EXHIBIT 5
FOURTH AMENDMENT
TO
FIRST AMENDED AND RESTATED
COMMON SHARES RIGHTS AGREEMENT
This Fourth Amendment, dated as of November 1, 1995 (the "Amendment" ), is
to the First Amended and Restated Common Shares Rights Agreement dated as of
December 14, 1990, as amended to date (the "Agreement"), between Sun
Microsystems, Inc., a Delaware corporation (the "Company") and BancBoston State
Street Investors (the "Rights Agent").
WHEREAS, on November 1, 1995, the Board of Directors of the Company
determined that it is in the best interests of the Company and its stockholders
to amend the Agreement in order to increase the "Purchase Price", as defined
pursuant to the terms of the Agreement, from $100.00 to $200.00 (without giving
effect to the Company's recent two-for-one stock split declared by the Board of
Directors of the Company on November 2, 1995 in the form of a stock dividend
issuable to stockholders of record on November 20, 1995 (the "Recent Stock
Split")), such Purchase Price is subject to adjustment from time to time as a
result of certain events described in the Agreement, including the Recent Stock
Split, and the Rights Agent has agreed to such amendment; and
WHEREAS, the Company and the Rights Agent have determined that, pursuant to
Section 27 of the Agreement, the Agreement may be amended as set forth herein
without the approval of the holders of the Rights (as defined in the Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the Agreement is hereby amended as follows:
1. Section 7(b) of the Rights Agreement is hereby amended in its entirety
to read as follows:
"(b) The Purchase Price for each Common Share issuable pursuant to the
exercise of a Right shall initially be $200.00, shall be subject to
adjustment from time to time as provided in Sections 11 and 13 hereof
and shall be payable in lawful money of the United States of America
in accordance with paragraph (c) below."
2. All other terms and conditions of the Agreement, including the Exhibits
thereto, shall remain in full force and effect.
3. This Amendment may be executed in any number of counterparts, each of
such counter parts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on this 3rd day of November, 1995.
SUN MICROSYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President, General Counsel
and Secretary
BANCBOSTON STATE STREET INVESTOR
SERVICES (formerly, THE FIRST NATIONAL
BANK OF BOSTON)
By: /s/ XXXXXXXX X. XXXXXXXX
------------------------------------
Name: XXXXXXXX X. XXXXXXXX
Title: Senior Accounts Manager
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COMPLIANCE CERTIFICATE
The undersigned, Xxxxxxx X. Xxxxxx, hereby certifies as follows:
1. I am the Vice President and General Counsel of Sun Microsystems, Inc.
(the "Company").
2. The Fourth Amendment dated as of November 1, 1995 to the First Amended
and Restated Common Shares Rights Agreement dated as of December 14, 1990 is in
compliance with the terms of Section 27 of the First Amended and Restated Common
Shares Rights Agreement dated as of December 14, 1990 by and between the Company
and The First National Bank of Boston, as Rights Agent.
SUN MICROSYSTEMS, INC.
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
and General Counsel
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