1
Exhibit 10.22(b)
EXECUTION COPY
FIRST AMENDMENT
THIS AMENDMENT, dated as of March 15, 2001 (the "Amendment"),
to the Amended and Restated Rights Agreement, dated as of February 8, 2000, (the
"Rights Agreement"), by and between Dairy Mart Convenience Stores, Inc., a
Delaware corporation (the "Company"), and American Stock Transfer & Trust
Company, a New York corporation, as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to the
Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company and the Rights Agent desire to amend the Rights Agreement as set forth
below.
NOW, THEREFORE, in consideration of the premises and the
mutual promises set forth herein, the parties hereto agree as follows:
Section 1. AMENDMENTS TO SECTION 1.
(a) The definitions of "Beneficial Owner" and "Beneficially
Own" are amended by adding the following at the end thereof:
"Notwithstanding anything contained in this Agreement to the contrary,
neither Acquisition Corp. nor any of its Affiliates or Associates shall be
deemed to be the Beneficial Owner of, or to beneficially own, any of the Common
Shares of the Company solely by virtue of the approval, execution or delivery of
the Merger Agreement."
(b) The following definitions are added to Section 1 of the
Rights Agreement:
"Acquisition Corp." shall mean DM Acquisition Corp., a Delaware
corporation.
"Merger" shall mean the merger of Acquisition Corp. with and into the
Company in accordance with the General Corporation Law of the State of Delaware
upon the terms and subject to the conditions set forth in the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated
as of March 15, 2001, between Acquisition Corp. and the Company, but shall not
include any amendment to such Merger Agreement.
2
Section 2. EXPIRATION DATE.
Section 7(a) of the Rights Agreement is hereby amended by
replacing the word "or" with a comma immediately prior to the symbol "(ii)" and
by adding immediately prior to the parenthetical at the end thereof the
following:
or (iii) immediately prior to the Effective Time (as defined in the
Merger Agreement) of the Merger; whereupon the Rights shall expire"
Section 3. NEW SECTION 34.
The following is added as a new Section 34 to the Rights
Agreement:
"Section 34. THE MERGER, ETC.
Notwithstanding anything in this Agreement to the contrary,
none of (a) the approval, execution or delivery of the Merger Agreement or the
performance by any party of the transactions contemplated thereby or permitted
thereunder shall cause (i) Acquisition Corp. or any of its Affiliates or
Associates to be an Acquiring Person, (ii) a Share Acquisition Date to occur or
(iii) a Distribution Date to occur in accordance with the terms hereof, which
Distribution Date, if any, shall instead be indefinitely deferred until such
time the Board of Directors may otherwise determine."
Section 4. 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, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 5. GOVERNING LAW. 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 made and to be performed entirely within such State.
Section 6. COUNTERPARTS. This Amendment may be executed in any
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.
Section 7. EFFECT OF AMENDMENT. Except as expressly modified
herein, the Rights Agreement, as previously amended, shall remain in full force
and effect in accordance with the provisions thereof.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed all as of the day and year first above written.
DAIRY MART CONVENIENCE STORES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
