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Exhibit 4.2
M.A. XXXXX COMPANY
XXXXX 00-0000
000 XXXXXX XXXXXX
XXXXXXXXX, XXXX 00000-0000
May 7, 0000
XXXXX XXXXXXX XXXXX XXXXXXX XX XXX XXXX
000 Xxxxxxxxxx Xxxx.
Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxx
Re: Amendment No. 1 to Rights Agreement
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Ladies and Gentlemen:
Pursuant to Section 26 of the Rights Agreement (the "Rights
Agreement"), dated as of December 4, 1991, between M.A. Xxxxx Company (the
"Company"), and First Chicago Trust Company of New York, successor to Ameritrust
Company National Association, as rights agent, the Company, by resolution
adopted by its Directors, hereby amends the Rights Agreement as follows:
1. Section 1(k) of the Rights Agreement is hereby
amended and restated in its entirety as follows:
"(k) "Expiration Date" shall mean 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
hereof, (iii) the time at which all exercisable Rights are
exchanged as provided in Section 27 hereof, and (iv)
immediately prior to the Effective Time (as defined in the
Consolidation Agreement)."
2. Section 1(o) of the Rights Agreement is hereby
amended by inserting the following new Section 1(oo) immediately thereafter:
"(oo) "CONSOLIDATION AGREEMENT" means the Agreement and Plan
of Consolidation, dated as of May 7, 2000, between the Company
and Geon Company, a Delaware corporation ("Geon")."
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First Chicago Trust Company of New York
May 7, 2000
Page 2
3. Section 1 of the Rights Agreement is hereby amended
by inserting the following new paragraph at the end of that Section:
"Notwithstanding anything in this Agreement to the
contrary, none of Geon, the Company, Consolidation Corp. (as
defined in the Consolidation Agreement) or Resulting
Corporation (as defined in the Consolidation Agreement), 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 Consolidation Agreement, the consummation of
the Consolidation (as defined in the Consolidation Agreement)
or the consummation of the other transactions contemplated by
the Consolidation Agreement."
4. Section 2 of the Rights Agreement is hereby amended
by inserting the following language after the word "desirable" in the second
sentence of that Section:
"upon ten (10) days written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and
shall in no event be liable for, the acts or omissions of any
such Co-Rights Agent."
5. Sections 18(a) and 20(c) of the Rights Agreement are
amended by replacing the word "negligence" in each of those Sections with the
words "gross negligence."
6. 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.
7. Capitalized terms used without other definition in
this Amendment No. 1 to the Rights Agreement shall be used as defined in the
Rights Agreement.
8. 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
Delaware and for all purposes shall 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.
9. 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.
10. 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.
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First Chicago Trust Company of New York
May 7, 2000
Page 3
11. 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,
M.A. XXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman and CEO
Accepted and agreed to as of the
effective time specified above:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Director, Corporate Actions
