Exhibit 5
[Form of Amendment No. 2 to Rights Agreement]
This Amendment No. 2, dated December , 1997, amends and
supplements the Rights Agreement, dated as of December 8, 1987, as
amended (the "Rights Agreement"), between XXXXXX CORPORATION, a
Delaware corporation (the "Company"), THE CHASE MANHATTAN BANK, N.A.,
a national banking association. All terms used herein, unless
otherwise defined, shall have the same meanings herein as set forth in
Rights Agreement.
W I T N E S S E T H:
WHEREAS, the Company has determined in accordance with
Section 26 of the Rights Agreement that it is desirable to amend
certain provisions of the Rights Agreement as described herein.
NOW THEREFORE, the parties hereby agree as follows:
1. Clause (a) of Section 7 is hereby amended to delete the
date "December 23, 1997" where it appears in such paragraph and insert
in its place the date "December 23, 2002."
2. Exhibit B to the Rights Agreement is hereby amended and
restated to read in its entirety as set forth in Attachment 1 hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to the Rights Agreement to be duly executed, all as of
the day and year first above written.
XXXXXX CORPORATION
By: -------------------------------
Name:
Title:
MELLON SECURITIES TRUST COMPANY
By: -------------------------------
Name:
Title:
Attachment 1
[Form of Right Certificate]
Certificate No. W- Rights
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NOT EXERCISABLE AFTER DECEMBER 23, 2002 OR EARLIER IF
REDEEMED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY AND UNDER CERTAIN OTHER
CIRCUMSTANCES, AT $.03 PER RIGHT ON THE TERMS SET FORTH OR
REFERRED TO IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING
PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF (AS DEFINED
IN THE RIGHTS AGREEMENT) MAY BECOME NULL AND VOID. [THE
BENEFICIAL OWNER OF THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE IS AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON. ACCORDINGLY, THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE OR
BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e)
OF THE RIGHTS AGREEMENT.](FN*)
Right Certificate
XXXXXX CORPORATION
This certifies that ,
or registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Rights
Agreement dated as of December 8, 1987 (the "Rights Agreement")
between Xxxxxx Corporation, a Delaware corporation ("Company"), and
The Chase Manhattan Bank, N.A., a national banking association (the
"Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement)
and prior to 5:00 P.M. (New York City time) on December 23, 1997 at
the principal office of the Rights Agent, or its successors as Rights
Agent, in New York, New York, one one-hundredth (1/100) of a fully
paid nonassessable share of the Series A Junior Participating
Preferred Stock (the "Preferred Stock") of the Company at a purchase
price of $30 as the same may from time to time be adjusted in
accordance with the Rights Agreement (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed.
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[FN]
* The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
As provided in the Rights Agreement, the Purchase Price
and the number of shares of Preferred Stock which may be purchased
upon the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of
certain events and, upon the happening of certain events, securities
other than shares of Preferred Stock, or other property, may be
acquired upon exercise of the Rights evidenced by this Right
Certificate, as provided by the Rights Agreement.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby
made for a full description of the rights, limitations of rights,
obligations, duties and immunities of the Rights Agent, the Company
and the holders of record of the Right Certificates. Copies of the
Rights Agreement are on file at the principal executive office of the
Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the Rights
Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the
holder of record to purchase a like aggregate number of shares of
Preferred Stock as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof, another
Right Certificate or Right Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the Company at
its option or under certain other circumstances at a redemption price
of $.03 per Right.
No fractional shares of Preferred Stock (other than
fractions which are integral multiples of one-hundredth of a share)
are required to be issued upon the exercise of any Right or Rights
evidenced hereby, and in lieu thereof a cash payment may be made, as
provided in the Rights Agreement. As provided in the Rights Agreement,
fractions of shares of Preferred Stock may, at the election of the
Company, be evidenced by depositary receipts.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
Preferred Stock or of any other securities of the Company which may at
any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action or to receive notice
of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced
by this Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of ___________, 19__.
ATTEST: XXXXXX CORPORATION
By:
------------------------------- -----------------------------
Secretary Title:
Countersigned:
[RIGHTS AGENT]
By
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Authorized Signature
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificates.)
FOR VALUE RECEIVED
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hereby sells, assigns and transfers unto
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(Please print name and address of transferee)
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Rights evidenced by this Right Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and
appoint ____________________ Attorney to transfer the within Right
Certificate on the books of the within-named Company, with full power
of substitution.
Dated: ______________ 19__
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Signature
Signature Guaranteed:
NOTICE
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The signature to the foregoing Assignment must correspond
to the name as written upon the face of this Right Certificate in
every particular, without alternation or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
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(To be executed if registered holder desires to
exercise the Right Certificate.)
To XXXXXX CORPORATION:
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to
purchase the shares of Preferred Stock issuable upon the exercise of
such Rights and requests that certificates for such share(s) be issued
in the name:
Please insert social security
or other identifying number
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(Please print name and address)
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If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining
of such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
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(Please print name and address)
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Dated ______________, 19__
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Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this Right
Certificate)
Signature Guaranteed:
