Exhibit 4 to Form 8-A/A
of Xxxxxxx Xxxxx
National Bancorp, Inc.,
dated April 21, 1995
-----------------------
FIRST AMENDMENT
To
RIGHTS AGREEMENT
This First Amendment, dated as of April 20, 1995, amends the Rights
Agreement, dated as of April 12, 1994 (the "Rights Agreement"), between Xxxxxxx
Xxxxx National Bancorp, Inc., a Delaware corporation (the "Company"), and The
First National Bank of Maryland, a national banking association (the "Rights
Agent"). Capitalized terms used herein without definition shall have the meaning
ascribed to such terms in the Rights Agreement.
WHEREAS, the Company understands that Citibank N.A. ("Citibank") wishes to
enter into a stock purchase agreement (the "Stock Purchase Agreement") with
Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), in the form attached as Exhibit A to the
Xxxxxxxx Agreement (as hereinafter defined), pursuant to which Citibank would
agree to sell to Xxxxxxxx, and Xxxxxxxx would agree to purchase from Citibank,
subject to the satisfaction of certain conditions, all of Citibank's right,
title and interest in and to all of the Common Shares of which Citibank is the
Beneficial Owner;
WHEREAS, Xxxxxxxx and the Company have entered into an Agreement, dated as
of the date hereof, a copy of which is attached hereto as Attachment A (the
"Xxxxxxxx Agreement"), pursuant to which, among other things, Xxxxxxxx has
agreed that, if the purchase of Common Shares contemplated by the Stock Purchase
Agreement is completed, he will make a tender offer to the stockholders of the
Company (other than Citibank) at an offering price of $21.00 per Common Share
("Tender offer,');
WHEREAS, the Board of Directors of the Company, on the recommendation of
the Special Committee of outside Directors, has determined that the transaction
contemplated by the Stock Purchase Agreement, coupled with the Tender Offer,
represent a transaction that is in the best interests of the Company and its
stockholders (other than Citibank as to the interests of which it has reached no
conclusion);
WHEREAS, the Board of Directors wishes to amend the Rights Agreement to (i)
permit the execution, delivery and performance of the Stock Purchase Agreement
and the completion of the Tender offer without causing the Rights to become
exercisable and (ii) to
-2-
permit the announcement, initiation, conduct and completion of the Tender offer
without causing the occurrence of a Distribution date;
WHEREAS, the Company and the Rights Agent each have concluded that the
amendments to the Rights Agreement provided for herein are necessary or
desirable; and
WHEREAS, the amendments to the Rights Agreement provided for herein are
consistent with and for the purpose of fulfilling the objectives of the Board of
Directors of the Company in adopting the Rights Agreement.
NOW, THEREFORE, in consideration of these premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The term "Acquiring Person" as set forth in Section i(a) of the Rights
Agreement is hereby amended to be and read as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall
become, after the date hereof, the Beneficial Owner or Record owner (as
such terms are hereinafter defined) of 25% or more of the Common Shares
then outstanding, but shall not include the Company, any Subsidiary (as
such term is hereinafter defined) of the Company or any employee benefit
plan of the Company or any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan; provided,
however, that notwithstanding any other provision of this Agreement to the
contrary, neither Citibank, Xxxxxxxx X. Xxxxxxxx, any Permitted Assignee
(as defined by the Stock Purchase Agreement) of Xxxxxxxx X. Xxxxxxxx, nor
any Affiliate or Associate of Citibank, Xxxxxxxx X. Xxxxxxxx or any of such
Permitted Assignees shall become an Acquiring Person by reason of (i) the
execution, delivery or performance of the Stock Purchase Agreement or (ii)
any public announcement by any Person with respect to, or the initiation,
conduct or completion of, the Tender Offer.
2. The term "adverse person" as set forth in section 1(b) of the rights
agreement is hereby amended to be and read as follows:
(b) "Adverse Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person (i) is or becomes the
Beneficial owner or Record Owner of 15% or more of the Common Shares then
outstanding, and at least a majority of the Board of
-3-
Directors of the Company who are not officers of the Company, after
reasonable inquiry and investigation, including consultation with such
persons as such directors shall deem appropriate, shall conclude that the
effect of such stock ownership, in the light of the actions which the
Person proposes or is likely to take, is potentially materially adverse to
the Company's business, assets, competitive position, prospects or other
shareholders; (ii) is or becomes the Beneficial Owner or Record Owner of
15% or more of the Common Shares then outstanding and at least a majority
of the Board of Directors of the Company who are not officers of the
Company determine, after reasonable inquiry and investigation, including
consultation with such persons as such directors shall deem appropriate,
that (a) such Beneficial ownership or Record Ownership by such Person is
intended to cause the Company to repurchase the Common Shares owned by such
Person or to cause pressure on the Company to take action or enter into a
transaction or series of transactions intended to provide such Person with
short-term financial gain or any economic benefit not otherwise available
to other shareholders under circumstances where the Board of Directors of
the Company determines that the best long-term interests of the Company and
all its stockholders would not be served by taking such action or entering
into such transactions or series of transactions at that time or (b) such
Beneficial ownership or Record Ownership is causing or reasonably likely to
cause a material adverse impact (including, but not limited to, impairment
of relationships with customers or impairment of the Company's ability to
maintain its competitive position) on the business or prospects of the
Company or its shareholders; (iii) is or becomes the Beneficial Owner or
Record Owner of 15% or more of the Common Shares then outstanding and
exercises or attempts to exercise, directly or indirectly, a controlling
influence over the management or policies of the Company or otherwise
exercises "control" of the Company, as such term is defined in 12 C.F.R.
ss.225.2(e); or (iv) is or becomes the Beneficial owner or Record Owner of
15% or more of the Common Shares then outstanding and sells, transfers,
assigns or otherwise disposes of all or a portion of such Common Shares in
a manner that results in a Person owning 9.9% or more of the Common Shares
then outstanding; provided, however, that notwithstanding any other
provision of
-------- --------
this Agreement to the contrary, neither Citibank, Xxxxxxxx X. Xxxxxxxx, any
Permitted Assignee (as defined by the Stock Purchase Agreement) of Xxxxxxxx
X. Xxxxxxxx, nor any Affiliate or Associate of Citibank, Xxxxxxxx X.
Xxxxxxxx or any of such Permitted Assignees shall become an Acquiring
Person by reason of (i) the execution, delivery or performance of the Stock
Purchase Agreement or (ii) any public announcement by any Person with
respect to, or the initiation, conduct or completion of the Tender Offer.
-4-
3. Section 3(a) of the Rights Agreement is hereby amended to be and read as
follows:
(a) Until the earliest of (i) the tenth day after the Shares
Acquisition Date; (ii) the tenth day after the date of the commencement of,
or of the first public announcement of the intention of any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan
of the Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan) to commence, a
tender or exchange offer the consummation of which would result in any
Person becoming the Beneficial Owner or Record Owner of Common Shares
aggregating 25% or more of the then outstanding Common Shares; provided,
however, that notwithstanding any other provision of this Agreement to the
contrary, no Distribution Date (as hereinafter defined) shall occur by
reason of any public announcement by any Person with respect to, or by
reason of the initiation, conduct or completion of, the Tender offer; or
(iii) the date a Person becomes an Adverse Person (including any such date
which is after the date of this Agreement and prior to the issuance of the
Rights; the earliest of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Shares
registered in the names of the holders thereof (which certificates shall
also be deemed to be Right Certificates) and not by separate Right
Certificates; and (y) the right to receive Right Certificates will be
transferable only in connection with the transfer of Common Shares. As soon
as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign, and the Company will send or
cause to be sent (and the Rights Agent will, if requested, send) by
first-class, insured, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Distribution Date, at the address
of such holder shown on the records of the Company, a Right Certificate, in
substantially the form of Exhibit A hereto (a "Right Certificate"),
evidencing one Right for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right Certificates.
4. The Company shall indemnify and defend the Rights Agent from, and hold
it harmless against, any loss, liability, claim, damage, cost or expense
(including, but not limited to, reasonable attorney's fees, expert fees, and
other litigation costs incurred in defending or prosecuting any action) incurred
in connection with or arising out of any claim, action or threatened action
alleging that the occurrence of one
-5-
or more events resulted in a Person becoming an Acquiring Person or an Adverse
Person on or before the effective date of this First Amendment.
5. Notwithstanding any provision of the Rights Agreement, the execution,
delivery and performance of the Stock Purchase Agreement shall not give rise to
a Distribution Date or cause the Rights to become exercisable.
6. This First Amendment shall become effective immediately prior to the
execution and delivery of the Stock Purchase Agreement.
7. This First Amendment shall be governed by and construed in accordance
with the laws of the State of Maryland. Except as amended by this First
Amendment, the terms, covenants, conditions and agreements of the Rights
Agreement shall continue in full force and effect. This First Amendment may be
signed in any number of counterparts with the same effect as if the signatures
on the respective counterparts hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed by a duly authorized officer as of the day and year first above
written.
ATTEST: XXXXXXX XXXXX NATIONAL
BANCORP, INC.
By: /s/ Xxxxx X. Xxxxx By:/s/ Xxxxxxx Xxxxx Xxxx
--------------------------- ------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxxx Xxxxx Xxxx
Title: Corporate Secretary Title: President and CEO
ATTEST: THE FIRST NATIONAL BANK
OF MARYLAND, as
Rights Agent
By:/s/ Xxxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------------- -------------------------
Name: Xxxxxx Xxxxx Name: Xxxxx Xxxxxxxx
Title: Corporate Trust Executive Title: Vice President
