1
EXHIBIT 4.1
FORM OF AMENDMENT NO. 1 TO RIGHTS AGREEMENT
-------------------------------------------
---------------------------------------------------------------
RAINFOREST CAFE, INC.
AND
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
RIGHTS AGENT
----------
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 26, 2000
---------------------------------------------------------------
7
2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 (the "AMENDMENT"), dated as of September 26, 2000, to
the Rights Agreement, dated as of May 23, 2000 (the "RIGHTS AGREEMENT") between
Rainforest Cafe, Inc., a Minnesota corporation (the "COMPANY"), and Xxxxx Fargo
Bank Minnesota, National Association f/k/a Norwest Bank Minnesota, National
Association (the "RIGHTS AGENT").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof;
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its shareholders to amend the Rights Agreement
pursuant to this Amendment.
NOW, THEREFORE, the Company and the Rights Agent hereby amend the
Rights Agreement as follows:
1. AMENDMENT TO THE RIGHTS AGREEMENT.
A. AMENDMENT TO FIRST RECITAL. The first recital of the Rights
Agreement is hereby amended in its entirety to read as follows:
"WHEREAS, The Board of Directors of the Company has authorized
and declared a dividend of one preferred share purchase right (a
"RIGHT") for each Common Share (as hereinafter defined) of the Company
outstanding at the Close of Business (as hereinafter defined) on May
24, 2000 (the "RECORD DATE"), each Right representing the right to
purchase one one-hundredth of a Preferred Share, upon the terms and
subject to the conditions herein set forth, and has further authorized
and directed the issuance of one Right with respect to each Common
Share that shall become outstanding between the Record Date and the
earliest of the Distribution Date, the Redemption Date, the Tender
Offer Date and the Final Expiration Date (as such terms are hereinafter
defined); provided, however, that Rights may be issued with respect to
Common Shares that shall become outstanding after the Distribution Date
and prior to the earlier of the Redemption Date and the Final
Expiration Date in accordance with the provisions of Section 22 of this
Agreement."
B. AMENDMENT TO SECTION 1. Section 1 is hereby amended to include the
following subsections:
"(l) "XXXXXX'X" shall have the meaning set forth in Section
1(j).";
8
3
(m) "OFFEROR" shall have the meaning set forth in Section
1(j).";
(n) "MERGER AGREEMENT" shall have the meaning set forth in
Section 1(j)."; and
(o) "TENDER OFFER DATE" shall have the meaning set forth in
Section 7(a)."
C. AMENDMENT TO SECTIONS 3(b) & (c). Sections 3(b) & (c) of the Rights
Agreement are hereby amended in their entireties to read as follows:
"(b) As soon as practicable after the Record Date, the Company
will send a copy of a Summary of Rights to Purchase Preferred Shares,
in substantially the form of Exhibit C (the "SUMMARY OF RIGHTS"), by
first-class, postage-prepaid mail, to each record holder of Common
Shares as of the Close of Business on the Record Date, at the address
of such holder shown on the records of the Company. With respect to
certificates for Common Shares outstanding as of the Close of Business
on the Record Date, until the Distribution Date, the Rights will be
evidenced by such certificates registered in the names of the holders
thereof together with a copy of the Summary of Rights. Until the
Distribution Date (or the earlier of the Redemption Date, the Tender
Offer Date, or the Final Expiration Date if occurring prior to the
Distribution Date), the surrender for transfer of any certificate for
Common Shares outstanding on the Record Date, with or without a copy of
the Summary of Rights attached thereto, shall also constitute the
transfer of the Rights associated with the Common Shares represented
thereby.
(c) Certificates for Common Shares which become outstanding
after the Record Date but prior to the earliest of the Distribution
Date, the Redemption Date, the Tender Offer Date, or the Final
Expiration Date shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof
to certain rights as set forth in a Rights Agreement between
Rainforest Cafe, Inc. and Norwest Bank Minnesota, National
Association, dated as of May 23, 2000, as amended by Amendment
No. 1 to Rights Agreement dated as of September 26, 2000 (as
amended, the "RIGHTS AGREEMENT"), the terms of which are
hereby incorporated herein by reference and a copy of which is
on file at the principal executive offices of Rainforest Cafe,
Inc. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this
certificate. Rainforest Cafe, Inc. will mail to the holder of
this certificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. Under certain
9
4
circumstances, as set forth in the Rights Agreement, Rights
issued to any Person who becomes an Acquiring Person or an
Associate or Affiliate thereof (as defined in the Rights
Agreement), or certain transferees of such Person, may become
null and void.
With respect to such certificates containing the foregoing legend,
until the earlier of (i) the Distribution Date or (ii) the Final Expiration
Date, the Rights associated with the Common Shares represented by such
certificates shall be evidenced by such certificates alone, and the surrender
for transfer of any such certificate shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby."
D. AMENDMENT TO SECTION 1(j). Section 1(j) of the Rights Agreement is
hereby amended in its entirety to read as follows:
"(j) "EXEMPT PERSON" shall mean (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company, (iv) any Person organized,
appointed or established by the Company for or pursuant to the terms of
any such plan, (v) any Person who or which, together with all
Affiliates and Associates of such Person, shall become the Beneficial
Owner of the Threshold Percentage (or the Alternative Threshold
Percentage, if applicable) or more of the then outstanding Common
Shares as the result of acquisitions of Common Shares directly from the
Company, provided, however, that if a Person shall become the
Beneficial Owner of the Threshold Percentage (or the Alternative
Threshold Percentage, if applicable) or more of the Common Shares of
the Company then outstanding by reason of acquisitions of Common Shares
directly from the Company and shall, after such share acquisitions from
the Company, increase the number of Common Shares of the Company
beneficially owned by such Person above the number of Common Shares of
the Company beneficially owned by such Person at the time of the last
such share acquisitions from the Company, then such Person shall be
deemed to be an "Acquiring Person", and (vi) Xxxxxx'x Seafood
Restaurants, Inc., a Delaware corporation ("XXXXXX'X"), together with
all Affiliates (including, without limitation, LSR Acquisition Corp.)
and Associates of Xxxxxx'x (collectively the "OFFEROR"), provided,
however, that if the Offeror shall become the Beneficial Owner of the
Threshold Percentage (or the Alternative Threshold Percentage, if
applicable) or more of the Common Shares of the Company at any time
after the termination of the Agreement and Plan of Merger, dated as of
September 26, 2000, by and among the Company, Xxxxxx'x and LSR
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary
of Xxxxxx'x (the "MERGER AGREEMENT") pursuant to Section 7.1 thereof,
then the Offeror shall be deemed to be an "Acquiring Person"."
E. AMENDMENT TO SECTION 7(a). Section 7(a) is hereby amended in its
entirety to read as follows:
10
5
"(a) Subject to Section 7(e), the registered holder of any
Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the office or offices of the Rights Agent
designated for such purpose, together with payment of the Purchase
Price for each one one-hundredth of a Preferred Share as to which the
Rights are exercised, at or prior to the earliest of (i) the Close of
Business on May 23, 2010 (the "FINAL EXPIRATION DATE"), (ii) the time
at which the Rights are redeemed as provided in Section 23 (the
"REDEMPTION DATE"), (iii) the time at which such Rights are exchanged
as provided in Section 24 (the "EXCHANGE DATE"), or (iv) the time
immediately preceding the acceptance for payment and the payment by LSR
Acquisition Corp. for the Common Shares (and the Rights associated
therewith) tendered pursuant to the tender offer contemplated by the
Merger Agreement (the "TENDER OFFER DATE")."
2. MISCELLANEOUS.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all capitalized terms used herein have the meanings ascribed
to them in the Rights Agreement.
(b) This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute but one
and the same document.
(c) Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect.
[The remainder of this page is intentionally left blank.]
11
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the day and year first above written.
RAINFOREST CAFE, INC.:
By: /s/ Xxxxxxx Xxxxx
Its: General Counsel and Senior Vice President, Real
Estate
XXXXX FARGO BANK MINNESOTA
NATIONAL ASSOCIATION:
By: /s/ Xxxxxx Xxxxxx
Its: Officer, Account Management
Signature Page - Amendment No. 1 to Rights Agreement
12
