Exhibit 4
AMENDMENT TO RIGHTS AGREEMENT
This Amendment dated as of June 2, 2006, effective as of June 5, 2006 (the
"Effective Date"), is by and between Xxxxxx Restaurants, Inc. (the "Company"),
Wachovia Bank, National Association ("Wachovia"), and Xxxxx Fargo Bank, National
Association ("Xxxxx"), and amends that certain Rights Agreement between the
Corporation and Wachovia dated as of May 16, 2005 (the "Rights Agreement"). All
capitalized terms used herein but not defined shall have the meanings assigned
to such terms in the Rights Agreement.
WHEREAS, Wachovia has resigned and been removed as Rights Agent, and Xxxxx
has been appointed as successor Rights Agent, pursuant to the terms of Section
21 of the Rights Agreement, effective as of the Effective Date;
NOW THEREFORE, in consideration of the mutual agreements set forth in this
Agreement, the parties hereto, intending to be legally bound, agree as follows:
1. Resignation of Rights Agent and Appointment of Successor. The
resignation and removal of Wachovia and appointment of Xxxxx as Rights Agent
under the Rights Agreement, effective the Effective Date, is ratified, approved
and confirmed.
2. Amendment of Rights Agreement. The Rights Agreement shall be amended,
effective the Effective Date, as follows:
a. Any reference in the Rights Agreement to the "Rights Agent" shall
be deemed to be a reference to Xxxxx Fargo Bank, National Association.
b. Section 8 of the Rights Agreement shall be amended by adding the
following text at the end thereof:
"Notwithstanding the foregoing, the Rights Agent shall be permitted, in lieu of
delivery of physical cancelled Right Certificates, and subject to applicable law
and regulation, to maintain in a retrievable database electronic records of all
cancelled or destroyed Right Certificates which have been canceled or destroyed
by the Rights Agent. The Rights Agent shall maintain such electronic records or
physical records for the time period required by applicable law and regulation.
Upon written request of the Company (and at the expense of the Company), the
Rights Agent shall provide to the Company or its designee copies of such
electronic records or physical records relating to the Right Certificates
cancelled or destroyed by the Rights Agent."
c. The second sentence of Section 21 of the Rights Agreement shall be
amended to delete the phrase "30 days'", so the sentence shall read in its
entirety as follows: "The Company may remove the Rights Agent or any successor
Rights Agent upon 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
Shares or Preferred Shares by registered or certified mail, and to the holders
of the Right Certificates by first-class mail."
d. The fifth sentence of Section 21 of the Rights Agreement shall be
amended to delete the phrase "having an office in the State of New York," so the
sentence shall read in its entirety as follows: "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 or of the State
of New York (or of any other state of the United States so long as such
corporation is authorized to do business as a banking institution in the State
of New York), 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 at the time of its
appointment as Rights Agent a combined capital and surplus of at least $50
million."
e. Section 26 of the Rights Agreement shall be amended to delete the
reference to Wachovia Bank, National Association, and its mailing address, and
replacing it with the following:
Xxxxx Fargo Bank, National Association
000 X. Xxxxxxx Xxxxxxxx
Xxxxx Xx. Xxxx, XX 00000
f. On the form of Right Certificate attached as Exhibit B to the
Rights Agreement, each reference to Wachovia Bank, National Association shall
instead be a reference to "Xxxxx Fargo Bank, National Association," and on the
Form of Assignment and Form of Election to Purchase attached thereto, the
heading "Signature Guaranteed:" shall be amended to read: "Signature Medallion
Guaranteed:".
3. Rights Agreement Remains in Effect. Except as amended hereby, all terms
and provisions of the Rights Agreement as in effect on the date hereof are
hereby ratified, approved and confirmed. Any future reference to the Rights
Agreement shall be deemed to be a reference to the Rights Agreement as amended
hereby.
[This space intentionally left blank]
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Rights Agreement on the date, and effective the date, first above written.
Attest: Xxxxxx Restaurants, Inc.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxx, Xx.
------------------- ----------------------------
Xxxxx X. Xxxxxx Xxxxxxxx Xxxx, Xx.
Senior Vice President, General Chairman and
Counsel and Secretary Chief Executive Officer
Attest: Xxxxx Fargo Bank, National Association,
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Van Dell
--------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Van Dell
Title: Executive Vie President Title: Vice President
Attest: Wachovia Bank, National Association
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
--------------- ------------------------
Name: Senior Vice President Name: Xxxxxx Xxxxxx
Title: Executive Vice President Title: Executive Vice President
3
