AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of May 11, 2000, by and
between Hussmann International, Inc., a Delaware corporation (the "Company"),
and First Chicago Trust Company of New York, a New York corporation, as Rights
Agent (the "Rights Agent"), amends the Amended and Restated Rights Agreement,
dated as of July 15, 1999 (the "Rights Agreement").
R E C I T A L S
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A. The Company intends to enter into an Agreement and Plan of Merger,
dated as of the date hereof (as it may be amended or supplemented from time to
time, the "Ingersoll Merger Agreement") among the Company, Xxxxxxxxx-Xxxx
Company, a New Jersey corporation ("Ingersoll"), and IR Merger Corporation, a
Delaware corporation ("Merger Sub") with respect to a merger of the Company and
Merger Sub (the "Merger").
B. The Company and the Rights Agent have executed and entered into the
Rights Agreement.
C. Pursuant to Section 27 of the Rights Agreement, the Company may from
time to time supplement or amend the Rights Agreement in accordance with the
provisions of Section 27 thereof.
D. The Board of Directors has determined that the Merger and the other
transactions contemplated by the Ingersoll Merger Agreement are fair to and in
the best interests of the Company and its stockholders.
E. The Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement to
exempt the Ingersoll Merger Agreement and the transactions contemplated by the
Ingersoll Merger Agreement from the application of the Rights Agreement.
A G R E E M E N T
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end of the last sentence thereof:
"Notwithstanding anything in this Agreement to the
contrary, neither Xxxxxxxxx-Xxxx Company, a New Jersey
corporation ("Ingersoll"), nor any direct or indirect
wholly owned subsidiary of Ingersoll shall be deemed to
be an Acquiring Person solely as a result of the
approval, execution or delivery of the Agreement and
Plan of Merger, dated as of May 11, 2000, among
the Company, Ingersoll, and IR Merger Corporation, a
Delaware corporation ("Merger Sub") (as it may be
amended from time to time, the "Ingersoll Merger
Agreement"), or the consummation of the merger of the
Company and Merger Sub (the "Merger") or the other
transactions contemplated by the Ingersoll Merger
Agreement."
2. Section 7(a) of the Rights Agreement is hereby modified, amended and
restated in its entirety as follows:
"Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on
exercisablity set forth in Section 9(c) and Section
11(a)(iii)) in whole or in part at any time after the
Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase on
the reverse side thereof duly executed, to the Rights
Agent at the office or offices of the Rights Agent
designated for such purpose, together with payment of
the aggregate Purchase Price with respect to the total
number of one one-hundredths of a share of Preferred
Stock (or other securities, cash or other assets, as the
case may be) as to which surrendered Rights are then
exercisable, at or prior to the earliest of (i) the
close of business on December 31, 2007 (the "Final
Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the
"Redemption Date"), (iii) the time at which such Rights
are exchanged pursuant to Section 24 hereof, or (iv) the
time immediately prior to the initial purchase of shares
of Common Stock in the tender offer contemplated by the
Ingersoll Merger Agreement."
3. Section 15 of the Rights Agreement is hereby modified and amended to
add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give
any holder of Rights or any other Person any legal or
equitable rights, remedy or claim under this Agreement
in connection with any transactions contemplated by the
Ingersoll Merger Agreement."
4. The Rights Agreement is hereby further modified and amended by
adding a new Section 33 to the end thereof to read in its entirety as follows:
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"Section 36. INGERSOLL MERGER AGREEMENT. Notwithstanding
any other provision of this Agreement, neither the
approval, execution or delivery of the Ingersoll Merger
Agreement nor the consummation of the Offer (as defined
in the Ingersoll Merger Agreement), the Merger or the
other transactions contemplated by the Ingersoll Merger
Agreement is or shall be deemed to be an event described
in Section 11(a)(ii) or Section 13 hereof, 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 the Rights, including giving
the holders of the Rights the right to acquire
securities of any party to the Ingersoll Merger
Agreement."
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. 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.
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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.
HUSSMANN INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Director, Corporate Actions