1
Exhibit 4.1
[Form of Amendment to Company Rights Agreement]
AMENDMENT, dated as of June 15, 1998 (the "Amendment"), to the
Agreement, dated as of November 1, 1995 (the "Rights Agreement"), between
XxXxxxxx & Company Investments, Inc., a Delaware corporation (the "Company"),
and National City Bank, as Rights Agent (the "Rights Agent") as amended by
Amendment No. 1 thereto, dated February 4, 1998, and as further amended.
RECITALS
A. The Company and the Rights Agent have heretofore executed
and entered into the Rights Agreement, as amended;
B. The Company and KeyCorp, an Ohio corporation (the
"Acquiror"), are entering into an Agreement and Plan of Merger, dated as of June
15, 1998 (as amended, supplemented or replaced from time to time, the "Merger
Agreement") contemplating a business combination between Issuer and Grantee (the
"Merger");
C. In connection with the Merger Agreement, Acquiror and the
Company are entering into a stock option agreement (the "Stock Option
Agreement") pursuant to which the Company will grant to Acquiror an option to
purchase shares of the Company's common stock, par value $1.00 per share, on the
terms and subject to the conditions set forth in the Stock Option Agreement, and
the Board of Directors of the Company has approved the Stock Option Agreement;
D. Pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may from time to time supplement and amend the Rights
Agreement;
E. The Board of Directors of the Company has determined that
an amendment to the Rights Agreement as set forth herein is necessary and
desirable in connection with the foregoing and the Company and the Rights Agent
desire to evidence such amendment in writing; and
F. All acts and things necessary to make this Amendment a
valid agreement, enforceable according to its terms have been done and
performed, and the execution and delivery of this Amendment by the Company and
the Rights Agent have been in all respects duly authorized by the Company and
the Rights Agent.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
2
1. AMENDMENT OF SECTION 1. (a) The definition of "Acquiring
Person" in Section 1(a) of the Rights Agreement is amended by adding the
following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither
KeyCorp nor any of its Affiliates or Associates shall be deemed to be
an Acquiring Person solely by virtue of (i) the execution of the Merger
Agreement or the Stock Option Agreement, (ii) the consummation of the
Merger, (iii) the consummation of any other transaction contemplated in
the Merger Agreement or the Stock Option Agreement or (iv) Common
Shares held in a BONA FIDE fiduciary capacity."
(b) Section 1 of the Rights Agreement is supplemented by
adding the following definitions in the appropriate locations therein:
"Merger" shall have the meaning set forth in the
Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan
of Merger, dated as of June 15, 1998, between XxXxxxxx & Company
Investments, Inc. and KeyCorp, as it may be amended, supplemented or
replaced from time to time.
"Stock Option Agreement" shall have the meaning set
forth in the Merger Agreement."
(c) The definition of "Shares Acquisition Date" in Section 1
of the Rights Agreement is amended by adding the following sentence at the end
thereof.
"Notwithstanding anything in this Agreement to the contrary, a Shares
Acquisition Date shall not be deemed to have occurred solely as the
result of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Merger, or (iii) the
consummation of any other transaction contemplated by the Merger
Agreement or the Stock Option Agreement."
2. AMENDMENT OF SECTION 3(b). Section 3(b) of the Rights
Agreement is amended by replacing the first sentence thereof with the following
sentence:
"On the Record Date, or as soon as practicable thereafter, the Company
will send a copy of a Summary of Rights to Purchase Preferred Shares,
in substantially of Exhibit C hereto (the "Summary of Rights"), by
first-class, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Record Date, at the address
of such holder shown on the records of the Company; provided that,
notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as the
result of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Merger, (iii) the consummation
of any other transaction contemplated in the Merger Agreement or the
Stock Option Agreement, or (iv) Common Shares held in a BONA FIDE
fiduciary capacity."
3
3. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights
Agreement is amended and restated in its entirety as follows:
"(a) The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise provided
herein) in whole or in part at any 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, together with payment of
the Purchase Price for each one one-hundredth of a Preferred Share as
to which the Rights are exercised, at or prior to the earliest of (i)
the close of business on November 1, 2005, (ii) immediately prior to
the time at which the consummation of the Merger occurs (the earlier to
occur of (i) or (ii) being the "Final Expiration Date"), (iii) the time
at which the Rights are redeemed as provided in Section 23 hereof (the
"Redemption Date"), or (iv) the time at which such Rights are exchanged
as provided in Section 24 hereof."
4. AMENDMENT OF SECTION 11(a)(ii). Section 11(a)(ii) of the
Rights Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none of
(i) the execution of the Merger Agreement and the Stock Option
Agreement, (ii) the consummation of the Merger or (iii) the
consummation of any other transaction contemplated in the Merger
Agreement or the Stock Option Agreement shall cause the Rights to be
adjusted or become exercisable in accordance with this Section
11(a)(ii)."
5. AMENDMENT OF SECTION 13. Section 13 of the Rights Agreement
is amended and restated in its entirety as follows:
"Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power. In the event, directly or
indirectly, at any time after a Person has become an Acquiring Person,
(a) the Company shall consolidate with, or merge with and into, any
other Person, (b) any Person shall consolidate with the Company, or
merge with and into the Company and the Company shall be the continuing
or surviving corporation of such merger and, in connection with such
merger, all or part of the Common Shares shall be changed into or
exchanged for stock or other securities of any other Person (or the
Company) or cash or any other property, or (c) the Company shall sell
or otherwise transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or earning
power aggregating 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person
other than the Company or one or more of its wholly-owned Subsidiaries,
then, and in each such case, proper provision shall be made so that (i)
each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current Purchase Price multiplied by the number
of one one-hundredths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu
of Preferred Shares, such number of Common Shares of such other Person
(including the Company as successor thereto or as
4
the surviving corporation) as shall equal the result obtained by (A)
multiplying the then current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right is then
exercisable and dividing that product by (B) 50% of the then current
per share market price of the Common Shares of such other Person
(determined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation, merger, sale or transfer; (ii) the
issuer of such Common Shares shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or transfer, all
the obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to such
issuer; and (iv) such issuer shall take such steps (including, but not
limited to, the reservation of a sufficient number of its Common Shares
in accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in
relation to the Common Shares thereafter deliverable upon the exercise
of the Rights; provided that, notwithstanding anything in this
Agreement to the contrary, none of (i) the execution of the Merger
Agreement and the Stock Option Agreement, (ii) the consummation of the
Merger or (iii) the consummation of any other transaction contemplated
in the Merger Agreement or the Stock Option Agreement shall be deemed
to be an event of the type described in clauses (a), (b) or (c) of this
Section 13 and shall not cause the Rights to be adjusted or exercisable
in accordance with the terms of this Agreement. The Company shall not
consummate any such consolidation, merger, sale or transfer unless
prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so providing.
The Company shall not enter into any transaction of the kind referred
to in this Section 13 if at the time of such transaction there are any
rights, warrants, instruments or securities outstanding or any
agreements or arrangements which, as a result of the consummation of
such transaction, would eliminate or substantially diminish the
benefits intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers."
6. AMENDMENT OF SECTION 29. Section 29 of the Rights Agreement
is amended by adding the following sentence at the end thereof.
"Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedies or
claims under this Rights Agreement by virtue of the execution of the
Merger Agreement or the Stock Option Agreement or by virtue of any of
the transactions contemplated by the Merger Agreement or the Stock
Option Agreement."
7. EFFECTIVENESS. This Amendment shall be deemed effective as
of the date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
8. MISCELLANEOUS. 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
5
in accordance with the laws of such state applicable to contracts to be made and
performed entirely within such state. This Amendment may be executed in any
number of counterparts, each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument. If any provision, covenant or restriction of
this Amendment is held by a court of competent jurisdiction or other authority
to be invalid, illegal or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be effected, impaired or invalidated.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date and year first
above written.
Attest: XXXXXXXX & COMPANY
INVESTMENTS, INC.
By: /s/ Xxxxxx X. XxXxx By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
------------------------------- ----------------------------------
Name: Xxxxxx X. XxXxx Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Secretary Title: President and Chief
Executive Officer
Attest: NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxx
Title: Vice President Title: Vice President
