EXHIBIT 4.1
FIRST AMENDMENT TO
AMENDED AND RESTATED STOCKHOLDERS RIGHTS AGREEMENT
This First Amendment, dated as of October 3, 2005 (this
"Amendment"), to the Amended and Restated Stockholders Rights Agreement, dated
as of April 28, 1999 (the "Rights Agreement"), is made between Whitehall
Jewellers, Inc., a Delaware corporation (the "Company"), and LaSalle Bank, 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 a Securities
Purchase Agreement dated as of October __, 2005 (the "Purchase Agreement")
pursuant to which, among other things, the investor or investors listed on the
schedule attached thereto from time to time (individually, a "Buyer" and
collectively, the "Buyers") will purchase Securities (as such term is defined
therein);
WHEREAS, the Company and the Rights Agent desire to amend the
Rights Agreement to exempt the issuance of the Securities (as defined in the
Purchase Agreement) and to correct the reference to the Rights Agreement in the
stock certificate legend;
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 following language is added to the end of the
definition of "Acquiring Person" in Section 1(a) to the Rights Agreement:
"Notwithstanding anything to the contrary contained herein, (i) none of
the Buyers, including without limitation, Prentice Capital Management,
LP, a Delaware limited partnership ("Prentice"), or any of its
respective Affiliates or Associates (including, without limitation, PWJ
Funding LLC, a Delaware limited liability company and PWJ Lending LLC,
a Delaware limited liability company), Prentice, the Buyers and their
respective Affiliates and Associates being collectively referred to as
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 Securities Purchase
Agreement, dated as of October __, 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") or the issuance of
any warrant, convertible note or other agreement contemplated thereby
(as they may be amended from time to time, the Securities Purchase
Agreement, Bridge Loan Agreement and any such warrant, convertible note
or other agreement contemplated thereby being collectively referred to
as the "Buyer Documents"), the public announcement of execution and
delivery, the performance of the Buyer Documents, or the consummation
of the other transactions contemplated by the Buyer Documents
(including, without limitation, the exercise of any conversion rights
or warrants) and (iii) for the avoidance of doubt, the warrants and any
shares of Common Stock issuable upon exercise thereof shall not be
counted in any determination of whether the Buyers shall have become an
Acquiring Person or that a Distribution Date or Share Acquisition Date
has occurred. From and after the closing of the sale of convertible
notes under the Securities Purchase Agreement, each Buyer 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 Buyer and its Affiliates and Associates."
2. The first sentence of the legend set forth in Section 3(c)
of the Rights Agreement is hereby amended and restated in its entirety to read
as follows:
"This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Amended and
Restated Stockholders Rights Agreement dated as of April 28,
1999, as amended on October __, 2005 and as it may be amended
from time to time (the "Rights Agreement") between Whitehall
Jewellers, Inc. (the "Company") and LaSalle Bank, as Rights
Agent, the terms, provisions and conditions of which are
incorporated herein by reference and made a part hereof.
3. 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.
4. Except as otherwise amended hereby, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
5. 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.
* * * * *
2
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/ John R. Desjardins
--------------------------
Name: John R. Desjardins
Title: Executive Vice President and Chief
Financial Officer
LASALLE BANK
as Rights Agent
By: /s/ Mark F. Rimkus
--------------------------
Name: Mark F. Rimkus
Title: Vice President