AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
BETWEEN
XXXXXXX SYSTEMS, INC.
AND
REGISTRAR AND TRANSFER COMPANY
This Amendment No. 1 dated as of the 13th day of February, 1998
amending that certain Rights Agreement (the "Rights Agreement") dated
as of June 14, 1989 between Xxxxxxx Systems, Inc. (the "Company") and
Registrar and Transfer Company (the "Rights Agent").
WHEREAS, Section 26 to the Rights Agreement provides that as long
as the Rights defined in and created by the Rights Agreement (the
"Rights") are redeemable, the Company may in its sole and absolute
discretion, and the Rights Agent shall if the Company so directs,
supplement or amend any provision of the Rights Agreement without the
approval of any holders of the Rights or the Common Stock of the
Company (the "Common Stock"), provided that no such supplement or
amendment shall be made which changes the Redemption Price (as defined
in the Rights Agreement), the Final Expiration Date (as defined in the
Rights Agreement) or the number of shares of Common Stock for which a
Right is exercisable; and
WHEREAS, the Company wishes to provide the Board of Directors with
discretion in redeeming the Rights; and
WHEREAS, the Company and the Rights Agent wish to amend the
Agreement to reflect the foregoing desire:
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, terms used
herein which are defined in the Agreement shall have the meanings given
them in the Agreement.
2. Amendments.
(a) Section 1 of the Agreement is hereby amended by
inserting a new clause "(kk)," reading as follows:
"Exempt Transaction" shall mean a
share exchange, consolidation, merger or
other transaction in respect of which
the Board of Directors has waived the
application of either Section 13 or
Section 11 (a) (ii), whichever is
applicable, pursuant to the provisions
of Section 23 (c)."
(b) Section 1(aa) of the Agreement is hereby amended by
inserting the following language after the word "hereof":
", provided however that a Section 11
(a) (ii) Event shall not include an
Exempt Transaction."
(c) Section 1 (cc) of the Agreement is hereby amended by
inserting the following language after the word "hereof":
", provided however that a Section 13
Event shall not include an Exempt
Transaction."
(d) Section 23 of the Agreement is hereby amended by adding
a new clause (c) to the end of the Section, reading as follows:
"The Board of Directors may, until
a Triggering Event shall have occurred,
upon written notice (including notice by
telecopy) to the Rights Agent, determine
to waive the application of either
Section 13 or Section 11 (a) (ii),
whichever is applicable, to a Triggering
Event."
3. Representations and Warranties of the Company.
The Company represents and warrants to the Rights Agent that
(i) this Amendment No. 1 is permitted under the terms of the Rights
Agreement, and (ii) this Amendment No. 1 does not change the Redemption
Price, the Final Execution Date or the number of shares of Common Stock
for which a Right is exercisable under the Rights Agreement.
4. Effect. Except as expressly modified hereby, all terms and
provisions of the Agreement remain unamended and in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to the Rights Agreement to be duly executed, all as of the day
and year first above written.
Xxxxxxx Systems, Inc.
By: /s/ Xxxx X. Xxxxxxx, Xx.
Chairman of the Board
Registrar and Transfer Company
By: /s/ Xxxxxx X. Xxxxxxxx
President and CEO
