Amendment No. 4 to Rights Agreement
This Amendment No. 4 to Rights Agreement ("Amendment") is made and entered
into as of this 2nd day of October, 2000 by and between Xxxxxxxx Xxxxxx, Inc.,
an Indiana corporation (the "Company"), and Xxxxxx Trust and Savings Bank (the
"Rights Agent").
WITNESSETH:
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement dated as of April 21, 1988, as amended by Amendment No. 1,
dated September 26, 1991, Amendment No. 2, dated June 11, 1992 and Amendment No.
3, dated February 11, 1998 (the "Rights Agreement");
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement or amend the Rights Agreement
in accordance with Section 27 thereof;
WHEREAS, the Company and the Rights Agent desire to further amend the
Rights Agreement; and
WHEREAS, all acts and things necessary to make this Amendment valid and
enforceable have been performed and completed.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties agree that the Rights Agreement is hereby amended
as follows:
1. Section 1.A of the Rights Agreement is hereby amended to read in its
entirety as follows:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 20% or more of the Common Shares of the Company then
outstanding, without the prior approval of at least two-thirds of the
Disinterested Directors, and in any event at least one Disinterested
Director, but shall not include (i) any Subsidiary of the Company,
(ii) any employee benefit plan of the Company or of any of its
Subsidiaries, (iii) any Person holding Common Shares for or pursuant
to the terms of any such employee benefit plan, (iv) any Person who
inadvertently becomes an Acquiring Person if such Person promptly
notifies the Board of Directors after discovering that such Person did
become an Acquiring Person inadvertently and, if within 2 days after
such notification such Person reduces its Beneficial Ownership of
outstanding Common Shares of the Company to the extent such person
would not be an Acquiring Person, or (v) the 3M Shareholder (as such
term is hereinafter defined), unless the 3M Shareholder subsequently
becomes the Beneficial Owner of more than the Grandfathered Amount (as
such term is hereinafter defined) of Common Shares.
2. Section 1.HH of the Rights Agreement is hereby amended to read in its
entirety as follows:
"Triggering Event" shall mean the following event:
Without the prior approval of at least two-thirds of the Disinterested
Directors, and in any event at least one Disinterested Director, any
Person (other than (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or of any of
its Subsidiaries (iv) any Person holding Common Shares for or pursuant
to the terms of any such employee benefit plan or (v) the 3M
Shareholder (as such term is hereinafter defined), unless the 3M
Shareholder subsequently becomes the Beneficial Owner of more than the
Grandfathered Amount (as such term is hereinafter defined) of Common
Shares) alone or together with all Affiliates and Associates of such
Person, shall become the Beneficial Owner of 20% or more of the Common
Shares then outstanding.
3. Section 1 of the Rights Agreement is hereby amended so to add thereto
the following paragraphs:
JJ. "3M" shall mean Minnesota Mining and Manufacturing Company, a
Delaware corporation.
KK. "3M Shareholder" shall mean Minnesota Mining and Manufacturing
Company and its respective Affiliates, Associates, successors and
assigns.
LL. "Grandfathered Amount" shall mean, with respect to the 3M
Shareholder, as of any date, an amount (appropriately adjusted
for any stock split, reverse split, stock dividend (including any
distribution of securities convertible into Common Shares of the
Company), reorganization, recapitalization or any other action by
the Company with respect to the Common Shares) equal to the sum
of (i) all Common Shares of the Company beneficially owned by the
3M Shareholder as of October 2, 2000 including, but not limited
to, shares subject to the Voting and Stock Option Agreement,
dated as of October 2, 2000, by and among 3M, the Company and the
Company shareholders listed therein, (ii) all Common Shares the
3M Shareholder becomes the Beneficial Owner of after October 2,
2000, pursuant to, and in accordance with the terms of, the
Agreement and Plan of Merger (the "Merger Agreement"), dated as
of October 2, 2000, by and among the Company, 3M and Barbados
Acquisition, Inc., an Indiana Corporation and wholly owned
subsidiary of 3M, (iii) all Common Shares of the Company
beneficially owned by and of 3M's pension or other related
employee benefit plans as a result of purchases by independent
third-party managers and (iv) 52,500 shares.
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4. Section 27 of the Rights Agreement is hereby amended to read in its
entirety as follows:
Section 27. Supplements and Amendments. At any time prior to the
Distribution Date and subject to the second to the last sentence of
this Section 27, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this Rights
Agreement without the approval of any holder of the Rights (including,
without limitation, the time when the Distribution Date shall occur).
From and after the Distribution Date and subject to applicable law,
the Company and the Rights Agent shall, if the Company so directs,
amend this Rights Agreement without the approval of any holders of
Right Certificates [i] to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provision of this Rights Agreement or [ii]
to make any other provisions in regard to matters or questions arising
hereunder which the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Right
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person). Upon the delivery of a certificate
from an appropriate officer of the Company which states that a
proposed supplement or amendment to this Rights Agreement is in
compliance with the provisions of this Section 27, the Rights Agent
shall execute such supplement or amendment. Notwithstanding anything
contained in this Rights Agreement to the contrary [1] at any time
that there shall be an Acquiring Person, this Rights Agreement may be
supplemented or amended only if a majority of the Disinterested
Directors then in office determine that such supplement or amendment
is in their judgment in the best interest of the Company and its
stockholders, [2] no supplement or amendment to this Rights Agreement
shall be made which reduces the Redemption Price, or provides for an
earlier Expiration Date and [3] the Company shall not amend, modify or
supplement any provision of this Rights Agreement which adversely
affects the rights and benefits of the 3M Shareholder under any such
provision in any such case without prior written consent of the 3M
Shareholder. It is understood and agreed that the 3M Shareholder is a
third party beneficiary to this Rights Agreement and may enforce the
provisions of this Section as if it were a party to the Rights
Agreement.
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5. The Rights Agreement shall not otherwise be supplemented or amended by
virtue of this Amendment, but shall remain in full force and effect.
This Amendment may be executed in one or more counterparts, all of
which shall be considered one and the same amendment and each of which
shall be deemed an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the day and year first above written.
XXXXXXXX XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President and Senior Counsel
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CERTIFICATE
The undersigned, the Secretary of Xxxxxxxx Xxxxxx, Inc., an Indiana
corporation (the "Corporation"), hereby certifies to Xxxxxx Trust and Savings
Bank (the "Rights Agent"), as follows:
1. Amendment No. 4 to Rights Agreement, a copy of which is attached
hereto as Exhibit A (the "Amendment"), was approved and adopted by the
Board of Directors of the Corporation at a meeting held on October 2,
2000.
2. The Amendment is in compliance with the provisions of Section 27 of
the Rights Agreement dated April 21, 1988, as amended, between the
Corporation and the Rights Agent.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 2nd
day of October, 2000.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Secretary
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