SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest
event reported) June 30, 1999
Herman Miller, Inc.
(Exact name of registrant as specified in its charter)
Michigan 0-5813 38-0837640
(State of (Commission File Number) (I.R.S. Employer
Incorporation) Identification No.)
855 East Main Street, Zeeland 49464
(Address of principal executive offices) (Zip Code)
(616) 654-3000
(Registrant's telephone number,
including area code)
Page 1 of 6 Pages
Exhibit Index is on Page 7
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Item 5. Other Events
On June 30, 1999, the Board of Directors of Herman Miller, Inc., a Michigan
corporation (the "Company"), declared a dividend payable July 12, 1999 of one
right (a "Right") for each outstanding share of common stock, $.20 par value
("Common Stock") of the Company held of record at the close of business on July
12, 1999 (the "Record Time"), or issued thereafter and prior to the Separation
Time (as hereinafter defined). The Rights were issued pursuant to a Shareholder
Protection Rights Agreement, dated as of June 30, 1999 (the "Rights Agreement"),
between the Company and First Chicago Trust of New York, a division of Equiserve
Limited Partnership, as Rights Agent (the "Rights Agent"). Each Right entitles
its registered holder to purchase from the Company, after the Separation Time,
one one-hundredth of a share of Junior Participating Preferred Stock ("Junior
Preferred Stock"), for $100 (the "Exercise Price"), subject to adjustment.
The Rights will be evidenced by the Common Stock certificates until the
close of business on the earlier of (i) the later of (A) the tenth day after the
date on which any Person (other than the Company, a majority-owned Subsidiary of
the Company or an employee stock ownership or other employee benefit plan of the
Company or a majority-owned Subsidiary of the Company) commences a tender or
exchange offer which, if consummated, would result in such Person's becoming the
Beneficial Owner of 15% or more of the outstanding shares of Common Stock (any
Person having such Beneficial Ownership being referred to herein as an
"Acquiring Person") and (B) such later date as the Board of Directors may from
time to time fix by resolution adopted prior to the Separation Time, and (ii)
the first date (the "Flip-In Date") of public announcement by the Company or an
Acquiring Person that an Acquiring Person has become such other than as a result
of a Flip-over Transaction or Event (as defined below); provided that, if the
foregoing results in the Separation Time being prior to the Record Time, the
Separation Time shall be the Record Time; and provided further that, if a tender
or exchange offer referred to in clause (i) is cancelled, terminated or
otherwise withdrawn prior to the Separation Time, such offer shall be deemed
never to have been made. The time described in either clause (i) or (ii) of the
foregoing sentence is referred to as the "Separation Time." The Rights Agreement
provides that, until the Separation Time, the Rights will be transferred with
and only with the Common Stock. Common Stock certificates issued after the
Record Time but prior to the Separation Time will evidence one Right for each
share of Common Stock represented thereby and shall have printed thereon a
legend incorporating by reference the terms of the Rights Agreement (as such may
be amended from time to time). Notwithstanding the absence of the aforementioned
legend, certificates evidencing shares of Common Stock outstanding at the Record
Time shall also evidence one Right for each share of Common Stock evidenced
thereby. Promptly following the Separation Time, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of Common Stock at the Separation Time.
The Rights will not be exercisable until the Business Day following the
Separation Time. The Rights will expire on the earlier of (i) the close of
business on July 12, 2009, and (ii) the date on which the Rights are redeemed as
described below (the "Expiration Time").
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The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of a
Common Stock dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of, or in exchange for, Common
Stock.
In the event that prior to the Expiration Time, a Flip-In Date shall occur,
the Company shall take such action as shall be necessary to ensure and provide
that, if permitted by applicable law, each Right (other than Rights beneficially
owned by the Acquiring Person or any Affiliate or Associate thereof, which
Rights shall become void) shall constitute the right to purchase from the
Company, upon the exercise thereof in accordance with, and subject to, the terms
of the Rights Agreement, that number of shares of Common Stock of the Company
having an aggregate Market Price, on the date of the public announcement of an
Acquiring Person's becoming such (the "Stock Acquisition Date") that gave rise
to the Flip-in Date, equal to twice the Exercise Price for an amount in cash
equal to the then current Exercise Price. In addition, the Board of Directors of
the Company may, at its option, at any time after a Flip-in Date and prior to
the time that an Acquiring Person becomes the Beneficial Owner of more than 50%
of the outstanding shares of Common Stock, if applicable law permits Rights
owned by the Acquiring Person and any Associate or Affiliate thereof to become
void, elect to exchange all (but not less than all) the then outstanding Rights
(other than Rights Beneficially Owned by the Acquiring Person or any Affiliate
or Associate thereof, which Rights become void) for shares of Common Stock at an
exchange ratio of one share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
the date of the Separation Time (the "Exchange Ratio"). Immediately upon such
action by the Board of Directors, the right to exercise the Rights will
terminate and each Right will thereafter represent only the right to receive a
number of shares of Common Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated (as described in the preceding
paragraph) to issue shares of Common Stock upon exercise of or in exchange for
Rights, the Company, at its option, may substitute therefor shares of Junior
Preferred Stock, at a ratio of one one-hundredth of a share of Junior Preferred
Stock for each share of Common Stock so issuable.
In the event that prior to the Expiration Time the Company enters into,
consummates, or permits to occur a transaction or series of transactions on or
after the time when an Acquiring Person has become such in which, directly or
indirectly, (A) the Company shall consolidate or merge with or into the
Acquiring Person or any Person acting together in any respect with the Acquiring
Person, or the Acquiring Person or any other Person acting together in any
respect with the Acquiring Person shall merge with or into the Company, (B) the
Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer) assets (i) aggregating more than 50% of the
assets (measured by either book value or fair market value) or (ii) generating
more than 50% of the operating income or cash flow, of the Company and its
Subsidiaries (taken as a whole) to the Acquiring Person or any other Person
acting together in any respect with the Acquiring Person (provided that for
purposes of clauses (A) and (B), but without limitation, a Person shall be
deemed
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to be acting together in any respect with an Acquiring Person if such Person
enters into any transaction of the type described in clause (A) or (B) within
one year after the time the Acquiring Person has become such, unless (x) such
transaction was initiated by the Company and (y) the Acquiring Person or any
Person acting together in any respect with the Acquiring Person has not acquired
control of the Board of Directors of the Company), (C) any Acquiring Person
shall (i) sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of, to, from, or with, as the case may be, the
Company or any of its Subsidiaries, over any period of 12 consecutive calendar
months, assets or liabilities (x) having an aggregate fair market value of more
than $100,000,000 or (y) on terms and conditions less favorable to the Company
than the Company would be able to obtain through arm's-length negotiations with
an unaffiliated third party, (ii) receive any compensation for services from the
Company or any of its Subsidiaries, other than compensation for full-time
employment as a regular employee at rates in accordance with the Company's (or
its Subsidiaries') past practices, or (iii) receive the benefit, directly or
indirectly (except proportionately as a shareholder), over any period of 12
consecutive calendar months, of any loans, advances, guarantees, pledges,
insurance, reinsurance or other financial assistance or any tax credits or other
tax advantage provided by the Company or any of its Subsidiaries involving an
aggregate principal amount in excess of $100,000,000 or an aggregate cost or
transfer of benefits from the Company or any of its Subsidiaries in excess of
$100,000,000 or, in any case, on terms and conditions less favorable to the
Company than the Company would be able to obtain through arm's- length
negotiations with a third party, or (D) as a result of any reclassification of
securities (including any reverse stock split), or recapitalization, of the
Company, or any merger or consolidation of the Company with any of its
Subsidiaries, or any other transaction or series of transactions (whether or not
with or into or otherwise involving an Acquiring Person), the proportionate
share of the outstanding shares of any class of equity or convertible securities
of the Company or any of its Subsidiaries which is directly or indirectly owned
by any Acquiring Person is increased by more than 1% (each of the transactions
or events or series of transactions or events in clauses (A) through (D) above
being referred to herein as a "Flip-over Transaction or Event"), the Company
shall take such action as shall be necessary to ensure, and shall not enter
into, consummate, or permit to occur any Flip-over Transaction or Event unless
and until it shall have entered into a supplemental agreement with the Person
engaging in such Flip-over Transaction or Event (the "Flip-over Entity"), for
the benefit of the holders of the Rights, providing that upon consummation or
occurrence of the Flip-over Transaction or Event (i) each Right shall thereafter
constitute the right to purchase from the Flip-over Entity, upon exercise
thereof in accordance with the terms of the Rights Agreement, that number of
shares of common stock of the Flip-over Entity having an aggregate Market Price
on the date of consummation or occurrence of such Flip-over Transaction or Event
equal to twice the Exercise Price for an amount in cash equal to the then
current Exercise Price and (ii) the Flip-over Entity shall thereafter be liable
for, and shall assume, by virtue of such Flip-over Transaction or Event and such
supplemental agreement, all the obligations and duties of the Company pursuant
to the Rights Agreement. For purposes of the foregoing definition of ("Flip-over
Transaction or Event"), the term "Acquiring Person" shall include any Acquiring
Person and its Affiliates and Associates (other than the Company, a wholly-owned
Subsidiary of the Company or an employee stock ownership or other employee
benefit plan of the Company or a wholly-owned Subsidiary of the Company),
counted together as a single Person.
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The Board of Directors of the Company may, at its option, at any time prior
to the Flip-in Date, redeem all (but not less than all) the then outstanding
Rights at a redemption price of $.001 per Right, subject to adjustment, (the
"Redemption Price"), as provided in the Rights Agreement. Immediately upon the
action of the Board of Directors of the Company electing to redeem the Rights,
without any further action and without any notice, the right to exercise the
Rights will terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash for each Right so held.
The holders of Rights will, solely by reason of their ownership of Rights,
have no rights as shareholders of the Company, including, without limitation,
the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. The Rights, however,
may have certain anti-takeover effects. The Rights may cause substantial
dilution to a person or group that acquires 15% or more of the Common Stock
unless the Rights are first redeemed by the Board of Directors of the Company.
Nevertheless, the Rights should not interfere with a transaction that is in the
best interests of the Company and its shareholders on or prior to the Flip-in
Date, because the Rights can be redeemed before the consummation of such
transaction.
As of May 29, 1999, there were 79,565,860 shares of Common Stock issued and
outstanding and 13,220,857 shares reserved for issuance pursuant to existing
option and employee benefit plans. As of May 29,1999, options to exercise
4,819,767 shares of the Company's Common Stock, granted under these plans, were
outstanding. As long as the Rights are attached to the Common Stock, the Company
will issue one Right with each new share of Common Stock so that all such shares
will have Rights attached.
The Rights Agreement (which includes as Exhibit A the form of Rights
Certificate and Election to Exercise and as Exhibit B the form of Certificate of
Adoption of Resolution Establishing the Junior Preferred Stock) is filed
herewith as an exhibit and is incorporated herein by reference. The foregoing
description of the rights is qualified in its entirety by reference to the
Rights Agreement and such exhibits thereto, including the definitions therein of
certain terms. Whenever particular terms that are defined in the Rights
Agreement are referred to, it is intended that such defined terms shall be
incorporated herein by reference.
Item 7. Financial Statements and Exhibits
(a) & (b) Not Applicable
(c) Exhibits - See Exhibit Index
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: July 6, 1999 HERMAN MILLER, INC.
By /s/ James Christenson
Its Secretary
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EXHIBIT INDEX
Exhibit No. Description
(1)
Shareholder Protection Rights Agreement, dated as of June
30, 1999 (the "Rights Agreement"), between Herman Miller,
Inc. (the "Company") and First Chicago Trust of New York, a
division of Equiserve Limited Partnership, as Rights Agent,
including as Exhibit A the form of Rights Certificate and of
Election to Exercise and as Exhibit B the form of
Certificate of Adoption of Resolution Establishing Series of
Shares of Junior Participating Preferred Stock of the
Company
(2) Press Release dated July 2, 1999, issued by the Company
(3) Letter to Shareholders dated July 12, 1999, mailed by the
Company
269031v4
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<PAGE>
EXHIBIT 1
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
June 30, 1999
between
HERMAN MILLER, INC.
and
FIRST CHICAGO TRUST OF NEW YORK,
a division of EQUISERVE LIMITED PARTNERSHIP
as Rights Agent
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I - CERTAIN DEFINITIONS................................................1
1.1 Certain Definitions..........................................1
ARTICLE II - THE RIGHTS........................................................6
2.1 Summary of Rights............................................6
2.2 Legend on Common Stock Certificates..........................6
2.3 Exercise of Rights; Separation of Rights.....................7
2.4 Adjustments to Exercise Price; Number of Rights..............9
2.5 Date on Which Exercise is Effective.........................10
2.6 Execution, Authentication, Delivery and Dating of
Rights Certificates.......................................10
2.7 Registration, Registration of Transfer and Exchange.........11
2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates..............................................11
2.9 Persons Deemed Owners.......................................12
2.10 Delivery and Cancellation of Certificates...................12
2.11 Agreement of Rights Holders.................................13
ARTICLE III - ADJUSTMENTS TO THE RIGHTS IN THE EVENT
OF CERTAIN TRANSACTIONS..............................................13
3.1 Flip-in.....................................................13
3.2 Flip-over...................................................15
ARTICLE IV - THE RIGHTS AGENT.................................................16
4.1 General. ...................................................16
4.2 Merger or Consolidation or Change of Name of
Rights Agent..............................................16
4.3 Duties of Rights Agent......................................17
4.4 Change of Rights Agent......................................19
ARTICLE V - MISCELLANEOUS.....................................................19
5.1 Redemption..................................................19
5.2 Expiration..................................................20
5.3 Issuance of New Rights Certificates.........................20
5.4 Supplements and Amendments..................................20
5.5 Fractional Shares...........................................20
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5.6 Rights of Action............................................20
5.7 Holder of Rights Not Deemed a Shareholder...................21
5.8 Notice of Proposed Actions..................................21
5.9 Notices.....................................................21
5.10 Suspension of Exercisability................................22
5.11 Costs of Enforcement........................................22
5.12 Successors..................................................22
5.13 Benefits of this Agreement..................................22
5.14 Descriptive Headings........................................22
5.15 Governing Law...............................................22
5.16 Counterparts................................................23
5.17 Severability................................................23
ii
<PAGE>
EXHIBITS
Exhibit A Form of Rights Certificate
(Together with Form of Election of Exercise)
Exhibit B Form of Certificate of Adoption of Resolution
Establishing Series of Shares of
Participating Junior Preferred Stock
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SHAREHOLDER PROTECTION RIGHTS AGREEMENT
SHAREHOLDER PROTECTION RIGHTS AGREEMENT (this "Agreement"), dated as of
June 30, 1999, between HERMAN MILLER, INC., a Michigan corporation (the
"Company"), and FIRST CHICAGO TRUST OF NEW YORK, a division of EQUISERVE LIMITED
PARTNERSHIP, as Rights Agent ("Rights Agent"), which term shall include any
successor Rights Agent hereunder;
WHEREAS, the Board of Directors of the Company (a) authorized and declared
a dividend of one right ("Right") in respect of each share of Common Stock (as
hereinafter defined) held of record as of the close of business on July 12, 1999
(the "Record Time") and (b) authorized the issuance of one Right in respect of
each share of Common Stock issued after the Record Time and prior to the
Separation Time (as hereinafter defined);
WHEREAS, each Right entitles the holder thereof after the Separation Time,
to purchase securities of the Company (or, in certain cases, of certain other
entities) pursuant to the terms and subject to the conditions set forth herein;
and
WHEREAS, the Company desires to appoint the Agent to act on behalf of the
Company, and the Rights Agent is willing so to act, in connection with the
issuance, transfer, exchange and replacement of Rights Certificates (as
hereinafter defined), the exercise of Rights and other matters referred to
herein;
NOW THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE I - CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the following
terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a Beneficial Owner of 15%
or more of the outstanding shares of Common Stock; provided, however, that the
term "Acquiring Person" shall not include any Person who shall become the
Beneficial Owner of 15% or more of the outstanding shares of Common Stock solely
as a result of an acquisition by the Company of shares of Common Stock, until
such time thereafter as such Person shall become the Beneficial Owner (other
than by means of a stock dividend or stock split) of any additional shares of
Common Stock. Notwithstanding the foregoing, if the Board of Directors of the
Company determines in good faith that a Person who would otherwise be an
"Acquiring Person," as defined pursuant to the foregoing provisions of this
Agreement, has become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares of Common Stock so that such Person
would no longer be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this Agreement, then such Person shall not be deemed an "Acquiring
Person" for any purposes of this Agreement. The determination of whether such a
Person has become an Acquiring Person in an inadvertent manner,
<PAGE>
and the determination of whether the divestment of sufficient shares shall have
been made as promptly as practicable after becoming an inadvertent Acquiring
Person, shall be made by a majority vote of the Board of Directors of the
Company.
"Affiliate" and "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 under the Securities Exchange Act of 1934, as such Rule
is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner", and to have "Beneficial
Ownership", of, and to "Beneficially Own", any securities as to which such
Person or any of such Person's Affiliates or Associates is or may be deemed to
be the beneficial owner pursuant to Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as such Rules are in effect on the date of this Agreement,
as well as any securities as to which such Person or any of such Person's
Affiliates or Associates has the right to become Beneficial Owner (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner", or to have "Beneficial Ownership", of, or to "Beneficially Own", any
security (i) solely because such security has been tendered pursuant to a tender
or exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered security is accepted for payment or exchange,
(ii) solely because such Person or any of such Person's Affiliates or Associates
has or shares the power to vote or direct the voting of such security pursuant
to a revocable proxy given in response to a public proxy or consent solicitation
made pursuant to, and in accordance with, the applicable rules and regulations
under the Securities Exchange Act of 1934, except if such power (or the
arrangements relating thereto) is then reportable under Item 6 of Schedule 13D
under the Securities Exchange Act of 1934 (or any similar provision of a
comparable or successor report), (iii) solely because of the grant by the
Company to such Person, in connection with the execution of an agreement to
acquire the Company, of options to acquire such security or (iv) held for or
pursuant to the terms of any employee stock ownership or other employee benefit
plan of the Company or a majority-owned Subsidiary of the Company. For purposes
of this Agreement, in determining the percentage of the outstanding shares of
Common Stock with respect to which a Person is the Beneficial Owner, all shares
as to which such Person is deemed the Beneficial Owner shall be deemed
outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in Grand Rapids, Michigan are generally authorized or
obligated by law or executive order to close.
"Close of business" on any given date shall mean the time on such date (or,
if such date is not a Business Day, the time on the next succeeding Business
Day) at which the offices of the transfer agent for the Common Stock (or, after
the Separation Time, the offices of the Rights Agent) are closed to the public.
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"Common Stock" shall mean the shares of Common Stock, $.20 par value, of
the Company.
"Exercise Price" shall mean, as of any date, the price at which a holder
may purchase the securities issuable upon exercise of one whole Right. Until
adjustment thereof in accordance with the terms hereof, the Exercise Price shall
equal $100.00.
"Expiration Time" shall mean the earlier of (i) the Redemption Time or (ii)
the close of business on July 12, 2009.
"Flip-in Date" shall mean any Stock Acquisition Date which is not the
result of a Flip-over Transaction or Event or such later date (not beyond the
thirtieth day after such Stock Acquisition Date) as the Board of Directors of
the Company may from time to time fix by resolution adopted prior to the Flip-in
Date.
"Flip-over Stock" of any Person shall mean the capital stock (or similar
equity interest) with the greatest voting power in respect of the election of
directors (or other Persons similarly responsible for the direction of the
business and affairs) of such Person or, if such Person is a Subsidiary of
another Person, the Person or Persons which ultimately controls such
first-mentioned Person.
"Flip-over Transaction or Event" shall mean a transaction or series of
transactions after the time when an Acquiring Person has become such in which,
directly or indirectly, (A) the Company shall consolidate with or merge with or
into the Acquiring Person or any other Person acting together in any respect
with the Acquiring Person, or the Acquiring Person or any other Person acting
together in any respect with the Acquiring Person shall merge with or into the
Company, (B) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer) assets (i) aggregating more than
50% of the assets (measured by either book value or fair market value) or (ii)
generating more than 50% of the operating income or cash flow, of the Company
and its Subsidiaries (taken as a whole) to the Acquiring Person or any other
Person acting together in any respect with the Acquiring Person (provided that
for purposes of clauses (A) and (B), but without limitation, a Person shall be
deemed to be acting together in any respect with an Acquiring Person if such
Person enters into any transaction of the type described in clause (A) or (B)
within one year after the time the Acquiring Person has become such, unless (x)
such transaction was initiated by the Company and (y) the Acquiring Person or
any Person acting together in any respect with the Acquiring Person has not
acquired control of the Board of Directors of the Company), (C) any Acquiring
Person shall (i) sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of, to, from, or with, as the case may be, the
Company or any of its Subsidiaries, over any period of 12 consecutive calendar
months, assets or liabilities (x) having an aggregate fair market value of more
than $100,000,000, or (y) on terms and conditions less favorable to the Company
than the Company would be able to obtain through arm's length negotiations with
an unaffiliated third party, (ii) receive any compensation for services from the
Company or any of its Subsidiaries, other than compensation for full-time
employment as a regular employee at rates in accordance with the Company's (or
its Subsidiaries') past practices, or (iii)
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receive the benefit, directly or indirectly (except proportionately as a
shareholder), over any period of 12 consecutive calendar months, of any loans,
advances, guarantees, pledges, insurance, reinsurance or other financial
assistance or any tax credits or other tax advantage provided by the Company or
any of its Subsidiaries involving an aggregate principal amount in excess of
$100,000,000, or an aggregate cost or transfer of benefits from the Company or
any of its Subsidiaries in excess of $100,000,000 or, in any case, on terms and
conditions less favorable to the Company than the Company would be able to
obtain through arm's length negotiations with a third party, or (D) as a result
of any reclassification of securities (including any reverse stock split), or
recapitalization, of the Company, or any merger or consolidation of the Company
with any of its Subsidiaries or any other transaction or series of transactions
(whether or not with or into or otherwise involving an Acquiring Person), the
proportionate share of the outstanding shares of any class of equity or
convertible securities of the Company or any of its Subsidiaries which is
directly or indirectly owned by any Acquiring Person is increased by more than
1%. For purposes of the foregoing description, the term "Acquiring Person" shall
include any Acquiring Person and its Affiliates and Associates (other than the
Company, a wholly owned Subsidiary of the Company or an employee stock ownership
or other employee benefit plan of the Company or a wholly owned Subsidiary of
the Company), counted together as a single Person.
"Junior Preferred Stock" shall mean the series of Junior Participating
Preferred Stock, without par value, of the Company created by a Certificate of
Adoption of Resolution establishing a series of shares of preferred stock of the
Company in substantially the form set forth in Exhibit B hereto appropriately
completed.
"Market Price" per share of any security on any date (the "Determination
Date") shall mean the arithmetic average of the daily closing prices per share
of such security (determined as described below) on each of the 20 consecutive
Trading Days through and including the Trading Day immediately preceding the
Determination Date; provided, however, that if an event of a type analogous to
any of the events described in Section 2.4 hereof shall have caused the closing
price on one or more Trading Days during such period of 20 Trading Days not to
be fully comparable with the closing price on the Determination Date, each such
closing price so used shall be appropriately adjusted in order to make it fully
comparable with the closing price on the Determination Date. The closing price
per share of any security on any date shall be the last reported sale price,
regular way, or, in case no such sale takes place or is reported on such date,
the average of the closing bid and asked prices, regular way, for such security,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange, Inc. or, if such security is not listed or admitted to trading
on the New York Stock Exchange, Inc., as reported in the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such security is listed or admitted to
trading or, if such security is not listed or admitted to trading on any
national securities exchange, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or such other
self-regulatory organization or registered securities information processor (as
such terms are used under the Securities Exchange Act of 1934) as then reports
trading information concerning such security, or, if on any such date such
security is not listed or admitted
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to trading on any national securities exchange or quoted by any such
organization, the average of the closing bid and asked prices as furnished by
any registered securities dealer that is a market maker (as such term is used
under the Securities Exchange Act of 1934) in such security and which is
selected by the Board of Directors of the Company; provided, however, that if on
any such date such security is not listed or admitted to trading on a national
securities exchange or traded in the over-the-counter market, the closing price
of such security on such date shall mean the fair value of such security on such
date as determined in good faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking firm, and set forth
in a certificate delivered to the Rights Agent.
"Person" shall mean any individual, firm, partnership, association, group
(as such term is used in Rule 13d-5 under the Securities Exchange Act of 1934,
as such Rule is in effect on the date of this Agreement), corporation or other
entity.
"Redemption Price" shall mean an amount (calculated to the nearest one
one-hundredth of a cent) equal to the Exercise Price, as in effect at the
Redemption Time, divided by 100,000 (i.e., initially $.001).
"Redemption Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section 5.1 hereof.
"Separation Time" shall mean the close of business on the earlier of (i)
the later of (A) the tenth day after the date on which any Person (other than
the Company, a majority-owned Subsidiary of the Company or an employee stock
ownership or other employee benefit plan of the Company or of a majority-owned
Subsidiary of the Company) commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an Acquiring Person, or (B)
such later date as the Board of Directors of the Company may from time to time
fix by resolution adopted prior to the Separation Time, or (ii) the Flip-in
Date; provided that, if the foregoing results in the Separation Time being prior
to the Record Time, the Separation Time shall be the Record Time and provided
further that, if any tender or exchange offer referred to in clause (i) of this
definition is cancelled, terminated or otherwise withdrawn prior to the
Separation Time, such offer shall be deemed, for purposes of this definition,
never to have been made.
"Stock Acquisition Date" shall mean the first date of public announcement
by the Company (by any means) or by an Acquiring Person (by means of filing a
Schedule l3D under the Securities Act of 1934 [or any comparable or successor
report or schedule] or an amendment thereto) that an Acquiring Person has become
such.
"Subsidiary" of any specified Person shall mean any corporation or other
entity of which a majority of the voting power of the equity securities
ordinarily having voting power in respect of the election of directors (or other
Persons similarly responsible for the direction of the business and affairs) of
such corporation or other entity, or a majority of the equity interest is
Beneficially Owned, directly or indirectly, by such Person.
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"Trading Day", when used with respect to any security, shall mean a day on
which the New York Stock Exchange, Inc. is open for the transaction of business
or, if such security is not listed or admitted to trading on the New York Stock
Exchange, Inc., a day on which the principal national securities exchange on
which such security is listed or admitted to trading is open for the transaction
of business or, if such security is not listed or admitted to trading on any
national securities exchange, a Business Day.
ARTICLE II - THE RIGHTS
2.1 Summary of Rights. As soon as practicable after the Record Time, the
Company will mail a copy of a letter to shareholders summarizing the terms of
the Rights to each holder of record of Common Stock as of the Record Time, at
such holder's address as shown by the records of the Company.
2.2 Legend on Common Stock Certificates. Certificates for the Common Stock
issued after the Record Time but prior to the Separation Time shall evidence one
Right for each share of Common Stock represented thereby and shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
Until the Separation Time (as defined in the Rights Agreement referred
to below), this certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Rights Agreement, dated as
of June 30, 1999 (as such may be amended from time to time, the "Rights
Agreement"), between Herman Miller, Inc. (the "Company") and First
Chicago Trust of New York, a division of Equiserve Limited Partnership,
as Rights Agent, the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal executive
offices of the Company. Under certain circumstances, as set forth in
the Rights Agreement, such Rights may be redeemed, may be exchanged for
shares of Common Stock or other securities or assets of the Company,
may expire, may become void (if they are "Beneficially Owned" by an
"Acquiring Person" or an Affiliate or Associate thereof, as such terms
are defined in the Rights Agreement, or by any transferee of any of the
foregoing) or may be evidenced by separate certificates and may no
longer be evidenced by this certificate. The Company will mail or
arrange for the mailing of a copy of the Rights Agreement to the holder
of this certificate without charge within five days after the receipt
of a written request therefor.
Certificates representing shares of Common Stock that are issued and outstanding
at the Record Time shall evidence one Right for each share of Common Stock
evidenced thereby notwithstanding the absence of the foregoing legend.
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2.3 Exercise of Rights; Separation of Rights.
(a) Subject to adjustment as herein set forth, each Right will entitle
the holder thereof, after the Separation Time, to purchase, for the
Exercise Price, one one-hundredth of a share of Junior Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised and (ii)
each Right will be evidenced by the certificate for the associated share of
Common Stock and will be transferable only together with, and will be
transferred by a transfer of, such associated share. Notwithstanding any
other provision of this Agreement, any Rights held by the Company or any of
its Subsidiaries other than in a fiduciary capacity shall not be
exercisable. Nothing in the preceding sentence shall be construed as
limiting the right of the Company and it Subsidiaries to acquire or
transfer Rights.
(c) Subject to the terms and conditions herein set forth, after the
Separation Time and prior to the Expiration Time, the Rights (i) may be
exercised and (ii) may be transferred independently of the shares of Common
Stock in respect of which they were originally issued. Promptly following
the Separation Time, the Rights Agent will mail to each holder of record of
Common Stock as of the Separation Time, at such holder's address as shown
by the records of the Company (the Company hereby agreeing to furnish
copies of such records to the Rights Agent for this purpose), (x) a
certificate (a "Rights Certificate") in substantially the form of Exhibit A
hereto appropriately completed, representing the number of Rights held by
such holder at the Separation Time and having such marks of identification
or designation and such legends, summaries or endorsements printed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any national securities exchange or other self-regulatory
organization (as such terms are used under the Securities Exchange Act of
1934) on which the Rights may from time to time be listed or through which
the Rights may from time to time be traded, or to conform to usage, and (y)
a disclosure statement describing the Rights.
(d) Subject to Sections 2.3(b) and 5.10, Rights may be exercised on
any Business Day after the Separation Time and prior to the Expiration Time
by submitting to the Rights Agent the Rights Certificate evidencing such
Rights with an Election to Exercise (an "Election to Exercise")
substantially in the form attached to the Rights Certificate duly
completed, accompanied by payment in cash, or by certified or official bank
check or money order payable to the order of the Company, of a sum equal to
the Exercise Price multiplied by the number of Rights being exercised
together with a sum sufficient to cover any transfer tax or charge which
may be payable in respect of any transfer involved in the transfer or
delivery of Rights Certificates or the issuance or delivery of certificates
for shares or depositary receipts (or both) in a name other than that of
the holder of the Rights being exercised.
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(e) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.3(d) above, and subject to
the conditions set forth in this Agreement, the Rights Agent will thereupon
promptly (i) (A) requisition from a transfer agent for the stock or other
securities purchasable upon exercise of the Rights certificates evidencing
such number of shares or other securities to be purchased (the Company
hereby irrevocably authorizing its transfer agents to comply with all such
requisitions) and (B) if the Company elects pursuant to Section 5.5 hereof
not to issue certificates representing fractional shares, requisition from
the depositary selected by the Company depositary receipts representing the
fractional shares to be purchased or requisition from the Company the
amount of cash to be paid in lieu of fractional shares in accordance with
Section 5.5 hereof and (ii) after receipt of such certificates, depositary
receipts and/or cash, deliver the same to or upon the order of the
registered holder of such Rights Certificate, registered (in the case of
certificates or depositary receipts) in such name or names as may be
designated by such holder.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued by
the Rights Agent to such holder or to such holder's duly authorized
assigns.
(g) The Company covenants and agrees that it will (i) cause to be kept
available until the Expiration Time out of its authorized and unissued
shares of capital stock a number of shares of preferred stock that will be
sufficient to permit the creation and establishment of the Junior Preferred
Stock and the exercise in full of all outstanding Rights; (ii) immediately
upon the occurrence of the Separation Time, file with the Corporation and
Securities Bureau of the Michigan Department of Commerce a Certificate of
Adoption of Resolution establishing a series of shares in substantially the
form set forth in Exhibit B hereto and take all such further action as may
be necessary to create and establish the Junior Preferred Stock; (iii) take
all such action as may be necessary to ensure that all shares delivered
upon exercise of Rights shall, at the time of delivery thereof (subject to
payment of the Exercise Price), be duly and validly authorized, executed,
issued and delivered and fully paid and nonassessable; (iv) take all such
action as may be necessary to ensure that all securities other than shares
delivered upon exercise of Rights shall, at the time of delivery thereof
(subject to payment of the Exercise Price), be duly and validly authorized,
executed, issued and delivered and valid and binding obligations of the
issuer thereof; (v) take all such action as may be necessary to comply with
any applicable requirements of the Securities Act of 1933 or the Securities
Exchange Act of 1934, and the rules and regulations thereunder, and any
other applicable law, rule or regulation, in connection with the issuance
of any shares upon exercise of Rights; (vi) use its best efforts to cause
all shares and other securities issued upon exercise of Rights to be listed
on a national securities exchange or traded in the over-the-counter market,
as reported by NASDAQ or another self-regulatory organization or registered
securities information processor (as such terms are used under the
Securities Exchange Act of 1934), upon issuance; and (vii) pay when due and
payable any and all
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federal and state transfer taxes and charges which may be payable in
respect of the original issuance or delivery of the Rights Certificates or
of any shares issued upon the exercise of Rights, provided that the Company
shall not be required to pay any transfer tax or charge which may be
payable in respect of any transfer involved in the transfer or delivery of
Rights Certificates or the issuance or delivery of certificates for shares
in a name other than that of the holder of the Rights being transferred or
exercised.
2.4 Adjustments to Exercise Price; Number of Rights.
(a) In the event the Company shall at any time after the Record Time
and prior to the Separation Time (i) declare or pay a dividend on Common
Stock payable in Common Stock, (ii) subdivide the outstanding Common Stock
or (iii) combine the outstanding Common Stock into a smaller number of
shares of Common Stock, (x) the Exercise Price in effect after such
adjustment will be equal to the Exercise Price in effect immediately prior
to such adjustment divided by the number of shares of Common Stock (the
"Expansion Factor") that a holder of one share of Common Stock immediately
prior to such dividend, subdivision or combination would hold thereafter as
a result thereof and (y) each Right held prior to such adjustment will
become that number of Rights equal to the Expansion Factor, and the
adjusted number of Rights will be deemed to be distributed among the shares
of Common Stock with respect to which the original Rights were associated
(if they remain outstanding) and the shares issued in respect of such
dividend, subdivision or combination, so that each such share of Common
Stock will have exactly one Right associated with it. Each adjustment made
pursuant to this paragraph shall be made as of the payment or effective
date for the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the Record Time and
prior to the Separation Time issue any shares of Common Stock otherwise
than in a transaction referred to in the preceding paragraph, each such
share of Common Stock so issued shall automatically have one new Right
associated with it, which Right shall be evidenced by the certificate
representing such share.
(b) In the event the Company shall at any time after the Record Time
and prior to the Separation Time issue or distribute any securities or
assets in respect of, in lieu of or in exchange for Common Stock (other
than pursuant to a regular periodic cash dividend or a dividend paid solely
in Common Stock) whether by dividend, in a reclassification or
recapitalization (including any such transaction involving a merger,
consolidation or binding share exchange), or otherwise, the Company shall
make such adjustments, if any, in the Exercise Price, number of Rights
and/or securities or other property purchasable upon exercise of Rights as
the Board of Directors of the Company, in its sole discretion, may deem to
be appropriate under the circumstances in order to adequately protect the
interests of the holders of Rights generally, and the Company and the
Rights Agent shall amend this Agreement as necessary to provide for such
adjustments.
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(c) Each adjustment to the Exercise Price made pursuant to this
Section 2.4 shall be calculated to the nearest cent. Whenever an adjustment
to the Exercise Price is made pursuant to this Section 2.4, the Company
shall (i) promptly prepare a certificate setting forth such adjustment and
a brief statement of the facts accounting for such adjustment, (ii)
promptly file with the Rights Agent and with each transfer agent for the
Common Stock a copy of such certificate and (iii) mail a brief summary
thereof to each holder of Rights.
(d) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the securities so
purchasable which were expressed in the initial Rights Certificates issued
hereunder.
2.5 Date on Which Exercise is Effective. Each person in whose name any
certificate for shares is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares represented
thereby on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Exercise Price for such Rights (and any applicable taxes and other governmental
charges payable by the exercising holder hereunder) was made; provided, however,
that if the date of such surrender and payment is a date upon which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the stock transfer books of the
Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights Certificates.
(a) The Rights Certificates shall be executed on behalf of the Company
by its Chairman of the Board, President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or
one of its Assistant Secretaries, if any. The signature of any of these
officers on the Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the countersignature and delivery of
such Rights Certificates.
Promptly after the Company learns of the Separation Time, the Company
will notify the Rights Agent of such Separation Time and will deliver
Rights Certificates executed by the Company to the Rights Agent for
countersignature, and the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(c) hereof. No Rights Certificate shall be valid for any purpose
until manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
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2.7 Registration, Registration of Transfer and Exchange.
(a) After the Separation Time, the Company will cause to be kept a
register (the "Rights Register") in which, subject to such reasonable
regulations as it may prescribe, the Company will provide for the
registration and transfer of Rights. The Rights Agent is hereby appointed
"Rights Registrar" for the purpose of maintaining the Rights Register for
the Company and registering Rights and transfers of Rights after the
Separation Time as herein provided. In the event that the Rights Agent
shall cease to be the Rights Registrar, the Rights Agent will have the
right to examine the Rights Register at all reasonable times after the
Separation Time.
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Section 2.7(c) below, the
Company will execute, and the Rights Agent will countersign and deliver, in
the name of the holder or the designated transferee or transferees, as
required pursuant to the holder's instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights as did the
Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b) hereof, all Rights
issued upon any registration, transfer, or exchange of Rights Certificates
shall be the valid obligations of the Company, and such Rights shall be
entitled to the same benefits under this Agreement as the Rights
surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights
Agent, as the case may be, duly executed by the holder thereof or such
holder's attorney duly authorized in writing. As a condition to the
issuance of any new Rights Certificate under this Section 2.7, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
(d) The Company shall not be required to register the transfer or
exchange of any Rights after the Rights have been redeemed under Section
5.1 hereof or become void pursuant to Section 3.1(b) hereof.
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates.
(a) If any mutilated Rights Certificate is surrendered to the Rights
Agent prior to the Expiration Time, the Company shall execute and the
Rights Agent shall countersign and deliver in exchange therefor a new
Rights Certificate evidencing the same number of Rights as did the Rights
Certificate so surrendered.
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(b) If there shall be delivered to the Company and the Rights Agent
prior to the Expiration Time (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate and (ii) such security
or indemnity as may be required by them to save each of them and any of
their agents harmless, then, in the absence of notice to the Company or the
Rights Agent that such Rights Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Rights Agent
shall countersign and deliver, in lieu of any such destroyed, lost or
stolen Rights Certificate, a new Rights Certifi cate evidencing the same
number of Rights as did the Rights Certificate so destroyed, lost or
stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this Section 2.8, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of
the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.8
in lieu of any destroyed, lost or stolen Rights Certificate shall evidence
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Rights duly
issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights Certificate
(or, prior to the Separation Time, the associated Common Stock certificate) for
registration of transfer, the Company, the Rights Agent and any agent of the
Company or the Rights Agent may deem and treat the person in whose name such
Rights Certificate (or, prior to the Separation Time, such Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary. As used in this
Agreement, unless the context otherwise requires, the term "holder" of any
Rights shall mean the registered holder of such Rights (or, prior to the
Separation Time, the associated shares of Common Stock).
2.10 Delivery and Cancellation of Certificates. All Rights Certificates
surrendered upon exercise or for redemption, registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled by
the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Rights Certificates so delivered shall be promptly cancelled by the Rights
Agent. No Rights Certificates shall be countersigned in lieu of or in exchange
for any Rights Certificates cancelled as provided in this Section 2.10, except
as expressly permitted by this Agreement. The Rights Agent shall return all
cancelled Rights Certificates to the Company.
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2.11 Agreement of Rights Holders. Every holder of Rights by accepting the
same consents and agrees with the Company and the Rights Agent and with every
other holder of Rights that:
(a) prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
share of Common Stock;
(b) after the Separation Time, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Stock certificate) for registration
of transfer, the Company, the Rights Agent and any agent of the Company or
the Rights Agent may deem and treat the person in whose name the Rights
Certificate (or, prior to the Separation Time, the associated Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will, under the
circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Section 2.4(b) or 5.4 hereof.
ARTICLE III - ADJUSTMENTS TO THE RIGHTS IN THE EVENT
OF CERTAIN TRANSACTIONS
3.1 Flip-in.
(a) In the event that prior to the Expiration Time a Flip-in Date
shall occur, then, if applicable law permits Rights owned by certain
Persons referred to in Section 3.1(b) hereof to become void pursuant to the
provisions thereof, the Company shall take such action as shall be
necessary to ensure and provide that, except as provided below, each Right
shall constitute the right to purchase from the Company, upon exercise
thereof in accordance with the terms hereof (but subject to Section 5.10
hereof), that number of shares of Common Stock having an aggregate Market
Price on the Stock Acquisition Date equal to twice the Exercise Price for
an amount in cash equal to the Exercise Price (such right to be
appropriately adjusted in order to protect the interests of the holders of
Rights generally in the event that on or after such Stock Acquisition Date
an event of a type analogous to any of the events described in Section
2.4(a) or (b) shall have occurred with respect to the Common Stock).
(b) Notwithstanding the foregoing, to the extent permitted by
applicable law, any Rights that are or were Beneficially Owned on or after
the Stock Acquisition Date by an
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Acquiring Person or an Affiliate or Associate thereof or by any transferee,
direct or indirect, of any of the foregoing shall become void and any
holder of such Rights (including transferees) shall thereafter have no
right to exercise or transfer such Rights. If any Rights Certificate is
presented for assignment or exercise and the Person presenting the same
does not complete the certification set forth at the end of the form of
assignment or notice of election to exercise and provide such additional
evidence of the identity of the Beneficial Owner and its Affiliates and
Associates (or former Beneficial Owners and their Affiliates and
Associates) as the Company shall reasonably request, then the Company shall
be entitled to conclusively deem the Beneficial Owner thereof to be an
Acquiring Person or an Affiliate or Associate thereof or a transferee of
any of the foregoing and accordingly will, to the extent permitted by
applicable law, deem the Rights evidenced thereby to be void and not
transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any
time after a Flip-in Date and prior to the time that an Acquiring Person
becomes the Beneficial Owner of more than 50% of the outstanding shares of
Common Stock, but only if applicable law permits Rights owned by certain
Persons referred to in Section 3.1(b) hereof to become void pursuant to the
provisions thereof, elect to exchange all (but not less than all) the then
outstanding Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 3.1(b)) for shares of Common Stock at
an exchange ratio of one share of Common Stock per Right, appropriately
adjusted in order to protect the interests of holders of Rights generally
in the event that after the Separation Time an event of a type analogous to
any of the events described in Section 2.4(a) or (b) shall have occurred
with respect to the Common Stock (such exchange ratio, as adjusted from
time to time, being hereinafter referred to as the "Exchange Ratio").
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without any
notice, the right to exercise the Rights will terminate and each Right will
thereafter represent only the right to receive a number of shares of Common
Stock equal to the Exchange Ratio. Promptly after the action of the Board
of Directors electing to exchange the Rights, the Company shall give notice
thereof (specifying the steps to be taken to receive shares of Common Stock
in exchange for Rights) to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice in accordance with Section 5.9.
(d) Whenever the Company shall become obligated under Section 3.1(a)
or (c) to issue shares of Common Stock upon exercise of or in exchange for
Rights, the Company, at its option, may substitute therefor shares of
Junior Preferred Stock, at a ratio of one one-hundredth of a share of
Junior Preferred Stock for each share of Common Stock so issuable.
(e) In the event that there shall not be sufficient treasury shares or
authorized but unissued shares of Common Stock or Junior Preferred Stock of
the Company to permit the exercise or exchange in full of the Rights in
accordance with Section 3.1(a) or (c), the
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Company shall either (i) cause sufficient additional shares to be
authorized (provided that if such authorization is not obtained, the
Company will take the action specified in clause (ii) of this sentence) or
(ii) take such action as shall be necessary to ensure and provide, to the
extent permitted by applicable law and any agreements or instruments in
effect on the Stock Acquisition Date to which it is a party, that each
Right shall thereafter constitute the right to receive, (x) at the
Company's option, either (A) in return for the Exercise Price, debt or
equity securities or other assets (or a combination thereof) having a fair
value equal to twice the Exercise Price, or (B) without payment of
consideration (except as otherwise required by applicable law), debt or
equity securities or other assets (or a combination thereof) having a fair
value equal to the Exercise Price, or (y) if the Board of Directors of the
Company elects to exchange the Rights in accordance with Section 3.1(c),
debt or equity securities or other assets (or a combination thereof) having
a fair value equal to the product of the Market Price of a share of Common
Stock on the Flip-in Date times the Exchange Ratio in effect on the Flip-in
Date, where in any case set forth in (x) or (y) above the fair value of
such debt or equity securities or other assets shall be as determined in
good faith by the Board of Directors of the Company, after consultation
with a nationally recognized investment banking firm.
3.2 Flip-over.
(a) Prior to the Expiration Time the Company shall not enter into any
agreement with any Acquiring Person with respect to, or consummate or
permit to occur, any Flip-over Transaction or Event, unless and until it
shall have entered into a supplemental agreement with the Person engaging
in such Flip-over Transaction or Event (the "Flip-over Entity") for the
benefit of the holders of the Rights, providing that, upon consummation or
occurrence of the Flip-over Transaction or Event (i) each Right shall
thereafter constitute the right to purchase from the Flip-over Entity, upon
exercise thereof in accordance with the terms hereof, that number of shares
of Flip-over Stock of the Flip-over Entity having an aggregate Market Price
on the date of consummation or occurrence of such Flip-over Transaction or
Event equal to twice the Exercise Price for an amount in cash equal to the
Exercise Price (such right to be appropriately adjusted in order to protect
the interests of the holders of Rights generally in the event that after
such date of consummation or occurrence an event of a type analogous to any
of the events described in Section 2.4(a) or (b) shall have occurred with
respect to the Flip-over Stock) and (ii) the Flip-over Entity shall
thereafter be liable for, and shall assume, by virtue of such Flip-over
Transaction or Event and such supplemental agreement, all the obligations
and duties of the Company pursuant to this Agreement. The provisions of
this Section 3.2 shall apply to successive Flip-over Transactions or
Events.
(b) Prior to the Expiration Time, unless the Rights will be redeemed
pursuant to Section 5.1 hereof in connection therewith, the Company shall
not enter into any agreement with respect to, or consummate or permit to
occur, any Flip-over Transaction or Event if at the time thereof there are
any rights, warrants or securities outstanding or any other arrangements,
agreements or instruments which would eliminate or otherwise diminish in
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any respect the benefits intended to be afforded by this Rights Agreement
to the holders of Rights upon consummation or occurrence of such
transaction or event.
ARTICLE IV - THE RIGHTS AGENT
4.1 General.
(a) The Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company agrees to pay to
the Rights Agent reasonable compensation as shall be agreed to in writing
from time to time for all services rendered by it hereunder and, from time
to time, on demand of the Rights Agent, its reasonable expenses (including
expenses incurred by the Rights Agent under Section 4.4) and counsel fees
and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties hereunder.
The Company also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with
the acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
certificate for securities purchasable upon exercise of Rights, Rights
Certificate, certificate for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons.
4.2 Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation
succeeding to the shareholder services business of the Rights Agent or any
successor Rights Agent, will be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 4.4 hereof. In case, at the time such
successor Rights Agent succeeds to the agency created by this Agreement,
any of the Rights Certificates have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights
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Certificates so countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Rights Certificates will have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either in its
prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates
and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent deems it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by a person believed by the
Rights Agent to be the Chairman of the Board, the President or any Vice
President and by the Treasurer or any Assistant Treasurer or the Secretary
or any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate will be full authorization to the Rights Agent
for any action taken or suffered in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and will be
deemed to have been made by the Company only.
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(e) The Rights Agent will not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery thereof
(except the due authorization, execution and delivery hereof by the Rights
Agent) or in respect of the validity or execution of any certificate for
securities purchasable upon exercise of Rights or Rights Certificate
(except its countersignature thereof); nor will it be responsible for any
breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the Rights becoming
void pursuant to Section 3.1(b) hereof) or any adjustment required under
the provisions of Section 2.4, 3.1 or 3.2 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.4 describing any such adjustment); nor will it by
any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any securities purchasable upon
exercise of Rights or any Rights or as to whether any securities
purchasable upon exercise of Rights will, when issued, be duly and validly
authorized, executed, issued and delivered and fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any person believed by the Rights Agent to be the Chairman of the Board,
the President or any Vice President or the Secretary or any Assistant
Secretary or the Treasurer or any Assistant Treasurer of the Company, and
to apply to such persons for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered by it
in good faith in accordance with instructions of any such person.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Common Stock, Rights
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for
any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
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resulting from any such act, default, neglect or misconduct, provided
reasonable care was exercised in the selection and continued employment
thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and be discharged
from its duties under this Agreement upon 60 days' notice (or such lesser notice
as is acceptable to the Company) in writing mailed to the Company and to each
transfer agent of Common Stock by registered or certified mail, and to the
holders of the Rights in accordance with Section 5.9. The Company may remove the
Rights Agent upon 60 days' notice in writing, mailed to the Rights Agent and to
each transfer agent of the Common Stock by registered or certified mail, and to
the holders of the Rights in accordance with Section 5.9. If the Rights Agent
should resign or be removed or otherwise become incapable of acting, the Company
will appoint a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after 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 any Rights (which holder shall,
with such notice, submit such holder's Rights Certificate for inspection by the
Company), then the holder of any Rights or the Rights Agent 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 any state in the United States, 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 federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $250,000,000, or (b) an Affiliate of a
corporation described in clause (a) of this sentence. After appointment, the
successor Rights Agent will 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 will file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock, and mail a notice thereof in
writing to the holders of the Rights. Failure to give any notice provided for in
this Section 4.4, 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.
ARTICLE V - MISCELLANEOUS
5.1 Redemption.
(a) The Board of Directors of the Company may, at its option, at any
time prior to the Flip-in Date, elect to redeem all (but not less than all)
the then outstanding Rights at the Redemption Price.
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights, without any further action and
without any notice, the right
19
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to exercise the Rights will terminate and each Right will thereafter
represent only the right to receive the Redemption Price in cash. Promptly
after the action of the Board of Directors electing to redeem, and thereby
redeeming, the Rights, the Company shall give notice of such redemption to
the Rights Agent and the holders of the then outstanding Rights by mailing
such notice in accordance with Section 5.9.
5.2 Expiration. No Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Time, except, if the Rights are redeemed, as
provided in Section 5.1 hereof.
5.3 Issuance of New Rights Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the number or kind or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement.
5.4 Supplements and Amendments. The Company and the Rights Agent may from
time to time supplement or amend this Agreement without the approval of any
holders of Rights (i) in any respect prior to the Flip-in Date (other than to
change the Redemption Price or the Expiration Time, except as contemplated
elsewhere herein) (ii) to make any changes following the close of business on
the Flip-in Date which the Company may deem necessary or desirable and which
shall not materially adversely affect the interests of the holders of Rights
generally or (iii) in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be inconsistent with any other
provisions herein or otherwise defective. The Rights Agent will duly execute and
deliver any supplement or amendment hereto requested by the Company which
satisfies the terms of the preceding sentence.
5.5 Fractional Shares. If the Company elects not to issue certificates
representing fractional shares upon exercise of Rights, the Company shall, in
lieu thereof, (a) evidence such fractional shares by depositary receipts issued
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that each holder of a
depositary receipt shall have all of the rights, privileges and preferences to
which such holder would be entitled as a beneficial owner of such fractional
share, or (b) pay to the registered holder of such Rights the same fraction of
the Market Price (determined as of the date of exercise) of one share of the
stock issuable upon such exercise.
5.6 Rights of Action. Subject to the terms of this Agreement, rights of
action in respect of this Agreement, other than rights of action vested solely
in the Rights Agent, are vested in the respective holders of the Rights; and any
holder of any Rights, without the consent of the Rights Agent or of the holder
of any other Rights, may, on such holder's own behalf and for such holder's own
benefit and the benefit of other holders of Rights, enforce, and may institute
and maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's right to exercise such holder's
Rights in the manner provided in such holder's Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
20
<PAGE>
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the obligations of
any Person subject to this Agreement.
5.7 Holder of Rights Not Deemed a Shareholder. No holder, as such, of any
Rights shall be entitled to vote, receive dividends or be deemed for any purpose
the holder of shares or any other securities which may at any time be issuable
on the exercise of such Rights, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in Section 5.8 hereof), or to receive dividends or subscription rights,
or otherwise, until such Rights shall have been exercised in accordance with the
provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall propose after the
Separation Time and prior to the Expiration Time (i) to effect or permit (in
cases where the Company's permis sion is required) occurrence of any Flip-in
Date or Flip-over Transaction or Event or (ii) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Right, in accordance with Section 5.9 hereof, a
notice of such proposed action, which shall specify the Flip-in Date or the date
on which such Flip-over Transaction or Event, liquidation, dissolution, or
winding up is to take place, and such notice shall be so given at least 20
Business Days prior to the date of the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by this Agreement to
be given or made by the Rights Agent or by the holder of any Rights to or on the
Company shall be sufficiently given or made if delivered or sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Herman Miller, Inc.
855 E. Main Avenue
Zeeland, Michigan 49464
Attention: General Counsel
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
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First Chicago Trust of New York
525 Washington Blvd.
3rd Floor, Suite 4600
Jersey City, NJ 07310
Attention: Corporate Actions Administration
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Time, on
the registry books of the transfer agent for the Common Stock. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the Company
determines in good faith that some action need be taken pursuant to Section
3.1(e) or to comply with federal or state securities laws, the Company may
suspend the exercisability of the Rights for a period of up to ninety (90) days
following the date of the occurrence of the Separation Time or the Flip-in Date
in order to take such action or comply with such laws. In the event of any such
suspension, the Company shall issue as promptly as practicable a public
announcement stating that the exercisability of the Rights has been temporarily
suspended.
5.11 Costs of Enforcement. The Company agrees that if the Company or any
other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 Descriptive Headings. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.15 Governing Law. This Agreement and each Right issued hereunder shall be
deemed to be a contract made under the laws of the State of Michigan and for all
purposes shall be governed
22
<PAGE>
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
5.16 Counterparts. This Agreement 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.
5.17 Severability. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
HERMAN MILLER, INC.
By: /s/ Brian C. Walker
Its: Executive Vice President &
Chief Financial Officer
FIRST CHICAGO TRUST OF NEW YORK
By: John H. Ruocco
Its: Account Manager
::ODMA\PCDOCS\GRR\266366\4
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EXHIBIT A
[Form of Rights Certificate]
Certificate No. W- _____ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MAN DATORY EXCHANGE,
AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. RIGHTS BENEFICIALLY OWNED BY ACQUIRING
PERSONS OR AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE
FOREGOING WILL BE VOID.
Rights Certificate
HERMAN MILLER, INC.
This certifies that _______________, or registered assigns, is the
registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Shareholder Protection Rights Agreement, dated as of June 30,
1999 (as such may be amended from time to time, the "Rights Agreement"), between
Herman Miller, Inc., a Michigan corporation (the "Company"), and First Chicago
Trust of New York, a division of Equiserve Limited Partnership, as Rights Agent
(the "Rights Agent", which term shall include any successor Rights Agent under
the Rights Agreement), to purchase from the Company at any time after the
Separation Time (as such term is defined in the Rights Agreement) and prior to
the close of business on July 12, 2009, one one-hundredth of a fully paid share
of Junior Participating Preferred Stock, without par value (the "Junior
Preferred Stock"), of the Company (subject to adjustment as provided in the
Rights Agreement) at the Exercise Price referred to below, upon presentation and
surrender of this Rights Certificate with the Form of Election to Exercise duly
executed at the principal office of the Rights Agent. The Exercise Price shall
initially be $100.00 per Right and shall be subject to adjustment in certain
events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the Rights
evidenced hereby may entitle the registered holder thereof to purchase capital
stock of an entity other than the Company or shares of capital stock of the
Company other than Junior Preferred Stock, all as provided in the Rights
Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates. Copies of
the Rights Agreement are on file at the principal office of the Company and are
available without cost upon written request.
<PAGE>
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing an aggregate number of Rights equal to the aggregate number
of Rights evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be (a) redeemed by the Company under certain circumstances
at its option at a redemption price of $.001 per Right, or (b) exchanged by the
Company under certain circumstances at its option for one share of Common Stock
or one one-hundredth of a share of Junior Preferred Stock per Right (or, in
certain cases, other securities or assets of the Company), subject in each case
to adjustment in certain events as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of any securities
which may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Rights evidenced by
this Rights Certificate shall have been exercised as provided in the Rights
Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
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<PAGE>
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Date: ___________________ HERMAN MILLER, INC.
ATTEST: By ______________________________
_________________________ Its __________________________
Secretary
Countersigned:
__________________________
as Rights Agent
By: ______________________
Authorized Signatory
3
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[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Rights Certificates.)
FOR VALUE RECEIVED __________________________ hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ________________________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ___________________, _____
Signature Guaranteed:
________________________________________
Signature
(Signature must correspond to name as
written upon the face of this Rights
Certificate in every particular, without
alteration or enlargement or any change
whatsoever)
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
4
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------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the knowledge of the undersigned, have never been, Beneficially
Owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement).
______________________________
Signature
---------------------------------
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Rights evidenced by the enclosed Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced by such Rights Certificate to be void and not transferable or
exercisable.
5
<PAGE>
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: HERMAN MILLER, INC.
The undersigned hereby irrevocably elects to exercise __________ whole
Rights represented by the attached Rights Certificate to purchase the shares of
Preferred Stock issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
______________________________
Address: _____________________
______________________________
Social Security or Other Taxpayer
Identification Number:___________
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
______________________________
Address: _____________________
______________________________
Social Security or Other Taxpayer
Identification Number: __________
Dated: ____________, ______
Signature Guaranteed:
_____________________________________________
Signature
(Signature must correspond to name as written
upon the face of this Rights Certificate in
every particular, without alteration or
enlargement or any change whatsoever)
6
<PAGE>
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
----------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the knowledge of the undersigned, have never been, Beneficially
Owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement).
_______________________________
Signature
------------------------------------
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise of the Rights, the Company will deem the
Beneficial Owner of the Rights evidenced by the enclosed Rights Certificate to
be an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement) or a transferee of any of the foregoing and accordingly will
deem the Rights evidenced by such Rights Certificate to be void and not
transferable or exercisable.
7
<PAGE>
EXHIBIT B
CERTIFICATE OF ADOPTION OF RESOLUTION
DESIGNATING AND PRESCRIBING RIGHTS,
PREFERENCES AND LIMITATIONS OF
JUNIOR PARTICIPATING PREFERRED STOCK OF
HERMAN MILLER, INC.
The undersigned corporation executes the following certificate pursuant to
the provisions of Section 302, Act 284, Public Acts of 1972, as amended:
1. The name of the Corporation is Herman Miller, Inc. (the "Corporation").
2. The Corporation Identification Number (CID) assigned by the Bureau is:
232-362.
3. The location of the registered office is 855 East Main, Zeeland,
Michigan 49464.
4. The following is a true and correct copy of a resolution designating
and prescribing the relative rights, preferences and limitations of the
Corporation's Junior Participating Preferred Stock, which was duly adopted by
the Board of Directors on June 30, 1999:
RESOLVED, that there is hereby established a series of Preferred
Stock, without par value, of the Corporation, and the designation and
certain powers, preferences and other rights of the shares of such series,
and certain qualifications, limitations and restrictions thereon, are
hereby fixed as follows:
(i) The distinctive serial designation of this series shall be
"Junior Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in all respects
with the other shares of this Series except as to the dates from and
after which dividends thereon shall be cumulative.
(ii) The number of shares in this Series shall initially be
1,000,000, which number may from time to time be increased or
decreased (but not below the number then outstanding) by the Board of
Directors. Shares of this Series purchased by the Corporation shall be
cancelled and shall revert to authorized but unissued shares of
Preferred Stock undesignated as to series. Shares of this Series may
be issued in fractional shares, which fractional shares shall entitle
the holder, in proportion to such holders' fractional share, to all
rights of a holder of a whole share of this Series.
(iii) The holders of full or fractional shares of this Series
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor,
dividends, (A) on each date that dividends or other distributions
(other than dividends or distributions payable
<PAGE>
in Common Stock of the Corporation) are payable on or in respect of
Common Stock comprising part of the Reference Package (as defined
below), in an amount per whole share of this Series equal to the
aggregate amount of dividends or other distributions (other than
dividends or distributions payable in Common Stock of the Corporation)
that would be payable on such date to a holder of the Reference
Package and (B) on the last day of January, April, July and October in
each year, in an amount per whole share of this Series equal to the
excess (if any) of $5.00 over the aggregate dividends paid per whole
share of this Series during the three month period ending on such last
day. Each such dividend shall be paid to the holders of record of
shares of this Series on the date, not exceeding sixty days preceding
such dividend or distribution payment date, fixed for the purpose by
the Board of Directors in advance of payment of each particular
dividend or distribution. Dividends on each full and each fractional
share of this Series shall be cumulative from the date such full or
fractional share is originally issued; provided that any such full or
fractional share originally issued after a dividend record date and on
or prior to the dividend payment date to which such record date
relates shall not be entitled to receive the dividend payable on such
dividend payment date or any amount in respect of the period from such
original issuance to such dividend payment date.
The term "Reference Package" shall initially mean one hundred
(100) shares of Common Stock, $.20 par value ("Common Stock"), of the
Corporation. In the event the Corporation shall at any time after the
close of business on July 12, 1999, (A) declare or pay a dividend on
any Common Stock payable in Common Stock, (B) sub-divide any Common
Stock or (C) combine any Common Stock into a smaller number of shares,
then and in each such case the Reference Package after such event
shall be the Common Stock that a holder of the Reference Package
immediately prior to such event would hold thereafter as a result
thereof.
Holders of shares of this Series shall not be entitled to any
dividends, whether payable in cash, property or stock, in excess of
full cumulative dividends, as herein provided on this Series.
As long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking
junior to this Series as to dividends and upon liquidation) shall be
declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock or upon any other stock ranking
junior to this Series as to dividends or upon liquidation, nor shall
any Common Stock nor any other stock of the Corporation ranking junior
to or on a parity with this Series as to dividends or upon liquidation
be redeemed, purchased or otherwise
2
<PAGE>
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any
such stock) by the Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to this Series as to
dividends and upon liquidation), unless, in each case, the full
cumulative dividends (including the dividend to be due upon payment of
such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall have been,
or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation, reclassification
or other transaction in which the shares of Common Stock are exchanged
for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of this Series shall at the
same time be similarly exchanged or changed in an amount per whole
share equal to the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, that a
holder of the Reference Package would be entitled to receive as a
result of such transaction.
(v) In the event of any liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, the
holders of full and fractional shares of this Series shall be
entitled, before any distribution or payment is made on any date to
the holders of the Common Stock or any other stock of the Corporation
ranking junior to this Series upon liquidation, to be paid in full an
amount per whole share of this Series equal to the greater of (A)
$100, or (B) the aggregate amount distributed or to be distributed
prior to such date in connection with such liquidation, dissolution or
winding up to a holder of the Reference Package (such greater amount
being hereinafter referred to as the "Liquidation Preference"),
together with accrued dividends to such distribution or payment date,
whether or not earned or declared. If such payment shall have been
made in full to all holders of shares of this Series, the holders of
shares of this Series as such shall have no right or claim to any of
the remaining assets of the Corporation.
This Series shall be subordinate to, and shall be entitled to a
distribution upon liquidation after, all series of Preferred Stock of
the Cor poration except for such Series as by its terms ranks pari
passu with, or subordinate to, this Series.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (v), after
3
<PAGE>
giving effect to the second paragraph of this Section (v), no such
distribution shall be made on account of any shares of any other class
or series of Preferred Stock ranking on a parity with the shares of
this Series upon such liquidation, dissolution or winding up unless
proportionate distributive amounts shall be paid on account of the
shares of this Series, ratably in proportion to the full distributable
amounts for which holders of all such parity shares are respectively
entitled upon such liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this Series then outstanding
shall be entitled to be paid out of assets of the Corporation
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to the first and second paragraphs
of this Section (v) before any payment shall be made to the holders of
Common Stock or any other stock of the Corpora tion ranking junior
upon liquidation to this Series.
For the purposes of this Section (v), the consolidation or merger
of the Corporation with any other corporation shall not be deemed to
constitute a liquidation, dissolution or winding up of the
Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of stockholders
required by law or by the Articles of Incorporation, as amended, of
the Corporation, each whole share of this Series shall, on any matter,
vote as a class with any other capital stock comprising part of the
Reference Package and voting on such matter and shall have the number
of votes thereon that a holder of the Reference Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the _____ day of ______, ____.
HERMAN MILLER, INC.
By: __________________________________
Its: _____________________________
Attest:
___________________________
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<PAGE>
EXHIBIT 2
Immediate
Brian Walker (616) 654 8589
Bob Dentzman (616) 654 5044
July 2, 1999
Herman Miller, Inc., Adopts Shareholder Rights Plan
July 12, 1999: Herman Miller, Inc. (NASDAQ: MLHR), announced that its Board of
Directors adopted a Shareholder Protection Rights Plan, which provides for the
dividend of one Right on each outstanding share of the Company's common stock.
The Company will issue the Rights to shareholders of record at the close of
business on July 12, 1999.
David Nelson, Chairman, stated, "Creation of shareholder value is one of our key
goals at Herman Miller. Rights plans such as the one we have adopted are a basic
and common mechanism that companies use to protect their shareholders against
abusive tactics that have been used in corporate takeovers. These tactics can
unfairly pressure shareholders into making hasty, misinformed decisions and
thereby deprive them of the full value of their shares. The issuance of the
Rights reflects our determination that shareholders be given every opportunity
to realize the full value of their investment.
"Over 1900 companies have adopted similar rights plans, including over 60
percent of the Fortune 500 companies. The Board considers these plans to be one
of the most effective available means of protecting the right of its
shareholders both to retain an equity investment in the Company and to benefit
from the long-term value of that investment, while not foreclosing a fair
acquisition bid for the Company. The Rights are intended to ensure that the
Board of Directors has the ability to protect shareholders and the Company if
outsiders take certain actions that are not in the best interests of the Company
and all of its shareholders."
-more-
<PAGE>
The Rights are not being distributed in response to any specific threat, and the
Board is not aware of any such threat.
Mr. Nelson continued, "This Plan is similar to plans adopted by many publicly
held companies in recent years. The adoption of this Plan is part of our overall
program to have mechanisms in place which permit us to deal with takeover
situations on an orderly basis. The Plan is not being adopted in response to any
takeover attempt, and Herman Miller, Inc. is not aware of any such attempt."
The Rights will be exercisable only if a person or group announces (a) the
acquisition of 15 percent or more of Herman Miller Inc.'s common stock, or (b) a
tender offer which would result in ownership of 15 percent or more of the common
stock. Each Right will entitle shareholders to buy one one-hundredth of a share
of preferred stock from Herman Miller, Inc. at an exercise price of $100. Once a
person or group does acquire 15 percent or more of the Corporation's common
stock, then each Right will entitle its holder to purchase, for the exercise
price, shares of Herman Miller, Inc.'s common stock having a market value of
twice the exercise price. Also, if any person or group acquires between 15
percent and 50 percent of Herman Miller, Inc.'s common stock, the Board of
Directors may elect to exchange one share of Herman Miller, Inc.'s common stock,
or one one-hundredth of a share of preferred stock, for each Right. Herman
Miller, Inc. will be entitled to redeem the Rights at $.001 per Right at any
time before a 15 percent position has been acquired.
The Rights will expire on July 12, 2009, subject to extension. Distribution of
the Rights is not taxable to shareholders. Details of the Rights distribution
are contained in a letter that the Company will mail to shareholders of record
and which will be posted on our Company web site.
Herman Miller, Inc., is an international firm engaged primarily in the
manufacture and sale of furniture systems, products, and related services,
principally for offices and to a lesser extent, for health-care facilities and
other uses. The Company is based in Zeeland, Michigan.
-end-
::ODMA\PCDOCS\GRR\318283\1
hat31a.doc
<PAGE>
EXHIBIT 3
July 12, 1999
To Our Shareholders
The Herman Miller Board of Directors has adopted a Shareholder Protection Rights
Plan. The Plan provides for a dividend distribution to shareholders of record on
July 12, 1999, of Rights to purchase certain securities of the Company (or other
consideration), exercisable upon the occurrence of certain takeover events. I am
enclosing a summary description outlining the principal terms of the Plan, which
I urge you to read carefully.
The Plan was not adopted in response to any specific effort to acquire control
of Herman Miller, and we are not aware of any such effort. After careful
consideration, however, the Board of Directors believes that the Plan is a
reasonable and prudent response to the risks posed to shareholder interests in
the event that you or the Company are confronted with coercive or unfair
takeover tactics or a tender offer at an inadequate price. Simply put, the Plan
contains provisions to protect you in the event of an unsolicited offer to
acquire Herman Miller. This includes offers that do not treat all shareholders
equally, the acquisition in the open market of shares constituting control
without offering fair value to all shareholders, and other coercive or unfair
takeover tactics that could impair the Board's ability to represent your
interests fully and which the Board believes are not in the best interests of
all shareholders.
More than 1,900 other U.S. corporations have adopted plans similar to the Plan
we adopted. The Plan is not intended to prevent an acquisition of Herman Miller
on terms that are favorable and fair to all shareholders and will not be used
for that purpose. It is designed to deal with the very serious problem of
unilateral actions by hostile acquirers that are calculated to deprive Herman
Miller's Board and its shareholders of their ability to determine the destiny of
the Company. However, the mere declaration of the Rights dividend should not
affect any prospective offeror willing to make an all cash offer at a full and
fair price, or to negotiate with your Board of Directors. Furthermore, it will
not interfere with a merger or other business combination transaction that the
Board of Directors approves as fair and as constituting a recognition of full
value to the shareholders.
Issuance of the Rights will not weaken Herman Miller's financial strength, will
not affect its reported earnings per share, is not taxable to you or the
Company, and will not change the way in which the Company's shares are traded.
As described in the attached summary, the Rights will only become exercisable
under certain circumstances. They will then operate to protect our shareholders
against being deprived of their right to share in the full measure of Herman
Miller's long-term potential.
<PAGE>
page 2
In declaring the Rights dividend, we have expressed our confidence in Herman
Miller's future and our determination that you, our owners, be given every
opportunity to participate fully in that future.
Sincerely
/s/ David L. Nelson
David L. Nelson
Chairman of the Board
enclosure
::ODMA\PCDOCS\GRR\318284\1
