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 Xxxx 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"), Xxxx 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
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 Xxxx 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.
XXXX GROUP, INC.
/s/ D. Xxxxxx Xxxxxxxxxx
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Name: D. Xxxxxx Xxxxxxxxxx
Title: President & CEO
BANKBOSTON, N.A.
/s/ Xxxxxxx X. Xxxxxxx
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Name Xxxxxxx X. Xxxxxxx
Title: Administration Manager
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