EXHIBIT 4.9
AMENDMENT NO. 3
TO THE
AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDMENT NO. 3, dated as of June 4, 2002 (the "Amendment") to the
Amended and Restated Rights Agreement dated as of March 17, 1997 (the "Amended
and Restated Rights Agreement"), between MOTHERS WORK, INC., a Delaware
corporation (the "Company") and STOCKTRANS, INC. (the "Rights Agent").
WHEREAS, effective October 5, 1995 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company authorized and declared a
distribution of one right for each share of common stock, par value $.01 per
share, of the Company (the "Company Common Stock") outstanding at the Close of
Business on October 16, 1995 (the "Record Date"), and authorized the issuance of
one right (subject to adjustment) for each share of Company Common Stock issued
between the Record Date (whether originally issued or delivered from the
Company's treasury) and, except as otherwise provided in Section 22 of the
Rights Agreement, the Distribution Date, each right issued in respect of a share
of Company Common Stock ("Right") initially representing the right to purchase,
upon the terms and subject to the conditions hereinafter set forth, one Unit of
Series B Junior Participating Preferred Stock;
WHEREAS, on March 17, 1997, the Company entered into the Amended and
Restated Rights Agreement to amend the Rights Agreement dated as of October 9,
1995 (the "Rights Agreement") to, among other things, insert provisions relating
to an inadvertent triggering of the impact of the Rights, and to restate the
Rights Agreement, as thereby amended, in its entirety;
WHEREAS, on June 4, 1997 and October 24, 2001, respectively, the Company
and the Rights Agent entered into amendments No. 1 and No. 2 to the Amended and
Restated Rights Agreement;
WHEREAS, the Company desires to further amend the Amended and Restated
Rights Agreement to increase the number of Company Common Shares that may be
beneficially owned by the Meridian Group, an Exempt Person, provided that the
Meridian Group shall immediately and thereafter cease to be an Exempt Person if
it, individually or together with its Affiliates or Associates, acquires
additional shares resulting in its aggregate beneficial ownership of Company
Common Stock to exceed the number of shares of Company Common Stock beneficially
owned by it on the close of business on June 3, 2002; to add a new provision
related to beneficial ownership in order to exclude, under certain
circumstances, any deemed attribution of beneficial ownership between a specific
individual and the Meridian Group; to amend the definition of "Independent
Director" in Section 1(l) thereof; and to amend the definition of "Meridian
Group" in Section 1(o) thereof.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. Section 1, paragraph (c) of the Amended and Restated Agreement
is amended to read in its entirety as follows:
(c) A Person shall be deemed the "Beneficial Owner" of, and shall be deemed
to "beneficially own," any securities:
(i) of which such Person or any of such Person's Affiliates or
Associates is considered to be a "beneficial owner" under Rule 13d-3 of the
General Rules and Regulations under the Exchange Act (the "Exchange Act
Regulations") as in effect on the date hereof; provided, however, that a Person
shall not be deemed the "Beneficial Owner" of, or to "beneficially own", any
securities under this subparagraph (i) as a result of an agreement, arrangement
or understanding to vote such securities if such agreement, arrangement or
understanding (A) arises solely from a revocable proxy given in response to a
proxy or consent solicitation made pursuant to, and in accordance with, the
applicable provisions of the Exchange Act and the Exchange Act Regulations and
(B) is not reportable by such Person on Schedule 13D under the Exchange Act (or
any comparable or successor report);
(ii) which are beneficially owned, directly or indirectly, by any other
Person (or any Affiliate or Associate of such other Person) with which such
Person (or any of such Person's Affiliates or Associates) has any agreement,
arrangement or understanding (whether or not in writing), for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy as described in
the proviso to subparagraph (i) of this paragraph (c) of Section 1) or disposing
of such securities; or
(iii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether such right
is exercisable immediately or only after the passage of time or upon the
satisfaction of conditions) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or otherwise; provided,
however, that under this paragraph (c) a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own", (A) securities tendered
pursuant to a tender or exchange offer made in accordance with Exchange Act
Regulations by such Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for purchase or exchange, (B)
securities that may be issued upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C) securities that may be issued upon
exercise of Rights from and after the occurrence of a Triggering Event, which
Rights were acquired by such Person or any of such Person's Affiliates or
Associates prior to the Distribution Date or pursuant to Section 3(c) or Section
22 (the "Original Rights") or pursuant to Section 11(i) in connection with an
adjustment made with respect to any Original Rights.
PROVIDED, HOWEVER, any of the foregoing to the contrary notwithstanding, (x) a
certain individual, Xxxxxx Xxxxx ("Xxxxx," an individual who has served as a
general partner of certain entities within the Meridian Group), shall not be
deemed to beneficially own shares of Company Common Stock beneficially owned by
the Meridian Group during such time as it remains an Exempt Person, and (y) the
Meridian Group shall not be deemed to beneficially own any shares beneficially
owned by Xxxxx at any time during which this Amended and Restated Rights
Agreement is in effect, so long as Xxxxx shall not be the beneficial owner of
10% or more of the
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Company Common Stock then outstanding, provided, in the case of each of
clause (x) and clause (y), neither Xxxxx nor the Meridian Group acquires or
holds beneficial ownership of any shares of Company Common Stock for the purpose
or with the effect of changing or influencing control of the Company, or
participates in any transaction (other than a transaction approved by the Board
of Directors of the Company) having such purpose or effect.
SECTION 2. Section 1, paragraph (j) of the Amended and Restated Rights
Agreement is amended to read in its entirety as follows:
(j) "Exempt Person" means:
(i) the Company, any Subsidiary of the Company, any employee benefit
plan or employee stock plan of the Company or of any Subsidiary of the Company,
or any person or entity organized, appointed, established or holding Company
Common Stock for or pursuant to the terms of any such plan;
(ii) any member of the Matthias Group, any member of the Mass Financial
Group, or any member of the Crown Group; PROVIDED, HOWEVER, that all the members
of the Mass Financial Group or the Crown Group, as applicable, shall immediately
and thereafter cease to be an Exempt Person if the members of such group shall
acquire, at any time after the Rights Dividend Declaration Date, additional
shares resulting in an increase in such group's aggregate beneficial ownership
of Company Common Stock from time to time outstanding by more than 46,833 shares
of Company Common Stock; and PROVIDED, FURTHER, that all members of the Matthias
Group shall immediately and thereafter cease to be an Exempt Person if such
group at any time shall acquire additional shares resulting in an increase in
its aggregate beneficial ownership of Company Common Stock from time to time
outstanding, except for increases resulting from the future issuance to such
members of options hereafter issued by the Company, or by inheritance or laws of
descent;
(iii) any member of the Meridian Group, PROVIDED, HOWEVER, that all
members of the Meridian Group shall immediately and thereafter cease to be an
Exempt Person if the members of such group shall acquire, at any time after the
Rights Dividend Declaration Date, additional shares resulting in such group's
aggregate beneficial ownership of Company Common Stock to exceed the aggregate
number of shares of Company Common Stock held by such group on the close of
business on June 3, 2002 (such aggregate number of shares to be appropriately
adjusted for a dividend or distribution on Company Common Shares payable in such
shares or securities convertible into such shares (other than the Rights) or for
any subdivision, combination or reclassification of such Company Common Stock;
(iv) Xxxxxx Xxxxxxx Inc. ("Xxxxxxx"); PROVIDED, HOWEVER, that Xxxxxxx
shall immediately and thereafter cease to be an Exempt Person if it,
individually or together with its Affiliates or Associates, shall acquire, at
any time after May 22, 1997, additional shares resulting in an increase in its
aggregate beneficial ownership of Company Common Stock from time to time
outstanding by more than 46,833;
(v) Centre Capital Investors III, L.P. ("Centre Capital"), Centre
Capital Individual Investors III, L.P. ("Centre Individual"), Centre Capital
Offshore Investors III,
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L.P. ("Centre Offshore"), Centre Capital Tax-Exempt Investors III, L.P.
("Centre Tax-Exempt") and Centre Partners Coinvestment III, L.P. ("Centre
Coinvestment" and Centre Coinvestment, Centre Capital, Centre Individual, Centre
Offshore, Centre Tax-Exempt, Centre Partners Management, LLC and their
Affiliates are sometimes collectively referred to herein as "Centre Partners")
insofar as Centre Partners (or any of them) acquires the Series C Shares,
acquires up to 400,000 shares of Company Common Stock pursuant to the Purchase
Right during the Open Market Purchase Period (the "Open Market Shares"),
acquires up to 175,000 shares of Company Common Stock upon exercise of a certain
Warrant(s) dated October 17, 2001 issued to Centre Partners (the "Warrant
Shares") and acquires up to 193,229 shares of Company Common Stock issued upon
exercise of the Conversion Right (the "Conversion Shares"); PROVIDED, HOWEVER,
that Centre Partners and all of its officers, directors, employees and
Affiliates shall immediately and thereafter cease to be an Exempt Person if it,
individually or together with its Affiliates or Associates, shall acquire, at
any time hereafter, additional shares of Common Stock other than the Series C
Shares, the Open Market Shares, the Warrant Shares and the Conversion Shares
which acquisition results in Centre Partners' aggregate beneficial ownership of
Company Common Stock then outstanding equaling or exceeding 10%; and
(vi) any Person who would otherwise become an Acquiring Person solely by
virtue of a reduction in the number of outstanding shares of Company Common
Stock; PROVIDED, HOWEVER, that such Person shall not be an Exempt Person if,
subsequent to such reduction, such Person shall become the Beneficial Owner of
any additional shares of Company Common Stock.
SECTION 3. Section 1, paragraph (l) of the Amended and Restated Rights
Agreement is amended to read in its entirety as follows:
(l) "Independent Director" means a member of the Board of Directors of the
Company who is not an officer or employee of the Company, and who is not an
Acquiring Person or an Affiliate or Associate of an Acquiring Person or a
representative of an Acquiring Person or of any such Affiliate or Associate.
SECTION 4. Section 1, paragraph (o) of the Amended and Restated Rights
Agreement is amended to read in its entirety as follows:
(o) "Meridian Group" means Meridian Venture Partners and MVP Distribution
Partners, or any Affiliate or Associate of either of them, but shall expressly
exclude Xxxxx.
SECTION 5. The first two paragraphs and the eighth paragraph of the form of
Summary of Rights set forth in Exhibit C attached to the Amended and Restated
Rights Agreement are hereby amended to read in their entirety as set forth in
Exhibit C.3 attached hereto.
SECTION 6. The terms "Agreement" and "Rights Agreement" as used in the
Amended and Restated Rights Agreement shall be deemed to refer to the Amended
and Restated Rights Agreement as amended hereby. This Amendment shall be
effective as of the date hereof
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and, except as set forth herein, the Amended and Restated Rights Agreement
shall remain in full force and effect and be otherwise unaffected hereby.
SECTION 7. This Amendment may be executed (including by facsimile) in one
or more counterparts and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original, but
all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the date first above written.
ATTEST: MOTHERS WORK, INC.
By: /s/ XXX X. XXXXXXXX By: /s/ XXXXXXX X. XXXXXXXX
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Xxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx
Secretary President
ATTEST: STOCKTRANS, INC.
By: /s/ XXXX XXXXXX By: /s/ XXXXXXXX XXXXXX
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Xxxx Xxxxxx Xxxxxxxx Xxxxxx
Vice-President President
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