FIRST AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 2, 1998 (this "Amendment"), to
the Rights Agreement, dated as of August 21, 1998 (the "Rights Agreement"), by
and between OmniQuip International, Inc., a Delaware corporation (the
"Company"), and The First Chicago Trust Company of New York (the "Rights
Agent").
WHEREAS, pursuant to and in compliance with Section 27 of the
Rights Agreement, the Company and the Rights Agent desire to amend the Rights
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth herein and in the Rights Agreement, the parties
hereto agree as follows:
1. The first sentence of the definition of "Acquiring Person"
contained in Section 1(a) of the Rights Agreement is hereby amended by replacing
the words "twenty percent (20%)" with the words "ten percent (10%)".
2. The second sentence of the definition of "Acquiring Person"
contained in Section 1(a) of the Rights Agreement is hereby amended by deleting
the words ",including a majority of the Continuing Directors,".
3. Section 1(m) of the Rights Agreement is hereby amended by
deleting the definition of "Continuing Director" and replacing such definition
with the words "Intentionally Omitted".
4. The first sentence of Section 3(a) of the Rights Agreement
is hereby amended to read in its entirety as follows:
"(a) Until the earliest of (i) the Close of Business on the
tenth day after the Stock Acquisition Date (or, if the tenth day after
the Stock Acquisition Date occurs before the Record Date, the Close of
Business on the Record Date), (ii) the Close of Business on the tenth
Business Day (or such later date as the Board shall determine) after
the date that a tender or exchange offer 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, or any Person or
entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation thereof, such
Person would be the Beneficial Owner of ten percent (10%) or more of
the shares of Common Stock then outstanding or (iii) the date following
the execution of an agreement relating to or providing for a
transaction constituting a Xxxxxxx 00 Xxxxx (xxx xxxxxxxx xx (x), (xx)
and (iii) being herein referred to as the "Distribution Date"), (A) the
Rights will be evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common Stock registered in
the names of the holders of the Common Stock (which certificates for
Common Stock shall be deemed also to be certificates for Rights) and
not by separate certificates and (B) the Rights will be transferable
only in connection with the transfer of the underlying shares of Common
Stock (including a transfer to the Company)."
5. The first sentence of the legend contained in Section 3(c)
of the Rights Agreement is hereby amended by inserting after the words "AUGUST
21, 1998" the words "AND AMENDED AS OF OCTOBER 2, 1998".
6. Section 11(a)(ii)(B) of the Rights Agreement is hereby
amended by replacing the words "twenty percent (20%)" with the words "ten
percent (10%)" in each instance where such words appear.
7. The first sentence of Section 13(a) of the Rights Agreement
is hereby amended so that the beginning portion of such sentence through the end
of clause (y) thereof shall read in its entirety as follows (it being understood
that the remainder of such sentence following clause (y) shall remain in full
force and effect):
"(a) In the event that, following the Stock Acquisition Date
or during the pendency of a 180 Day Period, directly or indirectly, (x)
the Company shall consolidate with, or merge with and into, any other
Person, and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) (i) any Person shall
consolidate with, or merge with or into, the Company or a Subsidiary of
the Company, and (ii) the Company shall be the continuing or surviving
corporation of such consolidation or merger or the Company shall not be
a constituent corporation in any such merger or consolidation and, in
connection with any such transaction in clauses (y)(i) or (y)(ii), (A)
all or part of the outstanding shares of Common Stock shall be changed
into or exchanged for stock or other securities of any other Person or
cash or any other property or (B) the shares of Common Stock held by
stockholders of the Company immediately prior to the consummation of
the transaction
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which remain outstanding shall constitute less than fifty percent
(50%) of the total number of shares of Common Stock or less than fifty
percent (50%) of the total voting power outstanding immediately
following the consummation of the transaction, or"
8. Clause (i) of Section 13(b) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(i) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which shares of Common Stock of the
Company are converted in such merger or consolidation (or, in the case
of Section 13(a)(y)(B), the Company), and if no securities are so
issued, the Person that is the other party to such merger or
consolidation; and"
9. Section 13 of the Rights Agreement is hereby amended
further by adding the following new paragraph at the end of Section 13:
"(d) The Company covenants and agrees not to consummate a
transaction constituting a Section 13 Event unless a Distribution Date
shall have occurred as a result of the actions described in clauses
(i), (ii) or (iii) of Section 3(a) hereof."
10. Section 23(a) of the Rights Agreement is hereby amended to
read in its entirety as follows:
"(a) The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (i) the Close of Business on the
tenth day following the Stock Acquisition Date (or, if the Stock
Acquisition Date shall have occurred prior to the Record Date, the
Close of Business on the tenth day following the Record Date), or (ii)
the Final Expiration Date, redeem all but not less than all of the then
outstanding Rights at a redemption price of $.01 per Right, as such
amount may be appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price"). Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first
occurrence of a Section 11(a)(ii) Event until such time as the
Company's right of redemption hereunder has expired. The Company may,
at its option, pay the Redemption Price in cash, shares of Common Stock
(based on the Current Market Price of the Common Stock at the time of
redemption) or any other form of consideration deemed appropriate by
the
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Board of Directors. The redemption of the Rights by the Board of
Directors may be made effective at such time, on such basis and with
such conditions as the Board of Directors in its sole discretion may
establish."
11. Section 23 of the Rights Agreement is hereby amended by
adding the following new paragraph at the end of Section 23:
"(c) Notwithstanding the provisions of Section 23(a), in the
event that a majority of the Board of Directors is elected by
stockholder action by written consent, or is comprised of persons
elected at a meeting of stockholders who were not nominated by the
Board of Directors in office immediately prior to such meeting, then
for a period of one hundred eighty days (180) days following the
effectiveness of such election (the "180 Day Period"), the Rights may
not be redeemed."
12. Section 27 of the Rights Agreement is hereby amended by
deleting the parenthetical "(which lengthening or shortening, following the
first occurrence of an event set forth in clauses (i) and (ii) of the first
proviso to Section 23(a) hereof, shall be effective only if there are Continuing
Directors and shall require the concurrence of a majority of such Continuing
Directors)".
13. Section 27 of the Rights Agreement is hereby amended by
adding the following sentence as the third to last sentence of such Section 27:
"Notwithstanding anything contained in this Agreement to the contrary,
during the pendency of any 180 Day Period, no supplement or amendment
shall be made to this Agreement, other than an amendment or supplement
described in clause (i) or (ii) of the second sentence of this Section
27."
14. Section 29 of the Rights Agreement is hereby amended by
deleting each of the parentheticals "(with, where specifically provided for
herein, the concurrence of the Continuing Directors)".
15. The last sentence of Section 29 of the Rights Agreement is
hereby amended by deleting the words "or the Continuing Directors".
16. The Form of Right Certificate attached to the Rights
Agreement as Exhibit B is hereby amended by inserting after the words "August
21, 1998" the words "and amended as of October 2, 1998".
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17. The second to last sentence of the carryover paragraph on
page 2 of the Form of Right Certificate attached to the Rights Agreement as
Exhibit B is hereby amended to read in its entirety as follows:
"Under certain circumstances set forth in the Rights Agreement, the
Rights may not be redeemed for a period of one hundred eighty days
(180)."
18. The last sentence of the carryover paragraph on page 2 of
the Form of Right Certificate attached to the Rights Agreement as Exhibit B is
hereby amended by replacing the words "twenty percent (20%)" with the words "ten
percent (10%)".
19. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware.
20. This Amendment may be executed in counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and both
such counterparts shall together constitute but one and the same instrument.
21. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise alter, modify, amend or in any way affect any of
the terms, conditions, obligations, 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.
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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.
OMNIQUIP INTERNATIONAL, INC.
By:/s/ X. Xxxxx Stiff
---------------------------------
X. Xxxxx Stiff
President and Chief Executive Officer
Attest
By:/s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
Senior Vice President and
Chief Administrative Officer
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By:/s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx
Account Officer
Attest
By:/s/Xxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxx X. Xxxxx
Vice President
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