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Amendment No. 2 to Rights Agreement
This Amendment No. 2, dated as of October 30, 1995, to the Rights
Agreement, dated as of January 31, 1989, as amended (the "Agreement") between
Xxxxx & Xxxxxxx, Inc., a New York corporation (the "Company") and Mellon
Securities Trust Company (the "Rights Agent").
WHEREAS, pursuant to the Agreement, the Board of Directors of the
Company declared a dividend of one right (a "Right") for each Common Share of
the Company ("Common Shares") outstanding on February 13, 1989 and authorized
the issuance of one Right for each Common Share that became outstanding
thereafter prior to the Distribution Date (as defined in the Agreement);
WHEREAS, Section 26 of the Agreement provides that at any time when the
Rights are then redeemable the Company may in its sole and absolute discretion
supplement or amend any provision of the Agreement without the approval of any
holders of the Rights or the Common Shares, provided that no supplement or
amendment shall be made which changes the redemption price of the Rights or the
final expiration date of the Rights;
WHEREAS, the Rights are presently redeemable;
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its shareholders to enter into discussions relative
to a proposed Agreement and Plan of Merger (the "Merger Agreement") with respect
to the merger of a wholly-owned subsidiary (the "Subsidiary") of another
corporation with and into the Company (the "Merger");
WHEREAS, in connection with the Merger it is contemplated that certain
shareholders of the Company will enter into an agreement with Acquiror, granting
Acquiror an
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irrevocable option to purchase their Common Shares and agreeing to tender such
Common Shares pursuant to the Offer (as hereinafter defined) or other similar
provisions (the "Stock Tender Agreement");
WHEREAS, by operation of the Merger Agreement, the Stock Tender
Agreement, or both, the signatories thereto could be deemed to have an agreement
or arrangement for the purpose of acquiring, holding, voting or disposing of
Common Shares and thus become an Acquiring Person or Persons under the
Agreement;
WHEREAS, pursuant to the Merger Agreement, subject to certain
conditions to be specified therein, Acquiror, through the Subsidiary, would make
a cash tender offer to acquire all the issued and outstanding Common Shares of
the Company (the "Offer"), and subsequently enter into the Merger;
WHEREAS, the payment for Common Shares pursuant to the Offer, the
Merger, or both, may make Acquiror, the Subsidiary and their Affiliates and
Associates an Acquiring Person or Persons under the Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereby
agree to amend the Agreement as follows:
1. The defined term "Acquiring Person" is hereby amended to add the
following sentence to the end of such definition:
Notwithstanding the foregoing, none of (i) any Person (an "Acquiror")
with whom the Company enters into an agreement, on or before November
10, 1995 (a "Merger Agreement"), providing for an acquisition by such
person or its Subsidiary of all of the
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Common Shares (an "Acquisition"), (ii) all Subsidiaries, Affiliates and
Associates of an Acquiror and (iii) any shareholder of the Company who
enters into an agreement with an Acquiror, on or before November 10,
1995 (the "Tender and Option Agreement"), agreeing to take certain
actions with respect to the Common Shares owned by them, shall be
deemed to be Acquiring Persons solely by reason of (A) being a party to
or acquiring Common Shares (whether through a tender offer or the
consummation of the merger contemplated by the Merger Agreement)
pursuant to the terms of the Merger Agreement and being the Beneficial
Owner of the Common Shares so acquired, (B) being a party to or selling
or acquiring Common Shares pursuant to the terms of the Tender and
Option Agreement and being the Beneficial Owner of the Common Shares so
acquired, (C) being a party to and complying with the terms of the
Merger Agreement or the Tender and Option Agreement or (D) entering
into any agreement, arrangement or understanding with respect to any of
the foregoing.
3. The defined term "Section 11(a)(ii) Event" is hereby amended to
add the following sentence to the end of such definition:
Notwithstanding anything to the contrary contained in this Agreement,
none of the transactions contemplated by the Merger Agreement or the
Tender and Option Agreement shall constitute a Section 11(a)(ii) Event.
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4. The defined term "Section 13 Event" is hereby amended to add the
following sentence to the end of such definition:
Notwithstanding anything to the contrary contained in this Agreement,
none of the transactions contemplated by the Merger Agreement or the
Tender and Option Agreement shall constitute a Section 13 Event.
5. The defined term "Triggering Event" is hereby amended to add the
following sentence to the end of such definition:
Notwithstanding anything to the contrary contained in this Agreement,
none of the transactions contemplated by the Merger Agreement or the
Tender and Option Agreement shall constitute a Triggering Event.
6. Section 3(a) is hereby amended to add the following sentence to the
end thereof:
Notwithstanding anything to the contrary contained in this Agreement,
neither the announcement nor the consummation of the Merger Agreement
or the Tender and Option Agreement or any of the transactions
contemplated by those agreements shall constitute or result in the
occurrence of a Distribution Date.
7. Section 11(a)(ii)(B) is hereby amended to add the following
immediately preceding the semicolon in the last line thereof:
, provided further, that a Person shall not be deemed to have become
the beneficial owner of 25% or more of the Common Shares then
outstanding for the purpose of this Section 11(a)(ii)(B) solely by
reason of (A) being a party to or acquiring Common Shares pursuant to
the terms of the Merger Agreement, (B) being a party to or selling or
acquiring Common Shares pursuant to the terms of
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the Tender and Option Agreement, (C) being a party to and complying
with the terms of the Merger Agreement or the Tender and Option
Agreement or (D) entering into any agreement, arrangement or
understanding with respect to any of the foregoing.
8. Section 13(a) is hereby amended to add the following sentence to the
end thereof:
Notwithstanding anything to the contrary contained in this Agreement,
this Section 13(a) shall not apply to any merger consummated pursuant
to the terms of the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have consented to this Amendment
No. 2 to the Rights Agreement to be duly executed, all as of the day and year
first above written.
XXXXX & XXXXXXX UNITED, INC.
Attest:______________________ By:______________________
MELLON SECURITIES TRUST
COMPANY
Attest:______________________ By:______________________
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