1
EXHIBIT 11
FIFTH AMENDMENT TO XXXXX EQUITY, INC.
COMMON STOCK RIGHTS AGREEMENT
DATED AS OF NOVEMBER 23, 1999
This Fifth Amendment to the Common Stock Rights Agreement dated as of
November 23, 1999 (the "Amendment"), is between Xxxxx Equity, Inc., a Florida
corporation (the "Company") and Norwest Bank Minnesota, National Association
("Norwest"), and amends the Common Stock Rights Agreement dated as of September
30, 1990 (as amended and in effect on the date hereof, prior to giving effect to
the Amendment, the "Amended Rights Agreement").
W I T N E S S E T H:
WHEREAS, on September 30, 1990, the Company entered into a rights
agreement (the "Rights Agreement") with the Wachovia Bank and Trust Company,
N.A., a national banking association, as Rights Agent under the Rights Agreement
authorizing the issuance of rights to purchase on the terms and subject to the
provisions of the Rights Agreement, shares of the Company's Common Stock; and
WHEREAS, on March 22, 1993, the Company entered into the First
Amendment to the Rights Agreement with First Union National Bank of North
Carolina, a national banking association ("First Union"), as successor Rights
Agent; and
WHEREAS, pursuant to Section 21 of the Rights Agreement, First Union
has advised the Company that it desires to resign as Rights Agent under the
Amended Rights Agreement; and
WHEREAS, Norwest has agreed to become the Rights Agent under the
Amended Rights Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises
herein set forth and other good and valid consideration the sufficiency hereof
and thereof being hereby acknowledged, the parties hereto hereby agree as
follows:
1. The Company does hereby appoint Norwest as the Rights Agent
under the Amended Rights Agreement to be the successor to
First Union, the successor Rights Agent named under the First
Amendment to the Rights Agreement, and Norwest does hereby
accept the appointment as Rights Agent under the Amended
Rights Agreement and agrees to all of the provisions contained
in the Amended Rights Agreement and to perform all of
10
2
the duties and other acts and assume all of the obligations
and responsibilities which may be required of it as Rights
Agent under the Amended Rights Agreement except that the
Amended Rights Agreement shall be amended as follows:
(a) In Section 3(c), the reference in the legend contained therein
to First Union National Bank of North Carolina, a national
banking association, as Rights Agent under the Rights
Agreement, is hereby deleted and substituted therefore is
Norwest Bank Minnesota, National Association, as the Rights
Agent under the Amended Rights Agreement.
(b) In Section 26 concerning the notice to the Rights Agent, the
reference to First Union National Bank of North Carolina, Two
First Xxxxx Xxxxxx, X-00, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000, Attention: Shareholder Services
Group, is hereby deleted, and substituted therefore is the
following:
Mailing Address: Street (or Courier) Address:
---------------- ----------------------------
Norwest Bank Minnesota, N.A. Norwest Bank Minnesota, N.A.
Shareowner Services Shareowner Services
P. O. Box 64854 000 Xxxxx Xxxxxxx Xxxxxxxx
Xx. Xxxx, XX 00000-0000 Xxxxx Xx. Xxxx, XX 00000
(c) In the Form of Rights Certificate which is Exhibit A to the
Rights Agreement, the references to First Union National Bank
of North Carolina as the Rights Agent and as the
Counter-signatory are hereby deleted and substituted therefore
is the Norwest Bank Minnesota, National Association.
2. Except for the amendments set forth in paragraph 1 of this
Agreement, all of the provisions, covenants, rights and
obligations contained in the Amended Rights Agreement shall
continue in full force and effect and be binding upon the
parties hereto the same as though they were contained in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and set their respective hands and seals all as of the
date and year first above written.
11
3
XXXXX EQUITY, INC.
By: /s/ W. Xxxxxxxx Xxxxxxx
---------------------------------
W. Xxxxxxxx Xxxxxxx
Vice President/Administration
and Corporate Secretary
Attest:
By: /s/ Xxxx X. XxXxxx
---------------------------------
Title: Assistant Secretary
NORWEST BANK MINNESOTA, N.A.,
As Rights Agent
/s/ Xxxxx X. Xxxxxxxxx
By:
---------------------------------
Xxxxx X. Xxxxxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title: Assistant Secretary
12
