EXHIBIT 2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT No. 1 (the "Amendment"), dated as of January 31, 1999, to
the Rights Agreement, dated as of April 24, 1997 (the "Rights Agreement"),
between ▇▇▇▇▇▇ International, Inc., an Indiana corporation (formerly named New
▇▇▇▇▇▇ International, Inc.) (the "Company"), and First Chicago Trust Company of
New York, a New York corporation (the "Rights Agent"), as Rights Agent.
Recitals
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
▇. ▇▇▇▇ and ▇▇▇▇ Company, a Delaware corporation ("Parent"),
Gershwin Acquisition Corp., an Indiana corporation and a wholly-owed subsidiary
of Parent ("Merger Sub"), and the Company have entered into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which (a) Merger Sub will
commence an offer (the "Offer") to purchase for cash up to two-thirds of the
issued and outstanding shares of Common Stock, par value $1.00 per share, of the
Company ("Company Common Stock") and the associated rights (the "Rights") to
purchase one one-hundredth of a share of Series A Junior Participating Preferred
Stock, par value $1.00 per share, of the Company issued pursuant to the Rights
Agreement, and (b) Merger Sub will be merged with and into the Company, with the
Company as the surviving corporation in the merger (the "Merger"), all on the
terms and subject to the conditions set forth in the Merger Agreement.
C. Pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable to reflect the
foregoing, and the Company and the Rights Agent desire to evidence such
amendment in writing.
D. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
In consideration of the foregoing and the mutual agreements set
forth herein, the parties hereto agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended by
inserting the following sentence at the end thereof:
Furthermore, notwithstanding the foregoing, neither Rohm and
▇▇▇▇ Company, a Delaware corporation ("Parent"), nor Gershwin
Acquisition Corp., an Indiana corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), nor any Affiliate or
Associate of Parent shall become an Acquiring Person as a
result of (i) the exe-
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cution, delivery or performance of the Merger Agreement, dated as
of January 31, 1999, among Parent, Merger Sub and the Company, as
it may be amended or supplemented from time to time
(the "Merger Agreement"), (ii)the announcement or making of the
Offer (as defined in the Merger Agreement, the "Offer"), (iii) the
acquisition of Common Shares pursuant to the Offer or the Merger
(as defined in the Merger Agreement, the "Merger") or (iv) the
consummation of the Offer, the Merger or any other transactions
contemplated by the Merger Agreement.
2. The first sentence of Section 3(a) of the Rights Agreement
is hereby modified and amended to read in its entirety as follows:
Until the earlier of (i) the tenth day after the Shares
Acquisition Date or (ii) the tenth Business Day (or such later date
as may be determined by action of the Board of Directors of the
Company prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by 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 entity holding Common Shares for or pursuant to the terms of
any such plan) of, or of the first public announcement of the
intention of 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 entity holding Common Shares for
or pursuant to the terms of any such plan) to commence, a tender or
exchange offer the consummation of which would result in any Person
becoming the Beneficial Owner of Common Shares aggregating 20%
or more of the then outstanding Common Shares (including any such
date which is after the date of this Rights Agreement and prior to
the issuance of the Rights; the earlier of such dates being herein
referred to as the "Distribution Date"; provided, however, that for
purposes of this Section 3(a), so long as the Merger Agreement has
not been terminated pursuant to Section 8.1 thereof, neither Parent
nor Merger Sub nor any Affiliate or Associate of Parent shall be
deemed to be the Beneficial Owner of 20% or more of the Common
Shares as a result of (i) the execution, delivery or performance of
the Merger Agreement, (ii) the announcement or making of the Offer,
(iii) the acquisition of Common Shares pursuant to the Offer or the
Merger or (iv) the consummation of the Offer, the Merger or any
other transactions contemplated by the Merger Agreement), (x) the
Rights will be evidenced (subject to the provisions of Section 3(b)
hereof) by the certificates for Common Shares registered in the
names of the holders thereof (which certificates shall also be
deemed to be Right Certificates) and not by separate Right
Certificates, and (y) the right to receive Right Certificates will
be transferable only in connection with the transfer of Common
Shares.
3. Section 7(a) of the Rights Agreement is hereby modified and
amended to change the reference to "the Close of Business on the tenth
anniversary of the Record Date" to "the earlier of (x) the Close of Business on
the tenth anniversary of the Record Date and (y) immediately prior to the
consummation of the Offer as contemplated by and in accordance with the
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Merger Agreement, or, if the Offer is not consummated, the Merger", it being
agreed that such tenth anniversary or, if applicable, such earlier date, shall
for all purposes of the Rights Agreement be deemed to be the "Final Expiration
Date."
4. Section 13 of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section:
Notwithstanding the foregoing, this Section 13 shall not apply
to the Merger.
5. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana 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.
6. This Amendment to the Rights Agreement 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. Terms not
defined herein shall, unless the context otherwise requires, have the meanings
assigned to such terms in the Rights Agreement.
7. In all respects not inconsistent with the terms and provisions
of this Amendment to the Rights Agreement, the Rights Agreement is hereby
ratified, adopted, approved and confirmed. In executing and delivering this
Amendment, the Rights Agent shall be entitled to all the privileges and
immunities afforded to the Rights Agent under the terms and conditions of the
Rights Agreement.
8. If any term, provision, covenant or restriction of this
Amendment to the Rights Agreement 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 to the Rights
Agreement, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and attested, all as of the date and year first above
written.
Attest: ▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. Vix By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. Vix Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary Title: Vice President for Legal
Affairs, General Counsel
and Secretary
Attest: FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Customer Service Officer Title: Assistant Vice President
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