AMENDMENT NO. 3 TO AMENDED AND RESTATED RIGHTS AGREEMENT
Exhibit 4
AMENDMENT NO. 3 TO AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED RIGHTS AGREEMENT (this “Amendment”), dated as of
February 24, 2006, is entered into by and between Administaff, Inc., a Delaware corporation (the
“Company”), and Mellon Investor Services LLC, a New Jersey limited liability company, as rights
agent (the “Rights Agent”), pursuant to Section 27 of the Amended and Restated Rights Agreement,
dated as of April 19, 2003, as amended (the “Rights Agreement”), between the Company and the Rights
Agent, at the Company’s direction.
RECITALS:
WHEREAS, Section 27 of the Rights Agreement provides that the Company may in its sole
discretion, and the Rights Agent shall if the Company so directs, supplement or amend any provision
of the Rights Agreement in any respect without the approval of the holders of the Rights but
subject to the other provisions of Section 27; and
WHEREAS, on August 8, 2003 the Company received a copy of a Schedule 13G/A filed by the
Xxxxxxx Partners, LLC (“Xxxxxxx Partners”) indicating that such group beneficially owned 4,082,896
shares of the Company’s Common Stock constituting approximately 15.4% of the outstanding shares of
the Company’s Common Stock; and
WHEREAS, subsequent to the filing of the Schedule 13G/A on August 8, 2003, Xxxxxxx Partners
acquired additional shares of the Company’s Common Stock so that, as of August 19, 2003, Xxxxxxx
Partners informed the Company that it beneficially owned 4,481,616 shares of the Company’s Common
Stock; and
WHEREAS, on August 21, 2003, Amendment No. 1 to the Rights Agreement (“Amendment No. 1”) was
executed to amend the definition of Exempt Person (which excludes persons who would otherwise be
deemed to be Acquiring Persons, as that term is defined in the Rights Agreement) to include Xxxxxxx
Partners, subject to certain limitations set forth therein; and
WHEREAS, subsequent to the execution of Amendment No. 1, Xxxxxxx Partners acquired additional
shares of the Company’s Common Stock so that, as of February 18, 2004, Xxxxxxx Partners informed
the Company that it beneficially owned 5,121,454 shares of the Company’s Common Stock; and
WHEREAS, on February 24, 2004, Amendment No. 2 to the Rights Agreement (“Amendment No. 2”) was
executed to amend the definition of Exempt Person to include Xxxxxxx Partners increased level of
ownership, but provided that Xxxxxxx Partners’ applicable threshold of ownership would be reduced
to the extent that it subsequently sold or otherwise disposed of any shares of Common Stock of the
Company; and
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WHEREAS, Xxxxxxx Partners reported on a Form 13G/A filed on February 14, 2005 that it had
reduced its beneficial ownership of the Company’s Common stock to 4,006,100 shares; and
WHEREAS, on February 3, 2006, the Company received a copy of a Schedule 13G/A filed by the
Xxxxxxx Partners indicating that it had increased its beneficial ownership of the Company’s Common
Stock to 4,422,891 shares; and
WHEREAS, the Board of Directors of the Company has determined that it is in the best interests
of the Company to further amend the definition of “Exempt Person” in the Rights Agreement with
respect to Xxxxxxx Partners’ current level of beneficial ownership; and
WHEREAS, in accordance with Section 27 of the Rights Agreement, the Company has delivered a
certificate from an appropriate officer of the Company to the Rights Agent stating that this
Amendment is in compliance with the terms of Section 27 of the Rights Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements set forth herein and in
the Rights Agreement, the parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein shall have the meaning
assigned to such terms in the Rights Agreement.
Section 2. Amendments to Rights Agreement. The definition of “Exempt Person” contained in
Section 1 (p) of the Rights Agreement, as amended by Amendment No. 2, is hereby further amended to
read in its entirety as follows:
“Exempt Person” shall mean:
(i) the Company or any Subsidiary (as such term is hereinafter defined) of the Company
or any employee benefit plan of the Company’s;
(ii) Xxxx X. Xxxxxxx, his spouse, lineal descendants, heirs, executors or other legal
representatives and any trusts or limited partnerships established for the benefit of the
foregoing, or any other person or entity in which the foregoing persons or entities are at
the time of determination the direct record and beneficial owners of all outstanding voting
securities (collectively, the “Xxxxxxx Stockholders”), provided that the Xxxxxxx
Stockholders shall cease to be an Exempt Person if the shares of Common Stock of which the
Xxxxxxx Stockholders are the Beneficial Owner exceeds 17% of the shares of Common Stock then
outstanding (the “Xxxxxxx Threshold”);
(iii) Xxxxxxx Partners, LLC (“Xxxxxxx Partners”), provided that Xxxxxxx Partners shall
cease to be an Exempt Person if the shares of Common Stock of which Xxxxxxx Partners is the
Beneficial Owner exceeds 17% of the shares of Common Stock then outstanding (the “Xxxxxxx
Threshold,” and each of the Xxxxxxx Threshold and the Xxxxxxx Threshold, a “Threshold”);
provided, however, that (a) if during the term of this
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Agreement Xxxxxxx Partners sells, transfers or otherwise disposes of any shares of Common
Stock of which Xxxxxxx Partners is a Beneficial Owner, the Xxxxxxx Threshold shall be
reduced to that percentage of the Common Stock of which Xxxxxxx Partners is a Beneficial
Owner, determined immediately after giving effect to such sale, transfer or other
disposition, and (b) if the Xxxxxxx Threshold is reduced during the term of this Agreement
to less than 15%, or if Xxxxxxx Partners modifies its Schedule 13G or files a Schedule 13D
to indicate an intent to change or influence control of the Company, then Xxxxxxx Partners
shall no longer constitute an Exempt Person. Solely as to the period prior to the entering
into of Amendment No. 2 to this Agreement, Xxxxxxx Partners shall not be deemed to be or to
have become an Acquiring Person for any purpose under this Agreement.
Notwithstanding the foregoing, no Person shall cease to be an Exempt Person as the result of
an acquisition of Common Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned by such Person;
provided, however, that if a Person shall become the Beneficial Owner of more than such
Person’s relevant Threshold of the Common Stock of the Company then outstanding by reason of
the share purchases of the Company and shall, after such share purchases by the Company,
become the Beneficial Owner of any additional Common Stock of the Company, then such Person
shall cease to be an “Exempt Person” unless upon the consummation of the acquisition of such
additional shares of Common Stock such Person does not own more than such Person’s relevant
Threshold.
Section 3. Miscellaneous.
| (a) | The term “Agreement” as used in the Rights Agreement shall be deemed to refer to the Rights Agreement as amended hereby. |
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| (b) | This Amendment shall be effective as of the date first above written, and, except as set forth herein, the Rights Agreement shall remain in full force and effect and shall be otherwise unaffected hereby. | ||
| (c) | 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. | ||
| (d) | 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 such State applicable to contracts to be made and performed entirely within such State; provided, however, that all provisions regarding the rights, duties, liabilities and obligations of the Rights Agent shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. | ||
| (e) | Except to the extent specifically amended hereby, the provisions of the Rights Agreement shall remain unmodified, and the Rights Agreement as amended hereby is confirmed as being 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, all as of the day and year first above written.
| ADMINISTAFF, INC. | ||||||||
| By: | /s/ Xxxx X. Xxxxxxx, XX | |||||||
| Name: | Xxxx X. Xxxxxxx, XX | |||||||
| Title: | Senior Vice President of Legal, | |||||||
| General Counsel and Secretary | ||||||||
| MELLON INVESTOR SERVICES LLC, | ||||||||
| as Rights Agent | ||||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||||
| Name: | Xxxx Xxxxxx | |||||||
| Title: | Assistant Vice President | |||||||
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