AMENDMENT NO. 3 TO THE RIGHTS AGREEMENT
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This Amendment No. 3, dated as of March 8, 2000 (this "Amendment No. 3"),
is to the Rights Agreement, dated as of September 29, 1995, between ABC-NACO
Inc., a Delaware corporation (the "Company"), and LaSalle National Trust, N.A.,
a national banking association (the "Rights Agent").
WITNESSETH:
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement dated as of September 29, 1995, and amended on November 18,
1996 and September 18, 1998 (as so amended, the "Rights Agreement"); and
WHEREAS, the Company intends to issue and sell a series of its Preferred
Stock to certain investors affiliated with Xxxxxx Xxxx (the "Investors")
pursuant that certain Preferred Stock Purchase Agreement dated as of February
18, 2000 by and among the Company and the Investors; and
WHEREAS, the Rights Agreement is inapplicable to the issuance and sale of
the Preferred Stock to the Investors, insofar as the definition of "Acquiring
Person" specifically excludes the acquisition of "newly-issued Common Shares
directly from the Company;" and
WHEREAS, the Company and the Investors desire that the Rights Agreement be
inapplicable to certain future acquisitions of shares of the Company's Common
Stock by affiliates of the Investors solely in their capacity as a market-maker
in the Company's securities in accordance with the rules of the National
Association of Securities Dealers, Inc.; and
WHEREAS, pursuant to and in compliance with the provisions of Section 27 of
the Rights Agreement, the Company and the Rights Agent desire to amend the
Rights Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, the Company and the Rights Agent agree as follows:
SECTION I. Defined Terms. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Rights Agreement.
SECTION II. Amendment to the Rights Agreement.
2.01. The definition of "Acquiring Person" in Section I of the Rights
Agreement is amended by adding the following language at the end of the first
proviso of the second sentence of the definition of "Acquiring Person:"
2
", except that if such Person becomes the Beneficial Owner of any additional
Common Shares solely as a result of its market-making activities in the
Company's securities undertaken solely in its capacity as a market-maker in
accordance with the rules of the National Association of Securities Dealers,
Inc., then such Person shall not be deemed to be an Acquiring Person until it
becomes the Beneficial Owner of 25% or more of the Common Shares of the Company
(and thereafter remains a Beneficial Owner of 25% or more of the Common Shares
of the Company);"
SECTION III. Miscellaneous.
3.01 Governing Law. This Amendment No. 3 shall be deemed to be made
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under the laws of the State of Delaware and for all purposes 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 the State of Delaware.
3.02 Counterparts. This Amendment No. 3 may be executed in any number
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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.
3.03 Descriptive Headings. Descriptive headings of several Sections of
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this Amendment No. 3 have been inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
3.04 Ratification. This Amendment No. 3 is limited as specified and
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shall not constitute a modification, acceptance, consent or waiver of any other
provision of the Rights Agreement. The Rights Agreement, including the Exhibits
thereto, as hereby amended, is in all respects ratified and confirmed, and all
rights and powers created thereby or thereunder shall be and remain in full
force and effect. From and after the date hereof, all references in the Rights
Agreement, the Exhibits thereto and all other documents related to the Rights
Agreement shall be deemed to be references to the Rights Agreement after giving
effect to this Amendment No. 3.
3.05 Effectiveness. This Amendment No. 3 shall be effective as of the
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day and year first above written.
IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to be duly
executed and attested as of the day and year first above written.
ABC-NACO INC.
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
