AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT
TO RIGHTS AGREEMENT
This
AMENDMENT (“Amendment”),
effective as of April 27, 2008 by and between
Wm. Wrigley Jr. Company, a Delaware corporation (the “Company”), and
ComputerShare Trust Company N.A. (as successor to EquiServe, L.P.) (the “Rights
Agent”).
W
I T N E S S E T H
WHEREAS,
the Company and the Rights Agent are parties to the Rights Agreement, dated as
of June 1, 2001 (the “Rights
Agreement”);
WHEREAS,
capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Rights Agreement;
WHEREAS,
the Company believes it is in the best interests of the Company and its
stockholders to enter into an Agreement and Plan of Merger (the “Merger Agreement”),
dated April 28, 2008, among Mars, Incorporated, a Delaware corporation (“Parent”), New Uno
Holdings Corporation, a Delaware corporation,(“Holdings”), and New
Uno Acquisition Corporation, a Delaware corporation (“Merger
Sub”);
WHEREAS,
the Board of Directors of the Company has determined that an amendment to the
Rights Agreement as set forth herein is necessary and desirable in connection
with the foregoing;
WHEREAS,
pursuant to Section 26 (Supplements and Amendments) of the Rights Agreement,
prior to the Distribution Date, the Company may, and the Rights Agent shall, if
the Company so directs, supplement or amend the Rights Agreement without the
approval of any holders of Rights Certificates and the Company has so directed
the Rights Agent to join this Amendment; and
WHEREAS,
an officer of the Company has delivered to the Rights Agent a certificate as to
the compliance of this Amendment with the terms of Section
26 (Supplements and Amendments) of the Rights Agreement.
NOW,
THEREFORE, in consideration of the premises and agreements set forth herein and
in the Rights Agreement, the parties hereto, intending to be legally bound,
agree as follows:
Section 1. Defined
Terms. Section 1 (Certain Definitions) of the Rights Agreement
is hereby amended to add thereto the following paragraphs (ll), (mm), (nn),
(oo), (pp) and (qq) as follows:
“(ll)
“Exempt Event” shall have the meaning set forth in the definition of “Acquiring
Person.”
(mm)
“Holdings” shall mean New Uno Holdings Corporation, a Delaware
corporation.
(nn)
“Merger” shall mean the “Merger” as such term is defined in the Merger
Agreement.
(oo)
“Merger Agreement” shall mean that certain Agreement and Plan of Merger, dated
as of April 27, 2008, by and among the Company, Parent, Holdings and Merger Sub,
as it may be amended from time to time.
(pp)
“Merger Sub” shall mean New Uno Acquisition Corporation, a Delaware
corporation.
(qq)
“Parent” shall mean Mars, Incorporated, a Delaware corporation.
Section 2. Amendment to Definition of
Acquiring Person. The definition of “Acquiring Person” set
forth in Section 1(a) (Certain Definitions) of the Rights Agreement is hereby
amended and supplemented by adding the following sentence to the end
thereof:
“Notwithstanding
anything in this Agreement to the contrary, neither Parent, Holdings, Merger Sub
nor any of their existing or future Affiliates or Associates shall be deemed to
be an Acquiring Person solely by virtue of (i) the approval, execution or
delivery of the Merger Agreement, (ii) the public or other announcement of the
Merger Agreement or the other transactions contemplated by the Merger Agreement
or (iii) the consummation of the Merger or the other transactions contemplated
by the Merger Agreement (each of the events described in clauses (i), (ii) or
(iii) an “Exempt Event”).”
Section 3. Amendment to Section 3(a) of
the Rights Agreement. Section 3(a) (Issuance of Rights Certificates) of
the Rights Agreement is amended by adding the following sentence at the end
thereof:
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“Notwithstanding
anything in this Agreement to the contrary, neither a Stock Acquisition Date nor
a Distribution Date shall be deemed to have occurred solely as the result of an
Exempt Event.”
Section 4. Amendment to Definition of
Expiration Date. Section 7(a) (Exercise of Rights; Purchase
Price; Expiration Date) of the Rights Agreement is amended by deleting the word
“or” immediately preceding clause (ii), deleting the parenthetical “(the earlier
of (i) and (ii) being herein referred to as the “Expiration Date”)” at the end
of clause (ii) and adding the following at the end of clause (ii):
“and
(iii) immediately prior to the Effective Time, as that term is defined in the
Merger Agreement (the earliest of (i), (ii) and (iii) being herein referred to
as the “Expiration Date”).
Section 5. Amendment to Section 7(a) of
the Rights Agreement. Section 7(a) (Exercise of Rights;
Purchase Price; Expiration Date) of the Rights Agreement is amended by adding
the following sentence at the end thereof:
“Notwithstanding
anything to the contrary in this Agreement, no Exempt Event shall be deemed to
be an event that causes the Rights to become exercisable under the provisions of
this Section 7 or otherwise.”
Section 6. Amendment to Section
11(a)(ii) of the Rights Agreement. Section 11(a)(ii) (Adjustment of
Purchase Price, Number and Kind of Shares or Number of Rights) of the Rights
Agreement is amended by adding the following sentence at the end
thereof:
“Notwithstanding
anything to the contrary in this Agreement, no Exempt Event shall be deemed to
constitute an event of the type described in this Section 11(a)(ii) or cause the
Rights to be adjusted or become exercisable in accordance with this Section
11.”
Section 7. Amendment to Section 12 of
the Rights Agreement. Section 12 (Consolidation, Merger or Sale or
Transfer of Assets Cash Flow or Earning Power) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
“Notwithstanding
anything to the contrary in this Agreement, no Exempt Event shall be deemed to
be an event of the type described in this Section 12 or cause the Rights to be
adjusted or to become exercisable in accordance with this Section 12 or
otherwise be subject to any restrictions contained in this Section
12.”
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Section 8. Amendment to Section 29 of
the Rights Agreement. Section 29 (Benefits of this Agreement) of the
Rights Agreement is amended by adding the following sentence at the end
thereof:
“Notwithstanding
the foregoing, nothing in this Agreement shall be construed to give any
registered holder of the Rights Certificates (and prior to any Distribution
Date, the Common Stock or Class B Common Stock) any legal or equitable rights,
remedy or claim under this Agreement in connection with any Exempt
Event.”
Section 10. Effectiveness. This
Amendment shall be deemed effective as of, and immediately prior to, the
execution and delivery of the Merger Agreement. Except as amended by
this Amendment, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected by this Amendment.
Section 11. Severability. If
any provision of this Amendment, or the application of such provision to any
person or circumstance, shall be held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
provisions of this Amendment shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
Section 12. Counterparts. This
Amendment may be executed in any number of counterparts, and each of such
counterparts shall for all purposes be deemed an original, but all such
counterparts shall together constitute but one and the same
instrument.
Section 13. Governing
Law. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts made and to be performed entirely within such state.
Section 14. 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 of this Amendment.
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Section 15. Further
Assurances. Each of the parties to this Amendment shall
cooperate and take such action as may be reasonably requested by the other party
in order to carry out the provisions and purposes of this Amendment, the Rights
Agreement and the transactions contemplated hereunder and/or
thereunder.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first written above.
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WM.
WRIGLEY JR. COMPANY
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By:
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/s/
Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Title:
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Senior
Vice President, Secretary and General Counsel
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Countersigned:
COMPUTERSHARE,
N.A., as Rights Agent
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By:
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/s/
Xxxxxxx Xxxxx
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Secretary
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[Amendment to Rights Agreement]
