EXHIBIT 1
---------
SECOND AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of May 7, 2001 (this "Amendment"), to the Rights
Agreement, dated as of August 5, 1997, as amended as of February 25, 1999 (the
"Rights Agreement"), between Xxxxxxx Resources Corporation., a Delaware
corporation (the "Company"), and Fleet National Bank, as successor to
BankBoston, N.A., a national banking association (the "Rights Agent").
WHEREAS, the Company, The Xxxxxxxx Companies, Inc., a Delaware
corporation ("Parent"), and Resources Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of Parent ("Sub"), have proposed to enter into an
Agreement and Plan of Merger (the "Merger Agreement") pursuant to which, among
other things, Parent will cause Sub to make a tender offer (the "Offer") to
purchase all of the issued and outstanding shares of common stock, par value
$.01 per share, of the Company, together with the associated Rights (as defined
in the Rights Agreement), at a purchase price of $73.00 per share, and,
subsequent to the consummation of the Offer, the Company will be merged into Sub
whereby each share of common stock (together with the associated Right) of the
Company shall be converted into the right to receive 1.767 shares of common
stock of Parent;
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement to provide that neither Parent nor Sub shall be deemed an Acquiring
Person and no Distribution Date (as such terms are defined in the Rights
Agreement) shall be deemed to occur as a result of the execution and delivery of
the Merger Agreement, the public announcement of such execution and delivery,
the public announcement or the commencement of the Offer (as defined in the
Merger Agreement) or the consummation of the transactions contemplated by the
Merger Agreement; and
WHEREAS, pursuant to and in compliance with Section 27 of the Rights
Agreement, the Company and the Rights Agent desire to amend the Rights Agreement
as set forth in this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the Rights Agreement, the parties hereto
agree as follows:
1. Section 3 of the Rights Agreement is hereby amended to add the
following clause (d):
"(d) Notwithstanding anything in this Agreement that might
otherwise be deemed to the contrary, neither The Xxxxxxxx Companies, Inc.
("Xxxxxxxx") nor Resources Acquisition Corp. ("Xxxxxxxx Sub") shall be
deemed an Acquiring Person and no Distribution Date shall be deemed to
occur, in either case, as a result of the execution and delivery of the
agreement, dated as of May 7, 2001, among the Company, Xxxxxxxx and
Xxxxxxxx Sub entitled "Agreement and Plan of Merger" (the "Merger
Agreement"), the public announcement of such execution and delivery, the
public announcement or the
commencement of the Offer (as defined in the Merger Agreement) or the
consummation of the transactions contemplated by the Merger Agreement."
2. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware.
3. This Amendment may be executed in counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and both such
counterparts shall together constitute but one and the same instrument.
4. Except as expressly set forth herein, this Amendment shall not, by
implication or otherwise, alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the day and year first above written.
XXXXXXX RESOURCES CORPORATION
/s/ Xxxxx X. Dea
By: _____________________________________________
Name: Xxxxx X. Dea
Title: Chairman of the Board and
Chief Executive Officer
FLEET NATIONAL BANK,
as Rights Agent
/s/ Xxxxx X. Xxxxxxxx
By: _____________________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Senior Account Manager
3
