EXHIBIT 4.1
[LETTERHEAD OF
FLOWERS FOODS, INC.]
November 15, 2002
Wachovia Bank, N.A.
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Attention: Shareholder Services Group
Re: Amendment No. 1 to Rights Agreement
Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement (the "Rights Agreement"),
dated as of March 23, 2001, between Flowers Foods, Inc. (the "Company"), and
Wachovia National Bank, N.A. (as successor in interest to First Union National
Bank), as rights agent, the Company, by resolution adopted by a majority of the
Continuing Directors (as defined in the Rights Agreement), hereby amends the
Rights Agreement as follows:
1. Section 1 of the Rights Agreement is hereby amended by adding
the following Subsection (ee) at the end of Section 1:
"(ee) "Exempt Filer" means (i) any Person that has reported
or is required to report beneficial ownership of Common
Shares on (A) Schedule 13D (or any comparable or successor
report) under the Exchange Act, if (I) such Schedule 13D was
filed with the Securities and Exchange Commission before
November 15, 2002 and such Person is a Person specified in
Rule 13d-1(b)(1)(ii) under the Exchange Act, or (II)(x) such
Person is a Person specified in Rule 13d-1(b)(1)(ii) under
the Exchange Act and (y) such Schedule 13D (including any
amendments thereto) does not state any intention to, or
reserve the right to, change or influence control of the
Company, its management or its policies, or engage in any of
the actions specified in Item 4 of Schedule 13D (other than
the disposition of Common Shares) or (B) Schedule 13G (or any
comparable or successor report) under the Exchange Act, and
(ii) any Affiliate or Associate of such Person."
2. Section 1(a) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(a) "Acquiring Person" means (i) any Person (other than the Company,
any Related Person or any Exempt Filer) who or which,
Wachovia Bank, N.A.
November 15, 2002
Page 2
together with all Affiliates and Associates of such Person, is the
Beneficial Owner of 15% or more of the then-outstanding Common Shares,
or (ii) an Exempt Filer who or which, together with all Affiliates and
Associates of such Exempt Filer, is the Beneficial Owner of 20% or
more of the then-outstanding Common Shares; provided, however, that a
Person will not be deemed to have become an Acquiring Person solely as
a result of a reduction in the number of Common Shares outstanding
unless and until such time as (i) such Person or any Affiliate or
Associate of such Person thereafter becomes the Beneficial Owner of
Common Shares representing 1% or more of the then-outstanding Common
Shares, other than as a result of a stock dividend, stock split or
similar transaction effected by the Company in which all holders of
Common Shares are treated equally, or (ii) any other Person who is the
Beneficial Owner of Common Shares representing 1% or more of the
then-outstanding Common Shares thereafter becomes an Affiliate or
Associate of such Person. Notwithstanding the foregoing, if the
Continuing Directors of the Company determine in good faith that a
Person who would otherwise be an "Acquiring Person" as defined
pursuant to the foregoing provisions of this paragraph (a), has become
such inadvertently, and such Person divests as promptly as practicable
a sufficient number of Common Shares so that such Person would no
longer be an "Acquiring Person" as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed
to be an "Acquiring Person" for any purposes of this Agreement."
3. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment No. 1 to Rights Agreement, but shall remain
in full force and effect.
4. Capitalized terms used without other definition in this
Amendment No. 1 to Rights Agreement shall be used as defined in the Rights
Agreement.
5. This Amendment No. 1 to Rights Agreement will be deemed to be
a contract made under the internal substantive laws of the State of Georgia and
for all purposes will be governed by and construed in accordance with the
internal substantive laws of such State applicable to contracts to be made and
performed entirely within such State.
6. This Amendment No. 1 to Rights Agreement 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 but one and the same instrument.
7. This Amendment No. 1 to Rights Agreement shall be effective
as of the date hereof, and all references to the Rights Agreement shall, from
and after such time, be deemed to be references to the Rights Agreement as
amended hereby.
Wachovia Bank, N.A.
November 15, 2002
Page 3
8. Exhibits B and C to the Rights Agreement shall be deemed
amended in a manner consistent with this Amendment No. 1 to Rights Agreement.
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Wachovia Bank, N.A.
November 15, 2002
Page 4
Very truly yours,
FLOWERS FOODS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and General Counsel
Accepted and agreed to as of
the date hereof:
WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
