EXHIBIT 3.5
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
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Amendment No. 2, dated as of November 26, 1997 ("Amendment No. 2"), to the
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Rights Agreement, dated as of June 9, 1995, and as amended by Amendment No. 1,
dated as of February 12, 1996 ("Agreement"), between BWAY Corporation, a
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Delaware corporation f/k/a Brockway Standard Holdings Corporation (the
"Company"), and Harris Trust and Savings Bank, an Illinois banking corporation
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(the "Rights Agent"). Capitalized terms not otherwise defined herein have the
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meaning given to such terms in the Agreement.
RECITAL
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Pursuant to its authority under Section 26(a) of the Agreement, the Board
of Directors of the Company has authorized and approved an amendment to the
Agreement to decrease the amount of Common Stock GEO Capital Corporation, a
Delaware corporation, may beneficially own without becoming an Acquiring Person
and to increase the ceiling for Current Holders.
AMENDMENT
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NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth in this Agreement, the parties hereby agree as follows:
Section 1.
A. Exempt Person. Section 1(q) of the Agreement is amended and restated
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as follows:
(q) "Exempt Person" means (i) the Company, (ii) any Subsidiary of the
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Company, (iii) any Current Holder, so long as such Current Holder does not
become the Beneficial Owner of 40% or more of the Common Stock then outstanding,
(iv) any Person that acquires Common Stock pursuant to an event described in
clause (ii) of the definition of Exempt Event, (v) any employee benefit plan of
the Company or of any Subsidiary of the Company, or (vi) any Person holding
Common Stock for any such employee benefit plan or for employees of the Company
or of any Subsidiary of the Company pursuant to the terms of any such employee
benefit plan.
B. Purchase Price. Section 1(v) of the Agreement is amended and restated
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as follows:
(v) "Purchase Price" with respect to each Right is, prior to the
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occurrence of a Triggering Event $60, per one one-thousandth of a share of
Preferred Stock and shall, after the occurrence of a Triggering Event, be
subject to adjustment from time to time as provided in Sections 11 and 13, and
shall be payable in lawful money of the United States of America in cash or by
certified check or bank drafted payable to the order of the Company.
C. Adjustments to Purchase Price, Number of Shares or Number of Rights.
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Section 11(a)(ii) of the Agreement is amended and restated as follows:
(ii) Upon the first occurrence of a Triggering Event, proper provision
shall be made so that each holder of a Right, except as otherwise provided in
this Agreement, shall thereafter have the right to receive, and the Company
shall issue, upon exercise thereof at a price equal to the then-current Purchase
Price required to be paid in order to exercise a Right in accordance with terms
of this Agreement, multiplied by the number of one-thousandths of a share of
Preferred Stock or other securities for which a Right was then exercisable
(without giving the effect to such Triggering Event), in lieu of the number of
one one-thousandths of a share of Preferred Stock or other securities receivable
upon exercise of a Right prior to the occurrence of the Triggering Event, such
number of shares of Common Stock of the Company as shall equal the result
obtained by (x) multiplying the then-current Purchase Price by the number of
one-thousandths of a share of Preferred Stock or other securities for which a
Right was then exercisable (without giving effect to such Triggering Event) and
(y) dividing that product by 50% of the Current Market Price per share of Common
Stock on the date of the occurrence of the Triggering Event (such number of
shares being referred to as the "Adjustment Shares"); provided, however, that if
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the transaction or event that would otherwise give rise to the foregoing
adjustment is also subject to the provisions of Section 13 of this Agreement,
then only the provisions of Section 13 of this Agreement shall apply and no
adjustment shall be made pursuant to this Section 11(a)(ii).
D. Section 11(m) shall be amended and restated as follows:
(m) The Company covenants and agrees that from and after the occurrence of
a Triggering Event, it shall not (i) consolidate with, (ii) merge with or into,
or (iii) directly or indirectly sell, lease, or otherwise transfer or dispose of
(in one transaction or series of related transactions) assets or earning power
aggregating more than 50% of the
assets or earning power of the Company and its Subsidiaries taken as a whole, to
any other Person if (A) at the time of or immediately after such consolidation,
merger, sale, lease, transfer or disposition there are any rights, warrants,
securities or other instruments outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights, (B) prior to, simultaneously with or immediately after
such consolidation, merger, sale, lease, transfer or disposition the
stockholders (or equity holders) of the Person who constitutes, or would
constitute, the Principal Party in such transaction shall have received a
distribution of Rights previously owned by such Person or any of its Affiliates
of Associates or (C) the form or nature of organization of the Principal Party
would preclude or limit the exercisability of the Rights. The Company shall not
consummate any such consolidation, merger, sale, lease, transfer or disposition
unless prior thereto the Company and such other Person shall have executed and
delivered to the Rights Agent a supplemental agreement evidencing compliance
with this Section 11(m).
E. Section 11(o) shall be amended and restated as follows:
(o) Anything in this Agreement to the contrary notwithstanding, if the
Company shall at any time prior to the Distribution Date (i) pay a dividend or
distribution on the outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then the number of
Rights associated with each share of Common Stock then outstanding, or issued
or delivered thereafter but prior to the Distribution Date, and the number of
one one-thousandths of a share of Preferred Stock issuable in respect of, the
Rights, shall be proportionately adjusted, so that the following such event one
Right (with the number of one one-thousandths of a share proportionately
adjusted thereunder) shall thereafter be associated with each share of Common
Stock then outstanding, or issued or delivered thereafter but prior to the
Distribution Date. For example, if the Company effects a two-for-one stock
split at a time when each Right (if it becomes exercisable) would entitle the
holder to purchase one one-thousandth of a share of Preferred Stock for a
Purchase Price of $"Z", then following such stock split each previous Right
would be split into two current Rights and thereafter each current Right, upon
becoming exercisable, would (subject to further adjustment) entitle the holder
to purchase one two-thousandth of a share of Preferred Stock at a Purchase
Price of $"Z".
Section 2. Legend. Effective as of August 19, 1997, the legend to be
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impressed, printed or written on, or otherwise affixed to the Common Stock
pursuant to Section 3(b) of the Agreement shall be in substantially in the
following form:
This certificate also evidence and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between BWAY
Corporation and Harris Trust and Savings Bank, as Rights Agent,
dated as of June 9, 1995, as amended February 12, 1996 and November
26, 1997 (the "Rights Agreement"), the terms of which are hereby
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incorporated herein by reference and a copy of which is on file at the
principal executive offices of BWAY Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will
be evidenced by separate certificates and will no longer be evidenced
by this certificate. BWAY Corporation will mail to the holder of this
certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. Under certain circumstances,
Rights that were, are or become beneficially owned by Acquiring
Persons or their Associates or Affiliates (as such terms are defined
in the Rights Agreement) may become null and void and the holder of
any such Rights (including any subsequent holder) shall not have any
right to exercise such Rights.
Section 3. Governing Law. This Amendment No. 2, the Agreement and each
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Rights Certificate issued hereunder 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 with the internal laws of such state applicable to
contract to be made and performed entirely within such State.
Section 4. Counterparts. This Amendment No. 2 may be executed in
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counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and both such counterparts shall together constitute but one and
the same instrument.
Section 5. Descriptive Headings. Descriptive headings of the several
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Sections of this Amendment No. 2 are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions of this
Amendment No. 2.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
the Agreement 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.
BWAY CORPORATION
By:
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Title:
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HARRIS TRUST AND SAVINGS BANK
By:
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Title:
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