Exhibit 4.22 

 

SECOND AMENDMENT TO RIGHTS AGREEMENT 

 

Second Amendment, dated as of November 11, 2003 (this “Amendment”), to Rights Agreement, dated as of December 31, 1997 (the “RightsAgreement”), between Midas, Inc., a Delaware corporation (the “Company”), and EquiServe Trust Company, N.A., a national banking association (the “Rights Agent”). 

 

W I T N E S S E T H: 

 

WHEREAS, the Board of Directors of the Company, at a meeting held on November 11, 2003 and based in part on the recommendation of the Company’sfinancial advisors, has determined that it is advisable and in the best interest of the Company to amend the Rights Agreement to increase the thresholds set forth in Sections 1(a) and 3(a) from 13.0% to 15.0%; 

 

WHEREAS, at the date of this Amendment, the Distribution Date has notoccurred and there is no Acquiring Person; and 

 

WHEREAS, incompliance with Section 27 of the Rights Agreement, the Company and the Rights Agent are willing to amend the Rights Agreement as hereinafter set forth and the Company and the Rights Agent have each executed and delivered this Amendment. 

 

NOW, THEREFORE, in consideration of the Rights Agreement and the mutualagreements herein set forth, the parties hereby agree as follows: 

 

1. Section 1(a) of the Rights Agreement is hereby amended and restated to read as follows: 

 

“(a) Acquiring Person” shall mean any Person who or which, together with all Affiliates and Associates of such Person, shall be the BeneficialOwner of 15.0% or more of the shares of Common Stock then outstanding, but shall not include the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person organized, appointedor established by the Company for or pursuant to the terms of any such plan. Notwithstanding the foregoing, no Person shall become an “Acquiring Person” as the result of an acquisition of shares of Common Stock by the Company which, byreducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person to 15.0% or more of the shares of Common Stock then outstanding; PROVIDED, HOWEVER, that if a Person shall become theBeneficial Owner of 15.0% or more of the shares of Common Stock 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 shares of Common Stock(other than pursuant to a dividend or distribution paid or made by the Company on the 

outstanding Common Stock or pursuant to a split or subdivision of the outstanding Common Stock), thensuch 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 definedpursuant to the foregoing provisions of this paragraph (a)) has become such inadvertently, and such Person divests as promptly as practicable (as determined in the good faith by the Board of Directors) a sufficient number of shares of Common Stockso 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 thisAgreement.” 

 

2. Section 3(a) of the Rights Agreement ishereby amended by replacing the reference to the percentage “13%” contained herein with a reference to the percentage “15.0%”. 

 

3. The first sentence of the first paragraph appearing on page B-2 of the form of Rights Certificates attached as Exhibit B to the Rights Agreement ishereby amended by replacing the phrase “Rights Agreement, dated as of December 31, 1997 (the “contained therein with the phrase “Rights Agreement, dated as of December 31, 1997, as amended by the First Amendment dated as of May 12,1999 and as further amended by the Second Amendment dated as of November 11, 2003 thereto (collectively, the”. 

 

4. The last sentence of the first paragraph of the Summary of Rights to Purchase Preferred Stock attached as Exhibit C to the Rights Agreement is herebyamended and restated to read as follows: 

 

“Thedescription and terms of the Rights are set forth in a Rights Agreement, dated as of December 31, 1997, a amended by the First Amendment dated as of May 12, 1999 and as further amended by the Second Amendment dated as of November 11, 2003 thereto(collectively, the “Rights Agreement”), between the Company and First Chicago Trust Company of New York, as Rights Agent.” 

 

5. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construedwith in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State. 

 

6. This Amendment may be executed in two or more counterparts, each of which shall for all purposes be deemed to be an original, but all such counterpartsshall together constitute one and the same instrument. 

 

7. Anycapitalized term used herein without definition shall have the meaning specified in the Rights Agreement. 

 

8. Except as otherwise expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any other manner affectany of the terms, conditions, obligations, covenants or agreements contained in the Rights Agreement, all of which are hereby ratified and confirmed in all respects and shall continue in full force and effect. 

 

9. Under the Definitions Section 3(e), change “.., on which bankinginstitutions in the State of Illinois...” to the “Commonwealth of Massachusetts”. 

 

10. Under the Definitions Section 3(f) change “... Chicago time” to “Eastern Standard Time”. 

 

11. Insert for Section 2 — Appointment of Rights Agent — After theword “desirable”, insert the following: 

 

, upon ten(10) days’ prior written notice to the Rights Agent. The Rights Agent shall have no duty to supervise, and in no event be liable for, the acts or omissions of any such co-Rights Agent. 

 

12. Add to Section 21 — “Change of Rights Agent” — Afterfirst sentence ending with “... by first-class mail.” add: 

 

“In the event the transfer agency relationship in effect between the Company and the Rights Agent terminates, the Rights Agent will be deemed to resign automatically on the effective date of such termination; and any required noticewill be sent by the Company.” 

 

13. Insert new Section— “Force Majeure” 

 

Notwithstanding anything tothe contrary contained herein, Rights Agent shall not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns ormalfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest. 

 

 

2 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and attested, allas of the day and year first above written. 

 

Attest:
 MIDAS, INC.
By:
   By:       
Alvin K. Marr

GeneralCounsel
   
Name: Alan D. Feldman

President and ChiefExecutive Officer

Attest:
     EQUISERVE
By:
   By: