1
Exhibit (4)
FIRST AMENDMENT
TO
AMENDED AND RESTATED RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED RIGHTS AGREEMENT (this
"Amendment") is entered into as of June 18, 1997, between First Midwest Bancorp,
Inc., a Delaware corporation (the "Company"), and First Midwest Trust Company,
as rights agent (the "Rights Agent"). This Amendment modifies and amends the
Amended and Restated Rights Agreement, dated as of November 15, 1995, between
the Company and the Rights Agent (the "Rights Agreement").
W I T N E S S E T H:
WHEREAS, Section 5.4 of the Rights Agreement provides that prior to the
Separation Time, the Company may, at any time or from time to time, supplement
or amend the Rights Agreement in any respect without the approval of any holders
of Rights; and
WHEREAS, as of the date hereof, the Separation Time has not occurred;
and
WHEREAS, THE Company and SparBank, Incorporated, a Delaware corporation
("SparBank"), propose to enter into an Agreement and Plan of Merger (the
"SparBank Merger Agreement") pursuant to which SparBank will be merged with and
into a wholly owned subsidiary of the Company and stockholders of SparBank will
receive shares of Common Stock with one Right attached thereto in exchange for
their shares of SparBank Common Stock; and
WHEREAS, in connection with the anticipated approval, execution and
delivery of the SparBank Merger Agreement, the Board of Directors of the Company
has adopted, in accordance with Sections 5.4 and 5.14 of the Rights Agreement, a
resolution approving this Amendment and directing the appropriate officers of
the Company to take all appropriate steps to execute, deliver, and put into
effect this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
1. AMENDMENT OF DEFINITION OF "ACQUIRING PERSON". The definition of
"Acquiring Person" as set forth in Section 1.1 of the Rights Agreement
is amended by striking in the first sentence of said definition the
word "or" that
2
immediately precedes the parenthetical with the number "iii" inside and
replacing said word with a comma and by adding the following language
at the end of the first sentence of said definition:
" . . ., or (iv) who is a Cowlin Family Member who Beneficially owns
shares of Common Stock consisting solely of one or more of (A) shares of Common
Stock Beneficially Owned pursuant to the SparBank Merger Agreement, (B) shares
of Common Stock (or securities convertible into, exchangeable into or
exercisable for Common Stock) Beneficially Owned by a Cowlin Family Member or
its Affiliates or Associates at the time of the execution of the SparBank Merger
Agreement, (C) shares of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) acquired by a Cowlin Family
Member or its Affiliates or Associates after the execution of the SparBank
Merger Agreement, which, in the aggregate, amount to less than 1% of the
outstanding shares of Common Stock or (D) shares of Common Stock acquired by
means of a stock dividend or stock split. For purposes of this Agreement, the
term "Cowlin Family Member" shall mean (i) Geraldine C. Cowlin, (ii) any spouse
of Geraldine C. Cowlin, (iii) any lineal descendants (including descendants by
adoption and their descendants) of Geraldine C. Cowlin or any spouse of any such
lineal descendant, (iv) any estate of, or trust established by, one or more of
the persons described in clauses (i), (ii), and (iii), provided that one or more
of the persons described in clauses (i), (ii), and (iii) or charitable
organizations which qualify as exempt organizations under Section 501(c) of the
Internal Revenue Code of 1986, as amended ("Charitable Organizations"),
collectively, are the beneficiaries of at least 50% of the
actuarially-determined beneficial interests in such estate or trust, (v) any
Charitable Organization which is established by one or more of the persons
described in clauses (i), (ii), and (iii) (a "Family Charitable Organization"),
(vi) any corporation of which a majority of the voting power is held, directly
or indirectly, by or for the benefit of one or more of the persons described in
clauses (i), (ii) or (iii), the estates or trusts described by clause (iv), or
Family Charitable Organizations, or (vii) any partnership or other entity or
arrangement of which a majority of the voting interests are held, directly or
indirectly, by or for the benefit of one or more of the persons described in
clauses (i), (ii) or (iii), the estates or trusts described in clause (iv), or
Family Charitable Organizations."
2. ADDITION OF SECTION 1.1. Section 1.1 of the Rights Agreement is amended
by adding the following definitions:
"SparBank" shall mean SparBank, Incorporated, a Delaware corporation,
and its successors.
"SparBank Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of June 18, 1997, by and between SparBank and the
Company, as the same may be from time-to-time amended.
3. ADDITION OF SECTION 5.19. Section 5.19 is added to the Rights Agreement
to read as follows:
3
"5.19 CERTAIN EVENTS. Notwithstanding any provision of this Agreement
to the contrary, on Separation Time, Stock Acquisition Date, Flip-In
Date or Flip-over Transaction or Event shall be deemed to have
occurred, and no holder of Rights shall be entitled to exercise the
Rights, solely by reason of the approval, execution, or delivery of the
SparBank Merger Agreement, or the consummation of any transactions
contemplated by the SparBank Merger Agreement. In the event a Cowlin
Family Member or any of its Affiliates or Associates becomes the
Beneficial Owner of any shares of Common Stock in a manner not
permitted by clause (iv) of the first sentence of the definition of
"Acquiring Person" as set forth in Section 1.1 hereof, the provisions
of this Section shall not be applicable."
4. EFFECTIVENESS. This Amendment shall be deemed to be in force and
effective immediately upon execution and delivery of the SparBank
Merger Agreement. Except as amended hereby, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected
hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of this day and year first above written.
FIRST MIDWEST BANCORP, INC.
By: /s/ Robert P. O'Meara
-------------------------------
Its President
FIRST MIDWEST TRUST COMPANY
By: /s/ Thomas W. Allen
-----------------------------
Its duly authorized officer