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10.4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 6, 1996 (this "Amendment"), to the
Rights Agreement, dated as of August 2, 1988, between Xxxxx Inc., a
Massachusetts corporation (the "Company"), and The First National Bank of
Boston, N.A., as Rights Agent (pursuant to that certain Successor Rights Agent
Agreement, dated as of September 21, 1994, between the Company and The First
National Bank of Boston, N.A.)(the "Rights Agent")(the "Rights Agreement").
Pursuant to Section 27 of the Rights Agreement, the Company and the
Rights Agent may, prior to the Distribution Date (as defined therein), amend any
provision of the Rights Agreement (other than certain specifically enumerated
provisions) without the approval of any holders of certificates representing the
common stock of the Company. The Company now desires to amend the Rights
Agreement as set forth in this Amendment. Pursuant to Section 27 of the Rights
Agreement, the Company hereby directs that the Rights Agreement should be
amended as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Amendment to Section 1.
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The Rights Agreement is hereby amended by adding the following in
Subsection (a) of Section 1, following the word "plan" in the eighth line
thereof:
"or Xxxxxx & Xxxxx Corporation, a Tennessee corporation
("T&B") or EG Acquisitions Corp., a Delaware corporation
("Merger Sub") or any of their respective subsidiaries, but
only with respect to and to the extent
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that the shares of Common Stock are acquired by such entities
in connection with the transactions contemplated by the Agreement
and Plan of Merger among the Company, T&B and Merger Sub, to be
dated as of October 7, 1996 (the "Merger Agreement")"
2. Amendment to Section 7(a).
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Section 7(a) of the Rights Agreement is hereby amended and restated in
its entirety to read as follows:
"Section 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE
OF RIGHTS. (a) 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 exercisability set forth
in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) 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 and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the office of the Rights Agent
designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number of
Units (or other securities, cash or other assets, as the case may
be) as to which such surrendered Rights are then exercisable, at
or prior to the earlier of (i) the Final Expiration Date, (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof, (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof, or (iv) immediately prior to the
merger of Merger Sub with and into the Company on the terms and
conditions of the Merger Agreement (the earlier of (i), (ii),
(iii) and (iv) being herein referred to as the "Expiration
Date")."
3. Amendment of Section 11(a)(ii)B.
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Clause (ii)(B) of Section 11(a) of the Rights Agreement is hereby
amended by adding the following to the parenthetical phrase in the first
through fifth lines thereof after the words "such plan":
"or T&B or Merger Sub or any of their respective subsidiaries,
but only with respect to and to the extent that such shares of
Common Stock are acquired by such entities in connection with the
transactions contemplated by the Merger Agreement."
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4. Distribution Date and Stock Acquisition Date.
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The Company acknowledges that, as a result of the actions taken in this
Amendment, none of the actions or transactions contemplated by the Agreement
and Plan of Merger among the Company, Xxxxxx & Xxxxx Corporation and EG
Acquisitions Corp. to be dated as of October 7, 1996 will create a Distribution
Date or a Stock Acquisition Date (as such terms are defined in the Rights
Agreement).
5. Governing Law.
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This Amendment shall be deemed to be a contract made under the laws of
the Commonwealth of Massachusetts and for all purposes shall be governed by and
construed in accordance with the laws of such commonwealth applicable to
contracts to be made and performed entirely within such commonwealth.
6. Counterparts.
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This Amendment may be executed in any number of counterparts, each of
which shall for all purposes be deemed an original, and all of which together
shall constitute but one and the same instrument.
Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and their respective corporate seals to be affixed and attested,
all as of the day and year first above written.
Attest XXXXX INC.
[SEAL]
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx Name: Xxxx X. Xxxxx, Xx.
Title: Corp. Controller Title: Vice President
Attest THE FIRST NATIONAL BANK OF
BOSTON, N.A., As Rights Agent
[SEAL]
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxx Xxxxx
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Name: Xxxxxx Xxxxxxxxx Name: Xxxx Xxxxx
Title: Administration Manager Title: Account Manager
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