EXHIBIT 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT (this "Amendment"), dated
as of January 4, 2002, amends the Rights Agreement (the "Rights Agreement"),
dated as of November 8, 1996, between Civic BanCorp, a California corporation
(the "Company") and Mellon Investor Services, LLC (formerly known as ChaseMellon
Shareholder Services, L.L.C.) (the "Rights Agent"). Certain capitalized terms
used herein are defined in the Rights Agreement unless otherwise specified
herein.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors of the Company (the "Board") may from time to time supplement or amend
the Rights Agreement without the approval of any holders of Right Certificates;
provided, however, that from and after such time as any Person has become an
Acquiring Person, the Rights Agreement shall not be amended in any manner which
would adversely affect the interests of the holders of Rights Certificates;
WHEREAS, as of the date of this Amendment, no Person has become an
Acquiring Person;
WHEREAS, the Company wishes to amend the Rights Agreement to eliminate
the redemption provisions therein and to provide for termination of the Rights
at the election of the Board;
NOW, THEREFORE, in accordance with Section 27 of the Rights Agreement,
the Company and the Rights Agent agree as follows:
1. The second full paragraph of the Rights Agreement shall be amended
to delete the word "Redemption" and to insert the word "Termination" in its
place.
2. Section 1(p) shall be amended and restated in its entirety as
follows:
"(p) Reserved."
3. Section 1(v), the definition of "Trading Day", shall be renumbered
Section 1(w) but shall otherwise be unchanged.
4. Section 1(w), the definition of "Trigger Event", shall be renumbered
Section 1(x) but shall otherwise be unchanged.
5. A new Section 1(v) shall be inserted as:
"(v) "Termination Date" shall have the meaning set forth in Section 7
hereof."
6. Section 3(b) shall be amended to delete the word "Redemption" in the
third sentence of that subsection and to insert the word "Termination" in its
place.
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7. Section 3(c) shall be amended to delete the word "Redemption" in the
first sentence of that subsection and to insert the word "Termination" in its
place.
8. Section 3(c) shall be amended to add the words, ", as amended" prior
to the parenthetical phrase "(the "Rights Agreement")" in the first sentence to
the legend set forth in that subsection.
9. Section 6 shall be amended to delete the word "Redemption" in the
first sentence of that subsection and to insert the word "Termination" in its
place.
10. Section 7(a) of the Rights Agreement shall be amended and restated
in its entirety as follows:
"(a) The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (expect as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon
surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent, together with
payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to
the earliest of (i) the close of business on October 31, 2006, (the
"Final Expiration Date"), (ii) the time at which the Rights are
terminated as provided in Section 23 hereof (the "Termination Date"),
or (iii) the time at which such Rights are exchanged as provided in
Section 24 hereof."
11. Section 23 of the Rights Agreement is restated in its entirety as
follows:
"Section 23. TERMINATION
(a) The Board of Directors of the Company may, at its option, at
any time prior to such time as any Person becomes an Acquiring Person,
elect to terminate the Rights without any payment to any holder
thereof.
(b) Immediately upon the action of the Board of Directors of the
Company electing to terminate the Rights (or, if the resolution of the
Board of Directors electing to terminate the Rights states that the
termination will not be effective until the occurrence of a specified
future time or event, upon the occurrence of such future time or
event), without any further action and without any notice, provided
that the Company gives written notice of such termination to the
Rights Agent, the right to exercise the Rights will terminate and each
Right, whether or not previously exercised, will thereafter be null
and void."
12. The legend at the top of the front of the form of Rights
Certificate attached as Exhibit B to the Rights Agreement shall be amended and
restated in its entirety as follows:
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"NOT EXERCISABLE AFTER OCTOBER 31, 2006 OR EARLIER IF
TERMINATION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
TERMINATION AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT."
13. The form of Rights Certificate shall be amended to add the words ",
as amended" prior to the words "(the "Rights Agreement")" in the first full
paragraph on the front of the form.
14. The fourth full paragraph of the Rights Certificate shall be
amended and restated in its entirety as follows:
"Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be terminated
by the Company or (ii) may be exchanged in whole or part for
Preferred Shares or shares of the Company's Common Stock, no
par value."
15. Except as specifically amended by this Amendment, all terms,
conditions and provisions of the Rights Agreement shall remain in full force and
effect.
16. THIS AMENDMENT TO THE RIGHTS AGREEMENT 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 PERFORMED ENTIRELY WITHIN SUCH STATE.
17. This Amendment 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered by their duly authorized officers as of the date first above
written.
CIVIC BANCORP
By: /s/ Herbert C. Foster
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Name: Herbert C. Foster
Title: President and Chief Executive
Officer
RIGHTS AGENT
MELLON INVESTOR SERVICES LLC
(formerly known as CHASEMELLON
SHAREHOLDER SERVICES, L.L.C.)
By: /s/ William A. Dougherty
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Name: William A. Dougherty
Title: Assistant Vice President