Exhibit 4.3
THE EARTHGRAINS COMPANY
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of June 29, 2001
("Amendment"), to the Rights Agreement, dated as of February 22, 1996
(the "Rights Agreement"), between The Earthgrains Company (the
"Company") and Mellon Investor Services LLC (successor to Boatmen's
Trust Company), as the Rights Agent ("Rights Agent"). All capitalized
terms not otherwise defined herein shall have the meaning ascribed to
such terms in the Rights Agreement.
WHEREAS, the Company believes it to be in the best interest of the
Company and its shareholders to enter into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of the date hereof, by and
among the Company, Xxxx Xxx Corporation, a Maryland corporation (the
"Purchaser"), and SLC Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of the Purchaser ("Merger Sub"), which Merger
Agreement provides for, among other things, a tender offer (the
"Offer") by Merger Sub, for all of the issued and outstanding shares of
the Company's common stock, $0.01 par value per share ("Common Stock")
(including the associated Common Stock purchase rights (the "Rights")
to purchase shares of Series A Junior Participating Preferred Stock of
the Company pursuant to the terms of the Rights Agreement).
WHEREAS, as a result of the foregoing, the Company desires that
the transactions contemplated by the Merger Agreement, as well as
Purchaser, Merger Sub and any affiliates thereof be exempt from the
provisions of the Rights agreement;
WHEREAS, the Company and the Rights Agent have heretofore executed
and entered into the Rights Agreement;
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company may supplement or amend any provision of the Rights Agreement
in accordance with the provisions of Section 26 thereof; and
WHEREAS, the Company has executed the Officer's Certificate,
attached hereto as Annex A, and has performed all other acts and things
necessary to make this Amendment a valid agreement, enforceable
according to its terms, 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.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereby agree as follows:
Section 1. Amendments to the Rights Agreement.
A. The first sentence of Section 2 of the Rights Agreement is
hereby amended to delete the following words: "and the holders of the
Rights (who, in accordance with Section 3, shall prior to the
Distribution Date also be the holders of the Common Stock)".
B. Section 3(a) of the Rights Agreement is hereby amended to add
the following paragraph at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, (i)
neither Purchaser, Merger Sub, nor any of their respective Affiliates
or Associates shall become an Acquiring Person, either individually or
collectively, (ii) no Distribution Date, Stock Acquisition Date or
Triggering Event shall occur, (iii) no Rights shall separate from the
shares of Common Stock or otherwise become exercisable, (iv) no holder
of Rights or any other Person shall have any legal or equitable rights,
remedy or claim under this Agreement, and (v) no adjustment shall be
made pursuant to Section 11 or 13, in each case solely by virtue of (A)
the announcement of the Offer (as defined in the Merger Agreement (as
defined below)), (B) the acquisition of Common Stock of the Company
pursuant to the Offer, the Merger (as defined in the Merger Agreement)
or the Agreement and Plan of Merger, dated as of July 29, 2001, among
Purchaser, the Company and Merger Sub (the "Merger Agreement"), (C) the
execution and delivery of the Merger Agreement or (D) the consummation
of the Offer, the Merger or any of the other transactions set forth in
the Merger Agreement."
C. Section 20(c) of the Rights Agreement is hereby amended by
adding the following words to the end of such section:
"Anything to the contrary notwithstanding, in no event shall the
Rights Agent be liable for special, punitive, indirect, consequential
or incidental loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Rights Agent has been advised of
the likelihood of such loss or damage."
Section 2. Definition. The term "Agreement," as used in the
Rights Agreement, shall be deemed to refer to the Rights Agreement as
amended hereby.
Section 3. Full Force and Effect. Except as expressly amended
hereby, the Rights Agreement shall continue in full force and effect in
accordance with the provisions thereof on the date hereof.
Section 4. Governing Law. This Amendment shall be governed by
and construed in accordance with the law of the State of Delaware
applicable to contracts to be made and performed entirely within such
State.
Section 5. Counterparts. This Amendment may be executed in
two counterparts, each of which shall be deemed an original, but both
of which together shall constitute one and the same instrument.
Section 6. Severability. If any term, provision, covenant or
restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall
remain in full force and effect and shall in no way be effected.
IN WITNESS WHEREOF, the parties hereto have cause this Amendment
to be duly executed as of the day and year first above written.
THE EARTHGRAINS COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman and CEO
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Vice President
Annex A
OFFICER'S CERTIFICATE
I, Xxxxxx X. Xxxxxxx, Vice President, General Counsel and
Secretary of The Earthgrains Company, a Delaware corporation (the
"Company") do hereby certify, in accordance with Section 26 of the
Rights Agreement, dated as of February 22, 1996 (the "Rights
Agreement"), between the Company and Mellon Investor Services LLC (the
"Rights Agent"), that as of the date hereof, the Amendment to the
Rights Agreement, dated the date hereof, between the Company and the
Rights Agent, is in compliance with the terms of Section 26 of the
Rights Agreement.
IN WITNESS THEREOF, I have signed this certificate.
Dated: June 29, 2001
THE EARTHGRAINS COMPANY
/s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President, General Counsel &
Secretary
