FIFTH AMENDMENT TO RIGHTS AGREEMENT
This Fifth Amendment (the "Amendment") is made effective as of November 10,
1995 to the Rights Agreement dated as of December 15, 1987 and amended as of
July 31, 1991, as of November 27, 1991, as of December 3, 1992 and as of
November 1, 1993 (collectively, the "Rights Agreement"), between Xxxxxx
Development Company, a Delaware corporation (the "Company"), and The First
National Bank of Boston (the "Rights Agent").
Pursuant to Section 26 of the Rights Agreement, the Company and the Rights
Agent may from time to time supplement or amend the Rights Agreement in
accordance with the provisions of Section 26 thereof. All acts and things
necessary to make this Amendment a valid agreement according to its terms have
been done and performed, and the execution and delivery of this Amendment by the
Company and the Rights Agent have been in all respects authorized by the Company
and the Rights Agent.
In consideration of the foregoing premises and the mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereto agree as
follows:
1. Section 1(a) of the Rights Agreement is hereby modified and amended to
read in its entirety as follows:
(a) "Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person,
shall be the Beneficial Owner of thirty percent (30%) or more of the shares of
Common Stock then outstanding, but shall not include the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of any Subsidiary of
the Company, or any Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such Plan. Notwithstanding the
foregoing, no Person shall become an Acquiring Person as the result of (i) an
acquisition of shares of Common Stock by the Company which, by reducing the
number of shares of Common Stock outstanding, increases the proportionate number
of shares of Common Stock beneficially owned by such Person to thirty percent
(30%) or more of the Common Stock of the Company then outstanding, (ii) an
acquisition by any Person of shares of the Company's Common Stock upon
conversion of outstanding promissory notes originally issued by the Company
pursuant to Note Purchase Agreements dated as of December 11, 1992, as of
February 24, 1993, as of May 28, 1993, as of October 15, 1993 and as of October
29, 1993 into shares of the Company's Common Stock or (iii) an acquisition by
any Person of shares of the Company's Common Stock upon exercise of warrants to
purchase shares of the Company's Common Stock issued pursuant to that certain
Note and Warrant Purchase Agreement dated as of November 10, 1995, provided,
however, that if a Person shall become the Beneficial Owner of thirty percent
(30%) or more of the Common Stock of the Company then outstanding by reason of
purchases of shares of Common Stock by the Company, conversion of the aforesaid
promissory notes or exercise of the aforesaid
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warrants, then the percentage ownership of the Company's Common Stock which
subsequently causes a person to be deemed an "Acquiring Person" shall be
increased to the greatest percentage ownership outstanding immediately upon
consummation of such purchases, conversion of such promissory notes or exercise
of such warrants.
2. Except as expressly amended hereby, the Rights Agreement remains in full
force and effect in accordance with its terms.
3. This Amendment to the Rights Agreement shall be governed and construed in
accordance with the laws of the State of Delaware.
4. This Amendment to the Rights Agreement may be executed in any number of
counterparts, and each of such counterparts shall be for all purposes deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
5. Except as expressly set forth herein, this Amendment to the Rights
Agreement shall not by implication or otherwise, alter, modify, amend or in any
way affect any of the terms, conditions, obligations, covenants or agreements
contained in the Rights Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Rights
Agreement to be duly executed as of the day and year first above written.
XXXXXX DEVELOPMENT COMPANY
BY:________________________
TITLE:_____________________
THE FIRST NATIONAL BANK OF BOSTON
BY:_________________________
TITLE:______________________
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