SECOND AMENDMENT TO
AMENDED AND RESTATED RIGHTS AGREEMENT
This Second Amendment to Amended and Restated Rights Agreement, dated
as of July 19, 2004 (the "AMENDMENT"), is between Venturi Partners, Inc., a
Delaware corporation (the "COMPANY"), and Wachovia Bank, National Association, a
national banking association, as successor rights agent (the "RIGHTS AGENT").
Capitalized terms used but not defined herein have the meanings given such terms
in the Rights Agreement (as defined below).
PRELIMINARY STATEMENTS
A. The Company and the Rights Agent entered into a Rights Agreement,
dated as of February 6, 2001, which Rights Agreement was amended by the First
Amendment to Rights Agreement, dated as of December 13, 2001, the Second
Amendment to Rights Agreement, dated as of March 14, 2003, the Amended and
Restated Rights Agreement, dated April 14, 2003 and the Amendment to Amended and
Restated Rights Agreement dated as of August 18, 2003 (as amended, the "RIGHTS
AGREEMENT").
B. The Company, VTP, Inc., Venturi Technology Partners, LLC, COMSYS
Information Technology Services, Inc., COMSYS Holding, Inc. and each holder of
capital stock of COMSYS Holding, Inc. party thereto (the "HOLDING STOCKHOLDERS")
plan to enter into an Agreement and Plan of Merger (the "MERGER AGREEMENT"),
pursuant to which, upon the terms and subject to the conditions thereof, VTP,
Inc. will merge with and into COMSYS Holding, Inc. and COMSYS Holding, Inc. will
be the surviving entity (the "MERGER").
C. At or prior to the Effective Time of the Merger (as defined in the
Merger Agreement), the Company plans to enter into a Voting Agreement (the
"VOTING AGREEMENT") with each "Significant Holder" (as such term is defined in
the Company's restated certificate of incorporation) as of the Effective Time to
provide for certain rights and restrictions of such Significant Holders.
D. The Company deems this Amendment to the Rights Agreement to be
necessary and desirable and in the best interests of the holders of the Rights
and has duly approved this Amendment.
E. No event has occurred that would cause any person to be deemed an
Acquiring Person.
F. The Company desires to amend the Rights Agreement in accordance with
Section 28(a) thereof.
NOW, THEREFORE, for good, valuable and binding consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound hereby, now agree as follows:
STATEMENT OF AGREEMENT
1. Amendment to Section 1. Each of the additions and deletions
described below are hereby made to the Rights Agreement.
(a) Section 1 of the Rights Agreement is amended by adding
thereto a new definition immediately after the definition of "Distribution Date"
and immediately before the definition of "Equivalent Preferred Stock," which new
definition shall read as follows:
"Effective Time" shall have the meaning given such term in the
Merger Agreement.
(b) Section 1 of the Rights Agreement is amended by adding
thereto two new definitions immediately after the definition of "Final
Expiration Date" and immediately before the definition of "Permitted Holder,"
which new definitions shall read as follows:
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of July 19, 2004, among the Company, VTP, Inc.,
Venturi Technology Partners, LLC, COMSYS Information Technology
Services, Inc., COMSYS Holding, Inc., and each holder of capital stock
of COMSYS Holding, Inc. party thereto, namely, Old Trafford Investment
Pte Ltd., GTCR Fund VI, L.P., GTCR VI Executive Fund, L.P., GTCR
Associates VI, ▇.▇. ▇▇▇▇▇▇ Direct Corporate Finance Institutional
Investors LLC, ▇.▇. ▇▇▇▇▇▇ Direct Corporate Finance Private Investors
LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Fund, L.P., Wachovia Investors, Inc., ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
as the same may be amended from time to time.
"Merger Parties" shall have the meaning set forth in Section
36 hereof.
(c) Section 1 of the Rights Agreement is amended by adding
thereto a new definition immediately after the definition of "Triggering Event,"
which new definition shall read as follows:
"Voting Agreement" shall mean the Voting Agreement to be
entered into among the Company and each "Significant Holder" (as such
term is defined in the Company's restated certificate of incorporation)
as of the Effective Time (as such term is defined in the Merger
Agreement), substantially in the form attached as Exhibit O to the
Merger Agreement, together with any such changes as mutually agreed
upon by the parties thereto.
2. Amendment to Section 7(a). The Rights Agreement is hereby amended by
amending and restating Section 7(a) in its entirety as follows:
(a) Subject to Section 7(e) hereof, at any time after the
Distribution Date the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise provided
herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and
Section 23(a) hereof) in whole or in part upon surrender of the Rights
Certificate, with the form of election to
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purchase and the certificate on the reverse side thereof duly executed,
to the Rights Agent at the principal office or offices of the Rights
Agent designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number of one
one-hundredths of a share (or other securities, cash or other assets,
as the case may be) as to which such surrendered Rights are then
exercisable, at or prior to the earlier of (i) 5:00 P.M., Charlotte,
North Carolina time, on February 6, 2006, or such later date as may be
established by the Board of Directors prior to the expiration of the
Rights (such date, as it may be extended by the Board, the ("Final
Expiration Date"), (ii) the time at which the Rights are redeemed or
exchanged as provided in Section 23 and Section 24 hereof or (iii)
immediately prior to the Effective Time of the Merger (the earlier of
(i), (ii) and (iii) being herein referred to as the "Expiration Date").
3. New Section 36. The Rights Agreement is amended by adding thereto a
new Section 36, which provides as follows:
Section 36. Exception for Merger Agreement and Voting
Agreement. Notwithstanding anything in this Agreement to the contrary,
none of COMSYS Information Technology Services, Inc., COMSYS Holding,
Inc., the holders of capital stock of COMSYS Holding, Inc. party to the
Merger Agreement or any other party to the Voting Agreement nor any of
their respective Affiliates or Associates (collectively, the "MERGER
PARTIES"), either alone or as a group, shall be or become an Acquiring
Person, and no Stock Acquisition Date, Distribution Date, Acquisition
Transaction or Triggering Event shall occur, no Rights shall separate
from the Common Stock or otherwise become exercisable and no adjustment
shall be made pursuant to Section 11 of this Agreement in each case by
virtue of (i) the execution, delivery or performance of the Merger
Agreement (or any amendments thereto) or the consummation of the
transactions contemplated thereby, including, without limitation, the
Merger (as defined in the Merger Agreement), (ii) the execution,
delivery or performance of the Voting Agreement and any amendments
thereto, or the consummation of the transactions contemplated thereby,
(iii) the announcement of the Merger Agreement or the Voting Agreement,
or (iv) any of the Merger Parties becoming the Beneficial Owner of
shares of Common Stock pursuant to the Merger Agreement, the Voting
Agreement or otherwise as a result of any of the transactions
contemplated by the Merger Agreement or the Voting Agreement,
including, without limitation, the Merger.
4. New Section 37. The Rights Agreement is amended by adding thereto a
new Section 37, which provides as follows:
Section 37. Termination of Rights Agreement. Notwithstanding
anything in this Agreement to the contrary, this Agreement shall
terminate immediately prior to the Effective Time of the Merger and
shall be of no further force and effect as of such time.
5. 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.
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6. Authority. Each party represents that such party has full power and
authority to enter into this Amendment, and that this Amendment constitutes a
legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms.
7. 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.
8. 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.
9. Descriptive Headings. Descriptive headings of the several Sections
of this Amendment are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
[Signature Page Follows]
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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: Venturi Partners, Inc.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Secretary Title: Chief Executive Officer
Attest: Wachovia Bank, National Association,
as Rights Agent
By: /s/ D. ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: D. ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Officer Title: Officer
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