EXHIBIT 4.1
EXECUTION COPY
SECOND AMENDMENT TO RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO RIGHTS AGREEMENT, dated as of March
__, 2003 (the "Amendment"), is between PERSONNEL GROUP OF AMERICA, INC., a
Delaware corporation (the "Company"), and WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly known as First Union National Bank), a national banking association,
as successor rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into a
Rights Agreement, dated as of February 6, 2002, which Rights Agreement was
amended by the First Amendment to Rights Agreement, dated as of December 13,
2001 (as amended, the "Rights Agreement");
WHEREAS, there is not as of the date hereof any Acquiring
Person (as defined in the Rights Agreement); and
WHEREAS, the Company desires to amend the Rights Agreement in
accordance with Section 27;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment, the parties
hereby agree as follows:
1. Amendment to Definition of "Acquiring Person". Section 1(a) of the
Rights Agreement is amended to add the following sentence after the
last sentence thereof: "Notwithstanding the foregoing, the
MatlinPatterson Group, the Inland/Links Group and any Other
Noteholders, and Affiliates of any of the foregoing, shall not become
an Acquiring Person by virtue of the acquisition of Beneficial
Ownership of shares of Common Stock as a result of (i) the execution of
a Restructuring Agreement by and among the Company, MatlinPatterson
Global Opportunities Partners L.P., Inland Partners, L.P., Links
Partners, L.P. and certain Other Noteholders (as the same may be
amended from time to time, the "Restructuring Agreement") as generally
contemplated by the agreement-in-principle dated as of November 11,
2002, among the Company, certain of its lenders under Amendment No. 4
dated as of February 8, 2002 to the Amended and Restated Credit
Agreement, dated as of June 23, 1997, between the Company, Bank of
America, N. A. as agent, and the lenders party thereto, and certain
holders of the Company's 5 3/4% Convertible Subordinated Notes, due
2004, or (ii) the consummation of the transactions contemplated by the
terms of the Restructuring Agreement. For purposes of this Agreement,
the "MatlinPatterson Group" shall mean MatlinPatterson Global
Opportunities Partners L.P. and any Affiliates of MatlinPatterson
Global Opportunities Partners L.P. that are party to the Schedule 13D/A
of the Company filed on November 20, 2002 (the "Schedule 13D"); the
"Links/Inland Group" shall mean Inland Partners, L.P. and Links
Partners, L.P. and any Affiliates of Inland Partners, L.P. and Links
Partners, L.P. that are party to the Schedule 13D; and "Other
Noteholders" shall mean any other holders of 53/4% Convertible
Subordinated Notes due 2004 of the Company that are signatories to the
Restructuring Agreement.
2. Rights Agreement as Amended. The term "Agreement" as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as amended
hereby. The foregoing amendments shall be effective as of the date
hereof and, except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected
hereby.
3. Counterparts. This Amendment may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be
deemed an original, but all such counterparts shall together constitute
but one and the same instrument.
4. Governing Law. 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 of such State
applicable to contracts made and to be performed entirely within such
State.
5. Descriptive Headings. Descriptive headings of the several Sections of
this Agreement are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
Attest: PERSONNEL GROUP OF AMERICA, INC.
/s/ Xxx X. Xxxxxxxx, Xx. By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxx X. Xxxxxxxx, Xx. Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President and Title: Chief Executive Officer
Secretary
Attest: WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly known as First Union
National Bank), as Rights Agent
/s/ Xxxxxxx Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx Xxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Trust Officer Title: Trust Officer
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