EXHIBIT 99.6
AMENDMENT NO. 4 TO RIGHTS AGREEMENT
This AMENDMENT NO. 4 TO RIGHTS AGREEMENT (this "Amendment"), dated as of
December 14, 1996, is entered into by and between ELJER INDUSTRIES, INC., a
Delaware corporation (the "Company"), and XXXXXX TRUST AND SAVINGS BANK, an
Illinois banking corporation (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to that certain Rights
Agreement, dated as of April 14, 1989 and amended on July 31, 1989, January 4,
1990 and November 5, 1991 (as so amended, the "Rights Agreement"; all
capitalized terms used but not otherwise defined herein having the meanings
given such terms in the Rights Agreement);
WHEREAS, the Company, Xxxx Industries, Inc., a Pennsylvania corporation
("Xxxx"), and Xxxx Acquisition Co., Inc., a Delaware corporation ("Sub"),
intend to enter into an Agreement and Plan of Merger dated as of the date
hereof (the "Merger Agreement").
WHEREAS, neither Xxxx nor Sub will enter into the Merger Agreement unless
the Company and its Board of Directors first shall have taken all actions
necessary so that (i) the execution and delivery of the Merger Agreement, the
consummation of the transactions contemplated thereby and the other matters
provided for therein will not result in (A) Xxxx or Sub or any of their
respective Affiliates and Associates being an Acquiring Person, (B) the
occurrence of a Distribution Date, or (C) the Rights becoming exercisable and
(ii) the Final Expiration Date will occur immediately prior to the purchase of
Shares (as defined in the Merger Agreement) pursuant to the Offer (as defined
in the Merger Agreement) (such conditions being hereinafter referred to
collectively as the "Rights Conditions");
WHEREAS, the Company's Board of Directors has unanimously adopted and
approved all actions necessary to satisfy the Rights Conditions; and
WHEREAS, pursuant to and in compliance with the provisions of Section 27 of
the Rights Agreement, the Company and the Rights Agent desire to amend the
Rights Agreement as hereinafter set forth.
NOW THEREFORE, in consideration of the premises and agreements herein
contained, the Company and the Rights Agent agree as follows:
Section 1. Section 1(a) of the Rights Agreement is amended by adding at the
end thereof the following:
"Notwithstanding the foregoing, neither Xxxx Industries, Inc., a
Pennsylvania corporation ("Xxxx Industries"), nor Xxxx Acquisition Co.,
Inc., a Delaware corporation and wholly-owned subsidiary of Xxxx
Industries ("Xxxx Acquisition Co."), nor any of their respective
Affiliates and Associates, shall be deemed an "Acquiring Person" as a
result of or in connection with the transactions contemplated by that
certain Agreement and Plan of Merger, dated as of December 14, 1996,
among the Company, Xxxx Industries and Xxxx Acquisition Co. (as amended
from time to time, the "Merger Agreement"), including, without
limitation, the Offer and the Merger (each as defined in the Merger
Agreement), and the other matters provided for therein.
Section 2. Section 3(a) of the Rights Agreement is hereby amended by adding
thereto at the end of the first sentence thereof the following:
"; provided, however, that neither the transactions contemplated by the
Merger Agreement (including, without limitation, the Offer and the
Merger) nor any of the other matters provided for therein shall be
deemed to have caused the occurrence of the Distribution Date"
Section 3. Section 7 of the Rights Agreement is hereby amended by deleting
therefrom clause (i) thereof and substituting in its place the following:
"(i) the earlier of (A) the close of business on May 1, 1999, unless
extended pursuant to Section 27, and (B) the moment in time immediately
prior to purchase of Shares pursuant to the Offer (such earlier date
being the "Final Expiration Date"),
Section 4. The form of Right Certificate attached to the Rights Agreement as
Exhibit A is hereby amended by deleting the word "and" preceding the date
"November 5, 1991" in the first sentence of the first paragraph thereof,
substituting in its place a comma and adding immediately after such date the
phrase "and December 14, 1996."
Section 5. This Amendment may be executed in two or more counterparts, all
of which shall be considered one and the same instrument and shall become
effective when executed and delivered by both parties, it being understood
that all parties need not sign the same counterpart.
Section 6. Except as set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants, or agreements contained in the
Rights Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force and effect.
Section 7. This Amendment shall be governed and construed in accordance with
the laws of the State of Delaware, without giving effect to the principles of
conflict of laws thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first set forth above.
ELJER INDUSTRIES, INC.
/s/ Xxxxx X. Xxxxxxxx
By: _________________________________
Xxxxx X. Xxxxxxxx
Name: _______________________________
Chairman & C.E.O.
Title: ______________________________
XXXXXX TRUST AND SAVINGS BANK
/s/ X.X. Xxxx
By: _________________________________
X.X. Xxxx
Name: _______________________________
Assistant Vice President
Title: ______________________________
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