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AMENDMENT NO. 4 TO
RIGHTS AGREEMENT
This Amendment No. 4 to Rights Agreement (this "Amendment") is made
effective as of the 8th day of March, 2001. This Amendment is an amendment to
the Rights Agreement, dated as of April 16, 1991, as amended effective as of
December 19, 1991, as amended effective as of February 7, 1995, and as amended
effective as of May 29, 1995 (the "Rights Agreement"), between Xxxx'x, Inc., a
Delaware corporation (formerly known as Luby's Cafeterias, Inc. and referred to
herein as the "Company"), and American Stock Transfer & Trust Company (the
"Rights Agent").
RECITALS
WHEREAS, pursuant to and in compliance with Section 27 of the Rights
Agreement, the Company and the Rights Agent wish to amend the Rights Agreement
as set forth herein;
NOW THEREFORE, the parties hereto agree as follows:
Section 1. Amendments. From and after the effective date of this
Amendment, the Rights Agreement shall be amended as follows:
(a) The definition of "Acquiring Person" shall be amended to read in
its entirety as follows:
"Acquiring Person" means any person who, together with all Affiliates
and Associates of such Person, shall be the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or any of its Subsidiaries or any
Person organized, appointed or established by the Company or any of its
Subsidiaries for or pursuant to the terms of any such plan, or (iv) any
Exempt Person (so long as such Person remains an Exempt Person).
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Stock by the Company
which, by reducing the number of shares of Common Stock of the Company
outstanding, increases the proportionate number of shares of Common
Stock of the Company beneficially owned by such Person to 15% or more
of the shares of Common Stock of the Company then outstanding;
provided, however, that, if a Person shall become the Beneficial Owner
of 15% or more of the shares of Common Stock of the Company then
outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company and at a time when such
Person is the Beneficial Owner of 15% or more of the shares of Common
Stock of the Company then outstanding, become the Beneficial Owner of
any additional shares of Common Stock of the Company, then such Person
shall be deemed to be an "Acquiring Person." If the Board of Directors
of the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions, has become
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such inadvertently, and such Person divests as promptly as practicable
a sufficient number of shares of Common Stock so that such Person would
no longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions, then such person shall not be deemed to be an
"Acquiring Person" for any purpose of this Agreement.
(b) The definition of "Continuing Director" included in Section 1 of
the Rights Agreement shall be deleted.
(c) The definition of "Distribution Date" included in Section 1 of the
Rights Agreement shall be amended to read in its entirety as follows:
"Distribution Date" shall mean the earlier of (i) the tenth day after
the Stock Acquisition Date or (ii) the tenth Business Day (or such
later date as may be determined by action of the Board of Directors
prior to such time as any Person becomes an Acquiring Person) after the
date of commencement by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or
any Subsidiary of the Company, or any Person organized appointed or
established by the Company or any of its Subsidiaries for or pursuant
to the terms of any such plan) of, or after the date of the first
public announcement of the intention of any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of
the Company or any Subsidiary of the Company, or any Person organized,
appointed or established by the Company or any of its Subsidiaries for
or pursuant to the terms of any such plan) to commence, a tender or
exchange offer the consummation of which could result in any Person
becoming the Beneficial Owner of 15% or more of the then outstanding
shares of Common Stock of the Company.
(d) Section 1 of the Rights Agreement shall be amended to add the
definition of "Exempt Person" as follows:
"Exempt Person" shall mean Xxxxxx X. Xxxxxx and Xxxxxxxxxxx X. Xxxxxx,
unless such Persons taken together with their Affiliates and Associates
shall become the Beneficial Owner of any additional shares of Common
Stock of the Company other than (i) the 1,343,800 shares (appropriately
adjusted for any stock split, reverse stock split or Common Stock
dividend) owned on December 31, 2000 (the "Original Shares"), (ii)
shares issuable or issued upon conversion of, or in payment of interest
on, up to $10 million aggregate principal amount of the Company's
Convertible Subordinated Notes Due 2011 (the "Notes"), (iii) shares
issuable or issued upon exercise of the employee stock options granted
to such Persons on March 7, 2001 (the "Options"), and (iv) shares which
do not exceed the "Maximum Additional Shares." "Maximum Additional
Shares" shall equal (a) on or prior to March 15, 2002 (i) 925,000
shares (appropriately adjusted for any stock split, reverse stock split
or Common Stock dividend occurring after March 8, 2001), plus (ii) a
number of shares equal to 25% of any increase in the outstanding shares
of Common Stock after March 8, 2001, excluding any increases resulting
from (A) issuance of shares upon conversion of, or in payment
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of interest on, the Notes, or upon exercise of any of the Options or
(B) any stock split, reverse stock split or Common Stock dividend, plus
(iii) a number of shares equal to the number of Original Shares sold
(appropriately adjusted for any stock split, reverse stock split or
Common Stock dividend after such sale) in "brokers' transactions" (as
such term is defined in Rule 144 promulgated under the Securities Act)
or in other transactions involving a widespread distribution of the
shares sold, and (b) after March 15, 2002 (i) 1,730,700 shares
(appropriately adjusted for any stock split, reverse stock split or
Common Stock dividend occurring after March 8, 2001), plus (ii) a
number of shares equal to 28% of any increase in the outstanding shares
of Common Stock after March 8, 2001, excluding any increases resulting
from (A) issuance of shares upon conversion of, or in payment of
interest on, the Notes, or upon exercise of any of the Options or (B)
any stock split, reverse stock split or Common Stock dividend, plus
(iii) a number of shares equal to the number of Original Shares sold
(appropriately adjusted for any stock split, reverse stock split or
Common Stock dividends after such sale) in "brokers' transactions" or
in other transactions involving a widespread distribution of the shares
sold.
(e) The definition of "Final Expiration Date" included in Section 1 of
the Rights Agreement shall be amended to read in its entirety as follows:
"Final Expiration Date" means the close of business on April 16, 2004."
(f) Section 11 of the Rights Agreement shall be amended to delete from
subparagraph (a)(iii) thereof the parenthetical phase "(or if at such time there
is an Acquiring Person, a majority of the Continuing Directors)."
(g) Section 23 of the Rights Agreement shall be amended to read in its
entirety as follows:
Section 23. Redemption. (a) The Board of Directors of the
Company may, at its option, at any time prior to the time any Person
becomes an "Acquiring Person," redeem all but not less than all the
then outstanding Rights at a redemption price of $.01 per Right, as
such amount may be appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the "Redemption
Price"). Any such redemption of the Rights by the Board of Directors
may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish.
(b) Immediately upon the action of the Board of Directors of
the Company electing to redeem the Rights pursuant to paragraph (a) of
this Section 23 (or, alternatively, if the Board of Directors qualified
such redemption as to time, basis or conditions, then at such time, on
such basis and with such conditions as the Board of Directors may have
established pursuant to such paragraph (a)) and without further action
and without any notice, the right to exercise the Rights will terminate
and thereafter the only right of the holders of
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Rights shall be to receive the Redemption Price for each Right so held.
The Company shall promptly thereafter give notice of such redemption to
the Rights Agent and the holders of the Rights in the manner set forth
in Section 26; provided that the failure to give, or any defect in,
such notice shall not affect the validity of such redemption. Any
notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice
of redemption will state the method by which the payment of the
Redemption Price will be made.
(c) Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any
time in any manner other than that specifically set forth in Section 23
or 24, and other than in connection with the purchase, acquisition or
redemption of shares of Common Stock prior to the Distribution Date.
(h) Section 27 of the Rights Agreement shall be amended to read in its
entirety as follows:
Section 27. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement without the approval of
any holders of Rights in order to cure any ambiguity, correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions hereof, or to make any other
provisions with respect to the Rights which the Company may deem
necessary or desirable, any such supplement or amendment to be
evidenced by a writing signed by the Company and the Rights Agent;
provided, however, that, from and after such time as any Person becomes
an Acquiring Person, this Agreement shall not be amended in any manner
which would adversely affect the interests of the holders of Rights;
and provided, further, that for so long as Xxxxxx X. Xxxxxx and
Xxxxxxxxxxx X. Xxxxxx are "Exempt Persons" (as defined herein), the
definitions of "Exempt Person" and "Acquiring Person" shall not be
amended in any manner which would adversely affect the application of
such terms to Xxxxxx X. Xxxxxx or Xxxxxxxxxxx X. Xxxxxx without their
prior consent.
(i) Exhibit A (Form of Right Certificate) and Exhibit B (Summary of
Rights to Purchase Common Shares) to the Rights Agreement shall be amended to
conform to the changes in the Rights Agreement made and effected pursuant to
this Amendment.
Section 2. Remainder of Agreement Not Affected. Except as set forth in
Section 1 hereof, the terms and provisions of the Rights Agreement shall remain
in full force and effect and are hereby ratified and confirmed.
Section 3. Authority. Each party represents that such party has full
power and authority to enter into this Amendment, and that this Amendment
constitutes a legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms.
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Section 4. Definitions, References.
(a) Unless otherwise specifically defined herein, each term used herein
which is defined in the Rights Agreement shall have the meaning assigned to such
term in the Rights Agreement.
(b) On and after the effective date of this Amendment (i) all
references in the Rights Agreement, including Exhibits A and B, to the Rights
Agreement shall be deemed to refer to the Rights Agreement as amended by this
Amendment, and all prior amendments, and (ii) all references to "hereof,"
"hereunder," "herein," "hereby" and other similar references contained in the
Rights Agreement as well as each reference to "this Agreement" and each other
similar reference contained in the Rights Agreement shall refer to the Rights
Agreement, as amended.
Section 5. Counterparts. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
XXXX'X, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Chairman of the Board
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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