SECOND AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT
THIS SECOND AMENDMENT to the Shareholder Rights Agreement (as amended,
the "Rights Agreement"), dated as of November 21, 1991, between Florida Progress
Corporation (the "Company") and Manufacturers Hanover Trust Company
("Manufacturers"), as amended by Amendment to Shareholder Rights Agreement,
dated as of February 20, 1997, between the Company and The First National Bank
of Boston, as successor to Manufacturers, is made and entered into as of August
22, 1999, between the Company and BankBoston, N.A. (formerly known as The First
National Bank of Boston), a national banking association (the "Rights Agent").
WHEREAS, the parties hereto are parties to the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors deems it necessary and desirable and in the best interests of the
Company and its shareholders to amend the Rights Agreement as set forth below;
and
WHEREAS, the parties hereto desire to amend the Rights Agreement, as
provided herein.
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:
1. The third sentence of the definition of "Acquiring Person" as set
forth in Section 1(a) of the Rights Agreement is hereby amended in its entirety
as follows:
Notwithstanding the foregoing, (i) no Person shall become an
"Acquiring Person" as the result of an acquisition of shares of Common
Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially
owned by such Person (together with all Affiliates and Associates of
such Person) to 15% or more of the shares of Common Stock of the
Company then outstanding; provided, however, that if a Person
(together with all Affiliates and Associates of such Person) becomes
the Beneficial Owner of 15% or more of the shares of Common Stock of
the Company then outstanding by reason of share purchases by the
Company and shall, after such share purchases by the Company, become
the Beneficial Owner of any additional shares of the Common Stock of
the Company (other than by means of a stock dividend or stock split),
then such Person shall be deemed to be an "Acquiring Person" and (ii)
neither Carolina Power & Light Company ("CPL") nor CP&L Holdings, Inc.
("Holdco") shall be deemed an "Acquiring Person" as a result of the
execution, delivery and performance of the
Agreement and Plan of Exchange (the "Exchange Agreement") dated as of
August 22, 1999, among CPL, the Company and Holdco or the consummation
of the transactions contemplated by the Exchange Agreement (the
"Exchange").
2. Section 7(a) of the Rights Agreement is hereby amended by
replacing the phrase "(the earlier of the dates specified in Section 7(a)(i) or
7(a)(ii) being referred to in this Agreement as the "Expiration Date")" with the
following:
or (iii) immediately prior to the effective time of the Exchange
contemplated by and in accordance with the Exchange Agreement (the
earlier of the dates specified in Section 7(a)(i), 7(a)(ii) or
7(a)(iii) being referred to in this Agreement as the "Expiration
Date").
3. Section 11(a)(ii)(B) of the Rights Agreement is hereby amended by
adding, after the phrase "Section 13(a) of this Agreement,", the following:
"pursuant to the Exchange Agreement".
4. Clause (a)(iii) of Section 13 of the Rights Agreement is hereby
amended to read in its entirety as follows:
(iii) other than pursuant to the Exchange Agreement, the Company
shall effect a statutory share exchange, with the outstanding common
stock of the Company being exchanged for stock or other securities of
any other Person, or for money or other property; or
5. Section 18 of the Rights Agreement is hereby amended by adding
the word "gross" before the word "negligence" in the second sentence thereof.
6. Section 20(c) of the Rights Agreement is hereby amended by adding
the word "gross" before the word "negligence".
7. Section 26(b) of the Rights Agreement is hereby amended by
replacing the address of the Rights Agent with the following:
BankBoston, N.A.
c/o EquiServe Limited Partnership
150 Royall Street
Canton, MA 02021
Attn: Client Administration
8. This Amendment shall be governed by and construed in accordance
with the laws of the State of Florida applicable to contracts to be made and
performed entirely within such State.
2
9. Except as expressly amended hereby, the Rights Agreement shall
continue in full force and effect in accordance with the provisions thereof.
10. 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.
IN WITNESS WHEREOF, the Company and the Rights Agent have executed
this Amendment as of the date first above written.
FLORIDA PROGRESS CORPORATION
By: /s/ Kenneth E. Armstrong
------------------------------------
Name: Kenneth E. Armstrong
Title: Vice President and General Counsel
BANKBOSTON, N.A. (f/k/a THE FIRST
NATIONAL BANK OF BOSTON)
By: /s/ Francis G. Arren
------------------------------------
Name: Francis G. Arren
Title: Administration Manager