Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of July 31, 1998 (this "Amendment"), to the
Rights Agreement, dated as of April 17, 1998 (the "Rights Agreement"), between
Evergreen Bancorp, Inc., a Delaware corporation (the "Company"), and Evergreen
Bank, N.A., as rights agent (the "Rights Agent").
WITNESSETH
WHEREAS, the Company and the Rights Agent have previously entered into
the Rights Agreement; and
WHEREAS, no Distribution Date (as defined in Section 3(a) of the Rights
Agreement) has occurred as of the date of this Amendment; and
WHEREAS, Section 26 of the Rights Agreement provides that the Company
and the Rights Agent may, if the Company so directs, supplement or amend the
Rights Agreement from time to time in accordance with the terms of Section 26;
and
WHEREAS, the Company and Banknorth Group, Inc. ("Banknorth") have
entered into an Affiliation Agreement and Plan of Reorganization, dated as of
July 31, 1998 (the "Affiliation Agreement"), providing that the Company will
merge with and into Banknorth pursuant to the terms of an Agreement and Plan of
Merger to be entered into between Banknorth and the Company after the date of
this Amendment (the "Plan of Merger" and, together with the Affiliation
Agreement, the "Merger Agreements"), with Banknorth as the surviving corporation
in the merger; and
WHEREAS, in connection with the Affiliation Agreement, the Company and
Banknorth have entered into a Stock Option Agreement, dated as of July 31, 1998
(the "Evergreen Stock Option Agreement"), pursuant to which the Company has
granted to Banknorth 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 has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger Agreements, the Evergreen Stock Option Agreement and the
transactions contemplated thereby (including, without limitation, the option
granted pursuant to the Evergreen Stock Option Agreement) from the application
of the Rights Agreement; and
WHEREAS, the Board of Directors of the Company has approved and adopted
this Amendment and directed that the proper officers to take all appropriate
steps to execute and put into effect this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1(b) of the Rights Agreement is hereby amended by inserting
the following proviso at the end thereof:
"; provided, however, that, until the termination of the
Affiliation Agreement and the Evergreen Stock Option Agreement
(each as defined below) in accordance with their respective
terms, neither Banknorth Group, Inc. ("Banknorth") nor any
Affiliate of Banknorth (collectively with Banknorth, the
"Banknorth Parties") shall be deemed to be an Acquiring Person
by virtue of the fact that Banknorth is the Beneficial Owner
solely of shares of Common Stock (i) of which any Banknorth
Party is or becomes the Beneficial Owner by reason of the
approval, execution or delivery of the Affiliation Agreement
and Plan of Reorganization, dated as of July 31, 1998, between
the Company and Banknorth, as may be amended from time to
time, the related Agreement and Plan of Merger to be entered
into by the Company and Banknorth as provided in the
Affiliation Agreement (the "Plan of Merger" and, together with
the Affiliation Agreement, the "Merger Agreements"), the Stock
Option Agreement, dated as of July 31, 1998, between the
Company and Banknorth (the "Evergreen Stock Option Agreement")
or by reason of the consummation of any transaction
contemplated in the Merger Agreements or the Evergreen Stock
Option Agreement, (ii) of which any Banknorth Party is the
Beneficial Owner on the date hereof, (iii) of which any
Banknorth Party becomes the Beneficial Owner after the date
hereof, provided, however, that the aggregate number of shares
of Common Stock which may be Beneficially Owned by the
Banknorth Parties pursuant to this clause (iii) shall not
exceed 1% of the shares of Common Stock outstanding, (iv)
acquired in satisfaction of debts contracted prior to the date
hereof by any Banknorth Party in good faith in the ordinary
course of such Banknorth Party's banking business, (v) held by
any Banknorth Party in a bona fide fiduciary or depository
capacity, or (vi) owned in the ordinary course of business by
either (A) an investment company registered under the
Investment Company Act of 1940, as amended, or (B) an
investment account, in either case for which any Banknorth
Party acts as investment advisor."
2. Section 13 of the Rights Agreement is hereby amended to add the
following subsection (e) at the end thereof:
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"Notwithstanding any other provision of this Agreement, in
accordance with the terms of the Plan of Merger, at the
Effective Time (as defined in the Plan of Merger), the Common
Stock will be converted into the consideration provided for in
the Plan of Merger, and all Rights attached thereto shall
simultaneously be extinguished with no additional
consideration being paid on account thereof."
3. Section 15 of the Rights Agreement is hereby modified and 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 in connection
with any transactions contemplated by the Merger Agreements or
the Evergreen Stock Option Agreement."
4. This Amendment shall be deemed to be in force and effective
immediately prior to the execution and delivery of the Evergreen Option
Agreement and the Affiliation Agreement. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
5. Capitalized terms used in this Amendment and not defined herein
shall have the meanings assigned thereto in the Rights Agreement.
6. 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.
7. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and immunities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
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.
ATTEST: EVERGREEN BANCORP, INC.
By /s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
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Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx
Executive Vice President Chairman and
and Corporate Secretary Chief Executive Officer
ATTEST: EVERGREEN BANK, N.A.
By /s/ Xxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxx
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Xxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx
Executive Vice President Chairman and
and Corporate Secretary Chief Executive Officer
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