AMENDMENT NO. 3 TO RIGHTS AGREEMENT
Exhibit 99.5
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
The Rights Agreement, dated as of April 25, 1996, as amended (the “Rights Agreement”), by and
between Xxxx Corporation, a Virginia corporation (the “Company”), and The Bank of New York, as
Rights Agent, is hereby amended as follows (this “Amendment”). Capitalized terms used but not
defined herein shall have the respective meanings ascribed thereto in the Rights Agreement.
RECITALS:
A. The Board of Directors of the Company has determined that the Rights Agreement should be
amended as set forth herein.
B. Pursuant to Section 27 of the Rights Agreement, prior to the time that any Person becomes
an Acquiring Person, the Company may from time to time supplement or amend the Rights Agreement
without the approval of any holders of Right Certificates in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be defective or inconsistent with
any other provisions herein, or to make any other provisions with respect to the Rights which the
Company may deem necessary or desirable, any such supplement or amendment to be evidenced by a
writing signed by the Company and the Rights Agent.
AGREEMENT:
1. Amendments to Section 1.
(a) Section 1 of the Rights Agreement is hereby amended by adding the following
subsection at the end of that Section:
“(t) ‘Investment Agreement’ shall mean the Investment Agreement, dated as of July
25, 2007, as it may be amended from time to time, among Centerbridge Capital
Partners, L.P., a Delaware limited partnership (‘Centerbridge’), CBP Parts
Acquisition Co. LLC, a newly formed Delaware limited liability company (the
‘Purchaser’), and the Company.”
(b) Section 1 of the Rights Agreement is hereby further amended by adding the following
paragraph at the end of that Section:
“Notwithstanding anything in this Agreement to the contrary, none of Centerbridge,
the Purchaser, the Series B Investors (as such term is defined in the Investment
Agreement), any of their Affiliates or Associates or any of their permitted
assignees or permitted transferees shall be deemed an Acquiring Person, and none of
a Distribution Date or a Shares Acquisition Date shall be deemed to occur or to have
occurred, and the Rights will not become separable, distributable, unredeemable,
triggered or exercisable, in each such case, solely by reason or as a result of (i)
the approval, execution, delivery or performance of the Investment Agreement, (ii)
any purchases of Series A Shares and Series B Shares (as such terms are defined in
the Investment Agreement) pursuant to the terms of the Investment Agreement, (iii)
the conversion of any Series A Shares or Series B
Shares into Common Shares pursuant to their terms, (iv) the exercise of preemptive
rights pursuant to Section 7 of the Certificate of Designations (as defined in the
Investment Agreement), or (v) the announcement of any of the foregoing.”
2. Amendment to Section 2. Section 2 of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
“Appointment of Rights Agent. The Company hereby appoints the Rights Agent to
act as agent for the Company in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company may from time to time appoint
such co-Rights Agents as it may deem necessary or desirable.”
3. Amendment to Section 18. Section 18 of the Rights Agreement is hereby amended by
adding the following sentence at the end of that Section:
“Anything to the contrary notwithstanding, in no event shall the Rights Agent be liable for
special, punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Rights Agent has been
advised of the likelihood of such loss or damage.”
4. Amendment to Section 31. Section 31 of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
“Governing Law. This Amendment shall be deemed to be a contract made under the
laws of the Commonwealth of Virginia and for all purposes shall be governed by and construed
in accordance with the laws thereof applicable to contracts to be made and performed
entirely within Virginia; provided, however, that all provisions regarding
the rights, duties and obligations of the Rights Agent shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.”
5. Exhibits. Exhibits A and B to the Rights Agreement shall be deemed amended in a
manner consistent with this Amendment.
6. Rights Agreement Otherwise Unamended. The Rights Agreement shall not otherwise be
supplemented or amended by virtue of this Amendment, but shall remain in full force and effect.
This Amendment, together with the provisions of the Rights Agreement not amended hereby, constitute
the entire agreement between the parties hereto with respect to the subject matter hereof and
supersede all other prior agreements, whether written or oral, between the parties hereto regarding
the subject matter hereof.
7. Effectiveness. This Amendment shall be effective as of, and immediately prior to,
the time that the Bankruptcy Court (as defined in the Investment Agreement) approves the Investment
Agreement (the “Effective Time”), and all references to the Rights Agreement shall, from and after
such Effective Time, be deemed to be references to the Rights Agreement as amended hereby. The
Company shall promptly notify the Rights Agent in writing of the Effective Time.
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8. Certification. The undersigned officer of the Company, being duly authorized on
behalf of the Company, hereby certifies in his or her capacity as an officer on behalf of the
Company to the Rights Agent that this Amendment is in compliance with the terms of Section 27 of
the Rights Agreement.
9. Direction to Rights Agent. By its execution and delivery hereof, the Company
directs the Rights Agent to execute this Amendment.
10. Governing Law. This Amendment shall be deemed to be a contract made under the
laws of the Commonwealth of Virginia and for all purposes shall be governed by and construed in
accordance with the laws thereof applicable to contracts to be made and performed entirely within
Virginia; provided, however, that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts made and to be performed entirely within such State.
11. Counterparts. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original and all of such
counterparts shall together constitute but one and the same instrument.
12. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the Effective Time.
XXXX CORPORATION |
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By: | /s/ Xxxxxxx X. Xxxxx | |||
Name: | Xxxxxxx X. Xxxxx | |||
Title: | Chairman and Chief Executive Officer | |||
THE BANK OF NEW YORK |
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By: | /s/ Xxxx X. Xxxxxxxxx | |||
Name: | Xxxx X. Xxxxxxxxx | |||
Title: | Vice President | |||