EXHIBIT 1
FIFTH AMENDMENT TO RIGHTS AGREEMENT
This Fifth Amendment (this "Amendment"), dated as of June 6, 1999, to
the Rights Agreement, dated as of October 31, 1995 and amended as of February
16, 1998, September 18, 1998, October 5, 1998 and January 9, 1999 (the "Rights
Agreement"), between GLOBAL INDUSTRIAL TECHNOLOGIES, INC., a Delaware
corporation (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation (the "Rights Agent"); all capitalized terms not defined herein shall
have the meanings ascribed to such terms in the Rights Agreement.
WHEREAS, on October 20, 1995, the Board of Directors of the Company
authorized the issuance of one Right for each share of Common Stock to be issued
on the Effective Date of the Merger; and
WHEREAS, Section 26 of the Rights Agreement provides that as long as
the Rights are redeemable, the Company may in its sole and absolute discretion,
and the Rights Agent shall if the Company so directs, supplement or amend any
provision of the Rights Agreement without the approval of any holders of the
Rights; and
WHEREAS, the Board of Directors of the Company has deemed it necessary
and desirable to amend the Rights Agreement as set forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Rights Agent hereby agree as follows:
Section 1. Amendment to Section 1(x). Section 1(x) is hereby amended
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by deleting the definition of "Stock Acquisition Date" in its entirety and
replacing it with the following:
(x) "Stock Acquisition Date" shall mean the earlier of (i) the first
date on which there shall be a public announcement by the Company (by
any means) that a Person has become an Acquiring Person or (ii) the
first time a Person who has made a tender or exchange offer for 15% or
more of the outstanding shares of Voting Stock of the Company shall
become an Acquiring Person as a result of the purchase of shares of
Voting Stock pursuant to such tender or exchange offer or at any time
during the 60 day period after the termination or expiration thereof.
Section 2. Amendment to Section 3(a). Section 3(a) is hereby amended
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by deleting the following language "Until the close of business on the day which
is the earlier of (i) the tenth day after the Stock
Acquisition Date or (ii) the tenth business day" in the first sentence thereof
and replacing it with the following phrase, "Until the time which is the earlier
of (i) the Stock Acquisition Date or (ii) the Close of Business on the tenth
Business Day".
Section 3. Amendment to Section 13(a). Section 13(a) is hereby
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amended by deleting the following language "then, on the first occurrence of any
such event, proper provision shall be made so that" in the first sentence
thereof and replacing it with the following phrase, "then, prior to the first
occurrence of any such event, proper provision shall be made in a binding
agreement between the Company and the Principal Party so that".
Section 4. Amendment to Section 23(a). Section 23(a) is hereby
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amended by deleting the following language "The Company may, at its option, but
only by the vote of a majority of the Board of Directors, redeem all but not
less than all of the then outstanding Rights, at any time prior to the Close of
Business on the earlier of (i) the tenth day following the Stock Acquisition
Date (subject to extension by the Company as provided in Section 26 hereof) or
(ii) the Final Expiration Date," in the first sentence thereof and replacing it
with the following:
The Company may, at its option, but only by the vote of a majority of
the Board of Directors, redeem all but not less than all of the then
outstanding Rights, at any time prior to the earlier of (i) the Stock
Acquisition Date or (ii) the Close of Business on the Final Expiration
Date,
Section 5. No Other Effect. The Rights Agreement shall not otherwise
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be supplemented or amended by virtue of this Amendment, but shall remain in full
force and effect, as amended hereby.
Section 6. Delaware Contract. This Amendment shall be deemed to be a
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contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed and enforced in accordance with the laws of such
state applicable to contracts to be made and performed entirely within such
state.
Section 7. Counterparts. This Amendment may be executed in any
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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
but one and the same instrument.
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.
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President, General Counsel
and Secretary
THE BANK OF NEW YORK
RIGHTS AGENT
By: /s/ Xxxxx Diminu
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Name: Xxxxx Diminu
Title:Assistant Vice President
Attest: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Assistant Treasurer
