EXHIBIT 99
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AMENDMENT
OF
RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment") of the Rights Agreement (as defined
below) is made and entered into as of the 15th day of January, 1999, by and
between AU BON PAIN CO., INC., a Delaware corporation (the "Company"), and STATE
STREET BANK AND TRUST COMPANY, as rights agent (the "Rights Agent").
RECITALS:
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WHEREAS, the parties hereto previously entered into a Rights Agreement,
dated as of October 21, 1996, between the Company and the Rights Agent (the
"Rights Agreement"); and
WHEREAS, each of the Company and the Rights Agent desire to amend the
Rights Agreement as set forth below.
NOW, THEREFORE, the undersigned, in consideration of the premises,
covenants and agreements contained herein and in the Rights Agreement, and other
good, sufficient and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, do hereby agree as follows:
1. Amendments. (a) Section 1(m) of the Rights Agreement is hereby
amended and restated in its entirety to read as follows:
(m) "Exempt Person" shall mean (i) the Company or any
Subsidiary (as such term is hereinafter defined) of the
Company, in each case including, without limitation in its
fiduciary capacity, any employee benefit plan of the Company
or of any Subsidiary of the Company, or any entity or trustee
holding Class A Common Stock for or pursuant to the terms of
any such plan or for the purpose of funding any such plan or
funding other employee benefits for employees of the Company
or of any Subsidiary of the Company, and (ii) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, for so long as ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is the Beneficial
Owner of 35% or less of the aggregate voting power of the
shares of Common Stock then outstanding, provided, however,
that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall not cease to be an Exempt Person
as the result of an acquisition of the shares of Common Stock
by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares of
Common Stock beneficially owned by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ to more than 35% of the aggregate voting power of the
shares of Common Stock then outstanding, and further provided
that if ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall become the Beneficial Owner of
more than 35% of the aggregate voting power of the shares of
Common Stock then outstanding by reason of such share
acquisitions by the Company and shall thereafter become the
Beneficial Owner of any additional shares of Common Stock
(other than pursuant to a dividend or distribution paid or
made by the Company on the outstanding Common Stock in shares
of Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock) then ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall cease to
be an Exempt Person.
(b) Section 25 is hereby amended by restating the address for the
Rights Agent as follows:
State Street Bank and Trust Company
c/o EquiServe Limited Partnership
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Client Administration
2. Binding Effect. This Amendment shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
assigns.
3. Execution in Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
4. Rights Agreement in Effect. Except as hereby amended, the Rights
Agreement shall remain in full force and effect.
5. Governing Law. This Amendment shall be governed by, and interpreted
in accordance with, the laws of the State of Delaware, without regard to
principles of conflict of laws.
[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.
AU BON PAIN CO., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Co-Chairman
STATE STREET BANK AND TRUST
COMPANY, as Rights Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: V.P.
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