FIRST AMENDMENT TO RIGHTS AGREEMENT
The First Amendment (this "First Amendment"), dated as of September 2,
1998, evidences the first amendment of that certain Rights Agreement (herein so
called) between Cross-Continent Auto Retailers, Inc., a Delaware corporation
(the "Company") and The Bank of New York, as Rights Agent, dated as of September
20, 1996.
RECITALS
WHEREAS, Section 27 of the Rights Agreement provides that the Board of
Directors of the Company (the "Board") may, from time to time, supplement or
amend the Rights Agreement in such manner as the Board deems necessary or
desirable, provided that, at the time of such amendment, no Person had become an
Acquiring Person, as defined in the Rights Agreement; and
WHEREAS, as of the date hereof, no person has become an Acquiring Person as
defined in the Rights Agreement; and
WHEREAS, the Board has authorized the Company to enter into an Agreement
and Plan of Merger (the "Merger Agreement") by and among Republic Industries,
Inc., a Delaware corporation (the "Purchaser"), RI/BG Merger Corp., a Delaware
corporation and a wholly-owned subsidiary of Purchaser ("Merger Sub"), pursuant
to which Merger Sub will be merged with and into the Company and thereby the
Company would become a wholly owned subsidiary of Purchaser; and
WHEREAS, Purchaser and certain stockholders ("Certain Stockholders"),
contemplate entering into a Voting Agreement (the "Voting Agreement"), pursuant
to which Certain Stockholders have agreed to take specified actions in
furtherance of the transactions contemplated by the Merger Agreement, and
WHEREAS, the Board has approved this First Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. Section 1(i) of the Rights Agreement is hereby amended to modify the
definition of "Company Entity" by substituting the definition with
the following language:
"Company Entity" means (i) any Subsidiary of the Company,
(ii) any employee benefit plan or employee stock plan of the
Company or Subsidiary of the Company, (iii) any trust or
other entity organized, appointed, established or holding
Common Stock for or pursuant to the terms of any such plan,
(iv) any person or group of persons who,
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immediately prior to the Record Date, beneficially owned 19.9% or
more of the Common Shares then outstanding, or (v) Purchaser and
its respective Affiliates and Associates; PROVIDED, HOWEVER,
Purchaser and its respective Affiliates and Associates shall not
be treated as a Company Entity with respect to and to the extent
of any acquisition by Purchaser or its Affiliates and Associates
of Beneficial Ownership of Common Shares, or in the event of any
commencement of a tender offer or public disclosure of an intent
to commence a tender offer by Purchaser or its Affiliates and
Associates of that, in each case, is not contemplated or
permitted by the Merger Agreement or the Voting Agreement.
2. Section 1 of the Rights Agreement shall be further amended by adding
the following additional definitions thereto:
"Merger Agreement" shall mean that certain Agreement and
Plan of Merger, dated as of September 3, 1998, by and among
Purchaser, Merger Sub and the Company.
"Merger Sub" means RI/BG Merger Corp., a Delaware
corporation.
"Purchaser" shall mean Republic Industries, Inc., a Delaware
corporation.
"Voting Agreement" shall mean that certain Voting Agreement,
dated as of September 3, 1998, by and among Purchaser and
Stockholders of the Company.
3. This First Amendment shall, for all purposes, be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts to be made and performed entirely within such
state.
4. This First 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. Except to the extent expressly amended by this First Amendment, the
Rights Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the day and year first above written.
CROSS-CONTINENT AUTO RETAILERS, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President of Finance
and Treasurer
THE BANK OF NEW YORK,
AS RIGHTS AGENT
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
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