AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
AMENDMENT NO. 2, dated as of May 31, 2004 (this "Amendment No. 2"), to the
Rights Agreement, dated as of December 13, 1995, between BHA Group Holdings,
Inc., a Delaware corporation (fka BHA Group, Inc.) (the "Company"), and UMB
Bank, N.A. (the "UMB"), as Rights Agent, as amended by that certain Amendment
No. 1, dated May 13, 2004, to the Rights Agreement (as amended by Amendment No.
1, the "Rights Agreement").
R E C I T A L S:
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A. Except as otherwise provided herein, capitalized terms used in this
Amendment No. 2 have the meanings assigned to them in the Rights Agreement.
B. Pursuant to Section 26 of the Rights Agreement, the Company and UMB
desire to amend the Rights Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the herein premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments to the Rights Agreement.
(a) Section 1(a) of the Rights Agreement is hereby deleted in its entirety
and replaced with the following:
"(a) Acquiring Person" shall mean any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan maintained by the
Company or any of its Subsidiaries or any trustee or fiduciary with respect
to such plan acting in such capacity) which shall be the Beneficial Owner
of 20% or more of shares of Company Common Stock then outstanding; provided
that the acquisition of beneficial ownership of shares of Company Common
Stock by General Electric Company ("GE"), Xxxxx Acquisition Company, a
Delaware corporation and a wholly owned subsidiary of GE ("Sub") or any
Affiliate or Associate thereof by virtue of execution and delivery of, or
the consummation of the transactions contemplated by, (A) the Agreement and
Plan of Merger, dated as of May 31, 2004 (the "Merger Agreement"), by and
among GE, Sub and the Company or (B) the Voting Agreement, dated as of May
31, 2004, by and among GE and certain stockholders of the Company which was
executed in connection with the execution and delivery of the Merger
Agreement, shall not, whether alone or together with any beneficial
ownership of shares of Company Common Stock prior to the date of the Merger
Agreement by GE, its Affiliates or Associates, cause GE, Sub or any of
their Affiliates or Associates to become an "Acquiring Person" for any
purpose under this Agreement."
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(b) Section 1(d) of the Rights Agreement is hereby deleted in its entirety
and replaced with the following:
"(d) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) of which such Person or any of such Person's Affiliates or
Associates is considered to be a "beneficial owner" under Rule 13d-3 of the
General Rules and Regulations under the Exchange Act (the "Exchange Act
Regulations") as in effect on the date hereof; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or to "beneficially
own," any securities under this subparagraph (i) as a result of an
agreement, arrangement or understanding to vote such securities if such
agreement, arrangement or understanding (A) arises solely from a revocable
proxy given in response to a proxy or consent solicitation made pursuant
to, and in accordance with, the applicable provisions of the Exchange Act
and the Exchange Act Regulations, and (B) is not reportable by such Person
on Schedule 13D under the Exchange Act (or any comparable or successor
report);
(ii) which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate of such other Person) with
which such Person (or any of such Person's Affiliates or Associates) has
any agreement, arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (i) of this
paragraph (d)) or disposing of such securities; or
(iii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the passage of time or upon
the satisfaction of conditions) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, rights, warrants or options, or
otherwise;
provided, however, that under this paragraph (d) a Person or any
Affiliate or Associate of such Person shall not be deemed the "Beneficial
Owner" of, or to "beneficially own," (A) securities tendered pursuant to a
tender or exchange offer made in accordance with Exchange Act Regulations
by such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange, (B) securities
that may be issued upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, (C) securities that may be issued upon
exercise of Rights from and after the occurrence of a Triggering Event,
which Rights were acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date or
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pursuant to Section 3(c) or Section 22 hereof (the "Original Rights") or
pursuant to Section 11(i) hereof in connection with an adjustment made with
respect to any Original Rights or (D) securities that are acquired or
otherwise would be "beneficially owned" by virtue of execution and delivery
of, or the consummation of transactions contemplated by, agreements,
arrangements or understandings, including any voting or stockholders'
agreements executed in connection therewith, that are approved by the Board
of Directors of the Company prior to the execution and delivery of such
agreements and the consummation of the transactions contemplated thereby,
unless thereafter the Person holding such securities acquires additional
securities in a subsequent alternative transaction that was not approved by
the Board of Directors of the Company prior to the consummation of such
subsequent alternative transaction, whereupon such Person shall be deemed,
as of the date of the consummation of the subsequent transaction, to be the
"Beneficial Owner" of all securities held by such Person."
(c) The Rights Agreement is hereby amended by adding the following text
immediately after the third sentence of Section 28:
"For the avoidance of doubt, notwithstanding anything in this Agreement to
the contrary, the Board of Directors of the Company (i) has determined that
no Distribution Date, Stock Acquisition Date or Triggering Event shall
occur solely by virtue of the execution and delivery of the Merger
Agreement or the Voting Agreement or the consummation of the transactions
contemplated by the Merger Agreement or the Voting Agreement and (ii) has
approved the transactions contemplated by the Merger Agreement and the
Voting Agreement such that the execution and delivery thereof and the
consummation of the transactions contemplated thereby will not cause GE,
Sub or any of their Affiliates or Associates to become the Beneficial Owner
of or be deemed to "beneficially own" any securities of the Company for
purposes of this Agreement."
2. Governing Law. This Amendment No. 2 shall be construed according to, and
the rights and liabilities of the parties shall be governed by, the laws of the
State of Delaware, without regard to the conflict of laws principles thereof.
3. Entire Agreement and Amendment. This Amendment No. 2, together with the
Rights Agreement, represents the entire agreement between the parties with
respect to the subject matter of this Amendment No. 2 and the Rights Agreement,
and may not be changed, modified or terminated except by an instrument in
writing signed by the Company and the Rights Agent. Except as specifically set
forth in this Amendment No. 2, the Rights Agreement shall remain unmodified and
in full force and effect.
4. Binding Effect. This Amendment No. 2 shall be binding upon and inure to
the benefit of the parties and their respective successors and permitted
assigns.
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5. Counterparts. This Amendment No. 2 may be delivered by facsimile and
executed in counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
BHA GROUP HOLDINGS, INC.
By:
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Name:
Title:
UMB BANK, N.A.
By:
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Name:
Title:
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