Exhibit 4.2
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EXECUTION COPY
AMENDMENT TO THE AMENDED AND RESTATED
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
This Amendment to the Amended and Restated Stockholder Protection Rights
Agreement (this "Amendment"), dated as of May 4, 2004, by and between Charter
One Financial, Inc., a Delaware corporation (the "Company"), and EquiServe Trust
Company, N.A. (formerly BankBoston, N.A.) ("Rights Agent"), amends that certain
Amended and Restated Stockholder Protection Rights Agreement (the "Rights
Agreement"), dated as of October 20, 1999, by and between the Company and Rights
Agent. Unless otherwise defined herein, capitalized terms used in this Amendment
shall have the meanings ascribed to them in the Rights Agreement.
WHEREAS, the Company's Board of Directors has approved, and the Company
intends to execute, an Agreement and Plan of Merger (as amended, supplemented,
modified or replaced from time to time, the "Merger Agreement"), dated as of May
4, 2004, by and among the Company, Citizens Financial Group, Inc., a Delaware
corporation ("Buyer"), and Cardinal Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of Buyer ("Merger Subsidiary"), pursuant to which
Merger Subsidiary will be merged with and into the Company (the "Merger"), with
the Company becoming a wholly owned subsidiary of Buyer;
WHEREAS, the Board of Directors of the Company has determined that the
Merger Agreement and the terms and conditions set forth therein and the
transactions contemplated thereby, including, without limitation, the Merger,
are in the best interests of the Company and its shareholders;
WHEREAS, the Board of Directors of the Company has determined, in
connection with its contemplation of the Merger Agreement, that an amendment to
the Rights Agreement as set forth herein is necessary and desirable to exempt
the Merger Agreement and the transactions contemplated thereby, including,
without limitation, the Merger, from the application of the Rights Agreement as
set forth in this Amendment;
WHEREAS, pursuant to Section 5.4 of the Rights Agreement, the Company may,
and the Rights Agent shall, if the Company so directs, supplement or amend any
provisions of the Rights Agreement, subject to the limitations set forth in such
Section 5.4; and
WHEREAS, pursuant to Section 5.4 of the Rights Agreement, the Company
hereby directs that the Rights Agreement should be amended as set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the Company and the Rights Agent hereby agree as follows:
A. AMENDMENT OF CERTAIN DEFINITIONS.
Section 1.1 of the Rights Agreement is supplemented to add the following
definitions in the appropriate alphabetical locations:
"Buyer" shall mean Citizens Financial Group, Inc., a Delaware corporation.
"Merger" shall mean the "Merger" as such term is defined in the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of
May 4, 2004, by and among the Company, Buyer and Merger Subsidiary, as it
may be amended, supplemented, modified or restated from time to time.
"Merger Subsidiary" shall mean a wholly owned subsidiary of Buyer organized
under Delaware law, which will merge with and into the Company in the
Merger.
The definition of "Acquiring Person" in Section 1.1 of the Rights Agreement
is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, neither Buyer,
Merger Subsidiary nor any of their Affiliates or Associates shall be deemed
to be an Acquiring Person (or an Affiliate or Associate of an Acquiring
Person or a direct or indirect transferee of any thereof) solely as a
result of any or all of the following: (i) the approval, execution,
delivery or performance of the Merger Agreement, (ii) the consummation of
the Merger, (iii) the consummation of any other transaction contemplated by
the Merger Agreement or (iv) any filing made with the Securities and
Exchange Commission by any party to the Merger Agreement (or any Affiliate
or Associate thereof) in connection with the transactions contemplated by
the Merger Agreement."
The definition of "Expiration Time" in Section 1.1 of the Rights Agreement
is hereby amended by replacing the word "and" at the end of clause (iii) with
",", insert prior to the period the word "or" at the end of clause (iv) and add
the following new clause at the end of such definition:
"(v) the time that is immediately prior to consummation of the Merger."
The definition of "Flip-in Date" in Section 1.1 of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
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"Notwithstanding anything in this Agreement to the contrary, a Flip-in Date
shall not be deemed to have occurred solely as the result of any or all of
the following: (i) the approval, execution, delivery or performance of the
Merger Agreement, (ii) the consummation of the Merger, (iii) the
consummation of any other transaction contemplated by the Merger Agreement
or (iv) any filing made with the Securities and Exchange Commission by any
party to the Merger Agreement (or any Affiliate or Associate thereof) in
connection with the transactions contemplated by the Merger Agreement."
The definition of "Flip-over Transaction or Event" in Section 1.1 of the
Rights Agreement is hereby amended by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Agreement to the contrary, a Flip-over
Transaction or Event shall not be deemed to have occurred solely as the
result of any or all of the following: (i) the approval, execution,
delivery or performance of the Merger Agreement, (ii) the consummation of
the Merger, (iii) the consummation of any other transaction contemplated by
the Merger Agreement or (iv) any filing made with the Securities and
Exchange Commission by any party to the Merger Agreement (or any Affiliate
or Associate thereof) in connection with the transactions contemplated by
the Merger Agreement."
The definition of "Separation Time" in Section 1.1 of the Rights Agreement
is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Separation
Time shall not be deemed to have occurred solely as the result of any or
all of the following: (i) the approval, execution, delivery or performance
of the Merger Agreement, (ii) the consummation of the Merger, (iii) the
consummation of any other transaction contemplated by the Merger Agreement
or (iv) any filing made with the Securities and Exchange Commission by any
party to the Merger Agreement (or any Affiliate or Associate thereof) in
connection with the transactions contemplated by the Merger Agreement."
The definition of "Stock Acquisition Date" in Section 1.1 of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Stock
Acquisition Date shall not be deemed to have occurred solely as the result
of any or all of the following: (i) the approval, execution, delivery or
performance of the Merger Agreement, (ii) the consummation of the Merger,
(iii) the consummation of any
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other transaction contemplated by the Merger Agreement or (iv) any filing
made with the Securities and Exchange Commission by any party to the Merger
Agreement (or any Affiliate or Associate thereof) in connection with the
transactions contemplated by the Merger Agreement."
B. AMENDMENT TO SECTION 2.3. Section 2.3 of the Rights Agreement is amended
to add the following sentence at the end thereof as a new Section 2.3(h):
" (h) Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedies or
claims under this Agreement by virtue of any or all of the following: (i)
the approval, execution, delivery or performance of the Merger Agreement,
(ii) the consummation of the Merger, (iii) the consummation of any other
transaction contemplated by the Merger Agreement or (iv) any filing made
with the Securities and Exchange Commission by any party to the Merger
Agreement (or any Affiliate or Associate thereof) in connection with the
transactions contemplated by the Merger Agreement."
C. EFFECTIVE DATE OF AMENDMENT. This Amendment shall be deemed effective as
of the date first written above, as if executed on such date.
D. EFFECT OF AMENDMENT. Except as expressly set forth herein, the Rights
Agreement shall not by implication or otherwise be supplemented or amended by
virtue of this Amendment, but shall remain in full force and effect, as amended
hereby. This Amendment shall be construed in accordance with and as a part of
the Rights Agreement, and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Rights Agreement and each other
instrument or agreement referred to therein, except as herein amended, are
hereby ratified and confirmed.
E. WAIVER OF NOTICE. The Rights Agent and the Company hereby waive any
notice requirement with respect to each other under the Rights Agreement, if
any, pertaining to the matters covered by this Amendment.
F. SEVERABILITY. If any term, provision, covenant or restriction of this
Amendment 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 Amendment shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
G. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflict of laws of such state.
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H. COUNTERPARTS. 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.
I. DESCRIPTIVE HEADINGS. Descriptive headings of the several Sections of
this Amendment are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
CHARTER ONE FINANCIAL, INC.
By: /s/ Robert J. Vana
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Name: Robert J. Vana
Title: Senior Vice President,
Chief Corporate Counsel and
Corporate Secretary
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Dennis V. Moccia
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Name: Dennis V. Moccia
Title: Managing Director
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