Exhibit 1.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT No. 1 (the "Amendment"), dated as of March 7, 1999, to the
Rights Agreement, dated as of June 3, 1998 (the "Rights Agreement"), between
Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware corporation (the "Company"), and
First Chicago Trust Company of New York, a New York corporation (the "Rights
Agent"), as Rights Agent.
Recitals
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
B. Allied Waste Industries, Inc., a Delaware corporation ("Parent"),
AWIN I Acquisition Corporation, a Delaware corporation and an indirect wholly
owned subsidiary of Parent ("Merger Sub"), and the Company have proposed to
enter into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to
which Merger Sub, or any other direct or indirect subsidiary of Allied which
Allied designates, will be merged with and into the Company, with the Company as
the surviving corporation (the "Merger"), all on the terms and subject to the
conditions set forth in the Merger Agreement.
C. The Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger and the Merger Agreement, and all of the transactions
contemplated thereby, in accordance with the terms thereof, from application of
the Rights Agreement.
D. Pursuant to Section 27 of the Rights Agreement, therefore, the
Board of Directors of the Company hereby resolves that an amendment to the
Rights Agreement as set forth herein is necessary and desirable to reflect the
foregoing, and the Company and the Rights Agent desire to evidence such
amendment in writing.
E. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
In consideration of the foregoing and the mutual agreements set
forth herein, the Company and the Rights Agent hereby amend the Rights Agreement
as follows:
1. Section 1(f) of the Rights Agreement is modified and 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 a Substantial Block, but shall not include (i)
the Company, (ii) any Subsidiary of the Company, (iii) any
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employee benefit plan or employee stock plan of the Company, or of
any Subsidiary of the Company, or any Person organized, appointed,
established or holding Voting Stock by, for or pursuant to, the
terms of any such plan, (iv) any Person who becomes the Beneficial
Owner of a Substantial Block as a result of a reduction in the
number of shares of Voting Stock outstanding due to the repurchase
of shares of Voting Stock by the Company unless and until such
Person, after becoming aware that such Person has become the
Beneficial Owner of a Substantial Block of the then outstanding
shares of Voting Stock, acquires beneficial ownership of additional
shares of Voting Stock representing one percent (1%) or more of the
shares of Voting Stock then outstanding, or (v) Allied Waste
Industries, Inc., a Delaware corporation ("Allied"), AWIN I
Acquisition Corporation, a Delaware corporation and an indirect
wholly owned subsidiary of Allied ("Merger Sub"), or any Affiliate
or Associate of Allied solely to the extent that each may, without
being deemed an Acquiring Person, execute and deliver the Agreement
and Plan of Merger, dated as of March 7, 1999, by and among Allied,
Merger Sub and the Company, as it may be amended or supplemented
from time to time (the "Merger Agreement"), and consummate
transactions contemplated thereby.
2. The first paragraph of Section 3 of the Rights Agreement is
amended by inserting the following sentence after the first sentence thereof:
Notwithstanding the foregoing, no Distribution Date shall ensue as a
result of the execution and delivery of the Merger Agreement or
consummation of transactions contemplated thereby.
3. The first sentence of Section 7 of the Rights Agreement is
modified and amended to read in its entirety as follows:
Subject to Section 7(e), at any time after the Distribution Date,
the registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on exercisability
set forth in Xxxxxxx 0, Xxxxxxx 00(x)(xxx) and Section 23) in whole
or in part upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to
the Rights Agent at the principal stock transfer office of the
Rights Agent, together with payment of the Purchase Price for each
one one-hundredth of a share of Preferred Stock (or other
securities, cash or other assets, as the case may be) as to which
the Rights are exercised, at or prior to the earlier of (i) the
Close of Business on June 15, 2008 or such later date as may be
established by the Board of Directors prior to the expiration of the
Rights (such date being hereinafter referred to as the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed or
exchanged as provided in Section 23 and Section 24, or (iii)
immediately prior to the consummation of the merger of Merger Sub,
or any other direct or indirect subsidiary of Allied, with and into
the Company as contemplated by and in
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accordance with the Merger Agreement (the "Merger") (the earlier of
(i), (ii) and (iii) being herein referred to as the "Expiration
Date").
4. Section 13 of the Rights Agreement is amended by inserting the
following sentence at the end of such Section:
Notwithstanding anything in this Agreement to the contrary, this
Section 13 shall not apply to the Merger.
5. This Amendment shall become effective as of the date of the
Merger Agreement. If the Merger Agreement is terminated without the Effective
Time (as defined in the Merger Agreement) having occurred, this Amendment shall
be null and void.
6. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely within such
State.
7. This Amendment to the Rights Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument. Terms not
defined herein shall, unless the context otherwise requires, have the meanings
assigned to such terms in the Rights Agreement.
8. In all respects not inconsistent with the terms and provisions of
this Amendment to the Rights Agreement, the Rights Agreement is hereby ratified,
adopted, approved and confirmed. In executing and delivering this Amendment, the
Rights Agent shall be entitled to all the privileges and immunities afforded to
the Rights Agent under the terms and conditions of the Rights Agreement.
9. If any term, provision, covenant or restriction of this Amendment
to the Rights Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment to the Rights
Agreement, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
Attest: XXXXXXXX-XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx
Assistant Secretary Senior Vice President and Chief
Financial Officer
Attest: FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxx Xxxx Xxxxxx Xxxxxxxxxx
Customer Service Officer Assistant Vice President
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