FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment dated February 7, 2001 (the "Amendment")
to the Rights Agreement restated on April 20, 2000 (the "Rights Agreement")
between Xxxxxx Industries Inc., Company, a Delaware corporation (the "Company")
and National City Bank, an Ohio corporation (the "Rights Agent").
A. Acting pursuant to Section 27 of the Rights Agreement, the
parties hereby agree that the definition of Acquiring Person as set
forth in the Rights Agreement shall be and hereby is amended to read in
its entirely as follows:
(a) "ACQUIRING PERSON" shall mean any Person (as such term is
hereinafter defined) who or which, together with all
Affiliates (as hereinafter defined) and Associates (as
hereinafter defined) of such Person, shall be the Beneficial
Owner (as hereinafter defined) or 20% or more of the shares of
Common Stock then outstanding and shall include all Affiliates
and Associates of such Person, but shall not include the
Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company or any
entity holding shares of Common Stock organized, appointed or
established by the Company for or pursuant to the terms of any
employee benefit plan. Further, no Person shall be deemed to
be an Acquiring Person if that Person becomes the Beneficial
Owner of 20% or more of the shares of Common Stock then
outstanding solely by virtue of a repurchase or repurchase of
Common Stock on the part of the Company and does not
thereafter purchase Common Stock equal to more than 1/2% of
the outstanding Common Stock of the Company. Notwithstanding
the foregoing, if a Person who would otherwise be an
"Acquiring Person,"
(i) notifies the Company in writing within five (5)
business days thereafter (the "Notification Period") that it
has inadvertently become the Beneficial Owner of 20% or more
of the shares of Common Stock then outstanding, and
(ii) within three(3) business days after the end of
the Notification Period divests a sufficient number of shares
of Common Stock so as to reduce its holdings to less than 20%
and delivers proof thereof in writing to the Company no more
than six (6) business days after the end of the Notification
Period,
then that Person shall not be deemed to be an "Acquiring
Person" for any purpose of this Agreement."
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B. As promptly as practicable following the date of this First
Amendment, the Company shall cause: (i) the legend on the certificates
for the Common Stock referring to the Rights Agreement to be
supplemented so as to accommodate this Amendment, and (ii) the form of
Rights Certificate (attached as Exhibit B to the Rights Agreement) to
be supplemented to accommodate this Amendment.
IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed and their respective corporate seals to be hereto affixed and
attested, all as of the date and year first above written.
Attest: XXXXXX INDUSTRIES INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President of Finance Title: Chief Executive Officer
Chief Financial Officer
and Secretary
NATIONAL CITY BANK
By; /s/ Xxxxx X. Xxxxx By: /s Xxxxxx Xxxxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxx
Title: Vice President Title: Vice President
