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EXHIBIT (e)(5)
AMENDMENT TO RIGHTS AGREEMENT
Amendment No. 1 (this "Amendment"), dated as of November 6, 2000, to
the Rights Agreement (the "Rights Agreement"), dated December 30, 1998, between
XxxxxxXxxxxx.Xxx Inc., a Delaware corporation then known as First Sierra
Financial, Inc. (the "Company"), and Xxxxxx Trust and Savings Bank, an Illinois
banking corporation (the "Rights Agent"), at the direction of the Company.
WHEREAS, the Company, VerticalNet, Inc., a Pennsyvania corporation
("Parent"), and a Delaware corporation and a wholly owned subsidiary of Parent
("Acquisition"), intend to enter into an Agreement and Plan of Merger (the
"Merger Agreement") pursuant to which, among other things, Acquisition will
commence an exchange offer for shares of common stock of the Company (the
"Offer") and thereafter Acquisition will merge with the Company (the "Merger")
and each remaining share of common stock of the Company will be converted into
the right to receive shares of common stock of Parent, upon the terms and
subject to the conditions of the Merger Agreement;
WHEREAS, on November 5, 2000, the Board of Directors of the Company
resolved to amend the Rights Agreement to render the Rights inapplicable to the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement;
WHEREAS, Section 27 of the Rights Agreement permits the Company from
time to time to supplement and amend the Rights Agreement;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants herein contained, the parties agree as follows:
1. Section 1(n) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"EXPIRATION DATE" shall mean the earlier of (x) the Close of Business
on December 30, 2008, subject to extension as provided in Section 12(c)
of this Agreement, and (y) immediately prior to the acceptance for
payment of shares of Common Stock in the Offer (as such term is
hereinafter defined).
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2. Section 1 of the Rights Agreement is hereby amended by adding the
following new paragraph at the end of Section 1:
"Notwithstanding anything in this Agreement that might otherwise be
deemed to the contrary, neither VerticalNet, Inc. ("Parent") nor any of
its Affiliates or Associates shall be deemed an Acquiring Person and
none of a Distribution Date, Flip-In Event, Flip-Over Event, Stock
Acquisition Date or Triggering Event shall be deemed to occur, in each
such case, by reason of the approval, execution or delivery of the
Agreement and Plan of Merger, dated as of November 6, 2000, including
any amendment or supplement thereto (the "Merger Agreement") among
Parent, a wholly owned subsidiary of Parent and the Company, the
announcement, commencement or consummation of the Offer or the Merger
(as defined in the Merger Agreement) or the consummation of the other
transactions contemplated by the Merger Agreement, including the
execution or delivery of the Tender Agreements, dated as of November 6,
2000 between Parent and certain stockholders of the Company. No such
event shall entitle or permit the holders of Rights to exercise the
Rights or otherwise affect the rights of the holders of Rights,
including giving the holders of the Rights the right to acquire
securities of any party to the Merger Agreement."
3. 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 may be executed in one or more counterparts, all of which shall be
considered one and the same amendment and each of which shall be deemed an
original.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first above written.
Attest: XXXXXXXXXXXX.XXX INC.
By: /s/ E. Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: E. Xxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President Title: Chief Executive Officer
Attest: XXXXXX TRUST AND SAVINGS BANK,
as Rights Agent
By: /s/ Xxxx Kloaf By: /s/ X. Xxxxxxxx
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Name: Xxxx Kloaf Name: X. Xxxxxxxx
Title: Senior Administrative Title: V.P. Trust Operations
Assistant
