AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of January 19, 2006 (this "Amendment"), to the
Rights Agreement, dated as of January 31, 1996 (the "Rights Agreement"),
between The Xxxxxxx Works, a Connecticut corporation (the "Company"), and
Computershare Investor Services L.L.C., as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the
Rights Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, the Company and the Rights Agent desire to amend
the Rights Agreement in accordance with Section 27 of the Rights Agreement;
WHEREAS, the Board of Directors of the Company has
authorized and adopted this Amendment at a meeting of directors duly called
and held;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereby agree as follows:
1. Section 1(a) of the Rights Agreement is amended and restated in
its entirety as follows:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial
Owner of fifteen percent (15%) or more of the shares of Common Stock
then outstanding, but shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company, or of 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, (iv) any Person who becomes the
Beneficial Owner of fifteen percent (15%) or more of the shares of
Common Stock then outstanding as a result of a reduction in the
number of shares of Common Stock outstanding due to the repurchase of
shares of Common Stock by the Company unless and until such Person,
after becoming aware that such Person has become the Beneficial Owner
of fifteen percent (15%) or more of the then outstanding shares of
Common Stock, acquires beneficial ownership of additional shares of
Common Stock representing one percent (1%) or more of the shares of
Common Stock then outstanding, or (v) any such Person who has
reported or is required to report such ownership (but less than 20%)
on Schedule 13G under the Exchange Act (or any comparable or
successor report) or on Schedule 13D under the Exchange Act (or any
comparable or successor report) which Schedule 13D does not state any
intention to or reserve the right to control or influence the
management or policies of the Company or engage in any of the actions
specified in Item 4 of such schedule (other than the disposition of
the Common Stock) and, within 10 Business Days of being requested by
the Company to advise it regarding the same, certifies to the Company
that such Person acquired shares of Common Stock in excess of 14.9%
inadvertently or without knowledge of the terms of the Rights and who
or which, together with all Affiliates and Associates, thereafter
does not acquire additional shares of Common Stock while the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding; provided, however, that if the Person requested to so
certify fails to do so within 10 Business Days, then such Person
shall become an Acquiring Person immediately after such 10 Business
Day period.
2. The first sentence of Section 3(a) of the Rights Agreement is
amended and restated in its entirety as follows:
Until the earlier of (i) the close of business on the tenth day after
the Stock Acquisition Date (or, if the tenth day after the Stock
Acquisition Date occurs before the Record Date, the close of business
on the Record Date) or (ii) the close of business on the tenth
Business Day (or such later date as the Board shall determine) after
the date that a tender or exchange offer by any Person (other than
the Company, any Subsidiary of the Company, any employee benefit plan
of the Company or of any Subsidiary of the Company, any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation thereof,
such Person would become an Acquiring Person (the earlier of (i) and
(ii) being herein referred to as the "Distribution Date"), (x) the
Rights will be evidenced (subject to the provisions of paragraph (b)
of this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates
for Rights) and not by separate certificates, and (y) the Rights will
be transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer to the
Company).
3. The fourth sentence of Section 21(a) of the Rights Agreement is
amended and restated in its entirety as follows:
Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be (a) a legal business entity organized and
doing business under the laws of the United States or of any state
thereof, in good standing, which is authorized by such laws to
exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which
either is or is an affiliate of a business entity which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (b) an Affiliate of a legal
business entity described in clause (a) of this sentence.
4. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended hereby.
5. All capitalized terms used herein but not otherwise defined herein
shall have the meanings ascribed to them in the Rights Agreement.
6. This Amendment shall be effective as of the date hereof and,
except as set forth herein, the Rights Agreement shall remain in full force
and effect and shall be otherwise unaffected hereby.
7. This Amendment 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
Attest: THE XXXXXXX WORKS
By: /s/Xxxxxxx X. Xxxxxx By: /s/Xxxxx X. Xxxxx
-------------------------- ---------------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Assistant Secretary Title: Vice President, General Counsel
and Secretary
Attest: COMPUTERSHARE INVESTOR SERVICES L.L.C.
By: By: /s/Xxxxxxx X. Xxxx
-------------------------- ---------------------------------------
Name: Name: Xxxxxxx X. Xxxx
Title: Title: Director Relationship Management
