Exhibit 58
THIRD AMENDMENT TO RIGHTS AGREEMENT
-----------------------------------
THIRD AMENDMENT dated as of March 11, 1998 (the "Third Amendment") to the
Rights Agreement dated as of November 9, 1988, as amended (the "Rights
Agreement"), between Safety-Kleen Corp., a Wisconsin corporation (the
"Company"), and The First National Bank of Chicago, as Rights Agent (the "Rights
Agent").
Pursuant to Section 27 of the Rights Agreement, the Company and the Rights
Agent may from time to time amend the Rights Agreement in accordance with
Section 27 thereof. All acts and things necessary to make this Third Amendment
valid and enforceable have been performed and done, including, as required by
Section 27(b) of the Rights Agreement, the delivery by the Company to the Rights
Agent of certified resolutions of the Board of Directors of the Company. Unless
the context otherwise requires, terms not defined herein have the same meanings
as in the Rights Agreement.
In consideration of the foregoing and the mutual agreements herein, the
Company and the Rights Agent agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended by deleting the
first sentence of that section and substituting the following therefor:
"(a) "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 aggregate number of Common Shares of the Company then issued
and outstanding, but shall not include (i) the Company, (ii) any Subsidiary,
(iii) any employee benefit plan of the Company or any Subsidiary, (iv) any
entity holding Common Shares for or pursuant to the terms of any such plan, (v)
SK Parent Corp., a Delaware corporation ("Parent"), SK Acquisition Corp., a
Wisconsin Corp. ("Purchaser"), or any Affiliate or Associate of Parent or
Purchaser; provided, however, that Parent, Purchaser and the Affiliates and
Associates of Parent and Purchaser will not be excepted from this definition of
"Acquiring Person" in the event that any of Parent, Purchaser or any Affiliate
or Associate of Parent or Purchaser becomes the Beneficial Owner of 20% or more
of the aggregate number of Common Shares of the Company then issued and
outstanding other than pursuant to the terms of the Agreement and Plan of
Merger, dated as of November 20, 1997 (the "Merger Agreement"), between the
Company, Parent and Purchaser or (vi) Xxxxxxx Environment Services, Inc.,
("Xxxxxxx Environmental"), LES Acquisition, Inc. ("LES Acquisition") or any
Affiliate or Associate of Xxxxxxx Environmental or LES Acquisition;
provided, however, that Xxxxxxx Environmental, LES Acquisition, and the
Affiliates and Associates of Xxxxxxx Environmental and LES Acquisition will
not be excepted from this definition of "Acquiring Person" in the event
that any of Xxxxxxx Environmental, LES Acquisition or any Affiliate or
Associate of Xxxxxxx Environmental or LES Acquisition becomes the
Beneficial Owner of 20% or more of the aggregate number of Common Shares of
the Company then issued and outstanding unless the acquisition by which any
such person becomes the Beneficial Owner of 20% or more of such Common
Shares satisfies each of the following requirements: (A) it is consummated
prior to Midnight, Eastern Standard Time on March 27, 1998 (B) it is
consummated pursuant to either the terms of the Xxxxxxx Environmental
Exchange Offer as stated in the Amended Prospectus of Xxxxxxx Environmental
dated January 28, 1998 as filed on such date ("Amended Prospectus") or
terms more favorable to shareholders of the Company than the terms of such
Amended Prospectus; without limiting the generality of the foregoing, the
Minimum Condition, as defined in the Amended Prospectus, must not have been
waived or decreased, and the Xxxxxxx Environmental Offer Consideration, as
defined in the Amended Prospectus, must not have been diminished and (C)
prior to such consummation, Xxxxxxx Environmental has publicly announced
(and reflected in an appropriate filing with the Securities and Exchange
Commission) (the "Announcement and Filing") that it will effect the Merger,
as defined in the Amended Prospectus, with per share consideration paid in
the Merger that is at least as favorable as the per share consideration
paid in the acquisition referred to in clause (B).
2. Section 3(a) of the Rights Agreement is hereby amended by substituting
for the final sentence thereof the following:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred solely as a result of (i) the
approval, execution or delivery of the Merger Agreement, (ii) the
commencement or consummation of the transactions contemplated by the Merger
Agreement or (iii) the commencement or consummation occurring prior to
Midnight, Eastern Standard Time on March 27, 1998 (accompanied by the
Announcement and Filing prior to such consummation), of the exchange offer
contemplated by the Amended Prospectus, on the terms therein or on terms
more favorable to shareholders of the Company than the terms of the Amended
Prospectus; without limiting the generality of the foregoing, the Minimum
Condition, as defined in the Amended Prospectus, must not have been waived
or decreased, and the Xxxxxxx
-2-
Environmental Offer Consideration, as defined in the Amended Prospectus,
must not have been diminished."
3. Section 11(a)(ii) of the Rights Agreement is hereby amended by
substituting for the final sentence thereto the following:
"Notwithstanding anything in this Agreement to the contrary, an event
described in this subparagraph (ii) of Section 11(a) shall not be deemed to
have occurred solely as a result of (i) the approval, execution or delivery
of the Merger Agreement, (ii) the commencement or consummation of the
transactions contemplated by the Merger Agreement or (iii) the commencement
or consummation occurring prior to Midnight, Eastern Standard Time on March
27, 1998 (accompanied by the Announcement and Filing prior to such
consummation), of the exchange offer contemplated by the Amended
Prospectus, on the terms therein or on terms more favorable to shareholders
of the Company than the terms of the Amended Prospectus; without limiting
the generality of the foregoing, the Minimum Condition, as defined in the
Amended Prospectus, must not have been waived or decreased, and the Xxxxxxx
Environmental Offer Consideration, as defined in the Amended Prospectus,
must not have been diminished."
4. Section 13(a) of the Rights Agreement is hereby amended by
substituting for the final sentence thereof the following:
"Notwithstanding anything in this Agreement to the contrary, an event
described in any of clauses (i), (ii) or (iii) of this Section 13(a) shall
not be deemed to have occurred solely as a result of (i) the approval,
execution or delivery of the Merger Agreement, (ii) the commencement or
consummation of the transactions contemplated by the Merger Agreement or
(iii) the commencement or consummation occurring prior to Midnight, Eastern
Standard Time on March 27, 1998 (accompanied by the Announcement and Filing
prior to such consummation), of the exchange offer contemplated by the
Amended Prospectus, on the terms therein on or terms more favorable to
shareholders of the Company than the terms of the Amended Prospectus;
without limiting the generality of the foregoing, the Minimum Condition, as
defined in the Amended Prospectus, must not have been waived or decreased,
and the Xxxxxxx Environmental Offer Consideration, as defined in the
Amended Prospectus, must not have been diminished."
-3-
5. This Third Amendment shall be governed by and construed in accordance
with the laws of the State of Wisconsin applicable to contracts made and
performed entirely within such state.
6. In all respects not inconsistent with this Third Amendment, the Rights
Agreement is hereby ratified, approved and confirmed. In executing and
delivering this Third Amendment, the Rights Agent shall be entitled to all the
privileges and immunities afforded to the Rights Agent under the Rights
Agreement.
7. If any term, provision, covenant or restriction of the Third Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the other terms, provisions, covenants and restrictions
of this Third Amendment, and of the Rights Agreement, shall remain in full force
and effect and shall in no way be affected, impaired or invalidated.
8. This Third Amendment may be executed in any number of counterparts,
each of which shall be an original, but all of which shall together constitute
one and the same instrument.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed and attested, all as of the date first above written.
SAFETY-KLEEN CORP.
By:______________________
THE FIRST NATIONAL BANK OF CHICAGO
By:______________________
-5-
