EXHIBIT 2.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of July 24, 2001
("Amendment"), to the rights agreement, dated as of September 2, 1999 (the
"Rights Agreement"), between Capital Environmental Resource Inc. (the "Company")
and American Stock Transfer & Trust Company (the "Rights Agent"). All
capitalized terms not otherwise defined herein shall have the meaning ascribed
to such terms in the Rights Agreement.
WHEREAS, the Board of Directors of the Company believes it to be in the
best interest of the Company and its shareholders to enter into a Subscription
Agreement by and among the Company and certain investors, which Subscription
Agreement provides for, among other things, a subscription by such investors to
shares of the Company's Common Stock;
WHEREAS, as a result of the foregoing, the Company desires that the
transactions contemplated by the Subscription Agreement, and the investors
listed therein be exempt from the provisions of the Rights Agreement;
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
supplement or amend any provision of the Rights Agreement in accordance with the
provisions of Section 27 thereof;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereby agree as follows:
Section 1. AMENDMENTS TO SECTION 1 OF THE RIGHTS AGREEMENT.
(a) The definition of "Acquiring Person" in Section 1 of the Rights
Agreement is hereby amended to add the following paragraph at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, no Investor,
Permitted Assignee, or Substitute Investor (as such terms are defined in the
Subscription Agreement (the "Subscription Agreement") dated as of July 27, 2001
by and among the Company and the persons listed in Schedule A thereto), nor any
of their Affiliates or Associates, shall become an Acquiring Person, either
individually or collectively, by virtue of (A) the announcement of the
transactions contemplated by the Subscription Agreement, (B) the issuance and
acquisition of Common Shares of the Company pursuant to the Subscription
Agreement, (C) the execution and delivery of the
Subscription Agreement or (D) the consummation of the transactions contemplated
by the Subscription Agreement."
(b) The definition of "Distribution Date" in Section 1 of the Rights
Agreement is hereby amended to add the following paragraph at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither (A)
the announcement of the transactions contemplated by the Subscription Agreement,
(B) the issuance and acquisition of Common Shares of the Company pursuant to the
Subscription Agreement, (C) the execution and delivery of the Subscription
Agreement, nor (D) the consummation of the transactions contemplated by the
Subscription Agreement, shall be deemed to cause a Distribution Date"
(c) The definition of "Permitted Offer" in Section 1 of the Rights
Agreement is hereby amended and restated in its entirety and replaced with the
following:
"Permitted Offer" shall mean (i) a tender offer or an exchange offer for
all outstanding Common Shares, (ii) an issuance of Common Shares or other equity
securities of the Company in connection with a merger, consolidation or
acquisition, in both cases at a price and on terms determined by at least a
majority of the members of the Board of Directors, and concurred in by a
majority of those members who are not officers or employees of the Company and
who are not, and are not representatives, Affiliates or Associates of, an
Acquiring Person or the person making the offer in the case of (i) or the entity
the Company is seeking to merge or consolidate with or acquire, as the case may
be, in the case of (ii), after receiving advice, in the case of either (i) or
(ii), from one or more investment banking firms, to be (a) at a price and on
terms that are fair to shareholders (taking into account all factors that such
members of the Board deem relevant including, without limitation, prices that
could reasonably be achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and (b) otherwise in the best
interests of the Company and its shareholders or (iii) the offer, issuance or
acquisition of Common Shares pursuant to the terms and conditions of the
Subscription Agreement."
(d) The definition of "Share Acquisition Date" in Section 1 of the Rights
Agreement is hereby amended to add the following paragraph at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither (A)
the announcement of the transactions contemplated by the Subscription Agreement,
(B) the issuance and acquisition of Common Shares of the Company pursuant to the
Subscription Agreement, (C) the execution and delivery of the Subscription
Agreement, nor (D) the consummation of the transactions contemplated by the
Subscription Agreement, shall be deemed to cause a Share Acquisition Date"
(e) The definition of "Triggering Event" in Section 1 of the Rights
Agreement is hereby amended to add the following paragraph at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither (A)
the announcement of the transactions contemplated by the Subscription Agreement,
(B) the issuance and acquisition of Common Shares of the Company pursuant to the
Subscription Agreement, (C) the execution and delivery of the Subscription
Agreement, nor (D) the consummation of the transactions contemplated by the
Subscription Agreement, shall constitute a Triggering Event."
Section 2. AMENDMENT TO SECTION 11(a)(ii) OF THE RIGHTS AGREEMENT. Section
11(a)(ii) of the Rights Agreement is hereby amended to add the following at the
end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither (A)
the announcement of the transactions contemplated by the Subscription Agreement,
(B) the issuance and acquisition of Common Shares of the Company pursuant to the
Subscription Agreement, (C) the execution and delivery of the Subscription
Agreement, nor (D) the consummation of the transactions contemplated by the
Subscription Agreement, shall constitute a Flip-In Event."
Section 3. AMENDMENT TO SECTION 13(a) OF THE RIGHTS AGREEMENT. Section
13(a) of the Rights Agreement is hereby amended to add the following at the end
thereof:
"Notwithstanding anything in this Agreement to the contrary, neither (A)
the announcement of the transactions contemplated by the Subscription Agreement,
(B) the issuance and acquisition of Common Shares of the Company pursuant to the
Subscription Agreement, (C) the execution and delivery of the Subscription
Agreement, nor (D) the consummation of the transactions contemplated by the
Subscription Agreement, shall constitute a Flip-Over Event."
Section 4. AMENDMENT TO SECTION 15 OF THE RIGHTS AGREEMENT. Section 15 of
the Rights Agreement is hereby amended to add the following at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of Rights
or any other Person any legal or equitable rights, remedy or claim under this
Agreement in connection with any transactions contemplated by the Subscription
Agreement.
Section 5. DEFINITION. The term "Agreement", as used in the Rights
Agreement, shall be deemed to refer to the Rights Agreement as amended hereby.
Section 6. FULL FORCE AND EFFECT. Except as expressly amended hereby, the
Rights Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof.
Section 7. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts to
be made and performed entirely within such State.
Section 8. COUNTERPARTS. This Amendment may be executed in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
Section 9. 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, illegal, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment, and of the Rights
Agreement, shall remain in full force and effect and shall in no way be
effected.
[NEXT PAGE IS THE SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the day and year first above written.
CAPITAL ENVIRONMENTAL
RESOURCE INC.
By: /s/ Xxxxxx Xxxxx
----------------------------
Name : Xxxxxx Xxxxx
Title: Secretary
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name : Xxxxxxx X. Xxxxxx
Title: Vice President
