EXHIBIT 1.9
Amendment No. 1 to the Renewed Rights Agreement
This AMENDMENT NO. 1 ("Amendment No. 1") is made as of the 25th day of
March, 2003, between Xxx Xxxxxxxx Xxxxxxx, a Delaware corporation (the
"Company") and The Bank of New York, a New York banking corporation ("BNY"), as
successor Rights Agent under that certain Renewed Rights Agreement between the
Company and The First National Bank of Boston, as Rights Agent, dated as of
December 14, 1995 (the "Renewed Rights Agreement"). Terms defined in the Renewed
Rights Agreement and not otherwise defined herein are used herein as so defined.
W I T N E S S E T H:
WHEREAS, on December 14, 1995, the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for each share of
Common Stock of the Company and 40 Rights for each share of Series C Preferred
Stock outstanding upon the Record Date and authorized the issuance of one Right
(subject to certain adjustments) for each share of Common Stock of the Company
and 40 Rights (subject to certain adjustments) for each share of Series C
Preferred Stock issued between the Record Date and the Distribution Date, and
under certain circumstances thereafter, each Right initially representing the
right to purchase one ten-thousandth of a share of Preferred Stock, upon the
terms and subject to the conditions set forth in the Renewed Rights Agreement;
WHEREAS, at a meeting on March 13, 2003, the Board of Directors of the
Company (i) resolved to amend certain provisions of the Renewed Rights
Agreement, (ii) pursuant to Section 21 of the Renewed Rights Agreement, resolved
to replace The First National Bank of Boston with BNY as Rights Agent, and (iii)
authorized the officers of the Company to effect such other changes to the
Renewed Rights Agreement as in their judgment necessary or desirable to make the
provisions of the Renewed Rights Agreement accurate and to carry out the
purposes of such resolutions (the "Authorized Actions");
WHEREAS, the Distribution Date has not occurred; and
WHEREAS, pursuant to Section 26 of the Renewed Rights Agreement, the
Company now desires to amend certain provisions of the Renewed Rights Agreement
to memorialize and give effect to the Authorized Actions;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth and intending to be legally bound, the parties hereby agree as
follows:
1. All the references to "The First National Bank of Boston" or "the
Rights Agent" in the Renewed Rights Agreement (including, without limitation,
the Exhibits thereto) shall be deemed to refer to The Bank of New York, as
successor Rights Agent.
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2. The definition of "Business Day" in Section 1(h) of the Renewed Rights
Agreement shall be amended and restated in its entirety to read as follows:
"(h) "Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the Commonwealth of
Massachusetts or the State of New York are authorized or obligated by law
or executive order to close."
3. Pursuant to the provisions of Section 21 of the Renewed Rights
Agreement, as amended by this Amendment No. 1, the Company hereby appoints BNY
as successor Rights Agent. As a result of such appointment and in accordance
with Section 21 of the Renewed Rights Agreement, BNY shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as the Rights Agent without further act or deed.
4. BNY hereby represents and warrants that it meets the requirements to
serve as successor Rights Agent that are set forth in Section 21 of the Renewed
Rights Agreement, as amended by this Amendment No. 1.
5. The address of the Rights Agent in Section 25 of the Renewed Rights
Agreement for any notices or demands under the Renewed Rights Agreement shall be
deleted and replaced in its entirety as follows:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Stock Transfer Division
6. Section 31 of the Renewed Rights Agreement shall be amended and
restated in its entirety to read as follows:
"Section 31. Governing Law. This Agreement, each Right and each
Rights Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Delaware, and for all purposes this
Agreement shall be governed by and construed in accordance with the laws
of such State applicable to contracts made and to be performed entirely
within such State; provided, however, that the rights, obligations and
duties of the Rights Agent hereunder shall be governed by and construed in
accordance with the laws of the State of New York."
7. Except as expressly amended herein, all other terms and conditions of
the Renewed Rights Agreement shall remain in full force and effect.
8. This Amendment No. 1 may be executed in any number of counterparts,
each of which shall be an original and all of which shall constitute one in the
same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Renewed Rights Agreement to be duly executed as of the day and year first
above written.
XXX XXXXXXXX XXXXXXX
By: /s/ Xxxxxxx X. Xxxxxx III
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Name: Xxxxxxx X. Xxxxxx III
Title: Secretary
Attest:
By: /s/ Xxxxxxx X. Xx Xxxxxx
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Assistant Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Assistant Treasurer
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