AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment No. 1 to Rights Agreement, dated as of February 4, 2004
(this "Amendment No. 1"), is made by and between Xxxxxx Inc., a Delaware
corporation (the "Company"), and Mellon Investor Services LLC, a New Jersey
limited liability company (as successor in interest to First Chicago Trust
Company of New York, a national banking association organized under the laws of
the United States) (the "Rights Agent"), as rights agent, pursuant to Section 26
of the Rights Agreement (as defined below), at the Company's direction.
WITNESSETH:
WHEREAS, on July 6, 1995, the Board of Directors of the Company (the
"Board") adopted a stockholder rights plan, declaring a dividend distribution of
one right to be attached to each share of common stock, par value $0.01 per
share, of the Company;
WHEREAS, the Company's stockholder rights plan is governed by the
Rights Agreement, dated as of July 6, 1995, by and between the Company and the
Rights Agent (the "Rights Agreement");
WHEREAS, at a special meeting of the Board held on February 4, 2004,
the Board approved the amendment of the Rights Plan in the manner set forth
herein; and
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 26 thereof.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth in the Rights Agreement and this Amendment No. 1, the parties hereby
agree as follows:
1. Amendment to Definition of "Acquiring Person." Section 1(a) of the
Rights Agreement is amended to add the following sentence after the
last sentence thereof: "Notwithstanding the foregoing, no Person,
including, without limitation, Cable Design Technologies Corporation
("CDT"), BC Merger Corp. ("Merger Sub") or any of their respective
Affiliates or Associates, shall become an Acquiring Person as a result
of the execution of the Agreement and Plan of Merger, dated as of
February 4, 2004, by and among CDT, Merger Sub, and the Company (as the
same may be amended from time to time, the "Merger Agreement"), or the
announcement or consummation of the transactions contemplated thereby
pursuant to the terms of the Merger Agreement."
2. Amendment to Definition of "Person." Section 1(h) of the Rights
Agreement is amended and restated in its entirety to read: " "Person"
shall mean any individual, firm, corporation, partnership, limited
liability company or other entity and shall include any successor (by
merger or otherwise) thereof or thereto."
3. Amendment to Definition of "Stock Acquisition Date." Section 1(l) of
the Rights Agreement is amended to add the following proviso at the end
of such section: ";
provided, however, that notwithstanding the foregoing, a Stock
Acquisition Date shall not occur or be deemed to have occurred as a
result of the execution of the Merger Agreement or the announcement or
consummation of the transactions contemplated thereby pursuant to the
terms of the Merger Agreement."
4. Amendment to Section 2. Section 2 of the Rights Agreement is amended
and restated in its entirety to read: "The Company hereby appoints the
Rights Agent to act as agent for the Company in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-Rights
Agents as it may deem necessary or desirable . The Rights Agent shall
have no duty to supervise and in no event shall be liable for, the acts
or omissions of such co-Rights Agent."
5. Amendment to Definition of "Distribution Date." Section 3(a) of the
Rights Agreement is amended to add the following provision at the end
of clause (ii): ", but in no case shall any of the actions in this
clause (ii) be deemed to have occurred as a result of the execution of
the Merger Agreement or the announcement or consummation of the
transactions contemplated thereby pursuant to the terms of the Merger
Agreement."
6. Amendment to Section 7(a). Section 7(a) of the Rights Agreement is
amended by deleting the word "or" immediately preceding clause (ii) and
by adding the following at the end of clause (ii): "or (iii) the
Effective Time of the Merger. For purposes of clause (iii) above,
"Effective Time of the Merger" shall mean such time as a certificate of
merger (the "Merger Certificate") is duly filed with the Secretary of
State of the State of Delaware pursuant to Section 1.3 of the Merger
Agreement or at such later effective time as is specified in the Merger
Certificate."
7. Amendment to Section 11(a)(ii). Section 11(a)(ii) of the Rights
Agreement is amended to add the following proviso at the end of such
section: "; provided, however, that notwithstanding the foregoing, no
provision for adjustment shall be made pursuant to this Section
11(a)(ii) as a result of the execution of the Merger Agreement or the
announcement or consummation of the transactions contemplated thereby
pursuant to the terms of the Merger Agreement."
8. Amendment to Section 21. Section 21 of the Rights Agreement is amended
so that any reference therein to the word "corporation" shall be
deleted and replaced with the word "Person."
9. Rights Agreement as Amended. The term "Agreement" or "Rights Agreement"
as used in the Rights Agreement shall be deemed to refer to the Rights
Agreement as amended by this Amendment No. 1. The foregoing amendments
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
otherwise shall be unaffected hereby.
10. Counterparts. This Amendment No. 1 may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be
deemed an
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original, but all such counterparts shall together constitute but one
and the same instrument.
11. Governing Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such
State.
12. Descriptive Headings. Descriptive headings of the several Sections of
this Amendment No. 1 are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed as of the day and year first above written.
XXXXXX INC.
By: /s/ XXXXX X. XXXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxxx
Title Vice President, Secretary and
General Counsel
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By: /s/ XXXX X. BRUNETTE
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Name: Xxxx X. Brunette
Title: Assistant Vice President