EXHIBIT 4.1
SECOND AMENDMENT TO
AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDMENT made and entered into as of the 25th day of September 2003,
by and between Hartmarx Corporation, a Delaware corporation (the "Company"),
and EquiServe Trust Company, N.A., as rights agent (the "Rights Agent") under
the Amended and Restated Rights Agreement, dated as of April 13, 2000, by and
between the Company and the Rights Agent, as amended (the "Rights Agreement").
WHEREAS, the Company and the Rights Agent have heretofore executed
and entered into the Rights Agreement; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
may from time to time prior to the Distribution Date (as defined in the Rights
Agreement) supplement or amend the Rights Agreement in accordance with the
provisions of Section 26 thereof; and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement.
NOW THEREFORE, the Company and the Rights Agent hereby amend the
Rights Agreement as follows:
A. Paragraph (a) of Section 7 of the Agreement is hereby amended by
deleting paragraph (a) in its entirety and substituting therefore a new
paragraph (a) as follows:
(a) Subject to Section 7(e) hereof, the registered holder of
any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation,
the restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with
respect to the total number of one one-thousandths of a share (or
other securities, cash or other assets, as the case may be) as to
which such surrendered Rights are then exercisable, at or prior to
the earliest of (i) the close of business on January 31, 2006, (the
"Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof or (iii) the close of
business on the first Trading Day after the closing price of the
Common Stock as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the shares of Common
Stock are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock are
listed or admitted to trading exceeded the Book Value per Share (as
defined below) for 60 consecutive calendar days (the earlier of (i),
(ii) and (iii) being herein referred to as the "Expiration Date").
The term "Book Value per Share" means on any date the total
shareholders' equity of the Company as reported in the Company's most
recent periodic report filed with the United States Securities and
Exchange Commission divided by the total number of shares of Common
Stock issued and outstanding stated in such report.
B. This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state.
C. This Amendment may be executed in any number of counterparts, each
of which shall for all purposes be deemed an original, and all of which
together shall constitute but one and the same instrument.
D. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the
Rights Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force and affect.
[Signatures appear on immediately following page]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
Attest: HARTMARX CORPORATION
By /s/ XXXXX X. XXXXXXX By /s/ XXXXX X. XXXXXX
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Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxx, Executive Vice
Secretary President and Chief Financial
Officer
Attest: EQUISERVE TRUST
COMPANY, N.A.,
As Rights Agent
By /s/ XXXXXX XXXXX By /s/ XXXX X. XXXXXX
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Name: Xxxxxx Xxxxx Name: Xxxx X. Xxxxxx
Title: Account Manager Title: Senior Account Manager
