AMENDMENT No. 1 TO
RIGHTS AGREEMENT
THIS AMENDMENT No. 1 (the "Amendment"), dated as of December 10, 1997 is
between White River Corporation, a Delaware corporation (the "Company") and
First Chicago Trust Company of New York, as Rights Agent (the "Rights Agent").
Recitals
WHEREAS, the Company and the Rights Agent are parties to a Rights Agreement
dated as of December 14, 1993 (the "Rights Agreement");
WHEREAS, Demeter Holdings Corporation, a Massachusetts corporation
("Parent"), WRC Merger Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("MergerCo"), WRV Merger Corp., a Delaware corporation and
a wholly owned subsidiary of MergerCo, the Company and White River Ventures,
Inc., a Delaware corporation and a wholly owned subsidiary of the Company
("WRV"), proposed to enter into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which, among other things, MergerCo will be merged with
and into the Company, with the Company as the surviving corporation (the
"Merger");
WHEREAS, the Company has determined that it is necessary and desirable to
amend the Rights Agreement to ensure that no Distribution Date (as defined in
the Rights Agreement) occurs by virtue of the announcement of the Merger or the
execution of the Merger Agreement and to exempt the Merger Agreement and the
transactions contemplated thereby from any application of the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
amend the Rights Agreement without approval of the holders of the Rights at any
time prior to the Distribution Date; provided that such amendment does not
adversely affect the interests of XXXX (as defined in the Rights Agreement), any
Subsidiary (as defined in the Rights Agreement) of XXXX, Xxxx X. Xxxxx or any of
his Associates (as defined in the Rights Agreement);
WHEREAS, the Board of Directors of the Company has determined that this
Amendment does not adversely affect the interests of the aforementioned persons;
and
WHEREAS, the Company and the Rights Agent desire to evidence such amendment
in writing.
Accordingly, the parties agree as follows:
1. Amendment of Section 1. Section 1 of the Rights Agreement is amended by
inserting the following at the end of the definition of "Acquiring Person" in
Section 1:
"In addition, notwithstanding anything in this Rights Agreement to the
contrary none of Demeter Holdings Corporation, a Massachusetts corporation
("Parent"), WRC Merger Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("MergerCo"), WRV Merger Corp., a Delaware corporation
and a wholly owned subsidiary of MergerCo, or any Affiliate or Associate of
Parent, MergerCo or Merger Sub, shall be deemed to be an Acquiring Person
by virtue of the Agreement and Plan of Merger, to be entered into as of
December 11, 1997, between the Company, White River Ventures, Inc., Parent,
MergerCo and Merger Sub, as it may be amended or supplemented from time to
time in accordance with its terms (the "Merger Agreement"), or by virtue of
any of the transactions contemplated by the Merger Agreement."
2. Amendment of Section 3(a). Section 3(a) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding the foregoing or anything in this Rights Agreement to
the contrary, a Distribution Date shall not be deemed to have occurred by
virtue of the Merger Agreement or by virtue of any of transactions
contemplated by the Merger Agreement."
3. Amendment of Section 7(a). Section 7(a) of the Rights Agreement is
amended
(a) by replacing the word "earlier" with "earliest",
(b) by deleting the word "and" before the number "(ii)" and
(c) by inserting between the term "Redemption Date" and the comma
immediately following it the following:
"and (iii) immediately prior to the effective time (the "Merger
Agreement Effective Time") of the merger of MergerCo into the
Company (the "Merger") contemplated by and in accordance with the
terms of the Merger Agreement".
4. Amendment of Section 7(b). Section 7(b) of the Rights Agreement is
amended
(a) by replacing the word "earlier" with "earliest",
(b) by replacing the word "and" before the number "(ii)" with a comma
and
(c) by adding to the end thereof the following:
"and (iii) immediately prior to the Merger Agreement Effective
Time".
5. Amendment of Section 13. Section 13 of the Rights Agreement is hereby
amended by inserting the following sentence at the end of such Section:
"Notwithstanding the foregoing, this Section 13 shall not apply
to the Merger or as a result of the execution and delivery of the
Merger Agreement or the transactions contemplated thereby."
6. Effectiveness. This Amendment shall be deemed effective as of December
10, 1997 as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
7. Miscellaneous. 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. This Amendment
may be executed in any number of counterparts, each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. If any term, provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the date and year first above written.
WHITE RIVER CORPORATION,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President and Chief
Attest:
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Corporate Secretary
FIRST CHICAGO TRUST COMPANY
OF NEW YORK,
as Rights Agent,
by
/s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Vice
President
Attest:
/s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
