Exhibit 3
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Amendment No. 2, dated as of July 6, 2003 (the "Amendment"), between
NAUTICA ENTERPRISES, INC., a Delaware corporation (the "Company"), and MELLON
INVESTOR SERVICES LLC, a New Jersey limited liability company, as Rights Agent
(the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement, dated as of November 2, 2001, as amended by Amendment No. 1, dated as
of June 26, 2003 (the "Rights Agreement");
WHEREAS, the Company intends to enter into an Agreement and Plan of
Merger with VF Corporation, a Pennsylvania corporation ("Parent"), and Voyager
Acquisition Corporation, a Delaware corporation and a wholly-owed subsidiary of
Parent ("Merger Subsidiary");
WHEREAS, the Company has been advised that Xxxxxx Xxxxxxx, the
Xxxxxx Xxxxxxx Grantor Retained Income Trust and Xxxxx Xxx intend to enter into
a Voting Agreement with Parent and Merger Subsidiary; and
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement in accordance with Section 28 of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereby agree as follows:
1. AMENDMENT TO DEFINITION OF ACQUIRING PERSON. Section 1(a) of the
Rights Agreement is hereby amended to add the following sentence at the end
thereof:
Notwithstanding anything to the contrary in this Agreement, (A)
neither Parent, Merger Subsidiary nor any of their respective
Affiliates or Associates shall be deemed to be an Acquiring Person
solely by virtue of (x) the execution and delivery of the Merger
Agreement, (y) the acquisition of Common Shares pursuant to the
Merger Agreement or (z) the consummation of the other transactions
contemplated in the Merger Agreement and (B) neither Parent, Merger
Subsidiary, Xxxxxx Xxxxxxx, the Xxxxxx Xxxxxxx Grantor Retained
Income Trust, Xxxxx Xxx nor any of their respective Affiliates or
Associates shall be deemed to be an Acquiring Person solely by
virtue of (x) the execution and delivery of the Voting Agreement or
(y) any actions taken or effected pursuant to the Voting Agreement
(each of the events set forth in the foregoing clauses (A) and (B),
an "Exempt Event").
2. NEW DEFINITIONS. Section 1 of the Rights Agreement is hereby
amended to add the following defined terms at the end thereof:
(ii) "Exempt Event" shall have the meaning set forth in
Section 1(a) hereof.
(jj) "Merger Agreement" shall mean the Agreement and Plan of
Merger dated as of July 7, 2003 among the Company, VF Corporation, a
Pennsylvania corporation ("Parent"), and Voyager Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Subsidiary") (as it may be amended or supplemented
from time to time).
(kk) "Merger Subsidiary" shall have the meaning set forth in
Section 1(jj) hereof.
(ll) "Parent" shall have the meaning set forth in Section
1(jj) hereof.
(mm) "Voting Agreement" shall mean the Voting Agreement dated
as of July 7, 2003 among Parent, Merger Subsidiary, Xxxxxx Xxxxxxx,
the Xxxxxx Xxxxxxx Grantor Retained Income Trust and Xxxxx Xxx (as
it may be amended or supplemented from time to time).
3. AMENDMENT TO DEFINITION OF FINAL EXPIRATION DATE. Section 7(a) of
the Rights Agreement is hereby amended by replacing clause (i) thereof with the
following (and Exhibit B to the Rights Agreement shall be deemed amended
accordingly):
(i) (x) the Close of Business on November 12, 2011 or (y) the time
immediately prior to the Effective Time (as defined in the Merger
Agreement) (the earlier to occur of (x) and (y), the "Final
Expiration Date").
The Company hereby agrees to promptly notify the Rights Agent after the
occurrence of the Effective Time stating that the Final Expiration Date has
occurred.
4. AMENDMENT TO SECTION 13(A). Section 13(a) of the Rights Agreement
is hereby amended by adding the following sentence at the end thereof:
Notwithstanding anything to the contrary in this Agreement, the
provisions of this Section 13 and Section 14 hereof shall not apply
to any Exempt Event.
5. AMENDMENT TO SECTION 31. Section 31 of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, nothing in this Agreement shall be
construed to give any holder of Rights or any other Person any legal
or equitable rights, remedy or claim under this Agreement in
connection with any Exempt Event.
6. MISCELLANEOUS. The term "Agreement" as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as amended hereby.
The amendments to the Rights Agreement set forth herein shall be effective as of
the date hereof and, except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected hereby. This
Amendment may be executed in any number of counterparts, and each of such
counterparts shall for all purposes be deemed an original, but all such
counterparts shall together constitute but one and the same instrument. Headings
of the several Sections of the Amendment are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof. This Amendment shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to contracts to be made and performed
entirely within such State; PROVIDED, HOWEVER, that all provisions regarding the
rights, duties and obligations of the Rights Agent shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
NAUTICA ENTERPRISES, INC.
By: /S/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President &
Chief Financial Officer
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By: /S/ XXXXXXXXX XXXXX
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Assistant Vice President
