Exhibit (e)(5)
AMENDMENT NO. 1 TO STOCKHOLDER PROTECTION RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 to the Stockholder Protection Rights Agreement, dated
as of February 13, 1997 (the "Rights Agreement"), between KLLM Transport
Services, Inc. (the "Company") and Harris Trust and Savings Bank, as Rights
Agent (the "Rights Agent") is dated and effective as of May 25, 2000.
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement, and pursuant to Section 5.4 of the Rights
Agreement, the Company and the Rights Agent may amend or supplement the Rights
Agreement in any respect prior to the close of business on the Flip-in Date (as
defined in the Rights Agreement);
WHEREAS, a Flip-in Date has not occurred; and
WHEREAS, all acts and things necessary to make this Amendment No. 1 a valid
agreement according to its terms have been done and performed, and the execution
and delivery of this Agreement by the Company and the Rights Agent have been in
all respects authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
agreements set forth in the Rights Agreement and this amendment, the parties
hereby agree as follows:
1. The Rights Agreement is hereby modified and amended by adding a
sentence to the end of the definition of "Acquiring Person" in Section 1.1 to
read as follows:
Notwithstanding anything to the contrary, the term "Acquiring Person" shall
not include High Road Acquisition Corp., a Delaware corporation, or its
Subsidiaries, Affiliates, Associates or stockholders (hereinafter,
collectively, "High Road") as a result of the approval, execution,
delivery, performance, exercise of rights pursuant to, amendment or
consummation of any transaction contemplated by the Plan and Agreement of
Merger dated as of the date of this Amendment No. 1 by and among the
Company, High Road Acquisition Corp. and High Road Acquisition Subsidiary
Corp., as it may be amended from time to time (the "Merger Agreement").
2. The Rights Agreement is hereby further modified and amended by adding
an additional paragraph in Section 1.1 at the end of the paragraph defining the
terms "Beneficial Owner," to have "Beneficial Ownership" of, and to
"Beneficially Own" reading as follows:
Notwithstanding anything in the definition of "Beneficial Owner," to have
"Beneficial Ownership" of, or to "Beneficially Own," to the contrary, High
Road shall not be deemed to be the Beneficial Owner of, nor to have
Beneficial Ownership of, or to Beneficially Own, any of the Common Stock of
the Company by reason of the approval, execution, delivery, performance,
exercise of rights pursuant to, amendment or consummation of any
transaction contemplated by the Merger Agreement.
3. The Rights Agreement is hereby further modified and amended by deleting
the definition of "Expiration Time" set forth in Section 1.1 of the Rights
Agreement and substituting therefor the following:
"Expiration Time" shall mean the earliest of (i) the Exchange Time, (ii)
the Redemption Time, (iii) the close of business on the tenth-year
anniversary of the Record Time, (iv) upon the merger of the Company into
another corporation pursuant to an agreement entered into prior to a Flip-
in Date, and (v) immediately prior to the acceptance for purchase of Common
Stock by High Road pursuant to the tender offer described in the Merger
Agreement.
4. The Rights Agreement is hereby further modified and amended by deleting
the definition of "Separation Time" set forth in Section 1.1 of the Rights
Agreement and substituting therefor the following:
"Separation Time" shall mean the close of business on the earlier of (i)
the tenth business day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution adopted prior to the
Separation Time that would otherwise have occurred) after the date of
commencement by any Person (other than High Road) of a tender or exchange
offer the consummation of which would result in such Persons becoming an
Acquiring Person and (ii) the Flip-in Date; provided that if the foregoing
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results in the Separation Time being prior to the Record Time, the
Separation Time shall be the Record Time and provided further, that if any
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tender or exchange offer referred to in clause (i) of this paragraph is
canceled, terminated or otherwise withdrawn prior to the Separation Time
without the purchase of any shares of Common Stock pursuant thereto, such
offer shall be deemed for purposes of this paragraph, never to have been
made. Notwithstanding anything herein to the contrary, a Separation Time
shall not be deemed to have occurred prior to the termination of the Merger
Agreement unless the Board of Directors of the Company receives the prior
written consent of High Road Acquisition Corp., and if the tender offer
described in the Merger Agreement is consummated, the Separation Time shall
be deemed never to have occurred.
5. The Rights Agreement is hereby further amended by adding the following
new Section 5.19 at the end:
5.19 High Road Transaction. Notwithstanding anything in this Agreement to
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the contrary, neither (a) the approval, execution, delivery, performance,
exercise of rights pursuant to, amendment or consummation of any
transaction contemplated by the Merger Agreement or (b) the public
announcement or making of a tender offer by High Road for Common Stock of
the Company, or the acceptance for purchase or purchase of such stock,
pursuant to the Merger Agreement shall cause (i) High Road to become an
Acquiring Person, (ii) a Stock Acquisition Date, Flip-in Date or Flip-over
Transaction or Event to occur, or (iii) the Separation Time to occur.
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6. This Amendment No. 1 to the Rights Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
7. This Amendment No. 1 to the Rights Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed an original, and all such counterparts shall together constitute but one
and the same instrument.
8. Except as expressly set forth herein, this Amendment No. 1 to the
Rights Agreement 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 Rights Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Rights Agreement to be duly executed on and as of the day and year first
above written.
Attest: KLLM TRANSPORT SERVICES, INC.
By: By: /s/ James Leon Young
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Name: Name: James Leon Young
Title: Title: Secretary - Director
Attest: HARRIS TRUST AND SAVINGS BANK
By: /s/ Albert J. Whipkey By: /s/ Michael J. Lang
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Name: Albert J. Whipkey Name: Michael J. Lang
Title: CSR Title: Vice President
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