EXHIBIT 4.1
RIGHTS AGREEMENT AMENDMENT
Rights Agreement Amendment, dated as of August 31, 2001 (this
"Amendment"), to the Rights Agreement dated as of May 22, 1995, as amended on
July 15, 1997, July 16, 1999, September 12, 2000 and October 24, 2000 (the
"Rights Agreement"), between Iwerks Entertainment, Inc., a Delaware corporation
(the "Company") and U.S. Stock Transfer Corporation, as Rights Agent (the
"Rights Agent").
The Company and the Rights Agent have heretofore executed and delivered
the Rights Agreement. Pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of Section 27 thereof.
In consideration of the foregoing premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereto agree as
follows:
1. The definition of "Acquiring Person" in Section 1 of the Rights
Agreement is hereby amended and restated to read in its entirety as follows:
""Acquiring Person" shall mean (i) any Person (as hereinafter defined)
who is an Adverse Person (as hereinafter defined), or (ii) any Person who or
which, together with all Affiliates (as hereinafter defined) and Associates (as
hereinafter defined) of such Person, shall, subsequent to the Declaration Date,
become the Beneficial Owners (as hereinafter defined) of 15% of more of the
shares of Common Stock then outstanding, but shall not include (x) an Exempt
Person (as hereinafter defined) or (y) any Person who becomes a Beneficial Owner
solely because (1) of a change in the aggregate number of shares of Common Stock
outstanding since the last date on which such Person acquired Beneficial
Ownership of any shares of Common Stock, or (2) it acquired such Beneficial
Ownership in the good faith belief that such acquisition would not (A) cause
such Beneficial Ownership to exceed 15% of the shares of Common Stock then
outstanding (or, in the case of S. Kumars (Investments) Limited, UK, the
percentage S. Kumars (Investments) Limited, UK may hold without ceasing to be an
Exempt Person) and such Person relied in good faith in computing the percentage
of its Beneficial Ownership on publicly filed reports or documents of the
Company which are inaccurate or out-of-date, or (B) otherwise cause a
Distribution Date or the adjustment provided for in Section 11 to occur.
Notwithstanding clause (y) of the prior sentence, if any Person that is not an
Acquiring Person because of the operation of such clause (y) does not reduce its
Beneficial Ownership of shares of Common Stock to 15% or less (or, in the case
of S. Kumars (Investments) Limited, UK, the percentage S. Kumars (Investments)
Limited, UK may hold without ceasing to be an Exempt Person) by the close of
business on the fifth Business Day after notice from the Company (the date of
notice being the first day) that such Person's Beneficial Ownership of Common
stock so exceeds 15% (or, in the case of S. Kumars (Investments) Limited, UK,
the percentage S. Kumars (Investments) Limited, UK may hold without ceasing to
be an Exempt Person), such Person shall, at the end of such five Business Day
period, become an Acquiring Person (and clause (y) shall no longer apply to such
Person). For purposes of this definition, the determination whether any Person
acted in "good faith" shall be conclusively determined by the Board of
Directors, acting by a vote of those directors of the Company whose approval
would be required to redeem the Rights under Section 24. Notwithstanding
anything in this Rights Agreement, none of Donald Iwerks, Gary Matus, Bruce
Beda, Peter Hanelt, Jeff Dahl, Michael Needham or Robert Ryan or their
respective Affiliates or Associates, or any other Person, shall
become an "Acquiring Person" as the result of entering into, performing the
terms of, or consummating the transactions contemplated by (x) the Agreement and
Plan of Merger, dated as of August 31, 2001, as amended from time to time (the
"Merger Agreement"), among the Company, SimEx Acquisition Co., a Delaware
corporation and SimEx, Inc., an Ontario corporation, or (y) the Voting
Agreements and Proxies entered into between SimEx, Inc. and each of Donald
Iwerks, Gary Matus, Bruce Beda, Peter Hanelt and Jeff Dahl (collectively, the
"Voting Agreements and Proxies")."
2. Section 3(a) of the Rights Agreement is further amended by adding a
new sentence as the final sentence thereto, which shall read in its entirety as
follows:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as a result of (i)
the approval, execution or delivery of the Merger Agreement or the Voting
Agreements and Proxies, or (ii) the consummation of the Merger (as defined in
the Merger Agreement) or the performance of the terms of the Voting Agreements
and Proxies, or (iii) the acquisition by S. Kumars (Investments) Limited, UK of
Beneficial Ownership of Common Stock in an amount less than or equal to 25% of
the then outstanding Common Stock."
3. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware.
4. This Amendment may be executed in any number of counterparts and 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.
5. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
IWERKS ENTERTAINMENT, INC.
By: /S/ JEFFREY M. DAHL
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Title: CHIEF FINANCIAL OFFICER
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U.S. STOCK TRANSFER CORPORATION
By: /S/ RICHARD C. BROWN
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Title: VICE PRESIDENT
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