FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT dated as of August 5, 2003 (this "Amendment") to the Rights
Agreement (the "Agreement") dated as of August 20, 1993 between Xxxxxx
International Inc., a Massachusetts trust organized under Washington law (the
"Company"), and Computershare Trust Company of Canada, the successor to Montreal
Trust Company of Canada, as rights agent (the "Rights Agent"). Capitalized terms
used herein and not otherwise defined shall have the respective meanings
ascribed to such terms in the Agreement.
WHEREAS, the Company has proposed to enter into a settlement agreement to
be dated the date hereof by and among the Company and Greenlight Capital, L.L.C.
and Greenlight Capital, Inc. (the "Settlement Agreement");
WHEREAS, the Company deems this Amendment to the Agreement to be necessary
and desirable and in the best interests of the holders of the Rights and has
duly approved this Amendment;
WHEREAS, no event has occurred that would cause any Person to be deemed an
Acquiring Person; and
WHEREAS, Section 26 of the Agreement permits the Company at any time before
any Person becomes an Acquiring Person to amend the Agreement in the manner
Provided herein;
NOW, THEREFORE, the Agreement is hereby amended as follows:
Section 1. ADDITION OF SECTION 34. A new Section 34 to the Agreement is
hereby added:
"Notwithstanding anything in this Agreement to the contrary, neither
Greenlight Capital, L.L.C., Greenlight Capital, Inc., Xxxxx Xxxxxxx,
GWA Investments LLC, Xxx X. Xxxxx, Xxxx Xxxxxxx, Xxxxxxx Capital
Management, LLC ("CCM"), Xxxxx X. Xxxxxxx, CCM Master Fund, Ltd.,
Xxxxxx Xxxxxxxxx XxXxxxx, LLC ("CRM"), Xxxxx Xxxxxxx ("PK"), the
nominee for trustee jointly selected by CCM, CRM and PK, nor any of
their respective Affiliates or Associates shall become an Acquiring
Person, either individually or collectively, no Distribution Date,
Stock Acquisition Date or Triggering Event shall occur, no Rights
shall separate from the Common Shares or otherwise become exercisable
and no adjustment shall be made pursuant to Sections 11 or 13 of this
Agreement, in each case by virtue of (i) the execution of the
Settlement Agreement, (ii) the public announcement thereof, or(iii)
the consummation of the transactions set forth in the Settlement
Agreement, including, without limitation, the selection of the nominee
for Trustee by CCM, CRM and PK and the issuance to Xxx X. Xxxxx of the
G.A. Options, the issuance to GWA Investments LLC of the GWA Options,
the issuance to Xxxx Xxxxxxx of the S.D. Options and the issuance of
any shares to Greenlight Capital, L.L.C., Greenlight Capital, Inc. or
any of their Affiliates or Associates pursuant to Section 2.8 of the
Settlement Agreement."
"G.A. Options" has the meaning set forth in the Settlement Agreement.
"GWA Options" has the meaning set forth in the Settlement Agreement.
"Meeting" has the meaning set forth in the Settlement Agreement.
"S.D. Options" has the meaning set forth in the Settlement Agreement.
"Settlement Agreement" means that certain Agreement dated August 5, 2003,
by and among the Company, Greenlight Capital, L.L.C. and Greenlight
Capital, Inc.
Section 2. FULL FORCE AND EFFECT. Except as expressly amended hereby, the
Rights Agreement shall continue in full force and effect unamended and in
accordance with the provisions thereof on the date hereof.
Section 3. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the law of the State of Washington applicable to contracts to
be made and performed entirely within such State.
Section 4. COUNTERPARTS. This Amendment may be executed in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company and the Rights Agent have caused this Amendment
to be duly executed as of the day and year first above written.
XXXXXX INTERNATIONAL INC.
By: /s/ Xxxx XxXxxxxxx
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Name: Xxxx XxXxxxxxx
Title: Trustee
COMPUTERSHARE TRUST COMPANY OF CANADA
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Account Manager
