SECOND AMENDMENT TO AMENDED AND RESTATED STOCKHOLDERS RIGHTS AGREEMENT
Exhibit 4.1
CONFORMED COPY
SECOND AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS RIGHTS AGREEMENT
This Second Amendment, dated as of February 1, 2006 (this “Amendment”), to the Amended and
Restated Stockholders Rights Agreement, dated as of April 28, 1999, as amended (the “Rights
Agreement”), is made between Whitehall Jewellers, Inc., a Delaware corporation (the “Company”), and
LaSalle Bank National Association, a national banking association (the “Rights Agent”). Capitalized
terms not otherwise defined herein have the meaning given to such terms in the Rights Agreement.
WHEREAS, the Company has proposed to enter into an Agreement and Plan of Merger dated as of
February 1, 2006 (the “Merger Agreement”) pursuant to which, WJ Acquisition Corp., a Delaware
corporation (“WJ”) and an Affiliate of Prentice Capital Management, LP, a Delaware limited
partnership (“Prentice”) and Xxxxxxxx Opportunity Fund, L.P., a Nevada limited partnership
(“Xxxxxxxx”) shall be merged with and into the Company (the “Merger”) and the Company, as the
surviving corporation in the Merger, shall continue its corporate existence as a wholly-owned
subsidiary of WJ Holding Corp. (“Holdco”), an Affiliate of Prentice and Xxxxxxxx (Xxxxxxxx,
Xxxxxxxx, XX and Holdco each individually, a “Buyer” and collectively, the “Buyers”);
WHEREAS, the Company and the Rights Agent desire to amend the Rights Agreement to exempt the
purchase of Common Stock, $0.001 par value, of the Company by WJ and its affiliates;
WHEREAS, the Board of Directors of the Company has approved this Amendment and authorized its
appropriate officers to execute and deliver the same to the Rights Agent; and
WHEREAS, pursuant to its authority under Section 27 of the Rights Agreement, the Board of
Directors of the Company has authorized and approved this Amendment to the Rights Agreement set
forth herein as of the date hereof.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein set forth in
this Amendment, the parties hereby agree as follows:
1. The definition of “Acquiring Person” in Section 1(a) to the Rights Agreement is deleted
in its entirety and hereby replaced with the following:
“An “Acquiring Person” is any Person who or which, together with its Affiliates and
Associates, is the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding,
but does not include (i) the Company, (ii) any Subsidiary of the Company, (iii) any employee
benefit plan or other compensation program or arrangement of the Company or of any such Subsidiary,
(iv) any Person holding shares of Common Stock for or pursuant to the terms of any such plan,
program or arrangement, (v) Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxx, and each
Affiliate and Associate thereof and (vi) Frontenac Venture V Limited Partnership, and each
Affiliate and
Associate thereof (together “Frontenac”), provided that, Frontenac shall be considered an
Acquiring Person if Frontenac shall be the Beneficial Owner of more than 30% of the shares of
Common Stock of the Company then outstanding prior to the consummation of the Offering plus 2% (the
Persons specified in clauses (i) through (vi) being herein collectively called “Exempt Persons”).
Notwithstanding the preceding sentence, no Person shall become an “Acquiring Person” as the result
of an acquisition by the Company of shares of its Common Stock which, by reason of reducing the
number of its then outstanding shares of Common Stock, increases the percentage of its then
outstanding shares of Common Stock Beneficially Owned by such person to 15% or more, or, in the
case of Frontenac, increases the percentage of its then outstanding shares of Common Stock
Beneficially Owned by Frontenac to the applicable percentage (as provided in (vi) above); provided,
however, that if such Person shall, after such purchase by the Company, 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.” Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an “Acquiring Person,” has become so
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,” then such Person shall
not be deemed to be an “Acquiring Person.”
Notwithstanding anything to the contrary contained herein, (i) none of Prentice Capital
Management, LP, a Delaware limited partnership (“Prentice”), or any of its respective Affiliates or
Associates (including, without limitation, PWJ Lending LLC, PWJ Funding LLC, Xxxxxxxx Opportunity
Fund, L.P. (“Xxxxxxxx”), WJ Acquisition Corp. (“WJ”) or WJ Holding Corp. (“Holdco”), which together
with Prentice and such other of its and their Affiliates and Associates, the “Buying Persons”)
shall become an Acquiring Person, (ii) no Distribution Date or Share Acquisition Date shall occur,
in each case, as a result of the execution and delivery of the Agreement and Plan of Merger, dated
as of February 1, 2006, by and among the Company, Prentice, Holtzman, Holdco and WJ (as it may be
amended from time to time, the “Merger Agreement”), or the consummation by Prentice, Xxxxxxxx, XX
and Holdco of the offer to purchase for cash all outstanding shares of Common Stock and Class B
Common Stock (including the associated rights) of the Company at $1.60 net per share by WJ, (the
“Tender Offer”) or any other agreement contemplated thereby or the execution and delivery of the
Securities Purchase Agreement, dated as of October 3, 2005, by and among the Buyers (as defined
therein) and the Company (as it may be amended from time to time, the “Purchase Agreement”), the
Bridge Term Loan Credit Agreement dated as of such date by and among the Lenders (as defined
therein), the agent named therein and the Company (as it may be amended from time to time, the
“Bridge Loan Agreement”), (as they may be amended from time to time, the Merger Agreement, the
Purchase Agreement, the Bridge Loan Agreement, the Tender Offer and any such other agreement
contemplated thereby being collectively referred to as the “Buyer Transactions”), the public
announcement of execution and delivery, the performance of the Buyer Transactions, or the
consummation of the other transactions contemplated by or in connection with the Buyer Transactions
and (iii) for the avoidance of doubt, the warrants issued in connection with the Purchase
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Agreement and any shares of Common Stock issuable upon exercise thereof shall not be counted
in any determination of whether the Buying Persons shall have become an Acquiring Person or that a
Distribution Date or Share Acquisition Date has occurred. From and after the consummation of the
Tender Offer, each Buying Person and its Affiliates and Associates shall be deemed to be an “Exempt
Person” for purposes of this definition of “Acquiring Person” and, therefore, not an Acquiring
Person regardless of the amount of Common Stock Beneficially Owned by such Buying Person and its
Affiliates and Associates.”
2. 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
thereof applicable to contracts to be made and performed entirely within the State of Delaware.
3. Except as otherwise amended hereby, the Rights Agreement shall remain in full force and
effect and shall be otherwise unaffected hereby.
4. This Amendment may be executed in counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and both such counterparts shall together constitute but
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to the Rights
Agreement to be duly executed as of the day and year first above written.
| WHITEHALL JEWELLERS, INC. | ||||||
| By: | /s/ XXXX X. XXXXXXXXX | |||||
| Name: Xxxx X. Xxxxxxxxxx | ||||||
| Title: Executive Vice President and | ||||||
| Chief Financial Officer | ||||||
| LASALLE BANK NATIONAL | ||||||
| ASSOCIATION | ||||||
| as Rights Agent | ||||||
| By: | /s/ XXXX X. XXXXXX | |||||
| Name: Xxxx X. Xxxxxx | ||||||
| Title: Vice President | ||||||
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