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EXHIBIT (c)(12)
AMENDMENT NUMBER ONE
TO RIGHTS AGREEMENT
THIS AMENDMENT NUMBER ONE TO RIGHTS AGREEMENT, dated as of
December 19, 1995 (the "Amendment"), with respect to the Rights Agreement,
dated as of December 5, 1992 (the "Agreement"), between CIMCO, Inc., a Delaware
corporation (the "Company"), and First Interstate Bank of California, a
California corporation (the "Rights Agent").
WITNESSETH
WHEREAS, the Board of Directors of the Company has approved
the Agreement and Plan of Merger, dated as of December 19 , 1995 (the "Merger
Agreement"), among M.A. Xxxxx Company, a Delaware corporation ("Parent"),
Hanwest, Inc., a Delaware corporation ("Purchaser") and the Company and the
Stockholder Tender Agreement, dated as of December 19, 1995 (the "Stockholder
Tender Agreement"), between Xxxxxxx X. Xxxxxxx and Purchaser; and
WHEREAS, the Board of Directors deems it appropriate in the
exercise of its authority under Section 26 of the Agreement to approve an
amendment to the Agreement in order to assure that the execution and delivery
of the Merger Agreement and the Stockholder Tender Agreement and the
consummation of the transactions contemplated in the Merger Agreement and the
Stockholder Tender Agreement will not cause (i) the defined term "Acquiring
Person" to apply to Parent or Purchaser, (ii) the "Distribution Date" to occur,
(iii) the provisions of Section 13(a) of the Agreement to be applicable in
respect of capital stock of Purchaser or capital stock of an affiliate of
Purchaser, or (iv) any adjustment under the provisions of Section 11(a) of the
Agreement;
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the
receipt and sufficiency of which are hereby acknowledged, the Agreement is
hereby amended as follows:
1. In Section 1(a) of the Agreement, immediately after
the first sentence thereof, the following provision is hereby added:
Notwithstanding the definition of Acquiring Person
above, none of the M.A. Xxxxx Company, a Delaware
corporation ("Parent"), Hanwest, Inc., a Delaware
corporation ("Purchaser"), or any of their Affiliates
or Associates will become, or be deemed to be, an
Acquiring Person by reason of the execution and
delivery of, and the consummation of the transactions
contemplated in, the Agreement and Plan of Merger,
dated as of December 19, 1995 (the "Merger
Agreement") among Parent, Purchaser and the Company
or the Stockholder Tender Agreement, dated as of
December 19, 1995 (the "Stockholder Tender
Agreement"), between Xxxxxxx X. Xxxxxxx and
Purchaser.
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2. In Section 3(a) of the Agreement, immediately
preceding such Section's first sentence, which commences as follows: "No
Distribution Date...", the following provision is hereby added:
No Distribution Date shall occur, notwithstanding the
definition of Distribution Date below, with respect
to any Beneficial Ownership of shares of Common Stock
by Purchaser, Parent or any Affiliate or Associate of
Parent or Purchaser or any tender offer made by
Parent, Purchaser or any Affiliate or Associate of
Parent or Purchaser.
3. In Section 11(a) (ii) of the Agreement, at the end
thereof, the following new sentence is added:
Notwithstanding the foregoing, the provisions of this
Section 11(a) (iii) shall not apply to Parent,
Purchaser or any Affiliate or Associate of Parent or
Purchaser by reason of the execution and delivery of,
and the consummation of the transactions contemplated
in, the Merger Agreement and the Stockholder Tender
Agreement.
4. In Section 13(a) of the Agreement and immediately
preceding such Section's first sentence, which commences as follows: "A Person
shall not...", the following provision is hereby added:
The provisions of this Section 13 shall not apply to
Parent, Purchaser or any Affiliate or Associate of
Parent or Purchaser by reason of the execution and
delivery of, and the consummation of the transactions
contemplated in, the Merger Agreement and the
Stockholder Tender Agreement.
5. Capitalized terms used herein and not defined herein
shall have their defined meanings as set forth in the Agreement.
6. Except as expressly provided above, and except for
the additional terms and provisions set forth above, the Agreement shall
continue in full force and effect in accordance with its terms.
7. This Amendment shall be governed by and construed in
accordance with the substantive laws of the State of Delaware.
8. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
9. The undersigned officer of the Company certifies, as
indicated by his signature below, to the Rights Agent that the Amendment is in
compliance with the terms of Section 26 of the Agreement.
10. The Summary of Rights to Purchase Preferred Stock,
attached to the Agreement as Exhibit C, is hereby amended to reflect the terms
of this Amendment.
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11. This Amendment shall constitute the first and only
amendment of the Agreement as of the date hereof, and all prior amendments of
the Agreement are hereby terminated and shall be of no further force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused the
Amendment to be duly executed as of the day and year first above written.
CIMCO, INC.
By: XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx
Chairman of the Board,
President and Chief Executive
Officer
Attest:
[Seal]
By: L. XXXXXX XXXXX
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L. Xxxxxx Xxxxx
Chief Financial Officer
FIRST INTERSTATE BANK OF CALIFORNIA
By: XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Vice President
Attest:
[Seal]
By: XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Vice President
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