SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second Amendment to Rights Agreement (the "Amendment"), dated as
of December 12, 2002, is entered into by and between Xxxxxxxx'x International,
Inc., a Delaware corporation (the "Company") and The Chase Manhattan Bank
(formerly known as Chemical Bank) as successor Rights Agent (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement dated as of September 7, 1994, as amended by the First
Amendment to Rights Agreement dated as of May 13, 1999 (as amended, the "Rights
Agreement");
WHEREAS, the Rights Agreement contains terms defining an "Acquiring
Person;"
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company and its stockholders to amend the Rights
Agreement to change such terms as set forth herein;
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Rights
Agreement may be amended as set forth herein without the approval of the holders
of the Rights;
WHEREAS, unless otherwise defined in this Amendment, capitalized terms
used herein shall have the meanings given to them in the Rights Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the Company and the Rights Agent agree as follows:
1. Amendment of Rights Agreement. Effective as of the date
hereof,
(a) Section 1 is amended so that the definition of "Acquiring
Person" shall read as follows:
"Acquiring Person" shall mean any Person who or which, alone
or together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of more than 15% (or, if such
Person is an Institutional Investor, more than 20%) of the
Common Shares then outstanding, other than pursuant to a
Qualifying Offer, but shall not include (a) the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any of its Subsidiaries, or any Person holding
Common Shares for or pursuant to the terms of any such
employee benefit plan or (b) any such Person who has become
and is such a Beneficial Owner solely because (i) of a change
in the aggregate number of Common Shares outstanding since the
last date on which such Person acquired Beneficial Ownership
of any Common Shares, (ii) it acquired such Beneficial
Ownership in the good faith belief that such acquisition would
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not (x) cause such Beneficial Ownership to exceed 15% (or, if
such Person is an Institutional Investor, exceed 20%) of the
Common Shares then outstanding 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 (y) otherwise cause a
Distribution Date or the adjustment provided for in Section
11(a) to occur or (iii) of shares acquired directly from the
Company in connection with the Company's acquisition of a
business or pursuant to an agreement with the Company stating
such Person is not intended to become an Acquiring Person as a
result of such acquisition. Notwithstanding clause (b)(ii) of
the prior sentence, if any Person that is not an Acquiring
Person due to such clause (b)(ii) does not reduce its
percentage of Beneficial Ownership of Common Shares to 15% or
less (or, if such Person is an Institutional Investor, 20% or
less) 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 Shares
so exceeds 15% (or, if such Person is an Institutional
Investor, 20%), such Person shall, at the end of such five
Business Day period, become an Acquiring Person (and such
clause (b)(ii) 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 of the Company.
(b) Section 1 is amended so as to add the following definition of
"Institutional Investor" between the definition of "Expiration
Date" and the definition of "Major Part":
"Institutional Investor" shall mean a Person who (a) has a
Schedule 13G on file with the Securities and Exchange
Commission pursuant to the requirements of Rule 13d-1 under
the Exchange Act with respect to its holdings of the Company's
Common Shares ("Schedule 13G"), so long as (i) such Person is
principally engaged in the business of managing investment
funds for unaffiliated securities investors and, as part of
such Person's duties as agent for fully managed accounts,
holds or exercises voting or dispositive power over Common
Shares, (ii) such Person acquires Beneficial Ownership of
Common Shares pursuant to trading activities undertaken in the
ordinary course of such Person's business and not with the
purpose nor the effect, either alone or in concert with any
Person, of exercising the power to direct or cause the
direction of the management and policies of the Company or of
otherwise changing or influencing the control of the Company,
nor in connection with or as a participant in any transaction
having such purpose or effect, including any transaction
subject to Rule 13d-3(b) of the Exchange Act, and (iii) if
such Person is a Person included in Rule 13d-1(b)(1)(ii) of
the Exchange Act, such Person is not obligated to, and does
not, file a Schedule 13D with respect to the securities of the
Company, and (b) is deemed to be an Institutional Investor by
the Board of Directors, in their sole discretion.
2. Rights Agreement in Full Force and Effect. Except as amended
hereby, the Rights Agreement shall remain in full force and
effect.
3. Governing Law. 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 construed in accordance with
the laws of such State applicable to contracts to be made and
performed entirely within such State.
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4. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
5. Effective Date. Pursuant to Section 26 of the Rights Agreement
this Amendment shall become effective immediately upon
execution by the Company, whether or not also executed by the
Rights Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
XXXXXXXX'X INTERNATIONAL, INC.
By:
Title:
THE CHASE MANHATTAN BANK (formerly known as
CHEMICAL BANK), as successor Rights Agent
By:
Title:
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