EXHIBIT (c)(9)
AMENDMENT NO. 2 TO RIGHTS AGREEMENT, dated as of February 2, 1997, between
XXXXX INDUSTRIAL CORPORATION, a Michigan corporation (the "Company"), and XXXXXX
TRUST AND SAVINGS BANK (the "Rights Agent"), amending the Rights Agreement,
dated as of April 26, 1996, between the Company and the Rights Agent (the
"Rights Agreement").
W I T N E S S E T H
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WHEREAS, the Board of Directors of the Company has approved an Agreement
and Plan of Merger (the "Merger Agreement") by and among the Company, Scotsman
Industries, Inc., a Delaware corporation ("Scotsman"), and K Acquisition
Corporation, a Michigan corporation and a wholly-owned subsidiary of Scotsman
("K Acquisition"), providing for K Acquisition to commence an all-cash tender
offer for all outstanding shares of capital stock of the Company (the "Offer")
and for the subsequent merger of K Acquisition into the Company (the "Merger");
WHEREAS, the Board of Directors of the Company has determined that the
Offer and the Merger are fair to and in the best interests of the Company and
its shareholders;
WHEREAS, the willingness of Scotsman and K Acquisition to enter into the
Merger Agreement is conditioned on, among other things, the amendment of the
Rights Agreement on the terms set forth herein; and
WHEREAS, Section 26 of the Rights Agreement provides that, among other
things, prior to the Distribution Date and subject to the restrictions set forth
in the penultimate sentence of such Section, the Company may, and the Rights
Agent shall, if the Company so directs, supplement or amend any provisions of
the Rights Agreement without the approval of any holders of certificates
representing shares of Common Stock;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereby agree as
follows:
1. Section 1 of the Rights Agreement is hereby amended by adding the
following definitions thereto:
"K Acquisition" shall mean K Acquisition Corporation, a Michigan
corporation and a wholly-owned subsidiary of Scotsman.
"Merger" shall mean the merger of K Acquisition into the Company as
countemplated by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of
February 2, 1997, by and among Scotsman, K Acquisition and the Company, as the
same may be amended in accordance with the terms thereof.
"Offer" shall have the meaning set forth in the Merger Agreement.
"Scotsman" shall mean Scotsman Industries, Inc. a Delaware corporation.
2. Section 1(a) of the Rights Agreement is hereby amended by adding to
the end thereof the following:
"Notwithstanding anything to the contrary contained herein, neither
Scotsman nor K Acquisition shall be or become an "Acquiring Person" (and no
Shares Acquisition Date shall occur) as a result of (i) the announcement,
commencement or consummation of the Offer, or (ii) the execution of the Merger
Agreement (or any amendment thereto in accordance with the terms thereof) or the
consummation of the transactions comtemplated thereby (including, without
limitation, the Offer and the Merger)."
3. Section 3(a) of the Rights Agreement is hereby amended by adding to the
end thereof the following:
"Notwithstanding anything to the contrary contained herein, no Distribution
Date shall occur as a result of (i) the announcement, commencement or
consummation of the Offer, or (ii) the execution of the Merger Agreement (or any
amendment thereto in accordance with the terms thereof) or the consummation of
the transactions contemplated thereby (including, without limitation, the
Offer and the Merger), and no Distribution Date will, in any event, occur
prior to the effective time of the Merger or the earlier termination of the
Merger Agreement."
4. Section 7(a) of the Rights Agreement is hereby amended by replacing the
word "earlier" in its first occurrence with the word "earliest", by deleting the
word "or" immediately prior to the symbol "(ii)", and by replacing the words
"(the earlier of (i) and (ii), being herein referred to as the "Expiration
Date")" with the following:
"and (iii) immediately prior to the effective time of the Merger (the
earliest of (i), (ii) and (iii) being herein referred to as the "Expiration
Date")."
5. Section 11 of the Rights Agreement is hereby amended by adding to the
end thereof the following:
"(n) Notwithstanding anything to the contrary contained herein, the
provisions of this Section 11 will not apply to or be triggered by (i) the
announcement, commencement or consummation of the Offer, or (ii) the execution
of the Merger Agreement (or any amendment thereto in accordance with the terms
thereof) or the consummation of the transactions contemplated thereby
(including, without limitation, the Offer and the Merger)."
6. Section 13 of the Rights Agreement is hereby amended by adding to the
end thereof the following:
"(d) Notwithstanding anything to the contrary contained herein, the
provisions of this Section 13 will not apply to or be triggered by the execution
of the Merger Agreement or any amendment thereto or the consummation of the
transactions comtemplated thereby (including, without limitation, the Merger)."
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7. The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Amendment.
8. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as amended by this Amendment No. 2.
9. Except as set forth herein, the Rights Agreement shall remain in full
force and effect and shall be otherwise unaffected hereby.
10. This Amendment No. 2 may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
2 to be duly executed, all as of the day and year first above written.
XXXXX INDUSTRIAL CORPORATION
By /s/ Xxxxx X. Xxxxxxxx
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Its President and Chief Operating Officer
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XXXXXX TRUST AND SAVINGS BANK,
as Rights Agent
By /s/ Xxxxx X. Xxxxxxx
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Its Assistant Vice President
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