SECOND AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of February 16, 1999 (this "Amendment"), to
the Rights Agreement, dated as of August 21, 1998, as amended as of October 2,
1998 (the "Rights Agreement"), by and between OmniQuip International, Inc., a
Delaware corporation (the "Company"), and The First Chicago Trust Company of New
York (the "Rights Agent").
WHEREAS, pursuant to and in compliance with Section 27 of the
Rights Agreement, the Company and the Rights Agent desire to amend the Rights
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the Rights Agreement, the parties hereto
agree as follows:
1. The first sentence of Section 3(a) of the Rights Agreement is
hereby amended to read in its entirety as follows:
"(a) Until the earlier of (i) the Close of Business on the tenth
day after the Stock Acquisition Date (or, if the tenth day after
the Stock Acquisition Date occurs before the Record Date, the
Close of Business on the Record Date), or (ii) the Close of
Business on the tenth business day (or such later date as the
Board shall determine) after the date that a tender or exchange
offer by any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the
terms of any such plan) is first published or sent or given within
the meaning of Rule 14d-2(a) of the General Rules and Regulations
under the Exchange Act, if upon consummation thereof, such Person
would be the Beneficial Owner of ten percent (10%) or more of the
shares of Common Stock then outstanding (the earlier of (i) and
(ii) being herein referred to as the "Distribution Date"), (A) the
Rights will be evidenced (subject to the provisions of paragraph
(b) of this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and (B)
the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company)."
2. The first sentence of the legend contained in Section 3(c) of
the Rights Agreement is hereby amended by inserting after the words "OCTOBER 2,
1998" the words "AND FEBRUARY 16, 1999."
3. The first sentence of Section 13(a) of the Rights Agreement is
hereby amended so that the beginning portion of such sentence through the end of
clause (y) thereof shall read in its entirety as follows (it being understood
that the remainder of such sentence following clause (y) shall remain in full
force and effect):
"(a) In the event that, following the Stock Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or
merge with and into, any other Person, and the Company shall not
be the continuing or surviving corporation of such consolidation
or merger, (y)(i) any Person shall consolidate with, or merge with
or into, the Company or a Subsidiary of the Company, and (ii) the
Company shall be the continuing or surviving corporation of such
consolidation or merger or the Company shall not be a constituent
corporation in any such merger or consolidation and, in connection
with any such transaction in clauses (y)(i) or (y)(ii), (A) all or
part of the outstanding shares of Common Stock shall be changed
into or exchanged for stock or other securities of any other
Person or cash or any other property or (B) the shares of Common
Stock held by stockholders of the Company immediately prior to the
consummation of the transaction which remain outstanding shall
constitute less than fifty percent (50%) of the total number of
shares of Common Stock or less than fifty percent (50%) of the
total voting power outstanding immediately following the
consummation of the transaction, or"
4. Section 13(d) of the Rights Agreement is hereby deleted in its
entirety.
5. Section 23 of the Rights Agreement is hereby amended to delete
in its entirety paragraph (c) thereof.
6. Section 27 of the Rights Agreement is hereby amended to read in
its entirety as follows:
"Section 27. Supplements and Amendments. Prior to the Distribution
Date and subject to the penultimate sentence of this Section 27,
the Company and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement without the
approval of any holders of certificates representing shares of
Common Stock. From and after the Distribution Date and subject to
the penultimate sentence of this Section 27, the Company and the
Rights Agent shall, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii)
to shorten or lengthen any time period hereunder, or (iv) 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 Rights
Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); provided,
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however, this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A) a time
period relating to when the Rights may be redeemed at such time as
the Rights are not then redeemable, or (B) any other time period
unless such lengthening is for the purpose of protecting,
enhancing or clarifying the rights of, and/or the benefits to, the
holders of Rights. 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, the Final Expiration Date, the
Purchase Price or the number of Units of Preferred Stock for which
a Right is exercisable. 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."
7. The Form of Rights Certificate attached to the Rights Agreement
as Exhibit B is hereby amended by inserting "and February 16, 1999" after the
words "and amended as of October 2, 1998".
8. The second to last sentence of the last paragraph on page 2 of
the Form of Rights Certificate attached to the Rights Agreement as Exhibit B is
hereby deleted in its entirety.
9. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware.
10. This Amendment may be executed in counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and both
such counterparts shall together constitute but one and the same instrument.
11. Except as expressly set forth herein, this Amendment shall not
by implication or otherwise alter, modify, amend or in any 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 be duly executed and attested, all as of the day and year first above
written.
OMNIQUIP INTERNATIONAL, INC.
By:/s/ ▇. ▇▇▇▇▇ Stiff
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▇. ▇▇▇▇▇ Stiff
President and Chief Executive Officer
Attest
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and
Chief Administrative Officer
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Account Officer
Attest
By:/s/ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇
Title: Account Officer
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