EXHIBIT 4.1.1
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AMENDMENT No. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment"), dated as of October
27, 2003, to the Rights Agreement, dated as of August 16, 2000 (the "Rights
Agreement"), between FleetBoston Financial Corporation, a Rhode Island
corporation (the "Company"), and EquiServe, LP, as Rights Agent (the "Rights
Agent").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement.
WHEREAS, Bank of America Corporation, a Delaware corporation
("Bank of America") and the Company contemplate entering into an Agreement and
Plan of Merger (the "Plan") pursuant to which the Company will merge with and
into Bank of America Corporation (the "Merger"), with Bank of America surviving.
The Board of Directors of the Company has approved the Plan.
WHEREAS, in connection with the Plan, Bank of America and the
Company contemplate entering into a stock option agreement (the "Bank of America
Stock Option Agreement") pursuant to which the Company will grant to Bank of
America an option to purchase shares of the Company's common stock, par value
$0.01 per share, on the terms and subject to the conditions set forth in the
Bank of America Stock Option Agreement. The Board of Directors of the Company
has approved the Bank of America Stock Option Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may 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.
Accordingly, the parties agree as follows:
A. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement
is supplemented to add the following definitions in the appropriate locations:
"Bank of America" means Bank of America Corporation, a
Delaware corporation.
"Merger" shall mean the "Merger" as such term is defined in
the Plan.
"Plan" shall mean the Agreement and Plan of Merger, dated as
of October 27, 2003, by and between the Company and Bank of
America, as it may be amended from time to time.
"Bank of America Stock Option Agreement" shall have the
meaning set forth in the Plan.
B. AMENDMENT OF THE DEFINITION OF "ACQUIRING PERSON". The
definition of "Acquiring Person" in Section 1(a) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, Bank of America shall not be deemed to be an Acquiring Person
solely by virtue of (i) the execution of the Plan or the Bank of
America Stock Option Agreement, (ii) the consummation of the Merger or
(iii) the consummation of any other transaction contemplated in the
Plan or the Bank of America Stock Option Agreement."
C. AMENDMENT OF THE DEFINITION OF "STOCK ACQUISITION DATE". The
definition of "Stock Acquisition Date" in Section 1(m) of the Rights Agreement
is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Stock Acquisition Date shall not be deemed to have occurred
solely as the result of (i) the execution and delivery of the Plan or
the Bank of America Stock Option Agreement, (ii) the consummation of
the Merger, or (iii) any other transaction provided for by the Plan or
the Bank of America Stock Option Agreement, including without
limitation the consummation thereof."
D. AMENDMENT OF SECTION 3. Section 3(a) of the Rights Agreement
is hereby amended and supplemented by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred
solely as the result of (i) the execution and delivery of the Plan or
the Bank of America Stock Option Agreement, (ii) the consummation of
the Merger, or (iii) any other transaction provided for by the Plan or
the Bank of America Stock Option Agreement, including without
limitation the consummation thereof."
Furthermore, Section 3 of the Rights Agreement is amended to add the following
sentence at the end thereof as Section 3(d):
"Nothing in this Rights Agreement shall be construed to give
any holder of Rights or any other Person any legal or equitable rights,
remedies or claims under this Rights Agreement by virtue of the
execution and delivery of the Plan or the Bank of America Stock Option
Agreement or by virtue of any of the transactions provided for by the
Plan or the Bank of America Stock Option Agreement, including without
limitation the consummation thereof."
E. 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 November 21, 2010 (the "Final Expiration Date")" and replacing it
with the following:
"(i) the earlier of (x) the close of business on November 21,
2010 and (y) the consummation of the Merger (such earlier date, the
"Final Expiration Date")"
F. 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.
G. MISCELLANEOUS. This Amendment 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. This Amendment 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 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date and year first
above written.
Attest: FLEETBOSTON FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. XxXxxxx
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Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. XxXxxxx
Title: Deputy General Counsel Title: President
and Assistant Secretary
Attest: EQUISERVE, LP
By: /s/ Xxxx Piskadis By: /s/ Xxxxxx X. Ferrari
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Name: Xxxx Piskadis Name: Xxxxxx X. Ferrari
Title: Senior Account Manager Title: Senior Managing Director
