AMENDMENT TO THE RIGHTS AGREEMENT
AMENDMENT, dated as of March 4, 1999 (this "Amendment"), to
the Rights Agreement, dated as of September 18, 1996 (the "Rights
Agreement"), between ST. XXXXXX LIGHT & POWER COMPANY, a Missouri
corporation (the "Company"), and XXXXXX TRUST AND SAVINGS BANK,
an Illinois banking association (the "Rights Agent").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company has approved
the Agreement and Plan of Merger, dated as of March 4, 1999 (the
"Merger Agreement") between UtiliCorp United Inc., a Delaware
corporation ("UCU"), and the Company, which provides for the
merger (the "Merger") of the Company with and into UCU, with UCU
as the surviving corporation, upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, the Board of Directors of the Company deems it
advisable and in the best interests of the Company and of its
stockholders to effect the Merger in accordance with the terms of
the Merger Agreement;
WHEREAS, the execution by UCU of the Merger Agreement is
conditioned, among other things, upon the authorization and
execution of this Amendment by the Company;
WHEREAS, at the date of this Amendment, the Distribution
Date has not occurred and there is no Acquiring Person; and
WHEREAS, in compliance with Section 27 of the Rights
Agreement, the Company and the Rights Agent are willing to amend
the Rights Agreement as hereinafter set forth and the Company and
the Rights Agent have each executed and delivered this Amendment
immediately prior to the execution and delivery of the Merger
Agreement.
NOW, THEREFORE, in consideration of the Rights Agreement and
the premises and mutual agreements herein set forth, the parties
hereby agree as follows:
1. There is hereby added to the Rights Agreement new
Sections 1(aa) through 1(cc) as follows:
(aa) "UCU" shall mean UtiliCorp United Inc., a
Delaware corporation.
(bb) "Merger Agreement" shall mean the Agreement and
Plan of Merger, dated as of March 4, 1999 between UCU and
the Company, as the same may be amended or supplemented in
accordance with the terms thereof.
(cc) "Merger" shall mean the merger of the Company
with and into UCU upon the terms and subject to the conditions
set forth in the Merger Agreement.
2. Section 1(a) of the Rights Agreement is hereby
amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this definition to the
contrary, none of UCU, any of its Affiliates or Associates
or any of its permitted assignees or transferees shall
become or be deemed to be an "Acquiring Person" as a result
of (i) UCU's execution and delivery of the Merger Agreement
or the public announcement of such execution and delivery;
or (ii) the consummation of (x) the Merger or (y) the other
transactions contemplated by the Merger Agreement, each in
accordance with the terms of the Merger Agreement."
3. Section 3(a) of the Rights Agreement is hereby
amended by adding the following sentence immediately following
the first sentence thereof:
"Notwithstanding anything in this Section 3(a) to the
contrary, a Distribution Date shall not occur as a result of
(i) the execution and delivery of the Merger Agreement by
the parties thereto or the public announcement of such
execution and delivery; or (ii) the consummation of (x) the
Merger or (y) the other transactions contemplated by the
Merger Agreement, each in accordance with the terms of the
Merger Agreement."
4. Section 7(a) of the Rights Agreement is hereby
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-halves of a share of Common 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 earliest of (i) the earlier of the Close of
Business on the date on which the Effective Time (as defined
in the Merger Agreement) occurs or the Close of Business on
December 4, 2006 (the "Final Expiration Date"), (ii) the
time at which the Rights are redeemed as provided in Section
23 hereof or (iii) the time at which such Rights are
exchanged pursuant to Section 24 hereof (the earliest of
(i), (ii), and (iii) being herein referred to as the
Expiration Date").
5. There is hereby added to the Rights Agreement new
Section 36 as follows:
Section 36. Termination of Rights Agreement; Expiration of
Rights. Notwithstanding anything to the contrary contained
herein, this Agreement shall terminate at the Close of Business
on the Final Expiration Date and the Rights shall expire on the
Final Expiration Date.
6. The Form of Rights Certificate attached to the Rights
Agreement as Exhibit A is
hereby amended by:
(a) replacing the date "DECEMBER 4, 2006" in the
first line of the legend appearing at the top of such certificate
with the phrase "THE EARLIER OF THE CLOSE OF BUSINESS ON THE DATE
ON WHICH THE MERGER CONTEMPLATED BY THE AGREEMENT AND PLAN OF
MERGER, DATED AS OF MARCH 4, 1999, BETWEEN UTILICORP UNITED INC.
AND THE COMPANY IS CONSUMMATED OR THE CLOSE OF BUSINESS ON
DECEMBER 4, 2006"; and
(b) replacing the date "December 4, 2006" in the tenth
line of the first paragraph thereof with the phrase "the earlier
of the date on which the merger contemplated by the Agreement and
Plan of Merger, dated as of March 4, 1999, between UtiliCorp
United Inc. and the Company is consummated or on December 4,
2006".
7. The Summary of Rights to Purchase Common Stock attached
to the Rights Agreement as Exhibit B is hereby amended by
replacing the date "December 4, 2006" in the second line of the
fifth paragraph thereof with the phrase "the earlier of the date
on which the merger contemplated by the Agreement and Plan of
Merger, dated as of March 4, 1999, between UtiliCorp United Inc.
and the Company is consummated or on December 4, 2006".
8. This Amendment shall be deemed to be a contract made
under the laws of the State of Missouri and for all purposes
shall be governed by and construed with in accordance with the
laws of such State applicable to contracts to be made and
performed entirely within such State.
9. 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, but all such counterparts shall
together constitute one and the same instrument.
10. Any capitalized term used herein without definition
shall have the meaning specified in the Rights Agreement.
11. Except as otherwise expressly set forth herein, this
Amendment shall not by implication or otherwise alter, modify,
amend or in any other manner affect any of the terms,
conditions, obligations, covenants or agreements contained in the
Rights Agreement, all of which are hereby ratified and confirmed
in all respects and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and attested, all as of the day and year
first above written.
ST. XXXXXX LIGHT & POWER COMPANY
By: /s/ Xxxxx X. Xxxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxxx
Title: President & CEO
Attest:
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President & Secretary
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Attest:
By: /s/ X.X. Xxxx
Name: X.X. Xxxx
Title: Assistant Secretary
