FIRST AMENDMENT
TO
AMENDED AND RESTATED STOCKHOLDER PROTECTION RIGHTS
AGREEMENT
This
First Amendment to Amended and Restated Stockholder Protection
Rights Agreement (this
Amendment ")
is entered into as of June 13, 2008, between Wilshire Enterprises,
Inc., a Delaware corporation (the "
Company "),
and Continental Stock Transfer & Trust Company, a limited
purpose trust company organized under the banking laws of the State
of New York, as rights agent (the "
Rights Agent ").
W I T N E S S E T H:
WHEREAS,
the Company and the Rights Agent are parties to an Amended and
Restated Stockholder Protection Rights Agreement, dated as of
December 6, 2006 (the "
Rights Agreement ");
WHEREAS,
the Company, NWJ Apartment Holdings Corp., a Maryland
corporation ("
Parent "),
and NWJ Acquisition Corp., a Delaware corporation and a direct
wholly-owned subsidiary of Parent ("Merger Sub"), intend to enter
into an Agreement and Plan of Merger (the "
Merger Agreement ")
pursuant to which, among other things, Merger Sub shall be merged
with and into the Company (the "
Merger ")
with the Company surviving the Merger on the terms and subject to
the conditions set forth therein;
WHEREAS,
pursuant to Section 5.4 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement or amend
the Rights Agreement prior to the Flip-in Date (as such term
is defined in the Rights Agreement) in any respect and that
the Rights Agent shall duly execute and deliver any such
supplement or amendment requested by the Company;
WHEREAS,
on June 13, 2008, the Company's Board of Directors resolved to
amend the Rights Agreement as set forth herein in order to
render the Rights (as such term is defined herein)
inapplicable to the Merger and the other transactions
contemplated by the Merger Agreement;
NOW
THEREFORE,
in
exchange for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto hereby agree as
follows:
Section
1.
Defined Terms .
All capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Rights Agreement.
Section
2.
Amendments to Rights Agreement .
Effective as of the date first written above, the Rights Agreement
is hereby amended as follows:
(a)
The
definition of "Acquiring Person" set forth in Section 1.1 of
the Rights Agreement is hereby amended to add the following at
the end thereof:
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"In
addition, notwithstanding anything in this Agreement to the
contrary, none of NWJ Apartment Holdings Corp., a Maryland
corporation ("Parent"), and NWJ Acquisition Corp., a Delaware
corporation and a direct wholly-owned subsidiary of Parent ("Merger
Sub"), or any of their Affiliates or Associates, individually or
collectively, shall be an "Acquiring Person" solely by reason of:
(1) the approval, adoption, execution or delivery of an Agreement
and Plan of Merger (as it may be amended and supplemented, the
"Merger Agreement"), among the Company, Parent and Merger Sub
pursuant to which, among other things, Merger Sub shall be merged
with and into the Company (the "Merger") with the Company surviving
the Merger on the terms and subject to the conditions set forth
therein, (2) the approval, adoption, execution or delivery of the
Voting Agreement (as defined in the Merger Agreement)(as it may be
amended and supplemented, the "Voting Agreement"), (3) the
consummation of the Merger or (4) the consummation of any of the
other transactions contemplated by the Merger Agreement or the
Voting Agreement."
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(b)
The
definition of "Beneficial Ownership" set forth in Section 1.1
of the Rights Agreement is hereby amended to add the following
sentence at the end thereof:
"Notwithstanding
anything in this definition of "Beneficial Owner," "Beneficial
Ownership" or "Beneficially Own" to the contrary, none of
Parent, Merger Sub, or any of their Affiliates or Associates,
individually or collectively, shall be deemed the "Beneficial
Owner" or shall be deemed to "Beneficially Own" any shares of
Common Stock solely as a result of (i) the approval, adoption,
execution or delivery of the Merger Agreement, (ii) the
approval, adoption, execution or delivery of the Voting
Agreement, (iii) the consummation of the Merger or (iv) the
consummation
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