EXHIBIT 4.1
AMENDMENT NO. 3 TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 27, 1998, to the Rights Agreement,
dated as of August 28, 1989, as amended as of September 26, 1989 and May 18,
1993 (the "Rights Agreement"), between First Security Corporation, a Delaware
corporation (the "Company"), and First Chicago Trust Company of New York.
Pursuant to Section 4.4 of the Rights Agreement, the Company hereby
appoints First Chicago Trust Company of New York as successor Rights Agent (the
"Rights Agent") as of the date hereof. First Chicago Trust Company of New York,
as Rights Agent, is hereby vested with the same powers, rights, duties and
responsibilities as if it had been originally named as rights agent without
further act or deed.
The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement. Pursuant to Section 5.4 of the Rights
Agreement, the Company and the Rights Agent may from time to time supplement or
amend the Rights Agreement in accordance with the provisions of Section 5.4
thereof. 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.
In consideration of the foregoing and the mutual agreements set
forth herein, the parties agree as follows:
1. The Rights Agreement is hereby modified and amended by deleting
Section 1.1(a) and replacing it with the following:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined)
of 15% or more of the shares of Common Stock of the Company then
outstanding, but shall not include the Company, any Subsidiary (as
such term is hereinafter defined) of the Company, any employee
benefit plan of the Company or any Subsidiary of the Company, or any
entity holding shares of Common Stock for or pursuant to the terms
of any such plan. Notwithstanding the foregoing, no Person shall
become an "Acquiring Person" as the result of an acquisition of
shares of Common Stock by the Company which, by reducing the number
of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 15% or more of the shares of
Common Stock of the Company then outstanding; provided, however,
that if a Person shall become the Beneficial Owner of 15% or more of
the shares of Common Stock of the Company then outstanding by reason
of share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner (other than by
means of a stock dividend or stock split) of any additional shares
of Company Stock of the Company, then such Person shall be deemed to
be an "Acquiring Person". Notwithstanding the foregoing, if the
Board of Directors of the Company determines in good faith that a
Person who would otherwise be an "Acquiring Person", as defined
pursuant to the foregoing provisions of this paragraph (a), has
become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of shares of Common Stock so that
such Person would no longer be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph (a), then
such Person shall not be deemed to be an "Acquiring Person" for any
purposes of this Agreement.
2. The last section of Section 1.1(g) of the Rights Agreement shall
be deleted in its entirety and replaced with the following:
Until adjustment thereof in accordance with the terms hereof
subsequent to October 27, 1998, the Exercise Price shall equal
$85.00
3. Section 1.1(i) of the Rights Agreement shall be deleted in its
entirety and replaced with the following:
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(i) "Flip-in Date" shall mean any Stock Acquisition Date (as
defined below) which is not the result of a Flip-over Transaction or
Event (as defined below).
4. Section 1.1(k) of the Rights Agreement shall be deleted in its
entirety and replaced with the following:
(k) "Flip-over Transaction or Event" shall mean a transaction or
series of transactions at any time after a Person has become an
Acquiring Person in which, directly or indirectly, (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 shares of Common Stock 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) 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.
5. Section 1.1(q) of the Rights Agreement shall be deleted in its
entirety and replaced with the following:
(q) "Separation Time" shall mean the close of business on the
earlier of (i) the tenth day after the Flip-in Date or (ii) the
tenth business day (or such later date as may be determined by
action of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement by
any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of
the Company or any entity holding shares of Common Stock for or
pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan
of the Company or of any Subsidiary of the Company or any entity
holding shares of Common Stock for or pursuant to the terms of any
such plan) to commence, a tender or exchange offer the consummation
of which would result in any Person becoming the Beneficial Owner
of shares of Common Stock aggregating 15% or more of the then
outstanding shares of Common Stock (including any such date which
is after the date of this Agreement and prior to the issuance of
the Rights); provided that, if the foregoing results in the
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Separation Time being prior to the Record Time, the Separation Time
shall be the Record Time.
6. The parenthetical "(but not less than all)" in the first
sentence of Section 3.1(c) of the Rights Agreement shall be deleted and
replaced with "or part of".
7. The following shall be inserted as the second sentence of
Section 5.4 of the Rights Agreement:
Without limiting the foregoing, the Company may at any time before
the Flip-in Date amend this Agreement to lower the thresholds set
forth in Sections 1.1(a) and 1.1(q) to not less than the greater of
(i) the sum of .001% and the largest percentage of the outstanding
shares of Common Stock then known by the Company to be beneficially
owned by any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any Subsidiary
of the Company, or any entity holding Common Shares for or pursuant
to the terms of any such plan) and (ii) 10%.
8. The second sentence of Section 5.9 shall be deleted in its
entirety and replaced with the following:
"Any notice or demand authorized or required by this Agreement to be
given or made by the Company or by the holder of any Rights to or on
the Rights Agent shall be sufficiently given or made if delivered or
sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
First Chicago Trust Company of New York
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Tenders & Exchange Administration"
9. The Rights Agreement and the Exhibits thereto shall be restated
to reflect this Amendment to the Rights Agreement, including all necessary
conforming changes.
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10. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with 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.
11. This Amendment to the Rights Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed an original and all such counterparts shall together constitute but one
and the same instrument. Terms not defined herein shall, unless the context
otherwise requires, have the meanings assigned to such terms in the Rights
Agreement.
12. Except as expressly set forth herein, this Amendment to the
Rights Agreement 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.
13. If any term, provision, covenant or restriction of this
Amendment to the Rights Agreement 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 to the Rights
Agreement, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
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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 written
above.
Attest: FIRST SECURITY CORPORATION
By:/s/ Xxxx X. Xxxxx By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: Secretary Title: Executive Vice President --
Finance and Capital Markets,
and Chief Financial Officer
Attest: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By:/s/ Xxxxxxx Xxxxx By:/s/ Xxxxxx Xxxxxxxxxx
-------------------- ------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxx Xxxxxxxxxx
Title: Service Officer Title: Assistant Vice President
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