1
Exhibit 4.2(b)
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT (the "FIRST AMENDMENT") to the RIGHTS AGREEMENT
(the "AGREEMENT") dated as of December 31, 1997 between INNOTRAC CORPORATION, a
Georgia corporation ("INNOTRAC") and RELIANCE TRUST COMPANY as Rights Agent
("RELIANCE") is made as of the 30th day of November, 2000 between Innotrac,
Reliance and SUNTRUST BANK ("SUNTRUST").
WITNESSETH:
WHEREAS, the parties desire and deem it to be in their mutual best
interests to replace Reliance as Rights Agent under the Agreement with SunTrust;
WHEREAS, the parties desire and deem it to be in their mutual best
interests to amend the Agreement as set forth in this First Amendment; and
WHEREAS, SunTrust currently serves as transfer agent for Innotrac;
NOW, THEREFORE, for and in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree, represent and warrant as
follows:
SECTION 1. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Agreement.
SECTION 2. APPOINTMENT OF SUNTRUST AS SUCCESSOR RIGHTS AGENT.
(a) Effective upon execution of this First Amendment, Innotrac hereby appoints
SunTrust to succeed Reliance as Rights Agent under the Agreement. Upon the
effectiveness of the appointment, SunTrust shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent under the Agreement without further act or deed.
(b) Reliance shall deliver and transfer to SunTrust any property
held by Reliance under the Agreement, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SUNTRUST. SunTrust
hereby represents and warrants that it is either (a) a corporation organized and
doing business under the laws of the United States or of the State of Georgia
(or any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of Georgia), in
good standing, having a principal office in the State of Georgia, and authorized
under such laws to exercise stock transfer or corporate trust powers and is
subject to supervision or examination by federal or state authority or (b) an
Affiliate of a corporation described in SECTION 3(A).
SECTION 4. AMENDMENT OF SECTION 18(A) OF THE AGREEMENT.
Effective immediately after the appointment of SunTrust as successor Rights
Agent under the
2
Agreement, the second sentence of Section 18(a) of the Agreement is hereby
deleted in its entirety and the following new second sentence of Section 18(a)
is inserted in lieu thereof:
"The Company also agrees to indemnify the Rights Agent for, and to hold
it harmless against, any loss, liability, or expense, incurred without
gross negligence, bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement or
the exercise or performance of its duties hereunder, including the
costs and expenses of defending against any claim of liability."
SECTION 5. AMENDMENT OF SECTION 20(C) OF THE AGREEMENT.
Effective immediately after the appointment of SunTrust as successor Rights
Agent under the Agreement, Section 20(c) of the Agreement is hereby deleted in
its entirety and the following new Section 20(c) is inserted in lieu thereof:
"(c) The Rights Agent shall be liable hereunder only for
its own gross negligence, bad faith or willful misconduct."
SECTION 6. AMENDMENT OF SECTION 27 OF THE AGREEMENT. Effective
immediately after the appointment of SunTrust as successor Rights Agent under
the Agreement, the following sentence is hereby added to the end of Section 27
of the Agreement:
"Notwithstanding anything contained in this Agreement to the contrary,
no supplement or amendment shall be made which affects the duties,
standard of care and indemnification of the Rights Agent without the
express consent of the Rights Agent."
SECTION 7. NOTICES TO SUNTRUST. Any notices to SunTrust as
Rights Agent pursuant to Section 26 of the Agreement shall be made to the
following address or such other address as SunTrust shall specify in writing to
Innotrac:
SunTrust Bank
Stock Transfer Department
Mail Code 258
Post Office Box 4625
Atlanta, Georgia 30302
Attention: Department Manager
SECTION 8. WAIVER OF NOTICE UNDER SECTION 21. Reliance and
SunTrust agree to waive any notice required under Section 21 of the Agreement
with respect to the appointment of SunTrust as successor Rights Agent.
SECTION 9. NO OTHER CHANGES. Except as set forth in this First
Amendment, the other provisions of the Agreement shall remain in full force and
effect in accordance
2
3
with their respective terms. Except as expressly set forth in this First
Amendment, nothing contained herein shall constitute a waiver of any rights or
claims of any party heretofore or hereafter arising under or related to the
Agreement.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the date first above written.
INNOTRAC CORPORATION
By:/s/David L. Gamsey
-----------------------------------------
Name: David L. Gamsey
Title: Senior Vice President, Chief
Financial Officer and Secretary
RELIANCE TRUST COMPANY
By:/s/Jerry W. Dawson
-----------------------------------------
Name: Jerry W. Dawson
Title: Senior Vice President
SUNTRUST BANK
By:/s/Sandra Benefield
-----------------------------------------
Name: Sandra Benefield
Title: Assistant Vice President
3