FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (the "Amendment"), dated and effective as of
November 1, 2002, among Oshkosh Truck Corporation, a Wisconsin corporation (the
"Company"), U.S. Bank National Association ("U.S. Bank") and Computershare
Investor Services, LLC ("Computershare"), to the Rights Agreement (the "Rights
Agreement") between the Company and U.S. Bank (as successor Firstar Bank
Milwaukee, N.A.), dated as of February 1, 1999.
W I T N E S S E T H
WHEREAS, the Company and U.S. Bank previously entered into the Rights
Agreement, pursuant to which U.S. Bank was appointed to serve as the Rights
Agent; and
WHEREAS, pursuant to Section 21 of the Rights Agreement, the Company
desires to discharge U.S. Bank from its duties as Rights Agent under the Rights
Agreement and to appoint Computershare as successor Rights Agent under the
Rights Agreement, and Computershare desires to undertake and perform the duties
and obligations of the Rights Agent under the terms and conditions of the Rights
Agreement, and
WHEREAS, in connection with the discharge of U.S. Bank as Rights Agent
and the appointment of Computershare as successor Rights Agent, the Company,
U.S. Bank and Computershare desire to amend the Rights Agreement in certain
respects.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Appointment of the Successor Rights Agent. The Company
hereby appoints Computershare as successor Rights Agent under the Rights
Agreement, as amended pursuant to Section 3 below (the "Amended Rights
Agreement"). Computershare hereby accepts such appointment as agent for the
Company and the holders of Rights under the Rights Agreement, and Computershare
assumes and agrees to perform all of the duties and obligations of the Rights
Agent under the terms and conditions of the Amended Rights Agreement.
Section 2. Notices. The Company, U.S. Bank and Computershare each waive
any requirements of prior written notice of a change of the Rights Agent under
the Rights Agreement. This Amendment constitutes notice to U.S. Bank, as the
predecessor Rights Agent and the Company's transfer agent, pursuant to Section
21 of the Rights Agreement that the Company has appointed Computershare as the
successor Rights Agent to U.S. Bank and that U.S. Bank is discharged as such
Rights Agent.
Section 3. Amendment of Rights Agreement. The Rights Agreement shall be
amended as follows:
(a) "Computershare Investor Services, LLC" shall be substituted
throughout the Rights Agreement and Exhibits thereto for "Firstar Bank
Milwaukee, N.A.", including substituting all abbreviations therefor.
(b) Section 1(d) is hereby amended by deleting the definition of
"Business Day" in its entirety and substituting the following definition:
"Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which the New York Stock
Exchange or banking institutions in the States of Illinois or
Wisconsin are generally authorized or obligated by law or
executive order to close.
(c) Section 21 of the Rights Agreement is hereby amended and restated
in its entirety to read as follows:
" Section 21. Change of Rights Agent. The Rights Agent or any
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
Shares by registered or certified mail and, if separate Right
Certificates have been issued as of the date of such notice as
contemplated by Section 3 hereof, to the holders of the Right
Certificates by first-class mail. The Company may remove 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 Shares by registered or certified mail, and, if
separate Right Certificates have been issued as of the date of
such notice as contemplated by Section 3 hereof, to the
holders of the Right Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving
notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his 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. Any successor Rights Agent, whether appointed by
the Company or by such a court, shall be (a) a corporation
organized and doing business under the laws of the United
States or of the States of New York, Wisconsin or Delaware (or
any other State of the United States so long as such
corporation is authorized to do business in the States of New
York, Wisconsin or Delaware), in good standing, having an
office or agency in the States of Wisconsin, New York or
Delaware, which is authorized under such laws to exercise the
powers of the Rights Agent contemplated by this Agreement and
is subject to supervision or examination by
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federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of
at least $5,000,000 or (b) an Affiliate of a corporation
described in clause (a) of this sentence. After appointment,
the 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 any such appointment the Company
shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Shares,
and, if separate Right Certificates have been issued as of
such effective date as contemplated by Section 3 hereof, 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 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."
(d) Section 26(b) of the Rights Agreement is hereby amended by deleting
the address for notice or demand to be given to the Rights Agent by the Company
or by the holder of any Right Certificate and substituting in lieu therefor the
following:
Computershare Investor Services, LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Relationship Manager
with a copy to:
Computershare Investor Services, LLC
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Section 4. Continued Effectiveness. The parties hereto hereby
acknowledge and agree that, except as specifically supplemented and amended,
changed or modified in Section 4 above, the Rights Agreement, as previously
amended to the date hereof, shall be unaffected by this Amendment and remain in
full force and effect in accordance with its terms.
Section 5. Execution in Counterparts. 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
one and the same instrument.
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Section 6. Defined Terms. Except as otherwise expressly provided
herein, or unless the context otherwise requires, all terms used but not defined
herein have the meanings assigned to them in the Rights Agreement.
Section 7. Governing Law. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and effective as of the day and year above written.
OSHKOSH TRUCK Corporation
By /s/ Xxxxx X. Xxxxxxxxxx
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Its Vice President and Secretary
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxxxx
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Its Vice President
COMPUTERSHARE INVESTOR
SERVICES, LLC
By /s/
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Its Secretary
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