Exhibit 4(iv)
APPOINTMENT AND ASSUMPTION AGREEMENT
AGREEMENT made February 1, 2002 between Xxxxxxx-Xxxxxx Corporation
("Xxxxxxx-Xxxxxx" or the "Company") and American Stock Transfer & Trust Company
("Right's Agent").
W I T N E S S E T H:
WHEREAS, Xxxxxxx-Xxxxxx is a party to a Shareholder Right's Agreement
November 6, 2000, as amended on November 20, 2001; herewith (the "Right's
Agreement"), with Mellon Investor Services, as Right's Agent ("Resigning
Agent").
WHEREAS, Resigning Agent has indicated to Xxxxxxx-Xxxxxx its design to
resign as Right's Agent under the Right's Agreement, and Right's Agent has
indicated its willingness to assume the responsibilities of Resigning Agent;
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt of which is acknowledged, it is agreed:
1. Appointment. Xxxxxxx-Xxxxxx hereby appoints the Rights Agent to act as agent
for the Company in accordance with the terms and conditions of the Right's
Agreement, as amended, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable. The Rights Agent shall have no duty to supervise, and in
no event shall be liable for the acts or omissions of any such co-Rights Agent.
2. Acceptance. Right's Agent hereby accepts the foregoing appointment, and
transfer and promises to faithfully perform all covenants, stipulations,
agreements, and obligations incumbent upon the Right's Agent under the Right's
Agreement.
3. Section 21 Modification. Xxxxxxx-Xxxxxx and Right's Agent hereby agree that
Section 21 of the Right's Agreement shall be modified as follows:
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 days notice in writing
mailed to the Company and to each transfer agent of the Common
Stock or Preferred Stock by registered or certified mail, and,
following the Distribution Date, to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 30 days
notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent
of the Common Stock or Preferred Stock by registered or
certified mail, and, following the Distribution Date, to the
holders of the Right Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving
notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right
Certificate (who shall,
with such notice, submit his Right Certificate for inspection
by the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a
court, shall be (a) a Person organized and doing business
under the laws of the United States or any State thereof,
which is authorized under such laws to perform shareholder
services and is subject to supervision or examination by
federal or state authority and which at the time of its
appointment as Rights Agent has, or is an affiliate of a
corporation that has, a combined capital and surplus of at
least $10 million. After appointment, the successor Rights
Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent
any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed
necessary for the purpose. Not later than the effective date
of any such appointment the Company shall file notice thereof
in writing with the predecessor Rights Agent and each transfer
agent of the Common Stock or Preferred Stock, and, following
the Distribution Date, mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Right's Agent and Xxxxxxx-Xxxxxx agree that such modification shall be
exclusively for the appointment of Right's Agent.
4. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
American Stock Transfer & Trust Company
By:
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Name:
Title:
Xxxxxxx-Xxxxxx Corporation
By
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Xxxx X. Xxxxxxxx
Treasurer
