EXECUTION COPY
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (the "Amendment"), dated as of December 8, 1999, to
the Rights Agreement, dated as of May 4, 1999 (the "Rights Agreement"), between
Xxxxxxx Corporation, a Delaware corporation (the "Company"), and ChaseMellon
Shareholder Services, L.L.C., a New Jersey limited liability company, as Rights
Agent (the "Rights Agent").
RECITALS
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
B. The Company, Torque Acquisition Co., L.L.C., a Delaware
limited liability company and a wholly owned subsidiary of Vestar Capital
Partners IV, L.P. ("Acquisition Company"), and Torque Merger Sub, Inc., a
Delaware corporation and wholly owned subsidiary of Acquisition Company
("Merger Subsidiary"), intend to enter into an Agreement and Plan of Merger
(the "Merger Agreement"), pursuant to which, among other things, (i) the
Company and Acquisition Company shall jointly commence a cash tender offer
(the "Offer") to purchase all shares of common stock, par value $1.00 per
share, of the Company and (ii) Merger Subsidiary shall merge with and into
the Company (the "Merger"), with the Company continuing as the surviving
corporation. The Board of Directors of the Company has approved the Merger,
the Offer and the Merger Agreement.
C. Pursuant to Section 27 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.
Accordingly, the parties agree as follows:
1. AMENDMENT OF SECTION 1(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
Torque Acquisition Co., L.L.C. ("Acquisition Company"), Torque Merger
Sub, Inc. ("Merger Subsidiary"), Vestar Capital Partners IV, L.P.,
Vestar Capital Partners, the stockholders of the Company who are
parties to that certain Stockholders' Agreement, dated as of November
29, 1999 (the "Stockholders' Agreement") or the Xxxxxxx Foundation
(formerly known as the Xxxxxxx Memorial Fund, Inc.), 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 or the Stockholders' 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."
2. AMENDMENT OF SECTION 1(h). Section 1(h) of the Rights Agreement
is amended and restated to read as follows:
"(h) "DISTRIBUTION DATE" shall have the meaning set forth in
Section 3 hereof. 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 or the Stockholders' 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."
3. AMENDMENT OF SECTION 1(j). Section 1(j) of the Rights Agreement
is amended and restated to read as follows:
"(j)(i) "INTERESTED STOCKHOLDER" shall mean any Acquiring Person
or any Affiliate or Associate of an Acquiring Person or any other
Person in which any such Acquiring Person, Affiliate or Associate has
an interest, or any other Person acting directly or indirectly on
behalf of or in concert with any such Acquiring Person, Affiliate or
Associate.
(j)(ii) "MERGER" shall mean the merger of Merger Subsidiary with
and into the Company pursuant to the terms and conditions of the Merger
Agreement.
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(j)(iii) "MERGER AGREEMENT" shall mean the Agreement and Plan of
Merger, dated as of December 8, 1999, by and among the Company,
Acquisition Company and Merger Subsidiary, as amended from time to
time."
(j)(iv) "OFFER" shall mean the joint cash tender offer by the
Company and Acquisition Company to purchase all of the Common Shares
pursuant to the terms and conditions of the Merger Agreement.
4. AMENDMENT OF SECTION 1(q). Section 1(q) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Shares
Acquisition Date shall not be deemed to have occurred as a result of
(i) the announcement, approval, execution or delivery of the Merger
Agreement or the Stockholders' 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."
5. AMENDMENT OF SECTION 7(a). 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
Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right 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 for the total number of one
one-thousandths of a Preferred Share (or other securities, as the case
may be) as to which such surrendered Rights are exercised, at or prior
to the earliest of (i) the Close of Business on June 12, 2009 (the
"FINAL EXPIRATION DATE"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "REDEMPTION DATE"),
(iii) the time at which the Rights are exchanged as provided in Section
24 hereof, or (iv) the effective time of the Merger pursuant to the
Merger Agreement."
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6. AMENDMENT OF SECTION 13. 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 an
nouncement, approval, execution or delivery of the Merger Agreement or
the Stockholders' 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."
7. EFFECTIVENESS. This Amendment shall be deemed effective as of
December 8, 1999. Except as amended hereby, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
8. MISCELLANEOUS. 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. This Amendment
may be executed in any number of counterparts, 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. If any provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal 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 effected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and attested, all as of the date and year first above
written.
Attest: XXXXXXX CORPORATION
/s/ XXXXXX XXXXXX /s/ XXXXXX X. XXXXX
--------------------- ---------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Notary Public, Title: Vice President
State of New York
Attest: CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., AS RIGHTS AGENT
/s/ XXXXXXX XXXX /s/ XXXXX XXXXXXX
--------------------- ---------------------------------
Name: Xxxxxxx Xxxx Name: Xxxxx Xxxxxxx
Title: Relationship Manager Title: Assistant Vice President
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