EXHIBIT 2
AMENDMENT NO. 1 TO AMENDED AND RESTATED RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED RIGHTS AGREEMENT (this
"Amendment"), dated as of August 21, 2003, 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 (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; 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 beneficially owned 4,481,616
shares of the Company's Common Stock; and
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company to amend the definition of "Exempt
Person" in the Rights Agreement to include, subject to certain limitations,
Xxxxxxx Partners; and
WHEREAS, in accordance with Section 27 of the Rights Agreement, the
Company has delivered a certificate from an appropriate officer of the Company
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 is hereby 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
18% 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 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. 1 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.
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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.
(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
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Name: Xxxx X. Xxxxxxx, XX
Title: Vice President, Legal and
General Counsel
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Assistant Vice President
