successor report) or on Schedule 13D under the Exchange
Act (or any comparable or successor report) which
Schedule 13D does not state any intention to or reserve
the right to control or influence the management or
policies of the Company or engage in any of the actions
specified in Item 4 of such schedule (other than the
disposition of the Common Stock) and, within 10 Business
Days of being requested by the Company to advise it
regarding the same, certifies to the Company that such
Person acquired shares of Common Stock in excess of 14.9%
inadvertently or without knowledge of the terms of the
Rights and who or which, together with all Affiliates and
Associates, thereafter does not acquire additional shares
of Common Stock while the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding; provided,
however, that if the Person requested to so certify fails
to do so within 10 Business Days, then such Person shall
become an Acquiring Person immediately after such
10-Business-Day period.
(b) The first sentence of Section 3(a) of the
Agreement is hereby amended by replacing the reference to "10%" with
"fifteen percent (15%)".
(c) Section 19(a) of the Agreement is hereby
amended by inserting immediately following each occurrence of the word
"corporation" the phrase ", trust company, limited liability company or
limited partnership (or similar form of entity)".
(d) The fifth sentence of Section 21 of the
Agreement is hereby amended and restated in its entirety as follows:
Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be a corporation, trust
company, limited liability company or limited partnership
(or similar form of entity) authorized to conduct
business under the laws of the United States or any state
of the United States, in good standing, having a
principal office in any state of the United States, which
is authorized under such laws to exercise corporate
trust, fiduciary or shareholder services powers and is
subject to supervision or examination by federal or state
authority.
(e) Section 26 of the Agreement is hereby
amended by deleting the address given for the Rights Agent and inserting in
lieu thereof the following:
EquiServe Trust Company, N.A.
One North State Street
11th Floor
Chicago, Illinois 60602
Attention: T. Marshall
Section 6. Miscellaneous.
(a) Ratification; Effect. This Amendment shall
be construed in connection with and as part of the Agreement and all terms,
conditions, representations, warranties, covenants and agreements set forth
in the Agreement and each other instrument or agreement referred to
therein, except as herein amended, are hereby ratified and confirmed and
shall remain in full force and effect. In executing and delivering this
Amendment, the Rights Agent shall be entitled to all the privileges and
immunities afforded to the Rights Agent under the terms and conditions of
the Agreement.
(b) Severability. If any term, provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this
Amendment, and of the Agreement, shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
(c) 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.
(d) Descriptive Headings. Descriptive headings
of this Amendment are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
(e) Governing Law. This Amendment shall be
deemed to be a contract made under the laws of the State of Indiana 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.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all effective as of the day and year first
above written.
Attest: ALLTRISTA CORPORATION
By /s/ Tandy S. Jones By /s/ Thomas B. Clark
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Name: Tandy S. Jones Name: Thomas B. Clark
Title: Administrative Assistant Title: Chairman, President and
Chief Executive Officer
Attest: EQUISERVE TRUST COMPANY, N.A.
By /s/ Kathleen M. Voss By /s/ Tammie J. Marshall
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Name: Kathleen M. Voss Name: Tammie J. Marshall
Title: Manager, Client Support Title: Senior Account Manager