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EXHIBIT (2)
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of December 17, 1998, to
the Rights Agreement, dated as of April 30, 1997 (the "Rights Agreement"), by
and between Xxxxxxx Corporation, a Delaware corporation (the "Company"), and
Xxxxxx Trust and Savings Bank, an Illinois banking association, as Rights Agent
(the "Rights Agent").
RECITALS
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
B. Pursuant to Section 26 of the Rights Agreement, the Company may
from time to time supplement or amend the Rights Agreement in accordance with
the provisions of Section 26 thereof.
C. The Company proposes to enter into an Agreement and Plan of
Merger, dated as of December 17, 1998 (as it may be further amended or
supplemented from time to time, the "Merger Agreement") among Xxxx-Xxxxxx
Automotive, Inc. ("BWA"), BWA Merger Corp. ("BWA Sub") and the Company, with
respect to a business combination of the Company and BWA (the "Merger").
D. The Merger Agreement contemplates that the Company will amend the
Rights Agreement to the extent necessary to provide that the execution of the
Merger Agreement and the consummation of the transactions contemplated thereby
will not (i) cause BWA or BWA Sub to become an Acquiring Person or (ii) cause
the occurrence of a Stock Acquisition Date or Distribution Date or Triggering
Event; and that the Rights Agreement will expire immediately prior to the
Effective Time of the Merger.
E. The Board of Directors has determined that it is in the best
interest 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, from the application of the Rights Agreement.
AGREEMENT
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1(a) of the Rights Agreement is hereby modified and
amended by adding the following proviso at the end of the first sentence
thereof:
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"; provided that neither Xxxx-Xxxxxx Automotive, Inc., a Delaware
corporation ("BWA"), BWA Merger Corp., a Delaware corporation and
a wholly-owned subsidiary of BWA ("BWA Sub"), nor any of their
Affiliates or Associates shall be deemed to be an Acquiring Person
by virtue of the approval, execution or delivery of the Agreement
and Plan of Merger dated as of December 17, 1998, as may be
amended from time to time, among BWA, BWA Sub and the Company (the
"BWA Merger Agreement") or the consummation of the transactions
contemplated thereby."
2. The Rights Agreement is hereby further modified and amended by
adding a new Section 34 to the end thereof to read in its entirety as follows:
"Section 34. Merger Agreement with Xxxx-Xxxxxx Automotive, Inc.
Notwithstanding any other provision of this Agreement, (i) neither
the approval, execution or delivery of the BWA Merger Agreement
nor the consummation of the transactions contemplated thereby is
or shall be deemed to be a Section 11(a)(ii) Event or Section 13
Event, nor will such performance or consummation result in the
occurrence of a Stock Acquisition Date, a Distribution Date or any
other separation of the Rights from the underlying Common Stock,
nor entitle or permit the holders of the Rights to exercise the
Rights or otherwise affect the rights of the holders of Rights,
including giving the holders of the Rights the right to acquire
securities of any party to the BWA Merger Agreement; and (ii)
immediately prior to the Effective Time (as such term is defined
in the BWA Merger Agreement) this Agreement shall be terminated
and deemed null and void and of no effect."
3. This Amendment shall be effective as of the date hereof; provided
that if the Merger Agreement is terminated without the Effective Time (as such
term is defined in the Merger Agreement) having occurred, this Amendment shall
be null and void and of no effect.
4. This Amendment shall be deemed to be a contract made under 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.
5. This Amendment 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.
6. Terms not defined herein shall, unless the context otherwise
requires, have the
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meanings assigned to such terms in the Rights Agreement.
7. In all respects not inconsistent with the terms and provisions of
this Amendment, 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.
[signature page follows]
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
Attest: XXXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Secretary Title: Chairman and Chief
Executive Officer
Attest: XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President Title: Vice President
