Exhibit 2.1
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AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT (the "Amendment"), dated as of June 19, 1998, to the
Rights Agreement, dated as of September 11, 1991 (the "Rights Agreement"), by
and between General Re Corporation, a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company, as successor Rights Agent (the "Rights
Agent").
Recitals
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I. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
II. Berkshire Hathaway, Inc., a Delaware corporation
("Berkshire"), and the Company contemplate entering into an Agreement and Plan
of Mergers (the "Merger Agreement") with the intention that, among other things,
NBH, Inc., a Delaware corporation and wholly owned subsidiary of Berkshire, will
merge newly-created merger subsidiaries with and into Berkshire and the Company.
The Board of Directors of the Company has approved the Merger Agreement.
III. In connection with the Merger Agreement, the Company and
Berkshire contemplate entering into a stock option agreement pursuant to which
the Company will grant to Berkshire an option to purchase shares of the
Company's common stock, par value $0.50 per share (the "Stock Option
Agreement"), on the terms and subject to the conditions set forth in the Stock
Option Agreement. The Board of Directors of the Company has approved the Stock
Option Agreement.
IV. Pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement and amend the Rights
Agreement.
V. 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 connection with the foregoing and the Company and the Rights Agent desire to
evidence such amendment in writing.
VI. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
Accordingly, the parties agree as follows:
A. Amendment of Opening Paragraph. The opening paragraph of
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the Rights Agreement is amended by adding the following sentence at the end
thereof:
"Effective February 14, 1992, American Stock Transfer & Trust
Company succeeded The Bank of New York as Rights Agent."
B. Amendment of Section 1. Section 1 of the Rights Agreement is
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supplemented to add the following definitions in the appropriate locations:
"`Merger Agreement` shall mean the Agreement and Plan of Mergers,
dated as of June 19, 1998, by and between the Company and Berkshire, as it
may be amended from time to time."
"`Berkshire` shall have the meaning set forth in the Merger
Agreement."
"`Stock Option Agreement` shall mean the agreement, dated as of June
19, 1998, by and between the Company and Berkshire, as it may be amended
from time to time."
"`Transactions` shall have the meaning set forth in the Merger
Agreement."
C. Amendment of the definition of "Acquiring Person." The
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definition of "Acquiring Person" in Section 1(a) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this
Agreement, Berkshire and its Affiliates and Associates shall not,
individually or collectively, be deemed to be an Acquiring Person solely
by virtue of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Transactions, or (iii) the
consummation of the other transactions contemplated in the Merger
Agreement or the Stock Option Agreement. "
D. Amendment of the definition of "Stock Acquisition Date." The
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definition of "Stock Acquisition Date" in Section 1 of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as the result
of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Transactions, or (iii) the
consummation of the other transactions contemplated in the Merger
Agreement or the Stock Option Agreement. "
E. Amendment of the definition of "Triggering Event." The
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definition of "Triggering Event" in Section 1 of the Rights Agreement is amended
by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Triggering Event shall not be deemed to have occurred solely as the result
of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Transactions, or (iii) the
consummation of the other transactions contemplated in the Merger
Agreement or the Stock Option Agreement."
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F. Amendment of the definition of "Distribution Date." The
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definition of "Distribution Date" in Section 3(a) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as the
result of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Transactions, or (iii) the
consummation of the other transactions contemplated in the Merger
Agreement or the Stock Option Agreement. "
G. Amendment of Expiration Date of Rights. Section 7(a) of
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the Rights Agreement is amended and restated to read in its entirety as
follows:
"Subject to Section 7(e) hereof, the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as otherwise
precluded including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section
23(a) hereof) in whole or in part at any time after the Distribution Date
upon surrender of the Rights 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, along with a signature guarantee and such other and
further documentation as the Rights Agent may reasonably request, together
with payment of the aggregate Purchase Price with respect to the total
number of one one-hundredths of a share (or other securities, cash or
other assets, as the case may be) as to which such surrendered Rights are
then exercisable, at or prior to the earliest of (i) the close of business
on September 11, 2001 (the "Final Expiration Date"), (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof, or (iii)
the consummation of the Transaction (the earliest of (i), (ii), and (iii)
being referred to as the "Expiration Date").
H. Amendment of Section 29. Section 29 of the Rights Agreement is
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amended to add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give to any person
or corporation other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock) any legal or equitable right,
remedy or claim under this Agreement, by virtue of the consummation of the
Transactions, or by virtue of the execution of the Merger Agreement or the
Stock Option Agreement, or by virtue of any of the other transactions
contemplated by the Merger Agreement or the Stock Option Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Company,
the Rights Agent and the registered holders of the Rights Certificates
(and, prior to the Distribution Date, registered holders of the Common
Stock)."
I. Amendment of Section 21. The fifth sentence of Section 21 is
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amended and restated to read in its entirety as follows:
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"Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be a corporation organized and doing business under
the laws of the United States or of the State of New York (or of any other
state of the United States so long as such corporation is authorized to do
business as a banking institution in the State of New York), in good
standing, having a principal office in the State of New York, which is
authorized under such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $10,000,000."
J. Effectiveness. This Amendment shall be deemed effective as of
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the date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
K. Miscellaneous. This Amendment shall be deemed to be a contract
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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, provided,
however, that the rights and obligations of the Rights Agent shall be governed
by and construed in accordance with the laws of the State of New York. 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 but 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: GENERAL RE CORPORATION
/s/ Xxxxxxx X. Xxxx /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxxxxx
Title:Vice President, General Counsel Title:Chairman and Chief Executive
and Secretary Officer
Attest: AMERICAN STOCK TRANSFER
& TRUST COMPANY
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title:Vice President Title:Vice President
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