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Previous: FOREMOST CORP OF AMERICA, 10-Q, 1999-11-02 |
Next: CENTRAL ILLINOIS LIGHT CO, 8-K, 1999-11-02 |
EXHIBIT 4.4
AMENDMENT NO. 2 TO RIGHTS AGREEMENT, dated as of October 18, 1999, between FOREMOST CORPORATION OF AMERICA, a Michigan corporation (the "Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, as successor to National Bank of Detroit (the "Rights Agent"), amending the Rights Agreement, dated as of December 14, 1989, between the Company and the Rights Agent, as amended by Amendment No. 1 on May 19, 1997 (the "Rights Agreement").
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company has approved an Agreement and Plan of Merger (the "Merger Agreement") by and among the Company, Spartan Parent Corp., a Delaware corporation ("Buyer"), and Spartan Acquisition Co., a Michigan corporation and wholly-owned subsidiary of Buyer ("Sub"), providing for the merger of Sub with and into the Company (the "Merger");
WHEREAS, the Board of Directors of the Company has determined that the Merger is fair to and in the best interests of the Company and its shareholders;
WHEREAS, the willingness of Buyer and Sub to enter into the Merger Agreement is conditioned on, among other things, the amendment of the Rights Agreement on the terms set forth in this Amendment; and
WHEREAS, Section 26 of the Rights Agreement provides that, among other things, before the Distribution Date the Company may, and the Rights Agent shall, if the Company so directs, supplement or amend any provisions of the Rights Agreement without the approval of any holders of certificates representing shares of Company Common Stock;
NOW, THEREFORE, in consideration of the premises and mutual agreements set forth in the Rights Agreement and this Amendment No. 2, the parties agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by adding the following definitions thereto:
"Buyer" shall mean Spartan Parent Corp., a Delaware corporation or any of its permitted transferees.The subsections of Section 1 of the Rights Agreement shall be relettered to take into account and properly reference in alphabetical order the additions set forth above."Merger" shall mean the merger of Sub with and into the Company as provided in the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of October 18, 1999, by and among Buyer, Sub and the Company, as the same may be amended in accordance with the terms thereof.
"Sub" shall mean Spartan Acquisition Co., a Michigan corporation and a wholly-owned subsidiary of Buyer.
2. Section 1(a) of the Rights Agreement (before the relettering contemplated by this Amendment No. 2) is amended by adding to the end of the section the following:
"Notwithstanding anything to the contrary contained herein, neither Buyer nor Sub shall be or become an "Acquiring Person" (and no Stock Acquisition Date shall occur) as a result of (i) the announcement of the Merger; or (ii) the execution of the Merger Agreement (or any amendments thereto in accordance with the terms thereof); or (iii) the consummation of the transactions contemplated by the Merger Agreement (including, without limitation, the Merger)."3. Section 3(a) of the Rights Agreement is amended by adding to the end of the section the following:
"Notwithstanding anything to the contrary contained herein, no Distribution Date shall occur as a result of (x) the announcement of the Merger; (y) the execution of the Merger Agreement (or any amendment thereto in accordance with their terms); or (z) the consummation of the transactions contemplated by the Merger Agreement (including, without limitation, the Merger)."4. Section 7(a) of the Rights Agreement is hereby amended by replacing the word "earlier" in its first occurrence with the word "earliest," by deleting the word "or" immediately before the symbol "(ii)," and by replacing the words "(the earlier of (i) and (ii) being the "Expiration Date")" with the following:
"and (iii) immediately before the effective time of the Merger (the earliest of (i), (ii) and (iii) being the "Expiration Date")."5. Section 11 of the Rights Agreement is amended by adding to the end of the section the following:
"(q) Notwithstanding anything to the contrary contained herein, the provisions of this Section 11 will not apply to or be triggered by (i) the announcement of the Merger; (ii) the execution of the Merger Agreement (or any amendment thereto in accordance with their terms); or (iii) the consummation of the transactions contemplated by the Merger Agreement (including, without limitation, the Merger)."
"(f) Notwithstanding anything to the contrary contained herein, the provisions of this Section 13 will not apply to or be triggered by (i) the announcement of the Merger; (ii) the execution of the Merger Agreement (or any amendment thereto in accordance with their terms); or (iii) the consummation of the transactions contemplated by the Merger Agreement (including, without limitation, the Merger)."7. The Rights Agent will not be liable for or by reason of any of the statements of fact or recitals contained in this Amendment No. 2.
8. The term "Agreement" as used in the Rights Agreement shall be deemed to refer to the Rights Agreement as amended by this Amendment No. 2.
9. Except as set forth in this Amendment, the Rights Agreement will remain in full force and effect and will be otherwise unaffected by this Amendment No. 2.
10. This Amendment No. 2 shall be effective as of, and immediately before, the execution and delivery of the Merger Agreement.
11. This Amendment No. 2 shall be considered to be a contract made under the laws of the state that govern the Rights Agreement as a whole.
12. Exhibits A and B to the Rights Agreement shall be considered amended in a manner consistent with this Amendment No. 2.
13. This Amendment No. 2 may
be executed in one or more counterparts, each of which will be considered
an original, but all of which together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have
caused this Amendment No. 2 to be duly executed, all as of the day and
year first above written.
| FOREMOST
CORPORATION OF
AMERICA By: Richard L. Antonini Its: Chairman, President and Chief Executive Officer |
FIRST CHICAGO
TRUST COMPANY OF
NEW YORK, as Rights Agent By: Its: |
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