Exhibit 99.1
AMENDMENT TO RIGHTS AGREEMENT
This Amendment (this "AMENDMENT") dated as of April 30, 2001 amends
that certain Rights Agreement, dated as of September 15, 1998 (the "RIGHTS
AGREEMENT"), by and between Fleetwood Enterprises, Inc., a Delaware corporation
(the "COMPANY") and Fleet National Bank, f/k/a BankBoston, N.A., a national
banking association (the "RIGHTS AGENT") and is made by and between the Company
and the Rights Agent. Capitalized terms used herein but not defined herein shall
have their defined meanings set forth in the Rights Agreement.
BACKGROUND
A. The Company and the Rights Agent entered into the Rights Agreement
dated as of September 15, 1998.
B. The Rights Agreement provides that the Continuing Directors have
certain powers to the exclusion of other directors.
C. In response to a ruling by the Delaware Supreme Court, the parties
wish to amend the terms of the Rights Agreement to eliminate the concept and
powers of the Continuing Directors.
D. BankBoston, N.A. merged with and into Fleet Financial Group Inc. in
October 1999; pursuant to this merger the name of the Rights Agent changed from
BankBoston, N.A. to Fleet National Bank, f/k/a BankBoston, N.A.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. Section 1(j) is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"This Section intentionally omitted."
2. Section 1(g)(g) is hereby deleted in its entirety and the following
is inserted in lieu thereof:
"This Section intentionally omitted."
3. Section 11(a)(ii) is hereby deleted in its entirety and the
following is inserted in lieu thereof:
"(ii) Subject to SECTION 23(a) and SECTION 24, in the event any Person
(other than an Exempt Person), alone or together with its Affiliates and
Associates, shall, at any time after the Rights Dividend Declaration Date,
become the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding, unless the event causing the 15% threshold to
be crossed is a transaction set forth in SECTION 13(a), or is an acquisition
of shares of Common Stock pursuant to a tender offer or an exchange offer for
all outstanding shares of Common Stock at a price and on terms determined by
at least a majority of the Board of Directors of the Company who are not
representatives, nominees, Affiliates or Associates of an Acquiring Person,
after receiving advice from one or more investment banking firms, to be (a)
at a price which is fair to stockholders of the Company (taking into account
all factors which such members of the Board deem relevant including, without
limitation, prices which could reasonably be achieved if the Company or its
assets were sold on an orderly basis designed to realize maximum value) and
(b) otherwise in the best interests of the Company and its stockholders,
then, proper provision shall be made so that each holder of a Right (except
as provided below and in SECTION 7(e)) shall thereafter have the right to
receive, upon exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a number of one
one-thousandths of a share of Preferred Stock, such number of shares of
Common Stock of the Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then number of one
one-thousandths of a share of Preferred Stock for which a Right was
exercisable immediately prior to the occurrence of a Section 11(a)(ii) Event,
and (y) dividing that product (which, following such occurrence, shall
thereafter be referred to as the "PURCHASE PRICE" for each Right and for all
purposes of this Agreement) by 50% of the Current Market Price (determined
pursuant to SECTION 11(d)) per share of Common Stock on the date of such
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 Agreement to reflect any events
occurring after the date of such 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, then only the provisions of
SECTION 13 shall apply and no adjustment shall be made pursuant to this
SECTION 11(a)(ii)."
4. Section 23(a) is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"(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 (10th) 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
(10th) day following the Record Date), subject to extension as provided in
SECTION 27 or (ii) the Close of Business on the Final Expiration Date, redeem
all but not less than all the then outstanding Rights at a redemption price of
$.002 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 occurrence of an event described
in SECTION 11(a)(ii) 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, as defined
in SECTION 11(d)(i), of the Common Stock at the time of redemption) or any other
form of consideration deemed appropriate by the Board of Directors. Such
redemption of the Rights by the Company 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."
5. Section 24(a) is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"(a) Subject to applicable laws, rules and regulations, and subject to
subsection (c) below, at any time after the occurrence of a Triggering Event,
the Board of Directors of the Company may cause the Company to 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 7(e)) for
Common Stock at an exchange ratio of one share of Common Stock 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 "RATIO OF EXCHANGE"). 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 Common Stock then outstanding."
6. Section 24(c) is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"(c) In the event that there shall not be sufficient Common Stock
authorized but unissued to permit any exchange of Rights as contemplated in
accordance with SECTION 24(a), the Company shall either take such action as may
be necessary to authorize additional shares of Common Stock for issuance upon
exchange of the Rights or alternatively, at the option of the Board of
Directors, with respect to each Right (i) pay cash in an amount equal to the
Current Value (as hereinafter defined), in lieu of issuing Common Stock in
exchange therefor, or (ii) issue debt or equity securities or a combination
thereof, having a value equal to the Current Value, in lieu of issuing Common
Stock in exchange for each such Right, where the value of such securities shall
be determined by a nationally recognized investment banking firm selected by the
Board of Directors, or (iii) deliver any combination of cash, property, Common
Stock and/or other securities having a value equal to the Current Value in
exchange for each Right. For purposes of this SECTION 24(c) only, the "CURRENT
VALUE" shall mean the product of the current per share market price of Common
Stock (determined pursuant to SECTION 11(d) on the date of the occurrence of the
event described above in subparagraph (a)) multiplied by the number of shares of
Common Stock for which the Right otherwise would be exchangeable if there were
sufficient shares available. To the extent that the Company determines that some
action need be taken pursuant to clauses (i), (ii), or (iii) of this SECTION
24(c), the Board of Directors may temporarily suspend the exercisability of the
Rights for a period of up to sixty (60) days following the date on which the
event described in SECTION 24(a) shall have occurred, in order to seek any
authorization of additional Common Stock and/or to determine the appropriate
form of distribution to be made pursuant to the above provision and to determine
the value thereof. In the event of any such suspension, the Company shall issue
a public announcement stating that the exercisability of the Rights has been
temporarily suspended."
7. Section 24(e) is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"(e) The Company may, at the option of the Board of Directors, at any
time before any Person has become an Acquiring Person, exchange all or part of
the then outstanding Rights for
rights of substantially equivalent value, as determined reasonably and with
good faith by the Board of Directors, based upon the advice of one or more
nationally recognized investment banking firms."
8. Section 24(f) is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"(f) Immediately upon the action of the Board of Directors ordering the
exchange of any Rights pursuant to subsection (e) of this SECTION 24 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 rights in exchange therefore as has been determined
by the Board of Directors in accordance with subsection (e) above. The Company
shall 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 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 transfer agent for the Common Stock of the Company. 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 Rights will be effected."
9. Section 27 is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"27. SUPPLEMENTS AND AMENDMENTS.
Prior to the Distribution Date and subject to the penultimate sentence
of this SECTION 27, the Board of Directors of the Company may, in its sole and
absolute discretion and the Rights Agent shall, if the Board of Directors so
directs, supplement or amend any provision of this Agreement without the
approval of any holders of certificates representing shares of Common Stock,
whether or not such supplement or amendment is adverse to any holders of Rights.
From and after the Distribution Date, and subject to the penultimate sentence of
this SECTION 27, the Board of Directors may, and the Rights Agent shall, if the
Board of Directors so directs, supplement or amend this Agreement without the
approval of any holders of Rights Certificates in order to (i) cure any
ambiguity, (ii) correct or supplement any provision contained herein which may
be defective or inconsistent with any other provisions hereunder, (iii) shorten
or lengthen any time period hereunder, or (iv) otherwise change or supplement
the provisions hereunder in any manner which the Board of Directors may deem
necessary or desirable and which shall not materially and adversely affect the
interests of the holders of Rights Certificates (other than an Acquiring Person
or an Affiliate or Associate of any such Person); PROVIDED, HOWEVER, this
Agreement may not be supplemented or amended after the Distribution Date to (A)
make the Rights again redeemable after the Rights have ceased to be redeemable,
or (B) change any other time period unless such change is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits to the
holders of Rights (other than any Acquiring Person and its Associates or
Affiliates). Upon the delivery of a certificate from an appropriate officer of
the Company which states that the proposed supplement or amendment is in
compliance with the terms of this SECTION 27, the Rights Agent shall execute
such supplement or amendment. Notwithstanding anything contained in this
Agreement to the contrary, no supplement or
amendment shall be made which changes the Redemption Price. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock."
10. Section 29 is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"29. DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS, ETC.
For all purposes of this Agreement, any calculation of the number of
shares of Common Stock outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules
and Regulations under the Exchange Act. The Board of Directors of the Company
shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board of Directors of
the Company or to the Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Agreement (including, but not limited to, a determination to redeem or not
redeem the Rights, or to amend this Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
of Directors of the Company in good faith, shall (x) be final, conclusive and
binding on the Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject any member of the Board of Directors to any
liability to the holders of the Rights or to any other Person."
11. Section 31 is hereby deleted in its entirety and the following is
inserted in lieu thereof:
"31. SEVERABILITY.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated; PROVIDED, HOWEVER, that
notwithstanding anything in this Agreement to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid language from
this Agreement would adversely affect the purpose or effect of this Agreement,
the right of redemption set forth in SECTION 23, if lapsed, shall be reinstated
and shall not expire until the Close of Business on the tenth (10th) Business
Day following the date of such determination by the Board of Directors of the
Company."
12. Exhibit C is hereby deleted in its entirety and Exhibit C attached
hereto and incorporated by reference herein is inserted in lieu thereof.
13. Except as expressly set forth in this Amendment all other terms of
the Rights Agreement shall remain in full force and effect.
14. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to be
performed entirely within such State.
15. 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 effective as of the date first above written.
THE COMPANY:
FLEETWOOD ENTERPRISES, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
THE RIGHTS AGENT:
FLEET NATIONAL BANK
(F/K/A BANKBOSTON, N.A.),
A NATIONAL BANKING ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Managing Director
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
OF
FLEETWOOD ENTERPRISES, INC.
On September 15, 1998 (the "RIGHTS DIVIDEND DECLARATION DATE") the
Board of Directors of Fleetwood Enterprises, Inc. (the "COMPANY") declared a
dividend of one Right (a "RIGHT") for each outstanding share of Company Common
Stock to be distributed to stockholders of record at the close of business on
November 9, 1998 (the "RECORD DATE"). Each Right entitles the registered holder
to purchase from the Company one one-thousandth of a share (a "UNIT") of Series
A Junior Participating Preferred Stock (the "PREFERRED STOCK") at a "PURCHASE
PRICE" of $160, subject to adjustment. The description and terms of the Rights
are set forth in a Rights Agreement ("RIGHTS AGREEMENT") dated as of September
15, 1998, between the Company and Fleet National Bank, f/k/a BankBoston, N.A.,
as Rights Agent (the "Rights Agent"), as amended by that certain amendment (the
"AMENDMENT"), dated as of April 30, 2001, to Rights Agreement, by and between
the Company and the Rights Agent.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
October 28, 1998, and a copy of the Amendment has been filed with the Securities
and Exchange Commission as an Exhibit to a Current Report on Form 8-K filed May
30, 2001. A copy of the Rights Agreement and the Amendment are available to
shareholders free of charge from the Company, if requested in writing. This
summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement and the
Amendment, which are incorporated herein by reference.
The holders of shares of Common Stock of the Company outstanding at the
close of business on the Record Date received one Right per share of Common
Stock. In addition, prior to the earliest of the Distribution Date, a Section 13
Event or the Expiration Date (as each is described below), one additional Right
(as such number may be adjusted pursuant to the provisions of the Rights
Agreement) shall be issued with each share of Common Stock issued after the
Record Date. Following the Distribution Date and prior to the expiration or
redemption of the Rights, the Company will issue one Right (as such number may
be adjusted pursuant to the provisions of the Rights Agreement) for each share
of Common Stock issued pursuant to the exercise of stock options or under
employee plans or upon the exercise, conversion or exchange of securities issued
by the Company prior to the Distribution Date.
Until the Distribution Date (as described below), (i) the Rights will
attach to and be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates, (ii) new Common
Stock certificates issued after November 9, 1998 will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock represented by such
certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the earliest of (i) the close of business on September 15, 2008; (ii)
the date of redemption of the Rights; (iii) the date the Board of Directors of
the Company orders the exchange of Rights; or (iv) the date of consummation of a
tender offer approved as fair to and in the best interests of the Company and
its stockholders and adequately priced with each stockholder receiving the same
consideration per share in the same manner (the "EXPIRATION DATE").
The Rights will separate from the Common Stock and a Distribution Date
will occur (the "DISTRIBUTION DATE") upon the earlier of 10 days (or such longer
time as may be determined by the Company's Board of Directors following (i) a
public announcement (or determination by the Company's Board of Directors) that
a person or group of affiliated or associated persons (an "ACQUIRING PERSON")
has acquired, or obtained the right to acquire, beneficial ownership of 15% or
more of the outstanding shares of Common Stock (the "STOCK ACQUISITION DATE"),
or (ii) the commencement of a tender offer or exchange offer that would result
in a person or group beneficially owning 15% or more of such outstanding shares
of Common Stock.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights.
At any time after the Distribution Date but prior to the Expiration
Date of the Rights, each right may be exercised at the stated purchase price of
$160 (subject to adjustment, the "EXERCISE PRICE") for one one-thousandth of a
share of the Preferred Stock; provided, however, that upon the occurrence of any
of the events described below, the Rights may no longer be exercised for
Preferred Stock and may only be exercised for certain other securities described
below.
In the event that on or at any time following the Rights Dividend
Declaration Date, either (i) a person becomes the beneficial owner of more than
15% of the then outstanding shares of Common Stock (except pursuant to an offer
for all outstanding shares of Common Stock which the Board of Directors
determines to be fair to and otherwise in the best interests of the Company and
its shareholders), then each holder of a Right will thereafter have the right to
receive, upon exercise, Common Stock (or, in certain circumstances, cash,
property or other securities of the Company) having a value equal to two times
the Purchase Price of the Right. Rights are exercisable following the occurrence
of the foregoing only after such time as the Rights are no longer redeemable by
the Company, as set forth below. Notwithstanding any of the foregoing, following
the occurrence of the event set forth in this paragraph, all Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving entity or in which the
Company's outstanding Common Stock is exchanged for cash, stock or other
property (other than a merger which follows an offer for all outstanding shares
described in the preceding paragraph), or (ii) 50% or more of the Company's
assets or earning power is sold or transferred, each holder of a Right (except
Rights which previously have been voided as set forth above) shall thereafter
have the right to receive, upon exercise, common stock
of the acquiring company having a value equal to two times the Purchase Price
of the Right. (An event described in this paragraph is a "SECTION 13 EVENT.").
The Purchase Price payable, and the number of Units of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution, as set forth in the
Rights Agreement. With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1% of the
Purchase Price. No fractional Rights, fractions of shares of Preferred Stock
(other than fractions which are integral multiples of one one-thousandth of a
share), or fractional shares of Common Stock will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
Rights, Preferred Stock, or Common Stock, respectively, on the last trading date
prior to the date of exercise.
In general, the Company may redeem the Rights in whole, but not in
part, at a price of $.002 per Right, at any time until ten days following the
Stock Acquisition Date (or such later date as may be determined by the Company's
Board of Directors). Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will terminate and the only right
of the holders of Rights will be to receive the $.002 redemption price.
At any time after a person or a group of affiliated or associated
persons becomes beneficial owner of 15% or more of the Common Stock then
outstanding, and prior to the first date upon which that person becomes the
beneficial owner of at least 50% of the outstanding Common Stock, the Company
may, by majority vote of the Board of Directors, exchange some or all of the
outstanding Rights (other than those that have become void) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right, appropriately
adjusted for splits, dividends, and similar transactions (the "RATIO OF
EXCHANGE"). Immediately upon the action of the Board of Directors ordering the
exchange of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the number of Common Shares equal to the
Ratio of Exchange.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
Other than those provisions relating to the redemption price or the
final expiration date of the Rights, any of the provisions of the Rights
Agreement may be supplemented or amended by the Board of Directors prior to the
Distribution Date, without approval of the Rights holders, whether or not a
supplement or amendment is adverse to the Rights holders. After the Distribution
Date, the provisions of the Rights Agreement (other than the provisions relating
to the redemption price or the final expiration date of the Rights) may be
amended by the Board of Directors in order to make changes which do not
materially and adversely affect the interests of holders of Rights (excluding
the interests of any Acquiring Person), PROVIDED, HOWEVER, that the Rights
Agreement may not be amended to (i) make the Rights again redeemable after the
Rights have ceased to be redeemable, or (ii) change any other time period unless
such change is for the benefit of the holders (excluding any Acquiring Person).
