EXHIBIT 4.1
AMENDMENT NO. 2 TO
RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 (this "Amendment No. 2") to that certain
Rights Agreement, dated as of December 15, 1998 (the "Agreement"), as previously
amended as of July 2, 2004 ("Amendment No. 1"), between Xxxxx'x Corporation,
formerly known as Advantica Restaurant Group, Inc., a Delaware corporation (the
"Corporation"), and Continental Stock Transfer & Trust Company, a New York
corporation (the "Rights Agent"), is made and entered into as of the 27th day
of July, 2004.
WITNESSETH
WHEREAS, the Corporation previously entered into Subscription
Agreements with certain accredited institutional investors (together, the
"Private Placement Investors"), pursuant to which the Private Placement
Investors purchased from the Corporation shares of the Corporation's common
stock, par value $.01 per share (the "Common Shares"), respectively (together,
the "Private Placements"); and
WHEREAS, the Board previously approved, and the Company
entered into, Amendment No. 1 in connection with the consummation of the Private
Placement and has now determined that it is necessary and desirable, and in the
best interests of the Corporation and its stockholders, to amend further,
pursuant to Section 27 of the Agreement, the Agreement as provided below.
NOW, THEREFORE, in consideration of the foregoing, the mutual
agreements herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. For convenience of reference, it is hereby confirmed that in each
instance in which the name Advantica Restaurant Group, Inc. appears in the
Agreement, such term shall mean Xxxxx'x Corporation.
2. Section 1(a) of the Agreement is amended by deleting the last
sentence of such Section and inserting the following sentence in lieu thereof:
In addition, notwithstanding the foregoing, the term "Acquiring Person"
shall not include any Person who becomes the Beneficial Owner of 15% or
more of the then outstanding Common Shares as a result of the purchase
of Common Shares, pursuant to any one of those certain Subscription
Agreements, dated as of July 6, 2004 between the Corporation and
certain accredited institutional investors, as approved by the Board of
Directors of the Corporation on July 2, 2004, unless and until, subject
to the other limitations of this Agreement, but notwithstanding Section
1(a)(A)(v) above, such time thereafter as any such Person shall become
the Beneficial Owner of additional Common Shares (other than by means
of a stock dividend, stock split or otherwise as a result of the
acquisition of additional Common Shares directly from the Corporation)
constituting an additional 1% of the outstanding shares of the
Corporation.
3. Terms used herein without definition shall have the meanings
assigned to them in the Agreement. Other than as amended hereby, all other
provisions of the Agreement, as previously amended by Amendment No. 1, shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested as of the day and year first written
above.
XXXXX'X CORPORATION
By: /s/ Xxxxxx X.Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President, General
Counsel and Secretary
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: /s/ X. Xxxxxxxxxx
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Name: X. Xxxxxxxxxx
Title: Vice President
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