AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit
(e)(2)
AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
This Amendment is made and entered into as of February 11, 2008 (this “Amendment”) to the
Amended and Restated Rights Agreement, dated as of April 19, 2007 (the “Rights Agreement”), between
KELLWOOD COMPANY, a Delaware corporation (the “Company”), and AMERICAN STOCK TRANSFER AND TRUST
COMPANY, a trust company organized under the laws of the State of New York (the “Rights Agent”).
WHEREAS, on January 15, 2008, Cardinal Integrated, LLC, a Delaware limited liability company
(“Cardinal”), an affiliate of Sun Capital Securities Group LLC (“Sun Capital”)commenced an
unsolicited, conditional tender offer (the “Offer”) for all of the issued and outstanding shares of
common stock, par value $0.01 per share, of the Company (the “Common Stock”) and the associated
Series A Junior Preferred Stock purchase rights (the “Rights” and, together with the Common Stock,
the “Shares”) issued pursuant to the Rights Agreement for $21.00 per Share, net to the seller in
cash (the “Offer Price”), without interest, upon the terms and subject to the conditions set forth
in that certain Offer to Purchase filed with the Securities and Exchange Commission on January 15,
2008, as amended through February 8, 2008 (the “Offer Documents”);
WHEREAS, the Board of Directors has previously taken action to defer the occurrence of a
Distribution Date for events related to or arising from the Offer Documents;
WHEREAS, the Board of Directors of the Company has authorized this Amendment and the taking of
all other action, so that the provisions of the Rights Agreement are inapplicable to the
transactions contemplated by the Offer Documents so that the Offer may be consummated on February
12, 2008, subject to (i) Cardinal and Sun Capital acquiring in the Offer a number of shares of
Common Stock that, when added to shares already owned by Sun Capital, constitute a majority of the
then outstanding shares of Common Stock on a fully diluted basis (the “Majority Condition”); (ii)
the Company not making a determination that a transaction with a third party has a reasonable
likelihood of delivering a per share price in excess of $21.00 prior to 4:00 p.m. Eastern Standard
Time on February 12, 2008 (a “Superior Proposal”); and (iii) the Offer not being extended, amended
or modified in any way, unless such extension, amendment or modification is approved by the Board
of Directors of the Company prior to the purchase of shares by Cardinal in the Offer (collectively,
with the Majority Condition and the Superior Proposal, the “Conditions Precedent”);
WHEREAS, the Board of Directors has authorized this Amendment and the taking of all other
action, so that the provisions of the Rights Agreement are inapplicable to Shares acquired by
Cardinal, Sun Capital and their respective affiliates pursuant to a merger agreement with the
Company and Cardinal, Sun Capital or their respective affiliates with an effective date following
the consummation of the Offer (the “Related Merger Agreement”);
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and the Rights Agent may
supplement and amend the Rights Agreement; and
WHEREAS, pursuant to resolutions adopted by its Board of Directors, the Company has determined
that an amendment to the Rights Agreement as set forth herein is necessary and desirable in
connection with the foregoing and desires to evidence such amendment in writing;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth herein and in the Rights Agreement, the parties hereto agree as set forth below.
1. The provisions of the Rights Agreement shall be inapplicable to the particular transactions
contemplated by the Offer Documents and any Related Merger Agreement executed in connection
therewith, subject to the Conditions Precedent having been satisfied. For the avoidance of doubt,
neither the acquisition of Shares by Cardinal, Sun Capital and their respective affiliates pursuant
to the Offer or pursuant to any merger occurring thereafter between the Company and Cardinal, Sun
Capital and their respective Affiliates nor the execution, delivery or performance of a Related
Merger Agreement, if any, shall cause Cardinal, Sun Capital and their Affiliates to become an
Acquiring Person under the Rights Agreement, or result in the occurrence of a Distribution Date, a
Stock Acquisition Date, or a Trigger Date, subject to the Conditions Precedent having been
satisfied.
2. Amendment of Section 1. Certain Definitions.
Subject to the Conditions Precedent having been satisfied, the definition of “Acquiring
Person” in Section 1(a) of the Rights Agreement is amended by adding the following section end
thereof:
(v) Notwithstanding anything in this Agreement to the contrary, Cardinal
Integrated, LLC, a Delaware limited liability company (“Cardinal”), an affiliate of
Sun Capital Securities Group LLC (“Sun Capital”), and their respective Affiliates
shall not be deemed to be an Acquiring Person solely as a result of (w) the
commencement of the tender offer (the “Offer”) for all issued and outstanding
shares of Common Stock upon the terms and subject to the conditions set forth in
that certain Offer to Purchase filed with the Securities and Exchange Commission on
January 15, 2008, as amended through February 8, 2008 (the “Offer Documents”); (x)
the acquisition of Common Stock by Cardinal, Sun Capital and their respective
Affiliates in accordance with the provisions of the Offer Documents; (y) the
execution, delivery or performance of any merger agreement between the Company and
Cardinal, Sun Capital and their respective Affiliates with an effective date
following the consummation of the Offer (the “Related Merger Agreement”) or (z) any
public announcement related to any of the foregoing.
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Subject to the Conditions Precedent having been satisfied, the definition of “Distribution
Date” in Section 1(j) of the Rights Agreement is amended by adding the following sentence at the
end thereof:
Notwithstanding anything in this Agreement to the contrary, a Distribution
Date shall not be deemed to have occurred solely as the result of (i) the
commencement of the Offer; (ii) the acquisition of Common Stock by Cardinal, Sun
Capital and their respective Affiliates in accordance with the provisions of the
Offer Documents; (iii) the execution, delivery or performance of any Related Merger
Agreement; or (iv) any public announcement related to any of the foregoing.
Subject to the Conditions Precedent having been satisfied, the definition of “Stock
Acquisition Date” in Section 1(r) of the Rights Agreement is amended by adding the following
sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as the result of (i)
the commencement of the Offer; (ii) the acquisition of Common Stock by Cardinal,
Sun Capital and their respective Affiliates in accordance with the provisions of
the Offer Documents; (iii) the execution, delivery or performance of any Related
Merger Agreement; or (iv) any public announcement related to any of the foregoing.
Subject to the Conditions Precedent having been satisfied, the definition of “Triggering
Event” in Section 1(u) of the Rights Agreement is amended by adding the following sentence at the
end thereof:
Notwithstanding anything in this Agreement to the contrary, a Triggering Event
shall not be deemed to have occurred solely as the result of (i) the commencement
of the Offer; (ii) the acquisition of Common Stock by Cardinal, Sun Capital and
their Affiliates in accordance with the provisions of the Offer Documents; (iii)
the execution, delivery or performance of any Related Merger Agreement; or (iv) any
public announcement related to any of the foregoing.
3. Effectiveness. Subject to the Conditions Precedent having been satisfied, this
Amendment shall be deemed effective as of the date first written above, as if executed on such
date. Except as amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.
4. Terms. Terms used but not defined herein shall have the meanings ascribed to them
in the Rights Agreement.
5. Counterparts. This Amendment may be executed in any number of counterparts, 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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6. Severability. If any term, provision, covenant or restriction of this Amendment 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 Amendment shall remain
in full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Amendment 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 Amendment would adversely affect the
purpose or effect of this Amendment, the right of redemption set forth in Section 23 of the Rights
Agreement shall be reinstated and shall not expire until the close of business on the tenth day
following the date of such determination by the Board of Directors.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed, all as of the
date and year first above written.
| Attest: | KELLWOOD COMPANY | |||||||
By: |
By: | |||||||
| Name: | Name: | |||||||
| Title: | Title: | |||||||
| Attest: | AMERICAN STOCK TRANSFER & TRUST COMPANY, INC. |
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| By; | By: | |||||||
| Name: | Name: | |||||||
| Title: | Title: |
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