AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT ( the "Amendment"), dated as of February 18, 1999 to the
Rights Agreement, dated as of July 23, 1997 (the "Rights Agreement"), by and
between Integrated Technology USA, Inc, a Delaware corporation (the "Company"),
and American Stock Transfer & Trust Company, as Rights Agent (the "Rights
Agent").
Recitals
I. The Company and the Rights Agent have heretofore executed and
entered into the Right Agreement.
II. Empire Resources, Inc., a Delaware corporation ("Empire-US"), and
the Company contemplate entering into an Agreement and Plan of Merger (the
"Merger Agreement") with the intention that, among other things, Empire will
merge with and into the Company. The Board of Directors of the Company has
approved the Merger Agreement.
III. In connection with the Merger Agreement, it is contemplated that
the outstanding common stock of Empire-US will be converted into the right to
receive approximately 9,384,670 shares of Common Stock of the Company, on the
terms and subject to the conditions set forth in the Merger Agreement.
IV. Pursuant to Section 26 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement and amend the Rights
Agreement.
V. The Board of Directors of the Company has determined that the
amendment to the Rights Agreement as set forth herein is necessary and the
Company and the Rights Agent desire to evidence such amendment in writing.
VI. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed,
and the execution and delivery of this Amendment by the Company and the Rights
Agent have been in all respects duly authorized by the Company and the Rights
Agent.
Accordingly, the parties agree as follows:
A. Amendment of Section 1. Section 1 of the Rights Agreement is
supplemented to add the following definitions in the appropriate locations:
"Empire Companies" shall have the meaning ascribed to such term in the
Merger Agreement.
"Merger" shall mean the merger of Empire-US with and into the Company
contemplated under the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, by and
among the Company, the Empire Companies and the Sellers, as it may be amended
from time to time.
"Seller" and "Sellers" shall have the respective meanings ascribed to
such terms in the Merger Agreement."
"Merger Transactions" shall mean the transactions contemplated under
the Merger Agreement.
B. Amendment of the Definition of "Acquiring Person." The definition
of "Acquiring Person" in Section 1 of the Rights Agreement is amended by adding
the following sentence at the end thereof:
"Notwithstanding anything to the contrary contained in this Agreement,
neither the Empire Companies, nor the Sellers nor any of their respective
Affiliates and Associates shall be deemed, individually or collectively, to be
an Acquiring Person by virtue of (i) the execution of the Merger Agreement or
(ii) the consummation of the Merger Transactions."
C. Amendment of the Definition of "Stock Acquisition Date." The
definition of "Stock Acquisition Date" in Section 1 of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as the result of
(i) the execution of the Merger Agreement or (ii) the consummation of the
Merger Transactions."
D. Amendment of the Definition of "Triggering Event." The definition
"Triggering Event" in Section 1 of the Rights Agreement is amended by adding
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
(i) the execution of the Merger Agreement or (ii) the consummation of the
Merger Transactions."
E. Amendment of the Definition of "Distribution Date." The definition
of "Distribution Date" in Section 3(a) of the Rights Agreement is amended by
adding the following sentence at the end of thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as the result of
(i) the execution of the Merger Agreement or (ii) the consummation of the
Merger Transactions."
F. Amendment of Expiration Date of Rights. Section 7(a) of the Rights
Agreement is amended and restated to read in its entirety as follows:
"Subject to Section 7(e) hereof, the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein, including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a)
hereof) in whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed, to the Rights Agent
at the principal office of the Rights Agent designated for such purpose,
together with payment of the aggregate Purchase Price with respect to the total
number of shares of Common Stock (or other securities, cash or other assets, as
the case may be) as to which such surrendered Rights are then exercisable, at
or prior to the earliest of (i) the close of business of July 23, 2007 (the
"Final Expiration Date"), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof, or (iii) the consummation of the Merger (the
earliest of (i), (ii), and (iii) being herein referred to as the "Expiration
Date").
G. Effectiveness. This Amendment shall be deemed effective as of the
date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
H. Miscellaneous. 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 construed in accordance with the 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, each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument. If any provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants, and restrictions of this Amendment shall remain
in full force and effect and shall in no way be effected, impaired or
invalidated.
IN WITNESS THEREOF, the parties hereto have caused this Amendment to
be duly executed and arrested, all as of the date and year first above written.
INTEGRATED TECHNOLOGY USA, INC
/s/ William Spier
--------------------------------------
Name: William Spier
Title: Acting Chief Executive Officer
AMERICAN STOCK TRANSFER &
TRUST COMPANY
/s/ Herbert J. Lemmer
--------------------------------------
Name: Herbert J. Lemmer
Title: Vice President