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EXHIBIT 4.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment to Rights Agreement (this "Amendment") is executed
to be effective as of November 1, 1997, between Xxxxxx Xxxxxxx Corporation, a
Delaware corporation (the "Company") and First Chicago Trust Company of New
York, a New York company (the "Rights Agent"). WITNESSETH
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement dated as of May 1, 1995 (the "Agreement"), and the parties desire to
amend the Agreement in the manner authorized in Section 26 thereof.
NOW THEREFORE, in consideration of the premises, and other valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
Company and the Rights Agent hereby agree as follows:
1. DEFINITIONS. All terms used in this Amendment which are not
defined in this Amendment have the meaning given those terms in the Agreement.
2. AMENDMENTS TO THE AGREEMENT. The Agreement is hereby amended as
follows:
(a) Section 1.(a) "Acquiring Person" shall be amended to read in
its entirety as follows:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of 20% or more of the shares of Common
Stock then outstanding, but shall not (i) include the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan, (ii) any Person who
becomes an Acquiring Person solely as a result of a reduction in
the number of shares of Common Stock outstanding due to the
repurchase of shares of Common Stock by the Company.
(b) Section 7. (a) shall be amended to change the Final
Expiration Date from April 30, 2005 to October 31, 2007.
(c) Section 7.(b) shall be amended to change the Purchase Price
from $75 to $300.
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(d) Section 11. (a) (ii) (A) shall be amended to read in its
entirety as follows:
(A) (1) any Acquiring Person or any Associate or Affiliate
of any Acquiring Person, at any time after the date of this
Agreement, directly or indirectly, shall merge into the Company
or otherwise combine with the Company and the Company shall be
the continuing or surviving corporation of such merger or
combination and the Common Stock of the Company shall remain
outstanding and unchanged, or (2) subject to the right of
redemption granted in Section 23 hereof, any Person (other than
the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan), alone or
together with its Affiliates and Associates, shall, at any time
after the Rights Dividend Declaration Date, become the Beneficial
Owner of more than 20% of the shares of Common Stock then
outstanding, other than (x) pursuant to any transaction set forth
in Section 13(a) hereof, or (y) pursuant to an offer for all
outstanding shares of Common Stock at a price and upon such terms
and conditions as a majority of the Continuing Directors
determines to be in the best interests of the Company and its
stockholders, other than such Acquiring Person, its Affiliates
and its Associates, or
(e) Exhibit A to the Agreement [Form of Rights Certificate] shall
be amended to change the Final Expiration Date in the first line of the
opening legend and the seventh line of the first paragraph following
the opening legend from April 30, 2005 to October 31, 2007, and to
change the Purchase Price and the as of date related to the Purchase
Price in the tenth and sixteenth line, respectively, of the first
paragraph following the opening legend from $75 to $300 and from May
23, 1995 to November 1, 1997, respectively.
3. HEADINGS. The headings of Sections in this Amendment have been
included for convenience only and should not be construed in interpreting this
Amendment.
4. SEVERABILITY. If any part of this Amendment is for any reason
found to be unenforceable, all other portions nevertheless remain enforceable.
5. SUCCESSORS. This Amendment binds and inures to the benefit of the
parties in respect of successors and assigns.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall constitute the same
instrument.
7. GOVERNING LAW. This Amendment must be construed--and its
performance enforced--under Delaware law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: XXXXXX XXXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxx X. Xxxxxx Name: Xxxxxxxx Xxxxx
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Title: Assistant Secretary Title: Senior Vice President,
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General Counsel and
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Secretary
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(SEAL)
Attest: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxx Kurmich
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Name: Xxxxxx Xxxxxx Name: Xxxxx Kurmich
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Title: Assistant Vice President Title: Assistant Vice President
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(SEAL)
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