AMENDMENT NO. 3 TO THE
STOCKHOLDER RIGHTS AGREEMENT
The
Stockholder Rights Agreement , made and entered into as of
July 13, 2004, by and between The Greenbrier Companies, Inc.,
an Oregon corporation (the “Company”), and
Computershare Trust Co., N.A. (formerly EquiServe Trust Company,
N.A.), a national banking association, organized and existing under
the laws of the United States (the “Rights Agent”), as
amended by Amendment No. 1 to Rights Agreement, dated as of
November 9, 2004, and Amendment No. 2, dated as of
February 5, 2005 (collectively, the “Agreement”),
is hereby amended by this Amendment No. 3 to the Stockholder
Rights Agreement, dated as of June 10, 2009 (the
“Amendment”). Capitalized terms not otherwise defined
herein shall have the meanings assigned to those terms as set forth
in the Agreement.
WHEREAS , pursuant to Section 27 of the Agreement the
Company may, prior to the Distribution Date, supplement or amend
the Agreement without the approval of any holders of Rights or
Common Shares to make any provisions with respect to the Rights
which the Board of Directors of the Company may deem necessary or
desirable.
WHEREAS , as of the date of this Amendment, a Distribution
Date has not occurred.
NOW, THEREFORE , the parties agree as follows:
1. Section 1(a) of
the Agreement is hereby amended and restated in its entirety as
follows:
(a) (x)
“Acquiring Person” shall mean any Person (as defined)
who shall be the Beneficial Owner (as defined) of 12 percent
or more of the Common Shares of the Company then outstanding,
subject to the exceptions stated in this Section 1(a). An
Acquiring Person shall not include (i) the Company, any
Subsidiary of the Company, any employee benefit plan
(“Plan”) of the Company or of a Subsidiary of the
Company, or any Person holding Common Shares for or pursuant to the
terms of any such Plan or (ii) any Person who as of the Record
Date is the Beneficial Owner of 12 percent or more of the
Common Shares then outstanding (such Persons shall be hereinafter
referred to individually as a “Grandfathered
Stockholder” and such Beneficial Ownership percentage of each
Grandfathered Stockholder as of the Record Date shall be referred
to as such stockholder’s “Grandfathered
Percentage”), unless and until such Person shall thereafter
acquire Beneficial Ownership of additional Common Shares (other
than an acquisition of the Common Shares as a result of a stock
dividend, stock split or similar transaction effected by the
Company in which all holders of Common Shares are treated equally),
at which time such Person shall be deemed to be an Acquiring
Person.
(y)
Notwithstanding Section 1(a)(x), Invesco Private Capital Inc.
(“IPC”), WL Ross & Co. LLC (“WLRCo.”),
WLR Recovery Fund IV, L.P. (“WLR-IV”), WLR IV Parallel
ESC, L.P. (“Parallel Employee Fund”), Wilbur L.
Ross,
Jr., his
successor as Chairman or Chief Executive Officer of IPC or WLRCo.
and any other director or officer of IPC or WLRCo. (other than any
such director or officer who does not control the investment
decision-making process of IPC or WLRCo. or any of the respective
controlled Affiliates of IPC and WLRCo.) and the respective
controlled Affiliates of any of the foregoing (including any
limited partnership or other entity for which any such Person is
the general partner, managing member or investment advisor), but
excluding any portfolio company (which, for purposes hereof, shall
mean a company that meets each of the following requirements:
(i) one of the foregoing Persons which has as its principal
business the making and holding of investments owns a significant
equity interest in such company as an investment; (ii) such
company is actively engaged in a trade or business; and
(iii) such company is neither an investment company as defined
in Section 3 [15 USCS Section 80a-3] (other than a small
business investment company which is licensed by the Small Business
Administration to operate under the Small Business Investment Act
of 1958 and which is a wholly owned subsidiary of the business
development company) nor a company which is an investment company
or would be an investment company except for the exclusion from the
definition of investment company in Section 3(c) [15 USCS
Section 80a-3(c)]) (such portfolio companies, collectively,
“Excluded Portfolio Companies” (provision for which is
made in Section 1(a)(z)(F) hereof), and the foregoing Persons,
other than Excluded Portfolio Companies, the “WLR
Group”) shall not be an “Acquiring Person”
pursuant to this Section 1(a) for so long as the WLR Group shall be
the Beneficial Owner of Common Shares of the Company representing,
in the aggregate, not more than 19.9 percent of the Common Shares
of the Company then outstanding (such Beneficial Ownership
percentage of the WLR Group shall be referred to as the “WLR
Grandfathered Percentage”) unless and until the WLR Group
shall thereafter acquire Beneficial Ownership of Common Shares in
excess of the WLR Grandfathered Percentage, other than pursuant to
an acquisition of the Common Shares as a result of a stock
dividend, stock split or similar transaction effected by the
Company in which all holders of Common Shares are treated equally,
at which time the WLR Group shall be deemed to be an Acquiring
Person; provided, that, notwithstanding any other provision
hereof:
(A) the
WLR Grandfathered Percentage shall be reduced upon any transfer or
disposition of any kind by the WLR Group to any Person that is not
a member of the WLR Group of Common Shares issued or issuable to
the WLR Group upon exercise of the rights to purchase Common Shares
(or securities into which Common Shares may be converted or
exchanged) pursuant to the Warrant Agreement, dated June 10,
2009, among the Company, WLR-IV and Parallel Employee Fund (as
amended from time to time, the “Warrant”), by
subtracting from the WLR Grandfathered Percentage the percentage
determined by the quotient (1) the numerator of which is the
number of Common Shares issued or issuable to the WLR Group upon
exercise of the Warrant that were so transferred or disposed
of
2
by the WLR
Group and (2) the denominator of which is the number of the
Common Shares of the Company then outstanding, in the case of each
of clauses (1) and (2), immediately after such shares are so
transferred or disposed (the “Reduced WLR Grandfathered
Percentage”);
(B) the
WLR Group shall not be an Acquiring Person under this Agreement by
virtue of its Beneficial Ownership of Common Shares exceeding the
WLR Grandfathered Percentage or
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