SECOND AMENDMENT TO RIGHTS AGREEMENT
Exhibit
4.1
SECOND
AMENDMENT TO RIGHTS AGREEMENT
This
SECOND
AMENDMENT TO RIGHTS AGREEMENT,
effective as of July 11, 2007, is between Franklin Electric Co., Inc., an
Indiana corporation (the “Company”) and LaSalle Bank National Association, as
Rights Agent (the “Rights Agreement”).
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 (as amended, the “Rights Agreement”); and
WHEREAS,
the
Company desires to amend the Rights Agreement, pursuant to and as permitted
under Section 27a of the Rights Agreement;
NOW,
THEREFORE,
it is
mutually agreed between the Company and the Rights Agent that:
1. Section
1a(x) of the Rights Agreement is hereby amended to delete the word “or” between
clause (v) and clause (vi), to add the word “or” between clause (vi) and new
clause (vii), and to add a new clause (vii) that will read as
follows:
(vii)
Select Equity Group, Inc., Select Offshore Advisors, LLC and their respective
Affiliates and Associates (collectively, the “Select Parties”), as long as
either (A) the Select Parties Beneficially Own no more than 17.5% of the
outstanding shares of Common Stock and are eligible to report such ownership
on
Schedule 13G under the Exchange Act (or any comparable or successor report)
or
on Schedule 13D under the Exchange Act (or any comparable or successor report)
which Schedule 13D does not state any intention to or reserve the right to
control or influence the management or policies of the Company or engage in
any
of the actions specified in Item 4 of such Schedule (other than the acquisition
or disposition of Common Stock) or (B) if the Select Parties are required to
report their Beneficial Ownership of Common Stock on Schedule 13D under the
Exchange Act (or any comparable or successor report) which Schedule 13D states
any intention to or reserves the right to control or influence the management
or
policies of the Company or engage in any of the actions specified in Item 4
of
such Schedule (other than the acquisition or disposition of Common Stock),
then
the Select Parties Beneficially Own no more than 10% of the outstanding shares
of Common Stock; provided, however, that, if the Select Parties cease to be
deemed pursuant to clause (A) of this Section 1a(x)(vii) not to be an Acquiring
Person by virtue of being required to file a Schedule
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13D
stating an intention or reserving a right inconsistent with such clause (A),
then the Select Parties shall be deemed pursuant to clause (B) of this Section
1a(x)(vii) not to be Acquiring Persons, but only for a limited period following
the time the Select Parties ceased to be deemed pursuant to such clause (A)
not
to be Acquiring Persons (such limited period ending on the earlier of 135 days
following the time the Select Parties ceased to be deemed pursuant to such
clause (A) not to be Acquiring Persons and 90 days following delivery by the
Company to the Select Parties of a “Purchase Notice” or a “Non-Purchase Notice”
pursuant to that certain Shareholders Agreement made and entered into as of
July 11, 2007, by and between the Company and the Select Parties), without
regard to whether the Select Parties Beneficially Own during such limited period
more than 10% of the outstanding Common Stock (so long as the Select Parties
do
not Beneficially Own during such period more than 17.5% of the outstanding
Common Stock); and provided, further, that, for all purposes of this Section
1a(x)(vii), the Select Parties shall be deemed not to be Acquiring Persons
if
(W) at any time there is a reduction in the number of shares of Common Stock
outstanding, (X) prior to the time of such reduction in the number of shares
of
Common Stock outstanding the Select Parties were not, or were deemed not to
be,
Acquiring Persons, (Y) following the time of such reduction in the number of
shares of Common Stock outstanding the Select Parties are, or would be deemed
to
be, Acquiring Persons, and (Z) following the time of such reduction in the
number of shares of Common Stock outstanding the Select Parties do not acquire
Beneficial Ownership of any additional shares of Common Stock.
2. The
execution and delivery of this Second 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 Second Amendment. This Second 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.
3. Except
as
expressly amended by this Second 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.
4. Upon
execution hereof, each reference in the Rights Agreement to “this Agreement,”
“hereby,” “hereunder,” “herein,” “hereof,” or words of like import referred to
the Rights Agreement shall mean and refer to the Rights Agreement, as amended
by
this Second 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 Second Amendment;
but nevertheless all references to the Rights Agreement shall be a reference
to
such document as amended hereby. If this Second
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Amendment
is inconsistent with (or affects the interpretations of) unamended portions
of
the Rights Agreement, the provisions of (or interpretation suggested by) this
Second Amendment shall control.
5. This
Second Amendment shall be governed by and construed in accordance with Indiana
law.
6. This
Second Amendment maybe executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one
agreement.
IN
WITNESS WHEREOF,
the
Company and LaSalle Bank National Association, as Rights Agent, have caused
this
Second Amendment to Rights Agreement to be duly executed and their respective
corporate seals to be hereunto affixed and attested, all as of this
11th
day of
July, 2007.
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Attest:
By:
Name: Xxxxxx
X. Xxxxxx
Title: Corporate
Governance Manager
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Franklin
Electric Co., Inc.
By:
Name: Xxxxxx
X. Xxxxxx
Title: Vice
President, Chief Financial Officer
and
Secretary
|
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Attest:
By:
Name: Xxxxxx
Xxxxxxxx
Title: Vice
President
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LaSalle
Bank National Association
By:
Name: Xxxx
X. Xxxxxx
Title: Vice
President
|
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