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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
