Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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AMENDMENT No. 1 (the "Amendment"), dated as of July 16, 2000, to the
Rights Agreement, dated as of February 26, 1999 (the "Rights Agreement"),
between Fort James Corporation, a Virginia corporation (the "Company"), and
Wells Fargo Bank Minnesota, N.A. (successor to Norwest Bank Minnesota, N.A.),
as Rights Agent (the "Rights Agent").
Recitals
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A. The Company and Norwest Bank Minnesota, N.A. have heretofore
executed and entered into the Rights Agreement.
B. Georgia-Pacific Corporation, a Georgia corporation ("Parent"),
Fenres Acquisition Corp., a Virginia corporation and wholly owned subsidiary of
Parent ("Merger Sub"), and the Company have proposed to enter into an Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which Merger Sub will be
merged with and into the Company, with the Company as the surviving corporation
(the "Merger"), all on the terms and subject to the conditions set forth in the
Merger Agreement.
C. The Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger and the Merger Agreement, and all of the transactions
contemplated thereby, in accordance with the terms thereof, from application of
the Rights Agreement.
D. Pursuant to Section 27 of the Rights Agreement, therefore, the
Board of Directors of the Company hereby resolves that an amendment to the
Rights Agreement as set forth herein is necessary and desirable to reflect the
foregoing, and the Company and the Rights Agent desire to evidence such
amendment in writing.
E. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
In consideration of the foregoing and the mutual agreements set
forth herein, the Company and the Rights Agent hereby amend the Rights Agreement
as follows:
1. Section 1(a) of the Rights Agreement is modified and amended
to read 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 15% or more of the Common Shares of the Company
then outstanding, but shall not include (a) the Company, (b) any
Subsidiary of the Company, (c) any employee benefit plan of the
Company or any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan, or (d)
Georgia-Pacific
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Corporation, a Georgia corporation ("Georgia-Pacific") or any
Affiliate or Associate of Georgia-Pacific solely to the extent that
each may, without being deemed an Acquiring Person, execute and
deliver the Agreement and Plan of Merger, dated as of July 16, 2000,
by and among Georgia-Pacific, Merger Sub and the Company, as it may
be amended and supplemented from time to time (the "Merger
Agreement"), commence or consummate the Offer (as defined in the
Merger Agreement) or consummate any of the other transactions
contemplated by the Merger Agreement. Notwithstanding the foregoing,
no Person shall become an "Acquiring Person" as the result of an
acquisition of Common Shares by the Company which, by reducing the
number of Common Shares of the Company outstanding, increases the
proportionate number of Common Shares of the Company beneficially
owned by such Person to 15% or more of the Common Shares of the
Company then outstanding; provided, however, that, if a Person shall
become the Beneficial Owner of 15% or more of the Common Shares of
the Company 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 Common Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person."
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 Common Shares 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. The first paragraph of Section 3 of the Rights Agreement is
amended by inserting the following sentence after the first sentence thereof:
Notwithstanding the foregoing, no Distribution Date shall occur as a
result of the execution and delivery of the Merger Agreement, the
commencement or consummation of the Offer or the consummation of the
other transactions contemplated by the Merger Agreement.
3. The Section 7(a) of the Rights Agreement is hereby modified and
amended by deleting the word "or" between clauses (ii) and (iii) of the first
sentence of Section 7(a) and inserting the following as a new (iv):
", or (iv) immediately prior to the Acceptance Date (as such term is
defined in the Merger Agreement)."
4. The Rights Agreement is hereby modified and amended by adding a
new Section 34 to the end thereof to read in its entirety as follows:
"Section 34. Merger Agreement. Notwithstanding any other provision
of this Rights Agreement, neither the approval, execution or
delivery of the Merger Agreement, nor the performance thereof, the
commencement or consummation of
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the Offer or the consummation of the other transactions contemplated
by the Merger Agreement, is or shall be deemed to be an event
described in Section 11(a)(ii) or Section 13, nor will such
performance or consummation result in the occurrence of a Shares
Acquisition Date, a Distribution Date or any other separation of the
Rights from the underlying Common Shares, nor entitle or permit the
holders of the Rights to exercise the Rights or otherwise affect the
rights of the holders of Rights, including giving the holders of the
Rights the right to acquire securities of any party to the Merger
Agreement."
5. This Amendment shall become effective as of the date of the
Merger Agreement. If the Merger Agreement is terminated without the consummation
of the Offer having occurred, this Amendment shall be null and void.
6. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Virginia and for all
purposes shall be governed by and construed in accordance with the laws of such
state applicable to contracts to be made and performed entirely within such
state.
7. This Amendment to the Rights Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument. Terms not
defined herein shall, unless the context otherwise requires, have the meanings
assigned to such terms in the Rights Agreement.
8. In all respects not inconsistent with the terms and provisions of
this Amendment to the Rights Agreement, the Rights Agreement is hereby ratified,
adopted, approved and confirmed. 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 Rights Agreement.
9. If any term, provision, covenant or restriction of this Amendment
to the Rights Agreement 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 to the Rights
Agreement, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
FORT JAMES CORPORATION
By:/s/ Clifford A. Cutchins
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Name: Clifford A. Cutchins
Title:Senior Vice President,
General Counsel and Corporate
Secretary
WELLS FARGO BANK MINNESOTA, N.A.
By: /s/ Susan Roeder
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Name: Susan Roeder
Title:Account Manager
