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EXHIBIT 4.4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT (this "Amendment"), dated as of August 18, 2000, to the Rights
Agreement (the "Rights Agreement"), dated as of May 20, 1999, by and between
Whitman Corporation, a Delaware corporation (the "Company"), and First
Chicago Trust Company of New York, as Rights Agent (the "Rights Agent"), at
the direction of the Company.
R E C I T A L S
A. The Company has entered into an Agreement and Plan of Merger, dated
as of August 18, 2000 (as it may be amended or supplemented from time to
time, the "Merger Agreement") by and among the Company, and Anchor Merger
Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the
Company ("Merger Sub") and PepsiAmericas, Inc., a Delaware corporation
("PAS"), with respect to a merger of PAS with and into Merger Sub (the
"Merger").
B. Pursuant to Section 27 of the Rights Agreement, the Company may from
time to time supplement or amend the Rights Agreement in accordance with the
provisions of Section 27 thereof.
C. The Merger Agreement contemplates that the execution, delivery and
performance of the Merger Agreement and the consummation of the transactions
contemplated by the Merger Agreement will not cause a Distribution Date (as
defined in the Rights Agreement) to occur and will not cause PAS to become an
Acquiring Person (as defined in the Rights Agreement).
D. The Board of Directors has declared it advisable and in the best
interests of the Company and its stockholders to amend the Rights Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and the covenants set
forth herein, the Company hereby directs, and the parties hereto agree that,
the Rights Agreement is amended as follows:
1. The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is hereby amended by adding the following sentence at the end
thereof:
"Notwithstanding anything to the contrary in this Agreement, (i) none of
Pohlad Companies, a Minnesota corporation ("Pohlad Companies"), any
Affiliate of Pohlad Companies, Robert Pohlad, Affiliates of Robert
Pohlad, or PepsiAmericas, Inc., a Delaware corporation ("PAS"), shall
be deemed an Acquiring Person solely by virtue of (A) the consummation
of the transactions contemplated by the Agreement and Plan of Merger,
dated as of August 18, 2000 (as it may be amended or supplemented from
time to time, the "PAS Merger Agreement") by and among the Company, and
Anchor Merger Sub, Inc., a Delaware corporation
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and a wholly-owned subsidiary of the Company ("Merger Sub") and PAS,
(B) the acquisition by Dakota Holdings, LLC, a Delaware limited
liability company ("Dakota Holdings") of Common Shares with a value of
$25 million from PepsiCo and/or its Affiliates, in connection with the
Merger (as defined in the PAS Merger Agreement), or (C) the acquisition
of Common Shares pursuant to a Permitted Acquisition (as defined in the
Shareholder Agreement, dated __________, by and among the Company,
Pohlad Companies, Dakota Holdings and Robert Pohlad (the "PAS
Shareholder Agreement")) under the PAS Shareholder Agreement; (ii) so
long as it is owned solely by Robert Pohlad, Affiliates of Robert
Pohlad, PepsiCo and/or Affiliates of PepsiCo, Dakota Holdings shall not
be deemed an Acquiring Person."
2. The definition of "Shareholder Agreement" in Section 1(q) of the
Rights Agreement is hereby amended by deleting the phrase "attached hereto as
Exhibit D" and adding in replacement therefor the words "as amended".
3. Section 2 of the Rights Agreement is hereby amended and restated in
its entirety as follows:
"The Company hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who in accordance with Section 3
hereof, shall prior to the Distribution Date also be the holders of the
Common Shares) in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company may from
time to time appoint such co-Rights Agents as it may deem necessary or
desirable upon ten (10) days prior written notice to the Rights Agent.
The Rights Agent shall have no duty to supervise, and shall in no event
be liable for, the acts or omissions of any such co-Rights Agent."
4. Section 3(a) of the Rights Agreement is hereby amended by adding the
following sentence to the end thereof:
"Notwithstanding anything to the contrary in this Agreement, a
"Distribution Date" shall not occur solely by reason of the execution,
delivery and performance of the PAS Merger Agreement or the
consummation of any of the transactions contemplated by the PAS Merger
Agreement."
5. Section 15 of the Rights Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding anything to the contrary in this Agreement, nothing in
this Agreement shall be construed to give any holder of Rights or any
other Person any legal or equitable rights, remedy or claim under this
Agreement in connection with the transactions contemplated by the PAS
Merger Agreement."
6. The second sentence of Section 18 of the Rights Agreement is hereby
amended by inserting the word "gross" before "negligence."
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7. Section 20(c) of the Rights Agreement is hereby amended by inserting
the word "gross" before "negligence."
8. This Amendment 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 laws of such State applicable to contracts
to be made and performed entirely within such State, without giving to its
principles of conflicts of laws.
9. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute
one and the same instrument.
10. Terms not defined herein shall, unless the context otherwise
requires, have the meanings assigned to such terms in the Rights Agreement.
11. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved
and confirmed. In executing and delivering this Amendment, the Rights Agent
shall be entitled to all the privileges and immunities afforded to the Rights
Agent under the terms and conditions of the Rights Agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the Company
and the Rights Agent as of the day and year first written above.
Attest: WHITMAN CORPORATION
By: /s/ Martin M. Ellen By: /s/ Steven R. Andrews
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Name: Martin M. Ellen Name: Steven R. Andrews
Title: Sr. V.P. & CFO Title: Sr. VP
Attest: FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/ Donna Petinard By: /s/ Gerard J. O'Leary
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Name: Donna Petinard Name: Gerard J. O'Leary
Title: Executive Ass't Title: Managing Director
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