EXHIBIT 4-A-1
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FIRST AMENDMENT TO
AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDMENT, dated as of December 6, 2001, to the Amended and
Restated Rights Agreement dated as of April 13, 2000 (the "Rights Agreement"),
among Hartmarx Corporation, a Delaware corporation (the "Company") and First
Chicago Trust Company of New York, a New York corporation, as Rights Agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent have entered into the
Rights Agreement; and
WHEREAS, the Company wishes to amend the Rights Agreement; and
WHEREAS, the Company desires to appoint a EquiServe Trust Company,
N.A. as successor Rights Agent; and
WHEREAS, the Section 26 of the Rights Agreement provides, among
other things, that prior to the Distribution Date (as such term is defined in
the Rights Agreement) the Company and the Rights Agent shall, if the Company so
directs, supplement or amend any provisions of the Rights Agreement without the
approval of any holders of certificates representing shares of the Company
common stock.
NOW THEREFORE, the Company and the Rights Agent hereby amend the
Rights Agreement as follows:
1. Section 21 of the Rights Agreement is deleted and restated
to read in its entirety as follows:
Section 21. Change of Rights Agent. The Rights Agent or
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any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty (30) days' notice in
writing mailed to the Company, and to each transfer agent of the
Common Stock and Preferred Stock, by registered or certified mail,
and to the holders of the Rights Certificates by first-class mail.
The Company may remove the Rights Agent or any successor Rights
Agent upon thirty (30) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock and Preferred Stock, by
registered or certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of
thirty (30) days after giving notice of such removal or after it
has been notified in writing of such resignation or incapacity by
the resigning or incapacitated
Rights Agent or by the holder of a Rights Certificate (who shall,
with such notice, submit his Rights Certificate for inspection by
the Company), then any registered holder of any Rights Certificate
may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the
United States, in good standing, which is authorized under such
laws to exercise corporate trust or stock transfer powers and is
subject to supervision or examination by federal or state
authority and which has individually or combined with an affiliate
at the time of its appointment as Rights Agent a combined capital
and surplus of at least $100,000,000. After appointment, the
successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than
the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent and
each transfer agent of the Common Stock and the Preferred Stock,
and mail a notice thereof in writing to the registered holders of
the Rights Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
2. The Company hereby appoints EquiServe Trust Company, N.A., as
Rights Agent, and EquiServe Trust Company, N.A. hereby accepts said appointment
as Rights Agent.
3. Section 25 of the Rights Agreement is hereby amended by
deleting the notice address for the Rights Agent and substituting the following
therefor:
EquiServe Trust Company, N.A.
Xxx Xxxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
4. The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended hereby.
5. The foregoing amendments shall be effective as of the date
hereof, and except as et forth herein, the Rights Agreement shall remain in full
force and effect and in accordance with its terms.
6. This Amendment may be executed in any number of counterparts,
each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and attested as of the day and year first above written.
HARTMARX CORPORATION
Attest:
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx
Title: Secretary Title: Executive Vice President
and Chief Financial Officer
FIRST CHICAGO TRUST
Attest: COMPANY OF NEW YORK
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 Acct. Manager
EQUISERVE TRUST
Attest: COMPANY, N.A.
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 Acct. Manager
