FIRST AMENDMENT TO SHAREHOLDER PROTECTION RIGHTS AGREEMENT
Exhibit 4.1
EXECUTION COPY
FIRST AMENDMENT TO SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO SHAREHOLDER PROTECTION RIGHTS AGREEMENT (“Amendment”), dated
as of the 16th day of August, 2007, by and between RARE HOSPITALITY INTERNATIONAL, INC., a Georgia
corporation (the “Company”), and COMPUTERSHARE TRUST COMPANY, N.A. as successor to SunTrust
Bank, Atlanta (the “Rights Agent”), constitutes the First Amendment to the Shareholder
Protection Rights Agreement, dated as of November 4, 1997, by and between the Company and SunTrust
Bank, Atlanta (the “Rights Agreement”). Capitalized terms used herein and not otherwise
defined shall have the respective meanings ascribed to such terms in the Rights Agreement.
WHEREAS, the Company, Surf & Turf Merger Corp., a Georgia corporation, and a wholly-owned
subsidiary of Parent (as defined herein) (“Merger Sub”) and Xxxxxx Restaurants, Inc., a
Florida corporation (“Parent”) have proposed to enter into an Agreement and Plan of Merger
to be dated as of the date hereof (the “Merger Agreement”);
WHEREAS, the Company desires to amend the Rights Agreement to render it inapplicable to the
purchase by Merger Sub of shares of Common Stock pursuant to the Offer, (as defined in the Merger
Agreement), the Merger (as defined in the Merger Agreement) and the other transactions contemplated
by the Merger Agreement;
WHEREAS, the Company deems the Amendment to be necessary and desirable and in the best
interests of the holders of the Rights and has duly approved this Amendment;
WHEREAS, no Flip-In Date has occurred; and
WHEREAS, Section 5.4 of the Rights Agreement permits the Company and the Rights Agent, at any
time prior to the close of business on the Flip-In Date, to amend the Rights Agreement in any
respect without the approval of the holders of Rights.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. The Rights Agreement is hereby amended by:
(a) Adding the following sentence at the end of the definition of “Acquiring Person” in
Section 1.1 of the Rights Agreement:
“Notwithstanding any of the terms of the foregoing definition, neither Xxxxxx Restaurants,
Inc., a Florida corporation (“Parent”), nor Surf & Turf Merger Corp., a Georgia corporation
and a wholly-owned subsidiary of Parent (“Merger Sub”), nor any Affiliate or Associate of
Parent or Merger Sub, shall be or become an “Acquiring Person” as a result of (i) the
execution, delivery, or performance of the Agreement and Plan of Merger (as may be amended
from time to time, the “Merger Agreement”), dated as of August 16, 2007, by and among
Parent, Merger Sub, and the Company, (ii) the public
announcement (A) of such execution, delivery or performance of the Merger Agreement, or (B)
of the commencement of the Offer (as defined in the Merger Agreement), or (C) of the Merger
(as defined in the Merger Agreement), or (D) of the other transactions contemplated by the
Merger Agreement or (iii) the consummation of the Offer or the Merger or of the other
transactions contemplated by the Merger Agreement.”
(b) Deleting the definition of “Expiration Time” in Section 1.1 of the Rights Agreement in its
entirety, and inserting the following:
“Expiration Time” shall mean the earliest of (i) the Exchange Time, (ii) the Redemption
Time, (iii) the close of business on May 31, 2008, (iv) the time of a merger of the Company
into another corporation pursuant to an agreement entered into prior to a Flip-In Date, and
(v) the time immediately prior to the Appointment Time (as defined in the Merger
Agreement).”
(c) Adding the following sentence at the end of the definition of “Separation Time” in Section
1.1 of the Rights Agreement:
“Notwithstanding any of the terms of the foregoing definition, no “Separation Time” will
occur as a result of (i) the execution, delivery or performance of the Merger Agreement,
(ii) the public announcement (A) of such execution, delivery or performance of the Merger
Agreement, or (B) of the commencement of the Offer (as defined in the Merger Agreement), or
(C) of the Merger (as defined in the Merger Agreement), or (D) of the other transactions
contemplated by the Merger Agreement or (iii) the consummation of the Offer or the Merger or
of the other transactions contemplated by the Merger Agreement.”
(d) Adding the following sentence at the end of the definition of “Stock Acquisition Date” in
Section 1.1 of the Rights Agreement:
“Notwithstanding any of the terms of the foregoing definition, no “Stock Acquisition Date”
will occur as a result of (i) the execution, delivery or performance of the Merger
Agreement, (ii) the public announcement (A) of such execution, delivery or performance of
the Merger Agreement, or (B) of the commencement of the Offer (as defined in the Merger
Agreement), or (C) of the Merger (as defined in the Merger Agreement), or (D) of the other
transactions contemplated by the Merger Agreement or (iii) the consummation of the Offer or
the Merger or of the other transactions contemplated by the Merger Agreement.”
(e) Adding the following sentence after the second sentence of
Section 4.4 of
the Rights Agreement:
“In the event the transfer agency relationship in effect between the Company and the
Rights Agent terminates, the Rights Agent will be deemed to resign automatically on the
effective date of such termination; and any required notice will be sent by the Company.”
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(f) Deleting the Rights Agent notice information in Section 5.9 of
the Rights
Agreement in its entirety and inserting the following:
Computershare Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Services
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Services
(g) Adding the following new Section 5.19 to the Rights Agreement:
“Force Majeure. Notwithstanding anything to the contrary contained herein, the
Rights Agent shall not be liable for any delays or failures in performance resulting from
acts beyond its reasonable control including, without limitation, acts of God, terrorist
acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of
computer facilities, or loss of data due to power failures or mechanical difficulties with
information storage or retrieval systems, labor difficulties, war, or civil unrest.”
(g) Adding the following language to the end of Section 5.16 of the Rights Agreement:
“except that the rights, duties and obligations of the Rights Agent shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts.”
2. The term “Agreement” as used in the Rights Agreement shall mean the Rights Agreement, as
amended by this Amendment, or as it may from time to time be amended in the future by one or more
other written amendment or modification agreements entered into pursuant to the applicable
provisions of the Rights Agreement.
3. This Amendment shall constitute a certificate from the Company that this Amendment
satisfies the terms of the first sentence of Section 5.4 of the Rights Agreement.
4. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and assigns.
5. This Amendment shall be governed by and construed and enforced in accordance with the laws
of the State of Georgia applicable to contracts made and to be performed entirely within such
State.
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6. Except as expressly herein amended, the terms and conditions of the Rights Agreement shall
remain in full force and effect.
[signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Shareholder
Protection Rights Agreement to be duly executed as of the date first above written.
| COMPANY: RARE HOSPITALITY INTERNATIONAL, INC. |
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| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxx, Xx. | |||
| Its: | Chief Executive Officer | |||
| RIGHTS AGENT: COMPUTERSHARE TRUST COMPANY, N.A. |
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| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Its: | Managing Director | |||
