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FOURTH AMENDMENT TO RIGHTS AGREEMENT
THIS FOURTH AMENDMENT TO RIGHTS AGREEMENT (this "Agreement") is
entered into by Serv-Tech, Inc., a Texas corporation (the "Company"), and
American Stock Transfer & Trust Company (the "Rights Agent"), effective upon
the execution of the Merger Agreement (as defined below).
WHEREAS, the Company and Society National Bank, as the original
rights agent under the Agreement (as defined below), and/or the Rights Agent
entered into that certain Rights Agreement dated as of November 16, 1995, that
certain First Amendment to Rights Agreement effective as of November 27, 1995,
that certain Second Amendment to Rights Agreement effective as of January 1,
1997, and that certain Third Amendment Agreement to Rights effective as of
January 1, 1997 (collectively, the "Agreement"), and all capitalized terms not
defined herein shall have the meanings given to such terms in the Agreement;
and
WHEREAS, in order to facilitate the transactions contemplated by the
Merger Agreement, the Company and the Rights Agent desire to amend the
Agreement as provided herein pursuant to Section 26 of the Agreement, which
authorizes the Company and the Rights Agent, if the Company so directs, to
supplement or amend any provision of the Agreement without the approval of any
holders of the Company's Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth the parties hereto agree as follows:
1. Section 1(a) of the Agreement is hereby amended and restated in
its entirety to read as follows:
(a) "Acquiring Person" shall mean any Person (as hereinafter
defined) who or which, together with all Affiliates and Associates (as
such terms are hereinafter defined) of such Person, shall be the
Beneficial Owner (as hereinafter defined) of 15% or more of the shares
of Common Stock then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary (as hereinafter defined) of the Company,
(iii) any employee benefit plan of the Company or of any Subsidiary of
the Company, (iv) any Person organized, appointed or established by
the Company for or pursuant to the terms of any such plan, (v) any
Person who notifies the Board of Directors in writing within five days
after the acquisition making such Person the Beneficial Owner of 15%
or more of the shares of Common Stock then outstanding that such
acquisition was inadvertent, and who within two days after such
notification divests a sufficient number of shares of Common Stock
so that such Person is no longer the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding ("Inadvertent
Acquisition"), (vi) an underwriter that acquires such percentage of
the shares of Common Stock pursuant to a customary agreement in a
public offering of such Common Stock, or (vii) Philip Environmental
Inc., an Ontario, Canada corporation ("Philip"), or any Affiliate of
Philip, for so long as neither Philip nor
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any Affiliate of Philip is the Beneficial Owner of more than 5%
of the issued and outstanding capital stock of the Company other than
capital stock of the Company of which Philip or any Affiliate of
Philip is the Beneficial Owner soley by reason of the merger of ST
Acquisition Corporation, a Texas corporation and wholly-owned
subsidiary of Taro Aggregates Ltd., an Ontario, Canada corporation and
wholly-owned subsidiary of Philip ("Taro"), with and into the Company
under the terms of the Agreement and Plan of Merger dated March 5,
1997, by and among Philip, Taro, ST Acquisition Corporation and the
Company, as amended from time to time (the "Merger Agreement"). If any
of these exceptions to the definition of an Acquiring Person apply,
then the Person to whom the exception pertains shall not be an
Acquiring Person for any purpose under this Agreement, including,
without limitation, with respect to the definitions of Distribution
Date, Section 11(a)(ii) Event, Section 13 Event, Stock Acquisition
Date and Triggering Event.
Notwithstanding any provision of this Agreement to the contrary,
(1) no Distribution Date, Section 11(a)(ii) Event, Section 13 Event,
Stock Acquisition Date or Triggering Event shall be deemed to have
occurred, (2) neither Philip nor any Affiliate of Philip shall be
deemed to have become an Acquiring Person, and (3) no holder of Rights
shall be entitled to exercise such Rights under, or be entitled to any
other rights pursuant to, this Agreement or any Rights issued
hereunder soley by reason of (y) the approval, execution, delivery or
performance of the Merger Agreement or (z) the consummation of the
transactions contemplated by the Merger Agreement, including the
Merger (as defined in the Merger Agreement); provided, however, that
in the event Philip or any Affiliate of Philip becomes the Beneficial
Owner after the date hereof of any shares of Common Stock in any
manner other than as set forth in Section 1(a)(vii) above, the
provisions of this sentence (other than this proviso) shall not be
applicable; and provided, further, that, notwithstanding Section 26 of
this Agreement and except to the extent that any supplement or
amendment to this Agreement would constitute a material breach of the
Merger Agreement, any supplement or amendment to this Agreement can,
in the Company's discretion, have retroactive effect with respect to
Philip and its Affiliates, regardless of whether Philip and its
Affiliates consent, and regardless of whether the supplement or
amendment has an adverse affect on Philip or its Affiliates.
2. Except as specifically provided herein, the Agreement shall
continue in full force and effect in accordance with its terms without
amendment or modification.
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IN WITNESS WHEREOF, the undersigned parties hereby execute this
Amendment on this 5th day of March, 1997, and agree to be bound by this
Amendment effective immediately after the execution of the Merger Agreement.
ATTEST: SERV-TECH, INC.
By: /s/ FRANK PERRONE By: /s/ DAVID P. TUSA
Name: Frank Perrone Name: David P. Tusa
Title: Secretary Title: Senior Vice President
ATTEST: AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: /s/ SUSAN SILBER By: /s/ HERBERT J. LEMMER
Name: Susan Silber Name: Herbert J. Lemmer
Title: Assistant Secretary Title: Vice President
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