FIRST AMENDMENT TO
FIRST
AMENDMENT
TO
AMENDED
AND RESTATED STOCKHOLDER PROTECTION RIGHTS AGREEMENT
This
First Amendment to Amended and Restated Stockholder Protection Rights Agreement
(this Amendment")
is
entered into as of June 13, 2008, between Wilshire Enterprises, Inc., a Delaware
corporation (the "Company"),
and
Continental Stock Transfer & Trust Company, a limited purpose trust company
organized under the banking laws of the State of New York, as rights agent
(the
"Rights
Agent").
W
I T N E S S E T H:
WHEREAS,
the Company and the Rights Agent are parties to an Amended and Restated
Stockholder Protection Rights Agreement, dated as of December 6, 2006 (the
"Rights
Agreement");
WHEREAS,
the Company, NWJ Apartment Holdings Corp., a Maryland corporation ("Parent"),
and
NWJ Acquisition Corp., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub"), intend to enter into an Agreement and
Plan
of Merger (the "Merger
Agreement")
pursuant to which, among other things, Merger Sub shall be merged with and
into
the Company (the "Merger")
with
the Company surviving the Merger on the terms and subject to the conditions
set
forth therein;
WHEREAS,
pursuant to Section 5.4 of the Rights Agreement, the Company and the Rights
Agent may from time to time supplement or amend the Rights Agreement prior
to
the Flip-in Date (as such term is defined in the Rights Agreement) in any
respect and that the Rights Agent shall duly execute and deliver any such
supplement or amendment requested by the Company;
WHEREAS,
on June 13, 2008, the Company's Board of Directors resolved to amend the Rights
Agreement as set forth herein in order to render the Rights (as such term is
defined herein) inapplicable to the Merger and the other transactions
contemplated by the Merger Agreement;
NOW
THEREFORE, in
exchange for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
Section
1. Defined
Terms.
All
capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Rights Agreement.
Section
2. Amendments
to Rights Agreement.
Effective as of the date first written above, the Rights Agreement is hereby
amended as follows:
(a) The
definition of "Acquiring Person" set forth in Section 1.1 of the Rights
Agreement is hereby amended to add the following at the end
thereof:
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"In
addition, notwithstanding anything in this Agreement to the contrary,
none
of NWJ Apartment Holdings Corp., a Maryland corporation ("Parent"),
and
NWJ Acquisition Corp., a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Merger Sub"), or any of their Affiliates or
Associates, individually or collectively, shall be an "Acquiring
Person"
solely by reason of: (1) the approval, adoption, execution or delivery
of
an Agreement and Plan of Merger (as it may be amended and supplemented,
the "Merger Agreement"), among the Company, Parent and Merger Sub
pursuant
to which, among other things, Merger Sub shall be merged with and
into the
Company (the "Merger") with the Company surviving the Merger on the
terms
and subject to the conditions set forth therein, (2) the approval,
adoption, execution or delivery of the Voting Agreement (as defined
in the
Merger Agreement)(as it may be amended and supplemented, the "Voting
Agreement"), (3) the consummation of the Merger or (4) the consummation
of
any of the other transactions contemplated by the Merger Agreement
or the
Voting Agreement."
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(b) The
definition of "Beneficial Ownership" set forth in Section 1.1 of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding
anything in this definition of "Beneficial Owner," "Beneficial Ownership" or
"Beneficially Own" to the contrary, none of Parent, Merger Sub, or any of their
Affiliates or Associates, individually or collectively, shall be deemed the
"Beneficial Owner" or shall be deemed to "Beneficially Own" any shares of Common
Stock solely as a result of (i) the approval, adoption, execution or delivery
of
the Merger Agreement, (ii) the approval, adoption, execution or delivery of
the
Voting Agreement, (iii) the consummation of the Merger or (iv) the consummation
of any of the other transactions contemplated by the Merger Agreement or the
Voting Agreement."
(c) The
definition of "Expiration Time" in Section 1.1 of the Rights Agreement is hereby
amended and restated in its entirety to read as follows:
“Expiration
Time” shall mean the earliest of (i) the Exchange Time, (ii) the Redemption
Time, (iii) the effective time of a consolidation, merger or share exchange
(each a “Business Combination”) of the Company into another entity pursuant to
an agreement entered into prior to a Flip-in Date, (iv) the Effective Time
(as
such term is defined in the Merger Agreement), (v) the close of business on
August 31, 2007, unless the Independent Directors determine at a meeting to
be
held within 30 days prior to August 31, 2007, that this Agreement continues
to
be in the best interests of the Company and its stockholders, (vi) the close
of
business on August 31, 2008, unless the stockholders of the Company approve
this
Agreement at the Company’s 2008 annual meeting of stockholders, and (vii) the
close of business on August 31, 2010. In the event the Expiration Date means
the
Effective Time, the Company shall promptly notify the Rights Agent after the
occurrence of such Effective Time."
(d) The
definition of "Stock Acquisition Date" in Section 1.1 of the Rights Agreement
is
hereby amended to add the following sentence at the end thereof:
"Notwithstanding
anything in this Agreement to the contrary, no Stock Acquisition Date shall
be
deemed to have occurred solely as a result of (i) the approval, adoption,
execution or delivery of the Merger Agreement, (ii) the approval, adoption,
execution or delivery of the Voting Agreement, (iii) the consummation of the
Merger or (iv) the consummation of any of the other transactions contemplated
by
the Merger Agreement or the Voting Agreement."
(e) The
definition of "Flip-in Date" in Section 1.1 of the Rights Agreement is hereby
amended to add the following at the end thereof immediately prior to the period:
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";
provided,
however,
that,
notwithstanding anything in this Agreement to the contrary, a Flip-in Date
shall
be deemed not to have occurred solely as a result of (i) the approval, adoption,
execution or delivery of the Merger Agreement, (ii) the approval, adoption,
execution or delivery of the Voting Agreement, (iii) the consummation of the
Merger or (iv) the consummation of any of the other transactions contemplated
by
the Merger Agreement or the Voting Agreement".
(f) The
definition of "Flip-over Transaction or Event" in Section 1.1 of the Rights
Agreement is hereby amended to add the following at the end thereof immediately
prior to the period:
";
provided,
however,
that,
notwithstanding anything in this Agreement to the contrary, a Flip-over
Transaction or Event shall be deemed not to have occurred solely as a result
of
(i) the approval, adoption, execution or delivery of the Merger Agreement,
(ii)
the approval, adoption, execution or delivery of the Voting Agreement, (iii)
the
consummation of the Merger or (iv) the consummation of any of the other
transactions contemplated by the Merger Agreement or the Voting
Agreement".
(g) The
definition of "Separation Time" in Section 1.1 of the Rights Agreement is hereby
amended to add the following at the end thereof immediately prior to the period:
";
provided,
however,
that,
notwithstanding anything in this Agreement to the contrary, a Separation Time
shall be deemed not to have occurred solely as a result of (i) the approval,
adoption, execution or delivery of the Merger Agreement, (ii) the approval,
adoption, execution or delivery of the Voting Agreement, (iii) the consummation
of the Merger or (iv) the consummation of any of the other transactions
contemplated by the Merger Agreement or the Voting Agreement ".
(h) Section
1.1 of the Rights Agreement is amended by adding at the end thereof the
following:
"Each
of
"Merger Agreement", "Parent", "Merger Sub" "Merger" and "Voting Agreement"
shall
have the meanings given to such terms in the definition of "Acquiring Person".
Section
3. Effective
Date.
This
Amendment shall become effective as of the date first written above, but such
effectiveness is contingent upon the execution and delivery of the Merger
Agreement by the parties thereto.
Section
4. Interpretation.
The
term "Agreement" as used in the Rights Agreement shall be deemed to refer to
the
Rights Agreement as amended by this Amendment.
Section
5. Effect
of Amendment.
Except
as expressly provided herein, the Rights Agreement shall be and remain in full
force and effect.
Section
6. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the laws
of
the State of Delaware (without giving effect to any conflict of laws principles
that would cause the application of the laws of any other jurisdiction).
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Section
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.
Section
8. Certification.
The
officer of the Company executing this Amendment, being an appropriate officer
of
the Company and authorized to do so by resolution of the Board of Directors
of
the Company duly adopted and approved at a meeting held on June 13, 2008, hereby
certifies to the Rights Agent that the amendments to the Rights Agreement set
forth in this Amendment are in compliance with the terms of Section 5.4 of
the
Rights Agreement.
Section
9. Severability.
If any
term, provision, covenant or restriction of this Amendment is held by a court
of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Amendment shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section
10. Descriptive
Headings.
Descriptive headings of the several Sections of this Amendment are inserted
for
convenience only and shall not control or affect the meaning or construction
of
any of the provisions hereof.
IN
WITNESS WHEREOF,
this
Amendment has been executed and delivered as of the date and year first above
written by a duly authorized officer or representative of each party hereto,
as
the case may be.
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WILSHIRE
ENTERPRISES, INC.
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By:
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/s/
Xxxxxx Xxxxxx Xxxx
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Name:
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Xxxxxx
Xxxxxx Izak
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Title:
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Chairman
of the Board
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CONTINENTAL
STOCK TRANSFER &
TRUST
COMPANY
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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Vice
President
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