AMENDMENT NO. 3 TO RIGHTS AGREEMENT
EXHIBIT
10.1
AMENDMENT
NO. 3
TO
THIS
AMENDMENT NO. 3 (this "Amendment")
to the Rights Agreement, dated as of March 12, 2000, as amended on
September 5, 2007 and December 21, 2007 (the "Rights
Agreement"), by and between CPI Corp., a Delaware corporation (the "Company"),
and Computershare Trust Company, N.A., a federally chartered trust company, as
successor rights agent to Xxxxxx Trust and Savings Bank (the "Rights Agent"),
is made and entered into as of March 12, 2010.
WHEREAS,
the Board of Directors of the Company has deemed it advisable and in the best
interests of the Company and its stockholders to extend the Final Expiration
Date of the Rights Agreement for three years; and
WHEREAS,
the Board of Directors of the Company has authorized the amendment and
restatement of certain provisions of the Rights Agreement as described
below;
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound, the parties
hereto agree as follows:
1. Amendment
of Definition of Beneficial Owner. Section 1(c) of the Rights
Agreement is hereby amended to replace the period of the end of Section 1(c)(iv)
and add “; or” followed by a new subsection (v) to be and read in its entirety
as follows:
“(v) That
are the subject of a derivative transaction entered into by such Person (or any
Affiliate or Associate of such Person), which gives such Person (or such
Affiliate or Associate of such Person) the economic equivalent of ownership of
an amount of such securities due to the fact that the value of the derivative is
explicitly determined by reference to the price or value of such securities,
without regard to whether (a) such derivative conveys any voting rights in such
securities to such Person (or such Affiliate or Associate of such Person), (b)
the derivative is required to be, or capable of being, settled through delivery
of such securities, or (c) such Person (or such Affiliate or Associate of such
Person) may have entered into other transactions that hedge the economic effect
of such derivative.
Notwithstanding
anything in this definition of Beneficial Ownership to the contrary, 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 that such Person would be deemed to Beneficially
Own hereunder. In determining the number of Common Shares deemed
Beneficially Owned by virtue of subparagraph (iv) of this paragraph (c), the
subject Person shall be deemed to Beneficially Own (without duplication) the
number of Common Shares that are synthetically owned pursuant to such derivative
securities.”
2. Deletion
of Definition of Exempt Person and Related Terms. Sections
1(o) “Exempt Person”, 1(p) “Excess Shares”, 1(q) “Knightspoint Group” and 1(r)
“Pro Rata Shares” of the Rights Agreement are hereby deleted in their
entirety.
3. Amendment of Section
2. Section 2 of the Rights Agreement is hereby amended to
delete the following language “and the holders of the Rights (who, in accordance
with Section 3 hereof, shall prior to the Distribution Date also be the holders
of the Common Shares)”.
4. Termination
Date. Section 7(a)(i) of the Rights Agreement is hereby
amended to define the Final Termination Date to be March 13, 2013.
5. Amendment
of Section 21. Section 21 of the Rights Agreement is hereby
amended:
(a) to
insert the following language “in the event that the Rights Agent or one of its
Affiliates is not also the transfer agent
for the Company” immediately
before the word “to” and after the word “and” in the first sentence
thereof;
(b) to delete
the following language “, and to the holders of the Rights Certificates by
first-class mail” in the first sentence thereof; and
(c) to
replace “100,000,000” with “$50,000,000” and insert “individually or
combined with an Affiliate” immediately thereafter.
6. Amendment of Section
26. Section 26 of the Rights Agreement is hereby amended to
insert “overnight delivery service or” immediately before the word “first-class”
and after the word “by” in the first two sentences thereof.
7. Elimination
of Exhibit D. The Rights Agreement is hereby amended to delete
Exhibit D in its entirety.
8. No
Further Amendments. Except as expressly amended pursuant to
Sections 1 through 7 hereof, the remaining provisions of the Rights Agreement
shall remain in full force and effect in accordance with their
terms.
9. Counterparts;
Facsimile Signatures. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument. This Amendment may be executed by
electronic or facsimile signature, and an electronic or facsimile signature
shall constitute an original for all purposes.
10. Miscellaneous. Capitalized
terms used but not defined herein shall have the respective meanings assigned to
them in the Rights Agreement.
[Signature
page follows.]
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IN
WITNESS WHEREOF, the Company and the Rights Agent have caused this Amendment to
the Rights Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
The "Company":
| CPI CORP. | |||
|
|
By:
|
/s/Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |||
| Title: Chief Executive Officer/President | |||
The "Rights Agent":
| COMPUTERSHARE TRUST COMPANY, N.A. | |||
|
|
By:
|
/s/Xxxxxx X. Xxxxxx | |
| Name: Xxxxxx X. Xxxxxx | |||
| Title: Manager, Contract Administration | |||
