1
Exhibit (e)(16)
AMENDMENT TO RIGHTS AGREEMENT
Amendment No. 2 (this "Amendment"), dated as of February 14, 2001, to
the Rights Agreement (the "Rights Agreement"), dated December 30, 1998, and
amended as of November 6, 2000, between XxxxxxXxxxxx.Xxx Inc., a Delaware
corporation then known as First Sierra Financial, Inc. (the "Company"), and
Xxxxxx Trust and Savings Bank, an Illinois banking corporation (the "Rights
Agent"), at the direction of the Company.
WHEREAS, the Company, American Express Travel Related Services Company,
Inc., a New York corporation ("Parent"), and a Delaware corporation and a
wholly-owned subsidiary of Parent ("Purchaser"), intend to enter into an
Agreement and Plan of Merger (the "Merger Agreement") pursuant to which, among
other things, Purchaser will commence a cash tender offer for shares of common
stock of the Company (the "Offer") and thereafter Purchaser will merge with the
Company (the "Merger") and each remaining share of common stock of the Company
will be converted into the right to receive Merger Consideration (as defined in
the Merger Agreement), upon the terms and subject to the conditions of the
Merger Agreement;
WHEREAS, the Company and the Rights Agent have previously amended the
Rights Agreement in Amendment No. 1 ("Amendment No. 1"), dated as of November 6,
2000;
WHEREAS, on February 13, 2001, the Board of Directors of the Company
resolved to further amend the Rights Agreement and to render the Rights
inapplicable to the Offer, the Merger and the other transactions contemplated by
the Merger Agreement;
WHEREAS, Section 27 of the Rights Agreement permits the Company from
time to time to supplement and amend the Rights Agreement;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants herein contained, the parties agree as follows:
1. Section 1(n) of the Rights Agreement is hereby amended to read
in its entirety as follows:
"EXPIRATION DATE" shall mean the earlier of (x) the Close of Business
on December 30, 2008, subject to extension as provided in Section 12(c)
of this
2
Agreement, and (y) such time as is immediately prior to the acceptance
for payment of shares of Common Stock in the Offer (as such term is
hereinafter defined).
2. Section 1 of the Rights Agreement is hereby amended by adding
the following new paragraph at the end of Section 1:
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, neither American Express Travel Related
Services Company, Inc. ("Amex") nor any of its Affiliates or Associates
shall be deemed an Acquiring Person and none of a Distribution Date,
Flip-In Event, Flip-Over Event, Stock Acquisition Date or Triggering
Event shall be deemed to occur, in each such case, by reason of the
approval, execution or delivery of the Agreement and Plan of Merger,
dated as of February 14, 2001, including any amendment or supplement
thereto (the "Amex Merger Agreement") among Amex, a wholly-owned
subsidiary of Amex and the Company, the announcement, commencement or
consummation of the Offer or the Merger (each, as defined in the Amex
Merger Agreement) or the consummation of the other transactions
contemplated by the Amex Merger Agreement, including the execution or
delivery of the Tender Agreements, dated as of February 14, 2001
between Amex and certain stockholders of the Company. No such event
shall entitle or permit the holders of Rights to exercise the Rights or
otherwise affect the rights of the holders of Rights, including giving
the holders of the Rights the right to acquire securities of, or
receive payment from, any party to the Amex Merger Agreement."
3. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and effect.
This Amendment may be executed in one or more counterparts, all of which shall
be considered one and the same amendment and each of which shall be deemed an
original.
2
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first above written.
Attest: XXXXXXXXXXXX.XXX INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- -------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President Title: Chief Executive Officer
Attest: XXXXXX TRUST AND SAVINGS BANK, as
Rights Agent
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ X. Xxxxxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxx Name: X. Xxxxxxxx
Title: Vice President Title: V.P. Trust Operations
