THIRD AMENDMENT TO RIGHTS AGREEMENT
Exhibit
(e)(11)
THIRD AMENDMENT TO RIGHTS AGREEMENT
Third Amendment (this “Amendment”), dated as of February 9, 2007, to the Rights Agreement (the
“Rights Agreement”), dated as of July 7, 1998, as amended on November 5, 2006 and on December 18,
2006, between ElkCorp (formerly known as “Elcor Corporation”), a Delaware corporation (the
“Company”), and Mellon Investor Services LLC (formerly known as ChaseMellon Shareholder Services,
L.L.C.), as rights agent (the “Rights Agent”). Capitalized terms used but not defined herein shall
have the meanings set forth in the Rights Agreement.
WHEREAS, the parties hereto entered into the Rights Agreement, pursuant to which the Rights
Agent agreed to act as agent with respect to the Rights, whose privileges and obligations were set
forth in the Agreement;
WHEREAS, the parties desire to further amend the Agreement, as set forth herein; and
WHEREAS, pursuant to Section 27 of the Agreement, the Agreement may be amended by the Company
without the approval of any holders of Right Certificates by a writing signed by the Company and
the Rights Agent.
Accordingly, in consideration of the premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
1. Amendment to Definition of “Acquiring Person”. Section 1(a) of the Rights
Agreement is amended to add the following sentence after the last sentence thereof:
Anything in this Section 1(a) or this Agreement to the contrary
notwithstanding, none of BMCA Acquisition Inc., a Delaware
corporation (“Parent”), BMCA Acquisition Sub Inc., a Delaware
corporation and a wholly owned subsidiary of Parent (“Merger Sub”),
nor any of their respective Affiliates is, nor shall any of them be
deemed to be, an “Acquiring Person” by virtue of (i) the execution
of, or their entry into, the Agreement and Plan of Merger, dated
February 9, 2007, by and among the Company, Parent and Merger Sub
(as it may be amended from time to time, the “BMCA Merger
Agreement”); (ii) their acquisition or their right to acquire,
beneficial ownership of Common Stock as a result of their execution
of the BMCA Merger Agreement; (iii) the consummation of the Offer
(as defined in the BMCA Merger Agreement) or the Merger (as defined
in the BMCA Merger Agreement), in each case in accordance with,
pursuant to, and on the terms and subject to the conditions set
forth in the BMCA Merger Agreement; it being the purpose of the
Company that neither the execution of the BMCA Merger Agreement by
any of
the parties thereto (after giving effect to any amendment to
the BMCA Merger Agreement entered into by the Company) nor the
consummation of the transactions contemplated thereby, in each case
in accordance with, pursuant to and upon the terms and conditions of
the BMCA Merger Agreement, shall in any respect give rise to any
provision of this Agreement becoming effective.
2. Amendment to Definition of “Distribution Date”. Section 1(g) of the Rights
Agreement is amended to add the following sentence after the last sentence thereof:
The foregoing or any provision to the contrary in this Agreement
notwithstanding, a Distribution Date shall not occur or be deemed to
have occurred as a result of the approval, execution, delivery or
performance of the BMCA Merger Agreement or the announcement or
consummation of the transactions contemplated thereby, in each case
in accordance with, pursuant to and upon the terms and conditions of
the BMCA Merger Agreement.
3. Amendment to Section 7(a). Section 7(a) of the Rights Agreement is amended by
deleting the words “(such earlier date, the “Final Expiration Date”)” in subsection (i) clause (y)
and replacing them with the following:
and (z) immediately prior to the Effective Time (as defined in the
BMCA Merger Agreement) (such earlier date, the “Final Expiration
Date”)
4. Amendment to Definition of “Stock Acquisition Date.” Section 1(r) of the Rights
Agreement is amended to add the following sentence after the last sentence thereof:
The foregoing or any provision to the contrary in this Agreement
notwithstanding, a Stock Acquisition Date shall not occur or be
deemed to have occurred as a result of the approval, execution,
delivery or performance of the BMCA Merger Agreement or the
announcement or consummation of the transactions contemplated
thereby, in each case in accordance with, pursuant to and upon the
terms and conditions of the BMCA Merger Agreement.
5. Amendment of Section 30. Section 30 of the Rights Agreement is hereby modified and
amended to add the following sentence at the end thereof:
Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedies
or claims under this Agreement by virtue of the approval, execution
or delivery of the BMCA Merger Agreement, the consummation of the
Offer any other transactions contemplated by the BMCA Merger
Agreement, in each case in accordance with,
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pursuant to and upon the terms and conditions of the BMCA
Merger Agreement or the public announcement of any of the foregoing.
6. Termination of Merger Agreement. If for any reason the BMCA Merger Agreement is
terminated prior to the Acceptance Date (as defined therein), then this Amendment shall be of no
further force and effect and the Agreement shall remain the same as it existed immediately prior to
execution of this Amendment.
7. Definitions. Terms not otherwise defined in this Amendment shall have the meaning
ascribed to such terms in the Rights Agreement. The term “Agreement” or “Rights Agreement” as used
in the Rights Agreement shall be deemed to refer to the Rights Agreement as amended hereby, and all
references to the Agreement or Rights Agreement shall be deemed to include this Amendment.
8. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflict of laws.
9. Counterparts. This Amendment may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each party and delivered to the other parties.
10. 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 of the provisions hereof.
11. Effectiveness. This Amendment shall be effective as of the date first written
above, and except as expressly set forth herein, the Rights Agreement shall remain in full force
and effect and otherwise shall be unaffected hereby.
[Signature Page Follows]
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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.
| ELKCORP | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | President and Chief Operating Officer | |||||
| MELLON INVESTOR SERVICES LLC | ||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: | Xxxx X. Xxxxxxx | |||||
| Title: | Assistant Vice President | |||||
