AMENDMENT OF RIGHTS PLAN
AMENDMENT (this "Amendment"), dated as of August __, 2000, to the
Rights Agreement (the "Rights Agreement"), dated as of May 20, 1999, by and
between Xxxxxxx Corporation, a Delaware corporation (the "Company"), and First
Chicago Trust Company of New York, as Rights Agent (the "Rights Agent"), at the
direction of the Company.
R E C I T A L S
A. The Company has entered into an Agreement and Plan of Merger, dated as
of August 18, 2000 (as it may be amended or supplemented from time to time, the
"Merger Agreement") by and among the Company, and Anchor Merger Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Company ("Merger Sub")
and PepsiAmericas, Inc., a Delaware corporation ("PAS"), with respect to a
merger of PAS with and into Merger Sub (the "Merger").
B. Pursuant to Section 27 of the Rights Agreement, the Company may from
time to time supplement or amend the Rights Agreement in accordance with the
provisions of Section 27 thereof.
C. The Merger Agreement contemplates that the execution, delivery and
performance of the Merger Agreement and the consummation of the transactions
contemplated by the Merger Agreement will not cause a Distribution Date (as
defined in the Rights Agreement) to occur and will not cause PAS to become an
Acquiring Person (as defined in the Rights Agreement).
D. The Board of Directors has declared it advisable and in the best
interests of the Company and its stockholders to amend the Rights Agreement.
A G R E E M E N T
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 following sentence at the end
thereof:
"Notwithstanding anything to the contrary in this Agreement, (i) none of
Pohlad Companies, a Minnesota corporation ("Pohlad Companies"), any
Affiliate of Pohlad Companies, Xxxxxx Xxxxxx, Affiliates of Xxxxxx Xxxxxx,
or PepsiAmericas, Inc., a Delaware corporation ("PAS"), shall be deemed an
Acquiring Person solely by virtue of (A) the consummation of the
transactions contemplated by the Agreement and Plan of Merger, dated as of
August 18, 2000 (as it may be amended or supplemented from time to time,
the "PAS Merger Agreement") by and among the Company, and Anchor Merger
Sub, Inc., a Delaware corporation
and a wholly-owned subsidiary of the Company ("Merger Sub") and PAS, (B)
the acquisition by Dakota Holdings, LLC, a Delaware limited liability
company ("Dakota Holdings") of Common Shares with a value of $25 million
from PepsiCo and/or its Affiliates, in connection with the Merger, or (C)
the acquisition of Common Shares pursuant to a Permitted Acquisition (as
defined in the Shareholder Agreement, dated __________, by and among the
Company, Pohlad Companies, Dakota Holdings and Xxxxxx Xxxxxx (the "PAS
Shareholder Agreement")) under the PAS Shareholder Agreement; (ii) so long
as it is owned solely by Xxxxxx Xxxxxx, Affiliates of Xxxxxx Xxxxxx,
PepsiCo and/or Affiliates of PepsiCo or Dakota Holdings shall not be deemed
an Acquiring Person."
2. The definition of "Shareholder Agreement" in Section 1(q) of the Rights
Agreement is hereby amended by deleting the phrase "attached hereto as Exhibit
D" and adding in replacement therefor the words "as amended".
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 the execution,
delivery and performance of the PAS Merger Agreement or the consummation of
any of the transactions contemplated by the PAS Merger Agreement."
4. Section 15 of the Rights Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding anything to the contrary in this Agreement, 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 transactions contemplated by the PAS
Merger Agreement."
5. 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 giving to its principles of
conflicts of laws.
6. 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.
7. Terms not defined herein shall, unless the context otherwise requires,
have the meanings assigned to such terms in the Rights Agreement.
8. In all respects not inconsistent with the terms and provisions of this
Amendment, 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.
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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: XXXXXXX CORPORATION
By: By:
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Name: Name:
Title: Title:
ATTEST: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: By:
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Name: Name:
Title: Title:
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