EXHIBIT 10.01
AMENDMENT NO. 1 TO THE
RIGHTS AGREEMENT
This Amendment No. 1 to the Rights Agreement, dated as of May 3, 2004,
is made by and between Xxxxxx Xxxxxxxx Materials, Inc., a North Carolina
corporation (the "Company"), and Wachovia Bank, N.A. (as successor to First
Union National Bank of North Carolina), a North Carolina corporation (the
"Rights Agent"), and amends the Rights Agreement, dated as of October 21, 1996,
between the Company and the Rights Agent (the "Rights Agreement").
RECITALS
WHEREAS, the Board of Directors of the Company has determined that an
Amendment to the Rights Agreement as set forth herein is necessary and
desirable, and the Company and the Rights Agent desire to evidence such
amendment in writing; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, this Amendment
may be entered into by the Company and the Rights Agent without the approval of
any holder of the Rights or of the Common Stock.
NOW, THEREFORE, the Company and the Rights Agent agree as follows:
1. Amendment to Definition of "Beneficial Owner". The last sentence of
the definition of "Beneficial Owner" in Section 1(f) of the Rights Agreement is
hereby amended and restated in its entirety as follows.
"Notwithstanding anything in this definition of Beneficial
Owner to the contrary, a Person who is a director or officer of the
Company or who is an Affiliate or Associate of a director or officer of
the Company (each, an "Excluded Person") shall not be deemed to
"beneficially own" shares of Common Stock held by another Excluded
Person solely by reason of any agreement, arrangement or understanding,
written or otherwise, entered into in opposition to a transaction that,
at the time such agreement, arrangement or understanding was entered
into, has not been approved or recommended by the Board of Directors to
the stockholders of the Company."
2. Deletion of Definition of "Continuing Director". The definition of
"Continuing Director" in Section 1(l) of the Rights Agreement is hereby deleted
from the Rights Agreement.
3. Amendment to Section 3(a). The second sentence of Section 3(a) of
the Rights Agreement is hereby amended and restated in its entirety as follows:
"The Board of Directors of the Company may defer the date set
forth in either clause (i) or (ii) of the preceding sentence to a
specified later date or to an unspecified later date, each to be
determined by action of a majority of the Board of Directors of the
Company."
Page 1 of 5
4. Amendment to Section 4(b)(iii)(B). Section 4(b)(iii)(B) of the
Rights Agreement is hereby amended by replacing "Continuing Directors" with
"Board of Directors".
5. Amendment to Section 7(e)(iii)(B). Section 7(e)(iii)(B) of the
Rights Agreement is hereby amended by replacing "Continuing Directors" with
"Board of Directors".
6. Amendment to Section 11(a)(iii). The first sentence of Section
11(a)(iii) of the Rights Agreement, is hereby amended and restated in its
entirety as follows:
"In the event that the number of shares of Common Stock which
are authorized by the Company's articles of incorporation but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph (ii)
of this Section 11(a), the Company, acting by resolution of a majority
of the Board of Directors, shall (A) determine the value of the
Adjustment Shares issuable upon the exercise of a Right (the "Current
Value"), and (B) with respect to each Right (subject to Section 7(e)
hereof), make adequate provision to substitute for the Adjustment
Shares, upon the exercise of a Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3)
Common Stock or other equity securities of the Company (including,
without limitation, shares, or units of shares, of preferred stock,
such as the Preferred Stock, which the Board has deemed to have
essentially the same value or economic rights as shares of Common Stock
(such shares of preferred stock being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5) other assets,
or (6) any combination of the foregoing, having an aggregate value
equal to the Current Value (less the amount of any reduction in the
Purchase Price), where such aggregate value has been determined by the
Board based upon the advice of a nationally recognized investment
banking firm selected by the Board; provided, however, that if the
Company shall not have made adequate provision to deliver value
pursuant to clause (B) above within thirty (30) days following the
later of (x) the first occurrence of a Section 11(a)(ii) Event and (y)
the date on which the Company's right of redemption pursuant to Section
23(a) expires (the later of (x) and (y) being referred to herein as the
"Section 11(a)(ii) Trigger Date"), then the Company shall be obligated
to deliver, upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, shares of Common Stock (to the
extent available) and then, if necessary, cash, which shares and/or
cash have an aggregate value equal to the Spread."
7. Amendment to Section 23(a). The first sentence of Section 23(a) of
the Rights Agreement is hereby amended and restated in its entirety as follows:
"The Company may, by a resolution adopted by a majority of the
Board of Directors, at its option, at any time prior to the earlier of
(i) the close of business on the tenth day following the Stock
Acquisition Date (or, if the Stock Acquisition Date shall have occurred
prior to the Record Date, the close of business on the tenth day
following the Record Date), or (ii) the Final Expiration Date, redeem
all but not less than all of the then outstanding Rights at a
redemption price of $.01 per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction
Page 2 of 5
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price")."
8. Amendments to Section 27. The first and second sentences of Section
27 of the Rights Agreement are hereby amended and restated in their entirety as
follows:
"Prior to the Distribution Date and subject to the penultimate
sentence of this Section 27, the Company may by resolution of a
majority of the Board of Directors and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing shares
of Common Stock. From and after the Distribution Date and subject to
the penultimate sentence of this Section 27, the Company may by
resolution of a majority of the Board of Directors and the Rights Agent
shall, if the Company so directs, supplement or amend this Agreement
without the approval of any holders of Rights Certificates in order (i)
to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time period
hereunder, or (iv) to change or supplement the provisions hereunder in
any manner which the Company may deem necessary or desirable and which,
in the case of this clause (iv), shall not adversely affect the
interests of the holders of Rights Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person);
provided, however, that this Agreement may not be supplemented or
amended to lengthen, pursuant to clause (iii) of this sentence, (A) a
time period relating to when the Rights may be redeemed at such time as
the Rights are not then redeemable, or (B) any other time period unless
such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of
Rights."
9. Amendments to Section 29. Section 29 of the Rights Agreement is
hereby amended and restated in its entirety as follows:
"For all purposes of this Agreement, any calculation of the
number of shares of Common Stock outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act. The Board of Directors of the Company shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board or to
the Company, or as may be necessary or advisable in the administration
of this Agreement, including, without limitation, the right and power
to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of
this Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause
(y) below, all omissions with respect to the foregoing) which are done
or made by the Board of Directors in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (y) not subject the Board of
Directors to any liability to the holders of the Rights."
Page 3 of 5
10. Amendments to Section 31. Section 31 of the Rights Agreement is
hereby amended and restated in its entirety as follows:
"If any term, provision, covenant or restriction of this
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 Agreement shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority
to be invalid, void or unenforceable and the Board of Directors of the
Company determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section
23 hereof shall be reinstated and shall not expire until the close of
business on the tenth day following the date of such determination by
the Board of Directors."
11. Miscellaneous.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all capitalized terms used herein have the meanings assigned
to them in the Rights Agreement.
(b) Each party hereto waives any requirement under the Rights Agreement
that any additional notice be provided to it pertaining to the matters covered
by this Agreement.
(c) This Amendment may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute
but one and the same document.
(d) Except as expressly provided herein, the Rights Agreement is not
being amended, modified or supplemented in any respect, and it remains in full
force and effect.
(e) This Amendment shall be deemed to be a contract made under the laws
of the State of North Carolina and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
(f) This Amendment shall be deemed effective as of the date first
written above, as if executed on such date.
[SIGNATURES ON FOLLOWING PAGE]
Page 4 of 5
IN WITNESS WHEREOF, the parties have caused this Amendment to the
Rights Agreement to be duly executed as of the day and year first written above.
XXXXXX XXXXXXXX MATERIALS, INC.
By: /s/ Xxxxxxx X. Bar
--------------------------------
Name: Xxxxxxx X. Bar
Title: Vice President, General
Counsel and Corporate
Secretary
WACHOVIA BANK, N.A. (AS SUCCESSOR TO
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA)
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Page 5 of 5
