Exhibit 10.1
SECOND AMENDMENT TO RIGHTS AGREEMENT
SECOND AMENDMENT, dated as of December 13, 2002 (this "Amendment") to the
Rights Agreement dated as of August 19, 1999, and amended as of September 19,
2001 (the "Agreement"), between Talk America Holdings, Inc. (formerly ▇▇▇▇.▇▇▇,
Inc.), a Delaware corporation (the "Company"), and First City Transfer Company,
a Delaware corporation ("First City").
WHEREAS, the parties hereto previously executed and delivered the
Agreement;
WHEREAS, pursuant to Section 21 of the Agreement, First City desires to
resign and be discharged of all of its duties under the Agreement as of the date
hereof, and the Company desires to accept such resignation and discharge of
duties;
WHEREAS, pursuant to Section 21 of the Agreement, the Company desires to
appoint Stocktrans, Inc. as the successor Rights Agent (the "New Rights Agent"),
and the New Rights Agent desires to accept such appointment as of the date
hereof and to be vested with the same powers, rights, duties and
responsibilities as if it had originally been named Rights Agent under the
Agreement;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS. Capitalized terms used but not defined in
this Amendment shall have the meanings given to such terms in the Agreement.
SECTION 2. RESIGNATION. First City hereby resigns as Rights Agent as of the
date hereof and is hereby discharged of all of its duties under the Agreement as
of the date hereof, and the Company hereby accepts such resignation and
discharge of duties.
SECTION 3. APPOINTMENT OF SUCCESSOR. The Company hereby appoints the New
Rights Agent as the successor Rights Agent as of the date hereof. By signing
below, the New Rights Agent hereby accepts and assumes, and is hereby vested
with, the same powers, rights, duties and responsibilities as if it had
originally been named Rights Agent under the Agreement. All references to
"Rights Agent" in the Agreement shall now be deemed to refer to the New Rights
Agent.
SECTION 4. NOTICE TO FIRST CITY. First City hereby agrees that this
Amendment shall serve as notice to First City of the appointment of a successor
Rights Agent in satisfaction of the notice requirement set forth in Section 21
of the Agreement.
SECTION 5. AMENDMENT TO SECTION 21. The fifth sentence of Section 21 of the
Agreement is hereby amended and restated to read as follows:
"Any successor Rights Agent, whether appointed by the Company or
by such a court, shall be (a) a corporation or financial institution
organized and doing business under the laws of the United States or of
the States of Delaware, New York, New Jersey, Pennsylvania or Virginia
(or of any other state of the United States so long as such
corporation is authorized to do business as a banking institution in
the State of Delaware, New York, New Jersey, Pennsylvania or
Virginia), in good standing, and having a principal office in the
State of Delaware, New York, New Jersey, Pennsylvania or Virginia
which is authorized under such laws to exercise corporate trust or
stock transfer powers and is subject to supervision or examination by
federal or state authority or (b) an affiliate of a corporation or
financial institution described in clause (a) of this sentence."
SECTION 6. ADDRESS FOR NOTICES. The address for notices to the Rights
Agent set forth in Section 24 of the Agreement is hereby amended to read as
follows:
Stocktrans, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECTION 7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by and construed
and enforced in accordance with the laws of the state of Delaware without
reference to its conflicts of laws principles.
SECTION 9. MISCELLANEOUS. The Agreement is amended to provide that
references in the Agreement to "this Agreement" or "the Agreement" (including
indirect references such as "hereunder," "hereby," "herein" and "hereof") shall
be deemed to be references to the Agreement as amended hereby. This Amendment
does not, and shall not be construed to, modify any term or condition of the
Agreement except as expressly provided in this Amendment. Except as herein
provided, the Agreement shall remain unchanged and in full force and effect. In
the event of any inconsistency or discrepancy between the Agreement and this
Amendment, the terms and conditions set forth in this Amendment shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year above first written.
TALK AMERICA HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Lawn IV
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Lawn IV
Title: Executive Vice President,
General Counsel and Secretary
FIRST CITY TRANSFER COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
ACCEPTED AND AGREED AS
OF THE DATE SET FORTH ABOVE:
STOCKTRANS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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