AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the "AMENDMENT") is made as of
March 16, 2005, by and between Fidelity Bancorp, Inc., a Pennsylvania
corporation (the "Company"), and Registrar and Transfer Company, a New Jersey
corporation, as rights agent (the "Rights Agent"). Capitalized terms used and
not otherwise deferred herein shall have the meaning ascribed to them in the
Rights Agreement referenced below.
WITNESSETH
WHEREAS, the Company and the Rights Agent have previously entered into a
Rights Agreement, dated as of March 31, 2003 (the "Rights Agreement"); and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement or amend the Rights Agreement
without the approval of any holders of Rights Certificates (or prior to a
Distribution Date without the approval of the stockholders) to make any
provision with respect to the Rights as the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a writing signed
by the Company and the Rights Agent; and
WHEREAS, notwithstanding the foregoing, the Company may at any time prior
to such time as a Person becomes an Acquiring Person amend the Rights Agreement
to lower the thresholds set forth in Sections 1(a) and 3(a) of the Rights
Agreement; and
WHEREAS, the Board has determined that no Distribution Date has occurred
and no Person has become an Acquiring Person; and
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. AMENDMENT TO THE DEFINITION OF ACQUIRING PERSON.
Section 1(a) of the Rights Agreement is hereby amended to 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 be the Beneficial
Owner (as such term is hereinafter defined) of 10% or more of the Common Shares
of the Company then outstanding, but shall not include the Company, any
Subsidiary (as such term is hereinafter defined) of the Company, 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.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as
the result of an acquisition of Common Shares by the Company which, by reducing
the number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 10% or more of the Common Shares of the
Company then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 10% or more of the Common Shares of the Company then
outstanding by reason of share purchases by the Company and shall, after such
share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Company, then such
Person shall be deemed to be an "Acquiring Person." Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good faith
that a Person who would otherwise be an "Acquiring Person," as defined pursuant
to the foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person, if required by the Board of Directors in its
sole discretion, divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this paragraph (a), then such
Person shall not be deemed to be an "Acquiring Person" for any purposes of this
Agreement.
2. AMENDMENT TO DEFINITION OF DISTRIBUTION DATE
Section 3(a) of the Rights Agreement is hereby amended to read as
follows:
Section 3. Issue of Right Certificates. (a) Until the earlier of (i)
the tenth day after the Shares Acquisition Date or (ii) the tenth Business Day
(or such later date as may be determined by action of the Board of Directors
prior to such time as any Person becomes an Acquiring Person) after the date of
the commencement by 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) 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 of Common Shares aggregating 10% or
more of the then outstanding Common Shares (including any such date which is
after the date of this Agreement and prior to the issuance of the Rights; the
earlier 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 B 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.
3. RATIFICATION OF ORIGINAL RIGHTS AGREEMENT. Except as amended hereby, the
Rights Agreement remains unchanged and is ratified and confirmed in all
respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Rights Agreement 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: FIDELITY BANCORP, INC.
By:/s/ Xxxxx X. XxXxxxx By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
Attest: REGISTRAR AND TRANSFER COMPANY
By:/s/ Xxxx Xxx Xxxxxxx By:/s/ Xxxxxxx X. Tatler
----------------------- ----------------------------------------------
Name: Xxxxxxx X. Tatler
Title: Vice President
