EXHIBIT 2
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT TO RIGHTS AGREEMENT (the "Amendment"), dated as of December
13, 2000, to the Rights Agreement (the "Rights Agreement") dated November 21,
1996 by and between Xxxxxxxx Corporation, a Delaware corporation (the
"Company"), and Xxxxxx Trust and Savings Bank, an Illinois banking corporation,
as Rights Agent (the "Rights Agent").
RECITALS
A. The Company has entered into an Agreement and Plan of Merger dated
as of December 13, 2000 (as it may be amended from time to time, the "Merger
Agreement") by and among Bodycote International plc, a public limited company
organized under the laws of England ("Bodycote"), Bodycote Investments VI, Inc.,
a Delaware corporation and an indirect, wholly-owned subsidiary of Bodycote
("Merger Sub"), and the Company.
B. Pursuant to Section 28 of the Rights Agreement, the Company may from
time to time supplement or amend the Rights Agreement in accordance with the
provisions of Section 28 thereof.
C. By resolutions adopted and approved as of December 13, 2000, the
Board of Directors has approved and declares advisable the Offer (as defined in
the Merger Agreement), the Merger (as defined in the Merger Agreement), the
Voting Agreement (as defined in the Merger Agreement), the Merger Agreement and
all the other transactions and agreements contemplated by the Merger Agreement
and has declared that it is in the best interests of the Company's stockholders
that the Company enter into the Merger Agreement and consummate the Offer and
the Merger on the terms and subject to the conditions set forth in the Merger
Agreement.
D. By such resolutions, 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 Offer, the Merger, the Voting Agreement and all the
other transactions and agreements contemplated by the Merger Agreement, from the
application of the Rights Agreement, that such amendment is within its
discretion as the Rights are currently redeemable and such amendment does not
change the Redemption Price.
E. The Merger Agreement contemplates that the Rights Agreement will be
amended to exempt the Offer, the Merger, the Voting Agreement, the Merger
Agreement and all the other transactions and agreements contemplated by the
Merger Agreement and the Voting Agreement, from application of the Rights
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants set
forth herein, the Company hereby directs, and the parties hereto agree that, the
Rights Agreement is amended as follows:
1. The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is hereby amended by adding the sentence at the end thereof:
"Notwithstanding anything to the contrary in this Agreement, none of
Bodycote International plc, a public limited company organized under
the laws of England ("Bodycote"), Bodycote Investments VI, Inc., a
Delaware corporation and an indirect, wholly-owned subsidiary of
Bodycote ("Merger Sub"), or any Affiliate or Associate of either of
them shall be deemed to be an Acquiring Person by reason of or as a
result of the approval, announcement, execution, delivery or
performance of the Agreement and Plan of Merger, dated as of December
13, 2000, by and among Bodycote, Merger Sub and the Company (as it may
be amended from time to time, the "Merger Agreement") or the Voting
Agreement (as defined in the Merger Agreement), or the consummation of
the Offer (as defined in the Merger Agreement), the Merger (as defined
in the Merger Agreement) or the other transactions or agreements
contemplated by the Merger Agreement or the Voting Agreement."
2. The definition of "Stock Acquisition Date" in Section 1(x) of the
Rights Agreement is hereby amended by adding the following to the end thereof
(immediately preceding the period):
"; provided that a "Stock Acquisition Date" shall not occur solely by
reason of or as a result of the approval, announcement, execution,
delivery or performance of the Merger Agreement or the Voting Agreement
(as defined in the Merger Agreement) or the consummation of the Offer
(as defined in the Merger Agreement), the Merger (as defined in the
Merger Agreement) or the other transactions or agreements contemplated
by the Merger Agreement or the Voting Agreement."
3. Section 3(a) of the Rights Agreement is hereby amended by adding the
following sentence to the end thereof:
"Notwithstanding anything to the contrary in this Agreement, a
"Distribution Date" shall not occur solely by reason of or as a result
of the approval, announcement, execution, delivery or performance of
the Merger Agreement or the Voting Agreement (as defined in the Merger
Agreement) or the consummation of the Offer (as defined in the Merger
Agreement), the Merger (as defined in the Merger Agreement) or the
other transactions or agreements contemplated by the Merger Agreement
or the Voting Agreement."
2
4. Section 7(a) of the Rights Agreement is hereby amended by deleting
the word "or" between clauses (ii) and (iii) of the second sentence of Section
7(a) and adding the following to the end thereof (immediately preceding the
period):
", or (iv) the time immediately prior to the Acceptance Date (as
defined in the Merger Agreement)."
5. Section 11(a)(ii) of the Rights Agreement is hereby amended by
adding the following sentence to the end thereof:
"Notwithstanding anything to the contrary in this Agreement, a
"Flip-In-Event" shall not occur solely by reason of or as a result of
the approval, announcement, execution, delivery or performance of the
Merger Agreement or the Voting Agreement (as defined in the Merger
Agreement) or the consummation of the Offer (as defined in the Merger
Agreement), the Merger (as defined in the Merger Agreement) or the
other transactions or agreements contemplated by the Merger Agreement
or the Voting Agreement."
6. Section 15 of the Rights Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, 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 the Offer (as defined in the Merger Agreement), the Merger (as
defined in the Merger Agreement), the Voting Agreement (as defined in
the Merger Agreement) or any of the other transactions or agreements
contemplated by the Merger Agreement or the Voting Agreement."
"Notwithstanding anything in this Agreement to the contrary, none of
Bodycote, Merger Sub or any of their Affiliates or Associates or any of
their permitted assignees or transferees shall be deemed an Acquiring
Person and none of a Distribution Date, a Share Acquisition Date or a
Flip-In Event shall be deemed to occur or to have occurred, and the
Rights will not become separable, distributable, unredeemable or
exercisable, in each such case, by reason of, or as a result of, the
approval, execution, delivery or performance of the Merger Agreement or
Voting Agreement (as defined in the Merger Agreement), the consummation
of the Offer (as defined in the Merger Agreement) or the Merger (as
defined in the Merger Agreement) or the consummation of the
transactions contemplated by the Merger Agreement and the Voting
Agreement."
7. 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, without regard to its principles of
conflicts of laws.
3
8. 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.
9. Terms not defined herein shall, unless the context otherwise
requires, have the meanings assigned to such terms in the Rights Agreement.
10. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. The Rights Agreement shall not otherwise be supplemented or amended
by virtue of this Amendment, but shall remain in full force and effect. 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.
11. This Amendment to the Rights Agreement shall be effective as of,
and immediately prior to, the execution and delivery of the Merger Agreement and
the Voting Agreement, and all references to the Rights Agreement shall, from and
after such time, be deemed to be references to the Rights Agreement as amended
hereby.
[*** SIGNATURES TO FOLLOW ***]
4
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.
Attest: XXXXXXXX CORPORATION
------
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- ----------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Executive Assistant Title: Executive Vice President
Attest: XXXXXX TRUST AND SAVINGS BANK,
------ as Rights Agent
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx X. XxXxxx
--------------------------- ----------------------------
Name: Xxxxxxx Xxxx Name: Xxxxxx X. XxXxxx
Title: Vice President & Senior Title: Vice President
Counsel
5
