EXHIBIT 99.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of October 28, 1997 (this "Amendment"), to
the Rights Agreement, dated as of September 25, 1989 (the "Rights Agreement"),
between ONBANCorp, Inc., a Delaware corporation (the "Company"), and The Bank of
New York, as rights agent (the "Rights Agent").
WITNESSETH
WHEREAS, the Company and the Rights Agent have previously entered into
the Rights Agreement; and
WHEREAS, no Distribution Date (as defined in Section 3(a) of the
Rights Agreement) has occurred as of the date of this Amendment; and
WHEREAS, Section 27 of the Rights Agreement provides that the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the terms of Section 27; and
WHEREAS, the Company, First Empire State Corporation, a New York
corporation ("First Empire"), and Olympia Financial Corp., a Delaware
corporation and a wholly owned subsidiary of First Empire ("Olympia"), have
entered into an Agreement and Plan of Reorganization, dated as of October 28,
1997 (the "Reorganization Agreement"), and an Agreement and Plan of Merger,
dated as of October 28, 1997 (together with the Reorganization Agreement, the
"Merger Agreements"), pursuant to which Olympia will merge with and into the
Company with the Company as the surviving corporation in the merger; and
WHEREAS, in connection with the Merger Agreements, the Company and
First Empire have entered into a Stock Option Agreement, dated as of October 28,
1997, pursuant to which the Company has granted to First Empire an option to
purchase certain shares of the Company's Common Stock under certain
circumstances and upon certain terms and conditions; and
WHEREAS, the Board of Directors has determined that it is in the best
interest of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger Agreements, the Option Agreement and the transactions
contemplated thereby (including, without limitation, the option granted pursuant
to the Option Agreement) from the application of the Rights Agreement; and
WHEREAS, the Board of Directors of the Company has approved and
adopted this Amendment and directed that the proper officers take all
appropriate steps to execute and put into effect this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1(a) of the Rights Agreement is hereby amended by
inserting the following proviso at the end thereof;
"; PROVIDED, HOWEVER, that, until the termination of the
Merger Agreements and the Stock Option Agreement (each as
defined below) in accordance with their respective terms,
neither First Empire State Corporation, a New York
corporation ("First Empire"), nor any Affiliate or Associate
of First Empire (collectively with First Empire, the "First
Empire Parties") shall be deemed to be an Acquiring Person
by virtue of the fact that First Empire is the Beneficial
Owner solely of shares of Common Stock (i) of which any
First Empire Party is or becomes the Beneficial Owner by
reason of the approval, execution or delivery of the
Agreement and Plan of Reorganization, dated as of October
28, 1997, by and among the Company, First Empire and Olympia
Financial Corp., a Delaware corporation and a wholly owned
subsidiary of First Empire ("Olympia"), as may be amended
from time to time (the "Reorganization Agreement"), the
Agreement and Plan of Merger, dated as of October 28,
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1997, by and among the Company, First Empire and Olympia, as
may be amended from time to time (the "Plan of Merger" and,
together with the Reorganization Agreement, the "Merger
Agreements"), or the Stock Option Agreement, dated as of
October 28, 1997, between the Company, as issuer, and First
Empire, as grantee, as may be amended from time to time (the
"Stock Option Agreement"), or by reason of the consummation
of any transaction contemplated in the Merger Agreements or
the Stock Option Agreement, (ii) of which any First Empire
Party is the Beneficial Owner on the date hereof, (iii) of
which any First Empire Party becomes the Beneficial Owner
after the date hereof, PROVIDED, HOWEVER, that the aggregate
number of shares of Common Stock which may be Beneficially
Owned by the First Empire Parties pursuant to this clause
(iii) shall not exceed 1% of the shares of Common Stock
outstanding, (iv) acquired in satisfaction of debts
contracted prior to the date hereof by any First Empire
Party in good faith in the ordinary course of such First
Empire Party's banking business, (v) held by any First
Empire Party in a BONA FIDE fiduciary or depository
capacity, or (vi) 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, in either case for which any First
Empire Party acts as investment advisor."
2. Section 13 of the Rights Agreement is hereby amended to add the
following subsection (c) at the end thereof:
"Notwithstanding any other provision of this Agreement, in accordance
with the terms of the
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Merger Agreements, at the Effective Time (as defined in the Plan of
Merger), the Common Stock will be converted into the consideration
provided for in the Plan of Merger, and all Rights attached thereto
shall simultaneously be extinguished with no additional consideration
being paid on account thereof."
3. Section 15 of the 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 Agreements or the Stock Option Agreement."
4. This Amendment shall be deemed to be in force and effective
immediately prior to the execution and delivery of the Merger Agreements.
Except as amended hereby, the Rights Agreement shall remain in full force and
effect and shall be otherwise unaffected hereby.
5. Capitalized terms used in this Amendment and not defined herein
shall have the meanings assigned thereto in the Rights Agreement.
6. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
7. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
ATTEST: ONBANCORP, INC.
By /s/ David M. Dembowski By /s/ Robert J. Bennett
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Name: David M. Dembowski Name: Robert J. Bennett
Title: Executive Vice Title: Chairman of The Board,
President & Secretary President & Chief
Executive Officer
ATTEST: THE BANK OF NEW YORK
By /s/ Daniel Egan By /s/ John I. Sivertsen
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Name: Daniel Egan Name: John I. Sivertsen
Title: Assistant Vice Title: Vice President
President
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