COVER
Exhibit [(1)(4)]
AMENDED AND RESTATED RIGHTS AGREEMENT
dated as of
November 15, 1995
between
FIRST MIDWEST BANCORP, INC.
and
FIRST MIDWEST TRUST COMPANY
as Rights Agent
1
AMENDED AND RESTATED RIGHTS AGREEMENT
Table of Contents
Page
Article I
CERTAIN DEFINITIONS
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . .
Article II
THE RIGHTS
2.1 Summary of Rights . . . . . . . . . . . . . . . . . . . . . . . . .
2.2 Legend on Common Stock Certificates . . . . . . . . . . . . . . . .
2.3 Exercise of Rights; Separation of Rights . . . . . . . . . . . . .
2.4 Adjustments to Exercise Price; Number of Rights . . . . . . . . . .
2.5 Date on Which Exercise is Effective . . . . . . . . . . . . . . . .
2.6 Execution, Authentication, Delivery and Dating of Rights
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.7 Registration, Registration of Transfer and Exchange . . . . . . . .
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates . . . . .
2.9 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . .
2.10 Delivery and Cancellation of Certificates . . . . . . . . . . . . .
2.11 Agreement of Rights Holders . . . . . . . . . . . . . . . . . . . .
Article III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.2 Flip-over . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Article IV
THE RIGHTS AGENT
4.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2 Merger or Consolidation or Change of Name of Rights Agent . . . . . .
4.3 Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . .
4.4 Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . .
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Article V
MISCELLANEOUS
5.1 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.2 Expiration . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.3 Issuance of New Rights Certificates . . . . . . . . . . . . . . . .
5.4 Supplements and Amendments . . . . . . . . . . . . . . . . . . . .
5.5 Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . .
5.6 Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . .
5.7 Holder of Rights Not Deemed a Stockholder . . . . . . . . . . . . .
5.8 Notice of Proposed Actions . . . . . . . . . . . . . . . . . . . .
5.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.10 Suspension of Exercisability. . . . . . . . . . . . . . . . . . . .
5.11 Costs of Enforcement. . . . . . . . . . . . . . . . . . . . . . . .
5.12 Successors. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.13 Benefits of this Agreement. . . . . . . . . . . . . . . . . . . . .
5.14 Determination and Actions by the Board of Directors, etc. . . . . .
5.15 Descriptive Headings. . . . . . . . . . . . . . . . . . . . . . . .
5.16 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.17 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.18 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A
Form of Rights Certificate
(Together with Form of
Election to Exercise)
EXHIBIT B
Form of Certificate of Designation
of Participating Preferred Stock
1
AMENDED AND RESTATED RIGHTS AGREEMENT
AMENDED AND RESTATED RIGHTS AGREEMENT (as amended from time to
time, this "Agreement"), dated as of November 15, 1995, between First
Midwest Bancorp, Inc., a Delaware corporation (the "Company"), and First
Midwest Trust Company, as Rights Agent (the "Rights Agent", which term
shall include any successor Rights Agent hereunder).
WITNESSETH:
WHEREAS, the Company and The First National Bank of Chicago, as
rights agent, entered into a Rights Agreement, dated as of February 15,
1989 (hereinafter referred to as the "Original Rights Agreement") with
respect to the declaration of one right ("Right") in respect of each share
of Common Stock (as hereinafter defined) held of record as of the close of
business on March 1, 1989 (the "Record Date"), each Right representing the
right to purchase one one-hundredth of a share of Preferred Stock (as
hereinafter defined), upon the terms and conditions set forth in the
Original Rights Agreement, and the Board of Directors authorized the
issuance of one Right in respect of each share of Common Stock issued after
the Record Date and prior to the Separation Time (as defined in the
Original Rights Agreement).
WHEREAS, the Original Rights Agreement provides that prior to
the Separation Time (as defined in the
2
Original Rights Agreement), the Company may at any time or from time to
time amend the Original Rights Agreement in any respect without the
approval of any holders of Rights and that the Company may replace the
rights agent;
WHEREAS, the Separation Time (as defined in the Original Rights
Agreement) has not occurred;
WHEREAS, the Company desires to appoint First Midwest Trust
Company to replace The First National Bank of Chicago as rights agent; and
WHEREAS, the Company and the Rights Agent wish to amend and
restate the Original Rights Agreement in its entirety as follows:
NOW THEREFORE, in consideration of the premises and the
respective agreements set forth herein, the parties hereby agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a Beneficial
Owner of 10% or more of the outstanding shares of Common Stock; provided,
however, that the term "Acquiring Person" shall not include any Person
(i) who is the Beneficial Owner of 10% or more of the outstanding shares of
Common Stock on the date of this Agreement or who shall become
3
the Beneficial Owner of 10% or more of the outstanding shares of Common
Stock solely as a result of an acquisition by the Company of shares of
Common Stock, until such time hereafter or thereafter as any of such
Persons shall become the Beneficial Owner (other than by means of a stock
dividend or stock split) of any additional shares of Common Stock, (ii) who
is the Beneficial Owner of 10% or more of the outstanding shares of Common
Stock but who acquired Beneficial Ownership of shares of Common Stock
without any plan or intention to seek or affect control of the Company, if
such Person promptly enters into an irrevocable commitment promptly to
divest, and thereafter promptly divests (without exercising or retaining
any power, including voting, with respect to such shares), sufficient
shares of Common Stock (or securities convertible into, exchangeable into
or exercisable for Common Stock) so that such Person ceases to be the
Beneficial Owner of 10% or more of the outstanding shares of Common Stock
or (iii) who Beneficially Owns shares of Common Stock consisting solely of
one or more of (A) shares of Common Stock Beneficially Owned pursuant to
the grant or exercise of an option granted to such Person by the Company in
connection with an agreement to merge with, or acquire, the Company entered
into prior to a Flip-in Date, (B) shares of Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock) Bene-
ficially Owned by such Person or its Affiliates or Associates
4
at the time of grant of such option, (C) shares of Common Stock (or
securities convertible into, exchangeable into or exercisable for Common
Stock) acquired by Affiliates or Associates of such Person after the time
of such grant which, in the aggregate, amount to less than 1% of the
outstanding shares of Common Stock or (D) Common Stock (or securities
convertible into, exchangeable into or exercisable for Common Stock) which
are held by such Person in trust accounts, managed accounts and the like or
otherwise held in a fiduciary capacity, that are beneficially owned by
third persons who are not Affiliates or Associates of such Person or acting
together with such Person to hold such shares, or which are held by such
Person in respect of a debt previously contracted. In addition, the
Company, any wholly-owned Subsidiary of the Company and any employee stock
ownership or other employee benefit plan of the Company or a wholly-owned
Subsidiary of the Company shall not be an Acquiring Person.
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Securities Exchange Act of
1934, as such Rule is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner", and to have
"Beneficial Ownership" of, and to "Beneficially Own", any securities as to
which such Person or any of such Person's Affiliates or Associates is or
may be deemed to be
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the beneficial owner of pursuant to Rules 13d-3 and 13d-5 under the
Securities Exchange Act, as such Rules are in effect on the date of this
Agreement as well as any securities as to which such Person or any of such
Person's Affiliates or Associates has the right to become Beneficial Owner
(whether such right is exercisable immediately or only after the passage of
time or the occurrence of conditions) pursuant to any agreement, arrange-
ment or understanding, or upon the exercise of conversion rights, exchange
rights, rights (other than the Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the "Beneficial
Owner", or to have "Beneficial Ownership" of, or to "Beneficially Own", any
security (i) solely because such security has been tendered pursuant to a
tender or exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered security is accepted for
payment or exchange or (ii) solely because such Person or any of such
Person's Affiliates or Associates has or shares the power to vote or direct
the voting of such security pursuant to a revocable proxy given in response
to a public proxy or consent solicitation made to more than ten holders of
shares of a class of stock of the Company registered under Section 12 of
the Securities Exchange Act of 1934 and pursuant to, and in accordance
with, the applicable rules and regulations under the Securities Exchange
Act of 1934, except if such power (or the arrangements relating
6
thereto) is then reportable under Item 6 of Schedule 13D under the
Securities Exchange Act of 1934 (or any similar provision of a comparable
or successor report). Notwithstanding the foregoing, no officer or
director of the Company shall be deemed to Beneficially Own any securities
of any other Person by virtue of any actions such officer or director takes
in such capacity. For purposes of this Agreement, in determining the
percentage of the outstanding shares of Common Stock with respect to which
a Person is the Beneficial Owner, all shares as to which such Person is
deemed the Beneficial Owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in Chicago, Illinois are generally
authorized or obligated by law or executive order to close.
"Close of business" on any given date shall mean 5:00 p.m.
Chicago, Illinois time on such date (or, if such date is not a Business
Day, 5:00 p.m. Chicago, Illinois time on the next succeeding Business Day).
"Common Stock" shall mean the shares of Common Stock, without
par value, of the Company.
"Exchange Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price at which
a holder may purchase the securities issuable
7
upon exercise of one whole Right. Until adjustment thereof in accordance
with the terms hereof, the Exercise Price shall equal $100.
"Expiration Time" shall mean the earliest of (i) the Exchange
Time, (ii) the Redemption Time, (iii) November 15, 2005 and (iv) pursuant
to an agreement entered into prior to a Flip-in Date, upon the merger of
the Company into another corporation or with another corporation in which
all shares of Common Stock are either converted into cash and/or securities
of another corporation or, with respect to treasury shares and shares owned
by the other party to the merger or its affiliates, cancelled.
"Flip-in Date" shall mean the tenth business day after any
Stock Acquisition Date or such earlier or later date as the Board of
Directors of the Company may from time to time fix by resolution adopted
prior to the Flip-in Date that would otherwise have occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean
(i) in the case of a Flip-over Transaction or Event described in clause
(i) of the definition thereof, the Person issuing any securities into which
shares of Common Stock are being converted or exchanged and, if no such
securities are being issued, the other party to such Flip-over Transaction
or Event and (ii) in the case of a Flip-over Transaction or Event referred
to in clause (ii) of the definition thereof, the Person receiving the
greatest
8
portion of the assets or earning power being transferred in such Flip-over
Transaction or Event, provided in all cases if such Person is a subsidiary
of a corporation, the parent corporation shall be the Flip-over Entity.
"Flip-over Stock" shall mean the capital stock (or similar
equity interest) with the greatest voting power in respect of the election
of directors (or other persons similarly responsible for direction of the
business and affairs) of the Flip-over Entity.
"Flip-over Transaction or Event" shall mean a transaction or
series of transactions after a Flip-in Date in which, directly or
indirectly, (i) the Company shall consolidate or merge or participate in a
share exchange with any other Person if, at the time of the consolidation,
merger or share exchange or at the time the Company enters into any agree-
ment with respect to any such consolidation, merger or share exchange, the
Acquiring Person Controls the Board of Directors of the Company and either
(A) any term of or arrangement concerning the treatment of shares of
capital stock in such consolidation, merger or share exchange relating to
the Acquiring Person is not identical to the terms and arrangements
relating to other holders of the Common Stock or (B) the Person with whom
the transaction or series of transactions occurs is the Acquiring Person or
an Affiliate or Associate of the Acquiring Person or (ii) the Company shall
sell or otherwise transfer (or one or more of
9
its Subsidiaries shall sell or otherwise transfer) assets (A) aggregating
more than 50% of the assets (measured by either book value or fair market
value) or (B) generating more than 50% of the operating income or cash
flow, of the Company and its Subsidiaries (taken as a whole) to any Person
(other than the Company or one or more of its wholly owned Subsidiaries) or
to two or more such Persons which are Affiliates or Associates or otherwise
acting in concert, if, at the time of the entry by the Company (or any such
Subsidiary) into an agreement with respect to such sale or transfer of
assets, the Acquiring Person Controls the Board of Directors of the Com-
pany. An Acquiring Person shall be deemed to Control the Company's Board
of Directors when, following a Flip-in Date, the persons who were directors
of the Company before the Flip-in Date shall cease to constitute a majority
of the Company's Board of Directors.
"Market Price" per share of any securities on any date shall
mean the average of the daily closing prices per share of such securities
(determined as described below) on each of the 20 consecutive Trading Days
through and including the Trading Day immediately preceding such date; pro-
vided, however, that if an event of a type analogous to any of the events
described in Section 2.4 hereof shall have caused the closing prices used
to determine the Market Price on any Trading Days during such period of 20
Trading Days not to be fully comparable with the closing price on such
10
date, each such closing price so used shall be appropriately adjusted in
order to make it fully comparable with the closing price on such date. The
closing price per share of any securities on any date shall be the last
reported sale price, regular way, or, in case no such sale takes place or
is quoted on such date, the average of the closing bid and asked prices,
regular way, for each share of such securities, in either case as reported
in the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange,
Inc. or, if the securities are not listed or admitted to trading on the New
York Stock Exchange, Inc., as reported in the principal consolidated trans-
action reporting system with respect to securities listed on the principal
national securities exchange on which the securities are listed or admitted
to trading or, if the securities are not listed or admitted to trading on
any national securities exchange, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System or such other system
then in use, or, if on any such date the securities are not listed or ad-
mitted to trading on any national securities exchange or quoted by any such
organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the securities selected
by the Board of Directors of the Company; provided, however, that if on any
such date the
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securities are not listed or admitted to trading on a national securities
exchange or traded in the over-the-counter market, the closing price per
share of such securities on such date shall mean the fair value per share
of securities on such date as determined in good faith by the Board of
Directors of the Company, after consultation with a nationally recognized
investment banking firm, and set forth in a certificate delivered to the
Rights Agent.
"Person" shall mean any individual, firm, partnership,
association, group (as such term is used in Rule 13d-5 under the Securities
Exchange Act of 1934, as such Rule is in effect on the date of this
Agreement), corporation or other entity.
"Preferred Stock" shall mean the Series A Preferred Stock of
the Company created by a Resolution of Designation filed on February 16,
1989, a copy of which is set forth in Exhibit B hereto.
"Redemption Price" shall mean an amount equal to one cent,
$0.01.
"Redemption Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 5.1 hereof.
"Separation Time" shall mean the close of business on the
earlier of (i) the tenth business day (or such later date as the Board of
Directors of the Company may from time to time fix by resolution adopted
prior to the Separation
12
Time that would otherwise have occurred) after the date on which any Person
commences a tender or exchange offer which, if consummated, would result in
such Person's becoming an Acquiring Person and (ii) the Flip-in Date;
provided, that if any tender or exchange offer referred to in clause (i) of
this paragraph is cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any shares of Common Stock pursuant
thereto, such offer shall be deemed, for purposes of this paragraph, never
to have been made.
"Stock Acquisition Date" shall mean the first date of public
announcement by the Company (by any means) that an Acquiring Person has
become such.
"Subsidiary" of any specified Person shall mean any corporation
or other entity of which a majority of the voting power of the equity
securities or a majority of the equity interest is Beneficially Owned,
directly or indirectly, by such Person.
"Trading Day," when used with respect to any securities, shall
mean a day on which the New York Stock Exchange, Inc. is open for the
transaction of business or, if such securities are not listed or admitted
to trading on the New York Stock Exchange, Inc., a day on which the princi-
pal national securities exchange on which such securities are listed or
admitted to trading is open for the transaction of business or, if such
securities are not
13
listed or admitted to trading on any national securities exchange, a
Business Day.
ARTICLE II
THE RIGHTS
2.1 Summary of Rights. As soon as practicable after the date
hereof, the Company will mail a letter summarizing the amended terms of the
Rights to each holder of record of Common Stock as of the date hereof, at
such holder's address as shown by the records of the Company.
2.2 Legend on Common Stock Certificates. Certificates for the
Common Stock issued after the date hereof but prior to the Separation Time
shall evidence one Right for each share of Common Stock represented thereby
and shall have impressed on, printed on, written on or otherwise affixed to
them the following legend:
Until the Separation Time (as defined in the Rights Agreement
referred to below), this certificate also evidences and entitles the
holder hereof to certain Rights as set forth in an Amended and
Restated Rights Agreement, dated as of November 15, 1995 (as such may
be amended from time to time, the "Rights Agreement"), between First
Midwest Bancorp, Inc. (the "Company") and First Midwest Trust
Company, as Rights Agent, the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances, as
set forth in the Rights Agreement, such Rights may be redeemed, may
become exercisable for securities or assets of the Company or of
another entity, may be exchanged for shares of Common Stock or other
securities or assets of the Company, may expire, may become void (if
they are "Beneficially Owned" by an "Acquiring Person" or an
Affiliate or Associate thereof, as such terms are defined in the
Rights Agreement, or by any transferee of any of the fore-
14
going) or may be evidenced by separate certificates and may no longer
be evidenced by this certificate. The Company will mail or arrange
for the mailing of a copy of the Rights Agreement to the holder of
this certificate without charge promptly after the receipt of a
written request therefor.
Certificates representing shares of Common Stock that were issued and
outstanding at the Record Date shall evidence one Right for each share of
Common Stock evidenced thereby notwithstanding the absence of the foregoing
legend and certificates representing shares of Common Stock issued after
the Record Date but prior to the date hereof bearing the form of legend set
forth in the Original Rights Agreement shall evidence one Right for each
Common Share on the terms set forth in this Agreement.
2.3 Exercise of Rights; Separation of Rights. (a) Subject
to Sections 3.1, 5.1 and 5.10 and subject to adjustment as herein set
forth, each Right will entitle the holder thereof, after the Separation
Time and prior to the Expiration Time, to purchase, for the Exercise Price,
one one-hundredth of a share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised
and (ii) each Right will be evidenced by the certificate for the associated
share of Common Stock (together, in the case of certificates issued prior
to the Record Date, with the letter mailed to the record holder thereof
pursuant to the Original Rights Agreement) and will be transferable only
together with, and will be transferred
15
by a transfer (whether with or without such letter) of, such associated
share.
(c) Subject to this Section 2.3 and to Sections 3.1, 5.1 and
5.10, after the Separation Time and prior to the Expiration Time, the
Rights (i) may be exercised and (ii) may be transferred independent of
shares of Common Stock. Promptly following the Separation Time, the Rights
Agent will mail to each holder of record of Common Stock as of the
Separation Time (other than any Person whose Rights have become void
pursuant to Section 3.1(b)), at such holder's address as shown by the
records of the Company (the Company hereby agreeing to furnish copies of
such records to the Rights Agent for this purpose), (x) a certificate (a
"Rights Certificate") in substantially the form of Exhibit A hereto
appropriately completed, representing the number of Rights held by such
holder at the Separation Time and having such marks of identification or
designation and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any national securities exchange or quotation system on which
the Rights may from time to time be listed or traded, or to conform to
usage, and (y) a disclosure statement describing the Rights.
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(d) Subject to Sections 3.1, 5.1 and 5.10, Rights may be
exercised on any Business Day after the Separation Time and prior to the
Expiration Time by submitting to the Rights Agent the Rights Certificate
evidencing such Rights with an Election to Exercise (an "Election to Exer-
cise") substantially in the form attached to the Rights Certificate duly
completed, accompanied by payment in cash, or by certified or official bank
check or money order payable to the order of the Company, of a sum equal to
the Exercise Price multiplied by the number of Rights being exercised and a
sum sufficient to cover any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for shares or
depositary receipts (or both) in a name other than that of the holder of
the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to
Exercise accompanied by payment as set forth in Section 2.3(d), and subject
to Sections 3.1, 5.1 and 5.10, the Rights Agent will thereupon promptly
(i)(A) requisition from a transfer agent stock certificates evidencing such
number of shares or other securities to be purchased (the Company hereby
irrevocably authorizing its transfer agents to comply with all such
requisitions) and (B) if the Company elects pursuant to Section 5.5 not to
issue certificates representing fractional shares, requisition from the
depositary
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selected by the Company depositary receipts representing the fractional
shares to be purchased or requisition from the Company the amount of cash
to be paid in lieu of fractional shares in accordance with Section 5.5 and
(ii) after receipt of such certificates, depositary receipts and/or cash,
deliver the same to or upon the order of the registered holder of such
Rights Certificate, registered (in the case of certificates or depositary
receipts) in such name or names as may be designated by such holder.
(f) In case the holder of any Rights shall exercise less than
all the Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued by
the Rights Agent to such holder or to such holder's duly authorized
assigns.
(g) The Company covenants and agrees that it will (i) take
all such action as may be necessary to ensure that all shares delivered
upon exercise of Rights shall, at the time of delivery of the certificates
for such shares (subject to payment of the Exercise Price), be duly and
validly authorized, executed, issued and delivered and fully paid and
nonassessable; (ii) take all such action as may be necessary to comply with
any applicable requirements of the Securities Act of 1933 or the Securities
Exchange Act of 1934, and the rules and regulations thereunder, and any
other applicable law, rule or regulation, in connection with
18
the issuance of any shares upon exercise of Rights; and (iii) pay when due
and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the original issuance or delivery of the
Rights Certificates or of any shares issued upon the exercise of Rights,
provided that the Company shall not be required to pay any transfer tax or
charge which may be payable in respect of any transfer involved in the
transfer or delivery of Rights Certificates or the issuance or delivery of
certificates for shares in a name other than that of the holder of the
Rights being transferred or exercised.
2.4 Adjustments to Exercise Price; Number of Rights. (a) In
the event the Company shall at any time after the date hereof and prior to
the Separation Time (i) declare or pay a dividend on Common Stock payable
in Common Stock, (ii) subdivide the outstanding Common Stock or
(iii) combine the outstanding Common Stock into a smaller number of shares
of Common Stock, (x) the Exercise Price in effect after such adjustment
will be equal to the Exercise Price in effect immediately prior to such
adjustment divided by the number of shares of Common Stock (the "Expansion
Factor") that a holder of one share of Common Stock immediately prior to
such dividend, subdivision or combination would hold thereafter as a result
thereof and (y) each Right held prior to such adjustment will become that
number of Rights equal to the Expansion Factor, and the adjusted
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number of Rights will be deemed to be distributed among the shares of
Common Stock with respect to which the original Rights were associated (if
they remain outstanding) and the shares issued in respect of such dividend,
subdivision or combination, so that each such share of Common Stock will
have exactly one Right associated with it. Each adjustment made pursuant
to this paragraph shall be made as of the payment or effective date for the
applicable dividend, subdivision or combination.
In the event the Company shall at any time after the date
hereof and prior to the Separation Time issue any shares of Common Stock
otherwise than in a transaction referred to in the preceding paragraph,
each such share of Common Stock so issued shall automatically have one new
Right associated with it, which Right shall be evidenced by the certificate
representing such share. To the extent provided in Section 5.3, Rights
shall be issued by the Company in respect of shares of Common Stock that
are issued or sold by the Company after the Separation Time.
(b) In the event the Company shall at any time after the date
hereof and prior to the Separation Time issue or distribute any securities
or assets in respect of, in lieu of or in exchange for Common Stock (other
than pursuant to a regular periodic cash dividend or a dividend paid solely
in Common Stock) whether by dividend, in a reclassification or
recapitalization (including any such transaction
20
involving a merger, consolidation or share exchange), or otherwise, the
Company shall make such adjustments, if any, in the Exercise Price, number
of Rights and/or securities or other property purchasable upon exercise of
Rights as the Board of Directors of the Company, in its sole discretion,
may deem to be appropriate under the circumstances in order to adequately
protect the interests of the holders of Rights generally, and the Company
and the Rights Agent shall amend this Agreement as necessary to provide for
such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to
this Section 2.4 shall be calculated to the nearest cent. Whenever an
adjustment to the Exercise Price is made pursuant to this Section 2.4, the
Company shall (i) promptly prepare a certificate setting forth such adjust-
ment and a brief statement of the facts accounting for such adjustment and
(ii) promptly file with the Rights Agent and with each transfer agent for
the Common Stock a copy of such certificate.
(d) Rights Certificates shall represent the securities
purchasable under the terms of this Agreement, including any adjustment or
change in the securities purchasable upon exercise of the Rights, even
though such certificates may continue to express the securities purchasable
at the time of issuance of the initial Rights Certificates.
21
2.5 Date on Which Exercise is Effective. Each person in
whose name any certificate for shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
shares represented thereby on the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Exercise
Price for such Rights (and any applicable taxes and other governmental
charges payable by the exercising holder hereunder) was made; provided,
however, that if the date of such surrender and payment is a date upon
which the stock transfer books of the Company are closed, such person shall
be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which the
stock transfer books of the Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights
Certificates. (a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents or its Treasurer, under its corporate
seal reproduced thereon attested by its Secretary or any of its Assistant
Secretaries. The signature of any of these officers on the Rights Certifi-
▇▇▇▇▇ may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures
of individuals who were at any time the
22
proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to
the countersignature and delivery of such Rights Certificates.
Promptly after the Separation Time, the Company will notify the
Rights Agent of such Separation Time and will deliver Rights Certificates
executed by the Company to the Rights Agent for countersignature, and,
subject to Section 3.1(b), the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(c) hereof. No Rights Certificate shall be valid for any
purpose unless manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.7 Registration, Registration of Transfer and Exchange. (a)
After the Separation Time, the Company will cause to be kept a register
(the "Rights Register") in which, subject to such reasonable regulations as
it may prescribe, the Company will provide for the registration and
transfer of Rights. The Rights Agent is hereby appointed "Rights
Registrar" for the purpose of maintaining the Rights Register for the
Company and registering Rights and transfers of Rights after the Separation
Time as herein provided. In the event that the Rights Agent shall cease to
be the Rights Registrar, the Rights Agent will have the right to
23
examine the Rights Register at all reasonable times after the Separation
Time.
After the Separation Time and prior to the Expiration Time,
upon surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Sections 2.7(c) and (d), the
Company will execute, and the Rights Agent will countersign and deliver, in
the name of the holder or the designated transferee or transferees, as
required pursuant to the holder's instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights as did the
Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b), all
Rights issued upon any registration of transfer or exchange of Rights
Certificates shall be the valid obligations of the Company, and such Rights
shall be entitled to the same benefits under this Agreement as the Rights
surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights
Agent, as the case may be, duly executed by the holder thereof or such
holder's attorney duly authorized in writing. As a condition to the
issuance of any new Rights Certificate under
24
this Section 2.7, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto.
(d) The Company shall not be required to register the
transfer or exchange of any Rights after such Rights have become void under
Section 3.1(b), been exchanged under Section 3.1(c) or been redeemed or
terminated under Section 5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates. (a) If any mutilated Rights Certificate is surrendered to
the Rights Agent prior to the Expiration Time, then, subject to Sections
3.1(b), 3.1(c) and 5.1, the Company shall execute and the Rights Agent
shall countersign and deliver in exchange therefor a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so
surrendered.
(b) If there shall be delivered to the Company and the Rights
Agent prior to the Expiration Time (i) evidence to their satisfaction of
the destruction, loss or theft of any Rights Certificate and (ii) such
security or indemnity as may be required by them to save each of them and
any of their agents harmless, then, subject to Sections 3.1(b), 3.1(c) and
5.1 and in the absence of notice to the Company or the Rights Agent that
such Rights Certificate has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Rights Agent shall
25
countersign and deliver, in lieu of any such destroyed, lost or stolen
Rights Certificate, a new Rights Certificate evidencing the same number of
Rights as did the Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights
Certificate under this Section 2.8, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this
Section 2.8 in lieu of any destroyed, lost or stolen Rights Certificate
shall evidence an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Rights Certificate
shall be at any time enforceable by anyone, and, subject to Section 3.1(b),
shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Rights duly issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a
Rights Certificate (or, prior to the Separation Time, the associated Common
Stock certificate) for registration of transfer, the Company, the Rights
Agent and any agent of the Company or the Rights Agent may deem and treat
the person in whose name such Rights Certificate (or, prior to the
Separation Time, such Common Stock certificate) is
26
registered as the absolute owner thereof and of the Rights evidenced
thereby for all purposes whatsoever, including the payment of the
Redemption Price and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary. As used in this Agreement, unless
the context otherwise requires, the term "holder" of any Rights shall mean
the registered holder of such Rights (or, prior to the Separation Time, the
associated shares of Common Stock).
2.10 Delivery and Cancellation of Certificates. All Rights
Certificates surrendered upon exercise or for registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent,
be delivered to the Rights Agent and, in any case, shall be promptly can-
celled by the Rights Agent. The Company may at any time deliver to the
Rights Agent for cancellation any Rights Certificates previously counter-
signed and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Rights Certificates so delivered shall be
promptly cancelled by the Rights Agent. No Rights Certificates shall be
countersigned in lieu of or in exchange for any Rights Certificates
cancelled as provided in this Section 2.10, except as expressly permitted
by this Agreement. The Rights Agent shall return all cancelled Rights
Certificates to the Company.
2.11 Agreement of Rights Holders. Every holder of Rights by
accepting the same consents and agrees with the
27
Company and the Rights Agent and with every other holder of Rights that:
(a) prior to the Separation Time, each Right will be
transferable only together with, and will be transferred by a transfer of,
the associated share of Common Stock;
(b) after the Separation Time, the Rights Certificates will
be transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or,
prior to the Separation Time, the associated Common Stock certificate) for
registration of transfer, the Company, the Rights Agent and any agent of
the Company or the Rights Agent may deem and treat the person in whose name
the Rights Certificate (or, prior to the Separation Time, the associated
Common Stock certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby for all purposes whatsoever, and neither
the Company nor the Rights Agent shall be affected by any notice to the
contrary;
(d) Rights beneficially owned by certain Persons will, under
the circumstances set forth in Section 3.1(b), become void; and
(e) this Agreement may be supplemented or amended from time to
time pursuant to Section 2.4(b) or 5.4 hereof.
28
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the Expiration
Time a Flip-in Date shall occur, except as provided in this Section 3.1,
each Right shall constitute the right to purchase from the Company, upon
exercise thereof in accordance with the terms hereof (but subject to
Section 5.10), that number of shares of Common Stock having an aggregate
Market Price on the Stock Acquisition Date equal to twice the Exercise
Price for an amount in cash equal to the Exercise Price (such right to be
appropriately adjusted in order to protect the interests of the holders of
Rights generally in the event that on or after such Stock Acquisition Date
an event of a type analogous to any of the events described in
Section 2.4(a) or (b) shall have occurred with respect to the Common
Stock).
(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned on or after the Stock Acquisition Date by an Acquiring
Person or an Affiliate or Associate thereof or by any transferee, direct or
indirect, of any of the foregoing shall become void and any holder of such
Rights (including transferees) shall thereafter have no right to exercise
or transfer such Rights under any provision of this Agreement. If any
Rights Certificate is presented for assignment or exercise and the Person
present-
29
ing the same will not complete the certification set forth at the end of
the form of assignment or notice of election to exercise and provide such
additional evidence of the identity of the Beneficial Owner and its
Affiliates and Associates (or former Beneficial Owners and their Affiliates
and Associates) as the Company shall reasonably request, then the Company
shall be entitled conclusively to deem the Beneficial Owner thereof to be
an Acquiring Person or an Affiliate or Associate thereof or a transferee of
any of the foregoing and accordingly will deem the Rights evidenced thereby
to be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option,
at any time after a Flip-in Date and prior to the time that an Acquiring
Person becomes the Beneficial Owner of more than 50% of the outstanding
shares of Common Stock, elect to exchange all (but not less than all) the
then outstanding Rights (which shall not include Rights that have become
void pursuant to the provisions of Section 3.1(b)) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted in order to protect the interests of holders of
Rights generally in the event that after the Separation Time an event of a
type analogous to any of the events described in Section 2.4(a) or (b)
shall have occurred with respect to the Common Stock (such exchange ratio,
as adjusted from time
30
to time, being hereinafter referred to as the "Exchange Ratio").
Immediately upon the action of the Board of Directors of the
Company electing to exchange the Rights, without any further action and
without any notice, the right to exercise the Rights will terminate and
each Right (other than Rights that have become void pursuant to Sec-
tion 3.1(b)) will thereafter represent only the right to receive a number
of shares of Common Stock equal to the Exchange Ratio. Promptly after the
action of the Board of Directors electing to exchange the Rights, the
Company shall give notice thereof (specifying the steps to be taken to
receive shares of Common Stock in exchange for Rights) to the Rights Agent
and the holders of the Rights (other than Rights that have become void
pursuant to Section 3.1(b)) outstanding immediately prior thereto by
mailing such notice in accordance with Section 5.9.
Each Person in whose name any certificate for shares is issued
upon the exchange of Rights pursuant to this Section 3.1(c) or Section
3.1(d) shall for all purposes be deemed to have become the holder of record
of the shares represented thereby on, and such certificate shall be dated,
the date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of any applicable taxes and other governmental
charges payable by the holder was made; provided, however, that if the date
of such sur-
31
render and payment is a date upon which the stock transfer books of the
Company are closed, such Person shall be deemed to have become the record
holder of such shares on, and such certificate shall be dated, the next
succeeding Business Day on which the stock transfer books of the Company
are open.
(d) Whenever the Company shall become obligated under
Section 3.1(a) or (c) to issue shares of Common Stock upon exercise of or
in exchange for Rights, the Company, at its option, may substitute therefor
shares of Preferred Stock, at a ratio of one one-hundredth of a share of
Preferred Stock for each share of Common Stock so issuable.
(e) In the event that there shall not be sufficient treasury
shares or authorized but unissued shares of Common Stock or Preferred Stock
of the Company to permit the exercise or exchange in full of the Rights in
accordance with Section 3.1(a) or (c), the Company shall either (i) call a
meeting of stockholders seeking approval to cause sufficient additional
shares to be authorized (provided that if such approval is not obtained the
Company will take the action specified in clause (ii) of this sentence) or
(ii) take such action as shall be necessary to ensure and provide, to the
extent permitted by applicable law and any agreements or instruments in
effect on the Stock Acquisition Date to which it is a party, that each
Right shall thereafter constitute the right to receive, (x) at the
Company's option, either (A) in return for the Exercise Price, debt or
32
equity securities or other assets (or a combination thereof) having a fair
value equal to twice the Exercise Price, or (B) without payment of
consideration (except as otherwise required by applicable law), debt or
equity securities or other assets (or a combination thereof) having a fair
value equal to the Exercise Price, or (y) if the Board of Directors of the
Company elects to exchange the Rights in accordance with Section 3.1(c),
debt or equity securities or other assets (or a combination thereof) having
a fair value equal to the product of the Market Price of a share of Common
Stock on the Flip-in Date times the Exchange Ratio in effect on the Flip-in
Date, where in any case set forth in (x) or (y) above the fair value of
such debt or equity securities or other assets shall be as determined in
good faith by the Board of Directors of the Company, after consultation
with a nationally recognized investment banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, the
Company shall not enter into any agreement with respect to, consummate or
permit to occur any Flip-over Transaction or Event unless and until it
shall have entered into a supplemental agreement with the Flip-over Entity,
for the benefit of the holders of the Rights, providing that, upon
consummation or occurrence of the Flip-over Transaction or Event (i) each
Right shall thereafter constitute the right to purchase from the Flip-over
Entity, upon exercise
33
thereof in accordance with the terms hereof, that number of shares of Flip-
over Stock of the Flip-over Entity having an aggregate Market Price on the
date of consummation or occurrence of such Flip-over Transaction or Event
equal to twice the Exercise Price for an amount in cash equal to the Exer-
cise Price (such right to be appropriately adjusted in order to protect the
interests of the holders of Rights generally in the event that after such
date of consummation or occurrence an event of a type analogous to any of
the events described in Section 2.4(a) or (b) shall have occurred with
respect to the Flip-over Stock) and (ii) the Flip-over Entity shall there-
after be liable for, and shall assume, by virtue of such Flip-over
Transaction or Event and such supplemental agreement, all the obligations
and duties of the Company pursuant to this Agreement. The provisions of
this Section 3.2 shall apply to successive Flip-over Transactions or
Events.
(b) Prior to the Expiration Time, unless the Rights will be
redeemed pursuant to Section 5.1 hereof in connection therewith, the
Company shall not enter into any agreement with respect to, consummate or
permit to occur any Flip-over Transaction or Event if at the time thereof
there are any rights, warrants or securities outstanding or any other
arrangements, agreements or instruments that would eliminate or otherwise
diminish in any material respect the
34
benefits intended to be afforded by this Rights Agreement to the holders of
Rights upon consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the Rights
Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such appointment.
The Company agrees to pay to the Rights Agent reasonable compensation for
all services rendered by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted to be done by the Rights Agent in
connection with the acceptance and administration of this Agreement,
including the costs and expenses of defending against any claim of
liability.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it
in connection with its administration of this Agreement in reliance upon
any certificate
35
for securities purchasable upon exercise of Rights, Rights Certificate,
certificate for other securities of the Company, instrument of assignment
or transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons.
4.2 Merger or Consolidation or Change of Name of Rights
Agent. (a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation
succeeding to the stockholder services business of the Rights Agent or any
successor Rights Agent, will be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 4.4 hereof. In case at the time such
successor Rights Agent succeeds to the agency created by this Agreement any
of the Rights Certificates have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates
36
so countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Rights Certificates will have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and in
all such cases such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel will be
full and complete authorization
37
and protection to the Rights Agent as to any action taken or omitted by it
in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent deems it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by a person believed by the
Rights Agent to be the Chairman of the Board, the Chief Executive Officer,
the President or any Vice President and by the Treasurer or the Secretary
or any Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate will be full authorization to the Rights Agent
for any action taken or suffered in good faith by it under the provisions
of this Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement or in
the certificates for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be
38
required to verify the same, but all such statements and recitals are and
will be deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due authorization, execution and delivery hereof by the
Rights Agent) or in respect of the validity or execution of any certificate
for securities purchasable upon exercise of Rights or Rights Certificate
(except its countersignature thereof); nor will it be responsible for any
breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the Rights becoming
void pursuant to Section 3.1(b) hereof) or any adjustment required under
the provisions of Section 2.4, 3.1 or 3.2 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.4 describing any such adjustment); nor will it by
any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any securities purchasable upon
exercise of Rights or any Rights or as to whether any securities
purchasable upon exercise of Rights will, when
39
issued, be duly and validly authorized, executed, issued and delivered and
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from any person believed by the Rights Agent to be the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President or
the Secretary or any Assistant Secretary or the Treasurer of the Company,
and to apply to such persons for advice or instructions in connection with
its duties, and it shall not be liable for any action taken or suffered by
it in good faith in accordance with instructions of any such person.
(h) The Rights Agent and any stockholder, director, officer
or employee of the Rights Agent may buy, sell or deal in Common Stock,
Rights or other securities of the Company or become pecuniarily interested
in any transaction in which the Company may be interested, or contract with
or lend money to the Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement.
40
Nothing herein shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent will
not be answerable or accountable for any act, default, neglect or
misconduct of any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct, provided
reasonable care was exercised in the selection and continued employment
thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and
be discharged from its duties under this Agreement upon 90 days' notice (or
such lesser notice as is acceptable to the Company) in writing mailed to
the Company and to each transfer agent of Common Stock by registered or
certified mail. The Company may remove the Rights Agent upon 30 days'
notice in writing, mailed to the Rights Agent and to each transfer agent of
the Common Stock by registered or certified mail. If the Rights Agent
should resign or be removed or otherwise become incapable of acting, the
Company will appoint a successor to the Rights Agent. If the Company fails
to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by
the resigning
41
or incapacitated Rights Agent or by the holder of any Rights (which holder
shall, with such notice, submit such holder's Rights Certificate for
inspection by the Company), then the holder of any Rights may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business under the laws
of the United States or of the State of Illinois or any other State of the
United States, in good standing, which is authorized under such laws to
exercise the powers of the Rights Agent contemplated by this Agreement and
is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital
and surplus of at least $50,000,000. After appointment, the successor
Rights Agent will be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of
any such appointment, the Company will file notice thereof in writing with
the predecessor Rights Agent and each transfer agent of the Common Stock.
Failure to give any notice provided for in this
42
Section 4.4, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
ARTICLE V
MISCELLANEOUS
5.1 Redemption. (a) The Board of Directors of the Company
may, at its option, at any time prior to the close of business on the Flip-
in Date, elect to redeem all (but not less than all) the then outstanding
Rights at the Redemption Price and the Company, at its option, may pay the
Redemption Price either in cash or shares of Common Stock or other
securities of the Company deemed by the Board of Directors, in the exercise
of its sole discretion, to be at least equivalent in value to the
Redemption Price.
(b) Immediately upon the action of the Board of Directors of
the Company electing to redeem the Rights (or, if the resolution of the
Board of Directors electing to redeem the Rights states that the redemption
will not be effective until the occurrence of a specified future time or
event, upon the occurrence of such future time or event), without any
further action and without any notice, the right to exercise the Rights
will terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash or securities, as determined by the
Board
43
of Directors. Promptly after the Rights are redeemed, the Company shall
give notice of such redemption to the Rights Agent and the holders of the
then outstanding Rights by mailing such notice in accordance with Sec-
tion 5.9.
5.2 Expiration. The Rights and this Agreement shall expire
at the Expiration Time and no Person shall have any rights pursuant to this
Agreement or any Right after the Expiration Time, except, if the Rights are
exchanged or redeemed, as provided in Section 3.1 or 5.1 hereof.
5.3 Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights
in such form as may be approved by its Board of Directors to reflect any
adjustment or change in the number or kind or class of shares of stock
purchasable upon exercise of Rights made in accordance with the provisions
of this Agreement. In addition, in connection with the issuance or sale of
shares of Common Stock by the Company following the Separation Time and
prior to the Expiration Time pursuant to the terms of securities
convertible or redeemable into shares of Common Stock or to options, in
each case issued or granted prior to, and outstanding at, the Separation
Time, the Company shall issue to the holders of such shares of Common
Stock, Rights Certificates representing the appropriate number of Rights in
connection with the issuance or sale of such
44
shares of Common Stock; provided, however, in each case, (i) no such Rights
Certificate shall be issued, if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or to the Person to whom
such Rights Certificates would be issued, (ii) no such Rights Certificates
shall be issued if, and to the extent that, appropriate adjustment shall
have otherwise been made in lieu of the issuance thereof, and (iii) the
Company shall have no obligation to distribute Rights Certificates to any
Acquiring Person or Affiliate or Associate of an Acquiring Person or any
transferee of any of the foregoing.
5.4 Supplements and Amendments. Prior to the Separation
Time, the Company may, at any time or from time to time, supplement or
amend this Agreement in any respect without the approval of any holders of
Rights. Thereafter, the Company may, at any time or from time to time,
supplement or amend this Agreement without the approval of any holders of
Rights in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent herein,
or to make any other provisions in regard to matters or questions arising
thereunder which the Company may deem necessary or desirable and which do
not materially adversely affect the interests of holders of Rights, and may
make any other supplements or
45
amendments with the approval of holders of all Rights. The Rights Agent
agrees it will execute and deliver any supplement or amendment requested by
the Company to effectuate any of the foregoing purposes. The Rights Agent
shall have no obligation, responsibility or liability to any holder of
Rights or any other person for executing and delivering any such supplement
or amendment to this Agreement.
5.5 Fractional Shares. If the Company elects not to issue
certificates representing fractional shares upon exercise or redemption of
Rights, the Company shall, in lieu thereof, in the sole discretion of the
Board of Directors, either (a) evidence such fractional shares by
depositary receipts issued pursuant to an appropriate agreement between the
Company and a depositary selected by it, providing that each holder of a
depositary receipt shall have all of the rights, privileges and preferences
to which such holder would be entitled as a beneficial owner of such
fractional share, or (b) sell such shares on behalf of the holders of
Rights and pay to the registered holder of such Rights the appropriate
fraction of the price per share received upon such sale.
5.6 Rights of Action. Subject to the terms of this Agreement
(including Section 3.1(b)), rights of action in respect of this Agreement,
other than rights of action vested solely in the Rights Agent, are vested
in the respective
46
holders of the Rights; and any holder of any Rights, without the consent of
the Rights Agent or of the holder of any other Rights, may, on such
holder's own behalf and for such holder's own benefit and the benefit of
other holders of Rights, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise act in
respect of, such holder's right to exercise such holder's Rights in the
manner provided in such holder's Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would
not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the
obligations of any Person subject to this Agreement.
5.7 Holder of Rights Not Deemed a Stockholder. No holder, as
such, of any Rights shall be entitled to vote, receive dividends or be
deemed for any purpose the holder of shares or any other securities which
may at any time be issuable on the exercise of such Rights, nor shall
anything contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold
47
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 5.8 hereof),
or to receive dividends or subscription rights, or otherwise, until such
Rights shall have been exercised or exchanged in accordance with the
provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall
propose after the Separation Time and prior to the Expiration Time (i) to
effect or permit occurrence of any Flip-over Transaction or Event or
(ii) to effect the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to each holder of a Right,
in accordance with Section 5.9 hereof, a notice of such proposed action,
which shall specify the date on which such Flip-over Transaction or Event,
liquidation, dissolution, or winding up is to take place, and such notice
shall be so given at least 20 Business Days prior to the date of the taking
of such proposed action.
5.9 Notices. Notices or demands authorized or required by
this Agreement to be given or made by the Rights Agent or by the holder of
any Rights to or on the Company shall be sufficiently given or made if
delivered or sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:
48
First Midwest Bancorp, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
Any notice or demand authorized or required by this Agreement to be given
or made by the Company or by the holder of any Rights to or on the Rights
Agent shall be sufficiently given or made if delivered or sent by first-
class mail, postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
First Midwest Trust Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices or demands authorized or required by this Agreement to be given or
made by the Company or the Rights Agent to or on the holder of any Rights
shall be sufficiently given or made if delivered or sent by first-class
mail, postage prepaid, addressed to such holder at the address of such
holder as it appears upon the registry books of the Rights Agent or, prior
to the Separation Time, on the registry books of the transfer agent for the
Common Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the
Company determines in good faith that some action will or need be taken
pursuant to Section 3.1 or to comply
49
with federal or state securities laws, the Company may suspend the exercis-
ability of the Rights for a reasonable period in order to take such action
or comply with such laws. In the event of any such suspension, the Company
shall issue as promptly as practicable a public announcement stating that
the exercisability or exchangeability of the Rights has been temporarily
suspended. Notice thereof pursuant to Section 5.9 shall not be required.
Failure to give a notice pursuant to the provisions of this
Agreement shall not affect the validity of any action taken hereunder.
5.11 Costs of Enforcement. The Company agrees that if the
Company or any other Person the securities of which are purchasable upon
exercise of Rights fails to fulfill any of its obligations pursuant to this
Agreement, then the Company or such Person will reimburse the holder of any
Rights for the costs and expenses (including legal fees) incurred by such
holder in actions to enforce such holder's rights pursuant to any Rights or
this Agreement.
5.12 Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the holders of the
50
Rights any legal or equitable right, remedy or claim under this Agreement
and this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 Determination and Actions by the Board of Directors, etc.
The Board of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and
powers specifically granted to the Board or to the Company, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the provisions of
this Agreement and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement. All such actions,
calculations, interpretations and determinations (including, for purposes
of clause (y) below, all omissions with respect to the foregoing) which are
done or made by the Board in good faith, shall (x) be final, conclusive and
binding on the Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Board of Directors of the Company to
any liability to the holders of the Rights.
5.15 Descriptive Headings. Descriptive headings appear herein
for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
51
5.16 Governing Law. THIS AGREEMENT AND EACH RIGHT ISSUED
HEREUNDER 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 SUCH STATE APPLICABLE TO CONTRACTS TO BE MADE
AND PERFORMED ENTIRELY WITHIN SUCH STATE.
5.17 Counterparts. This Agreement 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 con-
stitute but one and the same instrument.
5.18 Severability. If any term or provision hereof or the
application thereof to any circumstance shall, in any jurisdiction and to
any extent, be invalid or unenforceable, such term or provision shall be
ineffective as to such jurisdiction to the extent of such invalidity or
unenforceability without invalidating or rendering unenforceable the
remaining terms and provisions hereof or the application
52
of such term or provision to circumstances other than those as to which it
is held invalid or unenforceable.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
FIRST MIDWEST BANCORP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
FIRST MIDWEST TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
1
EXHIBIT A
[Form of Rights Certificate]
Certificate No. W- _______ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT THE
OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY ACQUIRING PERSONS OR
AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE FOREGOING WILL BE
VOID.
Rights Certificate
FIRST MIDWEST BANCORP, INC.
This certifies that ____________________, or registered
assigns, is the registered holder of the number of Rights set forth above,
each of which entitles the registered holder thereof, subject to the terms,
provisions and conditions of the Amended and Restated Rights Agreement,
dated as of November 15, 1995 (as amended from time to time, the "Rights
Agreement"), between First Midwest Bancorp, Inc., a Delaware corporation
(the "Company"), and First Midwest Trust Company, as Rights Agent (the
"Rights Agent", which term shall include any successor Rights Agent under
the Rights Agreement), to purchase from the Company at any time after the
Separation Time (as such term is defined in the Rights Agreement) and prior
to the close of business on November 15, 2005, one one-hundredth of a fully
paid share of Series A Preferred Stock, without par value (the "Preferred
Stock"), of the Company (subject to adjustment as provided in the Rights
Agreement) at the Exercise Price
2
referred to below, upon presentation and surrender of this Rights Certi-
ficate with the Form of Election to Exercise duly executed at the principal
office of the Rights Agent in Joliet, Illinois. The Exercise Price shall
initially be $100 per Right and shall be subject to adjustment in certain
events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the
Rights evidenced hereby may entitle the registered holder thereof to
purchase securities of an entity other than the Company or securities or
assets of the Company other than Preferred Stock, all as provided in the
Rights Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Rights Certificates. Copies of the Rights Agreement are on file at the
principal office of the Company and are available without cost upon written
request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent designated
for such purpose, may be exchanged
3
for another Rights Certificate or Rights Certificates of like tenor
evidencing an aggregate number of Rights equal to the aggregate number of
Rights evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof,
another Rights Certificate or Rights Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, each Right
evidenced by this Certificate may be (a) redeemed by the Company under
certain circumstances, at its option, at a redemption price of $0.01 per
Right or (b) exchanged by the Company under certain circumstances, at its
option, for one share of Common Stock or one one-hundredth of a share of
Preferred Stock per Right (or, in certain cases, other securities or assets
of the Company), subject in each case to adjustment in certain events as
provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the
holder of any securities which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted
4
to stockholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the Rights
evidenced by this Rights Certificate shall have been exercised or exchanged
as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date: ____________
ATTEST: FIRST MIDWEST BANCORP, INC.
___________________________ By______________________
Secretary
Countersigned:
FIRST MIDWEST TRUST COMPANY
By____________________________
Authorized Signature
1
06 89-5P [Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED ________________________ hereby
sells, assigns and transfers unto ___________________
(Please print name
_____________________________________________________
and address of transferee)
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint _______________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: _______________, 19__
Signature Guaranteed: _________________________
Signature
(Signature must correspond to
name as written upon the face of
this Rights Certificate in every
particular, without alteration or
enlargement or any change
whatsoever)
Signatures must be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee Medallion
program), pursuant to SEC Rule 17Ad-15.
------------------------------------------------------------
(To be completed if true)
2
The undersigned hereby represents, for the benefit of all holders of Rights
and shares of Common Stock, that the Rights evidenced by this Rights
Certificate are not, and, to the knowledge of the undersigned, have never
been, Beneficially Owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
_________________________
Signature
------------------------------------------------------------
NOTICE
In the event the certification set forth above is not completed
in connection with a purported assignment, the Company will deem the
Beneficial Owner of the Rights evidenced by the enclosed Rights Certificate
to be an Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced by such Rights Certificate to be
void and not transferable or exercisable.
1
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: FIRST MIDWEST BANCORP, INC.
The undersigned hereby irrevocably elects to exercise
_______________________ whole Rights represented by the attached Rights
Certificate to purchase the shares of Participating Preferred Stock
issuable upon the exercise of such Rights and requests that certificates
for such shares be issued in the name of:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
___________________________________
Address:
___________________________________
Social Security or Other Taxpayer
Identification Number:
Dated: _______________, 19__
Signature Guaranteed: _________________________
Signature
(Signature must correspond to
name as written upon the face of
the attached Rights Certificate
in every particular, without
alteration or enlargement or any
change whatsoever)
1
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and shares of Common Stock, that the Rights evidenced by
the attached Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights Agreement).
_________________________
Signature
------------------------------------------------------------
NOTICE
In the event the certification set forth above is not completed
in connection with a purported exercise, the Company will deem the
Beneficial Owner of the Rights evidenced by the attached Rights Certificate
to be an Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement) or a transferee of any of the foregoing and
accordingly will deem the Rights evidenced by such Rights Certificate to be
void and not transferable or exercisable.
1
EXHIBIT B
CERTIFICATE OF DESIGNATION
OF
SERIES A PREFERRED STOCK
OF
FIRST MIDWEST BANCORP, INC.
First Midwest Bancorp, Inc., a corporation organized and
existing under the laws of the State of Delaware (herein referred to as the
"Corporation"), does, by its President and its Secretary and under its
corporate seal, pursuant to Section 151 of the General Corporation Law of
the State of Delaware, HEREBY CERTIFY:
1. The Restated Certificate of Incorporation, as amended, of
the Corporation fixes the total number of shares of all classes of capital
stock which the Corporation shall have the authority to issue at twenty one
million (21,000,000) shares, of which one million (1,000,000) shares shall
be shares of Preferred Stock, without par value (hereinafter sometimes
referred to as "Preferred Stock"), and twenty million (20,000,000) shares
shall be Common Stock, without par value (hereinafter sometimes referred to
as "Common Stock");
2. Pursuant to the authority conferred upon the Board of
Directors by the Restated Certificate of Incorporation, the said Board of
Directors, at a meeting duly convened and held on February 15, 1989,
adopted the following resolution creating a new series of Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation by the Restated Certificate of Incorporation,
there is hereby created and the Corporation be, and it hereby is,
authorized to issue 120,000 shares of a new series of Preferred Stock and
hereby fixes the designations, powers, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions as follows:
(a) Designation and Number of Shares. The distinctive
designation of said series shall be "Series A Preferred Stock"
(hereinafter sometimes called the "Series A Preferred Stock") and the
number of shares initially constituting said series shall be 120,000.
The number of authorized shares of the
2
Series A Preferred Stock may be increased or decreased by further
resolution duly adopted by the Board of Directors of the Corporation
stating that such increase or decrease has been so authorized.
(b) Dividends and Distributions. The holders of record of
full or fractional shares of Series A Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends
payable in cash on the fifth Business Day of January, April, July and
October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Preferred Stock (the "Original Issue Date"),
in an amount per share (rounded to the nearest cent) equal to, but no
more than, the greater of (i) $1.00 or (ii) subject to the provision
for adjustment hereinafter set forth, one hundred times the aggregate
per share amount of all cash dividends, and one hundred times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the
Common Stock of the Corporation since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the Original Issue Date. In
the event the Corporation shall at any time on or after the Original
Issue Date declare or pay any dividend on the shares of Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise than by payment of a dividend in Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of
Series A Preferred Stock are entitled (without giving effect to such
event) under clause (b) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as
3
provided in the paragraph above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $1.00
per share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date. The
record date for any such dividend or distribution shall be the tenth
Trading Day prior to the Quarterly Dividend Payment Date.
(c) Redemption. The Corporation, at the option of the Board
of Directors, may at any time redeem all and may from time to time
redeem any part of the outstanding shares of Series A Preferred Stock
at a redemption price per share equal to the Market Price (as
hereinafter defined) of the Common Stock on the Trading Day (as
hereinafter defined) immediately prior to the date fixed for
redemption, multiplied by one hundred (the "Multiplier"), plus in
each case a sum equal to dividends accrued but unpaid. In case of
the redemption of a part only of the outstanding shares of Series A
Preferred Stock, the shares to be redeemed shall be selected by lot
in such manner as the Board of Directors shall determine.
In the event the Corporation shall at any time on or after the
Original Issue Date declare or pay any dividend on the shares of
Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding Common
Stock (by reclassification or otherwise than by payment of a dividend
in Common Stock), into a greater or lesser number of shares of Common
Stock, than in each such case the amount to which holders of Series A
Preferred Stock were entitled (without giving effect to such event),
shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding
immediately prior to such event.
As used herein, the term "Market Price" per share of the Common
Stock on any date of determination shall mean the average of the
daily closing prices per share of the Common Stock (determined as
described below) on each of the 20 consecutive Trading Days through
and
4
including the Trading Day immediately preceding such date; provided,
however, that if the Company shall at any time (i) declare a dividend
on the Common Stock payable in Common Stock, (ii) subdivide the
outstanding Common Stock, (iii) combine the outstanding Common Stock
into a smaller number of shares of Common Stock or (iv) issue any
shares in a reclassification of the Common Stock, and such event or
an event of a type analogous to any such event shall have caused the
closing prices used to determine the Market Price on any Trading Days
not to be fully comparable with the closing price on such date of
determination, each such closing price so used shall be appropriately
adjusted in order to make it fully comparable with the closing price
on such date of determination. The closing price per share of the
Common Stock on any date shall be the last sale price, regular way,
or, in case no such sale takes place on such date, the average of the
closing bid and asked prices, regular way, for each share of the
Common Stock, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if
the Common Stock is not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Common Stock is listed or
admitted to trading or, if the Common Stock is not listed or admitted
to trading on any national securities exchange, the average of the
high bid and low asked prices for each share of Common Stock in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then in use, or, if on any such date the Common
Stock is not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market
maker making a market in the securities selected by the Board of
Directors of the Corporation; provided, however, that if on any such
date the Common Stock is not listed or admitted for trading on a
national securities exchange or traded in the over-the-counter
market, the closing price per share of the Common Stock on such date
shall mean the fair value per share of Common Stock on such date as
determined in good faith by the Board of Directors of the
Corporation, after consultation with a nationally recognized
investment banking firm with respect to the fair value per share of
such securities,
5
and set forth in a certificate delivered to the Corporation.
As used herein, the term "Trading Day", when used with respect
to the Common Stock, shall mean a day on which the principal national
securities exchange on which the Common Stock is listed or admitted
to trading is open for the transaction of business or, if the Common
Stock is not listed or admitted to trading on a national securities
exchange, a Business Day (defined to mean any day other than a
Saturday, Sunday or a day on which banking institutions in New York,
New York are generally authorized or obligated by law or executive
order to close).
(d) Liquidation Rights. Upon the dissolution, liquidation or
winding up of the Corporation, the holders of the shares of this
Series shall be entitled to receive an amount equal to the greater of
(i) $100 plus accrued and unpaid dividends or (ii) 100 times the
aggregate per share amount received by the holders of Common Stock.
(e) Conversion or Exchange. Except as otherwise provided
herein, the holders of shares of this Series A Preferred Stock shall
not have any rights herein to convert such shares into or exchange
such shares for shares of any other class or classes or of any other
series of any class or classes of capital stock of the Corporation.
In case the Corporation shall enter into any consolidation,
merger, combination, reclassification or other transaction in which
the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such
case the shares of Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to one hundred
times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time on or after the Original
Issue Date declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set
6
forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(f) Voting. Each share Series A Preferred Stock shall be
entitled to 100 votes, voting with the Common Stock as one class on
all matters submitted to a vote of the Common stockholders of the
Corporation, provided, that in the event the Corporation shall at any
time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such
case the number of votes per share to which holders of shares of this
Series were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such
event.
(g) Fractional Shares. Series A Preferred Shares may be
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Preferred
Stock.
7
IN WITNESS WHEREOF, FIRST MIDWEST BANCORP, INC. has caused this
Certificate of Designation to be signed by ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, its
President, and attested by ▇▇▇▇ ▇▇▇▇▇, its Secretary and has caused its
corporate seal to be fixed hereto on the ____ day of __________, 199__.
FIRST MIDWEST BANCORP, INC.
By
Name:
Title:
[Corporate Seal]
Attest:
By
Name:
Title: