AMENDMENT TO RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT TO RIGHTS AGREEMENT, dated as of February 22, 2007 (this “Amendment”), between
SEMCO ENERGY, INC., a Michigan corporation (the “Company”), and NATIONAL CITY BANK (the “Rights
Agent”), provides as follows:
WITNESSETH
WHEREAS, the Company and the Rights Agent are parties to a Rights Agreement dated April 15,
1997, as amended effective March 19, 2004 (the “Rights Agreement”), specifying the terms of the
Rights; and
WHEREAS, the Company intends to enter into an Agreement and Plan of Share Exchange with Cap
Rock Holding Corporation, a Delaware corporation, and Semco Holding Corporation, a Delaware
corporation; and
WHEREAS, Section 26 of the Rights Agreement (“Section 26”) permits the Company and the Rights
Agent, at any time before the Distribution Date to supplement or amend the Rights Agreement, and,
in accordance with such Section 26, the Company and the Rights Agent desire to amend the Rights
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual promises and agreements contained
herein, and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions All capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Rights Agreement.
2. Amendments
(A) Section 1(a) of the Rights Agreement is hereby amended to add the following sentence at
the end thereof:
“Notwithstanding anything to the contrary in this Agreement: (A)
neither Cap Rock Holding, nor Parent nor any of their respective existing or
future Affiliates or Associates shall be deemed to be an Acquiring Person by
virtue of: (w) the execution and delivery of the Exchange Agreement by the
parties thereto; (x) any actions taken or effected pursuant to the Exchange
Agreement or the performance of any obligations thereunder; (y) the
acquisition of Common Stock (including shares of Common Stock issued upon
the conversion of Series B Preferred Stock), including, without limitation,
the acquisition of shares of Common Stock by Parent pursuant to the Exchange
Agreement; or (z) the consummation of the other transactions contemplated
by the Exchange Agreement (including, without limitation, the consummation
of the Exchange (as defined in the Exchange Agreement)) (each of the events
set forth in this clause (A), an “Exempt Event”); and (B) neither Cap Rock
Holding, nor Parent nor any of their respective existing or future
Affiliates or Associates shall be deemed to be an Acquiring Person by virtue
of any action not referred to in the preceding clause (A) that is taken by
Cap Rock Holding or Parent or any of their respective existing or future
Affiliates or Associates in connection with, or as contemplated by, any
Exempt Event.”
(B) Section 7(a) of the Rights Agreement is hereby amended and restated to read as follows:
(a) subject to Section 7(e) hereof, 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), Section 11(a)(iii) and Section
23(a) hereof) in whole or in part at any time after the Distribution Date
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 one one-hundredths of a share of
Preference Stock (or other securities, cash or other assets, as the case may
be) as to which such surrendered Rights are then exercisable, at or prior to
the earlier of (i) the close of business on April 15, 2007 (the “Final
Expiration Date”), (ii) the time at which the Rights are redeemed as
provided in Section 23 hereof, or (iii) the time that is immediately prior
to the Effective Time (as defined in the Exchange Agreement) (the earlier of
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(i), (ii) and (iii) being herein referred to as the “Expiration Date”).
The Company shall inform the Rights Agent promptly after the occurrence of
the Effective Time (as defined in the Exchange Agreement) that the
Expiration Date has occurred.
(C) Section 1 of the Rights Agreement is hereby amended to add the following defined terms at
the end thereof:
“(x) “Exchange Agreement” shall mean the Agreement and Plan of Share
Exchange dated as of February 22, 2007 among the Company, Cap Rock Holding
Corporation, a Delaware corporation (“Cap Rock Holding”), and Semco Holding
Corporation, a Delaware corporation and a wholly-owned subsidiary of Cap
Rock Holding (“Parent”), as the same may be amended, revised, modified or
otherwise supplemented from time to time.
“(y) “Exempt Event” shall have the meaning set forth in Section 1(a)
hereof.
“(z) “Cap Rock Holding” shall have the meaning set forth in Section
1(x) hereof.
“(bb) “Parent” shall have the meaning set forth in Section 1(x)
hereof.”
(D) Section 29 of the Rights Agreement is hereby amended by adding the
following sentence at the end thereof:
“Notwithstanding the foregoing, 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 any Exempt
Event.”
(F) The following new Section 35 is hereby added to the Rights Agreement:
“Section 35. Exemption of Certain Parties and Actions.
Notwithstanding anything to the contrary contained in this Agreement: (i)
the provisions of Section 3(a), 7(a), 11(a)(ii) and 13 shall not apply with
respect to any Exempt Event or any other action undertaken by Cap Rock
Holding or Parent or any of their respective existing or future Affiliates
or Associates in connection with, or as contemplated by, any Exempt Event;
and (ii) no Distribution Date, Stock Acquisition Date or Triggering Event
shall be deemed to have occurred as a result of such execution or any Exempt
Event or any such action.”
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4. No Other Amendments. Except as expressly amended hereby, the terms of the Rights
Agreement shall remain in full force and effect in all respects. The term “Agreement” as used in
the Rights Agreement shall be deemed to refer to the Rights Agreement as amended hereby.
5. Effectiveness. This Amendment shall be effective as of February 22, 2007, as fully
as if executed by both parties on such date.
6. Governing Law. This Amendment shall be deemed to be a contract made under the laws
of the State of Michigan and for all purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts made and to be performed entirely within such State.
7. Counterparts. This Amendment may be executed in any number of counterparts, and
each of such counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as
of the day and year first above written.
| SEMCO ENERGY, INC. |
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| By: | /X/ Xxxxxx X. Xxxxxxxx | |||
| Xxxxxx X. Xxxxxxxx | ||||
| Chairman of the Board of Directors | ||||
| NATIONAL CITY BANK, as Rights Agent |
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| By: | /X/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | VP | |||
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