Exhibit 4.4
THIRD AMENDMENT TO RIGHTS AGREEMENT
This Third Amendment dated November 21, 2000 (this "THIRD
AMENDMENT") to the Rights Agreement dated as of June 11, 1986, as first
amended on August 21, 1990 and second amended on May 31, 1996 (the "RIGHTS
AGREEMENT") between Kellwood Company, a Delaware corporation (the "COMPANY")
and American Stock Transfer & Trust Company, Inc., a trust company organized
under the laws of the State of New York (the "RIGHTS AGENT").
A. Acting pursuant to Section 26 of the Rights Agreement,
and in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree that the Rights
Agreement shall be and hereby is amended as hereinafter set forth.
1. Section 1(i) is hereby amended and restated as follows:
(i) "Super Majority" shall mean, with respect to
decisions of the Board of Directors of the Company, a
number equal to the number of directors in the largest
class of directors, plus one. If the Company shall ever
consolidate its Board of Directors into a single class,
then Super Majority shall mean a number equal to the
lowest number of directors that constitutes greater than
or equal to 70% of the Whole Board. By way of example, if
the Board of Directors of the Company includes two classes
of directors, with six directors in one class and four
directors in the other class, a Super Majority would be
seven directors. If the Board of Directors consists of a
single class of 10 directors, a Super Majority would by
seven directors.
2. Section 7(e) is amended to read as follows:
(e) Notwithstanding anything in this Agreement to
the contrary, upon the earliest to occur of: (i) the date
the Company elects to exchange the Rights pursuant to
Section 11(c); (ii) a Triggering Event; or (iii) the Stock
Acquisition Date, any unexercised Rights that are or were
at any time on or after the earlier to occur of (x) the
Distribution Date or (y) the Stock Acquisition Date
beneficially owned by an Acquiring Person or owned by any
Person who subsequently becomes an Acquiring Person shall
immediately become permanently null and void without any
further action, and any holder of those Rights shall
thereupon have no right to exercise the Rights under any
provision of this Agreement.
3. Section 11(b) is amended to read as follows:
(b) In the event that there shall not be
sufficient issued but not outstanding and authorized but
unissued shares of Common Stock to
Exhibit 4.4
permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (a), the Company shall take all
such action as may be necessary to authorize additional
shares of Common Stock for issuance upon exercise of the
rights; provided, however, if the Company is unable to cause
the authorization of a sufficient number of additional shares
of Common Stock, then, in the event the Rights become so
exercisable, the Company, with respect to each Right and
to the extent necessary and permitted by applicable law
and any agreements or instruments in effect on the date
hereof to which it is a party shall, upon the exercise of
such Rights, (i) pay an amount in cash equal to the excess
of (A) the product of (1) the number of Adjustment Shares,
multiplied by (2) the Current Market Price of the Common
Stock (such product being herein referred to as the
"Current Value"), over (B) the Purchase Price, in lieu of
issuing shares of Common Stock and requiring payment
therefor, or (ii) issue debt or equity securities, or a
combination thereof, having a value equal to the Current
Value, where the value of such securities shall be
determined by a nationally recognized investment banking
firm selected by the Board of Directors of the Company,
and require the payment of the Purchase Price, or (iii)
deliver any combination of cash, property, Common Stock
and/or other securities having the requisite value, and
require payment of all or any requisite portion of the
Purchase Price. To the extent that the Company determines
that some action need be taken pursuant to clauses (i),
(ii), or (iii) of the proviso of this subparagraph (b), a
Super Majority of the Whole Board may suspend the
exercisability of the Rights for a period of up to 45 days
following the date on which the Flip-In Event shall have
occurred, in order to decide the appropriate form of
distribution to be made pursuant to the above proviso and
to determine the value thereof. In the event of any
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at
the time the suspension is no longer in effect.
4. Section 13(n) is amended to read as follows:
(a) The Company covenants and agrees that, after
the Stock Acquisition Date, it will not, except as
permitted by Section 23 or Section 26 hereof, take any
action the purpose or effect of which is to diminish
substantially or otherwise eliminate the benefits intended
to be afforded by the Rights, unless such action is
approved by a Super Majority of the Whole Board.
Exhibit 4.4
5. Section 21 is amended and restated as follows:
Section 21. Change of Rights Agent.
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(a) Resignation. The Rights Agent or any
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successor Rights Agent may resign and be discharged from
its duties under this Agreement upon 30 days' notice in
writing mailed to the Company, and to each transfer agent
of the Common Stock and Preferred Stock by registered or
certified mail, and to the holders of the Right
Certificates by first-class mail.
(b) Removal by Company. The Company may remove
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the Rights Agent or any successor Rights Agent upon 30
days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock and Preferred Stock, by
registered or certified mail, and to the holders of the
Right Certificates by first-class mail.
(c) Replacement. If the Rights Agent resigns or
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is removed or otherwise becomes incapable of acting, the
Company shall appoint a successor Rights Agent. If the
Company fails to appoint a successor Rights Agent within
30 days after giving the Rights Agent notice of its
removal, or within 30 days after receiving written notice
of the resignation or incapacity of the Rights Agent from
the Rights Agent or a holder of a Right Certificate (who
shall, with its notice, submit its Right Certificate for
inspection by the Company), then the registered holder of
any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent.
(d) Qualifications. Any successor Rights Agent,
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whether appointed by the Company or by a court, shall: (i)
be a trust company or banking corporation organized in any
of the United States and doing business in good standing
under the laws of the United States or of the State of
Missouri or of the State of New York ; (ii) be authorized
to do business as a trust company or banking institution
in the State of Missouri or the State of New York; (iii)
be subject to supervision or examination by federal or
state authority; and (iv) have, at the time of its
appointment as Rights Agent, a combined capital and
surplus of at least $10,000,000.
(e) Succession Procedures. After appointment, the
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successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver
and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of the
appointment of the successor Rights Agent, the Company
shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Stock
and the Preferred Stock, and mail a notice thereof in
writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in
this Section 21, however, or any
Exhibit 4.4
defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
6. Section 26 is amended to read as follows:
Section 26. Supplements and Amendments. The
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Company and the Rights Agent may from time to time
supplement or amend this Agreement without the approval of
any holders of Right Certificates in order to cure any
ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent
with any other provisions herein or to change or
supplement the provisions hereunder in any manner which
the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of
Right Certificates other than an Acquiring Person;
provided, however, that this Agreement may not be
supplemented or amended in any way unless approved by a
Super Majority of the Whole Board, and provided further
that no amendment or supplement may be made if the effect
would be to extend or shorten the redemption period after
the Stock Acquisition Date or change the Purchase Price or
the Redemption Price.
B. As promptly as practicable following the date of this
Third Amendment, the Company shall cause: (i) a summary of this
Third Amendment and a revised Summary of Rights reflecting this
Amendment to be sent by first-class postage prepaid mail to each
holder of record of Common Stock as of the close of business on the
date hereof, at the address of such holder as shown on the records
of the Company, (ii) the legend on the certificates for the Common
Stock referring to the Rights Agreement to be supplemented so as to
make reference to this Amendment, and (iii) the form of Rights
Certificate (attached as Exhibit B to the Rights Agreement) to be
supplemented to make reference to this Amendment.
* * * * *
Exhibit 4.4
IN WITNESS WHEREOF, the parties have caused this Amendment
to be duly executed and their respective corporate seals to be hereto
affixed and attested, all as of the date and year first above written.
Attest: KELLWOOD COMPANY
By: /s/ Xxx Xxxxxx By: /s/ Xxx X. Xxxxx
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Name: Xxx Xxxxxx Name: Xxx X. Xxxxx
Title: Chairman of the Board,
President and CEO
Attest: AMERICAN STOCK TRANSFER &
TRUST COMPANY, INC.,
as successor in interest to
Boatmen's Trust Company to the
obligations of Rights Agent
under this Agreement
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary Title: Vice President
