FIRST AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
First Amendment to the Amended and Restated Rights Agreement ("First
Amendment"), dated as of July 29, 1999, between Xxxx Industries, Inc., a Georgia
corporation (the "Company"), and EquiServe Trust Company, N.A. ("EquiServe"), as
successor rights agent to Wachovia Bank, N.A. ("Wachovia"). All capitalized
terms used but not defined in this First Amendment shall have the meanings given
to them in that certain Amended and Restated Rights Agreement (the "Rights
Agreement"), dated as of April 10, 1999, between the Company and EquiServe, as
successor to Wachovia.
W I T N E S S E T H
WHEREAS, the Company has appointed EquiServe as successor to Wachovia as
Rights Agent under the Rights Agreement
WHEREAS, as a result of such appointment, EquiServe and the Company
desire to amend the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. The Rights Agreement is hereby amended as follows:
(a) The Rights Agreement is hereby amended by deleting Section
1(h) thereof and substituting in lieu thereof the following:
`"Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the
Commonwealth of Massachusetts are authorized or obligated
by law or executive order to close.'
(b) The Rights Agreement is hereby amended by deleting Section
1(i) thereof and substituting in lieu thereof the following:
`"close of business" on any given date shall mean 5:00
P.M., eastern standard time on such date; provided,
however, that if such date is not a Business Day it shall
mean such time on the next succeeding Business Day.'
(c) The Rights Agreement is hereby amended by deleting the second
sentence of Section 2 thereof and substituting in lieu thereof the
following:
"The Company may from time to time appoint such Co-Rights
Agents, as it may deem necessary or desirable, upon ten
(10) days' prior 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."
(d) The Rights Agreement is hereby amended by deleting the fifth
sentence of Section 22 thereof and substituting in lieu thereof the
following:
"Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation,
limited partnership or trust company organized and doing
business under the laws of the United States or of any
state of the United States, in good standing, which is
authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by
federal or state authority and 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
corporation, limited partnership or trust company described
in clause (a) of this sentence."
2. Except as provided in this First Amendment, all other terms of
the Rights Agreement remain in full force and effect.
3. This First Amendment may be executed by facsimile, in one or
more counterparts, each of which shall be deemed an original, and all of
which together shall constitute the same instrument.
XXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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