EXHIBIT 2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 TO RIGHTS AGREEMENT ("Amendment No. 1"), dated as of
February 15, 2004, between Xxxxxx Manufacturing Company, a Delaware corporation
(the "Company"), and UMB Bank, N.A., as Rights Agent (the "Rights Agent"),
amending the Rights Agreement, dated as of September 16, 1998, between the
Company and the Rights Agent (the "Rights Agreement"). Capitalized terms used
herein but not defined herein shall have the respective meanings ascribed to
them in the Rights Agreement.
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company has approved an
Agreement and Plan of Merger (the "Merger Agreement") by and among BlueScope
Steel Limited, an Australian company ("Parent"), BSL Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Parent ("Purchaser"), and
the Company, providing for the merger of Purchaser with and into the Company
(the "Merger");
WHEREAS, the Board of Directors of the Company has determined that the
Merger Agreement and the transactions contemplated thereby, including, without
limitation, the Merger, are fair to and in the best interests of the Company and
its stockholders;
WHEREAS, the willingness of Parent and Purchaser to enter into the
Merger Agreement is conditioned on, among other things, the amendment of the
Rights Agreement on the terms set forth herein;
WHEREAS, Section 27 of the Rights Agreement provides that the Company
may from time to time supplement or amend the Rights Agreement without the
approval of any holders of Rights Certificates to, among other things, make any
provisions with respect to the Rights which the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a writing signed
by the Company and the Rights Agent; provided, however, that from and after such
time as any Person becomes an Acquiring Person, the Rights Agreement may not be
amended in any manner which would adversely affect the interest of the holders
of Rights; and
WHEREAS, in compliance with Section 27 of the Rights Agreement, the
Company desires to amend the Rights Agreement as hereinafter set forth and has
executed and delivered this Amendment No. 1 immediately prior to the execution
and delivery of the Merger Agreement.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1 of the Rights Agreement is hereby amended by adding
the following definitions thereto:
"Merger" shall mean the merger of Purchaser with and into the
Company as contemplated by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of February 15, 2004, by and among Parent, Purchaser
and the Company, as the same may be amended in accordance with the
terms thereof.
"Parent" shall mean BlueScope Steel Limited, an Australian
company.
"Purchaser" shall mean BSL Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent.
2. Section 1(a) of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
neither Parent nor any Affiliate of Parent shall be or become an
Acquiring Person (and no Shares Acquisition Date shall occur) as a
result of the approval, execution, delivery, announcement or
performance of the Merger Agreement (or any amendment thereto in
accordance with the terms thereof) or the consummation of the
transactions contemplated thereby (including, without limitation, the
Merger)."
3. Section 3(a) of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein, no
Distribution Date shall occur as a result of the approval, execution,
delivery, announcement or performance of the Merger Agreement (or any
amendment thereto in accordance with the terms thereof) or the
consummation of the transactions contemplated thereby (including,
without limitation, the Merger)."
4. Section 7(a) of the Rights Agreement is hereby amended by
replacing "(the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption Date"), or (iii) the
time at which such rights are exchanged as provided in Section 24 hereof" with
the following:
", (ii) immediately prior to the effective time of the Merger
(the earlier of (i) and (ii) being herein referred to as the "Final
Expiration Date"), (iii) the time at which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption
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Date"), or (iv) the time at which such Rights are exchanged as provided
in Section 24 hereof."
5. Section 11 of the Rights Agreement is hereby amended by adding
to the end thereof the following:
"(o) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 11 will not apply to or be
triggered by the approval, execution, delivery, announcement or
performance of the Merger Agreement (or any amendment thereto in
accordance with the terms thereof) or the consummation of the
transactions contemplated thereby (including, without limitation, the
Merger)."
6. Section 13 of the Rights Agreement is hereby amended by adding
to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
the provisions of this Section 13 will not apply to or be triggered by
the approval, execution, delivery, announcement or performance of the
Merger Agreement or any amendment thereto or the consummation of the
transactions contemplated thereby (including, without limitation, the
Merger)."
7. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended by this Amendment No. 1.
8. Except as set forth herein, the Rights Agreement shall remain
in full force and effect and shall be otherwise unaffected hereby.
9. This Amendment No. 1 may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, Company has caused this Amendment No. 1 to be duly
executed, all as of the day and year first above written.
XXXXXX MANUFACTURING COMPANY
Attest:
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxx
-------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxx X. Xxxx
Title: Asst. Secretary Title: Vice President
IN WITNESS WHEREOF, the undersigned, UMB Bank, N.A., as Rights Agent
under the Rights Agreement, hereby acknowledges and agrees to this Amendment No.
1.
UMB BANK, N.A.,
Attest:
By: /s/ Xxxxx X. Xxxx By: /s/ K. Xxxxx Xxxxxxx
-------------------------------- ------------------------------
Name: Xxxxx X. Xxxx Name: K. Xxxxx Xxxxxxx
Title: Asst. Secretary Title: Vice President
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