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Exhibit 4.1
XXXX NATIONAL CORPORATION
00000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
August 21, 1997
National City Bank
Corporate Trust Department
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Corporate Trust Department
Re: Amendment No. 1 to Rights Agreement
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Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement, dated as of August
22, 1995 (the "Rights Agreement"), by and between Xxxx National Corporation
(the "Company") and National City Bank, as rights agent, the Company, by
resolution adopted by its Board of Directors, hereby amends the Rights
Agreement as follows:
1. Section 1(j) of the Rights Agreement is hereby amended to read in
its entirety as follows:
"(j) "Exercise Price" shall mean initially $180.00 per one
one-hundredth of a Preferred Share and shall be subject to
adjustment from time to time as provided in this Agreement."
2. Section 13(a) of the Rights Agreement is hereby amended to read
in its entirety as follows:
"Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER. (a) In the event that, at any time after a Person has
become an Acquiring Person, directly or indirectly (i) the Company
shall consolidate with, or merge with or into, any other Person and
the Company shall not be the continuing or surviving corporation of
such consolidation or merger; (ii) any Person shall consolidate with
the Company, or merge with or into the Company and the Company shall
be the continuing or surviving corporation of such merger or
consolidation and, in connection with such merger or consolidation,
all or part of the Common Shares shall be changed into or exchanged
for stock or other
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August 21, 1997
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securities of any other Person or cash or any other property; or
(iii) the Company shall sell or otherwise transfer (or one or more
of its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power (including, without
limitation, securities creating any obligation on the part of the
Company and/or any of its Subsidiaries) representing in the
aggregate more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or
Persons, then, and in each such case, proper provision shall be made
so that (A) each holder of a Right (except as otherwise provided
herein) shall thereafter have the right to receive, upon the
exercise thereof at an exercise price per Right equal to the product
of the then-current Exercise Price multiplied by the number of one
one-hundredths of a Preferred Share for which a Right was
exercisable immediately prior to the first occurrence of a Flip-In
Event, and in lieu of Preferred Shares, such number of Common Shares
of such other Person (including the Company as successor thereto or
as the surviving corporation) as shall equal the result obtained by
(1) multiplying the then-current Exercise Price by the number of one
one-hundredths of a Preferred Share for which a Right was
exercisable immediately prior to the first occurrence of a Flip-In
Event, and dividing that product by (2) 50% of the current per share
market price of the Common Shares of such other Person (determined
pursuant to Section ) on the date of consummation of such
consolidation, merger, sale or transfer; (B) the issuer of such
Common Shares shall thereafter be liable for, and shall assume, by
virtue of the consummation of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company pursuant to
this Agreement; (C) the term "Company" shall thereafter be deemed to
refer to such issuer; and (D) such issuer shall take such steps
(including, without limitation, the reservation of a sufficient
number of Common Shares to permit the exercise of all outstanding
Rights) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be possible, in relation to the Common
Shares thereafter deliverable upon the exercise of the Rights."
3. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment, but shall remain in full force and effect.
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August 21, 1997
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4. Capitalized terms used without other definition in this Amendment
No. 1 to the Rights Agreement shall be used as defined in the Rights Agreement.
5. This Amendment No. 1 to the Rights Agreement 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 the State of
Delaware applicable to contracts to be made and performed entirely within the
State of Delaware.
6. This Amendment No. 1 to the Rights Agreement may be executed in
any number of counterparts and 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.
7. This Amendment No. 1 to the Rights Agreement shall be effective
as of the Close of Business on August 21, 1997, as if executed on such date,
and all references to the Rights Agreement shall, from and after such time, be
deemed to be references to the Rights Agreement as amended hereby.
8. Exhibits B and C to the Rights Agreement shall be amended in a
manner consistent with this Amendment No. 1 to the Rights Agreement.
Sincerely,
XXXX NATIONAL CORPORATION
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Vice President
Accepted and agreed to as of the
effective time specified above:
NATIONAL CITY BANK
By: /s/ J. Xxxx Xxxxxxx
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Name: J. Xxxx Xxxxxxx
Title: Vice President
