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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 TO RIGHTS AGREEMENT, dated as of March 23, 1998, between
ULTRA PAC, INC., a Minnesota corporation (the "Company"), and NORWEST BANK
MINNESOTA, N.A. (the "Rights Agent"), amending the Rights Agreement, dated as
of February 27, 1998, between the Company and the Rights Agent (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") by and among IPC, Inc., a Delaware
corporation ("IPC"), Package Acquisition, Inc., a Minnesota corporation and a
wholly-owned subsidiary of IPC ("Acquisition"), and the Company, providing for
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
Acquisition with and 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 IPC and 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;
WHEREAS, Section 27 of the Rights Agreement provides that, the Company may
from time to time supplement or amend the Rights Agreement without the approval
of any holders of Rights Certificates to, among other things, make any
provisions with respect to the Rights which the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a writing signed
by the Company and the Rights Agent; provided, however, that from and after
such time as any Person becomes an Acquiring Person, the Rights Agreement may
not be amended in any manner which would adversely affect the interest of the
holders of Rights; and
WHEREAS, in compliance with Section 27 of the Rights Agreement, the
Company and the Rights Agent desire to amend the Rights Agreement as
hereinafter set forth and have executed and delivered this Amendment
immediately prior to the execution and delivery of the Merger Agreement.
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:
"Acquisition" shall mean Package Acquisition, Inc., a Minnesota
corporation and a
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wholly-owned subsidiary of IPC.
"IPC" shall mean IPC, Inc., a Delaware corporation.
"Merger" shall mean the merger of Acquisition with and into the
Company as contemplated by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of March 23, 1998, by and among IPC,
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.
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 IPC nor Acquisition nor any of their respective Affiliates
or Associates 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 contemplated 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 "Final Expiration Date"), (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the "Redemption Date"), or (iii) the time at
which such rights are exchanged as provided in Section 24 hereof" with the
following:
",(ii) immediately prior to the effective time of the Merger
(the earlier of (i) and (ii) being herein referred to as the
"Final Expiration Date"), (iii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption Date"),
or (iv) the time at which such Rights are exchanged as provided in
Section
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24 hereof."
5. Section 11 of the Rights Agreement is hereby amended by adding to the
end thereof the following:
"(o) 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
contemplated thereby (including, without limitation, the Merger)."
7. The term "Agreement" as used in the Rights Agreement shall be deemed to
refer to the Rights Agreement as amended by this Amendment No. 1.
8. Capitalized terms used herein but not defined herein shall have the
respective meanings ascribed to them in the Rights Agreement.
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. 1 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed, all as of the day and year first above written.
ULTRA PAC, INC.
Attest:
By: /s/ XXXXX X. XXXXX By: /s/ XXXXXX XXXXX
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Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxx
Title: Secretary Title: President and Chief Executive
Officer
NORWEST BANK MINNESOTA, N.A.
Attest:
By: /s/ XXXX XXXXX By: /s/ XXXXX XXXXXXXXXX
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Name: Xxxx Xxxxx Name: Xxxxx Xxxxxxxxxx
Title: Vice President Title: Officer
