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EXHIBIT 4
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AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
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Amendment No. 2, dated as of August 29, 1996, to Rights
Agreement, dated as of August 14, 1990, as amended by Amendment
No. 1 thereto, dated as of January 26, 1993, (the "Rights
Agreement"), between Boatmen's Bancshares, Inc., a Missouri
corporation (the "Corporation"), and Boatmen's Trust Company, a
Missouri trust corporation (the "Rights Agent") (all terms not
otherwise defined herein shall have the meanings ascribed to them
in the Rights Agreement).
WITNESSETH:
WHEREAS, the Corporation and the Rights Agent have previously
entered into the Rights Agreement specifying the terms of the
Rights;
WHEREAS, Section 27 of the Rights Agreement provides that the
Corporation may from time to time supplement or amend the Rights
Agreement to make any provisions with respect to the Rights which
the Corporation may deem necessary or desirable, any such amendment
to be evidenced by a writing signed by the Corporation and the
Rights Agent;
WHEREAS, the Corporation and NationsBank Corporation, a North
Carolina corporation ("Counterparty"), have entered into an
Agreement and Plan of Merger, dated as of August 29, 1996 (the
"Merger Agreement"), pursuant to which the Corporation would merge
with and into Merger Sub, a wholly-owned subsidiary of Counterparty
("Merger Sub"), with Merger Sub as the surviving corporation in the
merger (the "Merger");
WHEREAS, in connection with the Merger Agreement, the
Corporation and Counterparty have entered into a Stock Option
Agreement, dated as of August 29, 1996 (the "Counterparty Stock
Option Agreement"), pursuant to which the Corporation has granted
to Counterparty an option (the "Counterparty Stock Option") to
purchase certain of the Company's Common Shares under certain
circumstances and upon certain terms and conditions;
WHEREAS, the consummation of the transactions contemplated by
the Merger Agreement would result in Counterparty owning all of the
outstanding Common Shares of the Corporation and therefore becoming
an Acquiring Person within the meaning of the Rights Agreement;
WHEREAS, the consummation of the transactions contemplated by
the Counterparty Stock Option Agreement might cause the
Counterparty to become an Acquiring Person within the meaning of
the Rights Agreement;
WHEREAS, the Corporation wishes to amend the Rights Agreement
to provide that the acquisition of Common Shares of the Corporation
by Counterparty in accordance with the Merger Agreement or the
Counterparty Stock Option Agreement will not result in Counterparty
being deemed an Acquiring Person under the Rights Agreement; and
WHEREAS, all acts and things necessary to make this Amendment
No. 2 a valid agreement according to its terms have been done and
performed, and the execution and delivery of this Amendment
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No. 2 by the Corporation and the Rights Agent have been in all respects
duly authorized by the Corporation and the Rights Agent;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth herein, the parties hereby agree as
follows:
1. Amendment to Section 1(a). Section 1(a) of the
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Rights Agreement is hereby amended and restated in its entirety to
read as follows:
"(a) Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter defined)
of such Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 20% or more of the Common Shares of the
Corporation then outstanding, but shall not include any of the
following:
(i) the Corporation, any Subsidiary (as such term is
hereinafter defined) of the Corporation, any employee benefit
plan of the Corporation or any Subsidiary of the Corporation,
or any entity holding Common Shares for or pursuant to the
terms of any such plan; or
(ii) until the termination of the Merger Agreement
and the Counterparty Stock Option Agreement in accordance with
their respective terms, any Counterparty Party, but only if
and for so long as (A) Counterparty is in compliance with all
material terms, conditions and obligations imposed upon it by
the Merger Agreement and the Counterparty Stock Option
Agreement and (B) no Counterparty Party is the Beneficial
Owner of any Common Shares of the Corporation then outstanding
other than: (u) Common Shares of the Corporation of which any
Counterparty Party is or becomes the Beneficial Owner by
reason of the approval, execution or delivery of the Merger
Agreement or the Counterparty Stock Option Agreement or by
reason of the consummation of any transaction contemplated in
the Merger Agreement or the Counterparty Stock Option
Agreement or both; (v) Common Shares of the Corporation of
which any Counterparty Party is the Beneficial Owner on the
date hereof; (w) Common Shares of the Corporation of which any
Counterparty Party becomes the Beneficial Owner after the date
hereof; provided, that the aggregate number of Common
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Shares of the Corporation which may be Beneficially Owned by
the Counterparty Parties pursuant to this clause (w) shall not
exceed 5% of the Common Shares of the Corporation outstanding;
(x) Common Shares of the Corporation acquired in satisfaction
of debts contracted prior to the date hereof by any
Counterparty Party in good faith in the ordinary course of
such Counterparty Party's banking business; (y) Common Shares
of the Corporation held by any Counterparty Party in a
bona fide fiduciary or depository capacity; and (z) Common Shares of the
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Corporation owned in the ordinary course of business by either (A) an
investment company registered under the Investment Company Act of 1940,
as amended, or (B) an investment account, for either of which any
Counterparty Party acts as investment advisor.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the
Corporation which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by
such Person to 20% or more of the Common Shares of the Corporation
then outstanding; provided, however, that if a Person shall
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become the Beneficial Owner of 20% or more of the Common Shares of
the Corporation then outstanding by reason of share purchases by
the Corporation and shall, after such share purchases by the
Corporation,
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become the Beneficial Owner of any additional Common Shares of the
Corporation, then such Person shall be deemed to be
an "Acquiring Person"."
2. Amendment to Section 1(o). Section 1(o) of the
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Rights Agreement is hereby modified and amended to add the
following sentence at the end thereof:
"Notwithstanding anything in this paragraph to the contrary,
neither the execution and delivery of the Merger Agreement or the
Counterparty Stock Option Agreement nor consummation of the
transactions contemplated by the Merger Agreement or the
Counterparty Stock Option Agreement shall be deemed to be a Trigger
Event."
3. Additions to Section 1. The following terms are
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hereby added to Section 1 of the Rights Agreement as additional
defined terms under the Rights Agreement;
"(q) "Counterparty" shall mean NationsBank Corporation,
a North Carolina corporation.
(r) "Counterparty Parties" shall mean, collectively,
Counterparty and its Affiliates and Associates (including
Merger Sub). "Counterparty Party" shall have a correlative
meaning.
(s) "Counterparty Stock Option Agreement" shall mean the
Stock Option Agreement, dated as of August 29, 1996, between
the Corporation and Counterparty.
(t) "Merger Agreement" shall mean the Agreement and Plan
of Merger, dated as of August 29, 1996, by and between the
Corporation and Counterparty, as the same may be amended from
time to time.
(u) "Termination Time" shall be immediately prior to the
Effective Time, as defined in the Merger Agreement."
4. Amendment to Section 15. Section 15 of the
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Rights Agreement is hereby modified and amended to add the
following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedies
or claims under this Agreement in connection with any transactions
contemplated by the Merger Agreement or the Counterparty Stock
Option Agreement."
5. Addition of Section 34. A new Section 34 is
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added to the Rights Agreement, to read as follows:
"Section 34. Termination. This Agreement shall
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terminate at the Termination Time and all rights, benefits,
obligations, duties and agencies created by this Agreement shall be
terminated at the Termination Time. All Rights issued and
outstanding shall, at the Termination Time, cease to exist and
shall be terminated without any payment to any holder thereof."
6. Effectiveness. This Amendment shall be deemed
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to be in force and effective immediately prior to the execution and
delivery of the Merger Agreement. Except as amended hereby,
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the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby, until the Termination Time.
7. Counterparts. This Amendment No. 2 may be
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executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one
and the same instrument.
8. Miscellaneous. In all respects not inconsistent
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with the terms and provisions of this Amendment No. 2, the Rights
Agreement is hereby ratified, adopted, approved and confirmed. In
executing and delivering this Amendment No. 2, the Rights Agent
shall be entitled to all the privileges and immunities afforded to
the Rights Agent under the terms and conditions of the Rights
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 2 to be duly executed and attested on the day and
year first set forth above.
Boatmen's Bancshares, Inc.
By: /s/ Gregory L. Curl
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Name: Gregory L. Curl
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Title: Vice Chairman
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Attest:
By: /s/ James W. Kienker
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Name: James W. Kienker
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Title: Executive Vice President and
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Chief Financial Officer
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Boatmen's Trust Company
By: /s/ Martin E. Galt, III
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Name: Martin E. Galt, III
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Title: President
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Attest:
By: /s/ James W. Kienker
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Name: James W. Kienker
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Title:
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