Exhibit 10.40
FIFTH AMENDMENT TO
SHAREHOLDER RIGHTS AGREEMENT
----------------------------
Fifth Amendment, effective as of May 20, 1999 (this "Fifth Amendment"), to
the Shareholder Rights Agreement, dated as of July 25, 1991, between Little
Switzerland, Inc., a Delaware corporation (the "Company"), and State Street Bank
and Trust Company, a Massachusetts trust company (the "Rights Agent"), as
amended by the First Amendment to Shareholder Rights Agreement, dated as of
November 8, 1991, between the Company and the Rights Agent, the Second Amendment
to Shareholder Rights Agreement, dated as of April 6, 1993, between the Company
and the Rights Agent, the Third Amendment to Shareholder Rights Agreement, dated
as of February 4, 1998, between the Company and the Rights Agent and the Fourth
Amendment to Shareholder Rights Agreement, dated as of February 23, 1999,
between the Company and the Rights Agent (the "Rights Agreement").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Section 27 of the Rights Agreement provides that prior to the
Distribution Date (as defined therein), the Company and the Rights Agent shall,
if the Company so directs, amend or supplement any provision of the Rights
Agreement as the Company may deem necessary or desirable without the approval of
holders of the Company's common stock, par value $.01 per share (the "Common
Stock");
WHEREAS, the Company's Board of Directors have unanimously voted that the
Rights Agreement is no longer in the best interests of the holders of the
Company's Common Stock; and
WHEREAS, the Company desires to terminate the Rights Agreement prior to the
Final Expiration Date (as defined in the Rights Agreement).
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree that the Rights Agreement is hereby
amended as follows:
1. Section 7(a) of the Rights Agreement is amended by deleting Section
7(a) in its entirety and replacing it with the following:
Section 7. Exercise of Rights; Exercise Price; Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced hereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly executed, to the Rights
Agent at the office or offices of the Rights Agent designated for such purpose,
together with payment of the aggregate Exercise Price for the total number of
one one-hundredths of a share of Preferred Stock (or other securities, cash or
other assets, as the case may be) as to which such surrendered Rights are then
exercised, at or prior to the earlier of (i) the close of business on May 20,
1999 (the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof or (iii) the time at which such Rights
are exchanged as provided in Section 24 hereof (the earlier of (i), (ii) or
(iii) being referred to as the "Expiration Date"). Except as set forth in
Section 7(e) hereof and notwithstanding any other provision in this Agreement,
any Person who prior to the Distribution Date becomes a record holder of shares
of Common Stock may exercise all of the rights of a registered holder of a Right
Certificate with respect to the Rights associated with such shares
of Common Stock in accordance with the provisions of this Agreement, as of the
date such Person becomes a record holder of shares of Common Stock.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
be duly executed as of the day and year first above written. This Fifth
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 to be an
original.
LITTLE SWITZERLAND, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Acting President and
Chief Executive Officer
STATE STREET BANK AND TRUST
COMPANY
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Division President
DOCSC\752971.4
2