BRUSH XXXXXXX INC.
00000 XX. XXXXX XXXXXX
XXXXXXXXX, XXXX 00000
May 16, 2000
National City Bank, N.A.
Corporate Trust Administration
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000
Attention: Vice President - Administration
Re: Amendment No. 1 to Rights Agreement
Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement (the "Rights
Agreement"), dated as of January 27, 1998, between Brush Xxxxxxx Inc. (the
"Company"), and National City Bank, N.A., as rights agent, the Company, by
resolution adopted by its Directors, hereby amends the Rights Agreement as
i. Section 1(l) of the Rights Agreement is hereby amended
and restated in its entirety as follows:
"(l) "Expiration Date" means the earliest of (i) the Close of
Business on the Final Expiration Date, (ii) the time at which the
Rights are redeemed as provided in Section 23, (iii) the time at
which all exercisable Rights are exchanged as provided in Section
24, and (iv) immediately prior to the Effective Time (as defined in
the Merger Agreement)."
ii. Section 1(p) of the Rights Agreement is hereby amended by
adding the following new Section 1(pp) immediately thereafter:
(pp) "MERGER AGREEMENT" means the Agreement Of Merger, dated as of
May 16, 2000, among Brush Merger Co., an Ohio corporation ("Merger
Co."), the Company, and Brush Engineered Materials Inc., an Ohio
corporation ("Holding Company").
iii. Section 1 of the Rights Agreement is hereby amended by
adding the following new paragraph at the end of that Section:
Notwithstanding anything in this Agreement to the contrary,
none of Merger Co., Holding Company, any of their Affiliates or
Associates or any of their permitted assignees or transferees shall
be deemed an Acquiring Person and none of a Distribution Date, a
Share Acquisition Date, or a Triggering Event shall be deemed to
occur or to have occurred, and that the Rights will not become
separable, distributable, unredeemable or exercisable, in each such
case, by reason or as a result of the approval, execution or
delivery of the Merger Agreement, the consummation of the Merger (as
defined in the Merger Agreement) or the consummation of the other
transactions contemplated by the Merger Agreement.
iv. The Rights Agreement shall not otherwise be supplemented
or amended by virtue of this Amendment No. 1 to the Rights
Agreement, but shall remain in full force and effect.
v. Capitalized terms used without other definition in this
Amendment No. 1 to the Rights Agreement shall be used as
defined in the Rights Agreement.
vi. This Amendment No. 1 to the Rights Agreement shall be
deemed to be a contract made under the internal substantive
laws of the State of Ohio and for all purposes will be
governed by and construed in accordance with the internal
substantive laws of such State applicable to contracts to be
made and performed entirely within such State.
vii. This Amendment No. 1 to the Rights Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute
but one and the same instrument.
viii. This Amendment No. 1 to the Rights Agreement shall be
effective as of, and immediately prior to, the execution and
delivery of the Merger Agreement, and all references to the
Rights Agreement shall, from and after such time, be deemed to
be references to the Rights Agreement as amended hereby.
ix. Exhibits B and C to the Rights Agreement shall be deemed
amended in a manner consistent with this Amendment No. 1 to
the Rights Agreement.
Very truly yours,
Brush Xxxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Accepted and agreed to as of the effective time specified above:
National City Bank, N.A.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President