AMENDMENT TO RIGHTS AGREEMENT
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Exhibit 4.1
AMENDMENT TO RIGHTS AGREEMENT
This AMENDMENT (this "Amendment") is being entered into as of March 18, 2004 between Community First Bankshares, Inc., a Delaware corporation (the "Company"), and Xxxxx Fargo Bank, N.A. a National Association (formerly Xxxxx Fargo Bank Minnesota, N.A., a National Association) as rights agent (the "Rights Agent").
The Company and Rights Agent are parties to a Rights Agreement dated as of January 5, 1995, which was amended and restated on August 13, 2002 (the "Rights Agreement"). Pursuant to Section 27 of the Rights Agreement, the Company and the Rights Agent may, prior to the Distribution Date, amend any provision of the Rights Agreement, which the Board deems desirable, without the approval of any holders of Rights Certificates. The Company now desires to amend the Rights Agreement as set forth in this Amendment. Unless otherwise defined herein, capitalized terms shall have the meanings set forth in the Rights Agreement.
NOW THEREFORE, in consideration of the premises and the mutual agreement herein set forth, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(b). Section 1(b) of the Rights Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, neither Parent nor any of its existing or future Affiliates or Associates, including, but not limited to Merger Subsidiary, shall be deemed to be an Acquiring Person by virtue of (i) the approval, execution or delivery of the Merger Agreement, (ii) the consummation of the Merger, or (iii) the consummation of the other transactions contemplated by the Merger Agreement."
2. AMENDMENT OF SECTION 1(c). Section 1(c) of the Rights Agreement is hereby amended to add the following proviso at the end thereof:
"; provided, however, that no Acquisition Event shall result by virtue of (i) the approval, execution or delivery of the Merger Agreement, (ii) the consummation of the Merger or (iii) the consummation of the other transactions contemplated by the Merger Agreement."
3. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement is hereby further amended to add the following subparagraphs at the end thereof:
(q) "Effective Time of the Merger" shall have the meaning set forth in the Merger Agreement.
(r) "Merger" shall have the meaning set forth in the Merger Agreement.
(s) "Merger Agreement" shall have the meaning set forth in Section 35 hereof.
(t) "Merger Subsidiary" shall have the meaning set forth in Section 35 hereof.
4. AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights Agreement is hereby 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 by virtue of (i) the approval, execution or delivery of the Merger Agreement, (ii) the consummation of the Merger or (iii) the consummation of the other transactions contemplated by the Merger Agreement."
5. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights Agreement is hereby amended and restated to read in its entirety as follows:
"(a) The registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein including without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part at any time after the Distribution Date upon surrender of the Rights Certificate, with the form of election to exercise on the reverse side thereof duly executed, to the Rights Agent at the office or offices of the Rights Agent designated for such purpose, together with payment of the Purchase Price for each one one-hundredth of a share of Preferred Stock (or, if applicable, such other number of shares or other securities) as to which the Rights are exercised, at or prior to the earlier of (i) the close of business on January 5, 2005 (the "Final Expiration Date"), or (ii) the time at which the Rights are redeemed as provided in Section 23 hereof or the Effective Time of the Merger (such earlier time being herein referred to as the "Expiration Date"). Any Person who prior to the Distribution Date becomes a record holder of shares of Common Stock may exercise all of the rights of a registered holder of a Rights Certificate with respect to the Rights associated with such shares of Common Stock in accordance with and subject to the provisions of this Agreement, including the provisions of Section 7(e) hereof, as of the date such Person becomes a record holder of shares of Common Stock. Notwithstanding anything in this Rights Agreement to the contrary, none of (i) the approval, execution or delivery of the Merger Agreement, (ii) the consummation of the Merger or (iii) the consummation of the other transactions contemplated by the Merger Agreement shall be deemed to be events that cause the Rights to become exercisable pursuant to the provisions of this Section 7 or otherwise."
6. AMENDMENT OF SECTION 11. Section 11 of the Rights Agreement is amended to add the following sentence after the first sentence of said Section:
"Notwithstanding anything in this Rights Agreement to the contrary, none of (i) the approval, execution or delivery of the Merger Agreement, (ii) the consummation of the Merger or (iii) the consummation of the other transactions contemplated in the Merger Agreement shall be deemed to be events of the type described in this Section 11 or to cause the Rights to be adjusted or to become exercisable in accordance with this Section 11."
7. AMENDMENT OF SECTION 13. Section 13 of the Rights Agreement is amended to add the following sentence as the first sentence of said Section:
"Notwithstanding anything in this Rights Agreement to the contrary, none of (i) the approval, execution or delivery of the Merger Agreement, (ii) the consummation of the Merger or (iii) the consummation of the other transactions contemplated in the Merger Agreement shall be deemed to be events of the type described in this Section 13 or to cause the Rights to be adjusted or to become exercisable in accordance with this Section 13."
8. ADDITION OF SECTION 35. The Rights Agreement is hereby modified, supplemented and amended to add the following new Section 35:
"Section 35. Merger With BankWest Corporation. The Company, BankWest Corporation ("Parent") and BW Newco, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Subsidiary"), have entered into an Agreement and Plan of Merger, dated as of March 15, 2004 as it may be amended from time to time (the "Merger Agreement"), pursuant to which Merger Subsidiary shall merge with and into the Company. Notwithstanding anything in this Rights Agreement to the contrary, if the Merger Agreement shall be terminated for any reason, then (a) the last sentence of Section 1(b) hereof shall be deemed repealed and deleted without any further action on the part of the Company or the Rights Agent and (b) the proviso at the end of Section 1(c) hereof shall be deemed repealed and deleted without any further action on the part of the Company or the Rights Agent."
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9. 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.
10. MISCELLANEOUS. This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts to be made and performed entirely within the State of Delaware without giving effect to the principles of conflict of laws thereof. 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 provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, illegal 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.
EXECUTED under seal as of the date first set forth above.
| Attest: | COMMUNITY FIRST BANKSHARES, INC. | |||
/s/ XXXX X. XXXXXXXX |
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| /s/ XXXXXX XXXXXXXX Xxxxxx Xxxxxxxx |
By: | Xxxx X. Xxxxxxxx Chief Executive Officer |
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Attest: |
RIGHTS AGENT: XXXXX FARGO BANK, N.A. |
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/s/ XXXXXX XXXXXXX |
/s/ XXXXXX XXXXXX |
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| By: | Xxxxxx Xxxxxxx Its: Assistant Vice President |
By: | Xxxxxx Xxxxxx Its: Assistant Vice President |
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AMENDMENT TO RIGHTS AGREEMENT
