FIRST AMENDMENT TO RIGHTS AGREEMENT
This FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated as of
May 14, 1999 (the "Amendment"), is by and between DIVERSIFIED CORPORATE
RESOURCES, INC., a Texas corporation (the "Company"), and, at the request of the
Company, XXXXXX TRUST AND SAVINGS BANK, a national banking association, as
Rights Agent (the "Rights Agent").
RECITALS
1. The Company and the Rights Agent executed that certain Rights
Agreement dated as of May 1, 1998 (the "Rights Agreement").
2. The Board of Directors of the Company (the "Directors") believes it to
be in the best interest of the Company to amend the Rights Agreement so as to
provide additional protection with respect to accidental triggering of the
dilutive provisions of the Rights Agreement.
3. The Directors, pursuant to resolutions adopted on March 26, 1999,
authorized an officer of the Company to execute the Amendment and direct the
Rights Agent to execute the Amendment.
AGREEMENT
Accordingly, in consideration of the premises and the mutual agreement
herein set forth the parties hereby agree as follows:
1. The Rights Agreement is hereby amended by deleting Section 1(a) in its
entirety and substituting the following in lieu thereof:
"(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner (as such
term is hereinafter defined) of 15% or more of the shares of Common Stock
then outstanding, but shall not include (i) an Exempt Person (as such term
is hereinafter defined) or (ii) any such Person who has reported or is
required to report such ownership (but less than 25%) on Schedule 13G under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (or
any comparable or successor report) or on Schedule 13D under the Exchange
Act (or any comparable or successor report), which Schedule 13D (including
an amendment to Schedule 13D) does not state any intention to or reserve
the right to control or influence the management or policies of the Company
or engage in any of the actions specified in Item 4 of such Schedule 13D
(other than the disposition of the Common Stock) and, within 10 Business
Days (as such term is hereinafter defined) of being requested by the
Company to advise it regarding the same, certifies to the Company that such
Person acquired shares of Common Stock in excess of 14.99% inadvertently or
without knowledge of the effect of the terms of the Rights and
who, together with all Affiliates and Associates, thereafter does not
acquire additional shares of Common Stock while the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding; PROVIDED,
HOWEVER, that (A) if the Person requested to so certify fails to do so
within 10 Business Days or (B) if such Person thereafter becomes
obligated to file a Schedule 13D (including an amendment to a Schedule
13D) that would state any intention to or reserve the right to control
or influence the management or policies of the Company or engage in any
of the actions specified in Item 4 of such Schedule 13D (other than the
disposition of the Common Stock), then such Person shall become an
Acquiring Person immediately thereafter. Notwithstanding the foregoing,
(x) if, as of the date hereof, any Person is the Beneficial Owner of 15%
or more of the shares of Common Stock outstanding, such Person shall not
be or become an "Acquiring Person" unless and until such time as such
Person shall become the Beneficial Owner of an additional 1% of the
shares of Common Stock (other than pursuant to a dividend or distribution
paid or made by the Company on the outstanding Common Stock in shares of
Common Stock or pursuant to a split or subdivision of the outstanding
Common Stock), unless, upon becoming the Beneficial Owner of such
additional shares of Common Stock, either such Person is not then the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding or such Person is exempted from the definition of "Acquiring
Person" pursuant to Section 1(a)(ii) hereof and (y) no Person shall
become an "Acquiring Person" as the result of an acquisition of shares
of Common Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares of Common
Stock beneficially owned by such Person to 15% or more of the shares of
Common Stock then outstanding; PROVIDED, HOWEVER, that if a Person shall
become the Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding by reason of such share acquisitions by the Company and
shall thereafter become the Beneficial Owner of any additional shares of
Common Stock (other than pursuant to a dividend or distribution paid or
made by the Company on the outstanding Common Stock in shares of Common
Stock or pursuant to a split or subdivision of the outstanding Common
Stock), then such Person shall be deemed to be an "Acquiring Person"
unless, upon becoming the Beneficial Owner of such additional shares of
Common Stock, either such Person is not then the Beneficial Owner of 15%
or more of the shares of Common Stock then outstanding or such Person is
exempted from the definition of "Acquiring Person" pursuant to Section
1(a)(ii) hereof. For all purposes of this Agreement, any calculation of
the number of shares of Common Stock outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange
Act as in effect on the date hereof."
2. The Rights Agreement is hereby amended by deleting Section 1(l) in its
entirety and substituting the following in lieu thereof:
"(l) "Exempt Person" shall mean the Company or any Subsidiary (as such
term is hereinafter defined) of the Company, in each case including,
without limitation, in its
2
fiduciary capacity, or any employee benefit plan of the Company or of
any Subsidiary of the Company, J. Xxxxxxx Xxxxx and his Affiliates or
any entity or trustee holding Common Stock for or pursuant to the terms
of any such plan or for the purpose of funding any such plan or funding
other employee benefits for employees of the Company or of any
Subsidiary of the Company."
3. The Rights Agreement, as amended hereby, shall remain in full force
and effect.
4. This Amendment may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
[INTENTIONALLY LEFT BLANK]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the day and year first above written.
DIVERSIFIED CORPORATE RESOURCES, INC.
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
XXXXXX TRUST AND SAVINGS BANK, as Rights
Agent
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
4
