Exhibit 5
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AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT dated as of February 9, 1996 (this "Amendment") of that
certain Rights Agreement dated as of February 22, 1986 as amended and restated
as of February 19, 1988 (the "Agreement") between FMC CORPORATION, a Delaware
corporation (the "Company"), and XXXXXX TRUST AND SAVINGS BANK, an Illinois
banking corporation (the "Rights Agent"). Terms used but not defined in this
Amendment shall have the meaning set forth in the Agreement.
W I T N E S S E T H
WHEREAS, on February 22, 1986 the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for each share of
Common Stock of the Company outstanding at the close of business on the Record
Date, and authorized the issuance of one Right for each share of Common Stock of
the Company issued between the Record Date (whether originally issued or
delivered from the Company's treasury) and the Distribution Date, each Right
initially representing the right to purchase one one-hundredth of a share of
Junior Participating Preferred Stock, Series A, without par value, of the
Company having the Right, powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights attached to the Agreement as
Exhibit A, upon the terms and subject to the conditions set forth therein; and
WHEREAS, on February 19, 1988, the Company and the Rights Agent, in
accordance with Section 26 of the Agreement, amended and restated the Agreement
in its entirety; and
WHEREAS, on February 9, 1996, the Board of Directors, in accordance
with Section 26 of the Agreement, determined to further supplement and amend the
Agreement in certain respects based on its determination that such supplements
and amendments would, in light of the provisions, purposes and intent of the
Agreement, increase the benefits available to the holders of Common Stock (and,
accordingly, to the holders of Rights whose interests prior to the Distribution
are coincident with the interests of the holders of Common Stock), and such
supplements and amendments are being implemented by executing this Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Section 1(a) of the Agreement is hereby amended by deleting the
percentage "20%" appearing therein and inserting in lieu thereof the percentage
"15%."
2. Section 3(a) of the Agreement is hereby amended by deleting the
percentage "30%" appearing therein and inserting in lieu thereof the percentage
"15%."
3. Section 7(a) of the Agreement is hereby amended by deleting the
date "March 7, 1996" appearing therein and inserting in lieu thereof the date
"March 7, 2006."
4. Section 7(b) of the Agreement is hereby amended by deleting the
figure "$75" appearing therein and inserting in lieu thereof the figure "$300."
5. Section 11(a)(ii)(B) of the Agreement is hereby amended by
deleting each occurrence of the percentage "20%" appearing therein and inserting
in lieu thereof the percentage "15%."
6. Section 23 of the Agreement is hereby amended to add subsections
23(c), 23(d), 23(e) and 23(f) thereto to read as follows:
(c) The Board of Directors of the Company may, as its option, at
any time on or after the first occurrence of a Section 11(a)(ii) Event,
exchange all or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to the provisions
of Section 7(e) hereof) for shares of Common Stock at an exchange ratio of
one share of Common Stock per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after February
9, 1996 (such exchange ratio being hereinafter referred to as the "Exchange
Ratio").
(d) Immediately upon the action of the Board ordering the
exchange of any Rights pursuant to subsection (c) of this Section 23 and
without any further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a holder of
such Rights shall be to receive that number of shares of Common Stock equal
to the number of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly give public notice of any such exchange;
provided, however, that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange. The Company promptly shall
mail a notice of any such exchange to all of the holders of such Rights at
their last addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of the
shares of Common Stock for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of
Section 7(e) hereof) held by each holder of Rights.
(e) In the event that the number of shares of Common Stock which
are authorized by the Company's Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon exercise
of the Rights are not sufficient to permit any exchange of Rights as
contemplated in accordance with this Section 23, the Company shall take all
such action as may be necessary to authorize additional shares of Common
Stock for issuance upon exchange of the Rights.
(f) The Company shall not be required to issue fractions of
shares of Common Stock or to distribute certificates which evidence
fractional shares of Common Stock. In lieu of such fractional shares of
Common Stock, the Company shall pay to the registered holders of Rights
with regard to which such fractional shares of Common Stock would otherwise
be issuable an amount in cash equal to the same fraction of the value of a
whole share of Common Stock. For purposes of this subsection (f), the
value of a whole share of Common Stock shall be the closing price (as
determined pursuant to the provisions of Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of exchange pursuant to this
Section 23.
7. Exhibit B to the Agreement is hereby amended by deleting each
occurrence of the date "March 7, 1996" appearing therein and inserting in lieu
thereof the date "March 7, 2006."
8. Exhibit B to the Agreement is hereby amended by deleting the
figure "$75" appearing therein and inserting in lieu thereof the figure "$300."
9. Exhibit C to the Agreement is hereby amended by deleting each
occurrence of the percentage "20%" appearing therein and inserting in lieu
thereof the percentage "15%".
10. Exhibit C to the Agreement is hereby amended by deleting the
percentage "30%" appearing therein and inserting in lieu thereof the percentage
"15%".
11. Exhibit C to the Agreement is hereby amended by deleting the
figure "$75" appearing therein and inserting in lieu thereof the figure "$300."
12. Exhibit C to the Agreement is hereby amended by deleting the date
"March 7, 1996" appearing therein and inserting in lieu thereof the date "March
7, 2006."
13. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended by this Amendment.
14. Except as set forth herein, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
15. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ATTEST: FMC CORPORATION
By: /s/ Xxxxxx X. Day By: /s/ Xxxxxxx X. Head
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Name: Xxxxxx X. Day Name: Xxxxxxx X. Head
Title: Secretary Title: Vice President
ATTEST: XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President Title: Vice President
