Amendment No. 1 to Rights Agreement
Exhibit
4.1
Amendment
No. 1 to Rights
Agreement
This
Amendment No. 1 (the “Amendment”), dated as of
January 4, 2008, to the Rights Agreement, dated as of October 2, 2006 (the
“Rights Agreement”), is
between MFB Corp., an Indiana corporation (the “Company”), and Registrar and
Transfer Company, as rights agent (the “Rights
Agent”). Capitalized terms used but not defined herein have
the meanings ascribed to such terms in the Rights Agreement.
Recitals
WHEREAS,
the Company and the Rights Agent have heretofore executed and entered into
the
Rights Agreement.
WHEREAS,
MutualFirst Financial, Inc. (“MutualFirst”) and the Company
contemplate entering into an Agreement and Plan of Merger (the “Plan”) pursuant to which
the
Company will merge with and into (the “Merger”) MutualFirst
Acquisition Corp. (“Acquisition Corp.”). The Board of Directors of
the Company has approved the Plan.
WHEREAS,
pursuant to Section 27 of the Rights Agreement, prior to the time any person
becomes an Acquiring Person (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.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements herein contained, the sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Amendment
of Section
1. Section 1 of the Rights Agreement is hereby amended and
supplemented to add the following definitions at the end of Section
1:
“(p)
“MutualFirst” means MutualFirst Financial, Inc., a Maryland
corporation.
“(q)
“Merger” shall mean the “Merger” as such term is defined in the Merger
Agreement.
“(r)
“Merger Agreement” shall mean the Agreement and Plan of Merger, dated as of
January 7, 2008, by and between the Company, MutualFirst and Acquisition
Corp.”
2. 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 Agreement to the contrary, neither MutualFirst, nor any of
its
Affiliates or Associates (including, without limitation, Mutual Federal Savings
Bank and Acquisition Corp.) shall be deemed to be an “Acquiring Person” solely
by virtue of (i) the approval, execution, adoption, or consummation of the
Merger Agreement, (ii) the approval, adoption, or consummation of the Merger
or
any other transaction contemplated by the Merger Agreement, or (iii) the public
announcement of any of the foregoing.”
3. Amendment
of the Definition
of “Distribution Date”. Section 1(h) of the Rights Agreement
is hereby amended and supplemented by adding 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 solely as the result of (i) the approval, execution,
delivery or adoption of the Merger Agreement, (ii) the approval, adoption,
or
consummation of the Merger or any other transaction contemplated by the Merger
Agreement, or (iii) or the public announcement of any of the
foregoing.”
4. Amendment
of the Definition
of “Share Acquisition Date”. The definition of “Share
Acquisition Date” in Section 1(n) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, a “Share Acquisition Date” shall not
be deemed to have occurred solely as the result of (i) the approval, execution,
delivery or adoption of the Merger Agreement, (ii) the approval, adoption or
consummation of the Merger or any other transaction contemplated in the by
the
Merger Agreement, or (iii) the public announcement of any of the
foregoing.”
5. Amendment
of 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, no Distribution Date shall be deemed
to have occurred solely as a result of (i) the approval, execution, delivery
or
adoption of the Merger Agreement, (ii) the approval, adoption or consummation
of
the Merger or any other transaction contemplated by the Merger Agreement, or
(iii) the public announcement of the foregoing.”
6. Amendment
of Section
3(d). 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 Agreement shall be construed to give any holder of Rights or any other
Person any legal or equitable rights, remedies, or claims under this Agreement
by virtue of the execution of the Merger Agreement or by virtue of any of the
transactions contemplated by the Merger Agreement, including without limitation
the consummation of the Merger.”
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7. 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 October 1, 2016 (the
“Final Expiration
Date”)” and replacing it with the following:
“(i)
the
earlier of (x) the close of business on October 1, 2016, and (y) the
consummation of the Merger (such earlier date, the “Final Expiration
Date”).”
8. Amendment
of Section
11(a)(ii). Section 11(a)(ii) of the Rights Agreement is
hereby amended to add the following at the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, an event under
Section 11(a)(ii) shall not be deemed to have occurred solely as a result
of the approval, execution, delivery or adoption of the Merger Agreement, the
approval of the Merger or any other transaction contemplated by the Merger
Agreement, or the public announcement of any of the foregoing.”
9. Amendment
of Section
13(a). Section 13(a) of the Rights Agreement is hereby
amended to add the following at the end thereof:
“Notwithstanding
anything in this Agreement to the contrary, no transaction of the kind referred
to in this Section 13 shall be deemed to have occurred solely as a result
of the approval, execution, delivery or adoption of the Merger Agreement, the
approval, adoption or consummation of the Merger or any other transaction
contemplated by the Merger Agreement, or the public announcement of any of
the
foregoing.”
10. Amendment
of Section
24. Section 24 of the Rights Agreement is hereby amended
to add the following subsection at the end thereof:
“(f)
Notwithstanding anything in this Agreement to the contrary, no exchange referred
to in this Section 24 hereof shall be authorized solely as a result of the
approval, execution, delivery or adoption of the Merger Agreement or the
approval, adoption or consummation of the Merger or any other transaction
contemplated by the Plan Agreement, or the public announcement of any of the
foregoing.”
11. Amendment
of Section
25. Section 25 of the Rights Agreement is hereby amended
to add the following subsection at the end thereof:
“(c)
Notwithstanding anything in this Agreement to the contrary, the Company shall
not be required to give notice under this Section 25 solely as a result of
the approval, execution, delivery or adoption of the Merger Agreement or the
approval, adoption or consummation of the Merger or any other transaction
contemplated by the Merger Agreement, or the public announcement of any of
the
foregoing.”
12. Interpretation.
The
term “Agreement” as used in the Rights Agreement shall be deemed to refer to the
Rights Agreement as previously amended and as amended hereby.
13. 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.
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14. Termination
of
Plan. If for any reason the Merger Agreement is terminated and
the Merger is abandoned, then this Amendment shall be of no further force and
effect and the Rights Agreement shall remain the same as it existed immediately
prior to execution of this Amendment.
15. Miscellaneous. This
Amendment shall be deemed to be a contract made under the laws of the State
of
Indiana 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.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the day and year first above written.
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
Title: President
and CEO
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REGISTRAR
AND TRANSFER
COMPANY
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By:
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/s/ Xxxxxxx X. Tatler | |
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Name:
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Xxxxxxx X. Tatler | |
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Title:
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Vice President | |
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