EXHIBIT 4.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as of this
19/th/ day of July, 2000 by and between Xxxxx International, Inc., a Delaware
corporation (the "Company"), and Computershare Trust Company, Inc. (f/k/a
American Securities Transfer & Trust Company), as rights agent (the "Rights
Agent").
WHEREAS, it has been proposed that the Company enter into an Agreement and
Plan of Merger (as the same may be amended from time to time, the "Merger
Agreement") dated July 19, 2000 by and among Limousine Holdings, LLC ("Parent"),
a Delaware limited liability company, Aluwill Acquisition Corp., a Delaware
corporation ("Acquisition Company"), Eranja Acquisition Sub, Inc. ("Acquisition
Company Sub") and the Company, providing for certain transactions pursuant to
which, among other things, (i) the Company and Acquisition Company will commence
a joint tender offer (the "Tender Offer") to purchase all of the issued and
outstanding shares of common stock, par value $.01 per share (collectively, the
"Common Shares"), of the Company at the price per share set forth in the Merger
Agreement to the seller in cash and (ii) Acquisition Company or Acquisition
Company Sub will merge with and into the Company (the "Merger") and the former
public stockholders of the Company will receive the price per share set forth in
the Merger Agreement in cash.
WHEREAS, it has been proposed that the Company enter into a Stock Option
Agreement by and among Parent, Acquisition Company and the Company dated July
19, 2000 (as the same may be amended from time to time, the "Acquisition Company
Option") pursuant to which the Company will grant to Acquisition Company an
option to acquire from the Company in certain circumstances a sufficient number
of Common Shares, when taken together with all other outstanding Common Shares
to be acquired by Acquisition Company at or immediately following the
consummation of the purchase of Common Shares tendered in the Tender Offer, to
permit the Merger to be effected pursuant to Section 253 of the Delaware General
Corporation Law.
WHEREAS, it has been proposed that, in connection with and as provided in
the Merger Agreement, certain holders of the Company's options enter into Option
Exercise/Cancellation Agreements (as defined in the Merger Agreement).
WHEREAS, the Company and the Rights Agent are parties to a Rights Agreement
dated as of June 20, 2000 (the "Rights Agreement").
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement effective before any party agrees to or enters into the Merger
Agreement, the Acquisition Company Option and/or the Option
Exercise/Cancellation Agreements.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1(a) of the
Rights Agreement is hereby amended by adding the following sentence to the end
of that Section:
Notwithstanding the foregoing, no Person shall be an Acquiring
Person by reason of the execution and delivery of, or any Person
becoming the Beneficial Owner of Common Shares pursuant to, the Merger
Agreement (including the Tender Offer contemplated thereby), the
Acquisition Company Option or the Option Exercise/Cancellation
Agreements, or the purchase of Common Shares in the Tender Offer or
pursuant to the Acquisition Company Option or the Option
Exercise/Cancellation Agreements, or the completion of the Merger, all
as contemplated by the Merger Agreement, the Company Option Agreement
and the Option Exercise/Cancellation Agreements.
2. The definition of "Shares Acquisition Date" included in Section 1(v)
of the Rights Agreement shall be amended by adding the following sentence to the
end of such Section:
Notwithstanding anything else set forth in this Agreement, a
Shares Acquisition Date shall not be deemed to have occurred by reason
of the public announcement or public disclosure of the Tender Offer,
the Merger Agreement, the Acquisition Company Option, the Option
Exercise/Cancellation Agreements or the transactions contemplated
thereby among the parties thereto, including, without limitation, the
Merger and the Tender Offer.
3. Section 3(c) of the Rights Agreement shall be amended by adding the
following sentence to the end thereof:
Notwithstanding anything else set forth in this Agreement, no
Distribution Date shall be deemed to have occurred by reason of the
commencement of or the public announcement or public disclosure of the
intention to commence the Tender Offer, or the execution and delivery
of, or any Person becoming the Beneficial Owner of Common Shares
pursuant to, the Merger Agreement, the Acquisition Company Option or
the Option Exercise/Cancellation Agreements or the transactions
contemplated thereby among the parties thereto, including, without
limitation, the Merger and the Tender Offer.
4. Section 7(a) of the Rights Agreement shall be amended by deleting the
"or" immediately preceding the "(iii)" and by adding the following to the end
thereof:
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or (iv) the Effective Time (as defined in the Merger Agreement).
5. Section 1 of the Rights Agreement shall be amended by adding the
following new subsection (y) to the end thereof:
"Merger", "Tender Offer", "Merger Agreement", "Acquisition
Company Option" and "Option Exercise/Cancellation Agreements" shall
have the meanings given to them in the First Amendment to Rights
Agreement dated July 19, 2000 between the Company and the Rights
Agent.
6. Section 23 of the Rights Agreement shall be amended by adding the
phrase "the tenth Business Day after" before the phrase "the Shares Acquisition
Date" in clause (a)(i) thereof.
7. The Rights Agreement, as amended by this Amendment, shall remain in
full force and effect in accordance with its terms.
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IN WITNESS WHEREOF, the parties herein have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
Attest: XXXXX INTERNATIONAL, INC.
By:/s/ Xxxx Xxxxxxx By:/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxx Xxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Assistant Secretary Title: Executive Vice President
Attest: COMPUTERSHARE TRUST COMPANY, INC.
By:/s/ Xxxxxx Xxxxx By:/s/ Xxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxxxxx
Title: Vice President Title: Vice President
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