Exhibit (4)
May 7, 2004
The Fifth Third Bank
Corporate Trust Administration
00 Xxxxxxxx Xxxxxx Xxxxx XX-0000X0
Xxxxxxxxxx, Xxxx 00000
Attention: Trust Officer
Computershare Investor Services, LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Relationship Management
000-000-0000 - phone
000-000-0000 - fax
Re: Amendment No. 1 to Amended and Restated Rights Agreement,
Removal of Rights Agent Under Xxxxxx Tire & Rubber Company
Rights Plan, and Appointment of Successor Rights Agent Under
Xxxxxx Tire & Rubber Company Rights Plan (the "Amendment,
Removal and Appointment Agreement")
Ladies and Gentlemen:
1. Pursuant to Section 27 of the Amended and Restated Rights Agreement,
dated as of May 11, 1998 (the "Rights Agreement"), between Xxxxxx Tire & Rubber
Company (the "Company"), and The Fifth Third Bank, as rights agent (the "Rights
Agent" and, together with the Company, the "Rights Agreement Parties"), the
Company, by resolution adopted by its Directors, and the Rights Agent hereby
amend the Rights Agreement as follows:
(a) Section 1(f) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"'Business Day' shall mean any day other than a Saturday,
Sunday or a day on which the New York Stock Exchange is closed."
(b) Section 18(a) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses, including reasonable fees and disbursements of its
counsel, incurred in connection with the execution and
administration of this Agreement and the exercise and performance of
its duties hereunder. The Company shall indemnify the Rights Agent
for, and hold it harmless against, any loss, liability, or expense,
incurred without gross negligence, bad faith or willful misconduct
on the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending
against any claim of liability hereunder."
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(c) Section 20(c) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(c) The Rights Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct."
(d) Section 31 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"SECTION 31. Governing Law. This Agreement, each Right and
each Rights Certificate issued hereunder shall be governed by, and
construed in accordance with, the laws of the State of Delaware;
provided, however, that Sections 18, 19, 20 and 21 shall be governed
by, and construed in accordance with, the laws of the State of
Illinois (or the state of incorporation of any successor Rights
Agent)."
(e) Section 21 of the Rights Agreement is hereby amended and
restated in its entirety 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 thirty days' prior notice in writing
mailed to the Company, and to each transfer agent of the Preferred
Stock and the Company Common Stock, by registered or certified mail,
and to the holders of Rights Certificates by first class mail. The
Company may remove the Rights Agent or any successor Rights Agent
upon thirty days' prior notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Preferred Stock and the Company Common Stock,
by registered or certified mail, and to the holders of Rights
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
thirty 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 Rights
Certificate (who shall, with such notice, submit such holder's
Rights Certificate for inspection by the Company), then any
registered holder of any Rights 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, limited liability company
or trust company (or similar form of entity under the laws of the
United States or any state of the United States), in good standing
and authorized to conduct business under the laws of the United
States or any state of the United States, 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 $10,000,000 or (b)
an Affiliate controlled by an entity 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 Preferred Stock and the Company Common Stock,
and mail a notice thereof in
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writing to the registered holders of the Rights 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."
(f) The Company and ComputerShare Investor Services, LLC
("ComputerShare") agree that the address and contact information set forth
above for ComputerShare will be the information for ComputerShare for
purposes of Section 25 of the Rights Agreement.
(g) The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment, Removal and Appointment Agreement,
but shall remain in full force and effect.
(h) Capitalized terms used without other definition in Section 1 of
this Amendment, Removal and Appointment Agreement shall be used as defined
in the Rights Agreement.
(i) This Amendment, Removal and Appointment Agreement shall be
governed by, and construed in accordance with the laws of the State of
Ohio.
(j) This Amendment, Removal and Appointment Agreement may be
executed (including by telecopier) in one or more counterparts, including
by the Rights Agreement Parties in separate counterparts, each of which
when executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same instrument.
(k) Exhibits B and C to the Rights Agreement shall be deemed amended
in a manner consistent with this Amendment, Removal and Appointment
Agreement.
2. Pursuant to Section 21 of the Rights Agreement, the Company hereby
provides 30 days' notice of the Rights Agent's removal as rights agent pursuant
to the Rights Agreement, effective as of May 7, 2004, and the Rights Agent
hereby accepts and agrees to such removal, and waives the time period for notice
of removal under the Rights Agreement, by its countersignature to this
Amendment, Removal and Appointment Agreement in the space provided below.
3. Pursuant to Section 21 of the Rights Agreement, the Company hereby
appoints Computershare as successor to the Rights Agent, as rights agent to act
as agent for the Company and its stockholders in accordance with the terms and
conditions of the Rights Agreement, effective as of May 7, 2004, and
Computershare hereby accepts and agrees to such appointment, also effective as
of May 7, 2004, by its countersignature to this Amendment, Removal and
Appointment Agreement in the space provided below.
Very truly yours,
XXXXXX TIRE & RUBBER COMPANY
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx, Vice President
General Counsel & Secretary
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Accepted and agreed to as of the date Accepted and agreed to as of the date
first written above: first written above:
THE FIFTH THIRD BANK COMPUTERSHARE INVESTOR
SERVICES, LLC
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------- ----------------------
Name: Xxxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxx
Title: Vice President Title: Relationship Manager
JEK/rlg
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