EXHIBIT 4.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT made and entered into as of the 8th
day of June, 1997, by and between Xxxxxxxx & Xxxxx, Inc.
(the "Company") and Firstar Trust Company (the "Rights
Agent"), under the Rights Agreement dated as of August
23, 1995, by and between the Company and the Rights Agent
(the "Agreement").
WHEREAS, the Company and the Rights Agent have
heretofore executed and entered into the Rights
Agreement; and
WHEREAS, pursuant to Section 27 of the Rights
Agreement, the Company may from time to time prior to the
Distribution Date (as defined therein) supplement or
amend the Rights Agreement in accordance with the
provisions of Section 27 thereof; and
WHEREAS, it is proposed that the Company enter
into an Agreement and Plan of Merger (the "Merger
Agreement"), among the Company, Thyssen
Aktiengesellschaft ("Parent") and TAQU, Inc., a wholly-
owned subsidiary of Parent; and
WHEREAS, the Board of Directors of the Company
has determined that the transactions contemplated by the
Merger Agreement are fair to and in the best interests of
the Company and its stockholders; and
WHEREAS, the Board of Directors has determined
that it is in the best interests of the Company and its
stockholders to amend the Rights Agreement to exempt the
Merger Agreement and the transactions contemplated
thereby from the application of the Rights Agreement.
NOW THEREFORE, the Company and the Rights Agent
hereby amend the Rights Agreement as follows:
A. Section 1(c) is hereby amended by adding
the following at the end of such Section:
Notwithstanding the foregoing, for purposes of
this Agreement, neither Thyssen
Aktiengesellschaft ("Parent") nor TAQU, Inc., a
wholly-owned subsidiary of Parent (the
"Permitted Purchasers") shall be deemed to be
the beneficial owner of or to beneficially own
any shares of Common Stock of the Company if
and so long as (i) that certain Agreement and
Plan of Merger, dated as of the June 11, 1997,
among the Company and the Permitted Purchasers
(the "Merger Agreement") has been fully
executed, is in effect and has not been
terminated by any party thereto and (ii) no
Permitted Purchaser has acquired any shares of
Common Stock other than pursuant to the terms
of the Merger Agreement.
B. The Agreement is hereby further amended to
add a new Section 34 to the Agreement which shall read in
its entirety as follows:
Section 34. Nothing in this Agreement shall be
construed to create or cause a Distribution
Date or Shares Acquisition Date or to
constitute a Section 11(a)(ii) Event or Section
13 Event or give any holder of Rights or any
other Person any legal or equitable rights,
remedy or claim under the Agreement solely as a
result of or in connection with the execution
of the Merger Agreement or the commencement or
consummation of the transactions contemplated
by the Merger Agreement.
C. This Amendment shall be deemed to be a
contract made under the laws of the State of Wisconsin
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.
D. This Amendment may be executed in any
number of counterparts, each of which shall for all
purposes be deemed an original, and all of which together
shall constitute but one and the same instrument.
E. Except as expressly set forth herein, this
Amendment 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 affect.
IN WITNESS WHEREOF, the parties have caused
this Amendment to be duly executed as of the date first
above written.
Attest: XXXXXXXX & XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
______________________ __________________________
Name: Xxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Secretary Title: Vice President and Corporate
Controller
Attest: FIRSTAR TRUST COMPANY
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
_______________________ ______________________
Name: Xxxxxx Xxxxx Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Vice President
