AMENDMENT NO. 1 TO RIGHTS AGREEMENT
EXHIBIT
4.2
AMENDMENT
NO. 1 TO RIGHTS AGREEMENT
This
Amendment No. 1 to Rights Agreement (the “Amendment”), dated as of August 15,
2006, is made by and between Xxxxxxx & Xxxxxx Capital Corporation, a
Mississippi corporation (the “Company”), and Xxxxxxx & Xxxxxx Bank, N.A.,
formerly known as “Xxxxxxx & Xxxxxx First National Bank” (the “Rights
Agent”). Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Rights Agreement (as defined
below).
WHEREAS,
the Company and the Rights Agent are party to that certain Rights Agreement
dated as of June 1, 1996 (the “Rights Agreement”), pursuant to which the Company
issued one Right for each Common Share outstanding on the Record Date and for
each Common Share issued between the Record Date and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date, each
Right
representing the right to purchase one Common Share, subject to adjustment,
upon
the terms and subject to the conditions set forth in the Rights
Agreement;
WHEREAS,
under the Rights Agreement, if not exercised, redeemed or exchanged earlier,
the
Rights will expire on the Final Expiration Date, which is September 1,
2006;
WHEREAS,
the Company desires to extend the Final Expiration Date and to make certain
other amendments to the Rights Agreement in accordance with Section 27 of the
Rights Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which the parties hereby expressly acknowledge, the parties
hereto agree as follows:
1. Amendments.
The
Rights Agreement (including, without limitation, Exhibit
A
and
Exhibit
B
thereto)
is hereby amended as follows:
(a) All
references to “Xxxxxxx & Xxxxxx National Bank” and “Xxxxxxx & Xxxxxx
First National Bank” are hereby amended to read “Xxxxxxx & Xxxxxx Bank,
N.A.”.
(b) All
references to “par value $10.00 per share” as the par value of one Common Share
are hereby amended to read “par value $2.50 per share”.
(c) All
references to “September 1, 2006” as the Final Expiration Date or the date on or
before which a Right must be exercised are hereby amended to read “September 1,
2016”.
(d) All
references to “$150.00” as the Purchase Price for each Common Share are hereby
amended to read “$80.00”.
(e) Section
3(c) is hereby amended by deleting the first sentence of the legend set forth
in
such section in its entirety and substituting the following
therefor:
This
certificate also evidences and entitles the holder hereof to certain rights
as
set forth in a Rights Agreement between Xxxxxxx & Xxxxxx Capital Corporation
and Xxxxxxx & Xxxxxx Bank, N.A., dated as of June 1, 1996, as amended by
that certain Amendment No. 1 to Rights Agreement dated as of August 15, 2006
(as
so amended, and as it may from time to time be further amended, restated,
modified, supplemented, extended or renewed, the “Rights Agreement”), the terms
of which are hereby incorporated herein by reference and a copy of which is
on
file at the principal executive offices of Xxxxxxx & Xxxxxx Capital
Corporation.
(f) Section
9
is hereby amended by inserting the following two paragraphs after the final
paragraph of such section:
So
long
as the Common Shares issuable and deliverable upon the exercise of the Rights
may be listed on any national securities exchange or included for quotation
on
any transaction reporting system, the Company shall use its best efforts to
cause, from and after such time as the Rights become exercisable (but only
to
the extent that it is reasonably likely that the Rights will be exercised),
all
shares reserved for such issuance to be listed on such exchange or included
for
quotation on any such transaction reporting system upon official notice of
issuance upon such exercise.
The
Company shall, if necessary, (i) prepare and file, upon, or as soon as possible
following, the Distribution Date, a registration statement under the Securities
Act of 1933, as amended (the “Act”), with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii) cause such registration
statement to become effective as soon as possible after such filing, and (iii)
cause such registration statement to remain effective (with a prospectus at
all
times meeting the requirements of the Act) until no longer required to do so
under the Act with respect to securities purchasable upon exercise of the
Rights. The Company will also take all such action as may be required or as
is
appropriate under the securities or blue sky laws of such jurisdictions as
may
be necessary or appropriate with respect to the securities purchasable upon
exercise of the Rights. Notwithstanding any provision of this Agreement to
the
contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been obtained,
the
exercise thereof shall not be permitted under applicable law, or a registration
statement shall not have been declared effective.
(g) Section
26 is hereby amended in the following respects:
(i) By
deleting “W. Page Xxxxx” from the address for notices to or demands on the
Company and substituting “President” therefor;
(ii) By
deleting “Xxxxxx X. Xxxxxxx, Xx.” from the address for notices to or demands on
the Rights Agent and substituting “President” therefor.
2. No
Other Amendments.
The
Rights Agreement shall be deemed amended to the extent necessary to give effect
to the foregoing. Except as amended hereby, the Rights Agreement shall remain
in
full force and effect. Nothing in this Amendment is intended to modify or affect
in any way the rights and obligations of the parties arising under the Rights
Agreement prior to the date hereof.
3. Effective
Date.
This
Amendment shall be effective as of the date hereof.
4. Counterparts.
This
Amendment may be executed in any number of counterparts, and 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.
5. Governing
Law.
This
Amendment shall be deemed to be a contract made under the laws of the State
of
Mississippi 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.
6. Severability.
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.
7. Descriptive
Headings.
Descriptive headings of the several Sections of this Amendment are inserted
for
convenience only and shall not control or affect the meaning or construction
of
any provisions hereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and attested, all as of the day and year first above
written.
Attest: XXXXXXX
& XXXXXX CAPITAL CORPORATION
By:
/s/
Xxxxxxx X. Xxxxxxxx /s/
W. Page
Xxxxx
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Print
Name: Xxxxxxx X. Xxxxxxxx Name:
W.
Page Xxxxx
Title: Secretary
Title:
President & CEO
Attest: XXXXXXX
& XXXXXX BANK, N.A.
By:
/s/
Xxxxx X. Xxxxx /s/
Xxxxxxxx X.
Xxxx
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Print
Name: Xxxxx X. Xxxxx Name:
Xxxxxxxx X. Xxxx
Title: Administrative
Assistant
Title: Trust Officer
