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EXHIBIT 4.4
XXXXXXXXXX.XXX, INC.
000 XXXXXXXX XXXXX, XXXXX 000
XXXXXXXX, XXXXXXX 00000
February 27, 2001
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Re: Amendment No. 1 to Shareholder Protection Rights Agreement
Ladies and Gentlemen:
Pursuant to Section 5.4 of the Shareholder Protection Rights Agreement
dated as of April 15, 2000 (the "Rights Agreement"), between XxxxXxxxxx.XXX,
Inc. (the "Company") and American Stock Transfer & Trust Company, as rights
agent, the Company, by resolution adopted by its Directors, hereby amends the
Rights Agreement as follows:
1. The definition of "Acquiring Person" in Section 1.1 of the Rights
Agreement is hereby amended and restated in its entirety as follows:
""Acquiring Person" shall mean any Person who is a Beneficial Owner of
15% or more of the outstanding shares of Common Stock; provided,
however, that the term "Acquiring Person" shall not include any Person
(i) who (x) is the Beneficial Owner of 15% or more of the outstanding
shares of Common Stock on the date of this Agreement, or (y) shall
become the Beneficial Owner of 15% or more of the outstanding shares of
Common Stock solely as a result of an acquisition by the Company of
shares of Common Stock, or (z) shall become the Beneficial Owner of 15%
or more of the outstanding shares of Common Stock on or after the date
of this Agreement pursuant to the Agreement and Plan of Merger, dated
April 15, 2000, by and among the Company, Resume Acquisition
Corporation, Omnicom Group Inc. ("OMC"), Xxxxxxx Xxxxx Group Inc.
("BHG"), Career Mosaic Inc. and ITC Holding Company, Inc. ("ITC"), or
pursuant to a transfer of such Common Stock to a direct or indirect
wholly owned Subsidiary of one or more such Persons, until such time
hereafter or thereafter as such Person or transferee shall become the
Beneficial Owner (other than by means of a stock dividend, stock split
or other similar event) of any additional shares of Common Stock,
except for additional shares of Common Stock obtained upon the exercise
of options granted to directors of the Company and except for
additional shares of
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February 27, 2001
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Common Stock obtained by OMC or any member of the OMC Group (as defined
below) pursuant to the Amended and Restated Credit Agreement, dated
February 27, 2001, between the Company and Omnicom Finance, Inc. (the
"OFI Credit Agreement"), (ii) who is the Beneficial Owner of 15% or
more of the outstanding shares of Common Stock but who acquired
Beneficial Ownership of shares of Common Stock without any plan or
intention to seek or affect control of the Company, if such Person
promptly enters into an irrevocable commitment promptly to divest, and
thereafter promptly divests (without exercising or retaining any power,
including voting power, with respect to such shares), sufficient shares
of Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) so that such Person ceases to be the
Beneficial Owner of 15% or more of the outstanding shares of Common
Stock, or (iii) Beneficially Owns shares of Common Stock consisting
solely of one or more of (A) shares of Common Stock Beneficially Owned
pursuant to the grant or exercise of an option granted to such Person
by the Company in connection with an agreement to merge with, or
acquire, the Company entered into prior to a Flip-In Date, (B) shares
of Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock), Beneficially Owned by such Person or its
Affiliates or Associates at the time of grant of such option or (C)
shares of Common Stock (or securities convertible into, exchangeable
into or exercisable for Common Stock) acquired by Affiliates or
Associates of such Person after the time of such grant which, in the
aggregate, amount to less than 1% of the outstanding shares of Common
Stock. In addition, the Company, any wholly owned Subsidiary of the
Company and any employee stock ownership or other employee benefit plan
of the Company or a wholly owned Subsidiary of the Company shall not be
an Acquiring Person. Notwithstanding any other provision hereof, in no
event will ITC or OMC (OMC and ITC, together with their successors or
assigns (but only such successors or assigns which control, are
controlled by or are under common control with OMC or ITC, as the case
may be), an "Authorized Holder"), individually or together with any
other Person in which Authorized Holder has, directly or indirectly, an
ownership interest (such other Persons, "Related Companies"), or any
Affiliate, Associate, director, officer, employee, partner, member or
other related Person of Authorized Holder or a Related Company
(collectively, a "Related Person" and, together with Authorized Holder
and Related Companies, "OMC Group" or "ITC Group", as the case may be),
be deemed to be an "Acquiring Person" for purposes hereof, nor shall a
Flip-In Date, a Separation Time, a Stock Acquisition Date or any other
event hereunder occur as a result of either OMC Group's or ITC Group's
Beneficial Ownership of Common Stock (any such event, an "OMC
Triggering Event" or an "ITC Triggering Event",
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February 27, 2001
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as the case may be) unless and until OMC or ITC shall have received
written notice from the Company that the Company's Board of Directors
has determined in good faith that the OMC Group or the ITC Group
constitutes an Acquiring Person hereunder and, within 30 calendar days
after receipt of notice of such determination from the Company, the OMC
Group or the ITC Group, as the case may be, shall not have divested
itself of Common Stock or taken such other action as the Board of
Directors of the Company determines in good faith, after consultation
with counsel, is sufficient, so that either an OMC Trigger Event or an
ITC Trigger Event is no longer continuing; provided, however, that if
either the OMC Group or the ITC Group shall become the Beneficial Owner
of 50% or more of the Common Stock, then an ITC Triggering Event or an
OMC Triggering Event shall occur in accordance with the terms of this
Agreement (disregarding the sentence of which this clause is a part)
and the foregoing provisions regarding notice and opportunity to cure
shall not apply. For the avoidance of doubt, notwithstanding any other
provision hereof, the right to acquire Common Stock under the OFI
Credit Agreement will not be deemed to confer "Beneficial Ownership"
until that right has actually been exercised."
2. The Rights Agreement shall not otherwise be supplemented or amended
by virtue of this Amendment No. 1 to the Rights Agreement, but shall remain in
full force and effect.
3. Capitalized terms used without other definition in this Amendment
No. 1 to the Rights Agreement shall be used as defined in the Rights Agreement.
4. This Amendment No. 1 to the Rights Agreement shall be deemed to be a
contract made under the internal substantive laws of the State of Georgia and
for all purposes shall be governed by and construed in accordance with laws of
such State applicable to contracts to be made and performed entirely within such
State.
5. This Amendment No. 1 to the Rights Agreement 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.
6. This Amendment No. 1 to the Rights Agreement shall be effective as
of the date hereof, and all references to the Rights Agreement shall, from and
after such time, be deemed to be references to the Rights Agreement as amended
hereby.
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February 27, 2001
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7. Exhibit A to the Rights Agreement shall be deemed amended in a
manner consistent with this Amendment No. 1 to the Rights Agreement.
Very truly yours,
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: CFO
Accepted and agreed to as of the
effective time specified above:
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By:
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Name:
Title:
