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EXHIBIT 4
FIRST AMENDMENT TO STOCKHOLDERS RIGHTS AGREEMENT
First Amendment, dated as of March 23, 1999 (the "Amendment"),
to the Stockholders Rights Agreement, dated as of March 28, 1996 (the "Rights
Agreement"), by and between CLARCOR Inc., a Delaware corporation (the
"Company"), and First Chicago Trust Company of New York (the "Rights Agent").
Capitalized terms used in this Amendment shall have the meanings ascribed to
them in the Rights Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company has directed the Rights Agent to amend the Rights Agreement as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. Section 1(i) and 1(t) of the Rights Agreement are hereby deleted in
their entirety and remaining Sections 1(j) through 1(nn) are hereby redesignated
as Sections 1(i) through 1(ll).
2. The first sentence of the legend in Section 3(c) of the Rights
Agreement is hereby amended to insert a comma after "1996"
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and to insert the words "as amended" immediately following such comma.
3. Section 11(a)(iii) of the Rights Agreement is hereby amended to read
in its entirety as follows:
"(iii) In the event that there shall not be sufficient
authorized and unissued or treasury shares of Common Stock to permit
the exercise in full of the Rights in accordance with paragraph (ii) of
this subsection (a), the Company shall take all necessary action to
authorize and reserve for issuance such number of additional shares of
Common Stock as may from time to time be required to be issued upon the
exercise in full of all outstanding Rights and, if necessary, shall use
its best efforts to obtain stockholder approval thereof.
Notwithstanding the preceding sentence, if the Board shall determine
that such action is necessary or appropriate and is not contrary to the
best interests of the holders of the Rights, the Board may cause the
Company, in lieu of issuing shares of Common Stock in accordance with
such paragraph (ii), to distribute, or if a sufficient number of shares
of Common Stock cannot be issued for such purpose in accordance with
the provisions hereof, the Company shall distribute, upon the exercise
of each Right, cash, debt securities, Preferred Shares, other shares of
Preferred Stock, other property or any combination thereof having an
aggregate Fair Market Value (determined as provided in subsection (d)
of this Section 11) equal to the Fair Market Value (as so determined)
of the number of shares of Common Stock which otherwise would have been
issuable pursuant to such paragraph (ii). Any such decision by the
Board must be made and publicly announced within 30 days after the
occurrence of any Section 11(a)(ii) Event."
4. Section 13(d) of the Rights Agreement is hereby deleted in its
entirety, and Sections 13(e) through 13(h) are hereby redesignated as Sections
13(d) through 13(g).
5. Sections 23(a) and (b) of the Rights Agreement are hereby amended to
read in their entirety as follows:
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"(a) The Board may, at its option, at any time prior to the
earliest of (i) the Close of Business on the 10th Business Day after
the Share Acquisition Date (or, if the Share Acquisition Date shall
have occurred prior to the Record Date, the Close of Business on the
10th Business Day after the Record Date), (ii) the occurrence of any
Section 13 Event and (iii) the Final Expiration Date, redeem all, but
not less than all, of the then outstanding Rights at a redemption price
of $.01 per Right, adjusted as provided in subsection (g) of this
Section 23 (such redemption price being hereinafter called the
"Redemption Price").
"(b) In addition to the right of redemption reserved in the
first sentence of subsection (a) of this Section 23, the Board may
redeem all, but not less than all, of the then out standing Rights at
the Redemption Price after the Share Acquisition Date, but prior to the
occurrence of any Section 13 Event, if either (i) the Person who is an
Acquiring Person shall have transferred or otherwise disposed of
(either alone or together with its Affiliates and Associates) such
number of shares of Common Stock of the Company, in one or a series of
related transactions not directly or indirectly involving the Company
or any of its Subsidiaries or the occurrence of any Section 13 Event,
as shall result in such Person thereafter being a Beneficial Owner of
less than 15% of the then outstanding shares of Common Stock of the
Company, and after such transfer or other disposition there is no other
Acquiring Person, or (ii) in connection with any Section 13 Event which
shall not involve an Interested Stockholder and in which all holders of
the Common Stock of the Company are treated the same."
6. Section 23(c) of the Rights Agreement is hereby amended to strike
and remove the words "and the Disinterested Directors" from the first sentence
thereof.
7. Section 27 of the Rights Agreement is hereby amended in its entirety
to read as follows:
"SECTION 27. SUPPLEMENTS AND AMENDMENTS. Prior to the
Distribution Date, but subject to the last sentence of this Section 27,
the Company and the Rights Agent, if so directed in writing by the
Company, shall supplement or amend any term, provision or condition of
this Agreement, without the approval of the registered holders of the
stock certificates
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representing the Common Stock and the Rights. From and after the
Distribution Date, the Company and the Rights Agent, if so directed in
writing by the Company, shall supplement or amend this Agreement,
without the approval of the registered holders of the Rights (however
represented), in order: (i) to cure any ambiguity, (ii) to correct or
supplement any term, provision or condition of this Agreement which may
be defective or inconsistent with any other term, provision or
condition hereof, (iii) to shorten or lengthen any time period
specified herein, provided that no such action shall have the effect of
lengthening the time period relating to when the Rights may be redeemed
if at such time the Rights are not then redeemable or (iv) to change or
supplement one or more of the terms, provisions or conditions hereof in
any manner which the Company may deem necessary or desirable and which
shall not adversely affect, as determined by the Board, the interests
of the holders (other than any Restricted Person or the transferees
therefrom specified in Section 7(d), of the Rights (however
represented); provided, however, that this Agreement may not be
supplemented or amended pursuant to clause (iii) of this sentence (A)
to lengthen any time period (except as permitted by Section 3(a)(ii))
unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders (other
than any Restricted Person or the transferees therefrom specified in
Section 7(d)) of the Rights or (B) to lengthen any time period relating
to when the Rights may be redeemed if at such time the Rights are not
then redeemable. Upon the delivery of a certificate from an appropriate
officer of the Company stating 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; provided,
however, that the Rights Agent shall not be required to execute any
supplement or amendment which affects any of the Rights Agent's rights,
powers, obligations, duties or immunities under this Agreement without
its consent. On and after the Distribution Date, no supplement or
amendment shall be made which changes the Exercise Price, the number of
one one-hundredths of a Preferred Share for which a Right is
exercisable, the Redemption Price or the Final Expiration Date. Prior
to the Distribution Date, the interests of the holders of the Rights
shall be deemed coincident with the interests of the holders of the
Common Stock of the Company."
8. Section 29 of the Rights Agreement is hereby amended to strike and
remove the parenthetical phrase "(or, as and when set forth herein, the
Disinterested Directors)" from the second sentence thereof and to strike and
remove the parenthetical phrases
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"(or the Disinterested Directors)" and "(including any Disinterested Director)"
from the third sentence thereof.
9. Section 31 of the Rights Agreement is hereby amended to strike and
remove the parenthetical phrase "(with the concurrence of at least a majority of
the Disinterested Directors then in office)" from the proviso thereof.
10. Exhibit C to the Rights Agreement is amended and restated in its
entirety in the form attached hereto.
11. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware.
12. This Amendment may be executed in any number of counterparts, and
each of such counterparts shall be deemed to be an original, and all such
counterparts shall together constitute but one and the same agreement.
13. Except as specifically provided in this Amendment to the Rights
Agreement, this Amendment shall not by implication or otherwise alter, modify,
amend or in any such way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Rights Agreement, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Rights Agreement to be duly executed, all as of the date and
year first above written.
CLARCOR INC.
By: /s/Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Chairman
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Account Officer
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EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
On March 28, 1996, the Board of Directors (the "Board") of
CLARCOR Inc., a Delaware corporation (the "Company"), declared a dividend of one
preferred stock purchase right (a "Right") for each outstanding share of Common
Stock, $1 par value (the "Common Stock"), of the Company. The dividend was paid
to holders of record of the Common Stock on April 25, 1996, (the "Record Date").
Each Right entitles the holder thereof (except as described below) to purchase
from the Company one one-hundredth of a share of the Series B Junior
Participating Preferred Stock, $100 par value (the "Preferred Shares"), of the
Company at a price (the "Exercise Price") of $80.00 per one one-hundredth of a
Preferred Share, subject to adjustment. The terms of the Rights are set forth in
the Stockholders Rights Agreement dated as of March 28, 1996, as amended by the
First Amendment dated as of March 23, 1999 thereto (the "First Amendment") (as
so amended, the "Rights Agreement"), between the Company and First Chicago Trust
Company of New York, as Rights Agent (the "Rights Agent"). Capitalized terms not
defined herein have the respective meanings specified in the Rights Agreement.
DISTRIBUTION DATE; TRANSFER OF RIGHTS
Initially, the Rights associated with the Common Stock
outstanding as of the Record Date will be evidenced solely by the stock
certificates for such Common Stock, with a copy of this Summary of Rights
attached thereto. The Rights will separate from the Common Stock upon the
earlier to occur of (i) 10 Business Days after the first public announcement
that any Person (other than an Exempt Person (as hereinafter defined)) has
become an Acquiring Person (as hereinafter defined) and (ii) 10 Business Days
after the commencement by any Person (other than an Exempt Person) of, or the
first public announcement of its intention to commence, a tender or exchange
offer if, upon the consummation thereof, such Person would be the Beneficial
Owner of 15% or more of the outstanding shares of Common Stock (the earliest of
the dates specified in clauses (i) and (ii) being hereinafter called the
"Distribution Date"). After the Distribution Date, the Rights will be evidenced
solely by separate certificates and will trade independently from the Common
Stock.
An "Acquiring Person" is any Person who or which, together
with its Affiliates and Associates, has acquired 15% or more of the shares of
Common Stock then outstanding, but does not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan or other compensation
program or arrangement of the Company or of any such Subsidiary or (iv) any
Person holding shares of Common Stock for or pursuant to the terms
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of any such plan, program or arrangement (the Persons specified in clauses (i)
through (iv) being herein collectively called "Exempt Persons"). A "Restricted
Person" is an Acquiring Person or any Affiliate or Associate thereof.
The Rights Agreement provides that, until the Distribution
Date (or the earlier redemption or expiration of the Rights), the Rights may be
transferred only with the associated shares of Common Stock. Until the
Distribution Date (or the earlier redemption or expiration of the Rights), stock
certificates for Common Stock issued after the Record Date, either upon transfer
of outstanding shares or original issuance of additional shares of Common Stock,
will contain a legend incorporating the Rights Agreement by reference. Until the
Distribution Date (or the earlier redemption or expiration of the Rights), the
surrender for transfer of any stock certificate for shares of Common Stock, with
or without such legend and whether or not a copy of this Summary of Rights is
attached thereto, will also constitute the transfer of the Rights associated
with the shares of Common Stock represented by such stock certificate.
As soon as practicable after the Distribution Date, separate
certificates evidencing the Rights ("Rights Certificates") will be mailed to the
holders of record of the Common Stock as of the Close of Business on the
Distribution Date, which thereafter will constitute the sole evidence of the
Rights. Each share of Common Stock issued by the Company after the Record Date
and prior to the earlier redemption or expiration of the Rights, including any
shares of Common Stock issued by reason of the exercise of any option, warrant,
right (other than the Rights) or conversion or exchange privilege (however
evidenced) issued by the Company prior to the Distribution Date, will be
accompanied by a Right (unless the Board expressly provides to the contrary at
the time of issuance of any such option, warrant, right or privilege), and
Rights Certificates evidencing such Rights will be issued at the same time as
the stock certificates for the associated shares of Common Stock.
The Rights are not exercisable until the Distribution Date.
Moreover, the time when the Rights may be exercised is restricted as described
in the next paragraph. The Rights will expire on April 25, 2006 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each case as
described below.
EXERCISE OF RIGHTS UNDER CERTAIN CIRCUMSTANCES
In the event that any Person becomes an Acquiring Person,
proper provision will be made so that the registered holder of each Right (other
than Rights Beneficially Owned as described in the next sentence) will
thereafter have the right to receive, upon exercise thereof, the number of
shares of Common Stock which, at
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the time of the occurrence of such event, will have a market value equal to two
times the then current Exercise Price. After any Person becomes an Acquiring
Person, all Rights which are, or (under certain circumstances specified in the
Rights Agreement) were, Beneficially Owned by a Restricted Person or specified
transferees therefrom will be or become void.
If, on or after the date on which any Person has become an
Acquiring Person, any of the following transactions occur: (i) the Company
merges into or consolidates with an Interested Stockholder (as hereinafter
defined) or, unless all holders of the Company's outstanding shares of Common
Stock are treated the same, another Person (with limited designated exceptions);
(ii) an Interested Stockholder or, unless all holders of the Company's
outstanding shares of Common Stock are treated the same, another Person (with
limited designated exceptions) merges into the Company and either (A) all or
part of the outstanding shares of Common Stock of the Company are converted into
capital stock or other securities of any other Person (or the Company), cash
and/or other property or (B) such shares remain outstanding, unconverted and
unchanged; or (iii) the Company sells or transfers 50% or more of its
consolidated assets or earning power to an Interested Stockholder (as
hereinafter defined) or, unless all holders of the Company's outstanding shares
of Common Stock are treated the same, another Person (with limited designated
exceptions); proper provision will be made so that the registered holder of each
Right (other than Rights which have become void) will thereafter have the right
(the "Flip-Over Right") to receive, upon exercise thereof, the number of common
shares of the acquiror (or of another Person affiliated therewith) which, at the
time of consummation of such transaction, will have a market value equal to two
times the then current Exercise Price. An "Interested Stockholder" is any
Restricted Person or any Affiliate or Associate of any other Person in which
such Restricted Person has an interest, or any Person acting, directly or
indirectly, on behalf of or in concert with any such Restricted Person.
ADJUSTMENTS TO EXERCISE PRICE AND STOCK PURCHASABLE UPON EXERCISE
The Exercise Price payable, the number and kind of shares of
capital stock issuable upon exercise of the Rights and the number of Rights
outstanding are subject to adjustment from time to time to prevent dilution (i)
in the event of a dividend payable in Preferred Shares on, or a subdivision,
combination or reclassification of, the Preferred Shares, (ii) upon the grant to
the holders of the Preferred Shares of certain options, warrants or rights to
subscribe for or purchase Preferred Shares at a price, or securities convertible
into or exchangeable for Preferred Shares with a conversion or exchange price,
less than the then Fair Market Value of the Preferred Shares or (iii) upon the
distribution to the holders of the Preferred Shares of cash, securities,
evidences of indebtedness or other property (other than a regular quarterly cash
dividend or a dividend payable in Preferred Shares) or options,
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warrants or rights (other than those referred to in clause (ii) above).
The number of outstanding Rights and the number of one
one-hundredths of a Preferred Share issuable upon exercise of each Right are
also subject to adjustment in the event of a dividend on the Common Stock
payable in shares of Common Stock or a subdivision, combination or
reclassification of the Common Stock occurring, in any such case, prior to the
Distribution Date.
With certain specified exceptions, no adjustment in the
Exercise Price will be made until the cumulative adjustments required equal at
least 1% of the Exercise Price. The Company is not required to issue fractional
Preferred Shares (other than fractions which are multiples of one one-hundredth
of a Preferred Share), but in lieu thereof the Company would be required to make
a cash payment based on the Fair Market Value of the Preferred Shares on the
trading day immediately preceding the date of exercise.
TERMS OF PREFERRED SHARES
The Preferred Shares receivable upon exercise of the Rights
will not be redeemable. Each Preferred Share will entitle the holder thereof to
receive a preferential quarterly dividend equal to the greater of (i) $64 and
(ii) 100 times the aggregate per share amount of all cash dividends, plus 100
times the aggregate per share amount (payable in kind) of all non-cash dividends
and other distributions (other than in shares of Common Stock), declared on the
Common Stock during such quarter, adjusted to give effect to any dividend on the
Common Stock payable in shares of Common Stock or any subdivision, combination
or reclassification of the Common Stock (a "Dilution Event"). Each Preferred
Share will entitle the holder thereof to 100 votes on all matters submitted to a
vote of the stockholders of the Company, voting together as a single class with
the holders of the Common Stock and the holders of any other class of capital
stock having general voting rights, adjusted to give effect to any Dilution
Event. In the event of liquidation of the Company, the holder of each Preferred
Share will be entitled to receive a preferential liquidation payment equal to
(i) the greater of $100 or (ii) 100 times the aggregate per share amount to be
distributed to the holders of the Common Stock, adjusted to give effect to any
Dilution Event, plus an amount equal to accrued and unpaid dividends and
distributions on such Preferred Share, whether or not declared, to the date of
such payment. In the event of any merger, consolidation or other transaction in
which the outstanding shares of Common Stock of the Company are exchanged for or
converted into other capital stock, securities, cash and/or other property, each
Preferred Share will be similarly exchanged or converted into 100 times the per
share amount applicable to the Common Stock, adjusted to give effect to any
Dilution Event.
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Because of the nature of the dividend, voting, liquidation and
other rights accorded to each Preferred Share, the value of the one
one-hundredth of a Preferred Share receivable upon the exercise of each Right
should approximate the value of one share of Common Stock.
REDEMPTION OF RIGHTS
At any time prior to the earliest of (i) 10 Business Days
after the first public announcement that any Person (other than an Exempt
Person) has become an Acquiring Person, (ii) the occurrence of any transaction
which permits the exercise of the Flip-Over Right and (iii) the Final Expiration
Date, the Board may redeem the Rights in whole, but not in part, at the
redemption price of $.01 per Right, adjusted to give effect to any Dilution
Event (the "Redemption Price"). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board, in
its sole discretion, may establish. After the redemption period has expired, the
Company's right of redemption may be reinstated, under the circumstances
specified in the Rights Agreement, if either (i) the Person who became an
Acquiring Person shall reduce, in one or a series of related transactions not
involving the Company or any Subsidiary or the occurrence of any transaction
which permits the exercise of the Flip-Over Right, its Beneficial Ownership of
the outstanding shares of Common Stock to less than 15% of such outstanding
shares or (ii) in connection with any transaction which permits the exercise of
the Flip-Over Right, which does not involve an Interested Stockholder and in
which all holders of the Common Stock are treated the same. Immediately after
action by the Board directing the redemption of the Rights, the option to
exercise the Rights will terminate, and thereafter each registered holder of the
Rights will only be entitled to receive the Redemption Price therefor.
EXCHANGE OF RIGHTS
At any time after any Person has become an Acquiring Person
and prior to the time that any Person (other than an Exempt Person), together
with its Affiliates and Associates, has become the Beneficial Owner of 50% or
more of the outstanding shares of Common Stock, the Board may direct that all or
any part of the outstanding Rights (other than Rights which have become void) be
exchanged for shares of Common Stock at the exchange rate of one share of Common
Stock per Right, adjusted to give effect to any Dilution Event.
AMENDMENT OF THE RIGHTS AND THE RIGHTS AGREEMENT
Prior to the Distribution Date, the terms of the Rights and
the Rights Agreement may be supplemented or amended by the Board in any manner.
From and after the Distribution Date, the Rights may be supplemented or amended
by the Board, without the approval of the holders of the Rights, in certain
respects which do
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not adversely affect, as determined by the Board, the interests of such holders;
provided, however, that the Rights Agreement cannot be amended to lengthen (i)
any time period unless such lengthening is for the benefit of the holders of the
Rights or (ii) any time period relating to when the Rights may be redeemed if at
such time the Rights are not then redeemable.
MISCELLANEOUS
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.
A copy of the Rights Agreement, as amended, is available free
of charge from the Company. 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 to the First Amendment, both of which are hereby
incorporated herein by reference.
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