Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT, dated as of December
16, 2002, is between FIDELITY BANCORP, INC., a Delaware
corporation (the "Company"), and COMPUTERSHARE INVESTOR SERVICES
LLC, a Delaware limited liability company (the "Rights Agent"),
and amends the Rights Agreement, dated as February 18, 1997,
between the Company and the Rights Agent (the "Rights
Agreement").
RECITALS
A. The Board of Directors of the Company (the "Board")
anticipates approving an Agreement and Plan of Reorganization
(the "Merger Agreement") between the Company and MAF Bancorp,
Inc., a Delaware corporation ("Acquiror"), providing for the
merger of the Company with and into Acquiror (the "Merger").
B. The Board has determined that the Merger is fair to and in
the best interests of the Company and its stockholders.
C. The willingness of Acquiror to enter into the Merger
Agreement is conditioned on, among other things, the amendment
of the Rights Agreement on the terms set forth herein.
D. Section 27 of the Rights Agreement provides that, among other
things, as long as the Rights are then redeemable, the Company
may in its sole and absolute discretion, and the Rights Agent
shall if the Company so directs, supplement or amend any
provision of the Rights Agreement in any respect without the
approval of any holders of the Rights;
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Amendment,
the parties hereby agree as follows:
AGREEMENTS
Section 1. Section 1 of the Rights Agreement is hereby amended
by adding the following definitions thereto:
"Acquiror" shall mean MAF Bancorp, Inc., a Delaware corporation.
"Merger" shall mean the merger of the Company with and into
Acquiror as contemplated by the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Reorganization, dated as of December 16, 2002, between Acquiror
and the Company, as the same may be amended in accordance with
the terms thereof.
Section 2. Section 1(a) of the Rights Agreement is hereby
amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
Acquiror shall not be or become an "Acquiring Person" (and no
Stock Acquisition Date shall occur) as a result of (i) the
announcement of the Merger, (ii) the execution of the Merger
Agreement (or any amendments thereto in accordance with the
terms thereof) or (iii) the consummation of the transactions
contemplated by the Merger Agreement (including, without
limitation, the Merger)."
Section 3. Section 3(a) of the Rights Agreement is hereby
amended by adding to the end thereof the following:
"Notwithstanding anything to the contrary contained herein,
no Distribution Date shall occur as a result of (i) the
announcement of the Merger, (ii) the execution of the Merger
Agreement (or any amendments thereto in accordance with the
terms thereof) or (iii) the consummation of the transactions
contemplated by the Merger Agreement (including, without
limitation, the Merger), and no Distribution Date will, in
any event, occur prior to the later of the effective time of
the Merger or the termination of the Merger Agreement."
Section 4. Section 7(a) of the Rights Agreement is hereby
amended by deleting the word "or" immediately prior to the
symbol "(iii)" and adding a comma thereafter, and by adding to
the end of Section 7(a) the following: "or (iv) immediately
prior to the effective time of the Merger."
Section 5. Section 11 of the Rights Agreement is hereby
amended by adding to the end thereof the following:
"(p) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 11 will not apply to
or be triggered by (i) the announcement of the Merger, (ii)
the execution of the Merger Agreement (or any amendments
thereto in accordance with the terms thereof) or (iii) the
consummation of the transactions contemplated by the Merger
Agreement (including, without limitation, the Merger)."
Section 6. Section 13 of the Rights Agreement is hereby
amended by adding to the end thereof the following:
"(f) Notwithstanding anything to the contrary contained
herein, the provisions of this Section 13 will not apply to
or be triggered by the execution of the Merger Agreement (or
any amendments thereto in accordance with the terms thereof)
or the consummation of the transactions contemplated by the
Merger Agreement (including, without limitation, the Merger)."
Section 7. The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Amendment.
Section 8. The term "Agreement" as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended by
this Amendment No. 1.
Section 9. Except as set forth herein, the Rights Agreement
shall remain in full force and effect and shall be otherwise
unaffected hereby.
Section 10. This Amendment No. 1 may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Section 11. The Company and the Rights Agent hereby acknowledge
and agree that the Rights Agent (as defined herein) is the
"Rights Agent" (as defined in the Agreement) under the Agreement
as successor to Xxxxxx Trust and Savings Bank.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed, all as of the day and year first above
written.
ATTEST:
By: /s/ XXXXXX LEAF
Name: Xxxxxx Leaf
Title: Secretary
FIDELITY BANCORP, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Executive Officer
ATTEST:
By: /s/ XXXXXX XXXXXX
Name: Xxxxxx Xxxxxx
Title: Relationship Manager
COMPUTERSHARE INVESTOR SERVICES LLC
By: /s/ XXXXXXX X. XXXX
Name: Xxxxxxx X. Xxxx
Title: Secretary and Acting General Counsel
