EXHIBIT 4.1
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AMENDMENT TO RIGHTS AGREEMENT
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Amendment, dated as of November 5, 1995 (this "Amendment"), to the Rights
Agreement, dated as of November 21, 1988 (the "Rights Agreement"), between First
Interstate Bancorp, a Delaware corporation (the "Company"), and First Interstate
Bank, Ltd., as rights agent (the "Rights Agent").
WITNESSETH
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WHEREAS, no Person has become an Acquiring Person (as defined in Section
1(a) of the Rights Agreement) and no Distribution Date (as defined in Section
3(a) of the Rights Agreement) has occurred as of the date of this Amendment; and
WHEREAS, the Company, First Bank System, Inc., a Delaware corporation
("FBS"), and Eleven Acquisition Corp., a wholly-owned subsidiary of FBS
("Eleven"), have entered into an Agreement and Plan of Merger, dated as of
November 5, 1995 (the "Merger Agreement"), pursuant to which Eleven would merge
with and into the Company, with the Company as the surviving corporation in the
merger; and
WHEREAS, in connection with the Merger Agreement, the Company and FBS have
entered into a Stock Option Agreement, dated November 5, 1995, pursuant to which
the Company has granted to FBS an option to purchase certain shares of the
Company's Common Stock under certain circumstances and upon certain terms and
conditions; and
WHEREAS, the Board of Directors of the Company has approved and adopted
this Amendment and directed that the proper officers take all appropriate steps
to execute and put into effect this Amendment.
NOW, THEREFORE, the parties hereby agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended by inserting the
following phrase after
the last word and before the period at the end of the definition of "Acquiring
Person":
"; provided, however, that neither First Bank System, Inc., a Delaware
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corporation ("FBS"), nor any Affiliate or Associate of FBS
(collectively with FBS, the "FBS Parties") shall be deemed to be an
Acquiring Person by virtue of the fact that FBS is the Beneficial
Owner solely of Common Shares (i) of which any FBS Party is or becomes
the Beneficial Owner by reason of the approval, execution or delivery
of the Agreement and Plan of Merger, dated as of November 5, 1995, by
and among the Company, FBS and Eleven Acquisition Corp., a wholly
owned subsidiary of FBS ("FBS Sub"), as may be amended from time to
time (the "Merger Agreement"), or the Stock Option Agreement, dated as
of November 5, 1995, between the Company, as issuer, and FBS, as
grantee, as may be amended from time to time (the "Stock Option
Agreement"), or by reason of the consummation of any transaction
contemplated in the Merger Agreement, the Stock Option Agreement or
both, (ii) of which any FBS Party is the Beneficial Owner on the date
hereof, (iii) of which any FBS Party becomes the Beneficial Owner
after the date hereof, provided, however, that the aggregate number of
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Common Shares which may be Beneficially Owned by the FBS Parties
pursuant to this clause (iii) shall not exceed 5% of the Common Shares
outstanding, (iv) acquired in satisfaction of debts contracted prior
to the date hereof by any FBS party in good faith in the ordinary
course of such FBS Party's banking business, (v) held by any FBS Party
in a bona fide fiduciary or depository capacity, or (vi) owned in the
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ordinary course of
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business by either (A) an investment company registered under the
Investment Company Act of 1940, as amended, or (B) an investment
account, for either of which any FBS Party acts as investment
advisor."
2. The penultimate sentence of Section 13 of the Rights Agreement is
hereby amended in its entirety to read as follows:
"This Section 13 shall not be applicable to (x) a transaction
described in Subparagraphs (a), (b) or (c) of this Section if (i) such
transaction is consummated with a Person or Persons who acquired
Common Shares pursuant to a Qualified Offer (or a wholly owned
subsidiary of any such Persons or Persons), (ii) the price per Common
Share offered in such transaction or distributable to shareholders
upon conclusion of such transaction is not less than the price per
Common Share paid to all holders of Common Shares whose shares were
purchased pursuant to such Qualified Offer and (iii) the form of
consideration being offered to the remaining holders of Common Shares
pursuant to such transaction or distributable to shareholders upon
conclusion of such transaction is the same as the form of
consideration paid pursuant to such Qualified Offer and (y) the
transactions contemplated by the Merger Agreement (as defined in
Section 1(a)), including, without limitation, the merger of FBS Sub
with and into the Company pursuant thereto."
3. This Amendment shall be effective immediately upon its execution
and the Rights Agreement shall continue in full force and effect as amended
hereby.
4. Capitalized terms used in this Amendment and not defined herein
shall have the meanings assigned thereto in the Rights Agreement.
5. 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
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all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
FIRST INTERSTATE BANCORP
ATTEST:
By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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By /s/ Xxx X. Xxxxx Name: Xxxxxxxx X. Xxxxxx, Xx.
------------------- Title: Executive Vice President
Xxx X. Xxxxx
Assistant Secretary
FIRST INTERSTATE BANK, LTD.
ATTEST:
By: /s/ Xxxxxx X. Lug
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By /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Lug
---------------------- Title: Vice President
Xxxxxx X. Xxxxxxx
Secretary
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