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EXHIBIT 4.9
FIRST AMENDMENT
TO THE RIGHTS AGREEMENT
DATED AS OF JULY 9, 1999
BETWEEN NOVA CORPORATION AND
FIRST UNION NATIONAL BANK, RIGHTS AGENT
THIS FIRST AMENDMENT (the "First Amendment") to the Rights Agreement dated
as of July 9, 1999 between NOVA Corporation and First Union National Bank, as
Rights Agent (the "Rights Agreement") is made on the 3rd day of August, 2000 by
NOVA Corporation (the "Company").
W I T N E S S E T H
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WHEREAS the Company has established the Rights Agreement;
WHEREAS, Section 27 of the Rights Agreement permits the Company to
supplement or amend any provision of the Rights Agreement, subject to certain
conditions, without the approval of the holders of the Rights, in any manner
which the Company may deem necessary or desirable and which shall not adversely
affect the interests of the holders of Rights Certificates;
WHEREAS, the Company deems it necessary and desirable to amend the Rights
Agreement in order to clarify the definition of "Acquiring Person;"
NOW, THEREFORE, the Company hereby amends the Rights Agreement as follows:
1.
Section 1.(a) shall be amended by deleting the current Section 1.(a) in its
entirety and inserting in lieu thereof the following replacement Section 1.(a):
(A) (i) "Acquiring Person" shall mean any Person who or which, together with
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all Affiliates and Associates of such Person, shall, after the Rights
Dividend Declaration Date, become the Beneficial Owner of 10% or more of
the shares of Common Stock then outstanding, but shall not include the
Company, any Subsidiary of the Company, or any Person who or which,
together with all Affiliates and Associates of such Person, is the
Beneficial Owner of 10% or more of the shares of Common Stock of the
Company as of the Record Date, any employee benefit plan of the Company or
of any Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the terms of any
such plan; provided, however, any Person who or which, together with all
Affiliates and Associates of such Person, is the Beneficial Owner of 10% or
more of the shares of Common Stock as of the Record Date, and subsequently
acquires any additional shares of Common Stock shall be deemed an Acquiring
Person, subject to the provisions below.
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(ii) Nothwithstanding the foregoing, any Person who or which, together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of
10% or more, but less than 15%, of the shares of Common Stock then
outstanding shall not be deemed an Acquiring Person for any purposes of
this Agreement if a majority of the Continuing Directors (as defined below)
or, if there are then no Continuing Directors, a majority of the Board of
Directors of the Company, determines in good faith that such Person has
become such as the result of an acquisition of shares of Common Stock by
the Company or a recapitalization, or has acquired the shares of Common
Stock of the Company inadvertently or for investment purposes only;
provided that, as part of such determination, the Board of Directors may
require that 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 provisions of this Section
1(a). In the event that a Person whom or which the Board of Directors, in
accordance with the foregoing procedure, has determined is not an Acquiring
Person, acquires any additional shares subsequent to such determination,
such Person shall be deemed an Acquiring Person unless (i) such Person
still is the Beneficial Owner of less than 15% of the shares of Common
Stock then outstanding and (ii) the Board of Directors again makes a
determination with respect to such Person in accordance with the foregoing
procedures. Notwithstanding the foregoing, if a Person becomes the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding solely as the result of a recapitalization or the repurchase of
shares of Common Stock by the Company, the Board of Directors shall have
the authority to make the same determination with respect to that Person as
outlined above; provided, however, that any additional acquisition of
shares of Common Stock by that Person subsequent to such determination
shall cause that Person to be deemed an Acquiring Person.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to the
Rights Agreement to be duly executed as of the date and year first above
written.
Attest: NOVA CORPORATION
By: /s/ Carole A. Loftin By: /s/ Edward Grzedzinski
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Carole A. Loftin Edward Grzedzinski
Vice President and Chairman of the Board, President
Assistant Secretary and Chief Executive Officer
Attest: FIRST UNION NATIONAL BANK
By: /s/ Holly Drummond By: /s/ Kristin Knapp
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Name: Holly Drummond Name: Kristin Knapp
Title: Corp. Trust Officer Title: Assistant Vice President/Rel.
Mgr
