AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1, dated as of January 23, 2004 (this "Amendment"),
is between Xxxx National Corporation, a Delaware corporation (the
"Corporation"), and National City Bank, as Rights Agent (the "Rights Agent").
Recitals
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WHEREAS, the Corporation and the Rights Agent have heretofore executed
and entered into the Rights Agreement, dated as of November 22, 1999 (the
"Rights Agreement");
WHEREAS, there is not as of the date hereof any Acquiring Person, and
a Distribution Date (as such terms are defined in the Rights Agreement) has not
occurred;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Corporation may, subject to certain limitations, from time to time supplement or
amend any provision of the Rights Agreement in accordance with the provisions
thereof;
WHEREAS, the Corporation proposes to enter into an Agreement and Plan
of Merger (as it may be amended or supplemented from time to time, the "Merger
Agreement"), dated as of January 23, 2004, with Luxottica Group S.p.A., a
Societa per Azioni organized under the laws of Italy ("Parent"), and Parent's
indirect wholly-owned subsidiary, Colorado Acquisition Corp., a Delaware
corporation ("Merger Sub");
WHEREAS, pursuant to the Merger Agreement, Merger Sub will be merged
with and into the Corporation (the "Merger"), with the Corporation surviving the
Merger, in accordance with the Delaware General Corporation Law as well as all
other applicable laws;
WHEREAS, the Corporation proposes to execute and deliver to HAL
International N.V., a Netherlands Antilles corporation, a waiver, pursuant to
which the Corporation shall waive certain of the provisions of the Standstill
Agreement, dated as of November 22, 1999 (as it may be amended or supplemented
from time to time); and
WHEREAS, as a condition and inducement to Parent's and Merger Sub's
willingness to enter into the Merger Agreement, it is proposed that Xxxxx
Xxxxxxx will enter into an agreement with Parent and Merger Sub, pursuant to
which, among other things, he will agree to vote his Common Shares (as such term
is defined in the Rights Agreement) in favor of the Merger Agreement and the
Merger;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the Corporation hereby directs, and the parties
hereto agree, that the Rights Agreement is amended as follows:
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(a) AMENDMENT OF SECTION 1(A). Section 1(a) of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none of
Luxottica Group S.p.A., a Societa per Azioni organized under the laws of
Italy ("Luxottica"), or Colorado Acquisition Corp., a Delaware corporation
("Merger Sub"), or any of their respective Affiliates or Associates shall
be deemed to be an Acquiring Person solely by virtue of one or more of (i)
the approval, execution or delivery of the Agreement and Plan of Merger,
dated as of January [ ], 2004, by and between Luxottica, Merger Sub and the
Company, as it may be amended from time to time (the "Merger Agreement");
(ii) the approval, execution or delivery of the voting agreement, dated as
of January [ ], 2004, by and between Luxottica, Merger Sub and Xxxxx
Xxxxxxx, as it may be amended from time to time (the "Xxxxxxx Voting
Agreement"); (iii) the approval, execution or delivery to HAL International
N.V., a Netherlands Antilles corporation, of the waiver (the "HAL
Standstill Waiver"), pursuant to which the Company shall waive certain of
the provisions of the Standstill Agreement, dated as of November 22, 1999
(as it may be amended or supplemented from time to time); (iv) the
consummation of the Merger (as defined in the Merger Agreement); (v) the
consummation of any of the other transactions contemplated in the Merger
Agreement or the Xxxxxxx Voting Agreement; or (vi) the public announcement
of any of the foregoing (each such event, an "Exempt Event")."
(b) AMENDMENT OF SECTION 1(H). Section 1(h) of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred solely as the result of an Exempt
Event."
(c) AMENDMENT OF SECTION 1(J). Section 1(j) of the Rights Agreement is
amended and restated to state in its entirety as follows:
"Expiration Date" means 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, (iii) the time at which all exercisable Rights are
exchanged as provided in Section 24, and (iv) immediately prior to the
Effective Time (as defined in the Merger Agreement).
(d) AMENDMENT OF SECTION 1(L). Section 1(l) of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Flip-In
Event shall not be deemed to have occurred solely as the result of an
Exempt Event."
(e) AMENDMENT OF SECTION 1(M). Section 1(m) of the Rights Agreement is
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amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Flip-Over
Event shall not be deemed to have occurred solely as the result of an
Exempt Event."
(f) AMENDMENT OF SECTION 1(BB). Section 1(bb) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Share
Acquisition Date shall not be deemed to have occurred solely as the result
of an Exempt Event."
(g) AMENDMENT OF SECTION 1(EE). Section 1(ee) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Triggering
Event shall not be deemed to have occurred solely as the result of an
Exempt Event."
(h) AMENDMENT OF SECTION 11(A). Section 11(a) of the Rights Agreement
is amended to add the following clause (iv):
"(iv) Notwithstanding the foregoing or anything in the Agreement to
the contrary, this Section 11(a) shall not apply to any Exempt Event."
(i) AMENDMENT OF SECTION 13. Section 13 of the Rights Agreement is
amended to add the following clause (e):
"(e) Notwithstanding anything in this Agreement to the contrary, no Exempt
Event shall be deemed to be an event of the type described in this Section
13, and an Exempt Event shall not cause the Rights to be adjusted or
exercisable in accordance with, or any other action to be taken or
obligation to arise pursuant to, this Section 13."
(j) Amendment of Section 29. Section 29 of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding the foregoing, nothing in this Agreement will be
construed to give any holder of Rights or any other Person any legal or
equitable right, remedy or claim under this Agreement in connection
with execution and delivery of the Merger Agreement, the Xxxxxxx Voting
Agreement, or the HAL Standstill Waiver, or the consummation of the
transactions contemplated thereby."
(k) OFFICER'S CERTIFICATE. The parties agree that execution of this
Amendment by the Corporation shall satisfy the certificate delivery requirement
of Section 27.
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(l) EFFECTIVENESS. This Amendment shall be deemed 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. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
(m) MISCELLANEOUS. This Amendment will be deemed to be a contract made
under the internal substantive laws of the State of Delaware and for all
purposes will 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. This Amendment may be executed in any number of
counterparts and each of such counterparts will for all purposes be deemed to be
an original, and all such counterparts will together constitute but one and the
same instrument. If any term, provision, covenant or restriction of this
Amendment is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment will remain in full force and
effect and will in no way be affected, impaired or invalidated; provided,
however, that nothing contained herein will affect the ability of the
Corporation under the provisions of Section 27 of the Rights Agreement to
supplement or amend this Amendment to replace such invalid void or unenforceable
term, provision, covenant or restriction with a legal, valid and enforceable
term, provision, covenant or restriction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed, all as of the date and year first above written.
Attest: XXXX NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxxx X. Xxxx Name: Xxxxx Xxxxxxx
Title: Senior Vice President, Title: President and Chief Financial
Secretary & General Counsel Officer
Attest: NATIONAL CITY BANK,
AS RIGHTS AGENT
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Vice President Title: Officer
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