FIFTH AMENDMENT TO RIGHTS AGREEMENT
This Fifth Amendment is entered into and is effective as of April 29, 1999
by and between Xxxxxxxx Resources, Inc. (the "Company") and American Stock
Transfer & Trust Company, as successor Rights Agent (the "Rights Agent"), with
respect to that certain Rights Agreement dated as of December 10, 1990, as
amended, a copy of which is attached hereto as Exhibit "A" (the "Rights
Agreement").
RIGHTS
A. The Company intends to issue and sell to certain investors (together
with their successors, the "1999 Preferred Holders") an aggregate of 3,000,000
shares of its Series A 1999 Convertible Preferred Stock and an aggregate of
1,051,999 shares of its Series B 1999 Non-Convertible Preferred Stock (the
Series A 1999 Convertible Preferred Stock and the Series B 1999 Non-Convertible
Preferred Stock are collectively referred to hereafter as the "Series 1999
Preferred Stock") pursuant to the terms of a Stock Purchase Agreement dated as
of April 29, 1999 between the Company, Trust Company of the West and TCW Asset
Management Company in the capacities set forth therein, Pacific Life Insurance
Company and Aquila Energy Capital Corporation (the "Stock Purchase Agreement").
Capitalized terms used herein but not otherwise defined herein shall have
meaning ascribed thereto in the Rights Agreement as in effect on the date
hereof.
B. Pursuant to the Certificate of Designation for the Series 1999 Preferred
Stock, the Company may also issue in connection with a redemption of some of the
Series 1999 Preferred Stock certain Stock Appreciation Rights ("SAR's").
C. As a condition to their purchase of the shares of Series 1999 Preferred
Stock, the 1999 Preferred Holders have required that the Rights Agreement be
amended to exclude, under certain conditions, the Series 1999 Preferred Stock,
the Common Stock issued by way of conversion or redemption of, or payment of any
dividend on the Series 1999 Preferred Stock or in satisfaction of amounts owing
under the SAR's (collectively, the "Conversion Shares"), the 1999 Preferred
Holders and certain other Persons from certain provisions of the Rights
Agreement.
D. The Company has determined that the offer and sale of the shares of
Series 1999 Preferred Stock are in the best interest of the Company and all of
its stockholders, and is therefore willing to so amend the Rights Agreement.
AGREEMENT
NOW, THEREFORE, pursuant to Section 27 of the Rights Agreement, the Company
hereby supplements and amends, and directs the Rights Agent to supplement and
amend, the Rights Agreement as follows:
1. Acquiring Person and Adverse Person
1.1 Notwithstanding any provision of the Rights Agreement which could
be construed to the contrary, all shares of Series 1999 Preferred Stock, all
SAR's and all Conversion Shares held by:
(a) any 1999 Preferred Holder;
E-27
(b) any Affiliate, fund participant, trust beneficiary, or
limited partner of any 1999 Preferred Holder;
(c) any party to any investment management or other similar
agreement with Trust Company of the West, a California trust company
("Trustco") or TCW Asset Management Company, a California corporation
("Tamco"), listed in the definition of "TCW" in the Stock Purchase
Agreement or any fund, foundation, trust or other Person for whose
benefit any such agreement with Trustco or Tamco relates or any
trustee, custodian or nominee of or for any such Person; and
(d) any Person (including any "group" as defined in the
Exchange Act) who acquires all shares of Series 1999 Preferred Stock
or Conversion Shares then held by any of the Persons described in
clauses (a), (b) or (c) above, directly from such Person (provided
that the transferor of such shares shall have, prior to such transfer,
given the Company the right of first offer described in Section 1.2
below).
shall be excluded from any calculation made for the purpose of determining
whether the holder of such shares is an "Acquiring Person" or an "Adverse
Person" for any purpose under the Rights Agreement.
1.2 No transferee of any shares of Series 1999 Preferred Stock or
Conversion Shares shall be entitled to the exclusions set forth in Section 1.1
unless (i) at least fifteen (15) business days prior to any such transfer the
transferor of such shares shall have delivered a written notice to the Company
offering to sell such shares to the Company or its designee for cash at the same
price and on the same terms as offered to the proposed transferee and (ii) the
Company or its designee shall have failed to accept such offer within seven (7)
business days of the Company's receipt thereof and to close such sale and
purchase on the scheduled closing date set forth in the terms offered.
2. Miscellaneous
2.1 Subject to the terms set forth herein, the Rights Agreement shall
remain in full force and effect.
2.2 This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
E-28
This Fifth Amendment to Rights Agreement is hereby executed as of the date
first above written.
Attest: XXXXXXXX RESOURCES, INC.,
a Nevada corporation
By: /s/ XXXXXX X. XXXXX By: /s/ M. XXX XXXXXXX
----------------------- ----------------------
Xxxxxx X. Xxxxx M. Xxx Xxxxxxx
Secretary President and Chief Executive Officer
AMERICAN STOCK TRANSFER
& TRUST COMPANY,
as Rights Agent
By: /s/ XXXXXXX X. XXXXXX
-------------------------
Xxxxxxx X. Xxxxxx
Vice President and General Counsel
E-29
