EXHIBIT 4.1
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT (the "Amendment"), dated as of May 31, 1999, to the
Rights Agreement, dated as of July 16, 1998 (the "Rights Agreement"),
between FIRST AMERICAN CORPORATION, a Tennessee corporation (the
"Company"), and FIRST CHICAGO TRUST COMPANY OF NEW YORK, as Rights Agent
(the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement.
WHEREAS, AmSouth Bancorporation, a Delaware corporation
("AmSouth") and the Company contemplate entering into an Agreement and
Plan of Merger (the "Merger Agreement") pursuant to which a wholly-owned
subsidiary of AmSouth will merge with and into the Company (the "Merger").
The Board of Directors of the Company has approved the Merger Agreement.
WHEREAS, in connection with the Merger Agreement, AmSouth and
the Company contemplate entering into a stock option agreement (the "Stock
Option Agreement") pursuant to which the Company will grant to AmSouth an
option to purchase shares of the Company's common stock, par value $2.50
per share, on the terms and subject to the conditions set forth in the
Stock Option Agreement. The Board of Directors of the Company has approved
the Stock Option Agreement.
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Company and the Rights Agent may from time to time supplement and amend
the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined
that an amendment to the Rights Agreement as set forth herein is necessary
and desirable in connection with the foregoing and the Company and the
Rights Agent desire to evidence such amendment in writing.
WHEREAS, all acts and things necessary to make this Amendment
a valid agreement, enforceable according to its terms have been done and
performed, and the execution and delivery of this Amendment by the Company
and the Rights Agent have been in all respects duly authorized by the
Company and the Rights Agent.
Accordingly, the parties agree as follows:
A. Amendment of Section 1.1. Section 1 of the Rights Agreement
is supplemented to add the following definitions in the appropriate
locations:
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"AmSouth" shall mean AmSouth Bancorporation, a Delaware
corporation.
"Merger" shall have the meaning set forth in the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of May 31, 1999, by and among AmSouth, First
American and a wholly-owned subsidiary of AmSouth, as it may be
amended from time to time.
"Stock Option Agreement" shall mean the First American Stock
Option Agreement, as such term is defined in the Merger Agreement.
B. Amendment of the definitions of "Acquiring Person" and
"Adverse Person". The definition of "Acquiring Person" in Section 1 of the
Rights Agreement is amended by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither AmSouth nor Merger Sub shall be deemed to be an
Acquiring Person by virtue of (i) the execution of the Merger
Agreement or the Stock Option Agreement, (ii) the consummation of
the Merger or (iii) the consummation of any other transaction
contemplated in the Merger Agreement or the Stock Option Agreement."
The definition of "Adverse Person" in Section 1 of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither AmSouth nor Merger Sub shall be deemed to be an
Adverse Person by virtue of (i) the execution of the Merger
Agreement or the Stock Option Agreement, (ii) the consummation of
the Merger or (iii) the consummation of any other transaction
contemplated in the Merger Agreement or the Stock Option Agreement."
C. Amendment of the definition of "Stock Acquisition Date".
The definition of "Stock Acquisition Date" in Section 1 of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Stock Acquisition Date shall not be deemed to have
occurred as the result of (i) the execution of the Merger Agreement
or the Stock Option Agreement, (ii) the
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consummation of the Merger, or (iii) the consummation of any other
transaction contemplated in the Merger Agreement or the Stock Option
Agreement."
D. Amendment of definition of "Final Expiration Date". The
definition of "Final Expiration Date" in Section 1 of the Rights Agreement
is amended and restated to read in its entirety as follows:
"Final Expiration Date" shall mean the earlier of (i) the
close of business on December 31, 2008, unless extended by the Board
of Directors of the Company as provided in Section 7 hereof and (ii)
immediately prior to the consummation of the Merger.
E. Amendment of definition of "Section 11(a)(ii) Event". The
definition of "Section 11(a)(ii) Event" in Section 1 of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, none of (i) the execution of the Merger Agreement and the
Stock Option Agreement, (ii) the consummation of the Merger or (iii)
the consummation of any other transaction contemplated in the Merger
Agreement or the Stock Option Agreement shall be deemed to be an
event of the type described in clause (A) or (B) of Section 11(a)(ii)
and shall not cause the Rights to be adjusted or exercisable in
accordance with Section 11."
F. Amendment of Section 3(a). Section 3(a) of the Rights
Agreement is amended to add the following sentence at the end thereof:
"Nothing in this Rights Agreement shall be construed to give
any holder of Rights or any other Person any legal or equitable
rights, remedies or claims under this Rights Agreement by virtue of
the execution of the Merger Agreement or the Stock Option Agreement
or by virtue of any of the transactions contemplated by the Merger
Agreement or the Stock Option Agreement."
G. Effectiveness. This Amendment shall be deemed effective as
of the date first written above, as if executed on such date. Except as
amended hereby, the Rights Agreement shall remain in full force and effect
and shall be otherwise unaffected hereby.
H. Miscellaneous. This Amendment shall be deemed to be a
contract made under the laws of the State of Tennessee and for all
purposes shall be governed by and construed in accordance with the laws of
such state applicable to contracts to be made
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and performed entirely within such state. This Amendment may be executed
in any number of counterparts, each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. If any provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Amendment shall remain in full force and effect and shall in no way be
effected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above
written.
Attest: FIRST AMERICAN
By: /s/ Pamela R. Welch By: /s/ Dennis C. Bottorff
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Name: Pamela R. Welch Name: Dennis C. Bottorff
Title: Assistant Secretary Title: Chairman, Chief
Executive Officer and
President
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: /s/ Thomas A. Ferrari By: /s/ John G. Herr
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Name: Thomas A. Ferrari Name: John G. Herr
Title: Vice President Title: Assistant Vice
President
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