Exhibit 4.1
EXECUTION VERSION
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
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This Amendment No. 2 (the "Amendment") to 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"), as
amended by Amendment No. 1 to the Rights Agreement, dated as of June 17, 2007
(the "Rights Agreement"), is entered into as of July 3, 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) The last two sentences of Section 1(a) of the Rights
Agreement are hereby amended and restated as follows:
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; (D)
the consummation of the other transactions
contemplated by the Merger Agreement or the
Stockholders Agreements; or (E) an acquisition of any
Common Shares subject to the 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,
provided the sale of such shares is permitted under
such Stockholders Agreement. Each event described in
subclauses (A), (B), (C), (D) and (E) is referred to
herein as an "Exempted Transaction."
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.
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/ Gregory A. Pastore
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Name: Gregory A. Pastore
Title: Vice President and General Counsel
THE BANK OF NEW YORK
By: /s/ Stephen R. Jones
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Name: Stephen R. Jones
Title: Assistant Vice President