EXECUTION COPY
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XXXXXX INDUSTRIES INC.
RIGHTS PLAN AMENDMENT
DATED AS OF MARCH 8, 2005
TO
AMENDED AND RESTATED RIGHTS AGREEMENT
DATED AS OF JANUARY 5, 1998
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This RIGHTS PLAN AMENDMENT, dated as of March 8, 2005, (the
"Rights Plan Amendment"), to the Rights Agreement, dated as of January 5, 1998
and as amended and restated as of April 20, 2000 and as amended as of February
7, 2001 (the "Rights Agreement"), by and between Xxxxxx Industries Inc., a
Delaware corporation (the "Company"), and National City Bank, an Ohio
corporation, as Rights Agent (the "Rights Agent").
RECITALS
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The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
The Company, Xxxxxxx Denver, Inc., a Delaware corporation
("Parent"), and PT Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), are entering into an Agreement
and Plan of Merger, dated as of March 8, 2005 (as amended or supplemented from
time to time, the "Merger Agreement") pursuant to which Merger Sub will be
merged with and into the Company, whereby each issued share of common stock, par
value $1.00 per share, of the Company (the "Common Stock") not owned by Parent,
Merger Sub or the Company will be converted into the right to receive the cash
merger consideration specified in the Merger Agreement (the "Merger");
Pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may change or supplement the provisions of the Rights
Agreement in any manner which the Company may deem necessary or desirable and
which shall not adversely affect the interests of the holders of Rights
Certificates other than an Acquiring Person (each as defined in the Rights
Agreement); and
Pursuant to resolutions adopted on March 8, 2005, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable and desires to evidence
such Rights Plan Amendment in writing.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein and in the Rights Agreement,
the parties hereto agree as follows:
1. Amendment of First Paragraph. The first paragraph of the Rights
Agreement is amended to read in its entirety as follows:
Rights Agreement, dated as of January 5, 1998, by and between
Xxxxxx Industries Inc., a Delaware corporation (the "Company"), and
National City Bank, an Ohio corporation (the "Rights Agent"), as
amended and restated as of April 20, 2000, as amended as of February 7,
2001, and as amended as of March 8, 2005, and as may be amended
hereafter from time to time (the "Agreement").
2. Amendment of Section 1.
(a) The definition of "Acquiring Person" in Section 1(a) of
the Rights Agreement is amended by adding the following paragraph at the end
thereof:
Notwithstanding anything in this Agreement to the contrary,
none of Parent, Merger Sub, or any of their Affiliates or Associates
shall be deemed to be an Acquiring Person solely by virtue of (i) the
approval, execution or delivery of the Merger Agreement, (ii) the
consummation of the Merger in accordance with the provisions of the
Merger Agreement, (iii) stockholder approval of the Merger Agreement,
(iv) any actions taken or effected pursuant to the Merger Agreement in
accordance with the provisions thereof, or (v) the commencement or
consummation of any other Transaction.
(b) Section 1 of the Rights Agreement is amended by adding the
following definitions in the appropriate locations therein:
"MERGER" shall mean the merger of Merger Sub with and into the
Company pursuant to the terms of the Merger Agreement.
"MERGER AGREEMENT" shall mean the Agreement and Plan of
Merger, dated as of March 8, 2005, 2005, by and among the Company,
Parent and Merger Sub, as it may be amended, supplemented or replaced
from time to time.
"PARENT" shall mean Xxxxxxx Denver, Inc., a Delaware
corporation.
"MERGER SUB" shall mean PT Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent.
"TRANSACTION" shall mean the Merger and any other transaction
contemplated by the Merger Agreement.
(c) The definition of "Beneficial Ownership" in Section 1(d)
of the Rights Agreement is amended by adding the following paragraph at the end
thereof:
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, none of Parent, Merger Sub, or any of their
Affiliates or Associates shall be deemed the Beneficial Owner of, or to
beneficially own or to have Beneficial Ownership of the shares of
Common Stock subject to the Merger Agreement solely by reason of (i)
the approval, execution or delivery of the Merger Agreement, (ii) the
consummation of the Merger in accordance with the provisions of the
Merger Agreement, (iii) stockholder approval of the Merger Agreement,
or (iv) the commencement or consummation of any other Transaction.
(d) The definition of "Expiration Date" in Section 1(l) is
deleted in its entirety and replaced with the definition of "Final Expiration
Date" as follows:
"FINAL EXPIRATION DATE" shall mean the Close of Business on January 5,
2008, subject to extension as provided in the last paragraphs of
Sections 9(c), 11(b), and 12(b) hereof, and "Expiration Date" shall
have the meaning set forth in Section 7(a) herein.
(e) The definition of "Separation Date" in Section 1(q) of the
Rights Agreement is amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Separation Date shall not be deemed to have occurred solely as the
result of (i) the approval, execution or delivery of or public
announcement of the approval, execution or delivery of the Merger
Agreement, (ii) the consummation of the Merger in accordance with the
provisions of the Merger Agreement or any public announcement relating
thereto, or (iii) the commencement or consummation of any other
Transaction or any public announcement relating thereto.
(f) The definition of "Stock Acquisition Date" in Section 1(r)
of the Rights Agreement is amended by adding the following sentence at the end
thereof:
Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as the
result of (i) the approval, execution or delivery or public
announcement of the approval, execution or delivery of the Merger
Agreement, (ii) the consummation of the Merger in accordance with the
provisions of the Merger Agreement or any public announcement relating
thereto, or (iii) the commencement or consummation of any other
Transaction or any public announcement relating thereto.
3. Amendment of Section 7(a). Section 7(a) of the Rights Agreement is
amended to read in its entirety as follows:
(a) Until the Separation Date, no Right may be exercised.
Subject to Section 7(e) hereof, the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby in whole or in
part at any time after the Separation Date upon surrender of the Rights
Certificate, together with a duly executed form of election to
purchase, to the Rights Agent at the principal corporate trust office
of the Rights Agent, together with payment of the Purchase Price, prior
to the earliest of:
(i) the Close of Business on the Final Expiration
Date,
(ii) immediately prior to the Effective Time (as
defined in the Merger Agreement),
(iii) the time at which the Rights are redeemed
as provided in Section 23 hereof, or
(iv) the time at which the Rights are exchanged as
provided in Xxxxxxx 00 xxxxxx (xxx xxxxxxxx xx (x), (xx), (xxx), and
(iv) being herein referred to as the "Expiration Date").
4. Amendment of Section 9(c). The last paragraph of Section 9(c) is
amended by adding the word "Final" immediately before each reference to
"Expiration Date" therein such that the last paragraph of Section 9(c) reads as
follows:
The Company will also take all action necessary to ensure
compliance with the securities laws of the various states in connection
with the exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed ninety (90) days after the
date set forth in clause (i) of the first sentence of this Section
9(c), the exercisability of the Rights in order to prepare and file
such registration statements and, if the suspension extends beyond the
Final Expiration Date, the Final Expiration Date shall be extended to
the end of the suspension. Upon any suspension of the registration
statement, the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to
the contrary, the Rights shall not be exercisable in any jurisdiction
unless the requisite qualification in that jurisdiction shall have been
obtained.
5. Amendment of Section 11(a). Section 11(a) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, none of (i)
the execution, delivery or approval of the Merger Agreement, (ii) the
consummation of the Merger in accordance with the provisions of the
Merger Agreement, or (iii) the commencement or consummation of any
other Transaction shall cause the Rights to be adjusted or become
exercisable in accordance with this Section 11(a).
6. Amendment of Section 11(b). The last paragraph of Section 11(b) is
amended by adding the word "Final" immediately before each reference to
"Expiration Date" therein and replacing the reference to "Section 11(ii)"
therein with "Section 11(a)" such that the last paragraph of Section 11(b) reads
as follows:
To the extent that the Company determines that some action
need be taken pursuant to clauses (i) or (ii) of the proviso of this
Section 11(b), a majority of the Board of Directors may suspend the
exercisability of the Rights for a period of up to forty-five (45) days
following the date on which the first of the events listed in Section
11(a) of this Agreement shall have occurred, in order to decide the
appropriate form of distribution to be made pursuant to the above
proviso and to determine the value made pursuant to the above proviso
and to determine the value thereof and, if the suspension extends
beyond the Final Expiration Date, the Final Expiration Date shall be
extended to the end of the suspension. In the event of any suspension,
the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as
a public announcement at the time the suspension is no longer in
effect.
7. Amendment of Section 12(b). The last paragraph of Section 12(b) is
amended by adding the word "Final" immediately before each reference to
"Expiration Date" therein such that the last paragraph of Section 12(b) reads as
follows:
The Principal Party shall temporarily suspend, for a period of
time not to exceed ninety (90) days following the occurrence of a
Flip-Over Event, the exercisability of the Rights in order to prepare
and file the registration statement referred to in clause (i) above,
and, if the suspension extends beyond the Final Expiration Date, the
Final Expiration Date shall be extended to the end of the suspension.
The provisions of this Section 12 shall similarly apply to successive
Flip-Over Events. In the event that a Flip-Over Event shall occur at
any time after the occurrence of a Flip-In Event, the Rights which have
not theretofore been exercised shall thereafter become exercisable in
the manner described in Section 12(a).
8. Amendment of Section 12. Section 12 of the Rights Agreement is
amended by adding the following subsection (c) at the end thereof:
(c) Notwithstanding anything in this Agreement to the
contrary, none of (i) the execution, delivery or approval of the Merger
Agreement, (ii) the consummation of the Merger in accordance with the
provisions of the Merger Agreement, or (iii) the commencement or
consummation of any other Transaction shall be deemed an event of the
type described in clauses (w), (x), (y) or (z) of Section 12(a) and
shall not cause the Rights to be adjusted or exercisable in accordance
with the terms of this Agreement.
9. Amendment of Section 29. Section 29 of the Rights Agreement
is amended to read in its entirety as follows:
BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Rights Certificates (and, prior
to the Separation Date, registered holders of the Common Stock) any
legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Separation Date, registered holders of
the Common Stock).
10. Effectiveness. This Rights Plan Amendment shall be deemed effective
as of, and immediately prior to, the execution and delivery of the Merger
Agreement. Except as amended hereby, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
11. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed 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 the State of Delaware applicable to contracts made
and to be performed entirely within the State of Delaware.
12. Counterparts. This Rights Plan Amendment may be executed in any
number of counterparts, 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.
13. Severability. If any term, provision, covenant or restriction of
this Rights Plan Amendment is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Rights Plan Amendment shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have caused this Rights
Plan Amendment to be duly executed, all as of the date first above written.
XXXXXX INDUSTRIES INC.
BY /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: President
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NATIONAL CITY BANK,
as Rights Agent
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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