FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of September 25, 1999 (this
"Amendment") between Xxxx Corp., a Delaware corporation (the "Company") and
First Union National Bank (the "Rights Agent"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
such terms in the Rights Agreement.
WHEREAS, the Company and the Rights Agent are party to a Rights Agreement,
dated as of May 15, 1998 (the "Rights Agreement");
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior to the
Distribution Date, the Company and the Rights Agent may amend any provision of
the Rights Agreement without the approval of any holders of certificates
representing Common Shares;
WHEREAS, the Distribution Date has not yet occurred and the Company and the
Rights Agent desire to amend the Rights Agreement as set forth in this
Amendment;
WHEREAS, the parties hereto agree as follows:
1. Section 1(j) of the Rights Agreement is hereby amended by deleting the
definition of "Grandfathered Stockholder" in its entirety and replacing it with
the following:
"Grandfathered Stockholder" shall mean each of (i) Xxxxx Mas, his
Affiliates and Associates, (ii) Xxxx Xxxxxx Mas, his Affiliates and Associates,
(iii) Xxxx Xxxxx Mas, his Affiliates and Associates, (iv) Xxxxxx Fund I, L.P.,
(v) Xxxxxx Capital Advisors, Inc. and (vi) General Electric Capital Corporation,
GECFS, Inc. and their Affiliates and Associates (together, the "GECC
Stockholders") but only so long as (1) after the Record Date and before
September 25, 1999, the GECC Stockholders beneficially own in the aggregate less
than 25 percent of the issued and outstanding Class A Common Stock and (2) on
and after September 25, 1999, the GECC Stockholders beneficially own in the
aggregate less than 20 percent of the issued and outstanding Class A Common
Stock; provided, however, that if on or after September 25, 1999, the GECC
Stockholders beneficially own in the aggregate less than 25 percent but 20
percent or more of the issued and outstanding Class A Common Stock and (A)
General Electric Capital Corporation and GECFS, Inc. have complied in all
material respects with their obligations under the Standstill Agreement dated as
of April 29, 1998 by and among General Electric Capital Corporation, GECFS,
Inc., the Company and Xxxxxx Capital Advisers, Inc.; and (B) the Company, Xxxx
Machinery, Inc., Xxxxx Mas, Xxxx Xxxxx Mas, Xxxx Xxxxxx Mas, Xxxxxx Capital
Advisors, Inc. and Xxxxxx Fund I, L.P. (together the "Mas Affiliates") fail to
fulfill their obligations, pursuant to the Agreement by and among Xxxx Deere
Construction Equipment Company and the Mas Affiliates dated as of April 29,
1998, to cause the GECC Stockholders to beneficially own less than 20 percent of
the issued and outstanding Class A Common Stock, the GECC Stockholders shall
continue to be deemed Grandfathered Stockholders notwithstanding the fact that
their beneficial ownership is equal to or exceeds 20 percent of the issued and
outstanding Class A Common Stock; provided further, if such failure by the Mas
Affiliates is cured, the GECC Stockholders shall thereafter continue to be
deemed Grandfathered Stockholders for so long as they continue to beneficially
own in the aggregate less than 20 percent of the issued and outstanding Class A
Common Stock.
2. This Amendment shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts to be made and performed
entirely within such State.
3. This Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
XXXX CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer and President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
