AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1, dated as of April 30, 1999 (this "Amendment"),
is between Mercantile Bancorporation Inc., a Missouri corporation (the
"Corporation"), and Xxxxxx Trust and Savings Bank, as Rights Agent (the "Rights
Agent").
Recitals
WHEREAS, the Corporation and the Rights Agent are parties to a
Rights Agreement, dated as of May 20, 1998 (the "Rights Agreement"); and
WHEREAS, Firstar Corporation, a Wisconsin corporation ("Firstar")
and the Corporation propose to enter into an Agreement and Plan of Merger (the
"Merger Agreement") pursuant to which Mercantile will merge with and into the
Corporation (the "Merger"), and a related Stock Option Agreement by and between
the Corporation, as issuer, and Firstar, as grantee (the "Option Agreement").
The Board of Directors of the Corporation has approved the Merger Agreement, the
Merger and the Option Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board
of Directors of the Corporation has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable in connection with the
foregoing and the Corporation and the Rights Agent desire to evidence such
amendment in writing;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
(a) Amendment of Section 1(a). Section 1(a) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
Firstar shall not be deemed to be an Acquiring Person by virtue of (i) the
consummation of the Merger, (ii) the execution and delivery of the Merger
Agreement and the Option Agreement, or (iii) the consummation of any of
the other transactions contemplated in the Merger Agreement and the Option
Agreement."
(b) Amendment of Section 3(a). Section 3(a) of the Rights Agreement
is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as the result of
(i) the consummation of the Merger, (ii) the execution of the Merger
Agreement and the Option Agreement or (iii) the consummation of any of the
other transactions contemplated in the Merger Agreement and the Option
Agreement."
(c) Amendment of Section 1(h). Section 1(h) of the Rights Agreement
is amended and restated to read as follows:
(i)"Exchange Act" shall mean the Securities and
Exchange Act of 1934, as amended.
(ii) "Merger" shall have the meaning set forth in the
Merger Agreement.
(iii) "Merger Agreement" shall mean that certain
Agreement and Plan of Merger, dated as of April 30,
1999, by and between Firstar and the Corporation, as
amended from time to time.
(iv)"Option Agreement" shall mean that certain Stock
Option Agreement, dated as of April 30, 1999, by and
between Firstar, as grantee, and the Corporation, as
issuer, as amended from time to time.
(v) "Firstar" shall mean Firstar Corporation, a
Wisconsin corporation.
(d) Amendment of Section 7(a). Section 7(a) of the Rights Agreement
is hereby amended and restated to state in its entirety as follows:
The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon
surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent together with
payment of the Purchase Price for each one one-hundredth of a share
of Preferred Stock as to which the Rights are exercised, at or prior
to the Close of Business on the earlier of (i) June 3, 2008 (the
"Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof, (iii) the time at which
the Rights are exchanged as provided in Section 24 hereof or (iv)
the consummation of the Merger (such earlier date being herein
referred to as the "Expiration Date").
(e) Amendment of Section 13. Section 13 of the Rights Agreement is
amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, none
of (i) the consummation of the Merger, (ii) the execution of the Merger
Agreement and the Option Agreement and (iii) the consummation of any of
the other transactions contemplated in the Merger Agreement and the Option
Agreement shall be deemed to be events of the type described in the first
sentence of this Section 13, and shall not cause the Rights to be adjusted
or exercisable in accordance with, or any other action to be taken or
obligation to arise pursuant to, this Section 13."
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(f) Effectiveness. This Amendment shall be deemed effective as of
the date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
(g) Miscellaneous. This Amendment shall be deemed to be a contract
made under the laws of the State of Missouri and for all purposes shall be
governed by and construed in accordance with the laws of such state applicable
to contracts to be made and performed entirely within such state, except as to
the duties and liabilities of the Rights Agent which shall be governed by and
construed in accordance with the laws of the State of Illinois. This Amendment
may be executed in any number of counterparts, 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. If any term, provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. It is the intent of the parties hereto to enforce the remainder
of the terms, provisions, covenants and restrictions to the maximum extent
permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed, all as of the date and year first above written.
Attest: MERCANTILE BANCORPORATION INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Assistant Secretary and Title: Senior Vice President
Senior Attorney
Attest: XXXXXX TRUST AND SAVINGS BANK,
AS RIGHTS AGENT
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Vice President Title: Vice President
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