Exhibit 10.4
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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AMENDMENT No. 1, dated as of August 2, 2000 (this "Amendment") made by
XxXxxxxxxx Apparel Group Inc., a Delaware corporation (formerly known as Norton
XxXxxxxxxx, Inc., the "Company"), to that certain Rights Agreement dated as of
January 19, 1996 (the "Agreement"), between the Company and American Stock
Transfer & Trust Company (the "Rights Agent").
WHEREAS, the Company has determined to provide for an exception to the
definition of "Acquiring Person" in the Agreement for certain issuances made in
connection with the Agreement of Purchase and Sale dated as of April 15, 1998,
as amended, by and among JJ Acquisition Corp., the Company, Xxxx-Xx Knitwear
Inc., Xxxxx Xxxxx, Inc. and the Stockholders of Xxxxx Xxxxx, Inc. (the "Xxxx-Xx
Agreement");
WHEREAS, the Company desires to provide certainty to its stockholders,
the securities markets and the Rights Agent in respect of the terms of the
Agreement and to further the purposes and intent of the Agreement; and
WHEREAS, in order to effect the foregoing, the Company has determined
to amend the Agreement pursuant to Section 27 of the Agreement as set forth
below;
NOW, THEREFORE, effective as of the date hereof, the Agreement is
hereby amended pursuant to Section 27 thereof as follows:
1. The second sentence of Section 1(a) of the Agreement is hereby
deleted in its entirety and replaced with the following:
"Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" solely as the result of (x) an acquisition after the date
hereof of Common Shares by the Company which, by reducing the number of Common
Shares outstanding, increases the proportionate number of shares beneficially
owned by such Person to 20% or more of the Common Shares of the Company then
outstanding, (y) the acquisition by any Person of the Common Shares issued,
issuable or to be issued pursuant to the terms of the Xxxx-Xx Agreement and the
related Employment Agreements (as defined in the Xxxx-Xx Agreement), or (z) the
acquisition by any Person (together with all Affiliates and Associates of such
Person) of Beneficial Ownership of 20% or more of the Common Shares of the
Company then outstanding in the good faith belief that such acquisition would
not (A) cause such Beneficial Ownership to exceed 20% of the Common Shares than
outstanding and such Person relied in good faith in computing the percentage of
its Beneficial Ownership on publicly filed reports or documents of the Company
which are inaccurate or out-of-date or (B) otherwise cause a Distribution Date
to occur."
2. This Amendment shall be deemed to be a contract 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 made
and to be performed entirely within such
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State, without regard to any conflict of laws principles which would apply the
laws of any other jurisdiction.
3. The Agreement, as amended hereby, is hereby ratified, confirmed
and continued in full force and effect.
* * *
IN WITNESS WHEREOF, the Company has caused this Amendment to be
executed as of the date first above written by an officer duly authorized.
XxXXXXXXXX APPAREL GROUP INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Chief Financial Officer
American Stock Transfer & Trust Company hereby executes this Amendment
pursuant to Section 27 of the Agreement.
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
