Exhibit 4
NORWALK SAVINGS SOCIETY
and
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C.
as Rights Agent
RIGHTS AGREEMENT
Dated as of May 10, 1996
INDEX
Page
Section 1. Certain Definitions
Section 2. Appointment of Rights Agent
Section 3. Issue of Right Certificates
Section 4. Form of Right Certificates
Section 5. Countersignature and registration
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates
Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights
Section 8. Cancellation and Destruction of Right Certificates
Section 9. Reservation and Availability of Capital 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. Fractional Rights and Fractional Shares
Section 15. Rights of Action
Section 16. Agreement of Right Holders
Section 17. Right Certificate Holder Not Deemed a Stockholder
Section 18. Concerning the Rights Agent
Section 19. Merger or Consolidation or Change of Name of Rights
Agent
Section 20. Duties of Rights Agent
Section 21. Change of Rights Agent
Section 22. Issuance of New Right Certificates
Section 23. Redemption
Section 24. Notice of Proposed Actions
Section 25. Notices
Section 26. Supplements and Amendments
Section 27. Successors
Section 28. Determinations and Actions by the Board of
Directors, etc
Section 29. Benefits of This Agreement
Section 30. Severability
Section 31. Governing Law
Section 32. Counterparts
Section 33. Descriptive Headings
Testimonium and Signatures
Exhibit A - Form of Amendment to Articles of Incorporation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
RIGHTS AGREEMENT
This Rights Agreement dated as of May 10, 1996, between
NORWALK SAVINGS SOCIETY, a Connecticut-chartered capital stock
savings bank (the "Bank"), and CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C., as Rights Agent (the "Rights Agent"),
W I T N E S S E T H:
WHEREAS, on May 10, 1996 the Bank declared a dividend
distribution of one Right (hereafter referred to as a "Right") for
each outstanding share of the Common Stock, par value $.01 per
share, of the Bank (the "Common Stock") outstanding at the close of
business on May 28, 1996 (hereinafter referred to as the "Record
Date") (other than shares of such Common Stock held in the Bank's
treasury on such date) and has authorized the issuance of one Right
(as such number may hereafter be adjusted pursuant to the
provisions of Section 11(p) hereof) in respect of each share of
Common Stock of the Bank that shall become outstanding after the
Record Date (whether originally issued or delivered from the Bank's
treasury) and on or prior to the earlier of the Distribution Date
and the Expiration Date (as such terms are hereinafter defined),
each Right representing the right to purchase one one-hundredth of
a share of the Bank's Series A Junior Participating Preferred Stock
upon the terms and subject to the conditions hereinafter set forth
(the "Rights");
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated;
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all
Affiliates (as hereinafter defined) and Associates (as
hereinafter defined) of such Person, shall be the Beneficial
Owner (as hereinafter defined) of 10% or more of the shares of
Common Stock then outstanding, but shall not include the Bank,
any Subsidiary (as hereinafter defined) of the Bank, any
employee benefit plan of the Bank or any Subsidiary of the
Bank, or any entity (including its Affiliates) organized,
appointed or established for or pursuant to the terms of any
such plan acting solely in its capacity (or their capacities)
under such plan. Notwithstanding the foregoing, no Person
shall become an "Acquiring Person" solely as the result of an
acquisition of Common Stock by the Bank which, by reducing the
number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 10% or
more of the shares of Common Stock then outstanding; provided
however, that if a Person becomes the Beneficial Owner of 10%
or more of the shares of Common Stock then outstanding by
reason of share acquisitions by the Bank and shall, after such
acquisitions, become the Beneficial Owner of any additional
shares of Common Stock, then such Person shall be deemed to be
an "Acquiring Person."
(b) "Affiliate", "Associate" and "Control" 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 hereof.
(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, directly or indirectly,
beneficially owns (as determined pursuant to Rule 13d-3
of the General Rules and Regulations under the Exchange
Act as in effect on the date of this Agreement) or has
the right to dispose of;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has (A)
the right to acquire (whether such right is exercisable
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 the 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 or on behalf of
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,
including 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) as a result of an
agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding
(1) arises solely from a revocable proxy or consent given
in response to a public proxy or consent solicitation
made pursuant to, and in accordance with, the applicable
rules and regulations under 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)
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 voting securities of the Bank.
(d) "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in
the State of Connecticut 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., Eastern time, on such date; provided, however, that
if such date is not a Business Day it shall mean 5:00 P.M.,
Eastern time, on the next succeeding Business Day.
(f) "Common Stock" shall mean the Common Stock, par
value $.01 per share, of the Bank, except that "Common Stock"
when used with reference to any Person other than the Bank
shall mean the capital stock of such Person with the greatest
voting power, or the equity securities or other equity
interest having power to control or direct the management, of
such Person.
(g) "Common Stock Equivalent" shall mean a share, or
depositary receipt exchangeable for a fraction of a share, of
any authorized class or series of preferred stock of the Bank
having dividend, voting, liquidation and other rights which
result, in the judgment of the Board of Directors, in such
share, or depositary receipt, being approximately equivalent
in value to one share of Common Stock as of the date of
occurrence of a Section 11 (a) (ii) Event (as such term is
hereinafter defined) (the "Event Date"); provided, however,
that, if there is no authorized class or series of preferred
stock of the Bank or if in the judgment of the Board of
Directors there are not sufficient authorized but unissued
shares of preferred stock available for the creation of Common
Stock Equivalents, "Common Stock Equivalent" shall mean such
cash, reduction in Purchase Price (as such term is hereinafter
defined), other equity securities, debt securities, other
assets or any combination of the foregoing, that the Board of
Directors shall determine to be approximately equivalent in
value to one share of Common Stock as of the Event Date.
(h) "Continuing Director" shall mean (i) any member of
the Board of Directors of the Bank, while such Person is a
member of the Board, who is not an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or a
representative or nominee of an Acquiring Person or of any
such Affiliate or Associate and was a member of the Board
prior to the time any Person becomes an Acquiring Person, and
(ii) any Person who subsequently becomes a member of the
Board, while such Person is a member of the Board, who is not
an Acquiring Person or an Affiliate or Associate of an
Acquiring Person or a representative or nominee of an
Acquiring Person or of any such Affiliate or Associate, if
such Person's nomination for election or election to the Board
is recommended or approved by a majority of the Continuing
Directors.
(i) "Distribution Date" shall have the meaning defined
in Section 3 hereof.
(j) "Exchange" and "Exchange Ratio" shall have the
respective meanings defined in Section 25 hereof.
(k) "Exchange Date" shall have the meaning defined in
Section 7(a) hereof.
(l) "Expiration Date" shall have the meaning defined in
Section 7(a), hereof.
(m) "Person" shall mean any individual, firm, limited
liability company, corporation, partnership or other entity.
(n) "Preferred Shares" shall mean shares of Series A
Junior Participating Preferred Stock, par value $.01 per
share, of the Bank having the rights and preferences set forth
in the Form of Amendment to Articles of Incorporation attached
to this Agreement as Exhibit A.
(o) "Purchase Price" shall have the meaning defined in
Section 4 hereof.
(p) "Section 11(a) (ii) Event" shall mean the event
described in Section 11(a) (ii).
(q) "Stock Acquisition Date" shall mean the first date
of public announcement (which, for purposes of this
definition, shall include, without limitation, the filing of
a report pursuant to Section 13(d) under the Exchange Act or
pursuant to a comparable successor statute) by the Bank or an
Acquiring Person indicating that an Acquiring Person has
become such.
(r) "Subsidiary" of any Person shall mean any other
Person of which securities or other ownership interests having
ordinary voting power, in the absence of contingencies, to
elect a majority of the board of directors or other Persons
performing similar functions as a board of directors are at
the time directly or indirectly owned by such first Person, or
which is otherwise controlled by such first Person.
(s) "Trading Day" shall have the meaning defined in
Section 11(d) hereof.
(t) "Triggering Event" shall mean any Section 11(a) (ii)
Event or any event described in Sections 13(a)(i), (ii) or
(iii) hereof.
Section 2. Appointment of Rights Agent. The Bank hereby
appoints the Rights Agent to act as agent for the Bank in
accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Bank may from time to
time appoint such Co-Rights Agents as it may deem necessary or
desirable. In the event the Bank appoints one or more Co-Rights
Agents, the respective duties of the Rights Agent and any Co-Rights
Agents shall be as the Bank shall determine.
Section 3. Issue of Right Certificates.
(a) Until the earliest of (i) the close of business on
the tenth day after the Stock Acquisition Date (or, if the
tenth business day after the Stock Acquisition Date occurs
before the Record Date, the close of business on the Record
Date); or (ii) the close of business on the tenth Business Day
after the date of the commencement of a tender or exchange
offer by any Person if, upon consummation thereof, such Person
would be an Acquiring Person (including any such date which is
after the date of this Agreement and prior to the issuance of
the Rights; or (iii) the tenth day (or such later day as may
be determined by action of the Board of Directors of the Bank
prior to such time as any person becomes an Acquiring Person)
after the filing by any Person (other than the Bank) of a
registration statement under the Securities Act of 1933, as
amended, with respect to a contemplated exchange offer to
acquire (when added to any shares as to which such person is
the beneficial owner immediately prior to such filing)
beneficial ownership of 10% or more of the issued and
outstanding shares of Common Stock; the earliest 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 the
Common Stock registered in the names of the holders of the
Common Stock (which certificates for Common Stock shall be
deemed also to be Right Certificates) and not by separate
Right Certificates, and (y) the Rights will be transferable
only in connection with the transfer of the underlying shares
of Common Stock. As soon as practicable after the Bank has
notified the Rights Agent of the occurrence of the
Distribution Date, the Rights Agent will send, 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 Bank, one or more right certificates, in substantially the
form of Exhibit B hereto (the "Right Certificates"),
evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided herein. In the event that
an adjustment in the number of Rights per share of Common
Stock has been made pursuant to Section 11(p) hereof, at the
time of distribution of the Right Certificates, the Bank shall
make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that the Right
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights.
As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) As soon as practicable after the Record Date, the
Bank will send a copy of a Summary of Rights to Purchase
Preferred Shares, in substantially the form of Exhibit C
hereto (the "Summary of Rights"), by first-class, postage
prepaid mail, to each record holder of the Common Stock as of
the close of business on the Record Date at the address of
such holder shown on the records of the Bank. With respect to
certificates for the Common Stock outstanding as of the Record
Date, until the Distribution Date (or the earlier redemption,
exchange or expiration of the Rights), the Rights will be
evidenced by such certificates for the Common Stock registered
in the names of the holders of the Common Stock together with
a copy of the Summary of Rights, and the registered holders of
the Common Stock shall also be registered holders of the
associated Rights. Until the Distribution Date (or the earlier
redemption, exchange or expiration of the Rights), the
transfer of any of the certificates for the Common Stock
outstanding as of the Record Date with or without a copy of
the Summary of Rights attached thereto, shall also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificates.
(c) Rights shall be issued in respect of all shares of
Common Stock which become outstanding after the Record Date
but on or prior to the Distribution Date (or the earlier
redemption, exchange or expiration of the Rights).
Certificates representative of such shares of Common Stock
shall be deemed also to be certificates for Rights and shall
have impressed on, printed on, written on or otherwise affixed
to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Rights
Agreement between Norwalk Savings Society (the "Bank")
and Chemical Mellon Shareholder Services, L.L.C. dated as
of May 10, 1996 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive
offices of the Bank. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be
evidenced by this certificate. The Bank will mail to the
holder of this certificate a copy of the Rights Agreement
without charge promptly after receipt of a written
request therefor. As described in the Rights Agreement,
Rights beneficially owned by (i) an Acquiring Person or
any Associate or Affiliate thereof (as such terms are
defined in the Rights Agreement), (ii) a transferee of an
Acquiring Person (or of any such Affiliate) who becomes
a transferee after the Acquiring Person becomes such is
designated as such or (iii) under certain circumstances,
a transferee of an Acquiring Person (or of any such
Affiliate) who becomes a transferee before or
concurrently with the Acquiring Person becoming such,
shall become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date (or the earlier redemption,
exchange or expiration of the Rights) the Rights associated with
the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the transfer of any of
such certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
(d) Effective on or before the Distribution Date, the Board
of Directors of the Bank shall, pursuant to the provisions of
Connecticut General Statutes 33-341(c) and 33-360(b), cause the
Articles of Incorporation of the Bank to be amended to include the
provisions related to the Preferred Shares as set forth in the Form
of Amendment to Articles of Incorporation attached hereto as
Exhibit A and made a part hereof.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase and of
assignment to be printed on the reverse thereof) shall be
substantially in the form of Exhibit B hereto and may have such
marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Bank 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, rule or
regulation or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to conform to
usage. Subject to the provisions of Section 11 and Section 22
hereof, the Right 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 one one-hundredths of a
Preferred Share as shall be set forth therein at the price per one
one-hundredths of a Preferred Share set forth therein (such
exercise price per one one-hundredth of a share, the "Purchase
Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be
subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf
of the Bank by its Chairman of the Board, its President or any
Vice President, either manually or by facsimile signature, and
shall have affixed thereto the Bank's seal or a facsimile
thereof which shall be attested by the Secretary or an
Assistant Secretary of the Bank, either manually or by
facsimile signature. The Right Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of
the Bank whose manual or facsimile signature is affixed to the
Right Certificates shall cease to be such officer of the Bank
before countersignature by the Rights Agent and issuance and
delivery by the Bank, such Right Certificates, nevertheless,
may be countersigned by the Rights Agent, issued and delivered
with the same force and effect as though the Person who signed
such Right Certificates had not ceased to be such officer of
the Bank. Any Right Certificate may be signed on behalf of
the Bank by any Person who, at the actual date of the
execution of such Right Certificate, shall be a proper officer
of the Bank to sign such Right Certificate, although at the
date of the execution of this Rights Agreement any such Person
was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its principal office or
offices designated as the appropriate place for surrender of
Right Certificates upon exercise or transfer, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of
the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right
Certificates, the certificate number of each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates.
(a) Subject to the provisions of Section 7(e) and
Section 14 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 Right Certificate or
Right Certificates (other than Right Certificates representing
Rights that have become void pursuant to Section 11(a)(ii)
hereof) may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the registered holder to purchase a like number of shares of
Common Stock (or, following a Triggering Event, Common Stock,
other securities, cash or assets, as the case may be) as the
Right Certificate or Right Certificates surrendered then
entitled such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Right Certificate
or Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Right Certificate
or Right Certificates to be transferred, split up, combined or
exchanged at the principal office or offices of the Rights
Agent designated for such purpose. Neither the Rights Agent
nor the Bank shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Right
Certificate until the registered holder shall have completed
and signed the certificate contained in the form of assignment
on the reverse side of such Right Certificate and shall have
provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Bank shall reasonably request.
Thereupon the Rights Agent shall, subject to Section 7(e) and
Section 14 hereof, countersign and deliver to the Person
entitled thereto a Right Certificate or Right Certificates, as
the case may be, as so requested. The Bank 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 Right Certificates.
(b) Upon receipt by the Bank and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and, at the Bank's request,
reimbursement to the Bank and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to
the Rights Agent and cancellation of the Right Certificate if
mutilated, the Bank will make and deliver a new Right
Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu
of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration of
Rights.
(a) The Rights shall not be exercisable prior to the
Distribution Date. Subject to Section 7(e) hereof, the
registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a) (iii)
and Section 23(a) hereof) 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 and the
certificate on the reverse side thereof duly executed, to the
Rights Agent at the principal office or offices of the Rights
Agent designated for such purpose, together with payment of
the aggregate Purchase Price with respect to the total number
of one one-hundredths of a Preferred Share (or other
securities or property, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the
earliest of (i) the close of business on May 27, 2006 (the
"Final Expiration Date"), (ii) the time at which the Rights
are redeemed as provided in Section 23 hereof or (iii) the
time at which the Rights are exchanged as provided in Section
24 hereof (the "Exchange Date") (the earliest of (i), (ii) and
(iii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredths of a
Preferred Share purchasable pursuant to the exercise of a
Right shall initially be $40.00, shall be subject to
adjustment from time to time as provided in Section 11 and
Section 13(a) 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 Right Certificate representing
exercisable Rights, with the form of election to purchase and
the certificate duly executed, accompanied by payment, with
respect to each Right so exercised, of the Purchase Price per
one one-hundredths of a Preferred Share (or other shares,
securities or property, as the case may be) to be purchased,
and an amount equal to any applicable transfer tax, in cash,
or in the form of a certified check or money order payable to
the order of the Bank, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i) requisition from
any transfer agent of the Preferred Shares (or make available,
if the Rights Agent is the transfer agent therefor)
certificates for the total number of Preferred Shares to be
purchased and the Bank hereby irrevocably authorizes its
transfer agent to comply with all such requests, (ii)
requisition from the Bank the amount of cash, if any, to be
paid in lieu of issuance of fractional shares in accordance
with Section 14 hereof, (iii) promptly after receipt of such
certificates cause the same to be delivered to or upon the
order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such
holder and (iv) after receipt thereof, promptly deliver such
cash, if any, to or upon the order of the registered holder of
such Right Certificate. In the event that the Bank is
obligated to issue other securities of the Bank, pay cash
and/or distribute other property pursuant to Section 11(a)
hereof, the Bank will make all arrangements necessary so that
such other securities, cash and/or other property are
available for distribution by the Rights Agent, if and when
appropriate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to, or upon the order of, the
registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder,
subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any
such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the
Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person (or from any such
Associate or Affiliate) to holders of equity interests in such
Acquiring Person (or in any such Associate or Affiliate) or to
any Person with whom the Acquiring Person (or any such
Associate or Affiliate) has any continuing agreement,
arrangement or understanding regarding the transferred Rights
or (B) a transfer which the Board of Directors of the Bank has
determined (whether before or after such transfer) is part of
a plan, arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7(e), shall
become null and void without any further action and no holder
of such Rights shall have any rights whatsoever with respect
to such Rights, whether under any provision of this Agreement
or otherwise. No Right Certificate shall be issued pursuant
to Section 3 hereof that represents Rights beneficially owned
by an Acquiring Person or any Associate or Affiliate thereof
and no Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person or any Affiliate
or Associate thereof or to any nominee of such Acquiring
Person, Associate or Affiliate. Any Right Certificate
delivered to the Rights Agent for transfer to any of the
foregoing Persons, or which represents void Rights, shall be
canceled. The Bank shall use all reasonable efforts to insure
that the provisions of this Section 7(e) are complied with,
but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure to
make any determinations with respect to an Acquiring Person or
its Affiliates and Associates or any transferee of any of them
hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Bank shall be
obligated to undertake any action with respect to a registered
holder of Rights upon the occurrence of any purported transfer
as set forth in Section 6 hereof or exercise as set forth in
this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the
Right Certificate surrendered for such exercise and (ii)
provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Bank shall reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Bank or to any of its agents, be delivered to
the Rights Agent for cancellation or in canceled form, or, if
surrendered to the Rights Agent, shall be canceled by it, and no
Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement.
The Bank shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any
other Right Certificate purchased or acquired by the Bank otherwise
than upon the exercise thereof. The Rights Agent shall deliver all
canceled Right Certificates to the Bank, or shall, at the written
request of the Bank, destroy such canceled Right Certificates, and
in such case shall deliver a certificate of destruction thereof to
the Bank.
Section 9. Reservation and Availability of Capital Stock.
(a) The Bank covenants and agrees that it will cause to
be reserved and kept available out of its currently authorized
and unissued Preferred Shares (or other shares or securities,
as the case may be) the number of Preferred Shares (or other
shares or securities, as the case may be) that, as provided in
this Agreement, including Section 11(a) (iii) hereof, will be
sufficient to permit to the maximum extent possible the
exercise of all outstanding Rights.
(b) So long as the Preferred Shares (or other shares or
securities, as the case may be) issuable and deliverable upon
the exercise of Rights may be listed on any national
securities exchange, the Bank shall use its best efforts to
cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be
listed on such exchange upon official notice of issuance upon
such exercise.
(c) The Bank shall use its best efforts, if necessary,
to (i) file, as soon as practicable following the earliest
date after the occurrence of a Section 11(a)(ii) Event as of
which the consideration to be delivered by the Bank upon
exercise of the Rights has been determined in accordance with
Section 11(a)(ii) or Section 11(a)(iii) hereof, or as soon as
is required by law following the Distribution Date, as the
case may be, a registration statement under the Securities Act
of 1933, as amended (the "Act"), with respect to the
securities purchasable upon exercise of the Rights on an
appropriate form, (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) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities and (B)
the Expiration Date. The Bank will also take such action as
may be appropriate under, or to ensure compliance with, the
securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The Bank
may temporarily suspend, for a period of time not to exceed 90
days after the date set forth in clause (i) of the first
sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such
suspension, the Bank shall issue a public announcement stating
that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as
the suspension is no longer in effect. Notwithstanding any
such provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite
qualification in such jurisdiction shall not have been
obtained, the exercise thereof shall not be permitted under
applicable law or a registration statement shall not have been
declared effective. Nothing herein shall require the Bank to
bear the expense of obtaining registration if the cost of such
registration in a particular jurisdiction presents an
unreasonable burden on the Bank under the circumstances.
(d) The Bank covenants and agrees that it will take all
such action as may be necessary to insure that all Preferred
Shares (or other shares or securities, as the case may be)
delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable.
(e) The Bank 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 Right Certificates and of any
certificates for Preferred Shares (or other shares or
securities) upon the exercise of Rights. The Bank shall not,
however, be required to pay any transfer tax which may be
payable in respect of any transfer involved in the transfer or
delivery of Right Certificates to a Person other than, or the
issuance or delivery of Preferred Shares (or other shares or
securities) in respect of a name other than that of, the
registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or deliver any
certificates for Preferred Shares (or other shares or
securities) in a name other than that of the registered holder
upon the exercise of any Rights until any such tax shall have
been paid (any such tax being payable by the holder of such
Right Certificate at the time of surrender) or until it has
been established to the Bank's satisfaction that no such tax
is due.
Section 10. Preferred Shares Record Date. Each Person in
whose name any certificate for a Preferred Share (or other shares
or securities) is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of such
Preferred Shares (or other shares or securities) represented
thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable
transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the Preferred
Shares or other appropriate transfer books of the Bank 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 Preferred Shares or other
appropriate transfer books of the Bank are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Right
Certificate shall not be entitled to any rights of a stockholder of
the Bank 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 Bank, except as provided herein.
Section 11. Adjustment of Purchase Price. Number and Kind of
Shares or Number of Rights. The Purchase Price, the number and
kind 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 Bank shall at any time after
the date of this Agreement (A) declare a dividend on the
Preferred Shares payable in Preferred Shares, (B)
subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of
shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any
such reclassification in connection with a consolidation
or merger in which the Bank is the continuing or
surviving corporation) except as otherwise provided in
this Section 11(a) and Section 7(e) hereof, 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 Preferred Shares or capital stock, as the
case may be, issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive,
upon payment of the Purchase Price then in effect, the
aggregate number and kind of Preferred Shares or capital
stock, as the case may be, which, if such Right had been
exercised immediately prior to such date and at a time
when the Preferred Shares transfer books of the Bank were
open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend,
subdivision, combination or reclassification.
(ii) In the event that any Person, alone or together
with its Affiliates and Associates or otherwise, shall
become an Acquiring Person, then proper provision shall
promptly be made so that each holder of a Right, except
as provided below and in Section 7(e) hereof, shall
thereafter have a right to receive, upon exercise thereof
at the then current Purchase Price multiplied by the
number of one one-hundredths of a Preferred Share for
which a Right is then exercisable, in accordance with the
terms of this Agreement, such number of shares of Common
Stock of the Bank as shall equal the result obtained by
(x) multiplying the then current Purchase Price by the
number of one one-hundredths of a Preferred Share for
which a Right is then exercisable and (y) dividing that
product by 25% of the current market price per share of
the Common Stock (determined pursuant to Section 11(d))
on the date of the occurrence of the Section 11(a) (ii)
Event.
(iii) In the event that the number of shares of
Common Stock which are authorized by the Bank's
certificate of incorporation but not outstanding or
reserved for issuance for purposes other than upon
exercise of the Rights is not sufficient to permit the
exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) of this Section 11(a), proper
provision shall promptly be made so that each holder of
a Right, except as provided in Section 7(e) hereof,
shall, in the discretion of the Bank's Board of
Directors, thereafter have a right to receive, upon
exercise thereof in accordance with the terms of this
Agreement such number of Common Stock Equivalents or the
maximum number of shares of Common Stock available for
issuance to such holder at a reduced Purchase Price which
reflects a per share Purchase Price of 25% of current
market value as determined pursuant to subparagraph (ii)
above.
(b) In case the Bank shall fix a record date for the
issuance of rights, options or warrants (other than the
Rights) to all holders of Preferred Shares entitling them to
subscribe for or purchase (for a period expiring within 45
calendar days after such record date) Preferred Shares (or
securities having the same rights, privileges and preferences
as the Preferred Shares ("equivalent Preferred Shares")) or
securities convertible into Common Stock or equivalent
Preferred Shares at a price per share of Preferred Shares or
per share of equivalent Preferred Shares (or having a
conversion or exercise price per share, if a security
convertible into or exercisable for Preferred Shares or
equivalent preferred shares) less than the current market
price (as determined pursuant to Section 11(d) hereof) per
share of Preferred Shares 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 date by a fraction, the numerator of
which shall be the number of Preferred Shares outstanding on
such record date, plus the number of Preferred Shares which
the aggregate offering price of the total number of Preferred
Shares and/or equivalent preferred shares so 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 Preferred Shares outstanding on such record
date plus the number of additional Preferred Shares and/or
equivalent preferred shares 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 by delivery of consideration part or all of
which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the
Board of Directors of the Bank, whose determination shall be
described in a statement filed with the Rights Agent and shall
be binding on the Rights Agent and the holders of Rights.
Preferred Shares owned by or held for the account of the Bank
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) In case the Bank shall fix a record date for the
making of a distribution to all holders of Preferred Shares
(including any such distribution made in connection with a
consolidation or merger in which the Bank is the continuing or
surviving corporation) of evidences of indebtedness, cash
(other than a regular periodic cash dividend out of the
earnings or retained earnings of the Bank), assets (other than
a dividend payable in Preferred Shares, but including any
dividend payable in stock other than Preferred Shares) or
convertible securities, subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), 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
determined pursuant to Section 11(d) hereof) per share of
Preferred Shares on such record date, less the fair market
value (as determined in good faith by the Board of Directors
of the Bank, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on
the Rights Agent and the holders of Rights) of the portion of
the cash, assets or evidences of indebtedness so to be
distributed or of such convertible securities, subscription
rights or warrants applicable to one Preferred Share and the
denominator of which shall be such current market price (as
determined pursuant to Section 11(d) hereof) per Preferred
Share. 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 then be in
effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, the
"current market price" per share of any security of the Bank
(a "Security") on any date shall be deemed to be the average
of the daily closing prices per share of such Security 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 market price per share of
the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend
or distribution on such Security payable in shares of such
Security or securities convertible into shares of such
Security (other than the Rights), or (B) any subdivision,
combination or reclassification of such Security, and prior to
the expiration of the requisite 30 Trading Day period, as set
forth above, 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
by the National Association of Securities Dealers, Inc.
Automated Quotation System National Market ("NASDAQ") or such
other exchange or system on which the Security is then listed
or quoted, or, if on any such date the Security is not quoted
by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker
making a market in the Security selected by the Board of
Directors of the Bank. If on any such date no market maker is
making a market in the Security, the fair value of such
Security on such date as determined in good faith by the Board
of Directors of the Bank shall be used. The term "Trading Day"
shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to
trading or traded is open for the transaction of business or,
if the shares of the Security are not listed or admitted to
trading on any national securities exchange, a Business Day.
If the Security is not publicly held or not so listed or
traded, "current market price" per share shall mean the fair
value per share as determined in good faith by the Board of
Directors of the Bank, or, if at the time of such
determination there is an Acquiring Person, by a majority of
the Continuing Directors then in office, or if there are no
Continuing Directors, by a nationally recognized investment
banking firm selected by the Board of Directors, which
determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.
(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 one millionth of a Preferred Share or ten-thousandth
of any other share or security, 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) three years from the date of the
transaction which mandates such adjustment or (ii) the
Expiration Date.
(f) In the event that at any time, as a result of an
adjustment made pursuant to Section 11(a) (ii), Section 11(a)
(iii) or Section 13(a) hereof, the holder of any Right shall
be entitled to receive upon exercise of such Right any shares
of capital stock other than Preferred Shares, thereafter the
number of such other shares so receivable upon exercise of any
Right and the Purchase Price thereof 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 Common Stock contained in Section 11(a), (b),
(c), (e), (g), (h), (i), (j), (k), (l) and (m) and the
provisions of Sections 6, 7, 9, 10, 13 and 14 with respect to
the Preferred Shares shall apply on like terms to any such
other shares.
(g) All Rights originally issued by the Bank subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase
Price, the number of one one-hundredths of a Preferred Share
purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Bank 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
one one-hundredths of a Preferred Share (calculated to the
nearest one millionth) obtained by (i) multiplying (x) the
number of one one-hundredths of a Preferred Share 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 Bank may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of one one-
hundredths of a Preferred Share purchasable upon the exercise
of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for
the number of one one-hundredths of a Preferred Share for
which such 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 Bank 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 Right Certificates have been issued, shall be at
least 10 days later than the date of the public announcement.
If Right Certificates have been issued, upon each adjustment
of the number of Rights pursuant to this Section 11(i), the
Bank shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section
14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option
of the Bank, shall cause to be distributed to such holders of
record in substitution and replacement for the Right
Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the
Bank, new Right Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment.
Right 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 Bank, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Right 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 Preferred Shares (or other
shares or securities, as the case may be) issuable upon the
exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price
and the number of shares which were expressed in the initial
Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below one one-hundredth
of the then par value, if any, of the Preferred Shares
issuable upon exercise of the Rights, the Bank shall take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Bank may validly and legally issue
fully paid and nonassessable Preferred Shares at such adjusted
Purchase Price.
(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 Bank may elect to
defer until the occurrence of such event the issuance to the
holder of any Right exercised after such record date of the
Preferred Shares and other capital stock or securities of the
Bank, if any, issuable upon such exercise over and above the
Preferred Shares and other capital stock or securities of the
Bank, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided
however, that the Bank 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 in this Section 11 to the contrary
notwithstanding, the Bank 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 Preferred Shares, issuance wholly for cash of any
Preferred Shares at less than the current market price,
issuance wholly for cash of Preferred Shares or securities
which by their terms are convertible into or exchangeable for
Preferred Shares, stock dividends or issuance of rights,
options or warrants referred to hereinabove in this Section
11, hereafter made by the Bank to the holders of its Preferred
Shares, shall not be taxable to such stockholders.
(n) The Bank covenants and agrees that it shall not at
any time after the earlier of the Stock Acquisition Date and
the Distribution Date (i) consolidate with, (ii) merge with or
into, or (iii) sell or transfer to, in one transaction or a
series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of
the Bank and its Subsidiaries taken as a whole, any other
Person or Persons if (x) at the time of or immediately after
such consolidation, merger or sale there are any rights,
warrants or other instruments outstanding or agreements or
arrangements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by
the Rights or (y) prior to, simultaneously with or immediately
after such consolidation, merger or sale, the stockholders of
a Person who constitutes, or would constitute, the "Principal
Party" for the purposes of Section 13(a) hereof shall have
received a distribution of Rights previously owned by such
Person or any of its Affiliates and Associates.
(o) The Bank covenants and agrees that after the earlier
of the Stock Acquisition Date and the Distribution Date it
will not, except as permitted by Section 23, Section 24 or
Section 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably
foreseeable that such action will substantially diminish or
otherwise eliminate the benefits intended to be afforded by
the Rights.
(p) Anything in this Agreement to the contrary
notwithstanding, in the event that the Bank shall at any time
after the date hereof and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, the number of
Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter but prior to
the Distribution Date, shall be proportionately adjusted so
that the number of Rights thereafter associated with each
share of Common Stock following any such event shall equal the
result obtained by multiplying the number of Rights associated
with each share of Common Stock immediately prior to such
event by a fraction the numerator of which shall be the total
number of shares of Common Stock outstanding immediately prior
to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such
event. The adjustments provided for in this Section 11(p)
shall be made successively when ever a dividend is declared or
paid or such a subdivision or combination is effected.
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 Bank 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 a Right Certificate (or, if prior to the Distribution
Date, to each holder of a certificate representing shares of Common
Stock) in accordance with Section 25 hereof. The Rights Agent
shall be fully protected in relying on any such certificate and on
any adjustment therein contained.
Section 13. Consolidation, Merger or Sale of Assets or
Earning Power.
(a) In the event that, following the earlier of the
Distribution Date and the Stock Acquisition Date, directly or
indirectly, (i) the Bank shall consolidate with, or merge with
and into, any other Person, and the Bank shall not be the
continuing or surviving corporation of such consolidation or
merger, (ii) any Person shall merge with and into the Bank,
and the Bank shall be the continuing or surviving corporation
of such merger and, in connection with such merger, all or
part of the Common Stock shall be changed into or exchanged
for stock or other securities of any other Person or cash or
any other property, or (iii) the Bank shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one transaction or a series of related
transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Bank and its
Subsidiaries (taken as a whole) to any other Person or
Persons, then, and in each such case, proper provision shall
be made so that: (w) each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the
right to receive, upon the exercise thereof at the then
current Purchase Price multiplied by the number of one one-
hundredths of a Preferred Share for which a Right is then
exercisable (without taking into account any adjustment
previously made pursuant to Section 11(a) (ii) or 11(a)
(iii)), in accordance with the terms of this Agreement and in
lieu of Preferred Shares, such number of validly authorized
and issued, fully paid and nonassessable shares of freely
tradeable Common Stock of the Principal Party (as hereinafter
defined), not subject to any rights of call or first refusal,
liens, encumbrances or other claims, as shall be equal to the
result obtained by (1) multiplying the then current Purchase
Price by the number of one one-hundredths of a Preferred Share
for which a Right is then exercisable (without taking into
account any adjustment previously made pursuant to Section
11(a) (ii) or 11(a)(iii)) and dividing that product by (2) 25%
of the current market price (determined pursuant to Section
11(d) (i) hereof) per share of the Common Stock of such
Principal Party on the date of consummation of such
consolidation, merger, sale or transfer; (x) the 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 Bank pursuant to this
Agreement; (y) the term "Bank" 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 (z) such Principal Party shall take such
steps (including, but not limited to, the authorization and
reservation of a sufficient number of shares of its Common
Stock to permit exercise of all outstanding Rights in
accordance with this Section 13(a)) 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 the shares of its Common Stock
thereafter deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean
(1) in the case of any transaction described in
clause (i) or (ii) of the first sentence of Section
13(a), the Person that is the issuer of any securities
into which shares of Common Stock of the Bank 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; and
(2) in the case of any transaction described in
clause (iii) of the first sentence of Section 13(a), 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, (x) 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 of another Person the Common Stock of
which is and has been so registered, "Principal Party"
shall refer to such other Person; and (y) in case such
Person is a Subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of
which are and have been so registered, "Principal Party"
shall refer to whichever of such Persons is the issuer of
the Common Stock having the greatest aggregate market
value.
(c) The Bank shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party shall have a sufficient number of authorized shares of
its Common Stock which have not been issued or reserved for
issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the
Bank and such Principal Party 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 or
sale of assets mentioned in paragraph (a) of this Section 13,
the Principal Party 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; and
(ii) will deliver to holders of the Rights historical
financial statements for the Principal Party and each of
its Affiliates which comply in all respects with the
requirements for registration on Form 10 under the
Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
If any event described in Section 13(a)(i), (ii) or (iii) shall
occur at any time after the occurrence of a Section 11(a) (ii)
Event, the Rights which have not theretofore been exercised shall
thereafter become exercisable in the manner described in Section
13(a).
Section 14. Fractional Rights and Fractional Shares.
(a) The Bank shall not issue fractions of Rights or
distribute Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid
to the registered holders of the Right 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 14(a), the current market value of a whole Right
shall be the closing price 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 quoted on NASDAQ 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 Bank. 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 in good faith by the
Board of Directors of the Bank shall be used and shall be
conclusive for all purposes.
(b) The Bank shall not issue fractions of Preferred
Shares, or of any other share or security, as the case may be,
upon exercise of the Rights or distribute certificates which
evidence fractions of Preferred Shares or of any other share
or security, as the case may be. In lieu of fractional
shares, the Bank shall pay to the registered holders of Right
Certificates at the time such Right Certificates are exercised
as herein provided an amount in cash equal to the same
fraction of the current market value of one Preferred Share or
of one share or security, as the case may be, issued in lieu
of a Preferred Share. For purposes of this Section 14(b), the
current market value of one share of Preferred Share or one
share or security, as the case may be, shall be the closing
price of a share of Preferred Share or one share or security,
as the case may be, (as determined pursuant to Section 11(d)
hereof) for the Trading Day immediately prior to the date of
such exercise.
(c) The holder of a Right by the acceptance of the
Rights expressly waives his right to receive any fractional
Rights or any fractional share upon exercise of Rights.
Section 15. Rights of Action. All rights of action in
respect of this Agreement are vested in the respective registered
holders of the Right Certificates (and, prior to the Distribution
Date, the registered holders of Common Stock); and any registered
holder of any Right 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 Right 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 Bank to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Right Certificate in the manner provided in such
Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Agreement and will
be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of the
obligations of, any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of a
Right by accepting the same consents and agrees with the Bank 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 Right Certificates
are transferable only on the registry books of the Rights
Agent if surrendered at the principal office or offices of the
Rights Agent designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and with the
appropriate certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Bank and the Rights Agent may deem and treat the Person in
whose name the Right 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 Right Certificates or the associated Common
Stock certificate made by anyone other than the Bank or the
Rights Agent) for all purposes whatsoever, and neither the
Bank nor the Rights Agent, subject to the last sentence of
Section 7(e) hereof, shall be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Bank 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 of
competent jurisdiction 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 such obligation; provided however, the Bank
must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose
the holder of the number of shares of Common Stock or any other
securities of the Bank which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to confer
upon the holder of any Right Certificate, as such, any of the
rights of a stockholder of the Bank 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), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Bank 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 Bank
also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred
without negligence, 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.
(b) The Rights Agent shall be protected and shall incur
no liability for or in respect of any action taken, suffered
or omitted by it in connection with its administration of this
Agreement in reliance upon any Right Certificate or
certificate for Common Stock or for other securities of the
Bank, 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.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding
to the corporate trust or stock transfer 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 21. In case at
the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Right
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 Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates
either in the name of the predecessor Rights Agent or in the
name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right
Certificates shall have been countersigned but not delivered,
the Rights Agent may adopt the countersignature under its
prior name and deliver Right Certificates so countersigned;
and in case at that time any of the Right Certificates shall
not have been countersigned, the Rights Agent may countersign
such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates
and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Bank), 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" and the
determination of "current market price") be proved or
established by the Bank 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, the President
or any Executive or Senior Vice President and by the Treasurer
or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Bank 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, 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 Right Certificates (except its
countersignature thereof) or be required to verify the same,
but all such statements and recitals are and shall be deemed
to have been made by the Bank 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 Right Certificate (except its
countersignature thereof); nor shall it be responsible for any
breach by the Bank of any covenant or condition contained in
this Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section 7(e)
hereof) or any adjustment in the terms on the Rights
(including the manner, method or amount thereof) provided for
in Sections 3, 11, 13, 23 or 24, or the ascertaining of the
existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced. by
Right Certificates after actual notice of any such
adjustment); 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 to be issued
pursuant to this Agreement or any Right Certificate or as to
whether any shares of Common Stock will, when issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Bank agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from the Chairman of the Board, the President
or any Executive or Senior Vice President or the Secretary or
any Assistant Secretary or the Treasurer or any Assistant
Treasurer of the Bank, and 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 instructions of
any such officer.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or deal
in any of the Rights or other securities of the Bank or become
pecuniarily interested in any transaction in which the Bank
may be interested, or contract with or lend money to the Bank
or otherwise act as fully and freely as though it were not the
Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity
for the Bank 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, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Bank resulting
from any such act, 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 Right 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 cases may be, has either not been
completed or indicates an affirmative response to any item
therein, the Rights Agent shall not take any further action
with respect to such requested exercise or transfer without
first consulting with the Bank.
Section 21. 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
Bank and to each transfer agent of the Common Stock by registered
or certified mail and to the holders of the Right Certificates by
first-class mail. The Bank 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 to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting, the Bank shall
appoint a successor to the Rights Agent. If the Bank shall fail to
make such appointment within a period of 30 days after such removal
or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the
holder of a Right Certificate (who shall, with such notice, submit
his Right Certificate for inspection by the Bank), then the
registered holder of any Right Certificate may apply to any court
of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Bank
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, in good standing, having a principal office in the
State of Connecticut or New York, which is authorized under such
laws to exercise stock transfer or corporate trust 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 $50,000,000 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 Bank
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 Right
Certificates. Failure to give any notice provided for in this
Section 21, 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 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Bank may, at its option, issue new
Right 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 and the number or kind or class of
shares of stock or other securities or property purchasable under
the Right 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 earliest of the redemption, exchange or expiration of
the Rights, the Bank (a) shall, with respect to shares of Common
Stock so issued or sold pursuant to the exercise of employee stock
options or under or to any employee plan, profit sharing trust or
other arrangement outstanding, granted or awarded as of the
Distribution Date, or upon the exercise, conversion or exchange of
securities issued by the Bank prior to such date, and (b) may, in
any other case, if deemed necessary or appropriate by a majority of
Continuing Directors, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Right Certificate shall
be issued if, and to the extent that, the Bank shall be advised by
counsel that such issuance would create a significant risk of
material adverse tax consequences to the Bank or the person to whom
such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 23. Redemption.
(a) The Board of Directors of the Bank may, at its
option and subject to receipt of all necessary bank regulatory
approvals (if any), at any time prior to the earlier of (i)
the close of business on the tenth day after the Stock
Acquisition Date or (ii) the Final Expiration Date, redeem all
but not less than all the then outstanding Rights at a
redemption price of $.001 per Right appropriately adjusted to
reflect any stock split, stock dividend, reclassification or
similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the
"Redemption Price"); provided, however, that if the Board of
Directors of the Bank authorizes redemption of the Rights at
or after the time a Person becomes an Acquiring Person, then
there must be Continuing Directors then in office and such
authorization shall require the concurrence of a majority of
such Continuing Directors. Notwithstanding anything in this
Agreement to the contrary, the Rights shall not be exercisable
after the first occurrence of a Section 11(a) (ii) Event until
such time as the Bank's right of redemption hereunder has
expired which time period may be extended by the Board of
Directors for so long as necessary to obtain any required bank
regulatory approvals. The Bank may, at its option, pay the
Redemption Price in cash, shares of Common Stock (based on the
"current market price," as defined in Section 11(d)(i) hereof,
of the Common Stock at the time of redemption) or any other
form of consideration deemed appropriate by the Board of
Directors.
(b) Immediately upon the action of the Board of
Directors of the Bank 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 for each Right so held. Promptly after the
action of the Board of Directors ordering the redemption of
the Rights, the Bank shall give notice of such redemption to
the Rights Agent and the holders of the then outstanding
Rights by mailing such notice 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.
Neither the Bank nor any of its Subsidiaries may redeem,
acquire or purchase for value any Rights at any time in any
manner other than that specifically set forth in this Section
23 or in Section 24 hereof, and other than in connection with
the purchase or other acquisition of shares of Common Stock
prior to the Distribution Date.
Section 24. Notice of Proposed Actions.
(a) In case the Bank shall propose, at any time after
the Distribution Date, (i) to pay any dividend payable in
stock of any class to the holders of Preferred Shares or to
make any other distribution to the holders of Preferred Shares
(other than a regular quarterly cash dividend out of earnings
or retained earnings of the Bank), or (ii) to offer to the
holders of its Preferred Shares rights or warrants to
subscribe for or to purchase any additional shares of
Preferred Shares or shares of stock of any class or any other
securities, rights or options, or (iii) to effect any
reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding
shares of Preferred Shares), or (iv) to effect any
consolidation or merger into or with any other Person, 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
transaction or a series of related transactions, of more than
50% of the assets or earning power of the Bank and its
Subsidiaries (taken as a whole) to any other Person or
Persons, (v) to effect the liquidation, dissolution or winding
up of the Bank, or (vi) to declare or pay any dividend on the
Common Stock payable in Common Stock or to effect a
subdivision, combination or consolidation of the Common Stock
(by reclassification or otherwise than by payment of dividends
in Common Stock), then, in each such case, the Bank shall give
to each holder of a Right, to the extent feasible and in
accordance with Section 25, 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 Common Shares and/or Preferred Shares, if any such
date is to be fixed, and such notice shall be so given in the
case of any action covered by clause (i) or (ii) above at
least 20 days prior to the record date for determining holders
of the Preferred Shares 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 Common Shares and/or
Preferred Shares, whichever shall be the earlier. The failure
to give notice required by this Section 24 or any defect
therein shall not affect the legality or validity of the
action taken by the Bank or the vote upon any such action.
(b) In case any Section 11(a) (ii) Event shall occur,
then, in any such case, the Bank shall as soon as practicable
thereafter give to each holder of a Right Certificate, in
accordance with Section 25 hereof, a notice of the occurrence
of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
Section 25. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder
of any Right Certificate to or on the Bank 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:
Norwalk Savings Society
48 Wall Street
Norwalk, CT 06852
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Bank or by
the holder of any Right 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 Bank) as follows:
Chemical Mellon Shareholder Services, L.L.C.
Overpeck Centre
85 Challenger Road
Ridgefield Park, N.J. 07660
Notices or demands authorized by this Agreement to be given or made
by the Bank or the Rights Agent to the holder of any Right
Certificate (or, prior to the Distribution Date, to the holder of
any certificate representing shares of Common Stock) 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 Bank.
Section 26. Supplements and Amendments. Prior to the earlier
of the Stock Acquisition Date and the Distribution Date and subject
to the penultimate sentence of this Section 26, the Bank and the
Rights Agent shall, if the Bank so directs, supplement or amend any
provision of this Agreement (whether or not adverse to the holders
of Rights) without the approval of any holders of Rights. From and
after the earlier of the Stock Acquisition Date and the
Distribution Date and subject to the penultimate sentence of this
Section 26, the Bank and the Rights Agent shall, if the Bank so
directs, supplement or amend this Agreement without the approval of
any holders of Rights 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)
to shorten or lengthen any time period hereunder (which shortening
or lengthening shall be effective only if there are Continuing
Directors then in office and shall require the concurrence of a
majority of such Continuing Directors if such supplement or
amendment occurs at or after the time a Person becomes an Acquiring
Person) or (iv) to change or supplement the provisions hereof in
any manner which the Bank may deem necessary or desirable and which
shall not materially adversely affect the interests of the holders
of Rights Certificates (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person); provided, however,
that this Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the
Rights are not then redeemable or (B) any other time period unless
such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of
Rights. Upon the delivery of a certificate from an appropriate
officer of the Bank which states that the proposed supplement or
amendment is in compliance with the terms of this Section 26, the
Rights Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which decreases
the Redemption Price. 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.
Section 27. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Bank or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock and/or
Preferred Shares outstanding at any particular time, including for
purposes of determining the particular percentage of such
outstanding shares of Common Stock 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. The Board of Directors of the
Bank (with, where specifically provided for herein, the concurrence
of the Continuing Directors) shall have the exclusive power and
authority to administer this Agreement and to exercise all rights
and powers specifically granted to the Board (with, where
specifically provided for herein, the concurrence of the Continuing
Directors) or to the Bank, 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, to exchange or
not to exchange the rights or to amend the 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 (or,
where specifically provided for herein, by the Continuing
Directors) in good faith, shall (x) be final, conclusive and
binding on the Bank, the Rights Agent, the holders of the Rights
and all other parties, and (y) not subject to the Board or the
Continuing Directors to any liability to the holders of the Right.
Section 29. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Bank, the Rights Agent and the registered holders of the Right
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 Bank, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the
Common Stock).
Section 30. 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 31. Governing Law. This Agreement, each Right and
each Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Connecticut 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.
Section 32. 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 one and the same instrument.
Section 33. Descriptive Headings. The captions herein and in
the table of contents hereto are included for convenience of
reference only, do not constitute a part of this Agreement and
shall be ignored in the construction and interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, all as of the day and year first
above written.
NORWALK SAVINGS SOCIETY
By /s/ Robert T. Judson
------------------------------------
President
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C.
By /s/
------------------------------------
Vice President
Exhibit A
FORM
of
AMENDMENT TO ARTICLES OF INCORPORATION
of
NORWALK SAVINGS SOCIETY
(Pursuant to Connecticut General Statutes
Sections 33-341(c) and 33-360(b))
NORWALK SAVINGS SOCIETY, a capital stock savings bank
organized and existing under the laws of the State of Connecticut
(hereinafter called the "Corporation"), hereby certifies that the
following resolution was adopted by the Board of Directors of the
Corporation at a meeting duly called and held on April 24, 1996:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation (hereinafter called
the "Board of Directors" or the "Board") in accordance with the
provisions of the Amended and Restated Articles of Incorporation of
the Corporation and sections 33-341(b) and (c) of the Connecticut
General Statutes, the Board of Directors hereby creates a series of
Preferred Stock, par value $0.01 per share (the "Preferred Stock"),
of the Corporation and hereby states the designation and number of
shares, and fixes the relative rights, preferences, and limitations
thereof as set forth in the following amendment to the Amended and
Restated Articles of Incorporation of the Corporation:
FURTHER RESOLVED, that the Amended and Restated Articles of
Incorporation of the Corporation shall be, and they hereby are,
amended by the addition of the following pursuant to ARTICLE THIRD:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred
Stock" (the "Series A Preferred Stock") and the number of shares
constituting the Series A Preferred Stock shall be 50,000. Such
number of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce the
number of shares of Series A Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares
reserved for issuance upon the exercise of outstanding options,
rights or warrants or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series A
Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, par value $0.01 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall
be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance
of a share of Series A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1 or (b)
subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-
cash dividends or other distributions, other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series A Preferred Stock. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (A) of
this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during
the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per
share on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Preferred Stock
in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to
the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of
the stockholders of the Corporation. In the event the Corporation
shall at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) Except as otherwise provided herein, if the Board of
Directors creates a series of Preferred Stock or any similar stock,
or by law, the holders of shares of Series A Preferred Stock and
the holders of shares of Common Stock and any other capital stock
of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special
voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Stock
as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid
in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock
and all such parity stock on which dividends are payable
or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either
as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock, provided
that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or
any shares of stock ranking on a parity with the Series
A Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and
other relative rights and preferences of the respective
series and classes, shall determine in good faith will
result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could,
under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred
Stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation, or in any other
Certificate of Designations creating a series of Preferred Stock or
any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock
shall have received $100 per share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of
shares of Series A Preferred Stock shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of shares of Common Stock, or
(2) to the holders of shares of stock ranking on a parity (either
as to dividends upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except distributions made ratably on
the Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding
up. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior
to such event under the proviso in clause (1) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination
or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of
Series A Preferred Stock shall at amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all series of any other class of the
Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of
the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series A Preferred Stock,
voting together as a single class.
FURTHER RESOLVED, that 50,000 shares of Series A Preferred
Stock be, and they hereby are, initially reserved for issuance upon
exercise, in accordance with the terms of a certain Rights
Agreement dated as of May 10, 1996 by and between the Corporation
and Chemical Mellon Transfer Services, Inc. as Rights Agent, as
amended from time to time (the "Rights Agreement"), of the Rights
(as defined in the Rights Agreement), such number to be subject to
adjustment from time to time in accordance with the Rights
Agreement.
Exhibit B
Form of Right Certificate
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER MAY 27, 2006 OR EARLIER IF REDEEMED OR
EXCHANGED BY THE BANK. THE RIGHTS ARE SUBJECT TO REDEMPTION,
AT THE OPTION OF THE BANK, AT $.001 PER RIGHT, AND TO EXCHANGE
AT THE OPTION OF THE BANK, ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. AS DESCRIBED IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY (l) AN ACQUIRING PERSON OR ANY ASSOCIATE
OR AFFILIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT), (2) A TRANSFEREE OF AN ACQUIRING PERSON (OR OF ANY
SUCH ASSOCIATE OR AFFILIATE) WHO BECOMES A TRANSFEREE AFTER
THE ACQUIRING PERSON BECOMES SUCH OR (3) UNDER CERTAIN
CIRCUMSTANCES, A TRANSFEREE OF AN ACQUIRING PERSON (OR OF ANY
SUCH ASSOCIATE OF AFFILIATE) WHO BECOMES A TRANSFEREE BEFORE
OR CONCURRENTLY WITH THE ACQUIRING PERSON BECOMING SUCH, SHALL
BECOME NULL AND VOID.
Right Certificate
Norwalk Savings Society
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 Rights Agreement
dated as of May 10, 1996 (the "Rights Agreement") between Norwalk
Savings Society, a Connecticut-chartered capital stock savings bank
(the "Bank"), and Chemical Mellon Shareholder Services, L.L.C. (the
"Rights Agent"), to purchase from the Bank at any time after the
Distribution Date (as such term is defined in the Rights Agreement)
and prior to 5:00 P.M. (Eastern time) on May 27, 2006 at the office
or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-hundredths of a fully paid,
non-assessable share of Series A Junior Participating Preferred
Stock, par value $.01, (the "Preferred Shares") of the Bank, at a
cash purchase price of $40.00 per one one-hundredths of a Preferred
Share (the "Purchase Price"), upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase and
the related Certificate duly executed. The number of Rights
evidenced by this Right Certificate (and the number of one one-
hundredths of a Preferred Share which may be purchased upon
exercise thereof) set forth above, and the Purchase Price per one
one-hundredths of a Preferred Share set forth above, are the number
and Purchase Price as of May 28, 1996, based on the Preferred
Shares as constituted at such date.
Upon the occurrence of a Section 11(a) (ii) Event (as such
term is defined in the Rights Agreement), if the Rights evidenced
by this Right Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any such Acquiring
Person (as such terms are defined in the Rights Agreement), (ii) a
transferee of an Acquiring Person (or of any such Affiliate or
Associate) who becomes a transferee after the Acquiring Person
becomes such), or (iii) under certain circumstances specified in
the Rights Agreement, a transferee of an Acquiring Person (or of
any such Affiliate or Associate) who becomes a transferee before or
concurrently with the Acquiring Person becoming such), such Rights
shall become null and void and no holder hereof shall have any
right with respect to such Rights from and after the occurrence of
such Section 11(a) (ii) Event.
As provided in the Rights Agreement, the Purchase Price and
the number of one one-hundredths of the Preferred Shares and the
number and kind of other securities which may be purchased upon the
exercise of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of
certain events.
This Right 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 Bank and the holders of the Right
Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the
Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the
Bank.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office or offices of the Rights
Agent designated for such purpose, may be exchanged for another
Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate
number of Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive upon
surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Bank at
its option at a redemption price of $.001 per Right or (ii) may be
exchanged by the Bank at its option for Preferred Shares or shares
of the Bank's Common Stock, par value $.01 per share (or, in
certain circumstances, Common Stock Equivalents (as such term is
defined in the Rights Agreement)).
No fractional Preferred Shares or fractional shares of
Common Stock or other securities will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of Preferred Shares or of shares of any other securities of the
Bank which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Bank 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 the Rights
Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights
Agreement.
This Right 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
Bank and its corporate seal.
Dated as of ____________________, 19__.
Attest: Norwalk Savings Society
- -------------------------- ---------------------------
Secretary Title:
(seal)
Countersigned:
- --------------------------
as Rights Agent
By
------------------------
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _____________________________________________
hereby sells, assigns and transfers unto _______________________
________________________________________________________________
(Please print name and address of transferee)
_______________________________________________________________
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
________________ Attorney, to transfer the within Right Certificate
on the books of the within-named Bank, with full power of
substitution.
Dated: _______________, ____.
---------------------------------
Signature Guaranteed: Signature
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right 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 in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, the Rights evidenced by this Right Certificate ___ are
___ are not being sold, assigned and transferred to a Person who is
an Acquiring Person, an Affiliate or Associate of an Acquiring
Person or a nominee of any such Acquiring Person, Affiliate or
Associate.
(3) after due inquiry and to the best knowledge of the
undersigned, it ____ did ____ did not acquire the Rights evidenced
by this Right Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ___________, 19__ ------------------------------
Signature
NOTICE
The signatures to the foregoing Assignment and Certificate
must correspond to the name as written upon the face of this Right
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
Rights represented by the Right Certificate.)
To: Norwalk Savings Society
The undersigned hereby irrevocably elects to exercise
___________________ Rights represented by this Right Certificate to
purchase the Preferred Shares issuable upon the exercise of the
Rights (or such other securities of the Bank or of any other person
which may be issuable upon the exercise of the Rights) and requests
that certificates for such shares be issued in the name of and
delivered to:
Please insert social security
or other identifying number
________________________________________________________________
(Please print name and address)
________________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Right Certificate, a new Right Certificate for
the balance of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
___________________________________________________________________
Dated: __________________, 19__.
----------------------------------
Signature Guaranteed: Signature
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Right 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 in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it ____ did ____ did not acquire the Rights evidenced
by this eight Certificate from any Person who is, was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: ____________, 19__. --------------------------------
Signature
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of
this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
Exhibit C
NORWALK SAVINGS SOCIETY
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
On May 10, 1996 (the "Declaration Date"), Norwalk Savings Society
(the "Bank") declared a dividend distribution of one Right for each
outstanding share of Common Stock of the Bank. The dividend is
payable on May 28, 1996 to the stockholders of record as of the
close of business on such date (the "Record Date"). Each Right
entitles the registered holder to purchase from the company one
one-hundredths of a share of Series A Junior Participating
Preferred Stock, par value $.01 per share (the "Preferred Shares")
at a price of $40.00 per one one-hundredths of a Preferred Share
(the "Purchase Price"), subject to adjustment. The description and
terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Bank and Chemical Mellon
Shareholder Services, L.L.C. (the "Rights Agent").
Until the close of business on the earliest of (i) the tenth day
after a public announcement that a person or group of affiliated or
associated persons has acquired, or obtained the right to acquire,
beneficial ownership of 10% or more of the outstanding shares of
Common Stock of the Bank (an "Acquiring Person"); (ii) the tenth
day (or such later day as may be determined by action of the Board
of Directors of the Bank prior to such time as any person becomes
an Acquiring Person) after the date of the commencement of a tender
or an exchange offer by any person (other than the Bank) to acquire
(when added to any shares as to which such person is the beneficial
owner immediately prior to such commencement) beneficial ownership
of 10% or more of the issued and outstanding shares of Common
Stock; and (iii) the tenth day (or such later day as may be
determined by action of the Board of Directors of the Bank prior to
such time as any person becomes an Acquiring Person) after the
filing by any Person (other than the Bank) of a registration
statement under the Securities Act of 1933, as amended, with
respect to a contemplated exchange offer to acquire (when added to
any shares as to which such person is the beneficial owner
immediately prior to such filing) beneficial ownership of 10% or
more of the issued and outstanding shares of Common Stock (the
earliest of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Bank's Common
Stock certificates outstanding as of the Record Date, by such
Common Stock certificate and this Summary. The date of
announcement of the existence of an Acquiring Person referred to in
clause (i) above is hereinafter referred to as the "Stock
Acquisition Date."
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Bank's Common
Stock. New Common Stock certificates issued after the Record Date
upon transfer or new issuance of the Bank's Common Stock will
contain a notation incorporating the Rights Agreement by reference.
Until the Distribution Date, the surrender for transfer of any of
the Common Stock certificates outstanding as of the Record Date
will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate and the number of
Rights associated with each share of Common Stock shall be
proportionately adjusted in the event of any dividend in Common
Stock on the Common Stock or subdivision, combination or
reclassification of the Common Stock. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of
record of the Bank's Common Stock as of the close of business on
the Distribution Date and such separate certificates alone will
evidence Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on May 27, 2006, unless earlier redeemed by the
Bank as described below.
The Purchase Price payable, and the number of Preferred Shares 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 Preferred Shares, (ii) upon the grant
to holders of the Preferred Shares of certain rights or warrants to
subscribe for or purchase Preferred Shares at a price, or
securities convertible into Preferred Shares with a conversion
price, less than the then-current market price of the Preferred
Shares or (iii) upon the distribution to holders of the Preferred
Shares of evidences of indebtedness or assets (excluding regular
periodic cash dividends paid out of earnings or retained earnings
or dividends payable in Preferred Shares) or of subscription rights
or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-
hundredths of a Preferred Share issuable upon exercise of each
Right are also subject to adjustment in the event of a stock split
of the Common Shares or a stock dividend on the Common Shares
payable in Common Shares or subdivisions, consolidations or
combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 100 times the dividend
declared per Common Share. In the event of liquidation, the
holders of the Preferred Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will be
entitled to an aggregate payment of 100 times the payment made per
Common Share. All liquidation payments are subject to the prior
rights of Bank account holders to the Bank's "liquidation account"
established in accordance with Connecticut Banking Law in
connection with the Bank's conversion from mutual to capital stock
form in 1994. Each Preferred Share will have 100 votes, voting
together with the Common Shares. Finally, in the event of any
merger, consolidation or other transaction in which Common Shares
are exchanged, each Preferred Share will be entitled to receive 100
times the amount received per Common Share. These rights are
protected by customary anti-dilution provisions.
In the event that the Bank is acquired in a merger or other
business combination, proper provision shall be made so that each
holder of a Right 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
company (or its parent company or other controlling entity) which
at the time of such transaction would have a market value of four
times the exercise price of the Right. In the event that the Bank
were the surviving corporation in a merger with any Person, or in
the event that the Stock Acquisition Date occurs, the Rights
Agreement provides that proper provision would be made so that each
holder of a Right, other than the Acquiring Person (whose Rights
would thereafter be null and void) and certain of its transferees,
would thereafter have the right to receive upon exercise that
number of shares of the Bank's Common Stock having a market value
of four times the exercise price of the Right (i.e., a 75% discount
to market value); if insufficient shares are available to satisfy
the Right, the Bank may substitute other consideration, as
appropriate, or make an adjustment to the exercise price of the
Right to achieve substantially the intended economic benefit to
shareholders (other than the Acquiring Person) of the 75% discount.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of
at least 1% in such Purchase Price. No fractional Preferred Shares
or fractional shares of other securities will be issued and, in
lieu thereof, if necessary, an adjustment in cash will be made
based on the market price of the Preferred Shares or other
securities on the last trading date prior to the date of exercise.
At any time prior to the close of business on the date that Rights
holders become entitled to purchase Preferred Shares of the Bank
(which time period may be extended by the Board of Directors for so
long as necessary to obtain any required bank regulatory
approvals), the Bank may redeem the Rights in whole, but not in
part, at a price of $.001 per Right (payable in cash, Preferred
Shares, shares of Common Stock or other consideration),
appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (the
"Redemption Price"). Immediately upon the action of the Board of
Directors of the Bank electing to redeem the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a stockholder of the Bank, including, without
limitation, no right to vote or to receive dividends.
The terms of the Rights may be amended by the Bank and the Rights
Agent, provided that following the earlier of the Distribution Date
and the Stock Acquisition Date, the amendment does not materially
adversely affect the interests of the holders of the Rights (other
than an Acquiring Person) and provided that no amendment shall be
made which decreases the Redemption Price.
A copy of the Rights Agreement is being filed with the Federal
Deposit Insurance Corporation as an Exhibit to a Form F-10. A copy
of the Rights Agreement will be available free of charge from the
Bank. This summary description of the Rights does not purport to
be complete and is qualified in its entirety by reference to the
Rights Agreement, which is incorporated herein by reference.