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AMENDMENT TO AMENDED AND RESTATED
RIGHTS AGREEMENT BETWEEN
EKCO GROUP, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
THIS AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT (this
"Amendment") is made as of this 4th day of August, 1999 by and between EKCO
Group, Inc., a Delaware corporation (the "Company"), and AMERICAN STOCK TRANSFER
& TRUST COMPANY, a New York corporation, as rights agent (the "Rights Agent").
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Merger Agreement (as defined below).
WHEREAS, the Company is entering into an Agreement and Plan of Merger
(as the same may be amended from time to time, the "Merger Agreement") among the
Company, CCPC Acquisition Corp., a Delaware corporation ("Parent"), and EG Two
Co., a Delaware corporation and a subsidiary of Parent (the "Sub"), providing
for transactions (collectively, the "Transactions"), pursuant to which, among
other things, the Company will merge (the "Merger") with the Sub and become a
wholly-owned subsidiary of Parent, and the outstanding stock of the Company will
be converted into the right to receive cash;
WHEREAS, the Company and the Rights Agent are parties to an Amended and
Restated Rights Agreement dated as of March 21, 1997 (the "Rights Agreement");
WHEREAS, the parties desire to amend the Rights Agreement in connection
with the execution and delivery of the Merger Agreement; and
WHEREAS, the Board of Directors of the Company has determined that this
Amendment is in the best interests of Right Holders.
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 of
the Rights Agreement is hereby amended by adding the following sentence to the
end of that definition:
Notwithstanding the foregoing, no Person shall be or become an
Acquiring Person by reason of (i) the execution and delivery of the Agreement
and Plan of Merger dated as of August 4, 1999 among the Company, CCPC
Acquisition Corp., a Delaware corporation ("Parent"), and EG Two Acquisition
Co., a Delaware corporation ("Sub"), (the "Merger Agreement") or the execution
of any amendment thereto, (ii) the consummation of the Offer, as that term is
used in the Merger Agreement (the "Offer") or (iii) the consummation of the
other Transactions.
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2. Section 7(a)(iii) of the Rights Agreement shall be amended to
read in its entirety as follows:
(iii) the earlier of (1) the consummation of the Offer or
(2) the Close of Business on March 21, 2007 (such earlier date, the "Final
Expiration Date").
3. The definition of "Shares Acquisition Date" included in
Section 1 of the Rights Agreement shall be amended by adding the following
sentence to the end of such definition:
Notwithstanding anything else set forth in this Agreement, a
Shares Acquisition Date shall not be deemed to have occurred by reason of (i)
the public announcement, public disclosure, execution and delivery or amendment
of the Merger Agreement, (ii) the consummation of the Offer or (iii) the
consummation of any of the other Transactions.
4. Section 3(a) 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 (i) the
execution and delivery or amendment of the Merger Agreement, (ii) the
consummation of the Offer or (iii) the consummation of any of the other
Transactions.
5. The first paragraph of Section 13(c) of the Rights
Agreement shall be amended to read in its entirety as follows:
The Company shall not consummate any such consolidation,
merger, sale or transfer (other than any such transaction contemplated by the
Merger Agreement) unless the Principal Party shall have a sufficient number of
authorized shares of its Common Shares that have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto the Company and each Principal Party and
each other Person who may become a Principal Party as a result of such
consolidation, merger, sale or transfer shall have executed and delivered to the
Rights Agent a supplemental agreement providing for the terms set forth in
paragraphs (a) and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger, sale or transfer of
assets mentioned in paragraph (a) of this Section 13, the Principal Party at its
own expense will:
6. The Rights Agreement, as amended by this Amendment, shall
remain in full force and effect in accordance with its terms.
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7. This Amendment shall be deemed to be a contract made under 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. This Amendment may be executed
in any number of counterparts, each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one of the same instrument. If any term, provision, covenant or restriction
of this Amendment 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 shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
[Remainder of Page Intentionally Left Blank]
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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.
EKCO GROUP, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
Attest: /s/ Xxxxxx X. XxXxxxxxxx
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Name: Xxxxxx X. XxXxxxxxxx
Title: Executive Vice President Chief
Financial Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. X'Xxxx
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Name: Xxxxxxx X. X'Xxxx
Title: Vice President
Attest: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
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