EXHIBIT 6
FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT made and entered into as of the 8th day of June, 1997, by
and between Xxxxxxxx & Xxxxx, Inc. (the "Company") and Firstar Trust Company
(the "Rights Agent"), under the Rights Agreement dated as of August 23, 1995, by
and between the Company and the Rights Agent (the "Agreement").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time prior to the Distribution Date (as defined therein)
supplement or amend the Rights Agreement in accordance with the provisions of
Section 27 thereof; and
WHEREAS, it is proposed that the Company enter into an Agreement and
Plan of Merger (the "Merger Agreement"), among the Company, Thyssen
Aktiengesellschaft ("Parent") and TAQU, Inc., a wholly-owned subsidiary of
Parent; and
WHEREAS, the Board of Directors of the Company has determined that the
transactions contemplated by the Merger Agreement are fair to and in the best
interests of the Company and its stockholders; and
WHEREAS, 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 Merger Agreement and the transactions contemplated thereby from the
application of the Rights Agreement.
NOW THEREFORE, the Company and the Rights Agent hereby amend the
Rights Agreement as follows:
A. Section 1(c) is hereby amended by adding the following at the end
of such Section:
Notwithstanding the foregoing, for purposes of this Agreement, neither
Thyssen Aktiengesellschaft ("Parent") nor TAQU, Inc., a wholly-owned
subsidiary of Parent (the "Permitted Purchasers") shall be deemed to be the
beneficial owner of or to beneficially own any shares of Common Stock of
the Company if and so long as (i) that certain Agreement and Plan of
Merger, dated as of the June 11, 1997, among the Company and the Permitted
Purchasers (the "Merger Agreement") has been fully executed, is in effect
and has not been terminated by any party thereto and (ii) no Permitted
Purchaser has acquired any shares of Common Stock other than pursuant to
the terms of the Merger Agreement.
B. The Agreement is hereby further amended to add a new Section 34
to the Agreement which shall read in its entirety as follows:
Section 34. Nothing in this Agreement shall be construed to create or
cause a Distribution Date or Shares Acquisition Date or to constitute a
Section 11(a)(ii) Event or Section 13 Event or give any holder of Rights or
any other Person any legal or equitable rights, remedy or claim under the
Agreement solely as a result of or in connection with the execution of the
Merger Agreement or the commencement or consummation of the transactions
contemplated by the Merger Agreement.
C. This Amendment shall be deemed to be a contract made under the
laws of the State of Wisconsin 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.
D. 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.
E. 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 affect.
2
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
Attest: XXXXXXXX & XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Secretary Title: Vice President and Corporate
Controller
Attest: FIRSTAR TRUST COMPANY
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
--------------------------- --------------------------------
Name: Xxxxxx Xxxxx Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Vice President
XXXXXXXX & XXXXX, INC.
OFFICER'S CERTIFICATE PURSUANT TO
SECTION 27 OF THE RIGHTS AGREEMENT
The undersigned, of Xxxxxxxx & Xxxxx, Inc., a Wisconsin corporation
(the "Company"), pursuant to Section 27 of the Rights Agreement, dated as of
August 23, 1995 (the "Agreement"), between the Company and Firstar Trust
Company, as Rights Agent, does hereby certify on behalf of the Company that the
amendment to the Agreement contained in the attached First Amendment to Rights
Agreement, dated as of June 8, 1997, is in compliance with the terms of Section
27 of the Agreement.
IN WITNESS WHEREOF, the undersigned has set his hand hereunto.
XXXXXXXX & XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Corporate Counsel and
Secretary
Dated: June 8, 1997
