THIRD AMENDMENT TO RIGHTS AGREEMENT
Exhibit
4.4
THIRD AMENDMENT TO RIGHTS
AGREEMENT
This
THIRD AMENDMENT TO RIGHTS AGREEMENT effective as of September 22, 2008 (this
“Third Amendment”) is between Franklin Electric Co., Inc., an Indiana
corporation (the “Company”) and Xxxxx Fargo Bank, National Association (“Xxxxx
Fargo”).
WHEREAS,
the Company previously entered into the Rights Agreement dated as of October 15,
1999, as amended by the First Amendment to Rights Agreement dated as of December
1, 2006 and the Second Amendment to Rights Agreement dated as of July 11, 2007
(as amended, the “Rights Agreement”);
WHEREAS,
pursuant to the provisions of Section 21 of the Rights Agreement, the Company
has given notice to LaSalle Bank National Association that effective September
30, 2008, it is being removed as Rights Agent (as such term is defined in the
Rights Agreement) and Xxxxx Fargo is being appointed as the successor Rights
Agent under the Rights Agreement; and
WHEREAS,
Xxxxx Fargo has expressed its willingness and desire to serve as such appointed
successor Rights Agent effective as of September 30, 2008, subject to the
parties entering into this Third Amendment pursuant to the provisions of Section
27 of the Rights Agreement.
NOW,
THEREFORE, it is mutually agreed between the Company and Xxxxx Fargo
that:
|
1.
|
Upon
execution of this Third Amendment, Xxxxx Fargo does hereby become a party
to the Rights Agreement and shall be fully bound by, and subject to, all
of the covenants, terms and conditions of the Rights Agreement as though
an original party thereto and as “Rights Agent”
thereunder.
|
|
2.
|
The
Rights Agreement shall be amended to, among other things, reflect the
appointment of Xxxxx Fargo as Rights Agent,
as follows:
|
|
a.
|
The
title page of the Rights Agreement shall be amended to replace the name of
the party designated as “LASALLE BANK NATIONAL ASSOCIATION” with the name
“XXXXX FARGO BANK, NATIONAL
ASSOCIATION”.
|
|
b.
|
The
introductory paragraph of the Rights Agreement shall be amended to have
the name of the Rights Agent changed from “LaSalle Bank National
Association” to “Xxxxx Fargo Bank, National
Association”.
|
|
c.
|
Section
26 of the Rights Agreement shall be amended to replace the name and
address of “LaSalle Bank National Association, 000 X. XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, [Attention: Xxxx Xxxxxx]” with the
following: “Xxxxx Fargo Shareowner Services, 000 Xxxxx Xxxxxxx Xxxxxxxx,
Xxxxx Xx. Xxxx, Xxxxxxxxx 00000-0000, Attention: Manager
of Account Administration”.
|
- 5 -
|
d.
|
The
definition of “Rights Agreement” as set forth in the first paragraph of
the second page of Exhibit A to the Rights Agreement is hereby deleted and
replaced as follows:
|
“the
Rights Agreement, dated as of October 15, 1999, between Franklin Electric Co.,
Inc., an Indiana corporation (the “Company”) and Illinois Stock Transfer
Company, an Illinois corporation, as amended by the First Amendment to Rights
Agreement dated as of December 1, 2006, between the Company and LaSalle Bank
National Association (“LaSalle Bank”), by the Second Amendment to Rights
Agreement dated as of July 11, 2007, between the Company and LaSalle Bank, and
by the Third Amendment to Rights Agreement dated as of September 22, 2008,
between the Company and Xxxxx Fargo Bank, National Association, a national
banking association (the “Rights Agent”), as may be further amended and modified
from time to time (the “Rights Amendment”)”.
|
3.
|
Xxxxx
Fargo hereby represents and warrants to the Company that Xxxxx Fargo (a)
is a legal business entity organized and doing business under the laws of
the United States or of any state of the United States, in good standing,
which is authorized under such laws to exercise corporate trust powers and
is subject to supervision or examination by a federal or state authority
and which has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $50,000,000, or (b) is an affiliate of a
legal business entity described in the foregoing clause
(a).
|
|
4.
|
The
execution and delivery of this Third Amendment has been duly and validly
authorized and approved by each of the parties hereto, and no other
proceedings (corporate or otherwise) on the part of the parties hereto are
necessary to authorize this Third Amendment. This Third
Amendment has been duly and validly executed and delivered by each of the
parties hereto and constitutes a valid and binding agreement of such
parties, enforceable against each of them in accordance with its
terms.
|
|
5.
|
Except
as expressly amended by this Third Amendment, all terms, conditions and
other provisions contained in the Rights Agreement are hereby ratified and
reaffirmed. The Rights Agreement, after giving effect hereto,
shall remain in full force and
effect.
|
|
6.
|
Upon
execution hereof, each reference in the Rights Agreement to “this
Agreement,” “hereby,” “hereunder,” “herein,” “hereof,” or words of like
import referring to the Rights Agreement shall mean and refer to the
Rights Agreement, as amended by this Third Amendment. In addition, any and
all notices, requests, certificates and other instruments executed and
delivered after the date hereof may refer to the Rights Agreement without
making specific reference to this Third Amendment; but nevertheless all
references to the Rights Agreement shall be a reference to such document
as amended hereby. If this Third Amendment is inconsistent with
(or affects the interpretations of) unamended portions of the Rights
Agreement, the provisions of (or interpretations suggested by) this Third
Amendment shall control.
|
- 6 -
This
Third Amendment shall be governed by and construed in accordance with Indiana
law.
|
7.
|
This
Third Amendment may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one
agreement.
|
* * *
- 7 -
IN
WITNESS WHEREOF, the Company and Xxxxx Fargo have caused this Third Amendment to
Rights Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of this 22nd day of September,
2008.
|
Attest:
|
Franklin
Electric Co., Inc.
|
|
By:
|
By:
|
|
Xxxxx
Xxxxxxxxxxxx
|
Xxxxxx
X. Xxxxxx
|
|
Corporate
Paralegal
|
Counsel,
Governance Manager,
|
|
Assistant
Secretary
|
|
|
Attest:
|
Xxxxx
Fargo Bank, National Association
|
|
By:
|
By:
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
|
Acknowledged
and agreed as of
|
|
|
this
[___] day of
_______, 2008:
|
|
|
Attest:
|
LaSalle
Bank National Association
|
|
By:
|
By:
|
|
Name:
|
Name:
|
|
Title:
|
Title:
|
- 8 -
