FOURTH AMENDMENT TO RIGHTS AGREEMENT
EXHIBIT
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CONFORMED
COPY
FOURTH
AMENDMENT TO RIGHTS AGREEMENT
This
Fourth Amendment (this “Amendment”)
dated
as of December 18, 2005, to the Rights Agreement dated as of July 1,
1996 and amended thereafter (the “Rights
Agreement”),
between FPL Group, Inc., a Florida corporation (the “Company”),
and
COMPUTERSHARE INVESTOR SERVICES, LLC, a Delaware limited liability company,
as
successor to EquiServe Trust Company, N.A., a national banking association
(the
“Rights
Agent”).
WHEREAS
the Company and the Rights Agent have previously entered into the Rights
Agreement;
WHEREAS,
pursuant to Section 27 of the Rights Agreement, the Company may from time
to time supplement or amend the Rights Agreement in accordance with the
provisions of Section 27 thereof; and
WHEREAS
all acts and things necessary to make this Amendment a valid agreement have
been
done and performed and the execution and delivery of this Amendment by the
Company and the Rights Agent have been in all respects duly authorized by the
Company and the Rights Agent.
NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements set
forth
in the Rights Agreement and this Amendment, the parties hereto hereby agree
as
follows:
Section
1. Amendments
to Section 1. (a) Section 1(a)
of the Rights Agreement hereby is amended by inserting the following at the
end
of such section:
Notwithstanding
anything in this Rights Agreement to the contrary, none of Constellation Energy
Group, Inc., a Maryland corporation (“Constellation”) or CF Merger Corporation,
a Florida corporation and a wholly-owned subsidiary of Constellation (“Merger
Sub”) or any of their respective Affiliates or Associates shall become an
Acquiring Person solely as a result of (i) the adoption, approval,
execution or delivery of the Merger Agreement, (ii) the public announcement
of such adoption, approval, execution or delivery or (iii) the consummation
of the transactions contemplated or permitted by the terms of the Merger
Agreement.
(b)
Section 1 of the Rights Agreement is hereby amended by adding a new paragraph
(q):
(q)
“Merger Agreement” shall mean the Agreement and Plan of Merger dated as of
December 18, 2005, among the Company,
Constellation
and Merger Sub (as the same may be amended or supplemented).
Section
2. Addition
of a new Section 34.
The
Rights Agreement is hereby amended by adding a new Section 34 immediately after
Section 33 thereof to read in its entirety as follows:
Section
34. Consequences of Merger Agreement. Notwithstanding anything in this Rights
Agreement to the contrary,
(a)
the
occurrence of (i) the adoption, approval, execution or delivery of the
Merger Agreement, (ii) the public announcement of such adoption, approval,
execution or delivery or (iii) the consummation of the transactions
contemplated or permitted by the terms of the Merger Agreement shall not, in
each case, individually or collectively, (A) be deemed to constitute a Shares
Acquisition Date, Distribution Date or any other separation of the Rights from
the underlying Common Stock, (B) entitle or permit the holders of the
Rights to exercise the Rights or otherwise affect the rights of the holders
of
the Rights (and shall not give the holders of the Rights the right to acquire
securities of any party to the Merger Agreement or any party to the transactions
contemplated or permitted by the terms of the Merger Agreement), (C) require
(or
constitute a transaction requiring) any action pursuant to Section 13 of the
Rights Agreement or (D) require that any notice be delivered pursuant to
Section 25 of the Rights Agreement; and
(b)
any
Rights outstanding at the Effective Time (as defined in the Merger Agreement),
and all rights represented thereby, shall automatically expire and terminate
upon the Effective Time without any action on the part of the Company, the
Rights Agent or any other person.
Section
3. Effective
Date.
This
Amendment shall become effective upon the execution and delivery of the Merger
Agreement. If the Merger Agreement is terminated without the Effective Time
(as
defined in the Merger Agreement) having occurred, this amendment shall
thereafter be null and void.
Section
4. Full
Force and Effect.
Except
as expressly amended hereby, the Rights Agreement shall continue in full force
and effect in accordance with the provisions thereof on the date
hereof.
Section
5. Governing
Law.
This
Amendment shall be deemed to be a contract made under the laws of the State
of
Florida 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, provided, however, all provisions regarding the
rights, duties, and obligations of the Rights Agent (if any) shall be governed
by and construed in accordance with the laws of the State of
Illinois.
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Section
6. Counterparts.
This
Amendment may be executed in any number of 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.
Section
7. Rights
Agreement as Amended.
Upon the
effectiveness of this amendment, the term “Rights Agreement” as used in the
Rights Agreement shall refer to the Rights Agreement as amended
hereby.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and attested, all as of the day and year first above
written.
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Attest:
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FPL
GROUP, INC.,
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By:
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/s/ ▇▇▇▇▇▇
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By:
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/s/
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Name:
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Name: ▇▇▇▇▇▇
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Title: Vice
President, Engineering, Construction
and Corporate Services |
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TiTitle:
Vice
President and General Counsel
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Attest:
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COMPUTERSHARE
INVESTOR SERVICES, LLC,
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By:
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/s/
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By:
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/s/ ▇▇▇
▇▇▇▇▇▇
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Name:
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Name:
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Title:
Senior Relationship Manager
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Title:
Senior Relationship Manager
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