AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT ("Amendment") is made and
entered into as of September 9, 1999, by and between WICOR, INC., a Wisconsin
corporation (the "Company"), and CHASEMELLON SHAREHOLDER SERVICES LLC, a New
Jersey Limited liability company (the "Rights Agent"), and amends certain
provisions of that certain Rights Agreement ("Agreement"), dated as of July 27,
1999, by and among the Company and the Rights Agent. Capitalized terms used
herein that are not otherwise defined have the respective meanings set forth in
the Agreement.
W I T N E S S E T H :
WHEREAS, the Company and the Rights Agent entered into the Agreement
in connection with the expiration of the Company's previous Rights Agreement,
dated August 29, 1989; and
WHEREAS, the Company desires to make certain changes to and amend the
Agreement, all as set forth below.
NOW, THEREFORE, in consideration of the covenants and agreements of
the parties contained herein and related hereto, the Company and the Rights
Agent agree as follows:
1. Amendments.
a. The definition of "Acquiring Person" set forth in subsection (a) of
Section 1 of the Agreement is hereby amended and restated in its entirety to
read as follows:
"(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 20% or more
of the Common Shares of the Company then outstanding, but shall not include
the Company, any Subsidiary (as such term is hereinafter defined) of the
Company, any employee benefit plan of the Company or any Subsidiary of the
Company, any entity holding Common Shares for or pursuant to the terms of
any such plan, or any trustee, administrator or fiduciary of such a plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person"
as a result of an acquisition of Common Shares by the Company which, by
reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 20% or more of the
Common Shares of the Company then outstanding; provided, however, that if a
Person would, but for the foregoing, become an Acquiring Person by reason
of share purchases by the
Company and shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Company at any time
that the Person is or thereby becomes the Beneficial Owner of 20% or more
of the Common Shares of the Company then outstanding (other than Common
Shares acquired solely as a result of corporate action of the Company not
caused, directly or indirectly, by such Person), then such Person shall be
deemed to be an "Acquiring Person". Notwithstanding the foregoing, if the
Board of Directors of the Company determines in good faith that a Person
who would otherwise be an "Acquiring Person", as defined pursuant to the
foregoing provisions of this paragraph (a), has become such inadvertently,
and such Person divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this paragraph (a), then
such Person shall not be deemed to be an "Acquiring Person" for any
purposes of this Agreement."
b. Section 27 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"Section 27. Supplements and Amendments. Prior to the Distribution
Date and subject to the penultimate sentence of this Section 27, the
Company may and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement without the approval of
any holders of certificates representing Common Shares. Without limiting
the foregoing, the Company may at any time prior to such time as any Person
becomes an Acquiring Person amend this Agreement to lower the thresholds
set forth in Sections 1(a) and 3(a) hereof from 20% to not less than 10%,
with appropriate exceptions for persons then beneficially owning Common
Shares of the Company constituting a percentage of the number of Common
Shares then outstanding equal to or in excess of the new threshold. From
and after the Distribution Date and subject to the penultimate sentence of
this Section 27, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any
holders of Right Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision herein, (iii) to shorten or
lengthen any time period hereunder, or (iv) to change or supplement the
provisions hereunder in any manner which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the holders
of Right Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided, that from and after the
Distribution Date this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the Rights are
not then redeemable, or (B) any other time period unless such lengthening
is for the purpose of protecting, enhancing or clarifying the rights of,
and/or the benefits
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to, the holders of Rights. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section 27,
the Rights Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Agreement to the contrary, the
Rights Agent may, but shall not be obligated to, enter into any supplement
or amendment that affects the Rights Agent's own rights, duties,
obligations or immunities under this Agreement. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment
shall be made which reduces the then effective Redemption Price or moves to
an earlier date the then effective Final Expiration Date. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Shares."
c. The first sentence of Section 3(a) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"Until the earlier of (i) the tenth day after the Shares Acquisition
Date or (ii) the tenth Business Day (or such later date as may be
determined by action of the Company's Board of Directors prior to such time
as any Person becomes an Acquiring Person) after the date of the
commencement of, or of the first public announcement of the intention of
any Person to commence, a tender or exchange offer the consummation of
which would result in any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any Subsidiary
of the Company, any entity holding Common Shares for or pursuant to the
terms of any such plan, or any trustee, administrator, or fiduciary of such
a plan) becoming the Beneficial Owner of Common Shares of the Company
aggregating 20% or more of the then outstanding Common Shares (the earlier
of such dates being herein referred to as the "Distribution Date"), (x) the
Rights will be evidenced (subject to the provisions of Section 3(b) hereof)
by the certificates for Common Shares registered in the names of the
holders thereof (which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y) the right to
receive Right Certificates will be transferable only in connection with the
transfer of Common Shares."
2. Miscellaneous. The Summary of Rights to Purchase Common Shares attached
as Exhibit B to the Agreement shall be appropriately modified to reflect the
amendments to the Agreement hereinabove adopted. Except as specifically amended
and modified hereby, the Agreement shall stand and remain unchanged and in full
force and effect in accordance with its original terms. This Amendment may be
executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and attested, all as of the day and year first above written.
WICOR, INC.
Attest:
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxx
Secretary Senior Vice President and
Chief Financial Officer
CHASEMELLON SHAREHOLDER
SERVICES LLC
Attest:
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxxx
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Xxxxx X. Xxxx Xxxxxxx Xxxxxxx
Assistant Vice President Assistant Vice President
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