Kerr Group, LLC – ‘SC 14D9’ on 7/8/97 re: Kerr Group, LLC – EX-5

As of:  Tuesday, 7/8/97   ·   Accession #:  912057-97-23653   ·   File #:  5-34081

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Tender-Offer Solicitation/Recommendation Statement   —   Schedule 14D-9
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 14D9     Tender-Offer Solicitation/Recommendation Statement    39    187K 
 2: EX-1        Agreement & Plan of Merger                            56    180K 
 3: EX-2        Company Option Agreement                              11     36K 
 4: EX-3        Guarantee                                              2     13K 
 5: EX-4        Rights Agreement                                      70    193K 
 6: EX-5        Amendment No 1. to the Rights Agreement                5     15K 
 7: EX-6        Amendment to the Amended & Restated Employment Agm     5     15K 
 8: EX-7        Stockholders Letter                                    2±     9K 
 9: EX-8        Press Release                                          1      8K 
10: EX-9        Opinion of Cibc Wood Gundy                             3     16K 

EX-5   —   Amendment No 1. to the Rights Agreement

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                                                                   Exhibit 5

     AMENDMENT NO. 1 TO RIGHTS AGREEMENT

    AMENDMENT NO. 1 TO RIGHTS AGREEMENT, dated as of July 1, 1997 (the
"Amendment"), by and between Kerr Group, Inc., a Delaware corporation (the      
"Company"), and BankBoston, N.A. (formerly the First National Bank of Boston), a
national banking association (the "Rights Agent").                              

      RECITALS

   WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of July 25, 1995 (the "Rights Agreement");                   

        WHEREAS, Fremont Acquisition Company LLC, a Delaware limited liability
company (the "Parent"), Kerr Acquisition Corporation, a Delaware corporation and
a wholly-owned subsidiary of Parent (the "Purchaser"), and the Company have     
entered into an Agreement and Plan of Merger, dated as of July 1, 1997 (the     
"Agreement and Plan of Merger"), pursuant to which Purchaser will commence a    
tender offer (the "Offer") for all outstanding shares of the Company's common   
stock, and for all outstanding shares of the Company's $1.70 Class B Cumulative 
Convertible Preferred Stock, Series D, and, following consummation of the Offer,
Purchaser will merge with and into the Company (the "Merger");                  

      WHEREAS, the Board of Directors of the Company (including a majority
of the Continuing Directors (as defined in the Rights Agreement)) has approved  
the Agreement and Plan of Merger, the Offer and the Merger; and                 
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Board of Directors 
of the Company has determined that an amendment to the Rights Agreement as set  
forth herein is necessary and desirable to reflect the foregoing and the Company
and the Rights Agent desire to evidence such amendment in writing.              

Accordingly, the parties agree as follows:                                      

       1.   AMENDMENT OF SECTION 1(A).  Section 1(a) of the Rights Agreement
is hereby amended to add the following sentence at the end thereof:             

     "Notwithstanding anything in this Rights Agreement to the contrary,
neither Parent nor Purchaser shall be deemed to be an "Acquiring Person"
   solely by virtue of (i) the announcement or making of the Offer (as defined
in the Agreement and Plan of Merger), (ii) the acquisition of the Shares
 (as defined in the Agreement and Plan of Merger) pursuant to the Offer or
the Merger (as defined in the Agreement and Plan of Merger), (iii) the  
  execution of the Agreement and Plan of Merger, or (iv) the consummation of

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 the other transactions contemplated by the Agreement and Plan of Merger."

       2.   AMENDMENT OF SECTION 1(O).  Section 1(o) of the Rights Agreement
is hereby amended by adding the following sentence at the end thereof:          

       "Notwithstanding anything in this Rights Agreement to the contrary, a
 Distribution Date shall not be deemed to have occurred solely as a result
 of:  (i) the announcement or making of the Offer, (ii) the acquisition of
  the Shares pursuant to the Offer or the Merger, (iii) the execution of the
Agreement and Plan of Merger, or (iv) the consummation of the other     
transactions contemplated in the Agreement and Plan of Merger."         

       3.   SECTIONS 1(QQ).  Section 1(qq) of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:                    

       "Notwithstanding anything in this Rights Agreement to the contrary, a
  Triggering Event shall not be deemed to have occurred as a result of:  (i)
   the announcement or making of the Offer, (ii) the acquisition of the Shares
 pursuant to the Offer or the Merger, (iii) the execution of the Agreement
and Plan of Merger, or (iv) the consummation of the other transactions  
contemplated in the Agreement and Plan of Merger."                      

    4.   SECTIONS 1(SS), (TT) AND (UU).  The following subsections are
hereby added after Section 1(rr) of the Rights Agreement:                       

        "(ss) "Agreement and Plan of Merger" shall mean the Agreement and Plan
 of Merger dated as of July 1, 1997 by and among Parent, Purchaser and the
Company, as it may be amended from time to time.                        

       (tt) "Parent" shall mean Fremont Acquisition Company, LLC, a Delaware
limited liability company.                                              

      (uu) "Purchaser" shall mean Kerr Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent."                   

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5.   AMENDMENT OF SECTION 1(GG).  Section 1(gg) of the Rights 
Agreement is hereby amended by adding the following sentence at the end thereof:

     "Notwithstanding anything in this Rights Agreement to the contrary,
(i) the announcement or making of the Offer, (ii) the acquisition of the
Shares by Parent or Purchaser pursuant to the Offer or the Merger, (iii)
   the execution of the Agreement and Plan of Merger, or (iv) the consummation
   of the other transactions contemplated in the Agreement and Plan of Merger,
   shall not be deemed to be a Section 11(a)(ii) Event and shall not cause the
Rights to be adjusted or exercisable under this Agreement."             

6.   AMENDMENT OF SECTION 1(II).  Section 1(ii) of the Rights 
Agreement is hereby amended by adding the following sentence at the end thereof:

     "Notwithstanding anything in this Rights Agreement to the contrary,
(i) the announcement or making of the Offer, (ii) the acquisition of the
Shares by Parent or Purchaser pursuant to the Offer or the Merger, (iii)
   the execution of the Agreement and Plan of Merger, or (iv) the consummation
   of the other transactions contemplated in the Agreement and Plan of Merger,
   shall not be deemed to be a Section 13 Event and shall not cause the Rights
to be adjusted or exercisable under this Agreement."                    

7.   AMENDMENT OF SECTION 7(A).  Section 7(a) of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:             

     "Notwithstanding anything in this Rights Agreement to the contrary,
the Rights shall automatically expire upon the acceptence of Shares for 
  payment pursuant to the Offer in accordance with the Agreement and Plan of
 Merger and that the rights shall cease to be exercisable upon the earlier
of (i) the close of business on August 4, 2005 (the "Final Expiration   
Date"), (ii) the time at which the Rights are redeemed as provided in   
  Section 23 of this Rights Agreement, or (iii) the acceptance of Shares for
  payment pursuant to the Offer in accordance with the Agreement and Plan of
   Merger, if such acceptance occurs (the earlier of (i), (ii) and (iii) being
herein referred to as the "Expiration Date")."                          

     8.   EFFECTIVENESS.  This Amendment shall be deemed effective as of
the date hereof.  Except as amended hereby, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected by this Amendment.      

      9.   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 and construed in accordance                                         

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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.                                 

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EXECUTED as of the date set forth above.                      

KERR GROUP, INC.                

/s/ D. Gordon Strickland      
------------------------------  
Name:  D. Gordon Strickland     
Title: President & CEO          

BANKBOSTON, N.A.                

/s/ Michael J. Lapolla        
------------------------------  
Name   Michael J. Lapolla       
Title: Administration Manager   

     -5-

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SC 14D9’ Filing		Date		First		Last			Other Filings
		8/4/05		3
Filed on:		7/8/97							SC 13D,  SC 14D1
		7/1/97		1		2			8-K
		7/25/95		1
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