EXHIBIT 99.4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of March 9, 1998, to the Rights Agreement, dated as
of July 24, 1996 (the "Rights Agreement"), between First Colorado Bancorp, Inc.,
a Colorado corporation (the "Company"), and American Securities Transfer &
Trust, Incorporated, a Colorado corporation, as Rights Agent (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof;
WHEREAS, it is proposed that the Company enter into a Reorganization
and Merger Agreement (as it may be amended or supplemented from time to time,
the "Merger Agreement"), substantially in the form set forth in Exhibit A to
this Amendment, between the Company and Commercial Federal Corporation
("Commercial"), as the same may be amended from time to time (all capitalized
terms used in this Amendment and not otherwise defined herein shall have the
meaning ascribed thereto in the Merger Agreement);
WHEREAS, it is proposed that immediately prior to the execution of the
Merger Agreement the Company enter into the Stock Option Agreement attached as
an exhibit to the Merger Agreement (the "Stock Option Agreement");
WHEREAS, the Board of Directors has determined that the Merger and the
other transactions contemplated by the Merger Agreement are fair to and in the
best interests of the Company and its stockholders; and
WHEREAS, the Board of Directors has determined that it is in the best
interest of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger Agreement and the Stock Option Agreement and the transactions
contemplated thereby from the application of the Rights Agreement.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
(1) Amendment to Section 1(a)
Section 1(a) of the Rights Agreement is hereby modified and
amended by adding the following sentence at the end thereof:
"Neither Commercial nor any other Person, shall be
deemed to be an Acquiring Person by virtue of the
Merger Agreement or the Stock Option Agreement, each
to be entered into as of March 9, 1998, between the
Company and Commercial or by virtue of any of the
transactions contemplated thereby."
(2) Amendment of Section 1(g)
The definition of "Distribution Date" in Section 1(g) of the
Rights Agreement is amended 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 as the result of
(i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Merger, (iii) the consummation
of the other transactions contemplated by the Merger Agreement or the
Stock Option Agreement or (iv) the announcement or disclosure of any of
the foregoing."
(3) Addition of Section 1(p)
A new Section 1(p) is added to the Rights Agreement, to read
as follows:
"(p) 'Commercial' shall mean Commercial Federal Corporation, a
corporation duly organized and existing under the laws of the State of Nebraska,
and its successors."
(4) Addition of Section 1(q)
A new Section 1(q) is added to the Rights Agreement, to read
as follows:
"(q) 'Merger Agreement' shall mean the Reorganization and
Merger Agreement, to be dated as of March 9, 1998, by and among
Commercial, a subsidiary of Commercial, the Company and a subsidiary of
the Company, as the same may be amended from time to time."
(5) Addition of Section 1(r)
A new Section 1(r) is added to the Rights Agreement, to read
as follows:
"(r) 'Stock Option Agreement' shall mean the Stock Option
Agreement, to be dated as of March 9, 1998, by and between the Company
as issuer, and Commercial, as grantee, as the same may be amended from
time to time."
(6) Addition of Section 1(s)
A new Section 1(s) is added to the Rights Agreement, to read
as follows:
"(s) 'Termination Time' shall be immediately prior to the
Effective Time, as defined in the Merger Agreement."
2
(7) Amendment of Section 7(a)
Section 7(a) of the Rights Agreement is amended and restated
to read in its entirety as follows:
"The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon surrender
of the Right Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at the
principal office of the Rights Agent, together with payment of the
Purchase Price for each one one-hundredth of a Preferred Share as to
which the Rights are exercised, at or prior to the earliest of (i) the
close of business on July 24, 2006 (the "Final Expiration Date"), (ii)
the time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"), (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof, or (iv) the Termination
Time."
(8) Amendment to Section 13
The language of Section of 13 of the Rights Agreement prior to
Section 13, Clause (w) is amended to read as follows:
"Section 13. Consolidation, Merger or Sale or Transfer of
Assets of Earning Power. In the event, 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 Common Shares 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), in one or more transactions, assets or earning
power aggregating 50% 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, provided,
however, that as long as the Merger Agreement shall not have been
terminated, the references to 'other Person' and 'any Person' in the
above transactions (a) through (c) shall not include Commercial or any
of its Affiliates, then, and in each such case, proper provision shall
be made so that"
(9) Amendment to Section 25
Clause (iv) of Section 25(a) of the Rights Agreement is
amended to read as follows:
"(iv) to effect any consolidation or merger into or with, or
to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other
3
transfer), in one or more transactions, of 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a whole)
to, any other Person, provided, however, that as long as the Merger
Agreement shall not have been terminated, such other Person shall not,
in any such consolidation, merger, or sale or transfer of assets or
earning power, include Commercial or any of its Affiliates or
Associates,"
(10) Amendment of Section 29
Section 29 of the Rights Agreement is amended to add the
following sentence at the end thereof:
"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 the Stock Option Agreement or by virtue of any
of the transactions contemplated by the Merger Agreement or the Stock
Option Agreement."
(11) 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.
(12) Miscellaneous
This Amendment shall be deemed to be a contract made under the
laws of the State of Colorado 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.
4
