XXXX COMPANY AND SUBSIDIARIES
Exhibit 4.66
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT, dated as of March 23,1999 ("First Amendment"), to
Rights Agreement dated as of April 3,1989 (the "Rights Agreement"), between Xxxx
Company, a Delaware corporation (the "Company"), and ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company (the "Rights Agent").
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to them in the Rights Agreement. All section and exhibit references are
to sections and exhibits of the Rights Agreement.
WHEREAS, the Rights Agent was appointed as successor to Security
Pacific National Bank, the original rights agent under the Rights Agreement;
WHEREAS, the Company and the Rights Agent previously entered into the
Rights Agreement; and
WHEREAS, pursuant to Section 26, the Company and the Rights Agent may
from time to time supplement Or amend any provision of the Rights Agreement in
accordance with the terms of such Section 26.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
agreements set forth in this Amendment, the parties hereby amend the Rights
Agreement as follows:
1. Section 1(d) is hereby amended to add ", New Jersey" after "New
York."
2. Section 1(g) is hereby deleted in its entirety.
3. Section 1(h) is hereby amended to add ", limited liability company"
after "corporation."
4. Section 2 is hereby amended to (a) delete "and the holders of the
Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Shares)" and (b) add the
following at the end of the penultimate sentence thereof: "; provided, however,
no such appointment or allocation of duties shall change or increase the Rights
Agent's duties, liabilities or obligations. The Rights Agent shall have no duty
to supervise, and in no event he liable for, the acts or omissions of any such
Co-Rights Agent."
5. Section 3(a) is hereby amended (a) to amend the second sentence
thereof to replace the words "beyond the earlier of the dates set forth in such
preceding sentence; provided, however, there must be Continuing Directors then
in office and any such postponement shall require the concurrence of a majority
of such Continuing Directors" from the second sentence thereof with the words:
"specified as a result of an event described in clause (ii) beyond the date set
forth in such clause (ii)," (b) to add as the third and fourth sentence thereof
"Nothing herein shall permit such a postponement of a Distribution Date after a
Person becomes an Acquiring Person. Upon the occurrence of a Distribution Date,
the Company shall promptly notify the Rights Agent and request a shareholder
list from the Company's transfer agent," and (c)
in the penultimate sentence, replace "Distribution Date" with "Rights Agent
receives such notice and list."
6. The first sentence of Section 4 is hereby amended to add "(which do
not affect the duties or responsibilities of the Rights Agent)" after
"appropriate."
7. The first sentence in the last paragraph of Section 5 is hereby
amended to add "and receipt by the Rights Agent of the notice and list of record
holders of Rights referred to in Section 3(a) above " after "Distribution Date."
8. Section 6 is hereby amended to (a) add the following at the end of
the first paragraph of Section 6: "The Rights Agent may delay the processing of
such transaction until it receives evidence that all applicable taxes and
governmental charges have been paid" and (b) delete the word "reasonably" two
times in the second paragraph of Section 6.
9. Section 7(a) is hereby amended to replace "April 3, 1999" with
"April 3, 2009." Section 7(c) is hereby amended to add "or governmental charge"
after "transfer tax." Section 7(e) is hereby amended to replace "duly" with
"properly" and add "or the Rights Agent" before "shall reasonably request."
10. Section 10 is hereby amended to add "and other governmental
charge" after "transfer taxes."
11. Section 11(i) is hereby amended to add "and shall provide the
Rights Agent with notice of such election" after "the Company may elect."
12. Section 12 is hereby amended to (a) add ", reasonably detailed"
after "brief" and (b) add ", computations and methodology" after "statement of
the facts."
13. Section 18 is hereby amended (a) to add in the first sentence
"preparation, delivery, amendment" before "administration and execution," (b) in
the second sentence to (i) add "damage, judgment, fine, penalty, claim, demand,
settlement, cost" after "liability," (ii) add "gross" before "negligence," (iii)
add "as determined by a court of competent jurisdiction" after "Rights Agent"
and (iv) replace "anything done" with "any action taken, suffered" and (c) in
the first sentence of the second paragraph of Section 18 to add "authorized and"
before "protected."
14. Section 19 is hereby amended to (a) replace "corporation" with
"Person" three times and (b) replace "corporate trust" with "shareholder
services."
15. The first sentence of Section 20 and Sections 20(a), (b) and (c)
are amended and restated in their entirety as follows:
"The Rights Agent undertakes the duties and obligations, and only the
duties and obligations, expressly imposed by this Rights Agreement
(and no implied duties and obligations) upon the following terms and
conditions, by all of which the Company and
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the holders of Right Certificates, by their acceptance thereof shall
be bound:
(a) The Rights Agent may consult with legal counsel selected by
it (who may be legal counsel for tile Company), and the advice or
opinion of such counsel shall be full and complete authorization and
protection to the Rights Agent with respect to, and the Rights Agent
shall incur no liability for or in respect of, any action taken,
suffered or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to
taking, suffering or omitting any action hereunder such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by
a certificate signed by any one of the Chairman of the Board of
Directors, the Chief Executive Officer, the President, the Chief
Financial Officer, any Vice President, the Treasurer, the Secretary or
any Assistant Treasurer or Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full
authorization and protection to the Rights Agent, and the Rights Agent
shall incur no liability for or in respect of any action taken,
suffered or omitted in good faith by it under the provisions of this
Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
gross negligence, bad faith or willful misconduct as determined by a
court of competent jurisdiction. In no case will the Rights Agent be
liable for special, indirect, punitive, incidental or consequential
loss or damages of any kind whatsoever (including without limitation
lost profits), even if the Rights Agent has been advised of the
possibility of such damages."
16. Section 20(e) is hereby amended to add "liability or" before
"responsibility."
17. Section 20(g) is hereby amended to (a) replace "and it shall not
be liable for" with "such instructions shall be full authorization and
protection to the Rights Agent and the Rights Agent shall incur no liability for
or in respect of" and (b) add the following after the last sentence thereof:
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"The Rights Agent may conclusively rely on the most recent
instructions given by any such officer."
18. The first sentence of Section 20(h) is hereby amended to add
"affiliate," after "stockholder."
19. Section 20(i) is hereby amended to (a) add "or any other person
after "Company" and (b) replace "reasonable care was exercised" with "absent
gross negligence or bad faith."
20. Section 22 is hereby amended to add the following after the last
sentence thereof:
"In addition, in connection with the issuance or sale of Common Shares
following the Distribution Date and prior to the Final Expiration
Date, the Company shall, with respect to Common Shares so issued or
sold pursuant to the exercise of stock options or under any employee
plan or arrangement, granted or awarded, or upon exercise, conversion
or exchange of securities issued by the Company, in each case existing
prior to the Distribution Date, issue Right Certificates representing
the appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Right Certificate shall be
issued if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to whom such
Right Certificate would be issued and (ii) no such Right Certificate
shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof."
21. Section 23(a) is hereby amended and restated in its entirety as
follows:
"(a) The Board of Directors of the Company may, at its option, at any
time prior to a the time that a Person has become an Acquiring Person,
redeem all but not less than all of the then outstanding Rights at a
redemption price of $.01 per Right, appropriately adjusted to reflect
any stock split, stock dividend, recapitalization or similar
transaction occurring after the date hereof (such redemption price
being hereinafter referred to as the "Redemption Price"), and the
Company may, at its option, pay the Redemption Price in Common Shares
(based on the "current per share market price," determined pursuant to
Section 11(d), of the Common Shares at the time of redemption), cash
or any other form of consideration deemed appropriate by the Board of
Directors The redemption of the Rights by the Board of Directors may
be made
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effective at such time, on such basis and subject to such conditions
as the Board of Directors in its sole discretion may establish."
22. Section 25 is hereby amended to replace the address of the Rights
Agent with the following:
"ChaseMellon Shareholder Securities L.L.C.
000 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxx XxXxxxx"
23. Section 26 hereby amended by deleting clause (ii) of the second
sentence thereof in its entirety, renumbering clause (iii) of the second
sentence to (ii), adding the word "or" immediately prior to the new clause (ii).
24. Section 30 is hereby amended to add the following at the end of
the last sentence thereof:
", except that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in
accordance with the law of the State of New York applicable to
contracts made and to be performed entirely within such State."
25. The Legend and the first paragraph of Exhibit A are hereby amended
to replace "April 3, 1999" with "April 3, 2009."
26. The fourth paragraph of Exhibit A ("Form of Right Certificate") is
hereby amended and restated in its entirety as follows:
"Subject to the provisions of the Rights Agreement, the Board of
Directors may, at its option, (i) redeem the Rights evidenced by this
Right Certificate at a redemption price of $.01 per Right or (ii)
exchange Common Shares for the Rights evidenced by this Right
Certificate, in whole or in part."
27. The first sentence of the second paragraph of Exhibit B is hereby
amended to delete the words "the Board of Directors, with the concurrence of a
majority of the Continuing Directors (as defined below), may postpone the
Distribution Date and that."
28. The fourth paragraph of Exhibit B is hereby amended to replace
"April 3, 1999" with "April 3, 2009."
29. The eighth paragraph of Exhibit B is hereby amended to (a) delete
the words "until ten days following the public announcement that a Person has
become an Acquiring
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Person" and replace them with the words "prior to the time that an Acquiring
Person has become such" and (b) delete the second and third sentences in their
entirety.
30. The ninth paragraph of Exhibit B is hereby deleted in its
entirety.
31. The eleventh paragraph of Exhibit B is hereby amended to delete
the following:
", to shorten or lengthen any time period under the Rights Agreement
relating to when the Rights may be redeemed (so long as, under certain
circumstances, a majority of Continuing Directors approve such
shortening or lengthening)."
32. This First Amendment shall be effective as of the date hereof and,
except as expressly set forth herein, the Rights Agreement shall remain in full
force and effect and be otherwise unaffected hereby.
33. This First Amendment may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all such counterparts shall together constitute one and the same document.
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IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first written above.
XXXX COMPANY
By /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Sr. Vice President & CFO
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By: /s/ Xxxx Xxx XxXxxxx
Name: Xxxx Xxx Xxxxxxx
Title: Relationship Manager
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