First Amendment to
Agreement Restating 1984 Nicor Capital Accumulation Plan Participation
Agreement
For Officers and Directors
First Amendment to
Agreement Restating 1985 Nicor Capital Accumulation Plan Participation
Agreement
For Officers and Directors
Upon the recommendation of the Compensation Committee of the Board of
Directors (the "Board") of __________________________(the "Company"), the 1984
Capital Accumulation Plan Participation Agreement dated ____________ and the
1985 Capital Accumulation Plan Participation Agreement dated ____________
between __________________ and the Company (the "CAP Agreements") have been
amended by resolution of its Board of Directors (the "Resolution") adopted on
December 7, 1999, with such amendments to be effective pursuant to the terms of
the Resolution. Pursuant to the Resolution and under the authority granted to
certain officers of the Company by the Resolution, the CAP Agreements are hereby
amended in the following particulars:
1. The following shall be substituted for the portion of the section titled
"Change in Control Benefit" of the CAP Agreement(s) beginning after "The term
"change in control" means:"
(a) The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"))(a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of any shares of
Common Stock of the Company or any voting securities of the Company entitled
to vote generally in the election of directors if, as a result of such
acquisition, such person owns 20% or more of either (i) the outstanding
shares of common stock of the Company (the "Outstanding Company Common
Stock"), or (ii) the combined voting power of the outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however,
that for purposes of this subsection 5.7(a), the following acquisitions shall
not constitute a Change in Control: (A) any acquisition by the Company, (B)
any acquisition by an employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company (a
"Company Plan"), or (C) any acquisition by any corporation pursuant to a
transaction which complies with subsections (c)(1), (c)(2), and (c)(3) of
this definition; provided further, that for purposes of clause (A), if any
Person (other than the Company or any Company Plan) shall become the
beneficial owner of 20% or more of the Outstanding Company Common Stock or
20% or more of the Outstanding Company Voting Securities by reason of an
acquisition by the Company, and such Person shall, after such acquisition by
the Company, become the beneficial owner of any additional shares of the
Outstanding Company Common Stock or any additional Outstanding Company Voting
Securities (other than pursuant to any dividend reinvestment plan or
arrangement maintained by the Company) and such beneficial ownership is
publicly announced, such additional beneficial ownership shall constitute a
Change in Control; or
(b) Individuals who, as of December 7, 1999, constitute the Board of
Directors of the Company (for purposes of this definition, the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Incumbent Board; provided, however, that any individual becoming a director
subsequent to December 7, 1999 whose election, or nomination for election by
the Company shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or publicly threatened election contest (as
such terms are used in Rule 14a-11 promulgated under the Exchange Act) or
other actual or publicly threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board of Directors of the Company; or
(c) Consummation, including receipt of any necessary regulatory approval, of
(i) a reorganization, merger, consolidation, or other business combination
involving the Company or (ii) the sale or other disposition of more than 50%
of the operating assets of the Company (determined on a consolidated basis),
other than in connection with a sale-leaseback or other arrangement resulting
in the continued utilization of such assets (or the operating products of
such assets) by the Company (any transaction described in part (i) or (ii)
being referred to as a "Corporate Transaction"); excluding, however, a
Corporate Transaction pursuant to which:
(1) all or substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Company Common Stock
and Outstanding Company Voting Securities immediately prior to such
Corporate Transaction beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the case may be, of the
ultimate parent entity resulting from such Corporate Transaction
(including, without limitation, an entity which, as a result of such
transaction, owns the Company or all or substantially all of the assets of
the Company either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior
to such Corporate Transaction of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be;
(2) no Person (other than the Company, any Company Plan or related trust,
the corporation resulting from such Corporate Transaction, and any Person
which beneficially owned, immediately prior to such Corporate Transaction,
directly or indirectly, 20% or more of the Outstanding Company Common
Stock or the Outstanding Company Voting Securities, as the case may be)
will beneficially own, directly or indirectly, 20% or more of,
respectively, the then outstanding common stock of the ultimate parent
entity resulting from such Corporate Transaction or the combined voting
power of the then outstanding voting securities of such entity; and
(3) individuals who were members of the Incumbent Board will constitute at
least a majority of the members of the board of directors of the ultimate
parent entity resulting from such Corporate Transaction; or
(d) Tender offer (for which a filing has been made with the Securities and
Exchange Commission (the "SEC") which purports to comply with the
requirements of Section 14(d) of the Exchange Act and the corresponding SEC
rules) is made for the stock of the Company, which has not been negotiated
and approved by the Board, provided that in case of a tender offer described
in this subsection (d), the Change in Control will be deemed to have occurred
at the first time during the offer period when the Person (as defined in
subsection (a) above) making the offer beneficially owns or has accepted for
payment stock of the Company with 20% or more of the combined voting power of
the then Outstanding Company Voting Securities; or
(e) Approval by the shareholders of the Company of a plan of complete
liquidation or dissolution of the Company.
(f) For purposes of this definition of Change in Control, (i) the term
"Company" shall mean Nicor Inc. and shall include any Successor to Nicor
Inc.; and (ii) the term "Successor to Nicor Inc." shall mean any corporation,
partnership, joint venture or other entity that succeeds to the interests of
Nicor Inc. by means of a merger, consolidation or other restructuring that
does not constitute a Change in Control under subsections (a), (c) or (d)
above.
2. The portion of the first sentence of the section titled "Change in Control
Benefit" of the CAP Agreement(s) beginning after "in a lump sum," be replaced
with the following:
"an amount determined in accordance with the following paragraphs equal to:
(a) first, increase the amount actually deferred under section 1 of this
Agreement with interest at the rate of 20% per year for the period between
the Commencement Date and the date a payment was made under paragraph 2 or 3
of this Agreement;
(b) next reduce the amount determined in accordance with paragraph (a) above
by any amounts previously paid under paragraph 2 or 3 of this Agreement;
(c) next, increase the amount determined in accordance with paragraph (b)
above with interest at the rate of 20% per year for the period between the
date of payment under paragraph 2 or 3 of this Agreement and the date of
payment under this paragraph of this Agreement.
For purposes of this paragraph, interest shall be compounded on the first day
of each calendar year with no adjustment for a partial year."
3. A sentence be added after the language in 2. above:
"If the Employe becomes entitled to payment under this paragraph, no payment
to him or on his behalf shall be made under any other paragraph of this
Agreement."
IN WITNESS WHEREOF, the Employee has set his hand, and the Company has caused
these presents to be signed on behalf of the Company as of this _____ day of
_________l, 2000.
------------------------------
(Insert name of Employee)
(Name of Company)
By________________________________
Xxxxxx X. Xxxxxx
(Title)
