FIRST AMENDMENT TO
AMENDED AND RESTATED RIGHTS AGREEMENT
FIRST AMENDMENT to the Amended and Restated Rights Agreement, dated as
of May 24, 1999 (this "Amendment"), between TNP Enterprises, Inc., a Texas
corporation (the "Company") and The Bank of New York (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have previously entered into
that certain Amended and Restated Rights Agreement, dated as of August 11, 1998
(the "Agreement");
WHEREAS, pursuant to Section 27 of the Agreement, the Company may from
time to time prior to the Distribution Date (as defined in the Agreement) (as
defined in the Agreement) supplement or amend the Agreement in accordance with
the provisions of such Section 27;
WHEREAS, the Company will be entering into an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of May 24, 1999, among the Company, SW
Acquisition, L.P. and ST Acquisition Corp., a Texas corporation and a
wholly-owned subsidiary of Parent ("Sub"), whereby Sub will merge with and into
the Company (the "Merger") upon the terms and subject to the conditions set
forth in the Merger Agreement; and
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company and its shareholders to amend the
Agreement as set forth herein in connection with the foregoing, and the Company
and the Rights Agent desire to evidence such amendment in writing.
NOW, THEREFORE, the Company and the Rights Agent hereby amend the
Agreement as follows:
Section 1. All capitalized terms used herein, unless otherwise defined
herein, shall have the meanings given them in the Agreement, and each reference
in the Agreement to "this Agreement," "hereof," "herein," "hereunder" or
"hereby" and each other similar reference shall be deemed to refer to the
Agreement as amended hereby. All references to the Agreement in any other
agreement between or among any of the parties hereto relating to the
transactions contemplated by the Agreement shall be deemed to refer to the
Agreement as amended hereby.
Section 2. The definition of "Acquiring Person" in Section 1(a) of the
Agreement is hereby amended by adding the following at the end of such section:
Notwithstanding anything contained in this Agreement to the contrary,
for purposes of this Agreement, neither SW Acquisition, L.P. ("Parent")
nor ST Acquisition Corp. ("Sub") shall be deemed to be an Acquiring
Person solely by virtue of (i) the execution of that certain Agreement
and Plan of Merger (as such agreement may be amended from time to time,
the "Merger Agreement"), dated as of May 24, 1999, by and among the
Company, Parent and Sub; (ii) the consummation of the Merger (as
defined in the Merger Agreement); or (iii) the consummation of the
other transactions contemplated by the Merger Agreement.
Section 3. The definitions of "Beneficial Owner" and "beneficially own"
are amended by adding the following at the end thereof:
Notwithstanding anything contained in this Agreement to the contrary,
none of Parent, Sub or any of their Affiliates or Associates shall be
deemed to be the Beneficial Owner of, or to beneficially own, any of
the Common Stock of the Company solely by virtue of the approval,
execution or delivery of the Merger Agreement or the transactions
contemplated thereby.
Section 4. The definition of "Stock Acquisition Date" in Section 1(ll)
is hereby amended by adding the following at the end of such section:
; provided, however, that no Stock Acquisition Date shall occur by
reason or as a result of the Merger or any other transactions
contemplated by the Merger Agreement.
Section 5. The definition of "Triggering Event" in Section 1(pp) is
hereby amended by adding the following at the end of such section:
; provided, however, that no Triggering Event shall occur by reason or
as a result of the Merger or any other transactions contemplated by the
Merger Agreement.
Section 6. Section 3(a) is hereby amended by adding the following at
the end of such section:
Notwithstanding anything to the contrary contained in this Agreement, a
Distribution Date shall not occur solely as a result of (i) the
execution of the Merger Agreement; (ii) the consummation of the Merger;
or (iii) the consummation of the other transactions contemplated by the
Merger Agreement.
Section 7. Section 7(a) is hereby amended and restated to read in its
entirety as follows:
Exercise. Subject to Section 7(e) (Exercise of Rights;
Purchase Price; Expiration Date of Rights -- Termination of Acquiring
Person's Rights), at any time after the Distribution Date, the
registered holder of any Rights Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein, including,
without limitation, the restrictions on exercisability set forth in
Section 9(c) (Reservation and Availability of Capital Stock --
Registration under the Act), Section 11(a)(iii) (Adjustment of Purchase
Price; Number and Kind of Shares or Number of Rights -- Certain
Adjustments), Section 23(a) (Redemption and Termination -- Redemption),
and Section 24(b) (Exchange -- Effect of Exchange; Procedure)), in
whole or in part, upon surrender of the Rights Certificate, with the
form of election to purchase and the certificate on the reverse side
thereof duly executed, to the Rights Agent at the principal office or
offices of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price with respect to the total
number of shares of Common Stock (or other securities, cash or other
assets, as the case may be) as to which such surrendered Rights are
then exercisable and an amount equal to any applicable transfer tax, at
or prior to the earliest of (i) the Final Expiration Date, (ii) the
Redemption Date, (iii) the expiration of the Rights pursuant to Section
13(d) (Consolidation, Merger or Sale or Transfer of Assets or Earning
Power -- Exceptions), or (iv) the consummation of the Merger (the
earliest of (I), (ii), (iii) and (iv) being herein referred to as the
"Expiration Date"). The payment of the Purchase Price and the
applicable transfer tax, if any (as such amount may be reduced pursuant
to Section 11(a)(iii) (Adjustment of Purchase Price; Number and Kind of
Shares or Number of Rights -- Certain Adjustments)), may be made (x) in
cash, (y) by certified bank check or bank draft payable to the order of
the Company or (z) by delivery of a certificate or certificates (with
appropriate stock powers executed in blank attached thereto) evidencing
a number of shares of Common Stock equal to the then Purchase Price
divided by the closing price (as determined pursuant to Section 11(d)
(Adjustment of Purchase Price; Number and Kind of Shares or Number of
Rights -- Current Market Price)) per share of Common Stock on the
Trading Day immediately preceding the date of such exercise. In the
event that the Company is obligated to issue other securities
(including Common Stock) of the Company, pay cash and/or distribute
other property pursuant to Section 11(a), the Company will make all
arrangements necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if and
when appropriate. The Company reserves the right to require prior to
the occurrence of a Triggering Event that, upon any exercise of Rights,
a number of Rights be exercised so that only whole shares of Common
Stock would be issued.
Section 8. Section 13(a) is hereby amended by adding the following at
the end of such section:
Notwithstanding anything to the contrary contained in this Agreement,
the execution of the Merger Agreement, the consummation of the Merger
and the consummation of the other transactions contemplated by the
Merger Agreement shall not be deemed to be events of the type described
in this Section 13(a) and shall not cause the Rights to be adjusted or
exercisable in accordance with, or any other action to be taken or
obligation to arise pursuant to, this Section 13.
Section 9. Section 30 is hereby amended and restated to read in its
entirety as follows:
Nothing in this Agreement shall be construed to give to any Person
other than the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock) any legal or equitable right,
remedy or claim under this Agreement, by virtue of the consummation of
the Merger, or by virtue of the execution of the Merger Agreement; but
this agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered
holders of the Common Stock).
Section 10. A new Section 35 is hereby added reading in its entirety as
follows:
Section 35. Termination. This Agreement and the Rights
established hereby will terminate in all respects immediately prior to
the consummation of the Merger.
Section 11. This Amendment shall be shall be governed by and construed
in accordance with the laws of Texas.
Section 12. This Amendment may be signed in any number of counterparts,
each of which shall be deemed an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 13. Except as expressly set forth herein, this Amendment 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
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
Section 14. If any provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
illegal or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
* * * * *
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
Attest: TNP ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxx
Vice President and General President and Chief Executive
Counsel Officer
THE BANK OF NEW YORK,
as Rights Agent
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Assistant Vice President
