EXHIBIT 4.1
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AMENDMENT NO. 1 TO RIGHTS AGREEMENT, dated as of March 30,
2009, between GENERAL EMPLOYMENT ENTERPRISES, INC., an Illinois
corporation (the "Company"), and CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, a New York corporation (the "Rights Agent"), amending the
Rights Agreement, dated as of February 4, 2000 between the Company and
the Rights Agent (the "Rights Agreement").
W I T N E S S E T H
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WHEREAS, the Board of Directors of the Company has approved
a Securities Purchase and Tender Offer Agreement (the "Purchase
Agreement") by and between the Company and PSQ, LLC, a Kentucky
limited liability company ("PSQ"), providing for, among other things,
the issuance and sale by the Company and purchase by PSQ of 7,700,000
newly-issued shares of Common Stock (as defined in the Rights
Agreement) and the offer by PSQ to acquire up to 2,500,000 shares of
Common Stock from the Company's stockholders pursuant to a cash tender
offer upon the terms and conditions set forth in the Purchase
Agreement (the "Sale and Tender Offer");
WHEREAS, the Board of Directors of the Company has
determined that the Sale and Tender Offer is fair to and in the best
interests of the Company and its stockholders, and that none of the
Purchase Agreement or the Sale and Tender Offer should trigger the
protective provisions of the Rights Agreement;
WHEREAS, if the Sale and Tender Offer is completed, PSQ will
own a majority of the then outstanding capital stock of the Company,
and the Board of Directors of the Company has determined that it would
be appropriate to provide thereafter an exception to the definition of
Acquiring Person in the Rights Agreement for PSQ and its affiliated
entities;
WHEREAS, the willingness of PSQ to enter into the Purchase
Agreement is conditioned on, among other things, the amendment of the
Rights Agreement on the terms set forth above and herein;
WHEREAS, the Rights Agreement provides an exception (the
"Xxxxxx Exception") to the definition of Acquiring Person for Xxxxxxx
X. Xxxxxx, Xx. and his Family Members, Family Entities, Family
Charitable Organizations and the other Persons described in Section
1(a)(vi) of the Rights Agreement (each of the foregoing defined terms
shall have the respective meanings ascribed to them in the Rights
Agreement, and each of the Persons described in Section 1(a)(vi) of
the Rights Agreement shall individually be referred to herein as an
"Exempt Xxxxxx Person" and collectively as the "Exempt Xxxxxx
Persons") provided that all securities of the Company beneficially
owned by all Exempt Xxxxxx Persons constitute less than 38% of the
then outstanding shares of Common Stock;
WHEREAS, the Board of Directors of the Company has
determined that, if the Sale and Tender Offer is consummated, the
Xxxxxx Exception should be removed from the Rights Agreement, since
the amount of securities of the Company that will be beneficially
owned by all Exempt Xxxxxx Persons after giving effect to the issuance
of shares of Common Stock pursuant to the Sale and Tender Offer (even
after giving effect to the new shares of Common Stock that Xxxxxxx X.
Xxxxxx, Xx. will receive pursuant to a Consulting Agreement entered
into among Xx. Xxxxxx, the Company and PSQ) will collectively be less
than the 10% triggering requirement that would otherwise classify the
Exempt Xxxxxx Persons as an Acquiring Person under the Rights
Agreement;
WHEREAS, Section 28 of the Rights Agreement provides that,
among other things, the Company may, and the Rights Agent shall if the
Company so directs, supplement or amend any provision of the Rights
Agreement without the approval of any holders of the Rights; and
WHEREAS, the Board of Directors of the Company has approved
an amendment to the Rights Agreement in the form hereof on March 27,
2009;
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. Section 1 of the Rights Agreement is hereby amended by
adding the following definitions thereto:
"PSQ" shall mean PSQ, LLC, a Kentucky limited liability
company.
"Purchase Agreement" shall mean the Securities Purchase and
Tender Offer Agreement, dated as of March 30, 2009, by and
between PSQ and the Company, as the same may be amended in
accordance with the terms thereof.
"Sale and Tender Offer" shall mean the issuance and sale by
the Company and purchase by PSQ of 7,700,000 newly-issued shares
of Common Stock and the offer by PSQ to acquire up to 2,500,000
shares of Common Stock from the Company's stockholders pursuant
to a cash tender offer as contemplated by the Purchase Agreement.
The subsections of Section 1 of the Rights Agreement shall be
relettered to take into account and properly reference in alphabetical
order the additions set forth above.
2. Section 1(a) of the Rights Agreement (before the
relettering contemplated by this Amendment) is hereby amended by
adding to the end thereof the following:
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"Notwithstanding anything to the contrary contained herein,
PSQ shall not be or become an "Acquiring Person" (and no Stock
Acquisition Date shall occur) as a result of (i) the announcement
of the Sale and Tender Offer, or (ii) the execution of the
Purchase Agreement (or any amendments thereto in accordance with
the terms thereof) or the consummation of the transactions
contemplated by the Purchase Agreement (including, without
limitation, the Sale and Tender Offer)."
3. Section 1(a)(iv) of the Rights Agreement (before the
relettering contemplated by this Amendment) is hereby amended in its
entirety to read as follows, provided that such amendment shall not be
effective until the consummation of the Sale and Tender Offer:
"any Person who becomes the Beneficial Owner of 10% or more of
the shares of Common Stock then outstanding as a result of a
reduction in the number of shares of Common Stock outstanding due
to the repurchase of shares of Common Stock by the Company unless
and until such Person, after becoming aware that such Person has
become the Beneficial Owner of 10% or more of the then
outstanding shares of Common Stock, acquires beneficial ownership
of additional shares of Common Stock;"
4. Section 1(a)(vi) of the Rights Agreement (before the
relettering contemplated by this Amendment) is hereby amended in its
entirety to read as follows, provided that such amendment shall not be
effective until the consummation of the Sale and Tender Offer:
"PSQ and its Affiliates and Associates."
5. Section 3(a) of the Rights Agreement is hereby amended
by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
no Distribution Date shall occur as a result of (i) the
announcement of the Sale and Tender Offer, or (ii) the execution
of the Purchase Agreement (or any amendments thereto in
accordance with the terms thereof) or the consummation of the
transactions contemplated by the Purchase Agreement (including,
without limitation, the Sale and Tender Offer), and no
Distribution Date will, in any event, occur with respect to the
Sale and Tender Offer or the Purchase Agreement prior to the
earlier of the Closing Date (as defined in the Purchase
Agreement) or the termination of the Purchase Agreement."
6. Section 7(a) of the Rights Agreement is hereby amended
in its entirety to read as follows:
"The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein,
including without limitation the restrictions on exercisability
set forth in Section 24(a) hereof) in whole or in part at any
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time after the Distribution Date, upon surrender of the Right
Certificate, with the form of election to purchase on the reverse
side thereof duly executed, to the Rights Agent at the principal
office of the Rights Agent in New York, New York, together with
payment of the Purchase Price for each share of Common Stock of
the Company as to which the Rights are exercised, at or prior to
the earlier of the close of business on (i) February 22, 2010
(the "Final Expiration Date"), (ii) immediately prior to the
Closing Date (as defined in the Purchase Agreement) or (iii) the
date on which the Rights are redeemed pursuant to Section 24
(such earlier date being herein referred to as the "Expiration
Date")."
7. Section 11 of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"(q) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 11 will not apply to or be
triggered by (i) the announcement of the Sale and Tender Offer,
or (ii) the execution of the Purchase Agreement (or any
amendments thereto in accordance with the terms thereof) or the
consummation of the transactions contemplated by the Purchase
Agreement (including, without limitation, the Sale and Tender
Offer)."
8. Section 13 of the Rights Agreement is hereby amended by
adding to the end thereof the following:
"(f) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 13 will not apply to or be
triggered by the execution of the Purchase Agreement (or any
amendments thereto in accordance with the terms thereof) or the
consummation of the transactions contemplated by the Purchase
Agreement (including, without limitation, the Sale and Tender
Offer)."
9. The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Amendment No. 1.
10. The term "Agreement" as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended by this
Amendment No. 1.
11. Except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected
hereby.
12. This Amendment No. 1 shall be effective as of, and
immediately prior to, the execution and delivery of the Purchase
Agreement.
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13. This Amendment No.1 shall be deemed to be a contract
made under the laws of the State of Illinois and for all purposes will
be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such
State.
14. Exhibits A and B to the Rights Agreement shall be
deemed amended in a manner consistent with this Amendment No. 1.
15. This Amendment No. 1 may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed, all as of the day and year first
above written.
GENERAL EMPLOYMENT ENTERPRISES, INC.
By /s/ Xxxx X. Xxxxx
Its Vice President, Chief Financial
Officer and Treasurer
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, as Rights Agent
By /s/ Xxxx X. Xxxxx
Its Vice President
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