FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment to Rights Agreement, dated as of
September 20, 1995 (the "Amendment"), is by and between Xxxxxx
Properties, Inc., a Delaware corporation (the "Company") and State
Street Bank & Trust Company, a Massachusetts trust company, as
Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into that
certain Rights Agreement dated as of June 28, 1990 (the
"Agreement"); and
WHEREAS, the Company and the Rights Agent wish to amend the
Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
1. Section 1(a) of the Agreement is hereby deleted in its
entirety and replaced by the following:
"(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding, but shall not include the Company,
any subsidiary of the Company, any employee benefit plan of the
Company or of any subsidiary of the Company, or any Person
organized, appointed or established by the Company for or pursuant
to the terms of any such plan; provided, however, that if, as of
5:00 p.m., Eastern Daylight Savings Time, on September 20, 1995,
any Person, together with all Affiliates and Associates of such
Person, is the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding, the 15% threshold set forth above
shall be adjusted, with respect to such Person only, to equal (i)
the percentage of the shares of Common Stock outstanding as of
such time of which such Person, together with all Affiliates and
Associates of such Person, is the Beneficial Owner, plus (ii) one-
tenth of one percent (0.1%), but the maximum to which the
threshold shall be adjusted shall be 20%.
2. Section 11(a)(ii)(B) is hereby deleted in its entirety
and replaced by the following:
"(B) Any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any
Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to
the terms of any such plan), alone or together with its
Affiliates and Associates, shall, at any time after the
Rights Dividend Declaration Date, become the Beneficial Owner
of 15% or more of the shares of Common Stock then
outstanding, unless the event causing the 15% threshold to be
crossed is a transaction set forth in Section 13(a) hereof,
or is an acquisition of shares of Common Stock pursuant to a
tender offer or an exchange offer for all outstanding shares
of Common Stock at a price and on terms determined by at
least a majority of the members of the Board of Directors who
are not officers of the Company and who are not
representatives, nominees, Affiliates or Associates of an
Acquiring Person, after receiving advice from a nationally
recognized investment banking firm selected by the Board of
Directors of the Company, to be (a) a price that is fair to
stockholders (taking into account all factors which such
members of the Board deem relevant including, without
limitation, prices which could reasonably be achieved if the
Company or its assets were sold on an orderly basis designed
to realize maximum value) and (b) otherwise in the best
interest of the Company and its stockholders; provided,
however, that if, as of 5:00 p.m., Eastern Daylight Savings
Time, on September 20, 1995, any Person, together with all
Affiliates and Associates of such Person, is the Beneficial
Owner of 15% or more of the shares of Common Stock then
outstanding, the 15% threshold set forth above shall be
adjusted, with respect to such Person only, to equal (x) the
percentage of the shares of Common Stock outstanding as of
such time of which such Person, together with all Affiliates
and Associates of such Person, is the Beneficial Owner plus
(y) one-tenth of one percent (0.1%), but the maximum to which
the threshold shall be adjusted shall be 20%, or"
3. All capitalized terms used in this Amendment and not
otherwise defined herein shall have the meanings ascribed to
them in the Agreement.
4. Except as expressly modified hereby all of the terms
and provisions of the Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first
above written.
XXXXXX PROPERTIES, INC.
/s/ Xxxx X. Xxxxx
ATTEST: By:______________________________
Xxxx X. Xxxxx
/s/ Xxxxx Xxxxxxxx
By:_______________________
Xxxxx Xxxxxxxx
STATE STREET BANK & TRUST COMPANY
/s/ Xxxxxx Xxxxx
ATTEST: By:______________________________
Xxxxxx Xxxxx
/s/ Xxxxx X. Xxxxxxxx
By:_______________________
Xxxxx X. Xxxxxxxx
