EXHIBIT 99.3
AMENDMENT
TO
SHAREHOLDER RIGHTS AGREEMENT
Amendment, dated as of August 8, 2002 (the "Amendment"), to the
Shareholder Rights Agreement, dated as of April 21, 1999 (the "Rights
Agreement"), between Xxxxxx Bancorp, Inc., a Massachusetts corporation (the
"Company"), and Registrar and Transfer Company, as Rights Agent (the "Rights
Agent").
WITNESSETH:
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may prior to a Section 11(a)(ii) Event (as defined in the Rights Agreement)
supplement or amend the Rights Agreement without the approval of any holders of
certificates representing shares of common stock of the Company; and
WHEREAS, the Company now desires to amend the Rights Agreement as set
forth in this Amendment, and pursuant to Section 27 of the Rights Agreement, the
Company hereby directs that the Rights Agreement should be amended as set forth
in this Amendment.
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. AMENDMENTS TO SECTION 1.
(a) Section 1 of the Rights Agreement is hereby amended
by adding the following definitions:
(kk) "Merger" shall have the meaning set forth in
the Merger Agreement.
(ll) "Merger Agreement" shall mean the Agreement
and Plan of Merger, dated as of August 8, 2002,
between the Company and Parent, as may be amended
from time to time.
(mm) "Parent" shall mean Banknorth Group, Inc.
(b) The definition of "Acquiring Person" in Section 1(a)
of the Rights Agreement is hereby amended by inserting the following sentence at
the end thereof:
"Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, none of Parent, any Subsidiary of
Parent or any other Person shall be deemed to be an Acquiring
Person by virtue of the Merger Agreement as a result of any of
(i) the execution and delivery of the Merger Agreement, (ii)
the consummation of the Merger and (iii) the consummation of
the other transactions contemplated in the Merger Agreement."
2. AMENDMENT TO SECTION 3(a). Section 3(a) 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 as a
result of any of (i) the execution and delivery of the Merger
Agreement, (ii) the consummation of the Merger and (iii) the
consummation of the other transactions contemplated in the
Merger Agreement."
3. AMENDMENT TO SECTION 7(a). The first sentence of Section 7(a)
of the Rights Agreement is hereby amended to read as follows:
"(a) Subject to Section 7(e) hereof, 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 office or offices of the Rights Agent designated for
such purpose, together with payment of the aggregate Exercise
Price for the total number of one one-thousandths of a share
of Preferred Stock (or other securities, cash or other assets,
as the case may be) as to which such surrendered Rights are
then exercised, at or prior to the earlier of (i) the Close of
Business on the tenth anniversary of the Record Date (the
"Final Expiration Date"), (ii) the time at which the Rights
are redeemed as provided in Section 23 hereof, (iii) the time
at which such Rights are exchanged as provided in Section 24
hereof and (iv) the Effective Time (as defined in the Merger
Agreement) (the earlier of (i), (ii), (iii) or (iv) being
herein referred to as the "Expiration Date")."
4. AMENDMENT TO SECTION 11. Section 11(a)(ii) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
(i) the execution and delivery of the Merger Agreement, (ii)
the consummation of the Merger and (iii) the consummation of
the other
transactions contemplated in the Merger Agreement shall not be
deemed to be a Section 11(a)(ii) Event and shall not cause the
Rights to be adjusted or exercisable in accordance with, or
any other action to be taken or obligation to arise pursuant
to, this Section 11(a)(ii)."
5. AMENDMENT TO SECTION 13. Section 13 of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
(i) the execution and delivery of the Merger Agreement, (ii)
the consummation of the Merger and (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, or any other action to be taken or obligation to arise
pursuant to, this Section 13."
6. EFFECTIVENESS. This Amendment shall be deemed effective as of
the date first above written, as if executed on such date. Except as expressly
set forth herein, this Amendment shall not by implication or otherwise alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Rights Agreement, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect and shall be otherwise unaffected.
7. GOVERNING LAW. This Amendment shall be deemed to be a contract
made under the laws of the State of Massachusetts 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.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original, and
all of which together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the day and year first above written.
XXXXXX BANCORP, INC.
Attest:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Name: Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxx
Title: Title: President and Chief Executive
Officer
REGISTRAR AND TRANSFER COMPANY
Attest:
/s/ Xxxxxxx X. Tatler By: /s/ Xxxxxx Xxxxxxxxxx
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Name: Xxxxxxx X. Tatler Name: Xxxxxx Xxxxxxxxxx
Title: Vice President and Title: Vice President
Assistant Secretary
