Exhibit 99.1.1
AMENDMENT TO
RIGHTS AGREEMENT
AMENDMENT (the "Amendment"), dated as of December 23, 2003, to
the Rights Agreement, dated as of May 24, 1999 (the "Rights Agreement"), between
BSB Bancorp, Inc., a Delaware corporation (the "Company"), and American Stock
Transfer & Trust Company, as Rights Agent (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement.
WHEREAS, Partners Trust Financial Group, Inc., a federal
corporation ("PT"), Partners Trust Financial Group, Inc., a Delaware corporation
("New PT"), the Company, and the other parties thereto contemplate entering into
an Agreement and Plan of Merger (the "Plan") pursuant to which the Company will
merge with and into New PT (the "Merger"). The Board of Directors of the Company
has approved the Plan.
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior
to a Distribution Date (as defined in the Rights Agreement) the Company may, and
the Rights Agent shall if the Company so directs, from time to time supplement
and amend the Rights Agreement.
WHEREAS, 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.
WHEREAS, 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.
Accordingly, the parties agree as follows:
A. Amendment of Section 1. Section 1 of the Rights Agreement
is hereby amended and supplemented to add the following definitions in the
appropriate locations:
(pa) "PT" collectively means Partners Trust Financial Group,
Inc., a federal corporation, and Partners Trust Financial
Group, Inc., a Delaware corporation.
(ma) "Merger" shall mean the "Merger" as such term is defined
in the Plan.
(na) "Plan" shall mean the Agreement and Plan of Merger, dated
as of December 23, 2003, by and between the Company, PT and
the other parties thereto, as it may be amended from time to
time.
(ba) "Affiliate Agreements" shall mean each of the agreements
contemplated by Section 5.8 of the Plan.
B. Amendment of the definition of "Acquiring Person". The
definition of "Acquiring Person" in Section 1(a) of the Rights Agreement is
hereby amended and supplemented by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, PT shall not be deemed to be an Acquiring Person solely by
virtue of (i) the execution of the Plan or the Affiliate Agreements,
(ii) the consummation of the Merger or (iii) the consummation of any
other transaction contemplated in the Plan, including without
limitation the consummation thereof."
C. Amendment of the definition of "Distribution Date". The
definition of "Distribution Date" in Section 1(i) of the Rights Agreement is
hereby amended and supplemented by adding 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
solely as the result of (i) the execution of the Plan or the Affiliate
Agreements, (ii) the consummation of the Merger, or (iii) the
consummation of any other transaction contemplated in the Plan,
including without limitation the consummation thereof."
D. Amendment of the definition of "Stock Acquisition Date".
The definition of "Stock Acquisition Date" in Section 1(z) of the Rights
Agreement is hereby amended and supplemented by adding the following sentence at
the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Stock Acquisition Date shall not be deemed to have occurred
solely as the result of (i) the execution of the Plan or the Affiliate
Agreements, (ii) the consummation of the Merger, or (iii) the
consummation of any other transaction contemplated in the Plan,
including without limitation the consummation thereof."
E. Amendment of Section 3. Section 3 of the Rights Agreement
is hereby amended and supplemented to add the following sentence at the end
thereof as Section 3(d):
"Nothing in this Rights Agreement shall be construed to give
any holder of Rights or any other Person any legal or equitable rights,
remedies or claims
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under this Rights Agreement by virtue of the execution of the Plan or
the Affiliate Agreements or by virtue of any of the transactions
contemplated by the Plan, including without limitation the
consummation thereof."
F. Amendment of Section 7(a). Section 7(a) of the Rights
Agreement is hereby amended and supplemented by deleting "(i) the close of
business on June 4, 2009 (the "Final Expiration Date")" and replacing it with
the following:
"(i) the earlier of (x) the close of business on June 4, 2009 and (y)
the consummation of the Merger (such earlier date, the "Final Expiration Date")"
G. 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.
H. 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 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. Except as otherwise expressly
provided herein, or unless the context otherwise requires, all terms used herein
have the meanings assigned to them in the Rights Agreement. The Rights Agent and
the Company hereby waive any notice requirement under the Rights Agreement
pertaining to the matters covered by this Amendment.
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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: BSB BANCORP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Title: President and Chief
Corporate Secretary Executive Officer
Attest: AMERICAN STOCK TRANSFER &
TRUST COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary Title: Vice President
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