Exhibit 99
Westamerica Bancorporation
and
Computershare Investor Services, LLC
as Rights Agent
Amended and Restated Shareholder Rights Agreement
Dated as of December 31, 2004
TABLE OF CONTENTS
_________________
Section
_______
Section 1. Certain Definitions
Section 2. Appointment of Rights Agent
Section 3. Issue of Rights Certificates
Section 4. Form of Rights Certificates
Section 5. Countersignature and Registration
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights
Section 8. Cancellation and Destruction of Rights Certificates
Section 9. Reservation and Availability of Common Stock
Section 10. Common Stock Record Date
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights
Section 12. Certificate of Adjusted Purchase Price or Number of Shares
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power
Section 14. Additional Covenants
Section 15. Fractional Rights and Fractional Shares
Section 16. Rights of Action
Section 17. Agreement of Rights Holders
Section 18. Rights Certificate Holder Not Deemed a Stockholder
Section 19. Concerning the Rights Agent
Section 20. Merger or Consolidation or Change of Name of Rights
Agent
Section 21. Duties of Rights Agent
Section 22. Change of Rights Agent
Section 23. Issuance of New Rights Certificates
Section 24. Redemption, Termination and Exchange
Section 25. Notice of Certain Events
Section 26. Notices
Section 27. Supplements and Amendments
Section 28. Determination and Actions by the Board of Directors, etc.
Section 29. Successors
Section 30. Benefits of this Agreement
Section 31. Severability
Section 32. Governing Law
Section 33. Counterparts
Section 34. Descriptive Headings
Exhibit A -- Form of Rights Certificate
Exhibit B -- Amended and Restated Summary of Rights to Purchase
Common Stock
AMENDED AND RESTATED SHAREHOLDER RIGHTS AGREEMENT
_________________________________________________
This Amended and Restated Shareholder Rights Agreement dated as
of December 31, 2004 between Westamerica Bancorporation, a California
corporation (the "Company") and Computershare Investor Services, LLC,
an Illinois corporation (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Company and Bank of America, NT&SA (the
"Original Rights Agent") entered into a Rights Agreement dated as of
December 18, 1986 (the "Original Rights Agreement") in connection with
which the Company authorized and declared a dividend distribution of one
right for each share of common stock, no par value, of the Company
outstanding on January 20, 1987 (the "Record Date") (as subsequently
adjusted for stock splits on May 15, 1987 and February 25, 1998, "Common
Stock"), and contemplates the issuance of one right (subject to adjustment)
for each share of Common Stock issued between the Record Date and the
earlier of the Distribution Date and the Expiration Date (as such terms are
hereafter defined), each right representing the right to purchase one share of
Common Stock (as adjusted) upon the terms and subject to the conditions
set forth in the Original Rights Agreement (such rights, as their terms are
hereinafter amended, being hereinafter referred to as the "Rights"); and
WHEREAS, Section 27 of the Original Rights Agreement provided
that the Company and the Original Rights Agent may amend the Original
Rights Agreement without approval of any holders of Rights Certificates,
prior to the Distribution Date (as such term is defined in Section 3(a)
thereof), in order to change or supplement the provisions thereunder as the
Company deems necessary and desirable; and
WHEREAS, the Original Rights Agreement was amended and
restated on September 28, 1989 by the Company and the Original Rights
Agent (the "1989 Rights Agreement"); and
WHEREAS, pursuant to an Appointment and Acceptance
Agreement dated May 25, 1992 between the Company and Chemical Trust
Company of California (the "Successor Rights Agent"), the Original Rights
Agent was replaced by the Successor Rights Agent to act as rights agent in
accordance with the terms and conditions of the 1989 Rights Agreement;
and
WHEREAS, the 1989 Rights Agreement was subsequently amended
as of March 23, 1995 by the Company and the Successor Rights Agent (the
"1995 Rights Agreement"); and
WHEREAS, pursuant to an Appointment and Acceptance
Agreement dated November 19, 1999 between the Company and Harris
Trust and Savings Bank, the Rights Agent succeeded the Successor Rights
Agent and became the Rights Agent hereunder; and
WHEREAS, the 1995 Rights Agreement was subsequently amended
as of November 19, 1999 (the "1999 Rights Agreement") and in connection
therewith the Final Expiration Date was extended from December 31, 1999
to December 31, 2004; and
WHEREAS, Section 27 of the 1999 Rights Agreement provides that
the Company and the Rights Agent may amend the 1999 Rights Agreement
without approval of any holders of Rights Certificates, prior to the
Distribution Date (as such term is defined in Section 3(a) thereof), in order
to change or supplement the provisions thereunder as the Company deems
necessary and desirable; and
WHEREAS, on May 25, 2000, the Company changed its transfer
agent from Harris Trust and Savings Bank to Computershare Investor
Services, LLC;
WHEREAS, the Company deems it desirable to amend and
supplement the 1999 Rights Agreement, in accordance with such section
and directs the Rights Agent to do so and to appoint Computershare
Investor Services, LLC to succeed Harris Trust and Savings Bank as Rights
Agent;
NOW, THEREFORE, the 1999 Rights Agreement is hereby
amended and restated to read, from and after the date hereof, in its entirety
as set forth below (the "2004 Rights Agreement" or "this Agreement"):
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms have the
meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such term
is hereinafter defined) and Associates (as such term is hereinafter defined)
of such Person, without the prior approval of the Company, shall be the
Beneficial Owner (as such term is hereinafter defined) of securities
representing 10% or more of the Voting Power (as such term is hereinafter
defined) or who was such a Beneficial Owner at any time after the date
hereof, whether or not such Person continues to be the Beneficial Owner of
securities representing 10% or more of the Voting Power, provided,
however, that in no event shall a Person who or which, together with all
Affiliates and Associates of such Person, is the Beneficial Owner of less
than 10% of the Company's outstanding shares of Common Stock become
an Acquiring Person solely as a result of a reduction of the number of
shares of outstanding Common Stock, including repurchases of outstanding
shares of Common Stock by the Company, which reduction increases the
percentage of outstanding shares of Common Stock beneficially owned by
such Person (provided that any subsequent increase in the amount of Voting
Power beneficially owned by such Person, together with all Affiliates and
Associates of such Person, without the prior approval of the Board of
Directors of the Company shall cause such Person to be an Acquiring
Person), and provided further that Acquiring Person shall not mean (i) any
Person, not otherwise an Acquiring Person, who has purchased all shares
validly tendered pursuant to a Permitted Offer (as such term is defined in
Section 11(a)(ii)) made by such Person or (ii) the Company, any subsidiary
of the Company (as such term is hereinafter defined), any employee benefit
plan of the Company or any of its subsidiaries or any entity holding
securities of the Company organized, appointed or established by the
Company or any of its subsidiaries for or pursuant to the terms of any such
plan.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates
or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates
or Associates has (A) the right or obligation to acquire (whether
such right or obligation is exercisable or effective immediately or
only after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or upon
the exercise of conversion rights, exchange rights, rights (other than
these Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," securities tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding (whether or not in
writing); provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under
this clause (B) if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations of the
Exchange Act and (2) is not also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with
which such Person or any of such Person's Affiliates or Associates
has any agreement, arrangement or understanding (whether or not in
writing) (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities), or with which such Person or any of
such Person's Affiliates have otherwise formed a group, for the
purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in clause (B) of subparagraph (ii) of
this paragraph (c)) or disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of California or
the State of Illinois are authorized or obligated by law or executive order to
close.
(e) "Close of business" on any given date shall mean 5:00 p.m.,
San Francisco, California time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 p.m., San Francisco,
California time, on the next succeeding Business Day.
(f) "Common Stock" shall mean the Common Stock, no par
value, of the Company, except that "Common Stock" when used with
reference to stock issued by any Person other than the Company shall mean
the capital stock with the greatest aggregate voting power, or the equity
securities or other equity interest having power to control or direct the
management, of such Person or, if such Person is a subsidiary of another
Person, of the Person which ultimately controls such first-mentioned Person
and which has issued and outstanding such capital stock, equity securities or
equity interests.
(g) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company, trust, joint venture, association or
other entity.
(h) "Stock Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such.
(i) A "subsidiary" of any Person shall mean any corporation or
other entity of which a majority of the voting power of the voting equity
securities or voting interests is owned, directly or indirectly, by such
Person, or which is otherwise controlled by such Person.
(j) "Voting Power" shall mean the voting power of all securities
of the Company then outstanding generally entitled to vote for the election
of directors of the Company.
Section 2. Appointment of Rights Agent.
The Company hereby appoints the Rights Agent to act as agent for
the Company and the holders of the Rights (who, in accordance with
Section 3 hereof, shall prior to the Distribution Date also be the holders of
the Common Stock) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such Co-Rights Agents as it may deem necessary
or desirable. In the event the Company appoints one or more Co-Rights
Agents, the respective duties of the Rights Agents and any Co-Rights
Agents shall be as the Company shall determine.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the Stock Acquisition Date or (ii) the
tenth day after the date of the commencement of, or first public
announcement of the intent of any Person (other than the Company, any
subsidiary of the Company, or any employee benefit plan of the Company
or any of its subsidiaries) to commence (which intention to commence
remains in effect for five Business Days after such announcement), a tender
or exchange offer which would result in such Person becoming an
Acquiring Person, unless such date is extended by the Board of Director's
of the Company (but no later than the Stock Acquisition Date) (the earlier
of such dates being herein referred to as the "Distribution Date"), (x) the
Rights will be evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for Common Stock registered in the names of
the holders of the Common Stock (which certificates for Common Stock
shall be deemed also to be certificates for Rights) and not by separate
certificates, and (y) the Rights (and the right to receive certificates
therefor) will be transferable only in connection with the transfer of the
underlying shares of Common Stock. As soon as practicable after the
Distribution Date, the Rights Agent will send, at the expense of the Company, by
first-class, insured, postage prepaid mail, to each record holder of the Common
Stock as of the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, a certificate for Rights,
in substantially the form of Exhibit A hereto (the "Rights Certificates"),
evidencing one Right for each share of Common Stock so held. As of and
after the Distribution Date, the Rights will be evidenced solely by such
Rights Certificates.
With respect to certificates for the Common Stock outstanding as of
the date hereof, until the Distribution Date (or earlier redemption, expiration
or termination of the Rights), the Rights will be evidenced by such
certificates for the Common Stock and the registered holders of the
Common Stock shall also be the registered holders of the associated Rights.
Until the Distribution Date (or earlier redemption, expiration or termination
of the Rights), the surrender for transfer of any of the certificates for the
Common Stock outstanding on the date hereof shall also constitute the
transfer of the Rights associated with the Common Stock represented by
such certificate.
(b) Certificates issued for Common Stock (including, without
limitation, certificates issued upon transfer or exchange of Common Stock)
after the date hereof, but prior to the earlier of the Distribution Date or the
Expiration Date (as such term is hereinafter defined), shall be deemed also
to be certificates for Rights, and shall have impressed, printed, stamped,
written or otherwise affixed onto them the following legend:
This certificate also evidences and
entitles the holder hereof to certain Rights as
set forth in an Amended and Restated
Shareholder Rights Agreement between
Westamerica Bancorporation and
Computershare Investor Services, LLC (the
"Rights Agent") dated as of December 31,
2004 (the "2004 Rights Agreement"), the
terms of which are hereby incorporated herein
by reference and a copy of which is on file at
the principal offices of Westamerica
Bancorporation. Under certain
circumstances, as set forth in the 2004 Rights
Agreement, such Rights may be redeemed,
may expire, or may be evidenced by separate
certificates and will no longer be evidenced
by this certificate. Westamerica
Bancorporation will mail to the holder of this
certificate a copy of the 2004 Rights
Agreement without charge within five days
after receipt of a written request therefor.
Under certain circumstances, Rights issued to
Acquiring Persons (as defined in the 2004
Rights Agreement) or certain related persons
and any subsequent holder of such Rights
may become null and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date (or earlier redemption, expiration or termination of the
Rights), the Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone, and the surrender
for transfer of any of such certificates shall also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to
purchase shares and of assignment to be printed on the reverse thereof) shall
each be substantially in the form set forth in Exhibit A hereto and may have
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 applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange
or interdealer quotation system on which the Rights may from time to time
be listed or traded, or to conform to usage. Subject to the provisions of
Section 11 and Section 23 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Record Date, and on their face shall
entitle the holders thereof to purchase such number of shares of Common
Stock as shall be set forth therein at the price per share set forth therein
(the "Purchase Price"), but the number of such shares and the Purchase Price
shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) hereof
that represents Rights beneficially owned by an Acquiring Person or any
Associate or Affiliate thereof and any Rights Certificate issued at any time
upon the transfer of any Rights to such an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate, and any Rights Certificate issued pursuant to
Section 6 or Section 11 upon transfer, exchange, replacement or adjustment
of any other Rights Certificate referred to in this sentence, shall contain the
following legend:
The Rights represented by this Rights
Certificate were issued to a Person who was
an Acquiring Person or an Affiliate or an
Associate of an Acquiring Person, as such
terms are defined in the Rights Agreement.
This Rights Certificate and the Rights
represented hereby may become void under
the circumstances specified in Section 7(e) of
the Rights Agreement.
The provisions of Section 7(e) of this 2004 Rights Agreement shall be
operative whether or not the foregoing legend is contained on any such
Rights Certificate.
Section 5. Countersignature and Registration.
The Rights Certificates shall be executed on behalf of the Company
by its Chairman of the Board, any Vice Chairman of the Board, any
President or any Vice President, either manually or by facsimile signature,
and shall have affixed thereto the Company's seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The Rights
Certificates shall be countersigned by the Rights Agent, either manually or
by facsimile signature, and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed
any of the Rights Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be countersigned
by the Rights Agent, and issued and delivered by the Company with the
same force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company; and any
Rights Certificates may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Rights Certificate, shall be a
proper officer of the Company to sign such Rights Certificate, although at
the date of the execution of this Rights Agreement any such person was not
such an officer.
Following the Distribution Date, the Rights Agent will keep or cause
to be kept, at its office at such location or locations as the secretary of the
Company shall agree upon from time to time with the Rights Agent, all in
compliance with the stock exchange or interdealer quotation system,
designated for such purpose, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Rights Certificates, the number of
Rights evidenced on its face by each of the Rights Certificates and the date
of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
Subject to the provisions of Section 15 hereof, at any time after the
close of business on the Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate or Rights
Certificates may be transferred, split up, combined or exchanged for another
Rights Certificate or Rights Certificates, entitling the registered holder to
purchase a like number of shares of Common Stock as the Rights
Certificate or Rights Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Rights Certificate or
Rights Certificates to be transferred, split up, combined or exchanged at the
principal office of the Rights Agent. Thereupon the Rights Agent shall
countersign and deliver to the Person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Rights Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation
of a Rights Certificate and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation of the
Rights Certificate if mutilated, the Company will execute and deliver a new
Rights Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered owner in lieu of the Rights Certificates so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The registered holder of any Rights Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon presentation of
the Rights Certificate, with the appropriate form of election to purchase on
the reverse side thereof duly executed, to the Rights Agent at the principal
office of the Rights Agent, together with payment of the Purchase Price for
each share of Common Stock (or such other number of shares or other
securities) as to which the Rights are exercised, at or prior to the earliest of
(i) the close of business on December 31, 2009 (the "Final Expiration
Date"), or (ii) the time at which the Rights are redeemed as provided in
Section 24(a) hereof, (iii) the consummation of a transaction contemplated
by Section 13(f) hereof or (iv) the time at which the Rights are exchanged
as provided in Section 24(c) hereof (such earliest time being herein referred
to as the "Expiration Date"). Notwithstanding any other provision of this
Agreement, any Person who prior to the Distribution Date becomes and
remains a record holder of shares of Common Stock may exercise all of the
rights of a registered holder of a Rights Certificate with respect to the
Rights associated with such shares of Common Stock in accordance with
and subject to the provisions of this Agreement, including the provisions of
Section 7(e) hereof, as of the date such Person becomes a record holder of
shares of Common Stock.
(b) The Purchase Price for each share of Common Stock to be
purchased pursuant to the exercise of a Right shall be $110.00, shall be
subject to adjustment from time to time as provided in Sections 11 and 13
hereof and shall be payable in lawful money of the United States of
America in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the appropriate form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the shares (or other
securities or property) to be purchased and an amount equal to any
applicable transfer tax (as determined by the Rights Agent) in cash, or by
certified check or bank draft payable to the order of the Company, the
Rights Agent shall, subject to Section 21(k), thereupon promptly, (i)
(A) requisition from any transfer agent of the shares of Common Stock (or
make available, if the Rights Agent is the transfer agent) certificates for the
number of shares of Common Stock to be purchased, and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company, in its sole discretion, shall have elected to
deposit the shares of Common Stock issuable upon exercise of the Rights
hereunder into a depositary, requisition from the depositary agent
depositary receipts representing such number of shares of Common Stock
as are to be purchased (in which case certificates for the shares of Common
Stock represented by such receipts shall be deposited by the transfer agent
with the depositary agent) and the Company will direct the depositary agent
to comply with such request, (ii) when appropriate, requisition from the
Company the amount of cash, if any, to be paid in lieu of issuance of
fractional shares in accordance with Section 15, (iii) promptly after receipt
of such certificates or depositary receipts, cause the same to be delivered to
or upon the order of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such holder and
(iv) when appropriate, after receipt promptly deliver such cash to or upon
the order of the registered holder of such Rights Certificate. In the event
that the Company is obligated to issue other securities of the Company,
and/or distribute other property pursuant to Section 11(a), the Company will
make all arrangements necessary so that such other securities and/or
property are available for distribution by the Rights Agent, if and when
appropriate. In addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11(a)(ii), the Rights Agent shall return such Rights
Certificate to the registered holder thereof after imprinting, stamping or
otherwise indicating thereon that the rights represented by such Rights
Certificate no longer include the rights provided by Section 11(a)(ii) of the
Rights Agreement and if less than all the Rights represented by such Rights
Certificate were so exercised, the Rights Agent shall indicate on the Rights
Certificate the number of Rights represented thereby which continue to
include the rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Rights Certificate shall
exercise (except pursuant to Section 11(a)(ii)) less than all the Rights
evidenced thereby, a new Rights Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights Agent and
delivered to the registered holder of such Rights Certificate or to his duly
authorized assigns, subject to the provisions of Section 15 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
if there occurs any of the events set forth in Section 11(a)(ii) or
Section 13(a) then any Rights that are or were on or after the earlier of the
Distribution Date or the Stock Acquisition Date beneficially owned by an
Acquiring Person or any Associate or Affiliate of an Acquiring Person shall
become null and void, without any further action, and any holder of such
Rights shall thereafter have no rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake
any action with respect to a registered holder upon the occurrence of any
purported exercise as set forth in this Section 7 unless the certificate
contained in the appropriate form of election to purchase set forth on the
reverse side of the Rights Certificate surrendered for such exercise shall
have been properly completed and duly executed by the registered holder
thereof and the Company shall have been provided with such additional
evidence of the identity of the Beneficial Owner (or former Beneficial
Owner) or Affiliates or Associates thereof as the Company shall reasonably
request.
Section 8. Cancellation and Destruction of Rights Certificates.
All Rights Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights Agent,
shall be cancelled by it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
cancelled Rights Certificates to the Company, or shall, at the written request
of the Company, destroy such cancelled Rights Certificates, and in such
case shall deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Common Stock.
The Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued shares of Common
Stock, or any authorized and issued shares of Common Stock held in its
treasury, the number of shares of Common Stock that will be sufficient to
permit the exercise in full of all outstanding Rights and, after the occurrence
of an event specified in Sections 11 and 13, shall so reserve and keep
available a sufficient number of shares of Common Stock (and/or other
securities) which may be required to permit the exercise in full of the Rights
pursuant to this Agreement.
So long as the shares of Common Stock (and, after the occurrence of
an event specified in Sections 11 and 13, any other securities) issuable upon
the exercise of the Rights may be listed on any national securities exchange,
the Company shall use its best efforts to cause, from and after such time as
the Rights become exercisable, all shares (or other securities) reserved for
such issuance to be listed on such exchange upon official notice of issuance
upon such exercise.
The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all shares of Common Stock and/or other
securities delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares or other securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid
and nonassessable shares or securities.
The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Rights
Certificates or of any certificates for shares of Common Stock and/or other
securities upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any
transfer or delivery of Rights Certificates to a Person other than, or in
respect of the issuance or delivery of the shares of Common Stock and/or
other securities in a name other than that of, the registered holder of the
Rights Certificates evidencing Rights surrendered for exercise or to issue or
deliver any certificates for shares of Common Stock, and/or other securities
in a name other than that of the registered holder upon the exercise of any
Rights until such tax shall have been paid (any such tax being payable by
the holder of such Rights Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax is due.
The Company shall use its best efforts to (i) file, as soon as
practicable following the Distribution Date, a registration statement on an
appropriate form under the Securities Act of 1933, as amended (the "Act"),
with respect to the securities purchasable upon exercise of the Rights,
(ii) cause such registration statement to become effective as soon as
practicable after such filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of
the Act and the rules and regulations thereunder) until the expiration of the
Rights. The Company will also take such action as may be appropriate
under the blue sky laws of the various states.
Section 10. Common Stock Record Date.
Each person in whose name any certificate for shares of Common
Stock (or other securities) is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares of
Common Stock (or other securities) represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly presented and payment of the Purchase
Price (and any applicable transfer taxes) was made; provided, however, that
if the date of such presentation and payment is a date upon which the
Common Stock (or other securities) 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 Common Stock (or other securities) transfer
books of the Company are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Rights Certificate, as such, shall not be
entitled to any rights of a stockholder of the Company with respect to shares
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights.
The Purchase Price, the number of shares covered by each Right and
the number of Rights outstanding are subject to adjustment from time to
time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Common Stock
payable in shares of Common Stock, (B) subdivide the outstanding
Common Stock, (C) combine the outstanding Common Stock into a
smaller number of shares or (D) issue any shares of its capital stock
in a reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation) the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock
issuable on such date, shall, except as otherwise provided in this
Section 11(a) and in Section 7(e), be proportionately adjusted so that
the holder of any Right exercised after such time shall be entitled to
receive the aggregate number and kind of shares of capital stock and
other securities which, if such Right had been exercised immediately
prior to such date and at a time when the Common Stock transfer
books of the Company were open, the holder would have owned
upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If an event
occurs which would require an adjustment under both
Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section 11(a)(ii).
(ii) Subject to Section 24(c) of this Agreement, in the
event that any Person (other than the Company, any subsidiary of
the Company, any employee benefit plan of the Company or any of
its subsidiaries or any entity holding securities of the Company
organized, appointed or established by the Company or any of its
subsidiaries for or pursuant to the terms of any such plan), alone or
together with its Affiliates and Associates, shall become an
Acquiring Person (except pursuant to a tender or exchange offer for
all outstanding shares of Common Stock at a price and on terms
determined by at least a majority of the members of the Board of
Directors who are not officers of the Company to be both adequate
and otherwise in the best interests of the Company and its
shareholders (other than the Person or an Affiliate or Associate
thereof on whose behalf the offer is being made) (a "Permitted
Offer")), then proper provision shall be made so that each holder of
a Right, except as provided in Section 7(e) hereof, shall, for a period
of 60 days after the later of the occurrence of any such event and the
effective date of an appropriate registration statement pursuant to
Section 9, have a right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this
Agreement such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the
then current Purchase Price by the then number of shares of
Common Stock for which a Right is then exercisable and
(y) dividing that product by 50% of the current market price per one
share of Common Stock (determined pursuant to Section 11(d)) on
the date of the occurrence of the event set forth in this subparagraph
(ii) (such number of shares being referred to as the "number of
Adjustment Shares"); provided, however, that if the transaction that
would otherwise give rise to the foregoing adjustment is also subject
to the provisions of Section 13 hereof, then only the provisions of
Section 13 hereof shall apply and no adjustment shall be made
pursuant to this Section 11(a)(ii).
(iii) In the event that there shall not be sufficient treasury
shares or authorized but unissued shares of Common Stock to permit
the exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) and the Rights become so exercisable,
notwithstanding any other provision of this Agreement, to the extent
necessary and permitted by applicable law and any agreements in
effect on the date hereof to which it is a party, each Right shall
thereafter represent the right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this
Agreement, a number of shares, or units of shares, of (x) Common
Stock (up to the maximum number of shares of Common Stock
which may permissibly be issued using the allocation procedure
specified in the second sentence of Section 11(k)) and (y) preferred
stock (or other equity securities) of the Company equal in the
aggregate to the number of Adjustment Shares where the Board of
Directors of the Company shall have deemed such shares or units,
other than the shares of Common Stock, to have at least the same
economic value and voting rights as the Common Stock (a
"common stock equivalent"); provided, however, if there are
unavailable sufficient shares (or fractions of shares) of Common
Stock and/or common stock equivalents, then the Company shall
take all such action as may be necessary to authorize additional
shares of Common Stock or common stock equivalents for issuance
upon exercise of the Rights, including the calling of a meeting of
shareholders; and provided, further, that the Company shall issue no
common stock equivalent upon exercise of the Rights until the
Company has first issued all authorized and unreserved shares of
Common Stock; and provided, further, that if the Company is unable
to cause sufficient shares of Common Stock and/or common stock
equivalents to be available for issuance upon exercise in full of the
Rights, then each Right shall thereafter represent the right to receive
the Adjusted Number of Common Shares upon exercise at the
Adjusted Purchase Price (as such terms are hereinafter defined). As
used herein, the term "Adjusted Number of Common Shares" shall
be equal to that number of shares (or fractions of shares) of
Common Stock (and/or shares or units of common stock
equivalents) equal to the product of (x) the number of Adjustment
Shares and (y) a fraction, the numerator of which is the number of
shares of Common Stock (and/or shares or units of common stock
equivalents) available for issuance upon exercise of the Rights and
the denominator of which is the aggregate number of Adjustment
Shares otherwise issuable upon exercise in full of all Rights
(assuming there were sufficient shares of Common Stock available)
(such fraction being referred to as the "Proration Factor"). The
Adjusted Purchase Price shall mean the product of the Purchase
Price and the Proration Factor. The Board of Directors may, but
shall not be required to, establish procedures to allocate the right to
receive Common Stock and common stock equivalents upon
exercise of the Rights among holders of Rights.
(b) If the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Common Stock entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Stock (or shares having the same or
more favorable rights, privileges and preferences as the Common Stock
("equivalent common stock")) or securities convertible into Common Stock
or equivalent common stock at a price per share of Common Stock or per
share of equivalent common stock (or having a conversion price per share,
if a security convertible into Common Stock or equivalent common stock)
less than the current market price (as defined in Section 11(d)) per share of
Common Stock on such record date, the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on such
record date, plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock
and/or equivalent common stock to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would
purchase at such current market price and the denominator of which shall be
the number of shares of Common Stock outstanding on such record date,
plus the number of additional shares of Common Stock and/or equivalent
common stock to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible). In case
such subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall be
determined reasonably and with good faith to the holders of Rights by the
Board of Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent and shall be binding on the
Rights Agent. Shares of Common Stock owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever
such a record date is fixed; and in the event that such rights or warrants are
not so issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
(c) If the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness, cash
(other than a regular quarterly cash dividend out of the earnings or retained
earnings of the Company), assets (other than a dividend payable in
Common Stock, but including any dividend payable in stock other than
Common Stock) or subscription rights or warrants (excluding those referred
to in Section 11(b)), the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
current market price (as defined in Section 11(d)) per share of Common
Stock on such record date, less the fair market value (as determined
reasonably and with good faith to the holders of Rights by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights
Agent) of the portion of the cash, assets or evidences of indebtedness so to
be distributed or of such subscription rights or warrants distributable in
respect of one share of Common Stock and the denominator of which shall
be the current market price (as defined in Section 11(d)) per share of the
Common Stock. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such distribution is not so
made, the Purchase Price shall again be adjusted to be the Purchase Price
which would be in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than in
Section 11(a)(iii), the "current market price" per share of Common Stock on
any date shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the 30 consecutive Trading Days (as such
term is hereinafter defined) immediately prior to such date; provided,
however, that in the event that the current per share market price of the
Common Stock is determined during a period following the announcement
by the issuer of such Common Stock of (A) a dividend or distribution on
such Common Stock payable in shares of such Common Stock or securities
convertible into shares of such Common Stock or (B) any subdivision,
combination or reclassification of such Common Stock, and prior to the
expiration of 30 Trading Days after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "current market price" shall
be properly adjusted to take into account ex-dividend trading. The closing
price for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, 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 shares of Common
Stock are 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 shares of Common Stock are listed or admitted to
trading or, if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported by the Nasdaq National Market, the Nasdaq
Stock Market or such other system then in use, or, if on any such date the
shares of Common Stock are 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 Common Stock selected by the Board
of Directors of the Company. If on any such date no market maker is
making a market in the Common Stock, the fair value of such shares on
such date as determined reasonably and with good faith by the Board of
Directors of the Company shall be used and shall be binding on the Rights
Agent. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of Common Stock are
listed or admitted to trading is open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading on any
national securities exchange, a Business Day. If the Common Stock is not
publicly held or not so listed or traded, "current market price" per share
shall mean the fair value per share determined reasonably and with good
faith to the holders of Rights by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Purchase Price;
provided, however, that any adjustments which by reason of this
Section 11(e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest ten-thousandth
of a share of Common Stock or other share, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) one
year from the date of the transaction which mandates such adjustment or
(ii) the Expiration Date.
(f) If as a result of any provision of Section 11(a), the holder of
any Right thereafter exercised shall become entitled to receive any shares of
capital stock of the Company other than Common Stock, thereafter the
number of such other shares so receivable upon exercise of any Right shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the shares
contained in Section 11(a) through (c), inclusive, and the provisions of
Sections 7, 9, 10, 13 and 15 hereof with respect to the Common Stock shall
apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of shares of
Common Stock purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Section 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price, that
number of shares of Common Stock (calculated to the nearest ten-
thousandth) obtained by (i) multiplying (x) the number of shares of
Common Stock covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
substitution for any adjustment in the number of shares of Common Stock
purchasable upon the exercise of a Right. Each of the Rights outstanding
after the adjustment in the number of Rights shall be exercisable for the
number of shares of Common Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to
such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the Purchase
Price by the Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Rights Certificates have been
issued, shall be at least 10 days later than the date of the public
announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 15 hereof, the additional Rights
to which such holders shall be entitled as a result of such adjustment, or, at
the option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights
to which such holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed and countersigned
in the manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in the names
of the holders of record of Rights Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of shares of Common Stock issuable upon the exercise
of the Rights, the Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per share and the number of shares
which were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the shares
of Common Stock or other securities issuable upon exercise of the Rights,
the Company shall take any corporate action which, in the opinion of its
counsel, may be necessary in order that the Company may validly and
legally issue fully paid and nonassessable shares of Common Stock or other
securities at such adjusted Purchase Price. If upon any exercise of the
Rights, a holder is to receive a combination of Common Stock and common
stock equivalents, a portion of the consideration paid upon such exercise,
equal to at least the then par value of a share of Common Stock of the
Company, shall be allocated as the payment for each share of Common
Stock of the Company so received.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such record
date the shares of Common Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the shares of
Common Stock and other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in effect prior
to such adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
(m) Anything to the contrary in this Section 11 not withstanding,
the Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section 11,
as and to the extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the Common
Stock, issuance wholly for cash of any shares of Common Stock at less than
the current market price, issuance wholly for cash of shares of Common
Stock or securities which by their terms are convertible into or
exchangeable for shares of Common Stock, stock dividends or issuance of
rights, options or warrants referred to hereinabove in this Section 11,
hereafter made by the Company to holders of its Common Stock shall not
be taxable to such stockholders.
(n) The exercise of Rights under Section 11(a)(ii) shall only
result in the loss of rights under Section 11(a)(ii) to the extent so exercised
and shall not otherwise affect the rights represented by the Rights under this
Rights Agreement, including the rights represented by Section 13.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Company shall (a) promptly prepare a certificate setting forth
such adjustment and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Common Stock a copy of such certificate and (c) mail a brief
summary thereof to each holder of Rights in accordance with Section 26
hereof. The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and shall not be
obligated or responsible for calculating any adjustment nor shall it be
deemed to have knowledge of such adjustment unless and until it shall have
received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following the Stock Acquisition Date,
directly or indirectly, (w) the Company shall consolidate with, or merge
with and into, any other Person, (x) any Person shall consolidate with the
Company, or merge with and into the Company and the Company shall be
the continuing or surviving corporation of such merger, (y) any subsidiary
bank of the Company shall consolidate with, or merge with and into any
other Person or any Person shall consolidate with, or merge with and into,
any subsidiary bank of the Company (other than, in the case of any
transaction described in (w), (x) or (y), a merger or consolidation which
would result in all of the Voting Power represented by the securities of the
Company or subsidiary bank outstanding immediately prior thereto
continuing to represent, directly or indirectly (either by remaining
outstanding or by being converted into securities of the surviving entity), all
of the Voting Power represented by the securities of the Company,
subsidiary bank or such surviving entity outstanding immediately after such
merger or consolidation and the holders of such securities not having
changed as a result of such merger or consolidation), or (z) the Company
shall sell, mortgage or otherwise transfer (or one or more of its subsidiaries
shall sell, mortgage or otherwise transfer), in one or more transactions,
assets or earnings power aggregating more than 50% of the assets or
earning power of the Company and its subsidiaries (taken as a whole) to any
other Person (other than to the Company or any of its subsidiaries), then,
and in each such case, proper provision shall be made so that (i) following
the Distribution Date, each holder of a Right (other than as provided in
Section 7(e) hereof) shall have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the terms of
this Agreement, such number of shares of freely tradable Common Stock of
the Principal Party (as hereinafter defined), free and clear of liens, rights of
call or first refusal, encumbrances or other adverse claims, as shall be equal
to the result obtained by (1) multiplying the then current Purchase Price by
the number of shares of Common Stock for which a Right is then
exercisable and (2) dividing that product by 50% of the current market price
per share of the Common Stock of such Principal Party (determined
pursuant to Section 11(d) hereof) on the date of consummation of such
consolidation, merger, sale or transfer; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being specifically intended that
the provisions of Section 11 hereof shall apply to such Principal Party; and
(iv) such Principal Party shall take such steps (including, but not limited to,
the reservation of a sufficient number of shares of its Common Stock in
accordance with Section 9 hereof) in connection with such consummation
as may be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its shares of
Common Stock thereafter deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in (w) or (x)
of the first sentence of paragraph (a) of this Section 13, the Person
that is the issuer of any securities into which shares of Common
Stock of the Company are converted in such merger or
consolidation, and if no securities are so issued, the Person that is
the other party to the merger or consolidation;
(ii) in the case of any transaction described in (y) of the
first sentence of paragraph (a) of this Section 13, the surviving or
resulting Person in such merger or consolidation; and
(iii) in the case of any transaction described in (z) of the
first sentence in paragraph (a) of this Section 13, the Person that is
the party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock
of such Person is not at such time and has not been continuously
over the preceding 12-month period registered under Section 12 of
the Exchange Act, and such Person is a direct or indirect subsidiary
or Affiliate of one or more other Persons, "Principal Party" shall
refer to any such other Person the Common Stock of which is and
has been so registered, unless the Common Stocks of two or more of
such other Persons are and have been so registered, in which case
"Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market
value, (2) if the Common Stock of such Person is and has not been
so registered and such Person is a direct or indirect subsidiary or
Affiliate of one or more other Persons, the Common Stocks of none
of which are and have been so registered, "Principal Party" shall
refer to the senior such Person having outstanding Common Stock,
and (3) in case such Person is owned, directly or indirectly, by a
joint venture or partnership formed by two or more Persons that are
not owned, directly or indirectly, by the same Person, the rules set
forth in (1) and (2) above shall apply to each of the chains of
ownership having an interest in such joint venture or partnership as
if such party were a "Subsidiary" of both or all of such joint
venturers or partners and the Principal Parties in each such chain
shall bear the obligations set forth in this Section 13 in the same
ratio as their direct or indirect interests in such Person bear to the
total of such interests.
(c) The Company shall not consummate, nor will it permit any
subsidiary bank to consummate, any such consolidation, merger, sale or
transfer unless prior thereto the Company, the subsidiary bank, if
appropriate, and each Principal Party and each other Person who may
become a Principal Party as a result of such consolidation, merger, sale or
transfer shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in paragraphs (a)
and (b) of this Section 13 and further providing that, as soon as practicable
after the date of any consolidation, merger, sale or transfer of assets
mentioned in paragraph (a) of this Section 13, the Principal Party at its own
expense will:
(i) prepare and file a registration statement under the Act
with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, will use its best
efforts to cause such registration statement to become effective as
soon as practicable after such filing and will use its best efforts to
cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until the
Expiration Date;
(ii) use its best efforts to qualify or register the Rights
and the securities purchasable upon exercise of the Rights under the
blue sky laws of such jurisdictions as may be necessary or
appropriate; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which
comply in all material respects with the requirements for registration
on Form 10 under the Exchange Act.
(d) The provisions of this Section 13 are intended to provide to
the holders of Rights a significant continuing equity interest in the business
of the Company following the consummation of any transaction of the types
described in paragraph (a) of this Section 13, and any attempt by any
Acquiring Person or Principal Party to avoid the provisions of this
Section 13 or to limit the impact thereof shall not be given any effect.
(e) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. The
Company will cause its subsidiary bank or banks to adhere to the terms and
provisions of this Agreement, to the extent applicable to such subsidiary
bank. The rights under this Section 13 shall be in addition to the rights to
exercise Rights and adjustments under Section 11(a)(ii) and shall survive
any exercise thereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in
subparagraphs (w), (x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired shares of Common
Stock pursuant to a Permitted Offer (or a wholly owned subsidiary of any
such Person or Persons), (ii) the price per share of Common Stock offered
in such transaction is not less than the price per share of Common Stock
paid to all holders of Common Stock whose shares were purchased pursuant
to such Permitted Offer and (iii) the form of consideration being offered to
the remaining holders of Common Stock pursuant to such transaction is the
same as the form of consideration paid pursuant to such Permitted Offer.
Upon consummation of any such transaction contemplated by this
subsection (f), all Rights hereunder shall expire.
Section 14. Additional Covenants.
(a) After the Stock Acquisition Date, the Company covenants
and agrees that it shall not (i) consolidate with, (ii) merge with or into, or
(iii) sell or transfer to, in one or more transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company
and its subsidiaries taken as a whole, any other Person if at the time of or
after such consolidation, merger or sale there are any charter or by-law
provisions or any rights, warrants or other instruments outstanding or any
other action taken which would diminish or otherwise eliminate the benefits
intended to be afforded by the Rights. The Company shall not consummate
any such consolidation, merger or sale unless prior thereto the Company
and such other Person shall have executed and delivered to the Rights
Agent a supplemental agreement evidencing compliance with this
subsection.
(b) The Company covenants and agrees that, after the Stock
Acquisition Date, it will not, except as permitted by Section 24 hereof, take
any action the purpose or effect of which is to diminish or otherwise
eliminate the benefits intended to be afforded by the Rights.
Section 15. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Rights Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the registered holders
of the Rights Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this
Section 15(a), the current market value of a whole Right shall be the closing
price per Right of the Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise issuable.
The closing price of the Rights for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, 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 Rights are 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 Rights are listed or admitted to trading, or if the
Rights are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by the
Nasdaq National Market, the Nasdaq Stock Market or such other system
then in use or, if on any such date the Rights are 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 Rights selected by the
Board of Directors of the Company. If on any such date no such market
maker is making a market in the Rights, the fair value of the Rights on such
date as determined reasonably and with good faith to the holders of Rights
by the Board of Directors of the Company shall be used and shall be
binding on the Rights Agent.
(b) The Company shall not be required to issue fractions of
shares of Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock the Company may pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of shares of Common Stock. For purposes of this Section 15(b), the
current market value of one share of Common Stock shall be the closing
price of a share of Common Stock (as determined pursuant to Section 11(d)
hereof) for the Trading Day immediately prior to the date of such exercise.
(c) Following the occurrence of one of the transactions or events
specified in Section 11 or Section 13 giving rise to the right to receive
common stock equivalents (other than Common Stock) or other securities
upon the exercise of a Right, the Company shall not be required to issue
fractions of shares or units of such common stock equivalents or other
securities upon exercise of the Rights or to distribute certificates which
evidence fractional shares of such common stock equivalents or other
securities. In lieu of fractional shares or units of such common stock
equivalents or other securities, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share or unit of such common stock equivalent or other securities.
For purposes of this Section 15(c), the current market value shall be
determined in the manner set forth in Section 11(d) hereof for the Trading
Day immediately prior to the date of such exercise and, if such common
stock equivalent is not traded, each such common stock equivalent shall
have the value of one share of Common Stock.
(d) Except as otherwise expressly provided herein, the holder of
a Right by the acceptance of the Rights expressly waives his right to receive
any fractional Rights or any fractional shares upon exercise of a Right.
Section 16. Rights of Action.
All rights of action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock); and any
registered holder of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the Rights Agent or of
the holder of any other Rights Certificate (or, prior to the Distribution Date,
of the Common Stock), may, in his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate in the manner
provided in such 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 shall be
entitled to specific performance of the obligations hereunder and injunctive
relief against actual or threatened violations of the obligations hereunder of
any Person subject to this Agreement. Holders of Rights shall be entitled to
recover the reasonable costs and expenses, including attorneys' fees,
incurred by them in any action to enforce the provisions of this Agreement.
Section 17. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents and agrees
with the Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly endorsed
or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
Person in whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered as the
Absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Rights
Certificates or the associated Common Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected by any
notice to the contrary.
(d) Notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary
or permanent injunction or other order, decree or ruling issued by a
court or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority prohibiting or
otherwise restraining performance of the obligation; provided, however,
the Company must use its reasonable best efforts to have any order,
decree or ruling lifted or otherwise overturned.
Section 18. Rights Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of the
shares of Common Stock or any other securities of the Company which may
at any time be issuable on the exercise of the Rights represented thereby,
nor shall anything contained herein or in any Rights Certificate be construed
to confer upon the holder of any Rights Certificate, 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 consent to any corporate action, or to receive
notice of meetings or other actions affecting stockholders (except as
provided in Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the provisions
thereof.
Section 19. Concerning the Rights Agent.
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 disbursements 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 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 arising therefrom, directly or indirectly. The costs and
expenses of enforcing this right of indemnification shall also be paid by the
Company. The indemnification provided for hereunder shall survive the
expiration of the Rights and termination of this Agreement.
The Rights Agent may conclusively rely upon and 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 Rights Certificate or certificate for Common Stock or 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.
Notwithstanding anything in this Agreement to the contrary, in no
event shall the Rights Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of the action.
Section 20. Merger or Consolidation or Change of Name of Rights Agent.
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 shall be a party, or any corporation
succeeding to the corporate trust business of the Rights Agent or any
successor Rights Agent, shall 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 22 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any of the
Rights Certificates shall 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 so
countersigned; and in case at that time any of the Rights Certificates shall
not have been countersigned, any successor Rights Agent may countersign
such Rights Certificates either in the name of the predecessor or in the name
of the successor Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates in this
Agreement.
In case at any time the name of the Rights Agent shall be 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.
Section 21. Duties of Rights Agent.
The Rights Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, and no implied
duties or obligations shall be read into this Agreement against the Rights
Agent, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
(a) Before the Rights Agent acts or refrains from acting, the
Rights Agent may consult with legal counsel selected by it (who may be
legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization 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 shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any Acquiring
Person) 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 the Chairman
of the Board, any Vice Chairman of the Board, any President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Rights Agent; and
such certificate shall 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 shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in the
Rights Certificates (except as to the fact that it has countersigned the Rights
Certificates) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in
any Rights Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or 13 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 evidenced by Rights Certificates after
actual notice of any such adjustment); nor shall it be responsible for any
determination by the Board of Directors of the Company of the current
market value of the Rights or Common Stock pursuant to the provisions of
Section 15 hereof; nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
shares of Common Stock or other securities to be issued pursuant to this
Agreement or any Rights Certificate or as to whether any shares of
Common Stock or other securities will, when so issued, be validly
authorized and issued, 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 and
certificates delivered pursuant to any provision hereof from the Chairman of
the Board, any Vice Chairman of the Board, any President, any Vice
President, the Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, and is authorized to apply to such
officers for advice or instructions in connection with its duties, and it shall
not be liable for any action taken or suffered to be taken by it in good faith
in accordance with instruction of any such officer or for any delay in acting
while waiting for those instructions. Any application by the Rights Agent
for written instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or omitted by the
Rights Agent under this Agreement and the date on or after which such
action shall be taken or such omission shall be effective. The Rights Agent
shall not be liable for any action taken by, or omission of, the Rights Agent
in accordance with a proposal included in any such application on or after
the date specified in such application (which date shall not be less than ten
Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to
an earlier date) unless, prior to taking any such action (or the effective date
in the case of an omission), the Rights Agent shall have received written
instructions in response to such application subject to the proposed action or
omission and/or specifying the action to take, taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the 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. 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 shall not be
answerable or accountable for any act, omission, default, neglect or
misconduct of any such attorneys or agents or for any loss to the Company
or to the holders of the Rights resulting from any such act, omission,
default, neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of its rights if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either
not been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the
Company.
(l) The Rights Agent shall not be required to take notice or be
deemed to have any notice of any fact, event or determination (including,
without limitation, any dates or events defined in this Agreement or the
designation of any Person as an Acquiring Person, Affiliate or Associate)
under this Agreement unless and until the Rights Agent shall be specifically
notified in writing by the Company of such fact, event or determination.
Section 22. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice in
writing mailed to the Company and to each transfer agent of the Common
Stock by registered or certified mail, and, upon appointment of any
successor Rights Agent, at the expense of the Company, to holders of the
Rights by the United States mail or other form of notice, including, but not
limited to, electronic mail, posting on the Company's website or inclusion
in any report or notice filed by the Company under the Exchange Act. The
Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of the Common
Stock by registered or certified mail, and, upon appointment of any
Successor Rights Agent, to the holders of the Rights by the United States
mail or other form of notice, including, but not limited to, electronic mail,
posting on the Company's website or inclusion in any report or notice filed
by the Company under the Exchange Act. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving notice of
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder
of a Right (who shall, with such notice, submit his Rights Certificate (if
any) for inspection by the Company), then the registered 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) a corporation organized and
doing business under the laws of the United States or of any state of the
United States so long as such corporation is authorized to do business as a
banking institution in such state, in good standing, which is authorized
under such laws to exercise corporate trust, stock transfer or stockholder
services powers 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 $36,000,000 or (b) an affiliate of
a corporation described in clause (a) of this sentence. After appointment,
the successor Rights Agent shall 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 shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent
of the Common Stock, and mail a notice thereof in writing to the registered
holders of the Rights. Failure to give any notice provided for in this
Section 22, 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.
Section 23. 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 Purchase Price
per share and the number or kind or class of shares or other securities or
property purchasable under the Rights Certificates made in accordance with
the provisions of this Agreement. In addition, in connection with the
issuance or sale of shares of Common Stock following the Distribution Date
and prior to the redemption or expiration of the Rights, the Company
(a) shall, with respect to shares of Common Stock so issued or sold pursuant
to the exercise of stock options or otherwise under any employee plan or
arrangement, which plan or arrangement is existing as of the Distribution
Date, or upon the exercise, conversion or exchange of any other securities
issued by the Company on or prior to the Distribution Date, and (b) may, in
any other case, if deemed necessary or appropriate by the Board of
Directors of the Company, issue Rights Certificates representing the
appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificates 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 the Person to whom such Rights
Certificates would be issued, and (ii) no such Rights Certificates shall be
issued if, and to the extent that appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 24. Redemption, Termination and Exchange.
(a) (i) The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (x) the time that any person
becomes an Acquiring Person without the prior consent of the
Company or (y) 5:00 P.M., San Francisco, California time, on the
Final Expiration Date, redeem all but not less than all of the then
outstanding Rights at a redemption price of $.001 per Right,
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption Price").
(ii) In addition, and notwithstanding the provisions of
Section 24(a)(i), the Board of Directors of the Company may
redeem all but not less than all of the then outstanding Rights at the
Redemption Price following the occurrence of a Stock Acquisition
Date but prior to any event described in Section 13(a), either
(x) following the occurrence of an event set forth in, and the
expiration of any period during which the holder of Rights may
exercise the rights under, Section 11(a)(ii) if and for as long as the
Acquiring Person is not thereafter the Beneficial Owner of securities
representing 10% or more of the outstanding shares of the Voting
Power, and at the time of redemption there are no other persons who
are Acquiring Persons or (y) in connection with any event specified
in Section 13(a) not involving an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or any other Person in which such
Acquiring Person, Affiliate or Associate has any interest, or any
other Person acting directly or indirectly on behalf of or in
association with any such Acquiring Person, Affiliate or Associate.
(b) In the case of a redemption permitted under Section 24(a)(i),
immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights and without any further action and
without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price. In the case of a redemption permitted only under
Section 24(a)(ii), the right to exercise the Rights will terminate and
represent only the right to receive the Redemption Price only after the
giving of notice of such redemption to the holder of such Rights if no event
set forth in Section 11(a)(ii) shall have occurred, upon the later of ten
Business Days following the giving of such notice or the expiration of any
period during which the rights under Section 11(a)(ii) may be exercised.
After the action of the Board of Directors ordering any such redemption of
the Rights, the Company shall promptly give notice of such redemption to
the Rights Agent and the holders of the then outstanding Rights by mailing
such notice to the Rights Agent and to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent or,
prior to the Distribution Date, 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. Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made.
In the case of a redemption permitted under Section 24(a)(i) or (ii),
the Company may, at its option, discharge all of its obligations with respect
to the Rights by (i) issuing a press release announcing the manner of
redemption of the Rights and (ii) mailing payment of the Redemption Price
to the registered holders of the Rights at their last addresses as they appear
on the registry books of the Rights Agent, or, prior to the Distribution Date,
on the registry books of the Transfer Agent of the Common Stock, and upon
such action, all outstanding Rights Certificates shall be null and void
without any further action by the Company.
(c) (i) Subject to the limitations of applicable law, the Board
of Directors of the Company may, at its option, at any time after any
Person becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of
Section 7(e) hereof) for (A) shares of Common Stock at an exchange
ratio of one share of Common Stock per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (the "Exchange Shares")
or (B) Substitute Consideration (as that term is defined below). The
Board of Directors may determine, in its sole discretion, whether to
deliver Exchange Shares or Substitute Consideration.
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person
(other than the Company, any subsidiary of the Company, any
employee benefit plan of the Company or any such subsidiary, or
any entity holding Common Stock for or pursuant to the terms of
any such plan), together with all Affiliates and Associates of such
Person, becomes the Beneficial Owner of 50% or more of the
Common Stock then outstanding.
(ii) In the event the Board of Directors shall determine to
deliver Substitute Consideration in exchange for Rights, the
Company shall (1) determine the value of the Exchange Shares (the
"Exchange Value"), and (2) with respect to each Right to be
exchanged, make adequate provision to substitute for Exchange
Shares the following (the "Substitute Consideration"): (v) cash,
(w) Common Stock or common stock equivalents (as that term is
defined in Section 11(a)(iii) hereof), (x) debt securities of the
Company, (y) other assets, or (z) any combination of the foregoing,
having an aggregate value equal to the Exchange Value, where such
aggregate value has been determined by the Board of Directors of
the Company based upon the advice of a nationally recognized
investment banking firm selected by the Board of Directors of the
Company. For purposes of this Section 24(c), the value of a share of
Common Stock shall be the current market price (as determined
pursuant to Section 11(d) hereof) per share of Common Stock on the
day that is the later of (x) the first occurrence of an event described
in Section 11(a)(ii) hereof and (y) the date on which the Company's
right of redemption pursuant to Section 24(a) expires; and the value
of any common stock equivalent shall be deemed to have the same
value as the Common Stock on such date.
(iii) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to this Section 24(c), and without any further action and
without any notice, the right to exercise such Rights shall terminate
and the only right thereafter of a holder of such Rights shall be to
receive Exchange Shares or Substitute Consideration for each Right
exchanged by such holder. The Company shall promptly give
public notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail a
notice of any such exchange to all of the holders of such Rights at
their last addresses as they appear upon the registry books of the
Rights Agent. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of exchange will state the method by
which the exchange of Common Stock for Rights will be effected
and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected
pro rata based on the number of Rights (other than Rights which
have become void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(iv) In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24(c), the Company shall take all such
action as may be necessary to authorize additional shares of
Common Stock for issuance upon exchange of the Rights.
(v) The Company shall not be required to issue fractions
of shares of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of such
fractional shares of Common Stock, the Company shall pay to the
registered holders of the Rights Certificates with regard to which
such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the current
market value of a whole share of Common Stock. For the purposes
of this Section 24(c)(v), the current market value of a whole share of
Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to Section 11(d) hereof) for the
Trading Day immediately prior to the date of exchange pursuant to
this Section 24(c).
Section 25. Notice of Certain Events.
In case the Company shall propose (a) to pay any dividend payable
in stock of any class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock (other than a regular quarterly
cash dividend out of earnings or retained earnings of the Company) or (b) to
offer to the holders of Common Stock rights or warrants to subscribe for or
to purchase any additional shares of Common Stock or shares of stock of
any class or any other securities, rights or options, or (c) to effect any
reclassification of its Common Stock (other than a reclassification involving
only the subdivision of outstanding shares of Common Stock), or (d) to
effect any consolidation or merger into or with, or to effect any sale or other
transfer (or to permit one or more of its subsidiaries to effect any sale or
other transfer), in one or more transactions, of more than 50% of the assets
or earning power of the Company and its subsidiaries (taken as a whole) to,
any other Person, or (e) 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 Rights Certificate, in accordance with Section 26 hereof, a
notice of such proposed action, which shall specify the record date for the
purposes of such stock dividend, distribution of rights or warrants, or the
date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Common Stock, if any
such date is to be fixed, and such notice shall be so given in the case of any
action covered by clause (a) or (b) above at least 20 days prior to the record
date for determining holders of the shares of Common Stock for purposes of
such action, and in the case of any such other action, at least 20 days prior
to the date of the taking of such proposed action or the date of participation
therein by the holders of the shares of Common Stock whichever shall be
the earlier.
In case any of the events set forth in Section 11(a)(ii) or 13(a) of this
Agreement shall occur, then, in any such case, the Company or the Principal
Party, as the case may be, shall as soon as practicable thereafter give to each
holder of a Rights Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event, which shall specify the event and the
consequences of the event to holders of Rights under Section 11(a)(ii) or
13(a) hereof, as the case may be.
The failure to give notice required by this Section 25 or any defect
therein shall not affect the legality or validity of the action taken by the
Company or the vote upon any such action.
Section 26. Notices.
Notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of any Rights Certificate to or on
the Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed until another address is filed in writing with the
Rights Agent) as follows:
Westamerica Bancorporation
1108 Fifth Avenue
San Rafael, California 94901
Attention: David L. Payne
Chairman of the Board,
President and Chief Executive
Officer
Subject to the provisions of Section 22, any notice or demand authorized by
this Agreement to be given or made by the Company or by the holder of any
Rights Certificate to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Computershare Investor Services, LLC
Two North LaSalle Street, 3rd Floor
Chicago, Illinois 60602
Attention: David Adamson
Subject to the provisions of Section 22, notices or demands authorized by
this Agreement to be given or made by the Company or the Rights Agent to
the holder of any Rights Certificate shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed to such holder at the
address of such holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments.
The Company and the Rights Agent may from time to time
supplement or amend this Agreement without approval of any holders of
Right Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) prior to the Distribution
Date, to change or supplement the provisions hereunder which the
Company may deem necessary or desirable or (iv) following the
Distribution Date, to change or supplement the provisions hereunder in any
manner which the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Rights Certificates.
Upon the delivery of a certificate from an appropriate officer of the
Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall execute
such supplement or amendment, at the expense of the Company, unless the
Rights Agent shall have determined in good faith that such supplement or
amendment would adversely affect its interests under this Agreement. Prior
to the Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common Stock.
Notwithstanding anything in this Agreement to the contrary, no supplement
or amendment that changes the rights and duties of the Rights Agent under
this Agreement will be effective against the Rights Agent without the
execution of such supplement or amendment by the Rights Agent.
Section 28. Determination and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the number of
shares of Common Stock outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding
shares of Common Stock or any other securities of which any Person is the
Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Agreement. 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 of Directors, or 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 (including a determination to
redeem or not redeem the Rights or to amend 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 Certificates and all other parties, and (y) not subject the Board to
any liability to the holders of the Rights Certificates.
Section 29. 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.
Section 30. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any person
or corporation other than the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date, the
Common Stock) any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of
the Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, the Common Stock).
Section 31. Severability.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
Section 32. Governing Law.
This Agreement, each Right and each Rights Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State
of California 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 to be performed entirely within such State.
Section 33. 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 constitute but one and the same
instrument.
Section 34. Descriptive Headings.
Descriptive headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Attest: WESTAMERICA BANCORPORATION
/s/Jennifer J. Finger By: /s/David L. Payne
_____________________ __________________
Name: Jennifer J. Finger Name: David L. Payne
Title: Senior Vice President & Title: Chairman of the Board,
Chief Financial Officer President & Chief
Executive Officer
Attest: COMPUTERSHARE INVESTOR SERVICES, LLC,
as Rights Agent
/s/Blanche Hurt By: /s/Cindy Nisley
_______________ _______________
Name: Blanche Hurt Name: Cindy Nisley
Title: General Counsel Title: Director of Client Services
EXHIBIT A
_________
[Form of Rights Certificate]
Certificate No R- ____________ Rights
NOT EXERCISABLE AFTER DECEMBER 31,
2009 OR EARLIER IF NOTICE OF REDEMPTION
IS GIVEN. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.001 PER RIGHT ON THE
TERMS SET FORTH IN THE RIGHTS
AGREEMENT. [THE RIGHTS REPRESENTED
BY THIS RIGHTS CERTIFICATE WERE ISSUED
TO A PERSON WHO WAS AN ACQUIRING
PERSON OR AN AFFILIATE OR AN ASSOCIATE
OF AN ACQUIRING PERSON, AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT.
THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME VOID
UNDER THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF THE RIGHTS AGREEMENT.]*
Rights Certificate
Westamerica Bancorporation
This certifies that
____________________________, or registered assigns, is the
registered owner of the number of ____ Rights set forth above, each of
which entitles the owner ____________ thereof, subject to the terms,
provisions and conditions of the Amended and Restated Shareholder Rights
Agreement dated as of December 31, 2004 (the "Rights Agreement")
between Westamerica Bancorporation, a California corporation (the
"Company"), and Computershare Investor Services, LLC, a Delaware
limited liability company (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in
the Rights Agreement) and prior to 5:00 p.m. (San Francisco, California
time) on December 31, 2009 at the office of the Rights Agent designated for
such purpose, one fully paid, nonassessable share of Common Stock (the
"Common Stock") of the Company, at a purchase price of $110.00 per
share (the "Purchase Price"), upon presentation and surrender of this Rights
Certificate with the appropriate Form of Election to Purchase and
Certificate duly executed. The number of Rights evidenced by this Rights
Certificate (and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Purchase Price set forth above, are
the number and Purchase Price as of ___________, 2004, based on the
Common Stock as constituted at such date.
* The portion of the legend in brackets shall
be inserted only if applicable.
As provided in the Rights Agreement, the Purchase Price and the
number of shares of Common Stock or other securities which may be
purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening
of certain events.
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 also available upon written request to the
Company.
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 for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of shares of Common Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates surrendered shall
have entitled such holder to purchase. If this Rights Certificate shall be
exercised (other than pursuant to Section 11(a)(ii) of the Rights Agreement)
in part, the holder shall be entitled to receive upon surrender hereof another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised. If this Rights Certificate shall be exercised in whole or in part
pursuant to Section 11(a)(ii) of the Rights Agreement, the holder shall be
entitled to receive this Rights Certificate duly marked to indicate that such
exercise has occurred as set forth in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its
option at a redemption price of $.001 per Right. Subject to the provisions of
the Rights Agreement, the Company, at its option, may elect to mail
payment of the redemption price to the registered holder of the Right at the
time of redemption, in which event this certificate may become void
without any further action by the Company.
The Company is not obligated to issue fractional shares of Common
Stock upon the exercise of any Right or Rights evidenced hereby, but in lieu
thereof a cash payment may be made, 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 shares of
Common Stock or of any other securities of the Company 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 shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Rights Certificate shall have been exercised 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. Dated as of _________, 20__.
Attest: WESTAMERICA BANCORPORATION
[Seal]
__________________________ By:___________________________
Name: Jennifer J. Finger Name: David L. Payne
Title: Senior Vice President & Title: Chairman of the Board,
Chief Financial Officer President & Chief
Executive Officer
Countersigned:
COMPUTERSHARE INVESTOR
SERVICES, LLC,
as Rights Agent
____________________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
__________________
(To be executed by the registered holder if such
holder desires to transfer the 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: ____________ , 20____ .
_____________________________
Signature
Signature Guaranteed:
CERTIFICATE
___________
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being sold, assigned and transferred by or on behalf of
a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined
in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: ____________ , 20____ .
____________________________
Signature
NOTICE
______
The signature to the foregoing Assignment must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
____________________________
(To be executed if holder desires to exercise the Rights Certificate
pursuant to Section 11(a)(ii) of the Rights Agreement.)
To WESTAMERICA BANCORPORATION:
The undersigned hereby irrevocably elects to exercise
__________ Rights represented by this Rights Certificate to purchase the
shares of Common Stock (or such other securities of the Company) issuable
upon the exercise of the Rights and requests that certificates for such shares
be issued in the name of:
________________________________________________________________________
(Please insert social security or other identifying number)
_________________________________________________________________________
(Please print name and address)
_________________________________________________________________________
The Rights Certificate indicating the balance, if any, of such
Rights which may still be exercised pursuant to Section 11(a)(ii) of the
Rights Agreement shall be returned to the undersigned unless such Person
requests that the Rights Certificate be registered in the name of and
delivered to:
___________________________________________________________________________
Please insert social security or other identifying number (complete only if
Rights Certificate is to be registered in a name other than the undersigned)
___________________________________________________________________________
(Please print name and address)
____________________________________________________________________________
Dated:____________ , 20 ____.
_________________________________
Signature
Signature Guaranteed:
CERTIFICATE
___________
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined pursuant to the Rights Agreement);
(2) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such Acquiring Person
(as such terms are defined in the Rights Agreement); and
(3) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this
Rights Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:____________ , 20 ____.
__________________________________
Signature
NOTICE
______
The signature to the foregoing Election to Purchase must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever
Exhibit B
AMENDED AND RESTATED SUMMARY
OF RIGHTS TO PURCHASE COMMON STOCK
As a precaution to ensure that it continues to be able to take
appropriate action to protect the interests of Westamerica Bancorporation
("Westamerica" or "Company") and its shareholders, Westamerica's Board
of Directors approved the amendment of its existing Shareholder Rights
Plan on October 28, 2004, to become effective on December 31, 2004 to
update the existing plan and extend its maturity until December 31, 2009.
The new amended plan is very similar in purpose and effect to the plan as it
existed prior to amendment. It would help the Board to maximize
shareholder value in the event of a change of control of Westamerica and
otherwise to resist actions that the Board considers likely to injure
Westamerica or its shareholders.
Integral to the plan is a Rights dividend payable on shares of
Westamerica's Common Stock. On December 18, 1986, the Board of
Directors of Westamerica declared a dividend distribution of one Right for
each outstanding share of common stock, no par value (the "Common
Stock"), of the Company to shareholders of record at the close of business
on January 20, 1987 (the "Record Date").
The Rights Agreement, which provides the description and
terms of the Rights, was amended and restated on September 28, 1989 and
on May 25, 1992 the then current Rights Agent, Chemical Trust Company
of California, replaced the original Rights Agent. On March 23, 1995, the
Company and Chemical Trust Company of California as Rights Agent,
again amended and restated the Rights Agreement (the "1995 Rights
Agreement"). On November 19, 1999, the then existing rights agent,
ChaseMellon Shareholder Services, LLC (successor in interest to Chemical
Trust Company of California) was replaced by the Harris Trust and Savings
Bank as Rights Agent, and the 1995 Rights Agreement was amended and
restated (referred to herein, as amended and restated, as the "1999 Rights
Agreement"). On December 31, 2004, the 1999 Rights Agreement was
amended and restated (referred to herein, as amended and restated, as the
"2004 Rights Agreement") and Computershare Investor Services, LLC was
appointed as Rights Agent. A summary of the 2004 Rights Agreement is set
forth below.
Except as set forth below, each Right, when exercisable,
entitles the registered holder to purchase from the Company one share of
Common Stock, at a price of $110.00 per share (the "Purchase Price"),
subject to adjustment. The Rights are not exercisable until the Distribution
Date (as defined below).
The Rights are currently attached to all Common Stock
certificates representing shares outstanding, and no separate Right
Certificates will be distributed until the earlier to occur of (i) a public
announcement that, without the prior consent of the Company, a Person or
group of affiliated or associated Persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership of securities
having 10% or more of the voting power of all outstanding voting securities
of the Company, or (ii) ten days (unless such date is extended by the Board
of Directors) following the commencement of (or a public announcement of
an intention to make) a tender offer or exchange offer which would result in
any Person or group of related Persons becoming an Acquiring Person (the
earlier of such dates being called the "Distribution Date"). Until the
Distribution Date the Rights will be evidenced, with respect to any of the
Common Stock certificates outstanding as of the Record Date, by such
Common Stock certificate together with this Amended and Restated
Summary of Rights. The 2004 Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only with
Common Stock certificates.
From as soon as practicable after the Record Date and until
the Distribution Date (or earlier redemption or expiration of the Rights),
new Common Stock certificates issued after the Record Date upon transfer
or new issuance of the Common Stock will contain a notation referring to
the associated Rights. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any certificates for
Common Stock outstanding as of the Record Date (with or without this
Amended and Restated Summary of Rights attached) will also constitute the
transfer of the Rights associated with the Common Stock represented by
such certificate. As soon as practicable following the Distribution Date,
Westamerica will issue certificates evidencing the Rights ("Rights
Certificates"), and the Rights will become exercisable and separately
tradable.
The Rights will expire on the earliest of (i) December 31,
2009, (ii) consummation of a merger transaction with a Person or group
who acquired Common Stock pursuant to a Permitted Offer (as defined
below), and is offering in the merger the same price per share and form of
consideration paid in the Permitted Offer, or (iii) redemption of the Rights
by the Company as described below.
The Purchase Price payable, and the number of shares of the
Common Stock or other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of the Common Stock, (ii) upon the grant to holders of the
Common Stock of certain rights or warrants to subscribe for Common
Stock, certain convertible securities or securities having the same or more
favorable rights, privileges and preferences as the Common Stock at less
than the current market price of the Common Stock or (iii) upon the
distribution to holders of the Common Stock of evidences of indebtedness
or assets (excluding regular quarterly cash dividends out of earnings or
retained earnings and dividends payable in Common Stock) or of
subscription rights or warrants (other than those referred to above).
In the event that, after the first date of public announcement
by the Company or an Acquiring Person that an Acquiring Person has
become such, (i) the Company is acquired in a merger or other business
combination transaction in which the Common Stock is exchanged or
changed, (ii) any bank subsidiary of the Company is involved in a merger or
other business combination transaction or (iii) 50% or more of its assets or
earning power are sold (in one transaction or a series of transactions),
proper provision shall be made so that each holder of a Right (other than
such Acquiring Person) shall thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right, that number
of shares of common stock of the surviving or resulting Person in the
merger or business combination transaction or the Person acquiring the
greatest portion of the assets, as appropriate, or, in either case, its publicly
traded parent company or affiliate, which at the time of such transaction
would have a market value of two times the exercise price of the Right
(such right being called the "Merger Right").
In the event that a Person becomes the beneficial owner of
securities having 10% or more of the voting power of all then outstanding
voting securities of the Company (unless pursuant to a tender offer or
exchange offer for all outstanding shares of Common Stock at a price and
on terms determined by at least a majority of the members of the Board of
Directors who are not officers of the Company to be both adequate and
otherwise in the best interests of the Company and its shareholders (a
"Permitted Offer")), proper provision shall be made so that each holder of a
Right will for a 60-day period thereafter have the right to receive upon
exercise that number of shares of Common Stock having a market value of
two times the exercise price of the Right, to the extent available, and then
(after all authorized and unreserved shares of Common Stock have been
issued) a common stock equivalent (such as Preferred Stock or another
equity security with at least the same economic value as the Common
Stock) having a market value of two times the exercise price of the Right,
with Common Stock to the extent available being issued first (such right
being called the "Subscription Right"). The holder of a Right will continue
to have the Merger Right whether or not such holder exercises the
Subscription Right. Upon the occurrence of any of the events giving rise to
the exercisability of the Merger Right or the Subscription Right, any Rights
that are or were at any time after the Distribution Date owned by an
Acquiring Person shall immediately become null and void.
With certain exceptions, no adjustments in the Purchase
Price will be required until cumulative adjustments require an adjustment of
at least 1% in such Purchase Price. No fractions of shares will be issued
and, in lieu thereof, an adjustment in cash will be made based on the market
price of the Common Stock on the last trading date prior to the date of
exercise.
At any time prior to the earlier to occur of (i) a Person
becoming an Acquiring Person or (ii) the expiration of the Rights, the
Company may redeem the Rights in whole, but not in part, at a price of
$.001 per Right (the "Redemption Price"), which redemption shall be
effective upon the action of the Board of Directors. Additionally, the
Company may thereafter redeem the then outstanding Rights in whole, but
not in part, at the Redemption Price (i) provided that such redemption is
incidental to a merger or other business combination transaction or series of
transactions involving the Company but not involving an Acquiring Person
or certain related Persons or (ii) following an event giving rise to, and the
expiration of the exercise period for, the Subscription Right if and for as
long as an Acquiring Person beneficially owns securities representing less
than 10% of the voting power of the Company's voting securities and at the
time of redemption there are no other persons who are Acquiring Persons.
The redemption of Rights described in the preceding sentence shall be
effective only as of such time when the Subscription Right is not
exercisable, and in any event, only after 10 Business Days' prior notice.
Subject to applicable law, the Board of Directors, at its
option, may at any time after a Person becomes an Acquiring Person (but
not after the acquisition by such Person of 50% or more of the outstanding
Common Stock), exchange all or part of the then outstanding and
exercisable rights (except for Rights which have become void) for shares of
Common Stock equivalent to one share of Common Stock per Right or,
alternatively, for substitute consideration consisting of cash, securities of
the Company or other assets (or any combination thereof).
Fractional shares of Common Stock will be issuable;
however, the Company may elect to distribute depositary receipts in lieu of
such fractional shares. In lieu of fractional shares an adjustment in cash
may be made based on the market price of the Common Stock on the last
trading date prior to the date of exercise.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends.
A copy of the 2004 Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to an Amendment to a
Registration Statement on Form 8-A. A copy of the 2004 Rights
Agreement is available free of charge from the Company. This summary
description of the Rights does not purport to be complete and is qualified in
its entirety by reference to the 2004 Rights Agreement, which is
incorporated herein by reference.