AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Amendment No. 1, dated as of September 15, 1993 (this "Amendment"), between
United Water Resources Inc., a New Jersey corporation (the "Company"), and First
Interstate Bank of California (the "Rights Agent"), as successor to the trust
business of First Interstate Bank, Ltd., to the Rights Agreement, dated as of
July 12, 1989 (the "Rights Agreement"), between the Company and the Rights
Agent.
WHEREAS, the Company and the Rights Agent have entered into the Rights
Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors deems it in the best interests of the Company and its shareholders,
necessary and desirable, and consistent with and for the purpose of fulfilling
the objectives of the Company's Board of Directors in authorizing the execution
of the Rights Agreement, to amend the Rights Agreement as set forth below.
NOW THEREFORE, in consideration of the premises and the mutual promises set
forth herein and in the Rights Agreement, the parties hereto agree as follows:
Section 1. The definition of "Acquiring Person" contained in Section 1(a)
of the Rights Agreement is hereby amended to read in its entirety as follows:
"Acquiring Person" shall mean any Person (as hereinafter defined) who
or which, together with all Affiliates and Associates (as such terms are
hereinafter defined) of such Person, shall be the Beneficial Owner (as
hereinafter defined) of 20% or more of the Common Shares of the Company
then outstanding, but shall not include the Company, any Subsidiary (as
hereinafter defined) of the Company, any employee benefit plan of the
Company or of any
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Subsidiary of the Company, any entity holding Common Shares for or pursuant
to the terms of any such plan, or Lyonnaise (as hereinafter defined).
Notwithstanding the foregoing, no Person shall become an "Acquiring Person"
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 20% or more of the
Common Shares of the Company then outstanding; provided, however, that if a
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, any entity
holding Common Shares for or pursuant to the terms of any such plan, or
Lyonnaise) becomes the Beneficial Owner of 20% or more of the Common Shares
of the Company then outstanding by reason of share purchases by the Company
and shall, after such purchase by the Company, become the Beneficial Owner
of any additional Common Shares of the Company, then such Person shall be
deemed to be an "Acquiring Person"; provided, further, however, that no
stockholder of the Company shall be deemed to be an Acquiring Person as a
result of the execution, delivery or performance by the Company of the
Merger Agreement (as hereinafter defined) or the consummation of the
transactions contemplated thereby.
Section 2. Section 1 of the Rights Agreement is hereby amended to add the
new subsections (p), (q) and (r) which read in their entirety as follows:
(p) "Lyonnaise" shall mean Lyonnaise des Eaux- Xxxxx, a French
corporation, or any Affiliate or Associate thereof (including,
without limitation, Lyonnaise American Holding Inc., a Delaware
corporation).
(q) "Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of September 15, 1993, between the Company and GWC
Corporation, a Delaware corporation.
(r) "Governance Agreement" shall mean the governance agreement to be
executed by Lyonnaise and the Company pursuant to the Merger
Agreement upon the consummation of the transactions contemplated
thereby.
Section 3. Section 3(a) of the Rights Agreement is hereby amended to read
in its entirety as follows:
(a) Until the earlier of (i) the tenth day after the Shares
Acquisition Date or (ii) the tenth day after
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the date of the commencement by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of
any Subsidiary of the Company, any entity holding Common Shares for or
pursuant to the terms of any such plan, or Lyonnaise) of, or of the first
public announcement of the intention of any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the Company or
of any Subsidiary of the Company, any entity holding Common Shares for or
pursuant to the terms of any such plan, or Lyonnaise) to commence, a tender
or exchange offer the consummation of which would result in any Person
becoming the Beneficial Owner of Common Shares aggregating 20% or more of
the then outstanding Common Shares (including any such tenth day which is
after the date of this Agreement and prior to the issuance of the Rights:
the earlier of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by the certificates for Common Shares registered in
the names of the holders thereof (which certificates shall also be deemed
to be Right Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable only in
connection with the transfer of Common Shares; provided, however, that
there shall be no Distribution Date as a result of the execution, delivery
or performance by the Company of the Merger Agreement or the consummation
of the transactions contemplated thereby (including, without limitation,
the exercise by Lyonnaise of any of its rights pursuant to the Governance
Agreement). As soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent will, if
requested, send) by first-class, insured, postage-prepaid mail, to each
record holder of Common Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the records of
the Company, a Right Certificate, in substantially the form of Exhibit B
hereto (a "Right Certificate"), evidencing one Right for each Common Share
so held. As of the Distribution Date, the Rights will be evidenced solely
by such Right Certificates.
Section 4. Section 11(a)(iii) of the Rights Rights Agreement is hereby
amended to read in its entirety as follows:
(iii) The right to buy Common Shares of the Company pursuant to
subparagraph (ii) of this
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paragraph (a) shall not arise as a result of (x) the execution, delivery or
performance by the Company of the Merger Agreement or the consummation of
the transactions contemplated thereby (including, without limitation, the
exercise by Lyonnaise of any of its rights pursuant to the Governance
Agreement) or (y) any Person becoming an Acquiring Person through a
purchase of Common Shares pursuant to a tender offer made in the manner
prescribed by Section 14(d) of the Exchange Act and the rules and
regulations promulgated thereunder; provided, however, that (A) such tender
offer shall provide for the acquisition of all of the outstanding Common
Shares held by any Person other than such Person and its Affiliates for
cash and (B) such purchase shall cause such Person, together with all
Affiliates and Associates of such Person, to be the Beneficial Owner of 80%
or more of the Common Shares then outstanding.
Section 5. Section 13(a) of the Rights Agreement is hereby amended to read
in its entirety as follows:
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, (a) the Company shall
consolidate with, or merge with and into, any other Person (other than
pursuant to the Merger Agreement), (b) any Person shall consolidate with
the Company, or merge with and into the Company (other than pursuant to the
Merger Agreement) and the Company shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or part
of the Common Shares shall be changed into or exchanged for stock or other
securities (other than Common Shares) of any Person (including the Company)
or cash or any other property, or (c) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions (other than pursuant to the Merger
Agreement), assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as a whole) to
any other Person other than the Company or one or more of its wholly-owned
Subsidiaries, then, and in each such case, proper provision shall be made
so that (i) each holder of a Right (except as otherwise provided herein)
shall thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current Purchase Price multiplied by the number of
one one-hundredth interests in a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu of
Preferred Shares, such number of Common Shares of such other Person
(including the company as successor thereto or as the surviving
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corporation) as shall equal the result obtained by (A) multiplying the then
current Purchase Price by the number of one one-hundredth interests in a
Preferred Share for which a Right is then exercisable and (B) dividing that
product by 50% of the then current per share market price of the Common
Shares of such other Person (determined pursuant to Section 11(d) hereof)
on the date of consummation of such consolidation, merger, sale or
transfer; (ii) the issuer of such Common Shares shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be deemed to refer to
such issuer; and (iv) such issuer shall take such steps (including, but not
limited to, the reservation of a sufficient number of its Common Shares in
accordance with Section 9 hereof) in connection with such consummation as
may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the Common
Shares thereafter deliverable upon the exercise of the Rights. The Company
shall not consummate any such consolidation, merger, sale or transfer
unless prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so providing. The
Company shall not enter into any transaction of the kind referred to in
this Section 13 if at the time of such transaction there are any rights,
warrants, instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such transaction,
would eliminate or substantially diminish the benefits intended to be
afforded by the Rights. The provisions of this Section 13 shall similarly
apply to successive mergers or consolidations or sales or other transfers.
Section 6. Section 26 of the Rights Agreement is hereby amended to delete
the reference to First Interstate Bank, Ltd. and its address on the seventeenth
through the twenty-second lines thereof and to insert in lieu thereof the
following:
First Interstate Bank of California
Stock Transfer Administration
000 Xxxxxxxx Xxxxxxxxx - XXX-0
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Section 7. Except as expressly set forth herein, this Amendment shall not
by implication or otherwise alter, modify,
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amend or in any way affect any of the terms, conditions, covenants or agreements
contained in the Rights Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.
Section 8. This Amendment shall be deemed to be a contract made under the
laws of the State of New Jersey and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
Section 9. This Amendment may be executed in 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the
Rights Agreement to be duly executed and attested, all as of the date first
above written.
UNITED WATER RESOURCES, INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
Attest:
By: /s/ Xxxxxxx XxXxxxx
Title: Vice President and
General Counsel
FIRST INTERSTATE BANK OF CALIFORNIA
By: /s/ C. Xxxxx Xxxxxx
Name: C. Xxxxx Xxxxxx
Title: Vice President
Attest:
By: /s/ Xxxxxxx X. Xxxxx
Title: Assistant Vice President
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