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EXHIBIT 4.1
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FIRST AMENDMENT TO RIGHTS AGREEMENT
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THIS FIRST AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as
of the 3rd day of September, 1998, by and between RAILAMERICA, INC., a Delaware
corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY (the
"Rights Agent").
RECITALS
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WHEREAS, on January 6, 1998, the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for each share of
common stock, $.001 par value, of the Company outstanding at the close of
business on January 20, 1998; and
WHEREAS, the Company and the Rights Agent entered into a certain Rights
Agreement, dated as of January 6, 1998 (the "Rights Agreement"), providing,
among other things, for the issuance of the Rights (all capitalized terms used
in this Amendment and not otherwise defined herein shall have the meanings
ascribed to such terms in the Rights Agreement); and
WHEREAS, the Board of Directors of the Company has approved the
amendment of the Rights Agreement as hereinafter set forth, pursuant to a
unanimous written consent dated as of September 1, 1998;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 1 of the Rights Agreement is hereby amended by deleting
the definition of "Acquiring Person" set forth in subsection (a) thereof in its
entirety and substituting therefor a new definition of "Acquiring Person" to
read as follows:
"'Acquiring Person' shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of fifteen percent (15%) or more of the shares of
Common Stock the outstanding. Notwithstanding the foregoing, the term
"Acquiring Person" shall not include (i) the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such
plan, (ii) EGS Associates, L.P., a Delaware limited partnership, EGS
Partners L.L.C., a Delaware limited liability company, Xxx Partners,
L.P., a Delaware
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limited partnership, Jonas Partners, L.P., a Delaware limited
partnership, Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx Xxxxxxx,
Xxxxx Xxxxxx, Xxxxx XxXxxxx or Xxxxxxx Xxxxxxx, unless such Persons
shall be the Beneficial Owners, individually or in the aggregate, of
twenty percent (20%) or more of the shares of Common Stock then
outstanding, or (iii) any Person who or which, together with all
Affiliates and Associates of such Person, would be an Acquiring Person
solely by reason of a reduction in the number of issued and outstanding
shares of Common Stock of the Company pursuant to a transaction or
series of related transactions approved by a majority of the
Independent Directors, if any, then in office and approved by a
Supermajority Vote; provided, further, however, that in the event that
such Person described in the foregoing clause (iii) does not become an
Acquiring Person by reason of the foregoing clause (iii), such Person
shall nonetheless become an Acquiring Person in the event such Person
thereafter acquires Beneficial Ownership of an additional one percent
(1%) of the Common Stock of the Company, unless such additional Common
Stock ownership results solely from a subsequent reduction in the
number of issued and outstanding shares of Common Stock of the
Company."
2. Except as specifically amended hereby, the Rights Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed.
3. This Amendment shall be deemed 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 made and to be
performed entirely within such State.
4. This Amendment may be executed in counterparts and both of such
counterparts shall for all purposes be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
RAILAMERICA, INC.
By: /S/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /S/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
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