Exhibit 4.1
AMENDMENT NO. 3
TO
RIGHTS AGREEMENT
Amendment No. 3 to Rights Agreement, dated as of November 12, 1999, to
Rights Agreement, dated as of November 1, 1996, as amended by Amendment No. 1 to
Rights Agreement, dated January 16, 1998, and Amendment No. 2 to Rights
Agreement, dated October 5, 1998 (as so amended, the "Rights Agreement") between
Arcadia Financial Ltd. (formerly Olympic Financial Ltd.), a Minnesota
corporation, and Norwest Bank Minnesota, National Association (all terms not
otherwise defined herein shall have the meanings ascribed to them in the Rights
Agreement).
WITNESSETH:
WHEREAS, the Company and the Rights Agent have previously entered into
the Rights Agreement specifying the terms of the Rights.
WHEREAS, the Company, Associates First Capital Corporation, a Delaware
corporation ("The Associates"), and AFCC Newco, Inc., a Minnesota corporation
("Sub"), have entered into an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which The Associates would acquire the Company through
a merger of Sub with and into the Company (the "Merger") and the Board of
Directors of the Company has approved the Merger Agreement and the Merger.
WHEREAS, Section 27 of the Rights Agreement provides that, prior to the
Distribution Date and subject to certain limitations contained in such Section,
the Company may by resolution of its Board of Directors (which resolution shall
be effective only with the concurrence of a majority of the Continuing Directors
and only if the Continuing Directors constitute a majority of the number of
directors then in office) and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of the Rights Agreement without the approval
of any holders of certificates representing shares of Common Stock.
WHEREAS, no Distribution Date has occurred.
WHEREAS, Continuing Directors constitute a majority of the number of
directors currently in office.
WHEREAS, the Company's Board of Directors, with the concurrence of a
majority of the Continuing Directors, has determined that an amendment to the
Rights Agreement as set forth herein is necessary and desirable in light of the
foregoing and the Company and the Rights Agent desire to evidence such amendment
in writing.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither The Associates nor Sub shall be deemed to be an
Acquiring Person solely by virtue of (i) the execution of the Merger
Agreement, (ii) the acquisition of Common Stock pursuant to the Merger
(as defined in the Merger Agreement), or (iii) the consummation of the
other transactions contemplated in the Merger Agreement."
2. AMENDMENT OF SECTION 1(o). Section 1(o) of the Rights Agreement is
amended to add the following sentence at the end thereof.
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred as
the result of the announcement or occurrence of (i) the execution of
the Merger Agreement, (ii) the acquisition of Common Stock by The
Associates or Sub pursuant to the Merger (as defined in the Merger
Agreement), or (iii) the consummation of the other transactions
contemplated in the Merger Agreement."
3. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement is amended
to add the following as subsections (ss), (tt) and (uu) thereof:
"(ss) 'THE ASSOCIATES' shall mean Associates First Capital
Corporation, a Delaware corporation.
(tt) 'MERGER AGREEMENT' shall mean the Agreement and Plan of
Merger dated as of November 12, 1999, among The Associates, Sub and
the Company, as it may be amended from time to time.
(uu) 'SUB' shall mean AFCC Newco, Inc., a Minnesota
corporation and wholly owned subsidiary of The Associates, or any other
subsidiary of The Associates that is substituted for AFCC Newco, Inc.
pursuant to the Merger Agreement."
4. AMENDMENT OF SECTION 13. Section 13 of the Rights Agreement is
amended to add the following as subsection (e) thereof:
"(e) Notwithstanding anything in this Rights Agreement to the
contrary, (i) the execution of the Merger Agreement, (ii) the
acquisition of Common Stock pursuant to the Merger (as defined in the
Merger Agreement), or (iii) the consummation of the other transactions
contemplated in the Merger Agreement shall not be deemed to be a
Section 13 Event and shall not cause the Rights to be adjusted or
exercisable in accordance with Section 13."
5. EFFECTIVENESS. This Amendment No. 3 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.
6. MISCELLANEOUS.
(a) This Amendment No. 3 shall be deemed to be a contract made
under the laws of the State of Minnesota 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.
(b) This Amendment No. 3 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.
(c) If any term, provision, covenant or restriction of this
Amendment No. 3 is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment No. 3
shall remain in full force and effect and shall in no way be effected,
impaired or invalidated; provided, however, that notwithstanding
anything in this Amendment No. 3 to the contrary, if any such term,
provision, covenant or restriction is held by such court or authority
to be invalid, void or unenforceable and the Board of Directors of the
Company determines in its good faith judgment that severing the invalid
language from this Amendment No. 3 would adversely affect the purpose
or effect of this Amendment No. 3, the right of redemption set forth in
Section 6(c) hereof shall be restated and shall not expire until the
close of business on the tenth day following the date of such
determination by the Board of Directors.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to be duly executed as of the day and year first set forth above.
ARCADIA FINANCIAL LTD.
By: /S/ XXXXX X. XXXXXXXX III
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Xxxxx X. Xxxxxxxx III
Senior Vice President
NORWEST BANK MINNESOTA, N.A.,
NORWEST SHAREOWNER SERVICES
By: /S/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Account Manager
