Exhibit 4.4
AMENDMENT TO RIGHTS AGREEMENT
This amendment ("Amendment"), dated as of February 18, 1999, between
Harley-Davidson, Inc., a Wisconsin corporation (the "Company"), and Firstar
Bank, Milwaukee, N.A. (as successor to Firstar Trust Company (formerly known as
First Wisconsin Trust Company)), as Rights Agent (the "Rights Agent"), to the
Right Agreement, dated as of August 6, 1990, as amended, between the Company and
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, and pursuant to Section 26 of the Rights Agreement, the Company may
from time to time supplement or amend the Rights Agreement in accordance with
the provisions of Section 26 thereof;
WHEREAS, the Company wishes to amend the Rights Agreement to change the
Purchase Price (as defined in the Rights Agreement) and to make certain other
changes as set forth herein; and
WHEREAS, all acts and things necessary to make this amendment a valid
agreement, enforceable according to its terms, 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 premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. Capitalized Terms. Capitalized terms used herein and not otherwise
defined are used as defined in the Rights Agreement.
2. Price.
a. The second sentence of Section 4 of the Rights Agreement is hereby
amended effective as of the date hereof to read in its entirety as follows:
Subject to the provisions of Sections 11 and 22 hereof, the Right
Certificates evidencing the Rights issued on the Record Date, whenever
issued, shall be dated as of the Record Date and the Right Certificates
evidencing Rights issued after the Record Date shall be dated as of the
Record Date but also be dated to reflect the date of issuance of such
Right Certificate and on their face Right Certificates shall entitle the
holders thereof to purchase one one-hundredth of a share of Preferred
Stock, or other securities or property as provided herein, as the same
may from time to time be adjusted as provided herein, at the price of
$800.00 set forth therein, as the same may from time to time be adjusted
as provided herein (the "Purchase Price").
b. The first sentence of Section 7(b) of the Rights Agreement is hereby
amended effective as of the date hereof to read in its entirety as follows: "The
Purchase Price shall initially be $800.00 for each one one-hundredth (1/100) of
a share of Preferred Stock issued pursuant to the exercise of a Right."
c. For purposes of clarity, the term "Preferred Stock" for all purposes
of the Rights Agreement refers to the Series A Junior Participating Preferred
Stock, par value $1.00 per share, of the Company.
3. Exchange. In connection with the addition of an exchange provision to
the Rights Agreement:
a. The first sentence of Section 6(a) of the Rights Agreement is hereby
amended effective as of the date hereof to read in its entirety as follows:
Subject to the provisions of Section 14 hereof, at any time after the
close of business on the Distribution Date, and at or prior to the close
of business on the earlier of the Expiration Date or the Final Expiration
Date, any Right Certificate or Right Certificates (other than Right
Certificates representing Rights that have become void pursuant to
Section 11(a)(ii) hereof or that have been exchanged pursuant to Section
23 hereof) may be (a) transferred or (b) split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of shares of Preferred Stock
as the Right Certificate or Right Certificates surrendered then entitled
such holder to purchase.
b. The second sentence of Section 7(a) of the Rights Agreement is hereby
amended effective as of the date hereof to read in its entirety as follows:
The Rights may be exercised to purchase Preferred Stock, except as
otherwise provided herein, in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the form
of election to purchase on the reverse side thereof duly executed (with
such signature duly guaranteed), to the Rights Agent at the shareholder
services office of the Rights Agent in Milwaukee, Wisconsin, together
with payment of the Purchase Price with respect to each Right exercised,
subject to adjustment as hereinafter provided, at or prior to the close
of business on the earliest of (i) August 20, 2000 (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof, and (iii) the time at which such Rights are exchanged
as provided in Section 23 hereof (such date being herein referred to as
the "Expiration Date").
c. The second sentence of Section 22 of the Rights Agreement is hereby
amended effective as of the date hereof to read in its entirety as follows:
In addition, in connection with the issuance or sale of shares of Common
Stock following the Distribution Date and prior to the Expiration Date,
the Company (a) shall, with respect to shares of Common Stock so issued
or sold pursuant to the
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exercise of stock options or under any employee plan or arrangement, or
upon the exercise, conversion or exchange of securities hereafter issued
by the Company, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk
of material adverse tax consequences to the Company or the Person to whom
such Rights Certificate would be issued, and (ii) no such Rights
Certificate shall be issued, if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance
thereof.
d. The heading to Section 23 of the Rights Agreement is hereby amended
effective as of the date hereof to read "Redemption; Exchange."
e. Section 23 of the Rights Agreement is hereby amended effective as of
the date hereof to add subsections (c), (d), (e), (f) and (g) which shall read
in their entirety as follows:
(c) The Board of Directors of the Company may, at its option, at
any time after any Person becomes an Acquiring Person, exchange all or
part of the then outstanding and exercisable Rights (which shall not
include Rights that have become void pursuant to the provisions of
Section 11(a)(ii) hereof) for shares of Preferred Stock at an exchange
ratio of one one-hundredth of a share of Preferred Stock (or equivalent
preferred stock, as such term is defined in Section 11(b) hereof) per
Right, appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such exchange
ratio being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other
than an Exempt Person), together with all Affiliates and Associates of
such Person, becomes the Beneficial Owner of 50% or more of the shares of
Common Stock of the Company then outstanding.
(d) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to subsection (c) of
this Section 23 and without any further action and without any notice,
the right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of
one-hundredths of a share of Preferred Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company
shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. The Company promptly shall mail
a notice of any such exchange to all of the holders of such Rights at
their last addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of the
one-hundredths of a share of
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Preferred Stock (or equivalent preferred stock) for Rights will be
effected and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 11(a)(ii) hereof) held by each
holder of Rights.
(e) In any exchange pursuant to this Section 23, the Company, at
its option, may substitute shares of Common Stock of the Company for some
or all of the one-hundredths of a share of Preferred Stock exchangeable
for Rights, at a rate as of February 18, 1999 of eight shares of Common
Stock of the Company for each one one-hundredth of a share of Preferred
Stock, as appropriately adjusted to reflect adjustments in the voting
rights of the Preferred Stock pursuant to the terms thereof, so that the
number of shares of Common Stock of the Company delivered in lieu of
Preferred Stock shall have the same voting rights as one one-hundredth of
a share of Preferred Stock.
(f) In the event that there shall not be sufficient shares of
Common Stock of the Company or Preferred Stock issued but not outstanding
or authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 23, the Company shall take
all such action as may be necessary to authorize additional shares of
Common Stock of the Company or Preferred Stock for issuance upon exchange
of the Rights.
(g) The Company shall not be required to issue fractions of shares
of Preferred Stock (other than fractions that are integral multiples of
one one-hundredth of a share of Preferred Stock) or of Common Stock of
the Company or to distribute certificates which evidence fractions of
shares of Preferred Stock (other than fractions that are integral
multiples of one one-hundredth of a share of Preferred Stock) or of
Common Stock of the Company. In lieu of such fractional shares, the
Company shall pay to the registered holders of the Right Certificates
with regard to which such fractional shares would otherwise be issued an
amount in cash equal to the same fraction of the Current Market Price of
one one-hundredth of a share of Preferred Stock or of a whole share of
Common Stock of the Company, as the case may be. For the purposes of this
paragraph (g), the Current Market Price of the Preferred Stock or of the
Common Stock of the Company shall be based solely on the closing price of
the relevant security (as determined pursuant to the third sentence of
Section 11(d)(i) hereof) for the Trading Day immediately prior to the
date of exchange pursuant to this Section 23.
f. The first and second sentences of the capitalized legend appearing on
the first page of Exhibit B of the Rights Agreement are hereby amended effective
as of the date hereof to read in their entirety as follows:
NOT EXERCISABLE AFTER AUGUST 20, 2000 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AND
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TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
g. Exhibit B of the Rights Agreement is hereby amended effective as of
the date hereof to insert a new paragraph thereto immediately preceding the
paragraph thereof that begins with the words "No fractional shares" which new
paragraph shall read in its entirety as follows:
The Board of Directors of the Company may, at its option, at any
time after any Person becomes an Acquiring Person, but prior to such
Person's acquisition of 50% or more of the outstanding shares of common
stock of the Company, exchange the Rights evidenced by the certificates
for shares of Preferred Stock or shares of common stock of the Company at
an exchange ratio as of February 18, 1999, of one one-hundredth of a
share of Preferred Stock or eight shares of common stock of the Company,
as the case may be, per Right, subject to adjustment, as provided in the
Rights Agreement.
4. Section 11(a)(ii). The first paragraph of Section 11(a)(ii) of the
Rights Agreement is hereby amended effective as of the date hereof to read in
its entirety as follows:
(ii) Subject to Section 23 of this Agreement, in the event any
Person (other than an Exempt Person), alone or together with its
Affiliates and Associates, shall, at any time after the date of this
Agreement, become an Acquiring Person, then, except as provided in this
Section 11, each holder of a Right shall thereafter have a right to
receive, upon exercise thereof in accordance with the terms of this
Rights Agreement and payment of the then current Purchase Price, such
number of one-hundredths of a share of Preferred Stock as shall equal the
result obtained by (x) multiplying the Purchase Price for each one
one-hundredth of a share of Preferred Stock issuable pursuant to the
exercise of a Right as of the time immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the number of one
one-hundredths of a share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of a Section
11(a)(ii) Event, and dividing that product (such product, following such
first occurrence, shall be referred to as the "Purchase Price" with
respect to each Right for all purposes of this Rights Agreement) by (y)
50% of the then Current Market Price per one one-hundredth of a share of
Preferred Stock on the date of such first occurrence (such number of
shares is herein called the "Adjustment Shares"); provided that the
Purchase Price and the number of Adjustment Shares shall be further
adjusted as provided in this Rights Agreement to reflect any events
occurring after the date of such first occurrence; and provided, further,
that if the transaction that would otherwise give rise to the foregoing
adjustment is also subject to the provisions of Section 13 hereof, then
only the provisions of Section 13 hereof shall apply and no adjustment
shall be made pursuant to this Section 11(a)(ii).
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5. The terms "Rights Agreement" and "Agreement" as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as amended hereby. 6.
This Amendment shall be deemed to be a contract made under the laws of the State
of Wisconsin 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.
7. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute one
and the same instrument.
8. In all respects not inconsistent with the terms and provisions of this
Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all of the privileges and amenities afforded to the Rights Agent
under the terms and conditions of the Rights Agreement.
9. If any term, provision, covenant or restriction of this Amendment is
held by a court of competent jurisdiction or other authority to be invalid,
illegal or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
Attest: HARLEY-DAVIDSON, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxxxx
Title: Vice President, General Counsel Title: Vice President and Chief
and Secretary Financial Officer
Attest: FIRSTAR BANK MILWAUKEE, N. A.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx Xxxxxx
Title: Assistant Secretary Title: Vice President
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