1
EXHIBIT 1
AMENDMENT NO. 1
TO STOCKHOLDER PROTECTION AGREEMENT
This Amendment No. 1 (the "Amendment") is entered into effective as of
March 29, 2000 by and between Xxxxxxxx Industries, Inc. (the "Company") and the
Bank of New York, as rights agent (the "Rights Agent"), for purposes of
amending that certain Stockholder Protection Agreement dated as of May 17, 1999
by and between the Company and the Rights Agent (the "Stockholder Protection
Agreement").
WHEREAS, Section 4.4 of the Stockholder Protection Agreement provides
that, prior to the Separation Time, as defined therein, the Company and the
Rights Agent, upon receipt of the certificate described therein, shall, at the
Company's direction, supplement or amend any provision of the Stockholder
Protection Agreement in any respect without the approval of any holders of
Rights, as defined therein;
WHEREAS, the certificate required by Section 4.4 of the Stockholder
Protection Agreement has been provided to the Rights Agent;
WHEREAS, at a meeting at the Board of Directors of the Company held on
March 29, 2000 an amendment to the Stockholder Protection Agreement was
approved by the Board of Directors of the Company;
WHEREAS, the Separation Time had not occurred as of the date of such
approval; and
WHEREAS, the Company and Rights Agent wish to enter into this
Amendment for purposes of setting forth the terms of the amendment approved by
the Board of Directors of the Company.
NOW, THEREFORE, in accordance with the terms of the Stockholder
Protection Agreement and in consideration of the provisions set forth herein,
the parties hereto agree as follows:
1. Amendment of Definition of Exempted Person. The definition of
Exempted Person set forth in Section 1.1(i) of the Stockholder Protection
Agreement is hereby amended by the addition of the following sentence at the
end of Section 1.1(i):
In addition to the above, CGW Southeast Partners, L.P. ("CGW"), JI
Acquisition Corp. or any other entity (the "Acquisition Entity")
formed by CGW to effect the transactions contemplated by the Purchase
Agreement by and between CGW, JI Acquisition Corp. and the Company,
dated March 30, 2000, and any investor in or affiliate of such
Acquisition Entity (together with CGW and the Acquisition Entity, the
"CGW Parties"), shall be deemed an Exempted Person for all purposes
under this Agreement and no acquisition of Common Stock by the CGW
Parties in connection
2
therewith shall cause any CGW Party to become an Acquiring Person
hereunder.
2. Continued Effect of Stockholder Protection Agreement. Except
as expressly amended by this Amendment, the Stockholder Protection Agreement
shall continue in full force and effect in accordance with the terms thereof.
3. Certification. The certification required by the Stockholder
Protection Agreement with respect to this Amendment is attached hereto as
Attachment A.
4. Counterparts. This Amendment may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested as of the date first above set forth.
XXXXXXXX INDUSTRIES, INC.
By: /s/ D. Xxxxx Xxxx
--------------------------------------------
Name: D. Xxxxx Xxxx
Title: President and Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx, Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
ATTEST:
/s/ Xxxx X. Silvertsen
-----------------------------
Name: Xxxx X. Silvertsen
Title: Vice President
3
ATTACHMENT A
CERTIFICATION PURSUANT TO SECTION 4.4
OF STOCKHOLDER PROTECTION AGREEMENT
The undersigned President and Chief Executive Officer of Xxxxxxxx
Industries, Inc. (the "Company") hereby certifies to The Bank of New York, as
rights agent, pursuant to Section 4.4 of that certain Stockholder Protection
Agreement dated as of May 17, 1999 by and between the Company and The Bank of
New York, as rights agent, that the Amendment No. 1 to Stockholder Protection
Agreement attached hereto has been adopted by the Company in compliance with
the terms of Section 4.4 of the Stockholder Protection Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of April ___, 2000.
XXXXXXXX INDUSTRIES, INC.
By:
------------------------------------------
D. Xxxxx Xxxx
President and Chief Executive Officer
