EXHIBIT XX. 0
XXXXXXXXX XX. 0 TO RIGHTS AGREEMENT
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AMENDMENT, dated as of October 9, 1995, to the
Rights Agreement, dated as of February 8, 1989 (the "Rights
Agreement"), between Harnischfeger Industries, Inc., a
Delaware corporation (the "Company"), and The First
National Bank of Boston, as Rights Agent (the "Rights
Agent").
The Company and the Rights Agent have
heretofore executed and entered into the Rights Agreement.
Pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or
amend the Rights Agreement in accordance with the
provisions of Section 26 thereof. All acts and things
necessary to make this Amendment a valid agreement,
enforceable according to its terms, have been done and
performed, and the execution and delivery of this Amendment
by the Company and the Rights Agent have been in all
respects duly authorized by the Company and the Rights
Agent.
In consideration of the foregoing and the
mutual agreements set forth herein, the parties hereto
agree as follows:
1. The Rights Agreement is hereby further
modified and amended by inserting the following after the
last sentence of Section 1(a):
Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good
faith that a Person who would otherwise be an
"Acquiring Person", as defined pursuant to the
foregoing provisions of this paragraph (a), has
become such inadvertently, and such Person
divests as promptly as
practicable a sufficient number of shares of
Common Stock so that such Person would no
longer be an "Acquiring Person", as defined
pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be
deemed to be an "Acquiring Person" for any
purposes of this Agreement.
2. Section 1(k) of the Rights Agreement shall
be deleted in its entirety and replaced with the following:
(k) "Distribution Date" shall mean the
Close of Business on the earlier of (i) the
tenth day after the Stock Acquisition Date and
(ii) the tenth Business Day (or such later date
as may be determined by action of the Board of
Directors prior to such time as any Person
becomes an Acquiring Person) after the first
date (including, without limitation, any such
date which is on or after the date of this
Agreement and prior to the issuance of the
Rights) of the commencement of, or first public
disclosure of the intent to commence, by any
Person (other than an Exempt Person) a tender
or exchange offer for securities of the Company
if, upon consummation thereof, such Person
could be the Beneficial Owner of 20% or more of
the Common Stock then outstanding, determined
without taking into account any securities
exercisable or exchangeable for, or convertible
into, Common Stock (other than any such
securities beneficially owned by any such
Person).
3. The first sentence of Section 11(a)(ii) of
the Rights Agreement shall be deleted in its entirety and
replaced with the following:
A "Triggering Event" shall be deemed to occur
in the event that any Person shall become an
Acquiring Person.
4. Section 23(a) of the Rights Agreement shall
be deleted in its entirety and replaced with the following:
(a) The Board of Directors of the Company may,
at its option, at any time prior to the earlier
of (i) such time as any Person becomes an
Acquiring Person, (ii) the effective time of a
Business Combination and (iii) the Expiration
Date, redeem all but not less than all of the
then-outstanding Rights at a redemption price
of $.02 per Right (appropriately
adjusted to reflect any stock split, stock
dividend or similar transaction occurring after
the date of this Agreement).
5. This Amendment to the Rights Agreement
shall be governed by and construed in accordance with the
laws of the State of Delaware 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.
6. This Amendment to the Rights Agreement may
be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed an original
and all such counterparts shall together constitute but one
and the same instrument. Terms not defined herein shall,
unless the context otherwise requires, have the meanings
assigned to such terms in the Rights Agreement.
7. Except as expressly set forth herein, this
Amendment to the Rights Agreement shall not by implication
or otherwise alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or
agreements contained in the Rights Agreement, all of which
are ratified and affirmed in all respects and shall
continue in full force and effect.
8. If any term, provision, covenant or
restriction of this Amendment to the Rights Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void
or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment to the Rights
Agreement, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected,
impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed and attested, all
as of the date and year first above written.
Attest: Harnischfeger Industries, Inc.
By:/s/Xxxx X. Xxxxxxx By:/s/ Xxxxxxx X. Grade
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Attest: The First National Bank of Boston
By:/s/Xxxxxxx Xxxxxxxx By:/s/Xxxxxxx Xxxx
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