EXHIBIT 4.1
FIRST AMENDMENT TO THE AMENDED AND RESTATED RIGHTS AGREEMENT
THIS FIRST AMENDMENT, dated as of March 26, 2002 (this
"Amendment"), is between Xxxxxx'x Restaurant Group, Inc. a Delaware corporation
(formerly known as Quantum Restaurant Group, Inc.) (the "Company"), and
Equiserve Trust Company, N.A. (successor Rights Agent to The First National Bank
of Boston) (the "Rights Agent")
RECITALS
A. The Company and Rights Agent are parties to an Amended and Restated
Rights Agreement dated as of March 22, 2001 (the "Rights Agreement").
B. Pursuant to Section 27 of the Rights Agreement, the Company and the
Rights Agent desire to amend the Rights Agreement as set forth below.
Accordingly, the Rights Agreement is hereby amended as follows:
1. AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights Agreement is
amended to add the following sentence as the penultimate sentence thereof:
"Notwithstanding anything in this agreement to the contrary, none of
Morton's Holdings and Morton's Acquisition, nor any Affiliates and
Associates of each of them, shall be deemed to be an Acquiring Person
for all purposes of this Agreement, provided that this sentence shall
cease to apply if and when the Merger Agreement terminates."
2. AMENDMENT TO SECTION 1(j). Section 1(j) of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as a result of
(i) the execution of the Merger Agreement, or (ii) public announcement
or the consummation (or the public announcement of such consummation)
of the transactions contemplated by the Merger Agreement."
3. AMENDMENT TO SECTION 1(t). Section 1(t) of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred as a result of
(i) the execution of the Merger Agreement, or (ii) public announcement
or the consummation (or the public announcement of such consummation)
of the transactions contemplated by the Merger Agreement."
4. AMENDMENT TO SECTION 1(w). Section 1(w) of the Rights Agreement is
amended to add the following clause at the end thereof:
"but shall not include (i) the execution of the Merger Agreement, or
(ii) public announcement or the consummation (or the public
announcement of such consummation) of the transactions contemplated by
the Merger Agreement".
5. FURTHER AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement is
amended to add the following immediately after Section 1(w) thereof:
"(x) "Merger Agreement" shall mean the Agreement and Plan of Merger,
dated March 26, 2002, by and among Morton's Holding, Morton's
Acquisition and the Company, as it may be amended from time to time.
(y) "Morton's Holding" shall mean Morton's Holdings, Inc., a Delaware
Corporation.
(z) "Morton's Acquisition" shall mean Morton's Acquisition Company, a
Delaware Corporation."
6. AMENDMENT TO SECTION 13. Section 13 of the Rights Agreement is amended
to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, the
provisions of this Section 13 shall not be deemed to apply to or be
triggered as a result of (i) the execution of the Merger Agreement, or
(ii) public announcement or the consummation (or the public
announcement of such consummation) of the transactions contemplated by
the Merger Agreement."
7. ADDITION OF SECTION 35. The Rights Agreement is amended to add the
following Section 35 immediately after Section 34 thereof:
"Section 35. Additional Agreements. (a) Simultaneously with the
consummation of the merger contemplated by the Merger Agreement, (i)
this Agreement will be terminated and be without any further force or
effect, (ii) none of the parties to this Agreement will have any
rights, obligations or liabilities hereunder, and (iii) the holders of
the Rights will not be entitled to any benefits, rights or other
interests under this Agreement, including without limitation the right
to purchase or otherwise acquire Preferred Stock or any other
securities of the Company.
(b) Notwithstanding anything to the contrary contained in this
Agreement, this Agreement and the rights conveyed hereby shall not be
applicable to the transactions contemplated by the Merger Agreement or
any amendment thereof."
-2-
8. EFFECTIVENESS. This Amendment shall be deemed effective as of the date
and year first above written, immediately prior to the execution and delivery of
the Merger Agreement. Except as amended hereby, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected hereby.
9. MISCELLANEOUS. 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 the State of Delaware. This
Amendment may be executed in any number of counterparts, 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. If any
term, provision, covenant or restriction of this Amendment held by a court of
competent jurisdiction or other authority to be invalid, illegal, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be affected or impaired or invalidated.
-3-
EXECUTED as of the date and year set forth above.
ATTEST: XXXXXX'X RESTAURANT GROUP, INC.
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------- ---------------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board, Title: Executive Vice President
President and CEO and CFO
ATTEST: EQUISERVE TRUST COMPANY, N.A.
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxx-Xxxx
------------------------- ---------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxx Xxxxxx-Xxxx
Title: Account Manager Title: Managing Director
-4-
