AMENDMENT TO RIGHTS AGREEMENT
This Amendment to Rights Agreement, effective as of the 30th day of
September, 2002, is made and entered into by and among U.S. Bank National
Association ("U.S. Bank"), Xxxxx Corporation, a Wisconsin corporation (the
"Company"), and American Stock Transfer & Trust Company, a New York banking
corporation ("AST").
WITNESSETH
WHEREAS, the Company and U.S. Bank (as successor to Firstar Bank, N.A.)
are parties to that certain Rights Agreement, dated as of November 5, 2001, a
copy of which is attached hereto as Exhibit A (the "Rights Agreement"), pursuant
to which U.S. Bank undertook the duties and obligations of the Rights Agent (as
defined in the Rights Agreement) under the terms and conditions of the Rights
Agreement;
WHEREAS, U.S. Bank has notified the Company that it will resign as such
Rights Agent;
WHEREAS, pursuant to Section 21 of the Rights Agreement, the Company
agrees to discharge U.S. Bank from its duties as Rights Agent under the Rights
Agreement;
WHEREAS, the Company desires to appoint AST as a successor Rights Agent
under the Rights Agreement, and AST desires to undertake and perform the duties
and obligations of the Rights Agent under the terms and conditions of the Rights
Agreement;
WHEREAS, the Company has directed U.S. Bank to amend Section 21 of the
Rights Agreement as necessary to allow the Company to appoint AST as a successor
Rights Agent under the Rights Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Amendment of Section 21 of Rights Agreement. Section 21 of the Rights
Agreement is hereby amended and restated in its entirety to read as follows:
"Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon 30 days' notice in writing mailed to the Company and
to each transfer agent of the Common Shares by registered or certified
mail and, if separate Right Certificates have been issued as of the date
of such notice as contemplated by Section 3 hereof, to the holders of the
Right Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon 30 days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be,
and to each transfer agent of the Common Shares by registered or
certified mail, and, if separate Right
Certificates have been issued as of the date of such notice as
contemplated by Section 3 hereof, to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving notice of
such removal or after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Rights Agent or by the
holder of a Right Certificate (who shall, with such notice, submit his
Right Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall
be (a) a corporation organized and doing business under the laws of the
United States or of the State of New York or the State of Wisconsin (or
of any other state of the United States so long as such corporation is
authorized to do business in the State of New York or the State of
Wisconsin), in good standing, having an office or agency in the State of
Wisconsin or the State of New York, which is authorized under such laws
to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which has at
the time of its appointment as Rights Agent a combined capital and
surplus of at least $10 million, or (b) an Affiliate of a corporation
described in clause (a) of this sentence. After appointment, the
successor Rights Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the
effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Shares, and, if separate Right Certificates have been
issued as of such effective date as contemplated by Section 3 hereof,
mail a notice thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be."
2. Appointment. The Company hereby appoints AST as a successor Rights
Agent under the terms and conditions of the Rights Agreement, as amended
pursuant to Section 1 above (as so amended, the "Amended Rights Agreement").
3. Assumption. AST hereby accepts the appointment as agent for the
Company and the holders of Rights under the Amended Rights Agreement, and AST
hereby assumes and agrees to perform all of the duties and obligations of the
Rights Agent under the terms and conditions of the Amended Rights Agreement.
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4. Notice. U.S. Bank hereby acknowledges that this instrument constitutes
notice to U.S. Bank, as the Company's transfer agent, pursuant to Section 21 of
the Amended Rights Agreement that the Company has appointed AST as the successor
Rights Agent to U.S. Bank under the Amended Rights Agreement and that U.S. Bank
is hereby discharged as such Rights Agent.
5. No Further Amendment. Except as provided in Section 1 above, the terms
and conditions of the Amended Rights Agreement shall be unaffected by this
instrument and shall remain in full force and effect. The Company and AST each
acknowledge that pursuant to Section 28 of the Amended Rights Agreement the
respective covenants and provisions of the Amended Rights Agreement by or for
the benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns thereunder.
6. Governing Law. This instrument shall be deemed to be a contract made
under the laws of the State of Wisconsin 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.
7. Counterparts. This instrument 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.
IN WITNESS WHEREOF, the parties hereto have executed this instrument,
effective as of the date recited above.
XXXXX CORPORATION
By: /s/
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U.S. BANK NATIONAL ASSOCIATION
By: /s/
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American Stock Transfer & Trust
Company
By: /s/
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