EXHIBIT 99.3
AMENDMENT TO RIGHTS AGREEMENT
This Amendment to Rights Agreement (this "Amendment"), dated
as of February 1, 2005, by and between The XxXxxx-Xxxx Companies, Inc., a New
York corporation (the "Company"), and The Bank of New York ("BONY"), hereby
amends that certain Rights Agreement ("Rights Agreement") dated as of July 29,
1998, by and between the Company and Mellon Investor Services, LLC, successor to
ChaseMellon Shareholder Services, L.L.C. ("Mellon"). Mellon executes this
Amendment to evidence its consent hereto and to the substitution of BONY as
Rights Agent under the Rights Agreement. Unless otherwise defined herein,
capitalized terms used in this Amendment shall have the meanings ascribed to
them in the Rights Agreement.
WHEREAS, effective as of February 1, 2005 (the "Effective
Date"), BONY has agreed to serve as successor Rights Agent pursuant to the terms
and conditions of the Rights Agreement as amended by this Amendment;
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior
to any Person becoming an Acquiring Person, the Company may amend any provision
of the Rights Agreement; and
WHEREAS, the Company has determined to amend the Rights
Agreement to substitute BONY for Mellon as Rights Agent, and Mellon has
consented to the Amendment.
NOW, THEREFORE, in consideration of the promises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, the parties hereby agree as follows:
Section 1. APPOINTMENT OF SUCCESSOR RIGHTS AGENT. The Company
hereby appoints BONY to succeed Mellon as Rights Agent for the Company,
effective as of Effective Date. From and after the Effective Date, all
references to "Rights Agent" in the Rights Agreement shall be deemed to refer to
BONY. BONY hereby accepts such appointment, and acknowledges that from and after
the Effective Date, it shall be fully responsible for all duties and obligations
of the Rights Agent under the Rights Agreement.
Section 2. AMENDMENTS TO THE RIGHTS AGREEMENT. The Rights
Agreement is hereby amended as follows, effective as of the Effective Time:
The title page of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"THE XxXXXX-XXXX COMPANIES, INC.
and
THE BANK OF NEW YORK
Rights Agent
Rights Agreement
Dated as of July 29, 1998"
The preamble of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"Agreement, dated as of July 29, 1998, between The XxXxxx-Xxxx
Companies, Inc., a New York corporation (the "Company"), and
The Bank of New York (the "Rights Agent")."
Section 3(c) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares
referred to in the last sentence of this paragraph (c)) after
the Record Date but prior to the earliest of the Distribution
Date, the Redemption Date or the Final Expiration Date shall
have impressed on, printed on, written on or otherwise affixed
to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights
Agreement between The XxXxxx-Xxxx Companies, Inc. and the
Rights Agent, dated as of July 29, 1998 (the "Rights
Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the
principal executive offices of The XxXxxx-Xxxx Companies,
Inc. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by
this certificate. The XxXxxx-Xxxx Companies, Inc. will
mail to the holder of this certificate a copy of the
Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances, as
set forth in the Rights Agreement, Rights issued to any
Person who becomes an Acquiring Person (as defined in the
Rights Agreement) may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated
with the Common Shares represented by such certificates shall
be evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases
or acquires any Common Shares after the Record Date but prior
to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that
the Company shall not be entitled to exercise any Rights
associated with the Common Shares which are no longer
outstanding."
Section 18 of the Rights Agreement is hereby amended by
restating the second sentence in the first paragraph to read as follows:
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"The Company also agrees to indemnify the Rights Agent for,
and to hold it harmless against, any loss, liability, or
expense, incurred without gross negligence or willful
misconduct on the part of the Rights Agent, for anything done
or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the
costs and expenses of defending against any claim of liability
in the premises."
Section 20(c) of the Rights Agreement is hereby amended by
restating the first sentence to read as follows:
"The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own gross negligence or willful
misconduct."
Section 26 of the Rights Agreement is hereby amended by
deleting the address provided for the Rights Agent and inserting the following
in lieu thereof:
"The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000"
Section 27 of the Rights Agreement is hereby amended by adding
the following as the last sentence:
"Upon the delivery of a certificate from an authorized officer
of the Company which states that the supplement or amendment
is in compliance with the terms of this Section 27, the Rights
Agent shall execute such supplement or amendment."
The first paragraph under the heading "THE XxXXXX-XXXX
COMPANIES, INC." on Exhibit A to the Rights Agreement is hereby amended by
striking the following the language in the first paragraph of said paragraph:
"Rights Agreement, dated as of July 29, 1998 (the "Rights
Agreement"), between The XxXxxx-Xxxx Companies, Inc., a New
York corporation (the "Company"), and ChaseMellon Shareholder
Services, L.L.C. (the "Rights Agent")"
and inserting the following language in its place:
"Rights Agreement, dated as of July 29, 1998 (the "Rights
Agreement"), between The XxXxxx-Xxxx Companies, Inc., a New
York corporation (the "Company"), and The Bank of New York
(the "Rights Agent")"
In addition, the countersignature block for the Rights Agent
at the foot of the front side of the Rights Certificate (on page A-3 of Exhibit
A to the Rights Agreement) is amended to substitute "The Bank of New York" for
"ChaseMellon Shareholder Services, L.L.C."
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Section 3. EFFECTIVE DATE OF AMENDMENT. This Amendment
shall be deemed effective as of the Effective Date, as if executed on such date.
Section 4. EFFECT OF AMENDMENT. Except as expressly set forth
herein, the Rights Agreement shall not by implication or otherwise be
supplemented or amended by virtue of this Amendment, but shall remain in full
force and effect, as amended hereby. This Amendment shall be construed in
accordance with and as a part of the Rights Agreement, and all terms,
conditions, representations, warranties, covenants and agreements set forth in
the Rights Agreement and each other instrument or agreement referred to therein,
except as herein amended, are hereby ratified and confirmed.
Section 5. WAIVER OF NOTICE. The parties hereto hereby waive
any notice requirement with respect to each other under the Rights Agreement, if
any, pertaining to the matters covered by this Amendment.
Section 6. SEVERABILITY. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, void 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 affected, impaired or invalidated.
Section 7. GOVERNING LAW. This Amendment shall be deemed to be
a contract made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the law of such State
applicable to contracts to be made and performed entirely within such State.
Section 8. COUNTERPARTS. This 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.
Section 9. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions of
this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
THE XxXXXX-XXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Consented to as of the date first written above:
MELLON INVESTOR SERVICES, LLC,
successor to ChaseMellon Shareholder Services, L.L.C.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
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