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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 1
Fibreboard Corporation
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(Exact name of registrant as specified in its charter)
Delaware 94-0751580
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
2121 No. California Blvd., Suite 560
Walnut Creek, California 94596
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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<S> <C>
Preferred Share Purchase Rights American Stock Exchange
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered
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On February 11, 1994, Fibreboard Corporation (the "Company") executed
Amendment No. 1 (the "Rights Amendment") to the Rights Agreement, dated
August 25, 1988 (as amended by Amendment No. 1 thereto, the "Rights Agreement"),
between the Company and The First National Bank of Boston, as the successor
Rights Agent (the "Rights Agent") to Bank of America N.T. & S.A. The Rights
Amendment provides that, among other things, the definition of the term
"Acquiring Person" in the Rights Agreement is amended to mean any person or
group of affiliated or associated persons who shall be the beneficial owner of
15% (reduced from 25%) or more of the outstanding shares of common stock, par
value $.01 (the "Common Shares"), of the Company, subject to certain specified
exceptions, the Purchase Price (as such term is hereinafter defined) is raised
from $35.00 to $106.00, the Final Expiration Date (as such term is hereinafter
defined) is extended from August 31, 1998 to February 11, 2004, certain
limitations on "flip-in" rights (as defined below) are removed, and certain
amendments are made to clarify certain technical or mechanical aspects of the
Rights (as such term is hereinafter defined). The Rights Agreement was also
amended in certain other related respects. A summary of the Rights as amended
follows.
Summary of Rights
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On August 25, 1988, the Board of Directors of the Company declared a
dividend of one preferred share purchase right (a "Right") for each Common Share
then outstanding. The dividend was payable on September 9, 1988 (the "Record
Date") to the stockholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of
Series A Junior Participating Preferred Stock, par value $.01 per share (the
"Preferred Shares"), of the Company at a price of $106.00 per one one-hundredth
of a Preferred Share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in the Rights Agreement.
Until the earlier to occur of (i) the tenth day after the first public
announcement that a person or group of affiliated or associated persons have
become an Acquiring Person (as such term is defined below) or (ii) the tenth
business day (or such later date as may be determined by action of the Board of
Directors prior to such time as any Person becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in a person or
group becoming an Acquiring Person (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced by the certificates for
Common Shares. The term "Acquiring Person" is defined for purposes of the
Rights Agreement as any person or group of affiliated or associated persons who
beneficially own
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15% or more of the Common Shares of the Company then outstanding, subject to
certain exceptions specified in the Rights Agreement.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date, upon transfer or new
issuance of Common Shares, will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Shares outstanding as of the Record Date will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on February 11, 2004 (the "Final Expiration Date"), unless
the Final Expiration Date is extended or unless the Rights are earlier redeemed
by the Company, in each case as described below.
The Purchase Price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of certain rights
or warrants to subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion price, less than
the then current market price of the Preferred Shares or (iii) upon the
distribution to holders of the Preferred Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of
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$1 per share but will be entitled to an aggregate dividend of 100 times the
dividend declared per Common Share. In the event of liquidation, the holders of
the Preferred Shares will be entitled to a minimum preferential liquidation
payment of $100 per share but will be entitled to an aggregate payment of 100
times the payment made per Common Share. Each Preferred Share will have 100
votes, voting together with the Common Shares. Finally, in the event of any
merger, consolidation or other transaction in which Common Shares are exchanged,
each Preferred Share will be entitled to receive 100 times the amount received
per Common Share. These rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a Preferred
Share purchasable upon exercise of each Right should approximate the value of
one Common Share.
In the event that any person or group of affiliated or associated
persons becomes an Acquiring Person each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which become void), will thereafter
have the right to receive upon exercise that number of Common Shares (or, in
certain circumstances, cash, other securities or property) having a market value
of two times the Purchase Price of the Right (such right, a "flip-in" right).
In the event that after the time any person or group of affiliated or
associated persons becomes an Acquiring Person, (i) the Company merges with or
into another person, (ii) any person consolidates or merges with or into the
Company and the Common Shares are changed into or exchanged for securities of
another person (or the Company) or cash or other property, or (iii) the Company
sells or transfers assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its subsidiaries taken as a whole, then
proper provision will be made so that each holder of a Right, other than Rights
that have become void, shall have the right to receive upon exercise that number
of common shares of the Principal Party (as defined below) to such
consolidation, merger, sale or transfer having a market value equal to two times
the Purchase Price (such right, a "flip-over" right). The "Principal Party" is
defined for purposes of the Rights Agreement as (i) in the case of a merger or
consolidation, the person that is the issuer of the shares into which Common
Shares are converted or, if no shares are so issued, the other party to such
ransaction or the survivor of such merger or the person resulting from such
consolidation, and (ii) in the case of a sale of assets or earning power, the
person receiving the greatest portion of such assets; provided, however, that if
more than one person issues such shares, is a survivor in such merger or
receives such assets, the "Principal Party" shall be the issuer, survivor or
recipient of the common shares of which have the greatest aggregate market
value, or in the case of
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a sale of assets or earning power, the recipient of the greatest portion of the
assets or earning power transferred pursuant to such transaction, in each case,
subject to certain exceptions.
At any time after a person or group of affiliated or associated
persons becomes an Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Shares, the Board of Directors
of the Company may exchange the Rights (other than Rights owned by such person
or group, which become void), in whole or in part, at an exchange ratio of one
Common Share, or one one-hundredth of a Preferred Share (or of a share of a
class or series of the Company's preferred stock having equivalent rights,
preferences and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the time a person or group of affiliated or
associated persons becomes an Acquiring Person, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"). The redemption of the Rights may be made
effective at such time on such basis and with such conditions as the Board of
Directors in its sole discretion may establish. Immediately upon any redemption
of the Rights, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of
the Company without the consent of the holders of the Rights, except that, from
and after such time as any person or group becomes an Acquiring Person, no such
amendment may adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board of Directors. The Rights should
not interfere with any merger or other business combination approved by the
Board of Directors since the Rights may be redeemed by the
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Company at the Redemption Price prior to the time that a person or group becomes
an Acquiring Person.
A copy of the Rights Agreement has been filed as an Exhibit to the
Company's Registration Statement on Form 8-A. This summary description of the
Rights does not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is incorporated in this summary
description by reference. All capitalized terms not defined herein shall have
the meanings ascribed to them in the Rights Agreement, as amended.
Item 2. Exhibits.
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1. Rights Agreement, dated as of August 25, 1988, between the Company and
Bank of America N.T. & S.A., which includes the Certificate of
Designations for the Series A Junior Participating Preferred Stock as
Exhibit A, the form of Right Certificate as Exhibit B and the Summary
of Rights to Purchase Preferred Shares as Exhibit C. Pursuant to the
Rights Agreement, printed Right Certificates will not be mailed until
as soon as practicable after the earlier of the tenth day after public
announcement that a person or group has acquired beneficial ownership
of 15% or more of the Common Shares or the tenth business day (or such
later date as may be determined by action of the Board of Directors)
after a person commences, or announces its intention to commence, a
tender offer or exchange offer the consummation of which would result
in the beneficial ownership by a person or group of 15% or more of the
Common Shares. (Incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A filed on September 1,
1988).
2. Amendment No. 1 to Rights Agreement, dated as of February 11, 1994,
between the Company and The First National Bank of Boston.*
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* Filed herewith
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
FIBREBOARD CORPORATION
DATED: February 15, 1994 By: /s/ Garold E. Swan
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Name: Garold E. Swan
Title: Vice President and
Controller
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EXHIBIT INDEX
Exhibit No. Description
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1 Rights Agreement, dated as of August 25, 1988, between the
Company and Bank of America N.T. & S.A., which includes the
Certificate of Designations for the Series A Junior
Participating Preferred Stock as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary of Rights to
Purchase Preferred Shares as Exhibit C. Pursuant to the
Rights Agreement, printed Right Certificates will not be
mailed until as soon as practicable after the earlier of the
tenth day after public announcement that a person or group
has acquired beneficial ownership of 15% or more of the
Common Shares or the tenth business day (or such later date
as may be determined by action of the Board of Directors)
after a person commences, or announces its intention to
commence, a tender offer or exchange offer the consummation
of which would result in the beneficial ownership by a
person or group of 15% or more of the Common Shares.
(Incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A filed on September 1,
1988).
2 Amendment No. 1 to Rights Agreement, dated as of
February 11, 1994, between the Company and The First
National Bank of Boston.*
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* Filed herewith
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FIBREBOARD CORPORATION
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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THIS AMENDMENT NO. 1 (this "Amendment"), dated as of February 11,
1994, to the Rights Agreement, dated as of August 25, 1988 (the "Rights
Agreement"), between Fibreboard Corporation, a Delaware corporation (the
"Company"), and Bank of America N.T. & S.A., as Rights Agent (the "Original
Rights Agent").
A. The Company and the Original Rights Agent have heretofore
executed and entered into the Rights Agreement. The Original Rights agents had
been replaced by The First National Bank of Boston, as successor Rights Agent
(the "Rights Agent"). Pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with the provisions of Section 27 thereof.
B. The Board of Directors of the Company has determined that the
amendments to the Rights Agreement set forth below are in the best interests of
the stockholders of the Company and reasonable in relation to the threats to the
Company identified by the Board.
In consideration of the foregoing and the mutual agreements set forth
herein, the parties hereto agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1(a) of
the Rights Agreement is hereby amended in its entirety to read as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 15% or more
of the Common Shares of the Company then outstanding, but shall not include
the Company, any Subsidiary (as such term is hereinafter defined) of the
Company, any employee benefit plan of the Company or any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the terms
of any such plan. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common Shares by the
Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or
more of the Common Shares of the Company then outstanding; PROVIDED,
HOWEVER, that if a Person shall become the Beneficial Owner of 15% or more
of the Common Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any
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2
additional Common Shares of the Company, then such Person shall be deemed
to be an "Acquiring Person". Notwithstanding the foregoing, if the Board
of Directors of the Company determines (upon approval by a majority of the
directors then in office) in good faith that a Person who would otherwise
be an Acquiring Person, as defined pursuant to the foregoing provisions of
this paragraph (a), has become such inadvertently, and such Person divests
as promptly as practicable a sufficient number of Common Shares so that
such Person would no longer be an Acquiring Person, as defined pursuant to
the foregoing provisions of this paragraph (a), then such Person shall not
be deemed to be an "Acquiring Person" for any purpose of this Agreement.
2. The definition of "Beneficial Owner" set forth in Section 1(c) of
the Rights Agreement is hereby amended in its entirety to read as follows:
(a) A Person shall be deemed the "Beneficial Owner" of, shall be
deemed to have "Beneficial Ownership" of and shall be deemed to
"beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights, warrants
or options, or otherwise; PROVIDED, HOWEVER, that a Person shall not
be deemed the Beneficial Owner of, or to beneficially own, (x)
securities tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase,
(y) securities which such Person has a right to acquire on the
exercise of Rights at any time prior to the time a Person becomes an
Acquiring Person or (z) securities issuable upon exercise of Rights
from and after the time a Person becomes an Acquiring Person if such
Rights were acquired by such Person or any of such Person's Affiliates
or Associates prior to the Distribution Date or pursuant to Section
3(a) or Section 22 hereof ("original Rights") or pursuant to Section
11(i) or Section 11(n) with respect to an adjustment to original
Rights; or (B) the right to vote pursuant to any agreement,
arrangement or understanding; PROVIDED, HOWEVER, that a Person shall
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not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to
such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to Section
1(c)(ii)(B)) or disposing of any securities of the Company.
The phrase "then outstanding", when used with reference to a Person's
Beneficial Ownership of securities of the Company, shall mean the number of
such securities then issued and outstanding together with the number of
such securities not then actually issued and outstanding which such Person
would be deemed to own beneficially hereunder.
3. The definition of "Trigger Event" set forth in Section 1(n) of
the Rights Agreement is hereby deleted in its entirety.
4. Section 3(a) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(a) Until the earlier of (i) the tenth day after the Shares
Acquisition Date or (ii) the tenth business day (or such later date as may
be determined by action of the Board of Directors prior to such time as any
Person becomes an Acquiring Person) after the date of the commencement by
any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the Company or
any entity holding Common Shares for or pursuant to the terms of any such
plan) of, or of the first public announcement of the intention of any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any
entity holding Common Shares for or pursuant to the terms of any such plan)
to commence, a tender or exchange offer the consummation of which would
result in any Person becoming the Beneficial Owner of Common Shares
aggregating 15% or more of the then outstanding Common Shares (including
any such date which is
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4
after the date of this Agreement and prior to the issuance of the Rights;
the earlier of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by the certificates for Common Shares registered in
the names of the holders thereof (which certificates shall also be deemed
to be Right Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable only in
connection with the transfer of Common Shares. As soon as practicable
after the Distribution Date, the Company will prepare and execute, the
Rights Agent will countersign, and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Shares as of
the close of business on the Distribution Date, at the address of such
holder shown on the records of the Company, a Right Certificate, in
substantially the form of Exhibit B hereto (a "Right Certificate"),
evidencing one Right for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right Certificates.
5. Section 4 of the Rights Agreement is hereby amended by adding
after the phrase "or with any rule or regulation of any stock exchange" the
phrase "or any transaction reporting system".
6. Section 7(a) of the Rights Agreement is hereby amended by
substituting "February 11, 2004" for "August 31, 1988" as the "Final Expiration
Date".
7. Section 7(b) of the Rights Agreement is hereby amended by
increasing the Purchase Price for each one one-hundredth of a Preferred Share
pursuant to the exercise of a Right from $35 to $106, subject to adjustment as
set forth therein.
8. Section 7(e) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(e) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7 unless
such registered holder shall have (i) completed and signed the certificate
contained in the form of election to purchase set forth on the reverse side
of the Rights Certificate surrendered for such exercise and (ii) provided
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
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5
9. Section 9 of the Rights Agreement is hereby amended in its
entirety to read as follows:
Section 9. AVAILABILITY OF PREFERRED SHARES. (a) The Company
covenants and agrees that it will cause to be reserved and kept available
out of its authorized and unissued Preferred Shares or any Preferred Shares
held in its treasury, the number of Preferred Shares that will be
sufficient to permit the exercise in full of all outstanding Rights.
(b) So long as the Preferred Shares (and, following the time
that a Person becomes an Acquiring Person, Common Shares and other
securities) issuable upon the exercise of Rights may be listed or admitted
to trading on any national securities exchange or any other trading market
or transaction reporting system, the Company shall use its best efforts to
cause, from and after such time as the Rights become exercisable, all
shares reserved for such issuance to be listed or admitted to trading on
such exchange or trading market or transaction reporting system upon
official notice of issuance upon such exercise.
(c) From and after such time as the Rights become exercisable,
the Company shall use its best efforts to, if then necessary to permit the
issuance of Preferred Shares (and following the time that a Person first
becomes an Acquiring Person, shares of Common Stock and other securities)
upon the exercise of Rights, register and qualify such Preferred Shares
(and following the time that a Person first becomes an Acquiring Person,
Common Shares and other securities) under the Securities Act and any
applicable state securities or "Blue Sky" laws (to the extent exemptions
therefrom are not available), cause such registration statement and
qualifications to become effective as soon as possible after such filing
and keep such registration and qualifications effective until the earlier
of the date as of which the Rights are no longer exercisable for such
securities and the Final Expiration Date. The Company may temporarily
suspend, for a period of time not to exceed 90 days, the exercisabilty of
the Rights in order to prepare and file a registration statement under the
Securities Act and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained and until a
registration statement under the Securities Act (if required) shall have
been declared effective.
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6
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares (and,
following the time that a Person becomes an Acquiring Person, Common Shares
and other securities) delivered upon exercise of Rights shall, at the time
of delivery of the certificates therefor (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid
and nonassessable shares.
(e) The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery of the
Right Certificates or of any Preferred Shares (or shares of Common Stock or
other securities) upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Right Certificates to a Person other
than, or the issuance or delivery of certificates or depositary receipts
for the Preferred Shares in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for exercise
or to issue or deliver any certificates or depositary receipts for
Preferred Shares upon the exercise of any Rights until any such tax shall
have been paid (any such tax being payable by that holder of such Right
Certificate at the time of surrender) or until it has been established to
the Company's reasonable satisfaction that no such tax is due.
10. Section 11(a) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Shares
payable in Preferred Shares, (B) subdivide the outstanding Preferred
Shares, (C) combine the outstanding Preferred Shares into a smaller number
of Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a), the Purchase Price in effect at the time of
the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and kind of
shares of capital stock issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares of capital
stock which, if such Right had been exercised immediately prior to such
date and at a time when the Preferred Shares transfer books of the Company
were open, the holder would have owned upon
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7
such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; PROVIDED, HOWEVER, that in no
event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock of the
Company issuable upon exercise of one Right.
(ii) Subject to Section 24 of this Agreement and except as
otherwise provided in this Section 11(a)(ii), in the event any Person
becomes an Acquiring Person, each holder of a Right, shall thereafter have
the right to receive, upon exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable, in accordance with
the terms of this Agreement and in lieu of Preferred Shares, such number of
Common Shares (or at the option of the Company, such number of one one-
hundredths of Preferred Shares) as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right is then exercisable
and dividing that product by (y) 50% of the then current per share market
price of the Company's Common Shares (determined pursuant to Section 11(d)
hereof) on the date of the occurrence of such event. Notwithstanding
anything in this Rights Agreement to the contrary, however, from and after
the time (the "invalidation time") when any Person first becomes an
Acquiring Person, any Rights that are beneficially owned by (x) any
Acquiring Person (or any Affiliate or Associate of any Acquiring Person),
(y) a transferee of any Acquiring Person (or any such Affiliate or
Associate) who becomes a transferee after the invalidation time or (z) a
transferee of any Acquiring Person (or any such Affiliate or Associate) who
became a transferee prior to or concurrently with the invalidation time
pursuant to either (I) a transfer from the Acquiring Person to holders of
its equity securities or to any Person with whom it has any continuing
agreement, arrangement or understanding regarding the transferred Rights or
(II) a transfer which the Board of Directors has determined is part of a
plan, arrangement or understanding which has the purpose or effect of
avoiding the provisions of this paragraph, and subsequent transferees of
such Persons, shall be void without any further action and any holder of
such Rights shall thereafter have no rights whatsoever with respect to such
Rights under any provision of this Rights Agreement. The Company shall use
all reasonable efforts to ensure that the provisions of this Section
11(a)(ii) are complied with, but shall have no liability to any holder of
Right Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder. From and after the invalidation time,
no Right Certificate shall be issued pursuant to Section 3 or Section 6
hereof that
<PAGE>
8
represents Rights that are or have become void pursuant to the provisions
of this paragraph, and any Right Certificate delivered to the Rights Agent
that represents Rights that are or have become void pursuant to the
provisions of this paragraph shall be cancelled. From and after the
occurrence of an event specified in Section 13(a) hereof, any Rights that
theretofore have not been exercised pursuant to this Section 11(a)(ii)
shall thereafter be exercisable only in accordance with Section 13 and not
pursuant to this Section 11(a)(ii).
(iii) The Company may at its option substitute for a Common
Share issuable upon the exercise of Rights in accordance with the foregoing
subparagraph (ii) such number or fractions of Preferred Shares having an
aggregate current market value equal to the current per share market price
of a Common Share. In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but unissued to permit the
exercise in full of the Rights in accordance with the foregoing
subparagraph (ii), the Board of Directors shall, to the extent permitted by
applicable law and any material agreements then in effect to which the
Company is a party (A) determine the excess of (1) the value of the Common
Shares issuable upon the exercise of a Right in accordance with the
foregoing subparagraph (ii) (the "Current Value") over (2) the then current
Purchase Price multiplied by the number of one one-hundredths of Preferred
Shares for which a Right was exercisable immediately prior to the time that
the Acquiring Person became such (such excess, the "Spread"), and (B) with
respect to each Right (other than Rights which have become void pursuant to
Section 11(a)(ii)), make adequate provision to substitute for the Common
Shares issuable in accordance with subparagraph (ii) upon exercise of the
Right and payment of the applicable Purchase Price, (1) cash, (2) a
reduction in the Purchase Price, (3) Preferred Shares or other equity
securities of the Company (including, without limitation, shares or
fractions of shares of preferred stock which, by virtue of having dividend,
voting and liquidation rights substantially comparable to those of the
Common Shares, are deemed in good faith by the Board of Directors to have
substantially the same value as the Common Shares (such Preferred Shares
and shares or fractions of shares of preferred stock are hereinafter
referred to as "Common Share equivalents"), (4) debt securities of the
Company, (5) other assets, or (6) any combination of the foregoing, having
a value which, when added to the value of the Common Shares actually issued
upon exercise of such Right, shall have an aggregate value equal to the
Current Value (less the amount of any reduction in the Purchase Price),
where such aggregate value has been determined by the Board of Directors
upon the advice of a nationally recognized investment banking firm selected
in good faith by the Board of Directors; PROVIDED, HOWEVER, if the Company
shall not
<PAGE>
9
make adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the date that the Acquiring Person became
such (the "Section 11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, to the extent permitted by applicable law and any
material agreements then in effect to which the Company is a party, upon
the surrender for exercise of a Right and without requiring payment of the
Purchase Price, Common Shares (to the extent available), and then, if
necessary, such number or fractions of Preferred Shares (to the extent
available) and then, if necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. If, upon the date any Person becomes
an Acquiring Person, the Board of Directors shall determine in good faith
that it is likely that sufficient additional Common Shares could be
authorized for issuance upon exercise in full of the Rights, then, if the
Board of Directors so elects, the thirty (30) day period set forth above
may be extended to the extent necessary, but not more than ninety (90) days
after the Section 11(a)(ii) Trigger Date, in order that the Company may
seek stockholder approval for the authorization of such additional shares
(such thirty (30) day period, as it may be extended, is herein called the
"Substitution Period"). To the extent that the Company determines that
some action need be taken pursuant to the second and/or third sentence of
this Section 11(a)(iii), the Company (x) shall provide, subject to Section
11(a)(ii) hereof and the last sentence of this Section 11(a)(iii) hereof,
that such action shall apply uniformly to all outstanding Rights and (y)
may suspend the exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant
to such second sentence and to determine the value thereof. In the event
of any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension
is no longer in effect. For purposes of this Section 11(a)(iii), the value
of the Common Shares shall be the current per share market price (as
determined pursuant to Section 11(d)(i)) on the Section 11(a)(ii) Trigger
Date and the per share or fractional value of any "Common Share equivalent"
shall be deemed to equal the current per share market price of the Common
Shares. The Board of Directors of the Company may, but shall not be
required to, establish procedures to allocate the right to receive Common
Shares upon the exercise of the Rights among holders of Rights pursuant to
this Section 11(a)(iii).
11. Section 11(f) of the Rights Agreement is hereby amended in its
entirety to read as follows:
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter
<PAGE>
10
exercised shall become entitled to receive any shares of capital stock of
the Company other than Preferred Shares, thereafter the number of such
other shares so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Preferred Shares
contained in Sections 11(a)(i), 11(b), 11(c) and 11(i), and the provisions
of Sections 7, 9, 10 and 13 with respect to the Preferred Shares shall
apply on like terms to any such other shares.
12. A new Section 11(o) shall be added which reads as follows:
(o) The Company agrees that, after the earlier of the Distribution
Date or the Shares Acquisition Date, it will not, except as permitted by
Sections 23, 24 or 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably foreseeable
that such action will diminish substantially or eliminate the benefits
intended to be afforded by the Rights.
13. Section 13 of the Rights Agreement is hereby amended in its
entirety to read as follows:
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNINGS POWER. (a) In the event, directly or indirectly, at any time
after any Person has become an Acquiring Person, (i) the Company shall
merge with and into any other Person, (ii) any Person shall consolidate
with the Company, or any Person shall merge with and into the Company and
the Company shall be the continuing or surviving corporation of such merger
and, in connection with such merger, all or part of the Common Shares shall
be changed into or exchanged for stock or other securities of any other
Person (or of the Company) or cash or any other property, or (iii) the
Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as a whole) to
any other Person (other than the Company or one or more of its wholly-owned
Subsidiaries), then upon the first occurrence of such event, proper
provision shall be made so that: (A) each holder of record of a Right
(other than Rights which have become void pursuant to Section 11(a)(ii))
shall thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current Purchase Price multiplied by the number of
one one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to the time that any Person first became an Acquiring
Person (as subsequently adjusted thereafter pursuant to Sections 11(a)(i),
11(b), 11(c) and 11(i)), in accordance with the terms of this Agreement and
<PAGE>
11
in lieu of Preferred Shares, such number of validly issued, fully paid and
non-assessable and freely tradeable common shares of the Principal Party
(as defined herein) not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result obtained
by (1) multiplying the then current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to the time that any Person first became an Acquiring
Person (as subsequently adjusted thereafter pursuant to Sections 11(a)(i),
11(b), 11(c) and 11(i)) and (2) dividing that product by 50% of the then
current per share market price of the common shares of such Principal Party
(determined pursuant to Section 11(d)(i) hereof) on the date of
consummation of such consolidation, merger, sale or transfer; PROVIDED that
the Purchase Price and the number of common shares of such Principal Party
issuable upon exercise of each Right shall be further adjusted as provided
in Section 11(f) of this Rights Agreement to reflect any events occurring
in respect of such Principal Party after the date of the such
consolidation, merger, sale or transfer; (B) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such consolida-
tion, merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Rights Agreement; (C) the term "Company" shall
thereafter be deemed to refer to such Principal Party; and (D) such issuer
shall take such steps (including, but not limited to, the reservation of a
sufficient number of its common shares in accordance with Section 9 hereof)
in connection with such consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be ap-
plicable, as nearly as reasonably may be, in relation to the common shares
thereafter deliverable upon the exercise of the Rights; PROVIDED that, upon
the subsequent occurrence of any consolidation, merger, sale or transfer of
assets or other extraordinary transaction in respect of such Principal
Party, each holder of a Right shall thereupon be entitled to receive, upon
exercise of a Right and payment of the Purchase Price as provided in this
Section 13(a), such cash, shares, rights, warrants and other property which
such holder would have been entitled to receive had such holder, at the
time of such transaction, owned the common shares of the Principal Party
purchasable upon the exercise of a Right pursuant to this Section 13(a),
and such Principal Party shall take such steps (including, but not limited
to, reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms hereof for
such cash, shares, rights, warrants and other property.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (i) or (ii) of the
first sentence of Section 13(a) hereof: (A) the
<PAGE>
12
Person that is the issuer of the securities into which common shares are
converted in such merger or consolidation, or, if there is more than one
such issuer, the issuer the common shares of which has the greatest
aggregate market value of shares outstanding or (B) if no securities are so
issued, (x) the Person that is the other party to the merger, if such
Person survives said merger, or, if there is more than one such Person, the
Person the common shares of which has the greatest aggregate market value
of shares outstanding or (y) if the Person that is the other party to the
merger does not survive the merger, the Person that does survive the merger
(including the Company if it survives) or (z) the Person resulting from the
consolidation; and
(ii) in the case of any transaction described in (iii) of the first
sentence in Section 13(a) hereof, the Person that is the party receiving
the greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions, or, if each Person that is a party to
such transaction or transactions receives the same portion of the assets or
earning power so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be determined, whichever of
such Persons as is the issuer of common shares having the greatest
aggregate market value of shares outstanding;
PROVIDED, HOWEVER, that in any such case described in the foregoing clause
(b)(i) or (b)(ii), (1) if the common shares of such Person are not at such
time or have not been continuously over the preceding 12-month period
registered under Section 12 of the Exchange Act, and if such Person is a
direct or indirect Subsidiary of another Person the common shares of which
are and have been so registered, the term "Principal Party" shall refer to
such other Person, or (2) if such Person is a Subsidiary, directly or
indirectly, of more than one Person, the common shares of all of which are
and have been so registered, the term "Principal Party" shall refer to
whichever of such Persons is the issuer of the common shares having the
greatest aggregate market value of shares outstanding, or (3) if such
Person is owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by the same
Person, the rules set forth in clauses (1) and (2) above shall apply to
each of the owners having an interest in the venture as if the Person owned
by the joint venture was a Subsidiary of both or all of such joint
venturers, and the Principal Party in each such case shall bear the
obligations set forth in this Section 13 in the same ratio as its interest
in such Person bears to the total of such interests.
(c) The Company shall not consummate any consolidation, merger, sale
or transfer referred to in Section 13(a) hereof unless prior thereto the
Company and
<PAGE>
13
the Principal Party involved therein shall have executed and delivered to
the Rights Agent an agreement confirming that the requirements of Sections
13(a) and (b) hereof shall promptly be performed in accordance with their
terms and that such consolidation, merger, sale or transfer of assets shall
not result in a default by the Principal Party under this Rights Agreement
as the same shall have been assumed by the Principal Party pursuant to
Sections 13(a) and (b) hereof and providing that, as soon as practicable
after executing such agreement pursuant to this Section 13, the Principal
Party will:
(i) prepare and file a registration statement under the
Securities Act, if necessary, with respect to the Rights and the
securities purchasable upon exercise of the Rights on an appropriate
form, use its best efforts to cause such registration statement to
become effective as soon as practicable after such filing and use its
best efforts to cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date, and similarly comply with
applicable state securities laws;
(ii) use its best efforts, if the common shares of the Principal
Party shall be listed or admitted to trading on a national securities
exchange or other trading market or transaction reporting system, to
list or admit to trading (or continue the listing of) the Rights and
the securities purchasable upon exercise of the Rights on such
securities exchange or other trading market or transaction reporting
system and, if the common shares of the Principal Party shall not be
listed or admitted to trading on a national securities exchange or
other trading market or transaction reporting system, to cause the
Rights and the securities purchasable upon exercise of the Rights to
be reported by another system then in use;
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with
the requirements for registration on Form 10 (or any successor form)
under the Exchange Act; and
(iv) obtain waivers of any rights of first refusal or preemptive
rights in respect of the common shares of the Principal Party subject
to purchase upon exercise of outstanding Rights.
(d) Furthermore, in case the Principal Party which is to be a party
to a transaction referred to in this Section 13 has provision in any of its
authorized securities or in its certificate of incorporation or by-laws or
other
<PAGE>
14
instrument governing its corporate affairs, which provision would have the
effect of (i) causing such Principal Party to issue (other than to holders
of Rights pursuant to this Section 13), in connection with, or as a
consequence of, the consummation of a transaction referred to in this
Section 13, common shares of such Principal Party at less than the then
current market price per share (determined pursuant to Section 11(d)
hereof) or securities exercisable for, or convertible into, common shares
of such Principal Party at less than such then current market price, or
(ii) providing for any special payment, tax or similar provisions in
connection with the issuance of the common shares of such Principal Party
pursuant to the provisions of Section 13, then, in such event, the Company
hereby agrees with each holder of Rights that it shall not consummate any
such transaction unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a supplemental
agreement providing that the provision in question of such Principal Party
shall have been cancelled, waived or amended, or that the authorized
securities shall be redeemed, so that the applicable provision will have no
effect in connection with, or as a consequence of, the consummation of the
proposed transaction.
(e) The Company covenants and agrees that it shall not, at any time
after a Person first becomes an Acquiring Person, enter into any
transaction of the type contemplated by (i) - (iii) of Section 13(a) hereof
if (x) at the time of or immediately after such consolidation, merger,
sale, transfer or other transaction there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights, (y) prior to, simultaneously with or immediately
after such consolidation, merger, sale, transfer of other transaction, the
stockholders of the Person who constitutes, or would constitute, the
"Principal Party" for purposes of Section 13(a) hereof shall have received
a distribution of Rights previously owned by such Person or any of its
Affiliates or Associates or (z) the form or nature of organization of the
Principal Party would preclude or limit the exercisability of the Rights.
14. Section 24(a) of the Rights Agreement is hereby amended by
replacing the phrase "at any time after the occurrence of a Trigger Event" in
the first sentence thereof with the phrase "at any time after a Person has
become an Acquiring Person."
15. Section 27 of the Rights Agreement is hereby amended in its
entirety to read as follows:
Section 27. SUPPLEMENTS AND AMENDMENTS. Except as provided in
the penultimate sentence of this Section 27,
<PAGE>
15
as long as the Rights are redeemable, the Company may in its sole and
absolute discretion, and the Rights Agent shall if the Company directs,
supplement or amend any provision of this Agreement in any respect without
the approval of holders of the Rights. Except as provided in the
penultimate sentence of this Section 27, when the Rights are no longer
redeemable the Company may, and the Rights Agent shall, if the Company
directs, supplement or amend this Agreement without the approval of the
holders of Rights Certificates in order to (a) cure any ambiguity, (b)
correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision contained herein, (c) shorten or
lengthen any time period hereunder or (d) change or supplement the
provisions herein in any manner which the Company may deem necessary or
desirable, provided that no supplement or amendment shall adversely affect
the interests of the holders of Rights as such (other than an Acquiring
Person or an Affiliate or Associate thereof), and no amendment may cause
the Rights to become redeemable again or cause this Agreement to become
amendable again other than in accordance with this sentence.
Notwithstanding anything contained in this Rights Agreement to the
contrary, no supplement or amendment shall change the Redemption Price.
Upon delivery to the Rights Agent of a certificate from an appropriate
officer of the Company which states that the supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall
execute the supplement or amendment.
16. Exhibit B to the Rights Agreement is hereby amended by
substituting for "August 31, 1998" in the legend at the top of the Rights
Certificate set forth therein and in the first sentence of such certificate
after such legend "February 11, 2004", which date is the amended Final
Expiration Date.
17. Defined terms used herein but not expressly defined herein have
the meanings set forth in the Rights Agreement.
18. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware and for all purposes shall be governed by
and construed in accordance with all laws of such State applicable to contracts
to be made and performed entirely within such State.
19. This Amendment may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute one and the same instrument.
20. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall
be entitled to
<PAGE>
16
all the privileges and immunities afforded to the Rights Agent under the terms
and conditions of the Rights Agreement.
21. If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment, and of the Rights Agreement, shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
Attest: FIBREBOARD CORPORATION
By: /s/ Donald F. McAleenan By: /s/ Garold E. Swan
------------------------- -----------------------------------
Garold E. Swan
Vice President and Controller
Attest: THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Karen Vann By: /S/ Geoffrey D. Anderson
------------------------- -----------------------------------
Geoffrey D. Anderson
Senior Account Manager
