SECOND AMENDMENT TO RIGHTS AGREEMENT
Second Amendment, dated as of May 19, 1999 (the "Amendment"), to the
Rights Agreement, dated as of November 1, 1995, as amended by the First
Amendment to the Rights Agreement, dated December 15, 1998 (as amended, the
"Rights Agreement"), by and between First Commonwealth, Inc., a Delaware
corporation (the "Company"), and First Chicago Trust Company of New York (the
"Rights Agent"). Capitalized terms used in this Agreement shall have the
meanings ascribed to them in the Rights Agreement.
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company has approved an
Agreement and Plan of Merger (the "Merger Agreement"), dated May 19, 1999 among
the Company, The Guardian Life Insurance Company of America, a New York
corporation ("Parent"), and Floss Acquisition Corp., a Delaware corporation
("Sub") and wholly owned subsidiary of Parent;
WHEREAS, the Board of Directors desires to amend the Rights
Agreement to provide that Parent and Sub shall not be deemed to be Acquiring
Persons under the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
has directed the Rights Agent to amend the Rights Agreement as hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended by inserting the
following at the end of Section 1(a):
Notwithstanding anything in this Agreement to the contrary, neither The
Guardian Life Insurance Company of America, a New York corporation
("Parent"), nor any of its Affiliates or Associates, including but not
limited to, Floss Acquisition Corp., a Delaware corporation ("Sub") and
wholly owned subsidiary of Parent, is or shall be deemed to be an
Acquiring Person as a result of (i) the execution and delivery of the
Agreement and Plan of Merger (the "Merger Agreement"), dated May 19, 1999
between the Company, Parent and Sub, or (ii) any action taken by Parent,
Sub or any of their Affiliates, Associates or shareholders in accordance
with the provisions of the Merger Agreement, including, without
limitation, the initiation or consummation of the Offer (as such term is
defined in the Merger Agreement) or the consummation of the Merger (as
such term is defined in the Merger Agreement) in accordance with the
provisions of the Merger Agreement. Notwithstanding the foregoing, upon
termination of the Merger Agreement in accordance with its terms, the
preceding sentence shall become null and void and of no further force or
effect.
2. Section 1(i) of the Rights Agreement is hereby amended by inserting the
following at the end of Section 1(i):
Notwithstanding the foregoing or any provision to the contrary in this
Agreement, a Distribution Date shall not occur by reason of the execution
of the Merger Agreement, the announcement of the Offer, the consummation
of the Offer, the consummation of the Merger, or any other transaction
contemplated by the Merger Agreement.
3. Section 1(cc) of the Rights Agreement is hereby amended by inserting
the following at the end of Section 1(cc):
Notwithstanding the foregoing or any provision to the contrary in this
Agreement, a Section 11(a)(ii) Event shall not occur by reason of the
execution of the Merger Agreement, the announcement of the Offer, the
consummation of the Offer, the consummation of the Merger, or any other
transaction contemplated by the Merger Agreement. Notwithstanding the
foregoing, upon termination of the Merger Agreement in accordance with its
terms, the preceding sentence shall become null and void and of no further
force or effect.
4. Section 1(dd) of the Rights Agreement is hereby amended by inserting
the following at the end of Section 1(dd):
Notwithstanding the foregoing or any provision to the contrary in this
Agreement, a Section 13 Event shall not occur by reason of the execution
of the Merger Agreement, the announcement of the Offer, the consummation
of the Offer, the consummation of the Merger, or any other transaction
contemplated by the Merger Agreement. Notwithstanding the foregoing, upon
termination of the Merger Agreement in accordance with its terms, the
preceding sentence shall become null and void and of no further force or
effect.
5. Section 1(gg) of the Rights Agreement is hereby amended by inserting
the following at the end of Section 1(gg):
Notwithstanding the foregoing or any provision to the contrary in this
Agreement, a Share Acquisition Date shall not occur by reason of the
execution of the Merger Agreement, the announcement of the Offer, the
consummation of the Offer, the consummation of the Merger, or any other
transaction contemplated by the Merger Agreement. Notwithstanding the
foregoing, upon termination of the Merger Agreement in accordance with its
terms, the preceding sentence shall become null and void and of no further
force or effect.
6. Section 1(ll) of the Rights Agreement is hereby amended by inserting
the following at the end of Section 1(ll):
Notwithstanding the foregoing or any provision to the contrary in this
Agreement, a Triggering Event shall not occur by reason of the execution
of the Merger Agreement,
the announcement of the Offer, the consummation of the Offer, the
consummation of the Merger, or any other transaction contemplated by the
Merger Agreement. Notwithstanding the foregoing, upon termination of the
Merger Agreement in accordance with its terms, the preceding sentence
shall become null and void and of no further force or effect.
7. This Amendment shall be governed by and construed in accordance with
the laws of the State of Delaware.
8. This Amendment may be executed in any number of counterparts, and each
of such counterparts shall be deemed to be an original, and all such
counterparts shall together constitute but one and the same agreement.
9. The term "Agreement" as used in the Agreement shall be deemed to refer
to the Agreement as amended hereby, and all references to the Agreement shall be
deemed to include this Amendment. Except as specifically provided in this
Amendment to the Rights Agreement, this Amendment shall not by implication or
otherwise alter, modify, amend or in any such way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
the Rights Agreement to be duly executed, all as of the date and year first
above written.
FIRST COMMONWEALTH, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
