Exhibit D
AMENDMENT, dated as of ________, 1999 (the "Amendment"), to the
Agreement, dated as of November 1, 1995 (the "Rights Agreement"), between EVEREN
Capital Corporation, a Delaware corporation (the "Company"), and Xxxxxx Trust
and Savings Bank, an Illinois banking corporation, as Rights Agent (the "Rights
Agent"), dated as of October 1, 1996.
RECITALS
A. The Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
B. The Company and First Union Corporation, a North Carolina
corporation (the "Acquiror"), are entering into an Agreement and Plan of Merger,
dated as of April 25, 1999 (as amended, supplemented or replaced from time to
time, the "Merger Agreement") contemplating a business combination between the
Company and the Acquiror (the "Merger");
C. The Company and the Acquiror are also entering into a Stock
Option Agreement, dated as of April 25, 1999 (as amended, supplemented or
replaced from time to time, the "Stock Option Agreement");
D. Pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement and amend the Rights
Agreement;
E. The Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Company and the Rights Agent desire to
evidence such amendment in writing; and
F. All acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed, and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Amendment of Section 1. (a) The definition of "Acquiring Person"
in Section 1(a) of the Rights Agreement is amended by adding the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither the
Acquiror nor any of its Affiliates or Associates shall be deemed to be an
Acquiring Person solely by virtue of (i) the execution of the Merger Agreement
or the Stock Option Agreement, (ii) the consummation of the Merger, (iii) the
consummation of any other transaction contemplated in the Merger Agreement or
the Stock Option Agreement or (iv) Common Stock held in a bona fide fiduciary
capacity."
(b) Section 1 of the Rights Agreement is supplemented by adding the
following definitions in the appropriate locations therein:
"Agreement" shall mean this Rights Agreement between EVEREN
Capital Corporation, a Delaware corporation, and Xxxxxx Trust and Savings Bank,
dated as of October 1, 1996, and as may be amended from time to time.
"Merger" shall have the meaning set forth in the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of April 25, 1999, between EVEREN Capital Corporation and First Union
Corporation, as it may be amended, supplemented or replaced from time to time.
"Stock Option Agreement" shall mean the Stock Option Agreement,
dated as of April 25, 1999, between EVEREN Capital Corporation and First Union
Corporation, as it may be amended, supplemented or replaced from time to time.
(c) The definition of "Stock Acquisition Date" in Section 1 of the
Rights Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
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contrary, a Stock Acquisition Date shall not be deemed to have occurred solely
as the result of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Merger, or (iii) the consummation of any
other transaction contemplated by the Merger Agreement or the Stock Option
Agreement."
2. Amendment of Section 3(a). Section 3(a) of the Rights Agreement
is amended by adding the following proviso at the end of the first sentence:
"provided that, notwithstanding anything in this Agreement to the contrary,
a Distribution Date shall not be deemed to have occurred solely as the result of
(i) the execution of the Merger Agreement or the Stock Option Agreement, (ii)
the consummation of the Merger, (iii) the consummation of any other transaction
contemplated in the Merger Agreement or the Stock Option Agreement, or (iv)
Common Stock held in a bona fide fiduciary capacity."
3. Amendment of Section 7(a). Section 7(a) of the Rights Agreement
is amended and restated in its entirety as follows:
"(a) Except as otherwise provided herein, the Rights shall become
exercisable on the Distribution Date, and thereafter the registered holder of
any Right Certificate may, subject to Section 11(a)(ii) hereof and except as
otherwise provided herein, exercise the Rights evidenced thereby in whole or in
part 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
office or agency 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 as to which the Rights are exercised, at any time which is both after the
Distribution Date and prior to the earliest of (i) the close of business on
October 1, 2006, (ii) immediately prior to the time at which the consummation of
the Merger occurs (the earlier of (i) or (ii) being the "Final Expiration
Date"), (iii) the time at which the Rights are redeemed as provided in Section
23 hereof (the "Redemption Date") or (iv) the time at which such Rights are
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exchanged as provided in Section 24 hereof."
4. Amendment of Section 11(a) (ii). Section 11(a) (ii) of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none of (i)
the execution of the Merger Agreement or the Stock Option Agreement, (ii) the
consummation of the Merger or (iii) the consummation of any other transaction
contemplated in the Merger Agreement or the Stock Option Agreement shall cause
the Rights to be adjusted or become exercisable in accordance with this Section
11(a) (ii)."
5. Amendment of Section 13 (a). Section 13(a) of the Rights
Agreement is amended and restated in its entirety as follows:
"Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earnings Power. (a) In the event, directly or indirectly, at any time after any
Person has become an Acquiring Person, (i) the Company shall merge with and into
any other Person, (ii) any Person shall consolidate with the Company, or any
Person shall merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection with such
merger, all or part of the Common Stock shall be changed into or exchanged for
stock or other securities of any other Person (or of the Company) or cash or any
other property, or (iii) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to any
other Person (other than the Company or one or more of its wholly-owned
Subsidiaries), then upon the first occurrence of such event, proper provision
shall be made so that: (A) each holder of record of a Right (other than Rights
which have become void pursuant to Section 11(a)(ii)) shall thereafter have the
right to receive, upon the exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-hundredths of a share of
Preferred Stock for which a Right
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was exercisable (whether or not such Right was then exercisable) immediately
prior to the time that any Person first became an Acquiring Person (each as
subsequently adjusted thereafter pursuant to Sections 11(a)(i), 11(b), 11(c),
11(h), 11(i) and 11(m)), in accordance with the terms of this Agreement and in
lieu of Preferred Stock, such number of validly issued, fully paid and non-
assessable and freely tradeable shares of Common Stock of the Principal Party
(as defined herein) not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number of one one-hundreths
of a share of Preferred Stock for which a Right was exercisable immediately
prior to the time that any Person first became an Acquiring Person as
subsequently adjusted thereafter pursuant to Sections 11(a)(i), 11(b), 11(c),
11(h), 11(i) and 11(m)) and (2) dividing that product by 50% of the then current
per share market price of the Common Stock of such Principal Party (determined
pursuant to Section 11(d)(i) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; provided that the Purchase Price and
the number of shares of Common Stock of such Principal Party issuable upon
exercise of each Right shall be further adjusted as provided in Section 11(f) of
this Agreement to reflect any events occurring in respect of such Principal
Party after the date of the such consolidation, merger, sale or transfer; (B)
such Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, all the obligations and duties
of the Company pursuant to this Agreement; (C) the term "Company" shall
thereafter be deemed to refer to such Principal Party; and (D) such Principal
Party shall take such steps (including, but not limited to, the reservation of a
sufficient number of its shares of Common Stock in accordance with Section 9
hereof) in connection with such consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to the shares of its Common Stock
thereafter deliverable upon the exercise of the Rights; provided that, upon the
subsequent occurrence of any consolidation, merger, sale or transfer of assets
or other extraordinary transaction in respect of such Principal Party, each
holder
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of a Right shall thereupon be entitled to receive, upon exercise of a Right and
payment of the Purchase Price as provided in this Section 13(a), such cash,
shares, rights, warrants and other property which such holder would have been
entitled to receive had such holder, at the time of such transaction, owned the
Common Stock of the Principal Party receivable upon the exercise of a Right
pursuant to this Section 13(a), and such Principal Party shall take such steps
(including, but not limited to, reservation of shares of stock) as may be
necessary to permit the subsequent exercise of the Rights in accordance with the
terms hereof for such cash, shares, rights, warrants and other property; and
provided further that, notwithstanding anything in this Agreement to the
contrary, none of (i) the execution of the Merger Agreement or the Stock Option
Agreement, (ii) the consummation of the Merger or (iii) the consummation of any
other transaction contemplated in the Merger Agreement or the Stock Option
Agreement shall be deemed an event of the type described in clauses (a)(i),
(a)(ii) or (a)(iii) of this Section 13 and shall not cause the Rights to be
adjusted or exercisable in accordance with the terms of this Agreement."
6. Amendment of Section 29. Section 29 of the Rights Agreement is
amended by adding 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
Rights Agreement by virtue of the execution of the Merger Agreement or the Stock
Option Agreement or by virtue of any of the transactions contemplated by the
Merger Agreement or the Stock Option Agreement."
7. 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.
8. Miscellaneous. This Amendment shall be deemed to be a contract
made under the laws of the State of
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Delaware 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. 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 Amendment 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 effected, impaired or invalidated.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
Attest: EVEREN CAPITAL CORPORATION
By: By:
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Name: Name:
Title: Title:
Attest: XXXXXX TRUST AND SAVINGS BANK
By: By:
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Name: Name:
Title: Title:
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