EXHIBIT 4.1
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EXECUTION COPY
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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This Amendment No. 1 (the "Amendment") to the Rights Agreement (the
"Rights Agreement"), dated as of November 19, 1997, by and between Friendly Ice
Cream Corporation, a Massachusetts corporation (the "Company"), and The Bank of
New York ("BONY"), is entered into as of June 17, 2007, by and between the
Company and BONY.
WHEREAS, pursuant to Section 27 of the Rights Agreement, under
circumstances set forth therein, (i) the Company may supplement or amend any
provision of the Rights Agreement without the approval of any holders of
certificates representing Common Shares of the Company, and (ii) upon the
delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
of Section 27 of the Rights Agreement, the Rights Agent shall execute such
supplement or amendment; and
WHEREAS, the Company desires to amend the Rights Agreement as set forth
herein and to direct the Rights Agent to execute this Amendment.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Amendment of Rights Agreement. The Rights Agreement is hereby
amended as follows:
(a) Section 1 of the Rights Agreement is hereby amended by
inserting the following subsections at the end of such Section 1:
"(z) "Merger" shall have the meaning set forth in the Merger
Agreement.
(aa) "Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of June 17, 2007, by and among the Company,
Freeze Operations Holding Corp., a Delaware corporation
("Parent"), and Freeze Operations, Inc., a Massachusetts
corporation ("Merger Sub"), as it may be amended from time to
time.
(bb) "Stockholders Agreements" shall mean collectively (i)
Stockholders Agreement, dated as of June 17, 2007, by and
between Parent and S. Prestley Blake, (ii) Stockholders
Agreement, dated as of June 17, 2007, by and between Parent
and Donald N. Smith, (iii) Stockholders Agreement, dated as of
June 17, 2007, by and between Parent and Kevin Douglas, (iv)
Stockholders Agreement, dated as of June 17, 2007, by and
among Parent, The Lion Fund L.P., Biglari Capital Corp.,
Sardar Biglari, Western Sizzlin Corp. and Philip L. Cooley and
(v) Stockholders Agreement, dated as of June 17, 2007, by and
between Parent and James E. Vinick.
(b) Section 1(a) of the Rights Agreement is hereby amended by
inserting the following sentences at the end of such Section 1(a):
Notwithstanding anything in this Section 1(a) to the contrary,
neither Parent, Merger Sub nor any of their respective
Affiliates or Associates (each as defined in the Merger
Agreement) (collectively, the "Parent Group") shall be, or
shall be deemed to be, an Acquiring Person by virtue of or as
a result of (A) the execution and delivery of the Merger
Agreement, the Stockholders Agreements or any agreements,
arrangements or understandings entered into by the Parent
Group contemplated by the Merger Agreement or the Stockholders
Agreements; (B) the announcement of the Merger Agreement, the
Stockholders Agreements or the Merger; (C) the consummation of
the Merger; or (D) the consummation of the other transactions
contemplated by the Merger Agreement or the Stockholders
Agreements. Each event described in subclauses (A), (B), (C)
and (D) is referred to herein as an "Exempted Transaction."
(c) Section 1(c) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(c):
"Notwithstanding anything in this Section 1(c) to the
contrary, the Parent Group shall not be deemed to be a
Beneficial Owner of, or to beneficially own, any securities
solely by virtue of or as a result of any Exempted
Transaction."
(d) Section 1(h) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(h):
"Notwithstanding anything in this Section 1(h) to the
contrary, a Distribution Date shall not be deemed to have
occurred by virtue of or as a result of any Exempted
Transaction."
(e) Section 1(j) of the Rights Agreement is hereby amended to read
in its entirety as follows:
"(j) "Expiration Date" shall mean the earliest of (i) the
Close of Business on the Final Expiration Date, (ii) the time
at which the Rights are redeemed as provided in Section 23
hereof, (iii) the time at which all exercisable Rights are
exchanged as provided in Section 24 hereof and (iv)
immediately prior to the Effective Time (as defined in the
Merger Agreement), but only if such Effective Time shall
occur."
(f) Section 1(u) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(u):
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"Notwithstanding anything in this Section 1(u) to the
contrary, a Share Acquisition Date shall not be deemed to have
occurred by virtue of or as a result of any Exempted
Transaction."
(g) Section 1(y) of the Rights Agreement is hereby amended by
inserting the following sentence at the end of such Section 1(y):
"Notwithstanding anything in this Section 1(y) to the
contrary, a Triggering Event shall not be deemed to have
occurred by virtue of or as a result of any Exempted
Transaction."
(h) The Rights Agreement is hereby amended by adding a new Section
35 to the end of the Rights Agreement, which new Section 35 shall read in
its entirety as follows:
"Section 35. TERMINATION. On the earlier of (i) the Final
Expiration Date and (ii) immediately prior to the Effective
Time, but only if such Effective Time shall occur, (a) the
Rights Agreement shall be terminated and be without any
further force or effect, (b) none of the parties to the Rights
Agreement will have any rights, obligations or liabilities
thereunder and (c) the holders of the Rights shall not be
entitled to any benefits, rights or other interests under the
Rights Agreement, including, without limitation, the right to
purchase or otherwise acquire Preferred Shares or any other
securities of the Company. Notwithstanding the foregoing,
Section 18 hereof shall survive the termination of the Rights
Agreement. The Company will notify in writing the Rights Agent
of the Effective Time. The Rights Agent will not be deemed to
have knowledge of the Effective Time unless and until it has
received such written notice."
Section 2. Direction to Rights Agent. The Company hereby directs BONY, in
its capacity as Rights Agent and in accordance with the terms of Section 27 of
the Rights Agreement, to execute this Amendment.
Section 3. Certification of Appropriate Officer. The undersigned officer
of the Company, being duly authorized on behalf of the Company, hereby certifies
on behalf of the Company to the Rights Agent that (a) he is an `officer' of the
Company as such term is used in Section 27 of the Rights Agreement, and (b) this
Amendment is in compliance with Section 27 of the Rights Agreement.
Section 4. Effectiveness and Continued Effectiveness. In accordance with
the resolutions adopted by the Company's Board of Directors, the amendments to
the Rights Agreement set forth in Section 1 above are effective as of the time
at which such resolutions were adopted. The parties hereto hereby acknowledge
and agree that, except as specifically supplemented and amended, changed or
modified in Section 1 above, the Rights Agreement, as previously amended to the
date hereof, shall be unaffected by this Amendment and remain in full force and
effect in accordance with its terms.
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Section 5. Execution in Counterparts. 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
one and the same instrument.
Section 6. Defined Terms. Except as otherwise expressly provided herein,
or unless the context otherwise requires, all terms used but not defined herein
shall have the meanings assigned to them in the Rights Agreement.
Section 7. Governing Law. This Amendment shall be deemed to be a contract
made under the internal substantive laws of the Commonwealth of Massachusetts
and for all purposes shall be governed by and construed in accordance with the
internal substantive laws of such Commonwealth applicable to contracts to be
made and performed entirely within such Commonwealth; provided, however, that
the duties, rights and responsibilities of the Rights Agent shall be governed by
the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
FRIENDLY ICE CREAM CORORATION
By: /s/ Paul V. Hoagland
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Name: Paul V. Hoagland
Title: Executive Vice President and Chief
Financial Officer
THE BANK OF NEW YORK
By: /s/ Stephen Jones
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Name: Stephen Jones
Title: Asst. Vice President
Counterpart Signature Page
Amendment No. 1 to Rights Agreement
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