Exhibit 4.1
FIRST AMENDMENT TO
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
This
First Amendment to the Shareholder Protection Rights Agreement,
dated as of October 8, 2009 (this “ Amendment
”), is by and between Monterey Gourmet Foods, Inc., a
Delaware corporation (the “ Company ”), and
Corporate Stock Transfer, Inc., a Colorado corporation, as Rights
Agent (the “ Rights Agent ”).
WITNESSETH
WHEREAS,
the Company and the Rights Agent are parties to that certain
Shareholder Protection Rights Agreement, dated as of July 1, 2008
(the “ Rights Agreement ”);
WHEREAS,
Pulmuone U.S.A., Inc., a California corporation (“
Parent ”), Pulmuone Cornerstone Corporation, a newly
formed Delaware corporation and wholly owned subsidiary of Parent
(“ Purchaser ”), and the Company are entering
into an Agreement and Plan of Merger (the “Merger
Agreement”), dated as of the date hereof, pursuant to which
(i) Purchaser will commence a cash tender offer (the “
Offer ”) to purchase all of the issued and outstanding
shares of common stock, par value $.001 per share, of the Company
and (ii) following consummation of the Offer, Purchaser will merge
with and into the Company with the Company surviving as a wholly
owned subsidiary of Parent (the “ Merger
”);
WHEREAS,
the board of directors of the Company (i) has approved the Merger
Agreement and the transactions contemplated thereby (including the
Offer and the Merger) and (ii) has unanimously determined that an
amendment to the Rights Agreement as set forth herein is necessary
and desirable in connection with the Merger Agreement and the
transactions contemplated by the Merger Agreement (including the
Offer and the Merger); and
WHEREAS,
the Company and Rights Agent desire to amend the Rights Agreement
as set forth herein.
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, and intending to be
legally bound hereby, and pursuant to the Rights Agreement and in
accordance with Section 27 thereof, the parties do hereby agree as
follows (capitalized terms used but not defined herein have the
meanings ascribed to such terms in the Rights
Agreement):
1.
Amendments to the Rights Agreement . The Rights Agreement
shall be amended as follows:
(a)
Section 1(a) of the Rights Agreement is hereby amended to add the
following sentence at the end thereof:
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“Notwithstanding anything
in this Agreement to the contrary, Pulmuone U.S.A., Inc. and its
Affiliates and Associates shall not be or become, or be deemed to
be, an “Acquiring Person” or be deemed to be a
“Beneficial Owner,” either individually or
collectively, as the result of (i) the public or other announcement
of the Merger Agreement or any transaction contemplated thereby or
arising in connection therewith (including the Offer and the
Merger), (ii) the approval, execution or delivery of the Merger
Agreement or any memorandum of understanding contemplating the
execution of the Merger Agreement, or (iii) the announcement,
commencement or consummation of the Offer, the Merger, or any other
transaction contemplated by or arising in connection with the
Merger Agreement (each such event or any combination of such
events, an “Exempt Event”).”
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(b)
Section 1(r) of the Rights Agreement is hereby amended to add the
following sentence at the end thereof:
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“; provided ,
however , that notwithstanding anything in this Agreement to
the contrary, a Shares Acquisition Date has not occurred and shall
not be deemed to have occurred as the result of an Exempt
Event.”
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(c)
Section 1(w) of the Rights Agreement is hereby amended to add the
following sentence at the end thereof:
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“; provided ,
however , that notwithstanding anything in this Agreement to
the contrary, a Trigger Event has not occurred and shall not be
deemed to have occurred as the result of an Exempt
Event.”
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(d)
The following definitions shall be added to Section 1 of the Rights
Agreement in the appropriate locations and the remaining sections
shall be renumbered accordingly:
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“Merger” shall have
the meaning assigned to such term in the Merger
Agreement.
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“Merger Agreement”
shall mean the Agreement and Plan of Merger, dated as of October 8,
2009, by and among the Company, Pulmuone U.S.A., Inc., and Pulmuone
Cornerstone Corporation.
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“Offer” shall have
the meaning assigned to such term in the Merger
Agreement.
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“Pulmuone U.S.A.,
Inc.” shall mean Pulmuone U.S.A., Inc., a Califor
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