AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT DATED AS OF OCTOBER 4, 1995 BETWEEN
TRANSPORTATION TECHNOLOGIES INDUSTRIES, INC. AND BANKBOSTON, N.A., AS RIGHTS
AGENT
AMENDMENT NO. 1 DATED AS OF JANUARY 28, 2000, TO THE RIGHTS AGREEMENT
(THE "RIGHTS AGREEMENT") dated as of October 4, 1995 between Transportation
Technologies Industries, Inc., a Delaware corporation (formerly known AS
JOHNSTOWN AMERICA INDUSTRIES, INC., THE "COMPANY"), and BankBoston, N.A., a
national banking association (FORMERLY BANCBOSTON STATE STREET INVESTOR
SERVICES, L.P., THE "RIGHTS AGENT").
WITNESSETH
WHEREAS, the Company and the Rights Agent have previously entered into
the Rights Agreement;
WHEREAS, IT IS PROPOSED THAT THE COMPANY ENTER INTO AN AGREEMENT AND
PLAN OF MERGER (THE "MERGER AGREEMENT") dated as of January 28, 2000 between the
Company and Transportation Acquisition I Corp., a Delaware CORPORATION
("ACQUISITION");
WHEREAS, the Merger Agreement provides that a business combination of
the Company and Acquisition will BE EFFECTED IN TWO STEPS: (I) A JOINT CASH
TENDER OFFER (THE "OFFER") by the Company and Acquisition for all of the issued
and outstanding shares of common stock, par value $0.01 per share, of the
Company, followed by (ii) a MERGER OF ACQUISITION WITH AND INTO THE COMPANY (THE
"MERGER"); and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable in order to reflect the
foregoing, and the Company and the Rights Agent desire to evidence such
amendment in writing.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions Generally.
Capitalized terms not otherwise defined herein shall have the definitions
assigned to them in the Rights Agreement.
Section 2. Effectiveness.
This Amendment shall be deemed effective as of January 28, 2000. Except as
amended hereby, the Rights Agreement shall remain in full force and effect and
shall otherwise remain unaffected hereby.
Section 3. Amendments.
(a)Section 1(a) of the Rights Agreement is amended to add the following sentence
at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
none of Acquisition or the Participants (as such term is defined in the
Merger Agreement), individually or collectively, shall be deemed to be
an Acquiring Person solely as a result of (i) the announcement,
approval, execution or delivery of the Merger Agreement, (ii) the
commencement of the Offer, (iii) the acceptance for payment of Common
Shares in the Offer, (iv) the consummation of the Merger or (v) the
consummation of the other transactions contemplated by the Merger
Agreement."
(b) Section 1(l) of the Rights Agreement is amended to add the
following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Stock Acquisition Date shall not be deemed to have occurred solely as a
result of (i) the announcement, approval, execution or delivery of the
Merger Agreement, (ii) the commencement of the Offer, (iii) the
acceptance for payment of Common Shares in the Offer, (iv) the
consummation of the Merger or (v) the consummation of any of the other
transactions contemplated by the Merger Agreement."
(c) Section 1(n) of the Rights Agreement is amended to add the
following at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Triggering Event shall not be deemed to have occurred solely as a
result of (i) the announcement, approval, execution or delivery of the
Merger Agreement, (ii) the commencement of the Offer, (iii) the
acceptance for payment of Common Shares in the Offer, (iv) the
consummation of the Merger or (v) the consummation of any of the other
transactions contemplated by the Merger Agreement."
(d) Section 1 of the Rights Agreement is amended to add the following
at the end thereof:
"ACQUISITION" means Transportation Acquisition I Corp., a
Delaware corporation.
"MERGER" means the "Merger" as defined in the Merger Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger
dated as of January 28, 2000 between the Company and Acquisition, as
amended from time to time.
"OFFER" means the "Offer" as defined in the Merger
Agreement.
(e) Section 2 of the Rights Agreement is amended by deleting the final
sentence thereof and inserting in lieu thereof the following:
"The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable, upon
ten (10) days' prior written notice to the Rights Agent. The
Rights Agent shall have no duty to supervise, and shall in no
event be liable for, the acts or omission of any such
Co-Rights Agent."
(f) Section 3(a) of the Rights Agreement is amended to add the
following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as a
result of (i) the announcement, approval, execution or delivery of the
Merger Agreement, (ii) the commencement of the Offer, (iii) the
acceptance for payment of Common Shares in the Offer, (iv) the
consummation of the Merger or (v) the consummation of any of the other
transactions contemplated by the Merger Agreement."
(g) Subsection 7(a) of the Rights Agreement is amended and restated to
read as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of
any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the office
or offices of the Rights Agent designated for such purpose, together
with payment of the aggregate Purchase Price with respect to the total
number of one one-thousandths of a share (or other securities, cash or
other assets, as the case may be) as to which such surrendered Rights
are then exercisable, at or prior to the earliest of (i) the close of
business ON OCTOBER 4, 2005 (THE "FINAL EXPIRATION DATE"), (ii) the
time at which the Rights are redeemed as PROVIDED IN SECTION 23 HEREOF
(THE "REDEMPTION DATE") or (iii) the effective time of the Merger
pursuant TO THE MERGER AGREEMENT (THE EARLIEST OF (I), (II) AND (III)
BEING REFERRED TO AS THE "EXPIRATION Date")."
(h) Section 13 of the Rights Agreement is amended to add the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
(i) the announcement, approval, execution or delivery of the Merger
Agreement, (ii) the commencement of the Offer, (iii) the acceptance for
payment of Common Shares in the Offer, (iv) the consummation of the
Merger or (v) the consummation of the other transactions contemplated
in the Merger Agreement shall not be deemed to be an event described in
this Section 13 and shall not cause the rights to be adjusted or
exercisable in accordance with this Section 13."
(i) Section 18(a) of the Rights Agreement is amended by deleting the
second sentence thereof in its entirety and inserting in lieu thereof
the following:
"The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without gross negligence, bad
faith or willful misconduct on the part of the Rights Agent,
for anything done or omitted by the Rights Agent in connection
with the acceptance and administration of this Agreement,
including the costs and expenses of defending against any
claim of liability in the premises."
(j) Section 20(c) of the Rights Agreement is amended by deleting such
Section 20(c) in its entirety and inserting in lieu thereof the
following:
"(c) The Rights Agent shall be liable hereunder only
for its own gross negligence, bad faith or willful
misconduct."
(k) Section 25 of the Rights Agreement is amended by deleting the name
and address of the Rights Agent in its entirety and inserting in lieu
thereof the following:
"BankBoston, N.A
Equiserve Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Client Administration"
Section 4. Severability.
If any term, provision, covenant or restriction of this Amendment 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 shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 5. Governing Law.
This Amendment shall be deemed to be a contract made under the laws of Delaware
and for all purposes shall be governed by and construed in accordance with such
laws applicable to contracts to be made and performed entirely within such
jurisdiction.
Section 6. 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 one and the same instrument.
Section 7. Descriptive Headings.
The captions herein are included for convenience of reference only, do not
constitute a part of this Amendment and shall be ignored in the construction and
interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
ATTEST: TRANSPORTATION TECHNOLOGIES
INDUSTRIES, INC.
By: _________________________ By: __________________________
Name: Name:
Title: Title:
ATTEST: BANKBOSTON, N.A.
By:_________________________ By:__________________________
Name: Name:
Title: Title:
