The short answer is that because both measures do different things, the combination of both the Section 382 Rights Plan and NOL Charter Amendment is considered the most effective way to protect the loss corporations tax attributes. Stated another way, neither measure is a complete solution
For example, a NOL Charter Amendment will typically restrict transfers of stock issued before the adoption, as well as transfers of stock issued thereafter. However, these restrictions may not prevent all transfers that could results in an “ownership change”.
Delaware law provides that, with respect to shares of common stock issued before the effectiveness of the Charter Amendment, the transfer restrictions in the Charter Amendment are effective against (1) stockholders with respect to all shares that were voted in favor of the Charter Amendment and (2) transferees of Restricted Shares if (A) the transfer restriction is conspicuously noted on the certificates or book entry records representing such shares or (B) the transferee had actual knowledge of the transfer restrictions (even absent such conspicuous notation). Any shares of common stock issued after the effectiveness of the Charter Amendment have been, or will be, issued with the transfer restriction conspicuously noted on the certificates or book entry record representing such shares and therefore under Delaware law such shares are subject to the transfer restrictions in the Charter Amendment.
Therefore, shares that were not voted “For” approval/re-approval of the NOL Charter Amendment are not subject to the transfer restrictions, which is why the Section 382 Rights Plan is also necessary.
As to those shares, the Section 382 Rights Plan will continue to apply to deter any person, entity, or group from acquiring the prohibited amount of stock without the approval of the loss corporation’s Board of Directors.
Therefore, the Section 382 Rights Plan does complement the NOL Charter Amendment.