AMENDMENT NO. 1
to
RIGHTS AGREEMENT
between
DPL INC.
and
FLEET NATIONAL BANK (f/k/a BANKBOSTON, N.A.,
f/k/a THE FIRST NATIONAL BANK OF BOSTON),
as Rights Agent
Dated as of February 1, 2000
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
-----------------------------------
THIS AMENDMENT NO. 1 to the Rights Amendment dated as of
December 3, 1991 (the "Rights Agreement") is made as of February
1, 2000, between DPL INC., an Ohio corporation (the "Company"),
and FLEET NATIONAL BANK (f/k/a BANKBOSTON, N.A., f/k/a THE FIRST
NATIONAL BANK OF BOSTON), as Rights Agent (the "Rights Agent"),
under the following circumstances:
A. The Company and the Rights Agent have
heretofore entered into the Rights Agreement. Unless
otherwise defined herein, terms defined in the Rights
Agreement are used herein as therein defined.
B. The Company, DPL Capital Trust I, a Delaware
business trust, Dayton Ventures LLC, a Delaware limited
liability company (the "Equity Purchaser"), and Dayton
Ventures, Inc., a Cayman Islands company, are entering
into, concurrently herewith, the Securities Purchase
Agreement dated as of February 1, 2000 (as amended or
supplemented from time to time, the "Purchase Agreement")
pursuant to which, among other things, the Company has
agreed to issue and sell to the Equity Purchaser a series
of voting preferred shares of the Company and warrants
(the "Warrants") to purchase Common Shares of the Company.
C. Under Section 26(a) of the Rights Agreement,
at any time prior to the Distribution Date, the Company
may, except as provided in and subject to Section 26(c)
of the Rights Agreement, and the Rights Agent shall, if
the Company so directs, supplement or amend any provision
of the Rights Agreement without the approval of any holder
of the Rights.
D. The Distribution Date has not occurred as of
the date hereof.
E. At a meeting of the Board of Directors of the
Company duly called and held on February 1, 2000, at
which meeting a quorum was present and acting throughout,
the Board of Directors of the Company duly adopted an
amendment to the definition of "Acquiring Person" set
forth in Section 1(a) of the Rights Agreement. A true and
correct copy, as certified by the Secretary of the Company,
of the resolutions duly adopted by the Board of Directors of
the Company at such meeting adopting such amendment to such
definition of "Acquiring Person" is attached hereto as Annex A.
F. Such amendment to the definition of "Acquiring
Person" is not precluded or prohibited by Section 26(c) of
the Rights Agreement and, pursuant to Section 26(d) of the
Rights Agreement, such amendment shall be deemed effective
immediately upon the action of the Board of Directors of the
Company providing for such amendment.
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Amendment to further memorialize such amendment to
the definition of "Acquiring Person" adopted by the Board
of Directors of the Company at its February 1, 1999 meeting.
NOW, THEREFORE, it is hereby agreed as follows:
Section 1. Section 1(a) of the Rights Agreement is hereby
amended, effective as of the date hereof, by deleting such
Section 1(a) in its entirety and by inserting, in lieu thereof,
the following:
"(a) `Acquiring Person' shall mean any Person who
or which, together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner of 15% or
more of the Common Shares then outstanding (determined
without taking into account any securities exercisable
or exchangeable for, or convertible into, Common Shares,
other than any such securities beneficially owned by the
Acquiring Person and Affiliates and Associates of such
Person) or who or which was such a Beneficial Owner at
any time after December 3, 1991, whether or not such
Person continues to be the Beneficial Owner of 15% or
more of the Common Shares. Notwithstanding the foregoing:
(i) no Exempt Person shall be deemed an
`Acquiring Person';
(ii) no Person shall become an `Acquiring
Person' solely as the result of an acquisition of
Common Shares by the Company which, by reducing
the number of shares outstanding, increases the
proportionate number of shares beneficially owned
by such Person to 15% or more of the Common Shares
then outstanding (as determined above); provided,
however, that, if a Person becomes the Beneficial
Owner of 15% or more of the Common Shares then
outstanding (as determined above) solely by reason
of share purchases by the Company and shall, after
such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares
by any means whatsoever (other than pursuant to a
stock split, stock dividend or similar transaction),
then such Person shall be deemed to be an `Acquiring
Person'; and
(iii) neither Kohlberg Kravis Xxxxxxx & Co.
L.P. ("KKR") nor any Affiliate of KKR (KKR and
each Affiliate of KKR is hereinafter referred to
as a `KKR Person') shall be deemed an `Acquiring
Person' as long as no KKR Person, together with
all Affiliates and Associates of such KKR Person,
shall be the Beneficial Owner of more than 25% of
the Common Shares then outstanding (as determined
above); provided, however, that: (x) if any KKR
Person, together with all Affiliates and Associates
of such KKR Person, shall be or become the Beneficial
Owner of more than 25%
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of the Common Shares then outstanding (as determined
above), other than solely as a result of the acquisition
of Common Shares by the Company, then such KKR Person
shall be deemed to be an `Acquiring Person', (y) no
KKR Person shall become an `Acquiring Person' solely
as the result of an acquisition of Common Shares by
the Company which, by reducing the number of shares
outstanding, increases the proportionate number of
shares beneficially owned by such KKR Person to
more than 25% of the Common Shares of the Company
then outstanding (as determined above), provided
that, if a KKR Person becomes the Beneficial Owner
of more than 25% of the Common Shares then outstanding
(as determined above) solely by reason of share
purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial
Owner of any additional Common Shares by any means
whatsoever (other than pursuant to a stock split,
stock dividend or similar transaction), then such KKR
Person shall be deemed to be an `Acquiring Person,'
and (z) subject to clause (ii) above, if any Person
(other than a KKR Person) acquires by any means
whatsoever any Common Shares from any KKR Person and
if such Person, together with all Affiliates and
Associates of such Person, shall be or become the
Beneficial Owner of 15% or more of the Common
Shares then outstanding (as determined above), then
such Person shall be deemed to be an `Acquiring
Person'."
Section 2. Except as amended hereby, the Company and the
Rights Agent hereby ratify and confirm the Rights Agreement in
all respects.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
DPL INC.
By: /s/Xxxxxxx X. Xxxxxx Xx.
------------------------
Xxxxxxx X. Xxxxxx Xx.
Title: Group Vice President
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XXXXX XXXXXXXX XXXX (x/x/x XXXXXXXXXX, X.X.,
f/k/a THE FIRST NATIONAL BANK OF BOSTON)
By: /s/Xxxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
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