EXHIBIT 10.2 - FIRST AMENDMENT TO AMENDED AND RESTATED SHAREHOLDER RIGHTS
AGREEMENT
FIRST AMENDMENT TO
AMENDED AND RESTATED SHAREHOLDER RIGHTS AGREEMENT
This First Amendment to Amended and Restated Shareholder Rights
Agreement (the "Amendment") is made and entered into as of the 16th day of June,
2003 (the "Effective Date"), by and between One Price Clothing Stores, Inc., a
Delaware corporation (the "Company"), and Registrar and Transfer Company, a New
Jersey corporation, (the "Rights Agent," which term shall include any successor
Rights Agent), which currently serves as rights agent under that certain Amended
and Restated Shareholder Rights Agreement between the Company and Continental
Stock Transfer & Trust Company, dated as of October 25, 2000, as amended
(formerly known as that certain Shareholders Rights Agreement, dated November 3,
1994, between Wachovia Bank of North Carolina, N.A., as rights agent, and the
Company) (the "Rights Agreement").
WHEREAS, pursuant to the Rights Agreement, the Company has declared a
dividend of one Right (as such term is defined in the Rights Agreement) for each
whole share of common stock of the Company; and
WHEREAS, no Distribution Date, Redemption Date or Final Expiration Date
has occurred under the Rights Agreement (as such terms are defined under the
Rights Agreement); and
WHEREAS, the Company intends to enter into a stock purchase agreement
(the "Stock Purchase Agreement") with Sun One Price, LLC, a Delaware limited
liability company ("Sun"), whereby Sun will acquire a substantial equity
interest in the Company (the "Investment"); and
WHEREAS, the Company desires to amend the Rights Agreement to provide
that Sun and its affiliates and associates will not be an Acquiring Person (as
such term is defined in the Rights Agreement) for purposes of the Rights
Agreement as a result of entering into, or consummating the transactions
contemplated by, the Stock Purchase Agreement; and
WHEREAS, the sole purpose of this Amendment is to facilitate the
Investment as contemplated in the Stock Purchase Agreement; and
WHEREAS, in accordance with Section 27 of the Rights Agreement, the
Company has certified to the Rights Agent that this Amendment is in compliance
with the Rights Agreement and has directed the appropriate officers of the
Company to take all appropriate steps to execute and deliver this Amendment;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Defined Terms. Except as expressly modified herein, all capitalized terms
without definitions used in this Amendment shall have the meanings given them in
the Rights Agreement.
2. Amendments to Rights Agreement.
(a) Section 1(a) of the Rights Agreement is hereby amended and restated in its
entirety as follows:
"Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such
Person, shall on any date hereafter, be the Beneficial Owner
of 15% or more of the shares of Common Stock then outstanding,
but shall not include (i) the Company, (ii) any Subsidiary of
the Company, (iii) any employee benefit plan of the Company or
any of its Subsidiaries, (iv) any entity or Person holding
shares of Common Stock for or pursuant to the terms of any
such plan, (v) any person or entity beneficially owning in
excess of 20% as of the Record Date of the outstanding Common
Stock of the Company, or (vi) Sun One Price, LLC, or any of
its affiliates or associates (as those terms are defined in
Rule 12b-2 of the General Rules and Regulations promulgated
under the Exchange Act) or any of its co-investors, as
provided for in the Stock Purchase Agreement. The Persons
described in clauses (i) through (vi) above are referred to
herein as "Exempt Persons." Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" as the result of an
acquisition of Common Stock by the Company which, by reducing
the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person (together
with all Affiliates and Associates of such Person) to 15% or
more of the Common Stock of the Company then outstanding;
provided, however, that if any Person, (together with all
Affiliates and Associates of such Person, ((other than Exempt
Persons)) shall become the Beneficial Owner of 15% or more of
the Common Stock of the Company then outstanding by reason of
share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any
additional shares of Common Stock of the Company, then such
Person shall be deemed to be an "Acquiring Person."
(b) Section 1(bb) of the of the Rights Agreement is hereby amended
to add the following sentence at the end of the definition of
"Share Acquisition Date" thereof:
"Notwithstanding anything in this Agreement to the
contrary, a Share Acquisition Date shall not be deemed to have
occurred solely as the result of the public announcement,
approval, execution, delivery or performance of that certain
Stock Purchase Agreement by and between the Company and Sun
One Price, LLC dated June 18, 2003."
(c) Section 3(a) of the of the Rights Agreement is hereby amended
to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary, a Distribution Date shall not be deemed to have
occurred solely as the result of the approval, execution,
delivery or performance of that certain Stock Purchase
Agreement by and between the Company and Sun One Price, LLC
dated June 18, 2003."
(d) Section 9(a) of the Rights Agreement is hereby amended and restated in its
entirety as follows:
"The Company covenants and agrees that following the
filing of the Company's Amended and Restated Certificate of
Incorporation with the Delaware Secretary of State, it will
cause to be reserved and kept available out of its authorized
and unissued shares of Common Stock (and, following the
occurrence of an Adjustment Event, other securities or out of
its authorized and issued shares held in its treasury) the
number of shares of Common Stock (and, following the
occurrence of an Adjustment Event, other securities) that, as
provided in this Agreement will be sufficient to permit the
exercise in full of all outstanding Rights; provided, that
such action need not be taken with respect to shares of Common
Stock (or other securities) issuable upon occurrence of an
Adjustment Event until the occurrence of such event."
3. Limited Amendment. All terms and conditions of the Rights Agreement which are
not expressly modified by this Amendment remain in full force and effect.
4. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within such State.
5. Counterparts. This Amendment may be executed in any number of counterparts
and each of such counterparts shall together constitute but one and the same
instrument.
6. Entire Agreement. This Amendment and the Rights Agreement, as amended hereby,
contain the entire understanding between the parties with respect to the subject
matter hereof, and may be modified only by as provided by Section 27 of the
Rights Agreement.
IN WITNESS WHEREOF, and in accordance with Section 27 of the Rights
Agreement, the parties have caused this Amendment to be executed by their
respective duly authorized representatives as of the date first above written.
ATTEST: One Price Clothing Stores, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Asst. Corporate Title: Chairman and Chief
Secretary Executive Officer
ATTEST: Registrar and Transfer Company
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. Tatler
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. Tatler
Title: Secretary Title: Vice President
