Exhibit 37
SIXTH AMENDMENT TO RIGHTS AGREEMENT
This Sixth Amendment (this "Amendment"), dated as of July 9, 1999, to
the Rights Agreement, dated as of October 31, 1995 and amended as of February
16, 1998, September 18, 1998, October 5, 1998, January 9, 1999 and June 6, 1999
(the "Rights Agreement"), between GLOBAL INDUSTRIAL TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation (the "Rights Agent"); all capitalized terms not defined
herein shall have the meanings ascribed to such terms in the Rights Agreement.
WHEREAS, on October 20, 1995, the Board of Directors of the Company
authorized the issuance of one Right for each share of Common Stock to be issued
on the Effective Date of the Merger; and
WHEREAS, Section 26 of the Rights Agreement provides that as long as
the Rights are redeemable, the Company may in its sole and absolute discretion,
and the Rights Agent shall if the Company so directs, supplement or amend any
provision of the Rights Agreement without the approval of any holders of the
Rights; and
WHEREAS, the Board of Directors of the Company has deemed it necessary
and desirable to amend the Rights Agreement as set forth in this Amendment.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Rights Agent hereby agree as follows:
Section 1. Addition of New Section. A new Section 34 shall be added
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to the Rights Agreement, which shall read as follows:
Section 34. Exemption of a Specified Transaction. Solely for the
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purposes of the transactions contemplated by the Agreement and Plan of Merger,
dated as of July 9, 1999 (hereinafter referred to as the "Merger Agreement"),
among the Company, RHI AG, a corporation organized under the laws of Austria
("Parent") and Heat Acquisition Corp., a Delaware corporation ("Purchaser"), (i)
neither Parent nor Purchaser, nor any of their Affiliates or Associates, shall
become an Acquiring Person as a result of the transactions contemplated by the
Merger Agreement being approved or becoming effective and (ii) a Distribution
Date shall not occur by reason of the approval or execution of the Merger
Agreement or the consummation of the transactions contemplated by the Merger
Agreement.
If the Merger Agreement is terminated for any reason in accordance with its
terms or otherwise, this Section 34 shall cease to be effective as of the date
of such termination.
Section 2. No Other Effect. The Rights Agreement shall not otherwise
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be supplemented or amended by virtue of this Amendment, but shall remain in full
force and effect, as amended hereby.
Section 3. Delaware Contract. This Amendment shall be deemed to be a
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contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed and enforced in accordance with the laws of such
state applicable to contracts to be made and performed entirely within such
state.
Section 4. Counterparts. This Amendment may be executed in any
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
GLOBAL INDUSTRIAL TECHNOLOGIES, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President, General Counsel
and Secretary
THE BANK OF NEW YORK
RIGHTS AGENT
By: /s/ Xxxxx Diminu
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Name: Xxxxx Diminu
Title: Vice President
Attest: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Assistant Treasurer
