AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment dated May 11, 1999, amends the Rights Agreement dated
as of May 29, 1998 ("Rights Agreement"), between Gradall Industries, Inc., a
Delaware corporation (the "Company"), and ChaseMellon Shareholder Services, LLC
(the "Rights Agent"). Terms defined in the Rights Agreement and not otherwise
defined herein are used herein as so defined.
WHEREAS, on May 29, 1998, the Board of Directors of the Company
authorized the issuance of Rights to purchase, on the terms and subject to the
provisions of the Rights Agreement, one one-hundredth of a share of the
Company's Preferred Stock, and the Company and the Rights Agent entered into the
Rights Agreement to set forth the description and terms of the Rights;
WHEREAS, the Company, JLG Industries, Inc., a Pennsylvania corporation
("Parent") and JLG Acquisition Corp., a Delaware corporation ("Merger
Subsidiary"), have entered into an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which, among other things, Merger Subsidiary will
commence a cash tender offer (the "Offer") to purchase all of the outstanding
shares of the Company and, following the commencement of the Offer, the Merger
Subsidiary would merge with and into the Company (the "Merger");
WHEREAS, certain stockholders of the Company also entered into a
Stockholders Agreement, pursuant to which, among other things, such stockholders
would agree (i) to tender his shares of Common Stock, par value $.001 per share
of the Company (the "Common Stock") pursuant to the Offer, and (ii) grant to
Merger Subsidiary an irrevocable proxy to vote his Common Stock in favor of the
Merger, the Merger Agreement and the transactions contemplated thereby;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement and amend the Rights
Agreement in order to make any change which the Company may deem necessary or
desirable, and the Continuing Directors now desire to amend certain provisions
of the Rights Agreement in order to supplement certain provisions therein; and
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms, have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment to Section 1. Section 1 of the Rights Agreement is
supplemented to add the following definitions in the appropriate locations:
"'Merger' shall have the meaning set forth in the Merger Agreement."
"'Merger Agreement' shall mean the Agreement and Plan of Merger, dated
as of May 10, 1999, by and among Company, Parent and Merger Subsidiary, as it
may be amended from time to time."
"'Offer' shall have the meaning set forth in the Merger Agreement."
"'Stockholders Agreement' shall mean the Stockholders Agreements dated
as of May 10, 1999 by and among the Company, Parent, Merger Subsidiary and the
Stockholders parties thereto."
2. Amendment of the definition of "Acquiring Person." The
definition of "Acquiring Person" in Section 1 of the Rights Agreement is amended
by adding the following at the end thereof:
"In addition, notwithstanding the foregoing or any provision
to the contrary in this Agreement, none of Parent, Merger
Subsidiary or any of their respective Affiliates shall,
individually or collectively, be deemed to be an Acquiring
Person by virtue of (i) the approval, execution or delivery
of the Offer, the Merger Agreement or the Stockholders
Agreement, (ii) the commencement or consummation of the
Offer, (iii) the acquisition of Common Stock by Parent,
Merger Subsidiary or any of their respective Affiliates
pursuant to the Offer or the Stockholders Agreement, or (iv)
the consummation of the Merger or other transactions
contemplated in the Merger Agreement or the Stockholders
Agreement; provided, however, that in the event Parent,
Merger Subsidiary or any of their respective Affiliates
becomes the Beneficial Owner of 15% or more of the Common
Stock other than pursuant to the Offer, the Merger Agreement
or the Stockholders Agreement, the provisions of this
sentence (other than this proviso) shall not be applicable."
3. Amendment of the definition of "Distribution Date." The
definition of "Distribution Date" in Section 1 of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Distribution Date shall not be
deemed to occur by reason of (i) the approval, execution or
delivery of the Offer, the
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Merger Agreement or the Stockholders Agreement, (ii) the
commencement or consummation of the Offer, (iii) the
acquisition of Common Stock by Parent, Merger Subsidiary or
any of their respective Affiliates pursuant to the Offer or
the Stockholders Agreement, (iv) the consummation of the
Merger, or other transactions contemplated in the Merger
Agreement or the Stockholders Agreement, or (v) the
announcement of the Offer, the Merger or other transactions
contemplated by the Merger Agreement or the Stockholders
Agreement; provided, however, that in the event Parent,
Merger Subsidiary or any of their respective Affiliates
becomes the Beneficial Owner of 15% or more of the Common
Stock other than pursuant to the Offer, the Merger Agreement
or the Stockholders Agreement, the provisions of this
sentence (other than this proviso) shall not be applicable."
4. Amendment of the definition of "Stock Acquisition Date." The
definition of "Stock Acquisition Date" in Section 1 of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding the foregoing or any provision to the
contrary in this Agreement, a Stock Acquisition Date shall
not be deemed to occur by virtue of (i) the approval,
execution or delivery of the Offer, the Merger Agreement or
the Stockholders Agreement, (ii) the commencement or
consummation of the Offer, (iii) the acquisition of Common
Stock by Parent, Merger Subsidiary or any of their
respective Affiliates pursuant to the Offer or the
Stockholders Agreement, (iv) the consummation of the Merger,
or other transactions contemplated in the Merger Agreement
or the Stockholders Agreement, or (v) the announcement of
the Offer, the Merger or the other transactions contemplated
by the Merger Agreement or the Stockholders Agreement;
provided, however, that in the event Parent, Merger
Subsidiary or any of their respective Affiliates becomes the
Beneficial Owner of 15% or more of the Common Stock other
than pursuant to the Offer, the Merger Agreement or the
Stockholders Agreement, the provisions of this sentence
(other than this proviso) shall not be applicable."
5. Amendment to Section 2. Section 2 of the Rights Agreement is
amended by deleting "and the holders of the Rights in accordance with the terms
and conditions hereof" from the first sentence thereof.
6. Amendment to Section 20. Section 20 of the Rights Agreement is
amended to add the following sentence at the end of subparagraph (c) thereof:
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"In no case will the Rights Agent be liable for special,
indirect, punitive, incidental or consequential loss or
damages of any kind whatsoever (including without limitation
lost profits), even if the Rights Agent has been advised of
the possibility of such damages."
7. Amendment to Section 30. Section 30 of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedies or claims under this Agreement by virtue of
the approval, execution or delivery of the Offer, the Merger
Agreement or the Stockholders Agreement or by virtue of any
of the transactions contemplated by the Merger Agreement and
the Stockholders Agreement; provided, however, that in the
event Parent, Merger Subsidiary or any of their respective
Affiliates becomes the Beneficial Owner of 15% or more of
the Common Stock other than pursuant to the Offer, the
Merger Agreement or the Stockholders Agreement, the
provisions of this sentence (other than this proviso) shall
not be applicable. Unless or until the Rights Agent has
received written notice to the contrary, the Rights Agent
shall be fully protected and shall incur no liability in
always assuming that the Parent, Merger Subsidiary or any of
their respective Affiliates, has not become the Beneficial
Owner of 15% or more of the Common Stock other than pursuant
to the Offer, the Merger Agreement or the Stockholders
Agreement."
8. This Amendment shall be deemed to be entered into under the
laws of the State of Delaware 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, except that the rights and
obligations of the Rights Agent shall be governed by the law of the State of New
York.
9. 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 but one and the
same instrument.
10. Except as expressly herein set forth, the remaining provisions
of the Rights Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the date first written above.
Gradall Industries, Inc.
By: /s/ Barry L. Phillips
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Name: Barry L. Phillips
Title: President & CEO
Attest: /s/ Bruce A. Jonker
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ChaseMellon Shareholder Services, LLC.,
as Rights Agent
By: /s/ Mitzi Brinkman
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Signature of Authorized Signatory
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