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FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT made and entered into as of the 27th day of April,
1998, by and between Xxxx-Xxxxxx Corporation (the "Company") and Firstar Trust
Company (f/k/a First Wisconsin Trust Company) (the "Rights Agent"), under the
Rights Agreement, dated as of May 9, 1989, by and between the Company and the
Rights Agent (the "Agreement").
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company may from time to time prior to the Distribution Date (as defined
therein) supplement or amend the Rights Agreement in accordance with the
provisions of Section 27 thereof; and
WHEREAS, it is proposed that the Company enter into an
Agreement and Plan of Merger (the "Merger Agreement") and a Stock Option
Agreement (the "Stock Option Agreement"), among the Company, Snap-on
Incorporated ("Parent") and Snap-on Pace Company, a wholly-owned subsidiary of
Parent; and
WHEREAS, the Board of Directors of the Company has determined
that the transactions contemplated by the Merger Agreement and the Stock Option
Agreement are fair to and in the best interests of the Company and its
shareholders; and
WHEREAS, the Board of Directors has determined that it is in
the best interests of the Company and its shareholders to amend the Agreement
to exempt the Merger Agreement and the Stock Option Agreement and the
transactions contemplated thereby from the application of the Rights Agreement.
NOW THEREFORE, the Company and the Rights Agent hereby amend
the Rights Agreement as follows:
A. Section 1(c) of the Agreement is hereby amended by
adding the following at the end of such Section:
Notwithstanding the foregoing, for purposes of this Agreement,
neither Snap-on Incorporated ("Parent") nor Snap-on Pace
Company, a wholly-owned subsidiary of Parent (collectively,
the "Permitted Purchasers"), shall be deemed to be the
Beneficial Owner of or to beneficially own any Common Shares
if and so long as (i) that certain Agreement and Plan of
Merger (the "Merger Agreement"), dated as of April 27, 1998,
among the Company and the Permitted Purchasers, has been fully
executed, is in effect and has not been terminated by any
party thereto, and (ii) no Permitted Purchaser has acquired
any
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Common Shares other than pursuant to the terms of the Merger
Agreement and/or the Stock Option Agreement (the "Stock Option
Agreement"), dated as of April 27, 1998, among the Company and
the Permitted Purchasers.
B. The Agreement is hereby further amended to add a new
Section 34 to the Agreement which shall read in its entirety as follows:
Section 34. Excluded Transactions. Nothing in this Agreement
shall be construed to create or cause a Distribution Date or
Shares Acquisition Date or to constitute a Section 11(a)(ii)
Event or Section 13 Event or give any holder of Rights or any
other Person any legal or equitable rights, remedy or claim
under the Agreement solely as a result of or in connection
with the execution of the Merger Agreement and/or the Stock
Option Agreement or the commencement or consummation of the
transactions contemplated by the Merger Agreement and/or the
Stock Option Agreement.
C. This Amendment shall be deemed to be a contract made
under the laws of the State of Wisconsin and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
D. This Amendment may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original, and
all of which together shall constitute but one and the same instrument.
E. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be duly executed as of the date first above written.
Attest: XXXX-XXXXXX CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXX By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxxx X. XxXxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Secretary Title: President and Chief
Executive Officer
Attest: FIRSTAR TRUST COMPANY
By: /s/ XXX X. XXXXX By: /s/ XXXXXXX XXXXXX
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Name: Xxx X. Xxxxx Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary Title: Assistant Vice President
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XXXX-XXXXXX CORPORATION
OFFICER'S CERTIFICATE PURSUANT TO
SECTION 27 OF THE RIGHTS AGREEMENT
The undersigned, the President and Chief Executive Officer of
Xxxx-Xxxxxx Corporation, a Wisconsin corporation (the "Company"), pursuant to
Section 27 of the Rights Agreement, dated as of May 9, 1989 (the "Agreement"),
between the Company and Firstar Trust Company (f/k/a First Wisconsin Trust
Company), as Rights Agent, does hereby certify on behalf of the Company that
the amendment to the Agreement contained in the attached First Amendment to
Rights Agreement, dated as of April 27, 1998, is in compliance with the terms
of Section 27 of the Agreement.
IN WITNESS WHEREOF, the undersigned has set his hand hereunto.
XXXX-XXXXXX CORPORATION
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
