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EXHIBIT 4.4A
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Amendment No. 1, dated as of March 1, 1999 (the "First Amendment"), to the
Rights Agreement, dated as of February 1, 1994 (the "Rights Agreement"), by and
between X'Xxxxxxxx Industries Holdings, Inc., a Delaware corporation (the
"Company"), BankBoston, N.A. (formerly known as The First National Bank of
Boston), a national banking association ("FNB"), as Rights Agent, and UMB Bank,
N.A. ("UMB"), as successor Rights Agent.
WHEREAS, the Company and FNB are currently parties to the Rights
Agreement, pursuant to which FNB serves as Rights Agent;
WHEREAS, the Company and FNB desire that FNB resign as Rights Agent and
the Company and UMB desire that UMB be appointed as successor Rights Agent, each
effective as of March 1, 1999; and
WHEREAS, the parties hereto wish to make certain changes to the Rights
Agreement to facilitate this succession and to eliminate the delayed redemption
provisions therein.
NOW THEREFORE, the Company, FNB and UMB hereby agree as follows:
1. Amendments to Rights Agreement. The Rights Agreement shall be and
hereby is amended as provided below, effective as of the date of this First
Amendment:
(a) Section 2 is hereby modified and amended by: (i) deleting from subparagraph
(g) therein the words "a Transaction Person." and replacing them with the words
"an Acquiring Person or any of its Affiliates, Associates or representatives.",
(ii) deleting subparagraph (s) in its entirety, (iii) deleting subparagraph (t)
in its entirety and (iv) reordering subparagraph (u) such that it will
hereinafter be subparagraph (s).
(b) Subparagraph (c) of Section 3 is hereby modified and amended by: (i)
deleting from the first sentence of the legend therein the words "The First
National Bank of Boston, dated as of February 1, 1994" and replacing them with
the words "the Rights Agent, dated as of February 1, 1994, as the same may be
amended from time to time" and (ii) deleting from the last sentence of the
legend therein the words "set forth in the Rights Agreement, Rights issued to,
or held by, any Person who is, was or becomes an Acquiring Person certain
related persons whether currently held by or on behalf of such Person or by an"
and replacing them with the words "Rights beneficially owned by Acquiring
Persons or";
(c) Section 20 is hereby modified and amended by adding immediately after
subparagraph (k) therein the following words:
"(l) If, with respect to any actual Right Certificate (i.e., not
including certificates deemed to be Right Certificates) surrendered to
the Rights Agent for exercise or transfer, the certificate attached
thereto and contained in the form of assignment or the form of
election
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to purchase set forth on the reverse thereof, as the case may be, has
not been completed to certify that the holder is not an Acquiring
Person (or an Affiliate or Associate thereof), the Rights Agent may
take no further action with respect to such requested exercise or
transfer until receiving written instructions from the Company.
"(m) Except as otherwise agreed in writing by the Rights Agent and the
Company, the Rights Agent shall have no responsibility to the Company,
any holders of Rights or any stockholder for interest or earnings on
any monies held by the Rights Agent pursuant to this Agreement.
"(n) The Rights Agent shall not be required to take notice or be deemed
to have notice of any event or condition hereunder, including, but not
limited to, a Distribution Date, a Redemption Date, any adjustment of
the Purchase Price or the Common Stock, the existence of an Acquiring
Person, an Adverse Person or a Beneficial Owner or any other event or
condition that may require action by the Rights Agent, unless the
Rights Agent shall be specifically notified in writing of such event or
condition by the Company, and all notices or other requirements
required by this Agreement to be delivered to the Rights Agent must, in
order to be effective, be received at the principal office of the
Rights Agent, and in the absence of such notice so delivered, the
Rights Agent may conclusively assume no such event or condition
exists.";
(d) Section 23 is hereby modified and amended by deleting subparagraph (b)
in its entirety and by reordering subparagraphs (c) and (d) such that they will
hereinafter be subparagraphs (b) and (c), respectively; and
(e) Section 25 is hereby modified and amended by: (i) deleting from the
first sentence the words "sent by" and replacing them with the words "received
by the Company via", (ii) deleting from the second sentence the words "sent by"
and replacing them with the words "received by the Rights Agent via", and (iii)
deleting from the second sentence the address
"The First National Bank of Boston
000 Xxxxxx Xxxxxx
Mail Stop 45-02-16
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Shareholder Services Division"
and replacing it with the following address:
"UMB Bank, N.A.
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Department
(f) Section 26 is hereby modified and amended by deleting in its entirety
the last sentence therein (i.e., the sentence beginning with the words
"Notwithstanding anything contained . . ." and
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ending with the words ". . . with a Transaction Person.").
2. Change of Rights Agent. Pursuant to Section 21 of the Rights
Agreement, FNB hereby resigns as Rights Agent and the Company hereby accepts
such resignation, effective as of 12:01 a.m., Central Standard Time, March 1,
1999. The Company hereby appoints UMB as successor Rights Agent, effective as of
12:01 a.m., Central Standard Time, March 1, 1999, and UMB hereby accepts such
appointment, subject to all the terms and conditions of the Rights Agreement as
amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to the Rights Agreement to be duly executed and their respective
corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, President and
Chief Operating Officer
/s/ Xxxxxxx X. Xxxxxx, III
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Xxxxxxx X. Xxxxxx, III
Vice President, General
Counsel and Secretary
BANKBOSTON, N.A. (formerly The First
National Bank of Boston
ATTEST: By: /s/ Xxxxx Xxxxxx-Xxxx
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Name: Xxxxx Xxxxxx-Xxxx
Title: Director of Client Administration
/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Account Manager
UMB BANK, N.A.
ATTEST: By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: SVP
/s/ K. Xxxxx Xxxxxxx
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Name: K. Xxxxx Xxxxxxx
Title: Assistant Secretary
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