1
Exhibit 4.2
AMENDMENT NO. 1 TO SHAREHOLDER RIGHTS AGREEMENT
This Amendment No. 1 to Shareholder Rights Agreement (this
"Amendment"), dated as of December 3, 1998, amends the Shareholder Rights
Agreement dated as of December 20, 1994 (the "Rights Agreement") between Back
Bay Restaurant Group, Inc., a Delaware corporation (the "Company"), and State
Street Bank & Trust Company, a Massachusetts trust company (the "Rights Agent").
WHEREAS, the Board of Directors of the Company has approved an
amendment to the Rights Agreement pursuant to Section 26 thereof;
NOW THEREFORE, in consideration of these premises, the mutual
agreements herein set forth, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged by each party, the parties hereto
hereby agree as follows:
1. Amendments.
1.1. The definition of "Acquiring Person" set forth in Section 1(a)
of the Rights Agreement is hereby amended to read in its entirety as
follows:
"(a) "Acquiring Person" shall mean, at the time any
determination is to be made, any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner
of 35% or more of the shares of Common Stock then outstanding;
PROVIDED, HOWEVER, that the term "Acquiring Person" shall not include
the Company, any Subsidiary of the Company, any employee benefit plan
of either the Company or of any Subsidiary of the Company, any Person
or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan, and that no Person shall become
an Acquiring Person solely by virtue of a reduction in the number of
Common Shares outstanding, unless subsequent to such reduction such
Person or any Affiliate or Associate of such Person shall become the
Beneficial Owner of additional shares of Common Stock constituting 1%
or more of the then outstanding shares of Common Stock other than as a
result of a stock dividend, stock split or similar transaction effected
by the Company in which all shareholders are treated equally; PROVIDED,
FURTHER, that so long as the Agreement and Plan of Merger dated as of
December 3, 1998 (as in effect from time to time, the "Merger
Agreement") between the Company and SRC Holdings, Inc., a Delaware
corporation ("Purchaser"), shall not have been terminated in accordance
with its terms, the term "Acquiring Person" shall not include the
Purchaser or any of its Affiliates or Associates as a result of the
execution, delivery or performance by the parties thereto of (i) the
Merger Agreement or (ii) the Voting and Shares Exchange Agreements by
and between Purchaser and each member of Management (as defined in the
Merger Agreement)."
1.2. The last sentence of Section 2 of the Rights Agreement is hereby
amended to read in its entirety as follows:
B1
2
"The Company may from time to time appoint such Co-Rights Agents
as it may deem necessary or desirable, upon ten (10) days' prior
written notice to the Rights Agent. The Rights Agent shall have
no duty to supervise, and in no event be liable for, the acts or
omissions of any such Co-Rights Agent."
1.3. The second sentence of Section 25 of the Rights Agreement is
hereby amended to read in its entirety as follows:
"Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
State Street Bank & Trust Company
c/o Boston EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
Notices or demands authorized by this Agreement to be given or
made by the Company of the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to
the holder of certificates representing shares of Common Stock)
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Company.
2. EFFECT OF AMENDMENT. Except as expressly amended hereby, the Rights
Agreement shall remain in full force and effect.
3. GOVERNING LAW. 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 said state applicable to
contracts made and to be performed entirely within said state.
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and 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.
-2-
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day first above written.
ATTEST: BACK BAY RESTAURANT GROUP, INC.
By /s/ Xxxxx Xxxxx By /s/ Xxxxx Xxxxxxx
----------------------- -------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman of the Special Committee of
the Board of Directors
ATTEST: STATE STREET BANK & TRUST COMPANY,
as Rights Agent
By /s/ Xxxxx X. Xxx By /s/ Xxxxxxx Xxxxx
----------------------- -------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President and Assistant Counsel
-3-
