<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported) March 26, 1999
------------------------------
BANK PLUS CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Delaware 0-28292 95-1782887
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
4565 Colorado Boulevard, Los Angeles, California 90039
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (818) 241-6215
----------------------------
N/A
- ------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
This Report is filed pursuant to Item 5 of Form 8-K to report
amendments to Bank Plus Corporation's By-Laws and stockholder rights plan and
the execution of agreements with two groups of stockholders relating to the
withdrawal of notices filed by such stockholders of their intent to nominate
directors and propose resolutions at the 1999 annual meeting of stockholders of
Bank Plus Corporation. Pursuant to General Instruction F of Form 8-K, the
following documents are incorporated by reference herein and attached as
exhibits hereto (except as otherwise indicated):
Exhibits
--------
1. Bank Plus Corporation Press Release dated March
29, 1999 announcing the amendment of Bank Plus Corporation's By-Laws,
appointment of a new director and execution of agreements with two stockholders
relating to the withdrawal by such stockholders of notices to nominate directors
and propose resolutions for stockholder approval at the 1999 annual meeting of
stockholders of Bank Plus Corporation.
2. Settlement Agreement, dated March 26, 1999,
between Bank Plus Corporation and Hovde Financial, Inc., Hovde Capital, Inc.,
Hovde Capital, L.L.C., Financial Institution Partners, L.P., Financial
Institution Partners II, L.P., Hancock Park Acquisition, L.P., Hancock Park
Acquisition, L.L.C., Western Acquisition Partners, L.P., Western Acquisitions,
L.L.C., Pacific Financial Investors, Ltd., Pacific Financial Investors, L.P.,
Eric D. Hovde and Steven D. Hovde.
3. Settlement Agreement, dated March 26, 1999,
between Bank Plus Corporation and La Salle Financial Partners, L.P., La Salle
Capital Management, Inc., Talman Financial, Inc., Richard J. Nelson and Peter T.
Kross
4. Form of Amended and Restated Rights Agreement,
dated as of February 3, 1999 and amended and restated as of March 29, 1999, by
and between Bank Plus Corporation and American Stock Transfer & Trust Company,
as Rights Agent.
5. Amended and Restated By-Laws of Bank Plus Corporation.
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: March 30, 1999 BANK PLUS CORPORATION
By: /s/ Godfrey B. Evans
------------------------------
Name: Godfrey B. Evans
Its: Executive Vice President,
Chief Administrative Officer
and General Counsel
1
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Page*
- ------- ----------- --------------
<S> <C> <C>
1 Bank Plus Corporation Press Release dated March 29, 1999
announcing the amendment of By-Laws and execution of
settlement agreements
2 Settlement Agreement, dated March 26, 1999, between Bank Plus
Corporation and Hovde Financial, Inc., Hovde Capital, Inc.,
Hovde Capital, L.L.C., Financial Institution Partners, L.P.,
Financial Institution Partners II, L.P., Hancock Park
Acquisition, L.P., Hancock Park Acquisition, L.L.C., Western
Acquisition Partners, L.P., Western Acquisitions, L.L.C.,
Pacific Financial Investors, Ltd., Pacific Financial
Investors, L.P., Eric D. Hovde and Steven D. Hovde
3 Settlement Agreement, dated March 26, 1999, between Bank Plus
Corporation and La Salle Financial Partners, L.P., La Salle
Capital Management, Inc., Talman Financial, Inc., Richard J.
Nelson and Peter T. Kross
4 Amended and Restated Rights Agreement, dated as of February
3, 1999 and amended and restated as of March 29, 1999,
between Bank Plus Corporation and American Stock Transfer &
Trust Company, as Rights Agent
5 Amended and Restated By-Laws of Bank Plus Corporation
</TABLE>
________
*Contained only in manually executed version
2
<PAGE>
Press Release EXHIBIT 1
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LOS ANGELES, March 29 -- Bank Plus Corporation (Nasdaq: BPLS - news; Bank Plus
---- ----
or the Corporation), and its subsidiaries (the Company), which include Fidelity
Federal Bank, FSB (Fidelity or the "Bank"), today reported the withdrawal of
notices by two stockholders of their intent to nominate directors and propose
resolutions at the 1999 annual meeting of stockholders of Bank Plus (the "1999
Annual Meeting"). In connection with these withdrawals, Bank Plus has executed
separate agreements with each of these stockholders. One of these agreements is
with entities affiliated with Hovde Financial, Inc. (collectively, the "Hovde
Persons"). The other is with La Salle Financial Partners, L.P. and certain of
its affiliates (the "La Salle Group"). Copies of these agreements will be filed
with the Company's Form 8K.
Under these agreements, (i) Bank Plus has appointed Irving Beimler as a director
on the Bank Plus Board for a term expiring at the annual meeting of stockholders
in the year 2000, subject to the non-objection of the Office of Thrift
Supervision (the "OTS"); and (ii) Bank Plus amended its Bylaws to, among other
things, provide that three or more unaffiliated holders of 20% of Bank Plus'
outstanding common stock may call a special meeting of stockholders and that
directors of the Company will be elected by a plurality, rather than a majority,
vote of voting shares present or represented at a meeting of stockholders.
In return, the Hovde Persons agreed they would not: (i) call a special meeting
of stockholders or participate in any solicitation of proxies to vote Bank Plus
securities; (ii) otherwise seek to control the management, Board or policies of
Bank Plus; or (iii) prior to October 31, 1999, seek any amendment of their
Rebuttal Agreement with the OTS or submit any filing for a change in control of
Bank Plus (a "Control Action"). In addition, the Hovde Persons agreed: (a) to
vote for the director nominees proposed by the Board at the 1999 Annual Meeting;
and (b) to withdraw their OTS change in control application. The agreement
terminates on the earliest to occur of (x) the taking of a Control Action by any
of the Hovde Persons after October 31, 1999; (y) the failure of Mr. Beimler or
any substitute nominee to be approved by the OTS as a director on or before June
24, 1999 or August 24, 1999, respectively; or (z) April 28, 2000. Upon the
termination or breach of the agreement by the Hovde Persons, Mr. Beimler (or a
substitute nominee, if applicable) will resign from the Board.
Under the agreement with the La Salle Group, the La Salle Group agreed, among
other things, they would not: (i) call a special meeting of stockholders or
participate in any solicitation of proxies to vote Bank Plus securities; or (ii)
otherwise seek to control the management, Board or policies of Bank Plus. The
La Salle Group also agreed to vote for the director nominees proposed by the
Board at the 1999 Annual Meeting. The agreement terminates on the latest to
occur of (a) October 31, 1999; or (b) the end of the first term of office of Mr.
Beimler as a director (or a substitute nominee, if applicable).
Irving R. Beimler is currently Senior Vice President of Hovde Capital, Inc.
where he is responsible for the identification and placement of investment and
merchant banking funds. Prior to joining Hovde Capital, Mr. Beimler has held
senior management positions with a number of financial institutions including
serving as Executive Vice President and Chief Credit Officer for Fleet Bank of
New York and Riggs National Corporation.
Bank Plus Corporation is the holding company for Fidelity Federal Bank, FSB,
which offers a broad range of consumer financial services, including demand and
time deposits and mortgage loans. In addition, through its affiliate Gateway
Investment Services, Inc., a NASD-registered broker/dealer, Fidelity provides
customers of the Bank with investment products, including mutual funds,
annuities and insurance. Fidelity operates through 38 full-service branches, 37
of which are located in Southern California, principally in Los Angeles and
Orange counties.
4
<PAGE>
EXHIBIT 2
Settlement Agreement
--------------------
between
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BANK PLUS CORPORATION AND
---- ---- ----------- ---
Hovde Financial, Inc., Hovde Capital, Inc., Hovde Capital, L.L.C., Financial
----------------------------------------------------------------------------
Institution Partners, L.P., Financial Institution Partners II, L.P., Hancock
----------------------------------------------------------------------------
Park Acquisition, L.P., Hancock Park Acquisition, L.L.C., Western Acquisition
-----------------------------------------------------------------------------
Partners, L.P., Western Acquisitions, L.L.C., Pacific Financial Investors, Ltd.,
- --------------------------------------------------------------------------------
Pacific Financial Investors, L.P., Eric D. Hovde and Steven D. Hovde
--------------------------------------------------------------------
[LETTERHEAD OF BANK PLUS CORPORATION]
March 26, 1999
Hovde Financial, Inc.
Hovde Capital, Inc.
Hovde Capital, L.L.C.
Financial Institution Partners, L.P. ("FIP")
Financial Institution Partners II, L.P. ("FIP II")
Hancock Park Acquisition, L.P. ("Hancock LP")
Hancock Park Acquisition, L.L.C.
Western Acquisition Partners, L.P. ("Western LP")
Western Acquisitions, L.L.C.
Pacific Financial Investors, Ltd. ("Pacific Ltd.")
Pacific Financial Investors, L.P. ("Pacific LP")
Eric D. Hovde
Steven D. Hovde
Re: Settlement Agreement
--------------------
Gentlemen:
Each of you is either a stockholder (collectively, the "Hovde
Stockholders") of Bank Plus Corporation (together with its affiliates, directors
or officers, the "Company") or an affiliate or officer thereof (the Hovde
Stockholders, their affiliates and their respective directors, officers, members
and general partners are referred to herein as the "Hovde Persons"). On February
25, 1999, certain of the Hovde Persons notified the Company of their intention
to (a) nominate, and solicit proxies in support of, one candidate to stand for
election to the Company's Board of Directors (the "Board") at the Company's 1999
annual meeting of stockholders (the "1999 Annual Meeting") and (b) propose, and
solicit proxies in support of, certain amendments to the Company's Bylaws at the
1999 Annual Meeting. All of the parties hereto agree and acknowledge that each
is placing material reliance on the terms of this Agreement as a basis of, and
condition to, their respective agreements and undertakings contained herein.
1. Subject to the non-objection of the Office of Thrift Supervision
(the "OTS") pursuant to 12 C.F.R. (S)563.585 (the "OTS Non-Objection"), the
Board has appointed Irving Beimler ("Mr. Beimler") as a director of the Company
for a term expiring at the Company's annual meeting of stockholders in the year
2000 (the "2000 Annual Meeting"), and the Board has increased the authorized
number of directors to seat Mr. Beimler. The Company hereby represents that the
appointment of Mr. Beimler to the class of directors with a term expiring at the
2000 Annual Meeting is not in violation of the Company's Certificate of
Incorporation. The Company shall forthwith upon execution of this Agreement
notify the OTS in accordance with 12 C.F.R. (S)563.560 et seq. of the
appointment of Mr. Beimler to the Board, and shall promptly take any and all
other actions necessary or appropriate, including the filing of any required
notices, forms or other instruments with the OTS and any other regulatory
authority having jurisdiction thereof, the approval or non-objection of which is
required for Mr. Beimler to serve on the Board. The Hovde Persons shall cause
Mr. Beimler to provide such information as may reasonably be requested by the
Company in order for the Company to fulfill its obligations under with 12 C.F.R.
(S)563.560 et seq.
<PAGE>
If the OTS objects to Mr. Beimler's appointment to the Board or if Mr.
Beimler does not otherwise join the Board, the Board will give first
consideration to the nomination of Peter T. Kross ("Mr. Kross") as a substitute
nominee, and, if the Board approves Mr. Kross as the substitute nominee, the
Company shall promptly submit his nomination for OTS Non-Objection. If the Board
does not approve Mr. Kross as the substitute nominee, the Board and the Hovde
Persons shall work in good faith to designate another nominee (Mr. Kross and any
such other nominee are referred to herein as the "Substitute Nominee")
acceptable to both the Hovde Persons and the Company's other stockholder that
advocated the appointment of Mr. Kross to serve as a director of the Company.
As a condition to his appointment, Mr. Beimler shall execute and
deliver to the Company his written resignation from the Board, effective upon a
breach by any of the Hovde Persons of any provision of this Agreement and upon
the termination of this Agreement. The appointment of the Substitute Nominee to
the Board shall be subject to OTS Non-Objection and to the execution and
delivery to the Company by the Substitute Nominee of his or her written
resignation from the Board, effective upon a breach by any of the Hovde Persons
of any provision of this Agreement and upon the termination of this Agreement.
The Company agrees to give the Hovde Persons 10 days written notice prior to
giving effect to any written resignation described in this paragraph. Nothing in
this Agreement is intended to prohibit or limit Mr. Beimler or the Substitute
Nominee from engaging in lawful activities in his or her capacity as a member of
the Board.
2. Concurrently with the execution of this Agreement, the Board has
amended Section 1.2 of the Company's Bylaws to provide that three or more
unaffiliated stockholders of 22 1/2% of the Company's outstanding capital stock
(the "Capital Stock") may call a special meeting of stockholders (the "Bylaws
Amendment"). The Board shall not increase (but may decrease) such number of
stockholders, or their percentage ownership of shares, required to call a
special meeting of stockholders so long as this Agreement is in effect. The
Company acknowledges, and the Board shall amend the terms of the Company's
Rights Plan to provide, that the Company's Rights Plan will not be triggered
solely by the act of calling a special meeting of stockholders by holders of 22
1/2% or more of the Capital Stock.
3. Each member of the Hovde Persons executing this Agreement below
hereby agrees that, from the date hereof through the date of termination of this
Agreement, each member of the Hovde Persons shall not, individually or
collectively, (a) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any voting securities, direct or indirect
rights or options to acquire any voting securities, or securities or instruments
convertible into voting securities, of the Company, such that the acquisition(s)
would result in the beneficial ownership by the Hovde Persons of more than 15%
of the outstanding common stock, par value $0.01 per share, of the Company (if
shares or options to acquire shares of such common stock acquired by Mr. Beimler
or the Substitute Nominee as a director would result in the aggregate holdings
of the Hovde Persons exceeding the limitation set forth in this paragraph 3(a)
or would otherwise trigger the Rights Plan, each of Mr. Beimler and the
Substitute Nominee shall have the option to elect not to receive such shares or
options which would cause such a result); (b) make, or in any way participate,
directly or indirectly, in any "solicitation" of "proxies" to vote (as such
terms are used in the proxy rules of the Securities and Exchange Commission)
securities of the Company, or seek to advise or influence any person or entity
with respect to any voting of any
2
<PAGE>
securities of the Company on any matter submitted, or to be submitted to, the
stockholders of the Company, provided, however, that, subject to paragraph 4
below, the members of the Hovde Persons may vote their securities of the Company
in their sole discretion in any manner with respect to any matter submitted to
the stockholders and may, but only to the extent required by applicable law,
disclose their intent with respect thereto; (c) call, or participate in calling,
any special meeting of the stockholders of the Company; (d) form, join or in any
way participate in a "group" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, with respect to any voting
securities of the Company; (e) make any public announcement with respect to or
make or submit a proposal or offer (with or without conditions) for the
securities or assets of the Company or any extraordinary transaction involving
the Company or any of its subsidiaries; (f) otherwise act alone or in concert
with others to seek to control the management, board of directors or policies of
the Company (other than by virtue of Mr. Beimler's or the Substitute Nominee's
participation on the Board); (g) take any action prohibited by Amendment #1 to
Rebuttal of Rebuttable Determination of Control under Part 574 dated December 4,
1998 filed by FIP, FIP II, Hancock LP, Western LP, and Pacific Ltd. with the OTS
relating to the Company (the "Rebuttal Agreement"); or (h) propose any of the
foregoing unless and until such proposal is specifically invited or approved by
the Company.
While this Agreement is in effect, the possibility that the addressees
might be deemed a "group" within in the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended, shall not be deemed a breach of
paragraph 3(d) of this Agreement; provided, however, the Company reserves the
right to assert the existence of such a "group" for all purposes other than a
breach of paragraph 3(d) of this Agreement.
4. Notwithstanding anything to the contrary in paragraph 3 hereof,
each member of the Hovde Persons executing this Agreement below shall vote all
of their securities of the Company for the director nominees proposed by the
Board at the 1999 Annual Meeting.
5. Each member of the Hovde Persons executing this Agreement below
hereby agrees that, from the date hereof through October 31, 1999, each member
of the Hovde Persons shall not, individually or collectively, seek any amendment
of the Rebuttal Agreement or submit or effect any filing or application, or seek
to obtain any permit, consent or agreement, approval or other action, required
by or from any regulatory agency with respect to an acquisition of the Company
or any of its securities or assets or control thereof. If any member of the
Hovde Persons takes any action described in this paragraph (a "Control Action")
after October 31, 1999, then (i) this Agreement shall immediately and
automatically terminate, and (ii) Mr. Beimler's and, if applicable, the
Substitute Nominee's conditional resignation from the Board of the Company shall
immediately and automatically become effective.
6. Each member of the Hovde Persons executing this Agreement below
hereby agrees to cause the Hovde Persons to withdraw the H-(e)1 application for
Approval to Acquire Up to 25% of the Shares of Bank Plus Corporation filed with
the OTS by Pacific Ltd. and Pacific LP on February 22, 1999, as amended on March
9, 1999. Bank Plus will promptly reimburse Pacific Ltd. and Pacific LP for up to
$15,000 of expenses representing the filing fee for such application upon
presentation of proof of such withdrawal.
3
<PAGE>
7. It is understood and agreed that monetary damages would not be a
sufficient remedy for any breach or threatened breach of this Agreement. Each
party hereto shall be entitled to equitable relief by way of injunction or
specific performance if any other party or any of their respective officers,
directors, investment bankers, attorneys, accountants or other representatives
breach, or threaten to breach, any of the provisions of this Agreement, such
remedy by way of equitable relief being cumulative, and not exclusive, of any
other remedies and/or rights that the complaining party shall be entitled to
exercise. It is further understood and agreed that no failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
8. In the event of any dispute between the parties hereto regarding
the performance or interpretation of this Agreement, the prevailing party shall
be entitled to its reasonable attorneys' fees, costs and other expenses, in
addition to any other relief to which such party may be entitled.
9. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the internal laws of the State of
Delaware, without regard to the principles of conflict of laws.
10. This Agreement shall terminate upon the earliest to occur of the
following: (i) the taking of a Control Action by any member of the Hovde Persons
after October 31, 1999, (ii) the failure of Mr. Beimler to be approved by the
OTS as a director of the Company on or before June 24, 1999, (iii) the failure
of the Substitute Nominee to be approved by the OTS as a director of the Company
on or before August 24, 1999, or (iv) April 28, 2000, provided that if the
Agreement is not otherwise breached or terminated by the action of the Hovde
Persons, the term of Mr. Beimler or the Substitute Nominee, as applicable, shall
continue until the 2000 Annual Meeting or until a successor is duly elected or
appointed. No rights or obligations shall survive the termination of this
Agreement except for claims arising from, or in connection with, the breach of
this Agreement.
11. During the term of this Agreement, neither the Company nor any of
the Hovde Persons shall institute any litigation against the other, except as
follows: (a) any party hereto may institute litigation against the other party
(or parties) hereto in the event of, and alleging, a breach of or default under
this Agreement by such other party (or parties); (b) any party may institute
litigation against the other party or parties hereto in the event of, and
alleging, the dissemination directly or indirectly by or on behalf of such other
party (or parties) hereto, of slander, defamation, libel or other business
disparagement; and (c) the Company may institute litigation against some or all
of the Hovde Persons in the event that one or more of the Hovde Persons form,
join or in any way participate in a "group" (a "13(d) Group") within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, with
respect to any voting securities of the Company and one or more members of such
13(d) Group take any action that the Hovde Persons are prohibited from taking
under paragraphs 3 or 5 of this Agreement.
12. All the terms and provisions of this Agreement shall inure to the
benefit of, shall be enforceable by, and shall be binding upon, the successors
and assigns of the parties hereto.
4
<PAGE>
13. This Agreement contains the entire understanding of the parties
with respect to its subject matter. There are no restrictions, agreements,
promises, representations, warranties, covenants or understandings other than
those expressly set forth herein. This Agreement may be amended only by a
written instrument duly executed by the parties or their respective successors
or assigns.
14. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given if so given) by hand delivery, cable, telecopy (confirmed in
writing) or telex, or by mail (registered or certified, postage prepaid, return
receipt requested) to the respective parties as follows:
<TABLE>
<CAPTION>
If to the Company:
<S> <C>
with a copy to:
Bank Plus Corporation Gibson, Dunn & Crutcher LLP
4565 Colorado Boulevard 333 South Grand Avenue
Los Angeles, CA 91209-1631 Los Angeles, CA 90071
Attention: General Counsel Attention: Dhiya El-Saden,
Esq.
If to the Hovde Persons:
with a copy to:
c/o Hovde Capital, Inc. Perry & Bagheri, P.C.
1826 Jefferson Place, N.W. 1826 Jefferson Place, N.W.
Washington, DC 20036 Washington, DC 20036
Attention: Eric D. Hovde, President Attention: Richard J. Perry,
Jr., Esq.
</TABLE>
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
15. This Agreement may be executed in counterparts, each of which
shall be an original, but each of which together shall constitute one and the
same Agreement.
Kindly confirm that the foregoing represents our understanding and
agreement in respect of this matter by signing below where indicated and
returning the signed copy.
Sincerely,
BANK PLUS CORPORATION
By: /s/ Mark K. Mason
-------------------------------------
Mark K. Mason
President and Chief Executive Officer
5
<PAGE>
The undersigned members of the Hovde Persons hereby agree to the foregoing this
26th day of March, 1999.
<TABLE>
<CAPTION>
<S> <C>
HOVDE FINANCIAL, INC. FINANCIAL INSTITUTION PARTNERS, L.P.
By Hovde Capital, Inc., general partner
By: /s/ Eric D. Hovde By: /s/ Eric D. Hovde
------------------------------- -------------------------------
HOVDE CAPITAL, INC. FINANCIAL INSTITUTION PARTNERS II, L.P.
By Hovde Capital, L.L.C., general partner
By: /s/ Eric D. Hovde By: /s/ Eric D. Hovde
------------------------------- -------------------------------
HOVDE CAPITAL, L.L.C. HANCOCK PARK ACQUISITION, L.P.
By Hancock Park Acquisition, L.L.C., general partner
By: /s/ Eric D. Hovde By: /s/ Eric D. Hovde
------------------------------- -------------------------------
HANCOCK PARK ACQUISITION, L.L.C. WESTERN ACQUISITION PARTNERS, L.P.
By Western Acquisitions, L.L.C., general partner
By: /s/ Eric D. Hovde By: /s/ Eric D. Hovde
------------------------------- -------------------------------
WESTERN ACQUISITIONS, L.L.C. PACIFIC FINANCIAL INVESTORS, LTD.
By: /s/ Eric D. Hovde By: /s/ Eric D. Hovde
------------------------------- -------------------------------
PACIFIC FINANCIAL INVESTORS, L.P.
By Pacific Financial Investors, Ltd., general partner
By: /s/ Eric D. Hovde
-------------------------------
/s/ Eric D. Hovde /s/ Steven D. Hovde
------------------------------- -------------------------
ERIC D. HOVDE STEVEN D. HOVDE
</TABLE>
6
<PAGE>
EXHIBIT 3
Settlement Agreement
--------------------
between
-------
Bank Plus Corporation
---------------------
and
---
La Salle Financial Partners, L.P.,
----------------------------------
La Salle Capital Management, Inc., Talman Financial, Inc.,
----------------------------------------------------------
Richard J. Nelson and Peter T. Kross
------------------------------------
[LETTERHEAD OF BANK PLUS CORPORATION]
March 26, 1999
La Salle Financial Partners, L.P.
La Salle Capital Management, Inc.
Talman Financial, Inc.
Richard J. Nelson
Peter T. Kross
Re: Settlement Agreement
--------------------
Gentlemen:
Each of you is either a stockholder (the "Stockholder") of Bank Plus
Corporation (the "Company"), an affiliate thereof, or a director, officer,
member or general partner of the Stockholder or such affiliate (the Stockholder,
its affiliates, and their respective directors, officers, members and general
partners are referred to herein as the "La Salle Group"). The Stockholder has
requested that the Board of Directors (the "Board") of the Company (a) appoint
an independent stockholder representative as a director of the Company for a
term expiring at the Company's annual meeting of stockholders in the year 2000,
(b) amend Section 1.2 of the Company's Bylaws (the "Bylaws") to provide that
three or more unaffiliated holders of 20.0% of the Company's outstanding common
stock (the "Common Stock") may call a special meeting of stockholders, (c) amend
Section 1.7 of the Bylaws relating to inspectors of election, (d) amend Section
1.8 of the Bylaws to provide that directors of the Company shall be elected by a
plurality, and (e) amend Section 6.7 of the Bylaws to provide that any action
taken by the stockholders in amending the Bylaws cannot be modified by the Board
without the approval of the Company's stockholders. The text of the proposed
amendments to the Bylaws are attached hereto as Exhibit A and are collectively
---------
referred to as the "Bylaws Amendments."
The Company and you hereby agree to the following:
1. In response to requests from the La Salle Group and another
stockholder, the Board intends to expand the Board by one additional director
and to fill such vacancy with a nominee satisfactory to both stockholders. The
La Salle Group and such other stockholder have separately agreed with the
Company that Irving R. Beimler ("Mr. Beimler") is an acceptable nominee. No
later than March 25, 1999, the Board shall appoint, subject to the non-objection
of the Office of Thrift Supervision (the "OTS") pursuant to 12 C.F.R. (S)563.585
("OTS Non-Objection"), Irving R. Beimler as a director of the Company for a term
expiring at the Company's annual meeting of stockholders in the year 2000. If
the OTS objects to Mr. Beimler's appointment to the Board or if Mr. Beimler does
not otherwise join the Board, the Board will give first consideration to the
nomination of Peter T. Kross ("Mr. Kross") as a substitute nominee, and, if the
Board approves Mr. Kross as the substitute nominee, the Company shall promptly
submit his nomination for OTS Non-Objection. If the Board does not approve Mr.
Kross as the substitute nominee, the Board and the La Salle Group shall work in
good faith to designate another nominee acceptable to both the La Salle Group
and such other stockholder (the "Substitute Nominee") to serve as a director of
the Company.
The Board is cognizant of its duty to protect the interests of all
of its stockholders in realizing the maximum value of their investment in the
Company, including any value related
<PAGE>
March 26, 1999
Page 2
to a disposition of control of the Company (the so-called "control premium").
The appointment of Mr. Kross or the Substitute Nominee to the Board shall be
subject to OTS Non-Objection and to the execution and delivery to the Company by
Mr. Kross or the Substitute Nominee of his or her written resignation from the
Board, effective upon a breach by the La Salle Group of any provision of this
Agreement and upon the termination of this Agreement.
2. No later than April 28, 1999, the Board shall adopt the Bylaws
Amendments and the Board agrees not to modify the Bylaws Amendments while this
Agreement continues in effect.
3. Upon the Board's approval of Mr. Beimler as a Company director,
each of the members of the La Salle Group shall immediately cause the
Stockholder to withdraw its February 25, 1999 notices of intent to nominate a
director and to propose resolutions for stockholder approval at the Company's
1999 annual meeting of stockholders (the "1999 Annual Meeting") and will not
otherwise propose any matters at the 1999 Annual Meeting.
4. Each of the members of the La Salle Group executing this
Agreement hereby agrees that, from the date of the Board's approval of Mr.
Beimler as a Company director through the date of termination of this Agreement,
the La Salle Group shall not, individually or collectively, (a) make, or in any
way participate, directly or indirectly, in any "solicitation" of "proxies" to
vote (as such terms are used in the proxy rules of the Securities and Exchange
Commission) securities of the Company, or seek to advise or influence any person
or entity with respect to any voting of any securities of the Company, provided,
--------
however, that, subject to paragraph 5 below, Stockholder may vote its securities
- -------
of the Company against any proposal to stockholders made by the Board; (b) call,
or participate in calling, any special meeting of the stockholders of the
Company; or (c) otherwise act alone or in concert with others to seek to control
the management, board of directors or policies of the Company.
5. Notwithstanding anything to the contrary in paragraph 4 hereof,
each of the members of the La Salle Group shall vote all of the securities of
the Company beneficially owned by the La Salle Group for the director nominees
proposed by the Board at the 1999 Annual Meeting.
6. Bank Plus shall reimburse the La Salle Group for up to $50,000
of its out-of-pocket expenses to third parties (including, without limitation,
reasonable attorneys' fees) incurred by the La Salle Group relating to the 1999
Annual Meeting and events regarding this Agreement within ten days after the
Company's receipt of an accounting thereof and supporting documentation
(including documentation from the La Salle Group of fees and expenses incurred
by their outside legal counsel).
7. All parties hereto agree and acknowledge that the Board is
placing material reliance on the terms of this Agreement as a basis of and
condition to the Board's appointment of Mr. Beimler (or Mr. Kross or the
Substitute Nominee, as applicable) as a director of the Company and to the
Board's adoption of the Bylaws Amendments.
8. It is understood and agreed that monetary damages would not be a
sufficient remedy for any breach or threatened breach of this Agreement. Each
party hereto shall be entitled to equitable relief by way of injunction or
specific performance if any other party or any of their respective officers,
directors, investment bankers, attorneys, accountants or other
2
<PAGE>
March 26, 1999
Page 3
representatives breach, or threaten to breach, any of the provisions of this
Agreement, such remedy by way of equitable relief being cumulative, and not
exclusive, of any other remedies and/or rights that the complaining party shall
be entitled to exercise. It is further understood and agreed that no failure or
delay by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any right,
power or privilege hereunder.
9. In the event of any dispute between the parties hereto regarding
the performance or interpretation of this Agreement, the prevailing party shall
be entitled to its reasonable attorneys' fees, costs and other expenses, in
addition to any other relief to which such party may be entitled.
10. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the internal laws of the State of
Delaware, without regard to the principles of conflict of laws.
11. This Agreement shall terminate upon the latest to occur of the
following: (i) October 31, 1999 or (ii) the ending of the first term of office
of Mr. Beimler (or of Mr. Kross or the Substitute Nominee, as applicable, if Mr.
Beimler is not appointed to the Board of the Company).
12. During the term of this Agreement, neither the Company nor any
member of the La Salle Group shall institute any litigation against the other,
except as follows: (a) any party hereto may institute litigation against the
other party (or parties) hereto in the event of, and alleging, a breach of or
default under this Agreement by such other party (or parties); and (b) the
Company may institute litigation against some or all of the members of the La
Salle Group in the event that one or more members of the La Salle Group form,
join or in any way participate in a "group" (a "13(d) Group") within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, with
respect to any voting securities of the Company and one or more members of such
13(d) Group take any action that the members of the La Salle Group are
prohibited from taking under paragraph 4 of this Agreement.
3
<PAGE>
March 26, 1999
Page 4
Kindly confirm that the foregoing represents our understanding and
agreement in respect of this matter by signing below where indicated and
returning the signed copy.
Sincerely,
BANK PLUS CORPORATION
By: /s/ Mark K. Mason
---------------------------------
Mark K. Mason
President and Chief Executive
Officer
The undersigned members of the La Salle Group hereby agree to the foregoing this
26th day of March, 1999.
LA SALLE FINANCIAL PARTNERS, L.P. LA SALLE CAPITAL MANAGEMENT, INC.,
By: La Salle Capital Management, Inc.,
general partner
By: /s/ Richard J. Nelson
------------------------------
By: /s/ Richard J. Nelson Richard J. Nelson, President
------------------------------
Richard J. Nelson, President
TALMAN FINANCIAL, INC.
/s/ Richard J. Nelson
By: /s/ Peter T. Kross ------------------------------
------------------------------ RICHARD J. NELSON
Peter T. Kross, President
/s/ Peter T. Kross
------------------------------
PETER T. KROSS
4
<PAGE>
Exhibit A
---------
Section 1.2 of the By-laws shall be amended and restated in its
entirety as follows:
Section 1.2. Special Meetings. Special meetings of stockholders may
----------------
be called at any time by the Chairman of the Board, if any, the Vice Chairman of
the Board, if any, the President or the Board of Directors, to be held at such
date, time and place either within or without the State of Delaware as may be
stated in the notice of the meeting. A special meeting of stockholders shall be
called upon the written request, stating the purpose of the meeting, of three or
more unaffiliated stockholders who together own not less than one-fifth of the
shares of outstanding capital stock entitled to be voted at the special meeting.
Section 1.7 of the By-laws shall be amended and restated in its
entirety as follows:
Section 1.7. Inspectors. Prior to any meeting of stockholders, the
----------
Board of Directors or the President shall appoint one or more inspectors to act
at such meeting and make a written report thereof and may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is able to act at the meeting of stockholders, the
person presiding at the meeting shall appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and
the voting power of each, determine the shares represented at the meeting and
the validity of proxies and ballots, disposition of any challenges made to any
determination by the inspectors and certify their determination of the number of
shares represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons to assist them in the performance
of their duties. The date and time of the opening and closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxy or vote, nor any revocation thereof
or change thereto, shall be accepted by the inspectors after the closing of the
polls. In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by the proxies, any envelopes
submitted therewith, any information provided by a stockholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of records. If
the inspectors consider their reliable information for such purpose, they shall,
at the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
The sixth sentence of Section 1.8 of the By-laws shall be amended and
restated in its entirety as follows:
5
<PAGE>
Section 1.8. Voting; Proxies. Directors shall be elected by a
---------------
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors.
Section 6.7 of the By-laws shall be amended and restated in its
entirety as follows:
Section 6.7. Amendment of By-Laws. These by-laws may be amended or
--------------------
repealed, and new by-laws adopted, by the Board of Directors, but the
stockholders entitled to vote may adopt additional by-laws and may amend or
repeal any by-law whether or not adopted by them. Any action taken by the
stockholders pursuant to the foregoing sentence, whether adopting additional by-
laws or amending and repealing existing by-laws, may not be modified, directly
or indirectly, by the Board of Directors without the prior approval of the
stockholders entitled to vote.
6
<PAGE>
EXHIBIT 4
Form of Amended and Restated Rights Agreement
AMENDED AND RESTATED
RIGHTS AGREEMENT
dated as of February 3, 1999
by and between
BANK PLUS CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Rights Agent
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
-----------------
Page
----
<S> <C>
Section 1. Certain Definitions....................................................1
-------------------
Section 2. Appointment of Rights Agent............................................6
---------------------------
Section 3. Issuance of Rights Certificates........................................6
-------------------------------
Section 4. Form of Right Certificates.............................................8
--------------------------
Section 5. Countersignature and Registration......................................8
---------------------------------
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;....9
-------------------------------------------------------------------
Mutilated, Destroyed, Lost or Stolen Right Certificates.
-------------------------------------------------------
Section 7. Exercise of Rights.....................................................9
------------------
Section 8. Cancellation and Destruction of Right Certificates.....................11
--------------------------------------------------
Section 9. Reservation and Availability of Capital Stock..........................12
---------------------------------------------
Section 10. Securities Record Date................................................12
----------------------
Section 11. Adjustment of Exercise Price, Number of Shares Issuable Upon
------------------------------------------------------------
Exercise of Rights or Number of Rights....................................13
--------------------------------------
Section 12. Certificate of Adjusted Exercise Price or Number of Shares Issuable
-------------------------------------------------------------------
Upon Exercise of Rights...................................................18
-----------------------
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
--------------------------------------------------------------
Power.....................................................................18
---------
Section 14. Fractional Rights and Fractional Shares...............................21
---------------------------------------
Section 15. Rights of Action......................................................21
----------------
Section 16. Agreement of Right Holders............................................22
--------------------------
Section 17. Right Holder and Right Certificate Holder Not Deemed a Stockholder....22
------------------------------------------------------------------
Section 18. Concerning the Rights Agent...........................................22
---------------------------
Section 19. Merger or Consolidation or Change of Name of Rights Agent.............23
---------------------------------------------------------
Section 20. Duties of Rights Agent................................................23
----------------------
Section 21. Change of Rights Agent................................................26
----------------------
Section 22. Issuance of New Right Certificates....................................27
----------------------------------
Section 23. Redemption of Rights..................................................27
--------------------
Section 24. Exchange of Rights....................................................27
------------------
Section 25. Notice of Certain Events..............................................28
------------------------
Section 26. Notices...............................................................29
-------
Section 27. Supplements and Amendments............................................30
--------------------------
Section 28. Certain Covenants.....................................................30
-----------------
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 29. Successors............................................................31
----------
Section 30. Benefits of this Agreement............................................31
--------------------------
Section 31. Severability..........................................................31
------------
Section 32. Governing Law.........................................................31
-------------
Section 33. Counterparts..........................................................31
------------
Section 34. Descriptive Headings..................................................31
--------------------
</TABLE>
TABLE OF EXHIBITS
-----------------
Exhibit A -- Form of Right Certificate
ii
<PAGE>
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Rights Agreement (the "Agreement") is made
and entered into as of the 3rd day of February, 1999 and amended and restated on
the 29th day of March, 1999 by and between BANK PLUS CORPORATION, a Delaware
corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New
York banking corporation (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement as of February 3, 1999 (the "Original Agreement");
WHEREAS, on February 3, 1999, the Board of Directors of the Company
authorized and declared a dividend of one preferred share purchase right (a
"Right") for each Common Share (as hereinafter defined) of the Company
outstanding on February 16, 1999 (the "Record Date"), each Right representing
the right to purchase one one-hundredth of a Preferred Share (as hereinafter
defined), upon the terms and subject to the conditions set forth in the Original
Agreement, and further authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between the Record
Date and the earliest of the Distribution Date, the Redemption Date or the
Expiration Date (as such terms are hereinafter defined).
WHEREAS, the Board of Directors of the Company desires to amend and
restate the Original Agreement in its entirety.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties hereto hereby agree to amend and
restate the Original Agreement in its entirety as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
-------------------
following terms have the meanings indicated:
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 promulgated under the Exchange Act, as in
effect on the date hereof.
A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to "Beneficially Own" any securities:
(i) that such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly, for purposes of Section 13(d) of
the Exchange Act and Rule 13d-3 promulgated under the Exchange Act, in each
case as in effect on the date hereof;
(ii) that such Person or any of such Person's Affiliates or Associates
has the right to acquire (whether such right is exercisable immediately, or
only after the passage of time, compliance with regulatory requirements,
the fulfillment of a condition or otherwise) pursuant to any agreement,
arrangement or understanding, or upon the
<PAGE>
exercise of conversion rights, exchange rights (other than these Rights),
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 offer 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;
(iii) that such Person or any such Person's Affiliates or Associates
has the right to vote, whether alone or in concert with others, pursuant to
any agreement, arrangement or understanding, provided, however, that a
-------- -------
Person shall not be deemed the Beneficial Owner of, or to Beneficially Own,
any security if the agreement, arrangement or understanding to vote such
security (A) arises solely from a revocable proxy given to such Person or
any of such Person's Affiliates or Associates in response to a public proxy
solicitation made pursuant to and in accordance with the applicable rules
and regulations promulgated under the Exchange Act, and (B) is not also
then reportable on Schedule 13D under the Exchange Act (or any comparable
or successor report);
(iv) that are Beneficially Owned, directly or indirectly, by any other
Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding for the purpose
of acquiring, holding, voting (other than voting pursuant to a revocable
proxy as described in the proviso to clause (iii) of this definition of
"Beneficial Owner") or disposing of any securities of the Company; and
(v) that, on any day on or after the Distribution Date, evidence
Rights that prior to such date were represented by certificates for Common
Shares that such Person Beneficially Owns on such day.
Notwithstanding anything to the contrary in clauses (i)-(v) above, a Person
engaged in business as an underwriter of securities shall not be deemed to be
the Beneficial Owner of, or to Beneficially Own, any securities acquired through
such Person's participation in good faith in a firm commitment underwriting
until the expiration of 40 days after the date of such acquisition.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in the State of California are authorized or
obligated by law or executive order to close.
"Certificate of Designations" shall mean the certificate of
designations specifying the powers, designations, preferences and rights of the
Preferred Shares in accordance with the Delaware General Corporation Law.
"Close of Business" on any given date shall mean 5:00 p.m., California
time, on such date; provided, however, that if such date is not a Business Day,
-------- -------
it shall mean 5:00 p.m., California time, on the next succeeding Business Day.
2
<PAGE>
"Closing Price" of a stock or other security on any day shall be the
last sale price, regular way, per share of such stock or unit of such other
security on such day 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 in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if such stock or other security is not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such stock or other security is listed or admitted
to trading or, if such stock or other security is not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported on the Nasdaq National Market ("NASDAQ") or such other
system then in use or, if on any such date such stock or other security is not
quoted by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker that makes a market in such stock or
other security and that is selected by the Board of Directors of the Company.
"Common Share" shall mean one share of the Common Stock, par value
$.01 per share, of the Company, unless used with reference to a Person other
than the Company, in which case it shall mean one share of each class of stock
of such Person having the right to vote generally in the election of directors
or, if such Person is a Subsidiary of another Person, one Common Share of the
Person that ultimately controls such Person.
"Common Share Equivalent" shall have the meaning ascribed to it in
Section 11(a)(iii) hereof.
"Current Market Price" per share of a stock or unit of any other
security on any date shall mean the average of the daily Closing Prices of such
stock or other security for the 30 consecutive Trading Days through and
including the Trading Day immediately preceding the date in question; provided,
--------
however, that if any event shall have caused the Closing Price on any Trading
- -------
Day during such 30-day period not to be fully comparable with the Closing Price
on the date in question (or, if no Closing Price is available on the date in
question, on the Trading Day immediately preceding the date in question), then
each such non-comparable Closing Price so used shall be appropriately adjusted
by the Board of Directors in order to make the Closing Price on each Trading Day
during the period used for the determination of the Current Market Price fully
comparable with the Closing Price on such date in question (or, if applicable,
the immediately preceding Trading Day). "Current Market Price" per share of any
stock or unit of such other security that is not publicly held or so listed or
traded, and "Current Market Price" of any other property, shall mean the fair
value per share of such stock or unit of such other security, or the fair value
of such other property, respectively, as determined in good faith by the Board
of Directors of the Company based upon such appraisals or valuation reports of
such independent experts as the Board of Directors shall in good faith determine
appropriate, which determination shall be described in a statement filed by the
Company with the Rights Agent.
"Distribution Date" shall have the meaning ascribed to it in Section 3
hereof.
3
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exempt Person" shall mean the Company, any wholly-owned Subsidiary of
the Company, any employee benefit plan of the Company or of a Subsidiary of the
Company and any Person holding Voting Shares for or pursuant to the terms of any
such employee benefit plan.
"Exercise Price" shall have the meaning ascribed to it in Section 7(c)
hereof.
"Expiration Date" shall mean February 3, 2009.
"15% Ownership Date" shall mean the first date of public announcement
(which, for purposes of this definition, shall include, without limitation, a
report filed pursuant to Section 13(d) of the Exchange Act) by the Company or a
15% Stockholder containing the facts by virtue of which a Person has become a
15% Stockholder.
"15% Stockholder" shall mean any Person that Beneficially Owns 15% or
more of the Voting Shares of the Company then outstanding; provided, however,
-------- -------
that the term "15% Stockholder" shall not include: (i) an Exempt Person; (ii)
any Person that would not otherwise be a 15% Stockholder but for a reduction in
the number of outstanding Voting Shares resulting from a stock repurchase
program or other similar plan of the Company or from a self tender offer of the
Company, which plan or tender offer commenced on or after the date hereof;
provided, however, that the term "15% Stockholder" shall include such Person
- -------- -------
from and after the first date upon which (A) such Person, since the date of the
commencement of such plan or tender offer, shall have acquired Beneficial
Ownership of, in the aggregate, a number of Voting Shares of the Company equal
to 1% or more of the Voting Shares of the Company then outstanding and (B) such
Person, together with all Affiliates and Associates of such Person, shall
Beneficially Own 15% or more of the Voting Shares of the Company then
outstanding; (iii) any Person that would not otherwise be a 15% Stockholder but
for its Beneficial Ownership of Rights; (iv) any Person that is the Beneficial
Owner of 15% or more of the outstanding Voting Shares of the Company as of
February 3, 1999; provided, however, that the term "15% Stockholder" shall
-------- -------
include such Person from and after the first date upon which (A) such Person,
since February 3, 1999, shall have acquired, without the prior approval of the
Board of Directors of the Company, Beneficial Ownership of, in the aggregate, a
number of Voting Shares of the Company equal to 1% or more of the Voting Shares
of the Company then outstanding and (B) such Person, together with all
Affiliates and Associates of such Person, shall Beneficially Own 15% or more of
the Voting Shares of the Company then outstanding; or (v) any Person (a
"Transferee") that acquires Voting Shares from a Person described in clause (iv)
above that has not become a 15% Stockholder if, after giving effect to such
acquisition, such Transferee Beneficially Owns no more than the sum of the
Voting Shares so acquired plus 1% of the Voting Shares then outstanding;
provided, however, that the term "15% Stockholder" shall include such Transferee
- -------- -------
from and after the first date upon which (A) such Transferee, since the date of
such acquisition, shall have acquired, without the prior approval of the Board
of Directors of the Company, Beneficial Ownership of, in the aggregate, a number
of Voting Shares of the Company equal to 1% or more of the Voting Shares of the
Company then outstanding and
4
<PAGE>
(B) such Transferee, together with all Affiliates and Associates of such
Transferee, shall Beneficially Own 15% or more of the Voting Shares of the
Company then outstanding. In calculating the percentage of the outstanding
Voting Shares that are Beneficially Owned by a Person for purposes of this
definition, Voting Shares that are Beneficially Owned by such Person shall be
deemed outstanding, and Voting Shares that are not Beneficially Owned by such
Person and that are subject to issuance upon the exercise or conversion of
outstanding conversion rights, exchange rights, rights, warrants or options
shall not be deemed outstanding. Any determination made by the Board of
Directors of the Company as to whether any Person is or is not a 15% Stockholder
shall be conclusive and binding upon all holders of Rights. Notwithstanding
anything to the contrary in this paragraph, in the event that two or more
Persons, each of whom would not otherwise be a 15% Stockholder and who
collectively would not otherwise be a 15% Stockholder, exercise their right to
call a special meeting of stockholders of the Company in accordance with the
terms of the Amended and Restated Bylaws of the Company, such Persons shall not
be deemed to be a 15% Stockholder solely by reason of the calling of such
special meeting of stockholders.
"Person" shall mean any individual, firm, partnership, corporation,
association, group (as such term is used in Rule 13d-5 promulgated under the
Exchange Act as in effect on the date hereof) or other entity, and shall include
any successor (by merger or otherwise) of such entity.
"Preferred Share" shall mean one share of the Series C Junior
Participating Cumulative Preferred Stock, par value $.01 per share, of the
Company, which shall have the rights and preferences set forth in the
Certificate of Designations for the Preferred Shares.
"Preferred Share Equivalent" shall have the meaning ascribed to it in
Section 11(b) hereof.
"Record Date" shall have the meaning ascribed to it in the recitals
hereto.
"Redemption Date" shall mean the date of the action of the Board of
Directors of the Company authorizing and directing the redemption of the Rights
pursuant to Section 23(a) hereof or the exchange of the Rights pursuant to
Section 24(a) hereof.
"Redemption Price" shall have the meaning ascribed to it in Section
23(a) hereof.
"Right Certificate", as that term is used with respect to any period
prior to the Distribution Date, shall have the meaning ascribed to it in Section
3(b) hereof, and, as that term is used with respect to any period on or after
the Distribution Date, shall have the meaning ascribed to it in Section 3(c)
hereof.
"Rights Expiration Date" shall mean the Expiration Date, except if
there has been a Distribution Date, then it shall mean the tenth anniversary of
the Distribution Date.
"Section 11(a)(ii) Event " shall have the meaning ascribed to it in
Section 11(a)(ii) hereof.
5
<PAGE>
"Section 13(a) Event " shall have the meaning ascribed to it in
Section 13(a) hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Subsidiary" of any Person shall mean any corporation or other Person
of which equity securities or equity interests representing a majority of the
voting power are owned, directly or indirectly, or which is effectively
controlled, by such Person.
"Surviving Person" shall have the meaning ascribed to it in Section
13(a) hereof.
"Trading Day" shall mean, as to any stock or other security, a day on
which the principal national securities exchange on which such stock or other
security is listed or admitted to trading is open for the transaction of
business or, if such stock or other security is not listed or admitted to
trading on any national securities exchange, a Business Day.
"Voting Share" shall mean (i) a Common Share of the Company and (ii)
any other share of capital stock of the Company entitled to vote generally in
the election of directors or entitled to vote together with the Common Shares in
respect of any merger, consolidation, sale of all or substantially all of the
Company's assets, liquidation, dissolution or winding up. References in this
Agreement to a percentage or portion of the outstanding Voting Shares shall be
deemed a reference to the percentage or portion of the total votes entitled to
be cast by the holders of the outstanding Voting Shares.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
---------------------------
Rights Agent to act as agent for the Company and the holders of Rights in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable.
Section 3. Issuance of Rights Certificates.
-------------------------------
(a) "Distribution Date" shall mean the date, after the date hereof,
that is the earliest of (i) the tenth Business Day (or such later day as shall
be designated by the Board of Directors of the Company) following the date of
the commencement of, or the first public announcement of the intent of any
Person, other than an Exempt Person, to commence a tender offer or exchange
offer, the consummation of which would cause any Person to become a 15%
Stockholder, (ii) the date of the first Section 11(a)(ii) Event or (iii) the
date of the first Section 13(a) Event.
(b) Until the Distribution Date, (i) the Rights shall be represented
by certificates for Common Shares (all of which certificates for Common Shares
shall be deemed to be Right Certificates) and not by separate Right
Certificates, (ii) the record holder of the Common Shares represented by each of
such certificates shall be the record holder of the Rights represented thereby
and (iii) the Rights shall be transferable only in connection with the transfer
of Common Shares. Until the earliest of the Distribution Date, the Redemption
Date or the
6
<PAGE>
Expiration Date, the surrender for transfer of such certificates for Common
Shares shall also constitute the surrender for transfer of the Rights
represented thereby.
(c) As soon as practicable after the Distribution Date, and after
notification by the Company, the Rights Agent shall send, at the expense of the
Company, by first-class, postage-prepaid mail to each record holder of Common
Shares, as of the Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate
substantially in the form of Exhibit A hereto representing one Right for each
---------
Common Share so held. From and after the Distribution Date, the Rights shall be
represented solely by such Right Certificates and may only be transferred by the
transfer of such Right Certificates, and the holders of such Right Certificates,
as listed in the records of the Company or any transfer agent or registrar for
such Rights, shall be the record holders of such Rights.
(d) Certificates for Common Shares issued at any time after the Record
Date and prior to the earliest of the Distribution Date, the Redemption Date or
the Expiration Date, 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 dated as of February 3, 1999 by
and between Bank Plus Corporation and American Stock Transfer & Trust
Company, as Rights Agent (the "Rights Agreement"), as amended to date, the
terms and conditions of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive offices of Bank
Plus Corporation. Under certain circumstances specified in the Rights
Agreement, such Rights will be represented by separate certificates and
will no longer be represented by this certificate. Under certain
circumstances specified in the Rights Agreement, Rights beneficially owned
by certain persons may become null and void. Bank Plus Corporation will
mail to the record holder of this certificate a copy of the Rights
Agreement without charge promptly following receipt of a written request
therefor. As described in the Rights Agreement, Rights Beneficially Owned
by any Person who becomes a 15% Stockholder or any Affiliate or Associate
of a 15% Stockholder (as such capitalized terms are defined in the Rights
Agreement) shall become null and void.
(e) Certificates for Common Shares issued at any time on or after the
Distribution Date and prior to the earlier of the Redemption Date or the Rights
Expiration Date shall have impressed on, printed on, written on or otherwise
affixed to them the following legend:
This certificate does not represent any Right issued pursuant to the terms
of a Rights Agreement dated as of February 3, 1999 by and between Bank Plus
Corporation and American Stock Transfer & Trust Company, as Rights Agent.
(f) In the event that at any time on or after the earlier of the date
of the first Section 11(a)(ii) Event or the date of the first Section 13(a)
Event and prior to the earlier of the
7
<PAGE>
Redemption Date or the Rights Expiration Date, the Company shall issue any
Common Shares pursuant to the exercise of conversion rights, exchange rights,
rights (other than Rights), warrants or options that shall have been issued or
granted prior to the earlier of the date of the first Section 11(a)(ii) Event or
the date of the first Section 13(a) Event, then, unless the Board of Directors
of the Company shall have provided otherwise at the time of the issuance or
grant of such conversion rights, exchange rights, rights (other than Rights),
warrants or options, the Rights Agent shall, as soon as practicable after the
date of such event, send by first-class, postage-prepaid mail to the record
holder of such Common Shares, at the address of such holder as shown on the
records of the Company, a Right Certificate substantially in the form of
Exhibit A hereto representing one Right for each Common Share so issued.
- ---------
(h) Notwithstanding the foregoing provisions of this Section , the
Rights Agent shall not send any Right Certificate to any 15% Stockholder or any
of its Affiliates or Associates or to any Person if the Rights held by such
Person are Beneficially Owned by a 15% Stockholder or any of its Affiliates or
Associates. Any determination made by the Board of Directors of the Company as
to whether any Common Shares are or were Beneficially Owned at any time by a 15%
Stockholder or an Affiliate or Associate of a 15% Stockholder shall be
conclusive and binding upon all holders of Rights.
Section 4. Form of Right Certificates. The Right Certificates and the
--------------------------
form of assignment, including certificate, and the form of election to purchase,
including certificate, printed on the reverse thereof, when, as and if issued,
shall be substantially the same as Exhibit A hereto, and may have such marks of
---------
identification or designation and such legends, summaries or endorsements
printed thereon as the Company 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 or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange upon which the Rights or the securities
of the Company issuable upon exercise of the Rights may from time to time be
listed, or to conform to usage. Subject to Section 22 hereof, Right
Certificates, whenever issued, that are issued in respect of Common Shares that
were issued and outstanding as of the Close of Business on the Distribution
Date, shall be dated as of the Distribution Date.
Section 5. Countersignature and Registration.
---------------------------------
(a) The Right Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, its President or
any Vice President, either manually or by facsimile signature, and may have
affixed thereto the Company's seal or a facsimile thereof attested by its
Secretary or any Assistant Secretary, 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 Company who shall have signed any of the Right Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent
and issuance and delivery by the Company, such Right Certificates may
nevertheless be countersigned by the Rights Agent and issued and delivered by
the Company with the same force and effect as though the person who signed such
Right Certificates had not ceased to be such officer of the Company. Any Right
8
<PAGE>
Certificate may be signed on behalf of the Company by any person who at the
actual date of such execution shall be a proper officer of the Company to sign
such Right Certificate, even though such person was not such an officer at the
date of the execution of this Agreement.
(b) Following the Distribution Date, the Rights Agent shall keep or
cause to be kept at its principal offices books for registration and transfer of
the Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of Right Certificates, the number of Rights
represented on its face by each Right Certificate and the date of each Right
Certificate.
Section 6. Transfer, Split Up, Combination and Exchange of Right
-----------------------------------------------------
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
---------------------------------------------------------------------
(a) Subject to the provisions of Sections 6(c), 7(d) and 14 hereof, at
any time after the Close of Business on the Distribution Date, and so long as
the Rights represented thereby remain outstanding, any one or more Right
Certificates may be transferred, split-up, combined or exchanged for one or more
Right Certificates representing the same aggregate number of Rights as the Right
Certificates surrendered. Any registered holder desiring to transfer, split up,
combine or exchange one or more Right Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Right
Certificates to be transferred, split up, combined or exchanged at the office of
the Rights Agent with the form of assignment, including certificate, on the
reverse side thereof completed and duly executed, with signature guaranteed.
Thereupon, the Rights Agent shall countersign and deliver to the person entitled
thereto one or more Right Certificates, as so requested. The Company 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 Company 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 Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
such Right Certificate if mutilated, the Company shall issue and deliver to the
Rights Agent for delivery to the record holder of such Right Certificate a new
Right Certificate of like tenor in lieu of such lost, stolen, destroyed or
mutilated Right Certificate.
(c) Notwithstanding anything to the contrary in this Section 6, the
Rights Agent shall not countersign and deliver a Right Certificate to any Person
if such Right Certificate represents, or would represent when held by such
Person, Rights that had become or would become null and void pursuant to Section
7(d) hereof.
Section 7. Exercise of Rights.
------------------
(a) Until the Distribution Date, no Right may be exercised.
9
<PAGE>
(b) Subject to Section 7(d) and (g) hereof and the other provisions of
this Agreement, at any time after the Close of Business on the Distribution Date
and prior to the Close of Business on the earlier of the Redemption Date or the
Rights Expiration Date, the registered holder of any Right Certificate may
exercise the Rights represented thereby in whole or in part upon surrender of
such Right Certificate, with the form of election to purchase, including
certificate, on the reverse side thereof completed and duly executed, with
signature guaranteed, to the Rights Agent at the office of the Rights Agent at
American Stock Transfer & Trust Company, 40 Wall Street, 46th Floor, New York,
New York 10005, together with payment of the Exercise Price for each Right
exercised. Upon the exercise of an exercisable Right and payment of the
Exercise Price in accordance with the provisions of this Agreement, the holder
of such Right shall be entitled to receive, subject to adjustment as provided
herein, one one-hundredth of a Preferred Share (or, following the occurrence of
a Section 11(a)(ii) Event or a Section 13(a) Event, Common Shares and/or other
securities).
(c) The "Exercise Price" for the exercise of each Right shall
initially be $25.00 and shall be payable in lawful money of the United States of
America in accordance with Section 7(f) hereof. The Exercise Price and the
number of Preferred Shares (or, following the occurrence of a Section 11(a)(ii)
Event or a Section 13(a) Event, Common Shares and/or other securities) to be
acquired upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 7(e), 11 and 13 hereof and the other provisions of
this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary, from
and after the earlier of the date of the first Section 11(a)(ii) Event or the
date of the first Section 13(a) Event, any Rights that are or were Beneficially
Owned by a 15% Stockholder or any Affiliate or Associate of a 15% Stockholder at
any time on or after the Distribution Date shall be null and void, and for all
purposes of this Agreement such Rights shall thereafter be deemed not to be
outstanding, and any holder of such Rights (whether or not such holder is a 15%
Stockholder or an Affiliate or Associate of a 15% Stockholder) shall thereafter
have no right to exercise such Rights.
(e) Prior to the Distribution Date, if the Board of Directors of the
Company shall have determined that such action adequately protects the interests
of the holders of Rights, the Company may, in its discretion, substitute for all
or any portion of the Preferred Shares that would otherwise be issuable (after
the Close of Business on the Distribution Date) upon the exercise of each Right
and payment of the Exercise Price (i) cash, (ii) other equity securities of the
Company, (iii) debt securities of the Company, (iv) other property or (v) any
combination of the foregoing, in each case having an aggregate Current Market
Price equal to the aggregate Current Market Price of the Preferred Shares for
which substitution is made. Subject to Section 7(d) hereof, in the event that
the Company takes any action pursuant to this Section 7(e), such action shall
apply uniformly to all outstanding Rights.
(f) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase, including certificate, completed
and duly executed, with signature guaranteed, accompanied by payment of the
Exercise Price for each Right to be exercised and an amount equal to any
applicable transfer tax required to be paid by the holder of
10
<PAGE>
such Right Certificate in accordance with Section 9 hereof by certified check or
cashier's check payable to the order of the Company, the Rights Agent shall
thereupon promptly (i) requisition from the transfer agent of the Preferred
Shares (or, following the occurrence of a Section 11(a)(ii) Event or a Section
13(a) Event, Common Shares and/or securities) certificates for the number of
Preferred Shares (or such other securities) to be purchased, and the Company
hereby irrevocably authorizes such transfer agent to comply with all such
requests, and/or, as provided in Section 14 hereof, requisition from the
depositary agent described therein depositary receipts representing such number
of one-hundredths of a Preferred Share (or such other securities) as are to be
purchased (in which case certificates for the Preferred Shares (or such other
securities) represented by such receipts shall be deposited by the transfer
agent with such depositary agent) and the Company hereby directs such depositary
agent to comply with such request, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of fractional
Preferred Shares (or such other securities) in accordance with Section 14
hereof, (iii) after receipt of such certificates, depositary receipts or cash,
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) when appropriate, after receipt thereof, deliver such cash
to or upon the order of the registered holder of such Right Certificate.
(g) Notwithstanding the foregoing provisions of this Section 7, the
exercisability of the Rights shall be suspended for such period as shall
reasonably be necessary for the Company to register and qualify under the
Securities Act and any applicable securities law of any jurisdiction the
Preferred Shares and/or Common Shares or other securities to be issued pursuant
to the exercise of the Rights; provided, however, that nothing contained in this
-------- -------
Section 7 shall relieve the Company of its obligations under Section 9(c)
hereof.
(h) In case the registered holder of any Right Certificate shall
exercise less than all of the Rights represented thereby, a new Right
Certificate representing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent to the registered holder of such Right
Certificate or to such holder's duly authorized assigns, subject to the
provisions of Section 14 hereof.
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 Company 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
this Agreement. The Company 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 Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all canceled Right Certificates
to the Company or shall, at the written request of the Company, destroy such
canceled Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
11
<PAGE>
Section 9. Reservation and Availability of Capital Stock.
---------------------------------------------
(a) Subject to Sections 7(e) and 9(f) hereof, the Company shall cause
to be reserved and kept available out of its authorized and unissued equity
securities (or out of its authorized and issued equity securities held in its
treasury), the number of such equity securities that will from time to time be
sufficient to permit the exercise in full of all outstanding Rights.
(b) In the event that any securities issuable upon exercise of the
Rights are listed on any national securities exchange, the Company shall use its
best efforts, from and after such time as the Rights become exercisable, to
cause all such securities issued or reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such exercise.
(c) If necessary to permit the issuance of securities upon exercise of
the Rights, the Company shall use its best efforts, from and after the
Distribution Date, to register and qualify such securities under the Securities
Act, the Exchange Act and any other applicable securities laws and to keep such
registration effective until the earlier of the Redemption Date or the Rights
Expiration Date.
(d) The Company shall take all such action as may be necessary to
ensure that all securities delivered upon exercise of the Rights shall, at the
time of delivery of the certificates for such securities (subject to payment of
the Exercise Price), be duly and validly authorized and issued and fully paid
and nonassessable securities.
(e) The Company shall pay when due and payable any and all federal and
state transfer taxes and charges that may be payable in respect of the issuance
or delivery of the Right Certificates or of any securities upon the exercise of
Rights. The Company shall not, however, be required to pay any transfer tax that
may be payable in respect of any transfer or delivery of a Right Certificate to
a Person other than, or the issuance or delivery of a certificate for securities
in respect of a name other than that of, the registered holder of the Right
Certificate representing Rights surrendered for exercise, or to issue or deliver
any certificate for securities upon the exercise of any Right 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
Company's satisfaction that no such tax is due.
(f) With respect to the Common Shares and/or other securities issuable
pursuant to Section 11(a)(ii) and (iii) hereof, the foregoing covenants shall be
applicable only upon and following the occurrence of a Section 11(a)(ii) Event.
Section 10. Securities Record Date. Each Person in whose name any
----------------------
certificate for securities of the Company is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
securities represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate representing such Rights was duly surrendered
and payment of the Exercise 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 securities transfer books of the Company are closed, such person
shall be deemed to have
12
<PAGE>
become the record holder of such securities on, and such certificate shall be
dated, the next succeeding Business Day on which the securities transfer books
of the Company are open.
Section 11. Adjustment of Exercise Price, Number of Shares Issuable Upon
------------------------------------------------------------
Exercise of Rights or Number of Rights. The Exercise Price, the
--------------------------------------
number and kind of securities that may be purchased upon exercise of a 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 that the Company shall at any time after the Close
of Business on the Record Date and prior to the Close of Business on the
earlier of the Redemption Date or the Rights Expiration Date (A) declare or
pay any dividend on the Preferred Shares payable in Preferred Shares or
Voting Shares, (B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of Preferred Shares
or (D) issue Preferred Shares or other securities of the Company (other
than those for which an adjustment is required under Section 11(b) hereof)
in a reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) or in a reorganization
of the Company, then, and upon each such event, the number and kind of
Preferred Shares or other securities issuable upon the exercise of a Right
on the date of such event shall be proportionately adjusted so that the
holder of any Right exercised on or after such date shall be entitled to
receive, upon the exercise thereof and payment of the Exercise Price, the
aggregate number and kind of Preferred Shares or other securities or other
property, as the case may be, that, if such Right had been exercised
immediately prior to such date and at a time when such Right was
exercisable and the transfer books of the Company were open, such holder
would have owned upon such exercise and would have been entitled to receive
by virtue of such dividend, subdivision, combination or reclassification.
If an event occurs that would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) In the event that a 15% Ownership Date shall have occurred and
neither the Redemption Date nor the Expiration Date shall have occurred
prior to the tenth Business Day following such 15% Ownership Date (a
"Section 11(a)(ii) Event"), then, and upon each such Section 11(a)(ii)
Event, proper provision shall be made so that, except as provided in
Section 7(d) hereof, each holder of a Right shall thereafter have the right
to receive, upon the exercise thereof in accordance with the terms of this
Agreement and payment of the then current Exercise Price, such number of
Common Shares of the Company as shall equal the result obtained by (A)
multiplying the then current Exercise Price by the then number of one-
hundredths of a Preferred Share for which a Right was exercisable
immediately prior to such Section 11(a)(ii) Event (or, if the Distribution
Date shall not have occurred prior to the date of such Section 11(a)(ii)
Event, the number of one-hundredths of a Preferred Share for which a Right
would have been exercisable if the Distribution Date had occurred on the
Business Day immediately preceding the date of such Section 11(a)(ii)
Event), and (B) dividing that product by 50% of the Current
13
<PAGE>
Market Price of a Common Share on the date of occurrence of the relevant
Section 11(a)(ii) Event (such number of shares being hereinafter referred
to as the "Adjustment Shares"). Successive adjustments shall be made
pursuant to this paragraph each time a Section 11(a)(ii) Event occurs.
(iii) In the event that on the date of a Section 11(a)(ii) Event the
aggregate number of Common Shares that are authorized by the Company's
Certificate of Incorporation, as amended from time to time, but not
outstanding or reserved for issuance for purposes other than upon exercise
of the Rights is less than the aggregate number of Adjustment Shares
thereafter issuable upon the exercise in full of the Rights in accordance
with Section 11(a)(ii) hereof (the excess of such number of Adjustment
Shares over and above such number of Common Shares being hereinafter
referred to as the "Unavailable Adjustment Shares"), then, and upon each
such event, the Company shall substitute for the pro rata portion of the
Unavailable Adjustment Shares that would otherwise be issuable thereafter
upon the exercise of each Right and payment of the Exercise Price (A) cash,
(B) other equity securities of the Company (including, without limitation,
shares of preferred stock of the Company or units of such shares having the
same Current Market Price as one Common Share (a "Common Share
Equivalent")), (C) debt securities of the Company, (D) other property or
(E) any combination of the foregoing, in each case having an aggregate
Current Market Price equal to the aggregate Current Market Price of the
Unavailable Adjustment Shares for which substitution is made. Subject to
Section 7(d) hereof, in the event that the Company takes any action
pursuant to this Section 11(a)(iii), such action shall apply uniformly to
all outstanding Rights.
(b) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the earlier
of the Redemption Date or the Rights Expiration Date, fix a record date for the
issuance of rights, options or warrants to all holders of Preferred Shares
entitling them initially to subscribe for or purchase Preferred Shares (or
shares having the same rights, privileges and preferences as the Preferred
Shares ("Preferred Share Equivalents")) or securities convertible into Preferred
Shares or Preferred Share Equivalents, at a price per Preferred Share or
Preferred Share Equivalent (or having a conversion price per share, if a
security convertible into Preferred Shares or Preferred Share Equivalents) less
than the Current Market Price per Preferred Share on such record date, then, and
upon each such event, the Exercise Price to be in effect after such record date
shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be equal
to the sum of the number of Preferred Shares outstanding on such record date
plus the number of Preferred Shares that the aggregate offering price of the
total number of Preferred Shares and/or Preferred Share Equivalents to be so
offered (and/or the aggregate initial conversion price of the convertible
securities to be so offered) would purchase at such Current Market Price, and
the denominator of which shall be equal to the number of Preferred Shares
outstanding on such record date plus the number of additional Preferred Shares
and/or Preferred Share Equivalents to be offered for subscription or purchase
(or into which the convertible securities to be so offered are initially
convertible); provided, however, that if such rights, options or warrants are
-------- -------
not exercisable immediately upon issuance
14
<PAGE>
but become exercisable only upon the occurrence of a specified event or the
passage of a specified period of time, then the adjustment to the Exercise Price
shall be made and become effective only upon the occurrence of such event or
such passage of time, and such adjustment shall be made as if the record date
for the issuance of such rights, options or warrants had been the Business Day
immediately preceding the date upon which such rights, options or warrants
became exercisable. Preferred Shares owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such computation.
Such adjustment to the Exercise Price 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 Exercise Price shall be adjusted to be the Exercise Price that would
then be in effect if such record date had not been fixed.
(c) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the earlier
of the Redemption Date or the Rights Expiration Date, fix a record date for the
making of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in which the
Company is the surviving corporation) of assets (other than a distribution for
which an adjustment is required under Section 11(a)(i) or (b) hereof or a
regular quarterly cash dividend), then the Exercise Price to be in effect after
such record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be equal to the excess of the Current Market Price per Preferred Share on
such record date over and above the fair market value of the portion of the
securities or assets to be so distributed with respect to one Preferred Share,
and the denominator of which shall be equal to such Current Market Price per
Preferred Share. Such adjustments shall be made successively whenever such a
record date is fixed, and in the event that such a distribution is not so made,
the Exercise Price shall be adjusted to be the Exercise Price that would then be
in effect if such record date had not been fixed.
(d) For the purpose of any computation under this Section 11, if the
Preferred Shares are not publicly held or traded, the "Current Market Price" per
Preferred Share shall be conclusively deemed to be the Current Market Price per
Common Share multiplied by 100.
(e) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the then
current Exercise Price; provided, however, that any adjustments that by reason
-------- -------
of this Section 11(e) are not required to be made shall be cumulated 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-thousandth of a
Common Share or other share or one-millionth of a Preferred Share, as the case
may be.
(f) If, as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right shall, upon exercise thereof, be entitled to
receive any securities of the Company other than Preferred Shares, and if an
event occurs in respect of such securities that, if it were to occur in respect
of Preferred Shares, would require an adjustment under this Section 11 in
respect of Preferred Shares, then the number of such other securities so
receivable upon exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms
15
<PAGE>
as nearly equivalent as practicable to the provisions with respect to Preferred
Shares contained in this Section 11, and the other provisions of this Agreement
with respect to Preferred Shares shall apply on like terms to any such other
securities.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Exercise Price hereunder shall represent the right to
purchase, at the adjusted Exercise Price, the number of 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 Company shall have exercised its election as provided
in Section 11(i) below, upon each adjustment of the Exercise Price as a result
of the calculations made in Sections 11(b) and (c) hereof, each Right
outstanding immediately prior to the making of such adjustment shall thereafter
represent the right to purchase, at the adjusted Exercise Price, that number of
one-hundredths of a Preferred Share (calculated to the nearest one-millionth of
a Preferred Share) obtained by multiplying (i) the number of one-hundredths of a
Preferred Share purchasable upon the exercise of one Right immediately prior to
such adjustment of the Exercise Price by (ii) the Exercise Price in effect
immediately prior to such adjustment, and dividing the product so obtained by
the Exercise Price in effect immediately after such adjustment.
(i) The Company may elect, on or after the date of any adjustment of
the Exercise Price, to adjust the number of Rights instead of making any
adjustment in the number of Preferred Shares 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-hundredths of a Preferred
Share for which a 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 one one-thousandth of a
Right) obtained by dividing the Exercise Price in effect immediately prior to
the adjustment of the Exercise Price by the Exercise Price in effect immediately
after such adjustment of the Exercise Price. The Company shall make a public
announcement of its election to adjust the number of Rights pursuant to this
Section 11(i), indicating the record date for the adjustment and, if known at
the time, the amount of the adjustment to be made. Such record date may be the
date on which the Exercise Price is adjusted or any day thereafter, but, if
separate Right Certificates have been issued, it shall be at least 10 days after
the date of such public announcement. If separate Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right Certificates
representing, 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 Company, 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 such adjustment, and upon surrender thereof if required by the Company,
new Right Certificates representing all the Rights to which such holders shall
be entitled after such adjustment. Right Certificates to be so distributed
shall be issued, executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted Exercise 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.
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(j) Irrespective of any adjustment or change in the Exercise Price or
the number of one-hundredths of a Preferred Share issuable upon the exercise of
one Right, the Right Certificates theretofore and thereafter issued may continue
to express the Exercise Price per one one-hundredth of a Preferred Share and the
number of Preferred Shares issuable upon the exercise of one Right that were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Exercise Price below one one-hundredth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Company shall take
any corporate action that may, in the advice or opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable one one-hundredths of a Preferred Share at such adjusted Exercise
Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company 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 number of one-hundredths of a Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of one-hundredths of a Preferred Share and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Exercise Price in effect prior to such adjustment; provided, however, that
-------- -------
the Company shall deliver to such holder a due bill or other appropriate
instrument representing 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
Company shall be entitled to make such further adjustments in the number of one-
hundredths of a Preferred Share that may be purchased upon exercise of one
Right, and such further adjustments in the Exercise Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent that the
Company in its sole discretion shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Shares, (ii) issuance wholly
for cash of any Preferred Shares at less than the Current Market Price thereof,
(iii) issuance wholly for cash of Preferred Shares or securities that by their
terms are convertible into or exchangeable for Preferred Shares, (iv) dividends
on Preferred Shares payable in Preferred Shares or (v) issuance of rights,
options or warrants referred to in Section 11(b) hereof, hereafter made by the
Company to holders of its Preferred Shares shall not be taxable to such
stockholders.
(n) In the event that the Company shall, at any time after the Close
of Business on the Record Date and prior to the Close of Business on the
earliest of the date of the first Section 11(a)(ii) Event, the date of the first
Section 13(a) Event, the Redemption Date or the Rights Expiration Date, (i) pay
any dividend on the Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, (iii) combine the outstanding Common Shares into a
smaller number of Common Shares or (iv) issue Common Shares in a
reclassification of the Common Shares (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), then, and upon each such event, the Exercise Price to
be in effect after such event shall be determined by multiplying
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<PAGE>
the Exercise Price in effect immediately prior to such event by a fraction, the
numerator of which shall be equal to the number of Common Shares outstanding
immediately prior to such event and the denominator of which shall be equal to
the number of Common Shares outstanding immediately after such event. Successive
adjustments shall be made pursuant to this Section 11(n) each time such a
dividend is paid or such a subdivision, combination or reclassification is
effected. If an event occurs that would require an adjustment under both this
Section 11(n) and Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(n) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii) hereof.
Section 12. Certificate of Adjusted Exercise Price or Number of Shares
----------------------------------------------------------
Issuable Upon Exercise of Rights. Whenever an adjustment is made as
--------------------------------
provided in Section 11 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment and a brief statement of the facts
giving rise to such adjustment, (b) file with the Rights Agent and with each
transfer agent for the securities issuable upon exercise of the Rights a copy of
such certificate and (c) mail a brief summary thereof to each holder of Rights
in accordance with Section 25 hereof. Notwithstanding the foregoing sentence,
the failure of the Company to make such certification or to give such notice
shall not affect the validity or the force and effect of such adjustment. Any
adjustment to be made pursuant to Sections 11 or 13 hereof shall be effective as
of the date of the event giving rise to such adjustment. The Rights Agent shall
be fully protected in relying on any such certificate and on any adjustment
therein contained, and shall not be obligated or responsible for calculating any
adjustment nor shall it be deemed to have knowledge of such an adjustment unless
and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
--------------------------------------------------------------
Power.
-----
(a) In the event (a "Section 13(a) Event") that, at any time on or
after the 15% Ownership Date and prior to the earlier of the Redemption Date or
the Rights Expiration Date, (1) the Company shall, directly or indirectly,
consolidate with or merge with and into any other Person and the Company shall
not be the continuing or surviving corporation in such consolidation or merger,
(2) any Person shall, directly or indirectly, consolidate with or merge with and
into the Company and the Company shall be the continuing or surviving
corporation in such merger and, in connection with such merger, all or part of
the Common Shares shall be changed into or exchanged for stock or other
securities of any Person or cash or any other property, or (3) the Company
and/or any one or more of its Subsidiaries shall, directly or indirectly, sell
or otherwise transfer, in one or more transactions (other than transactions in
the ordinary course of business), assets or earning power aggregating more than
50% of the assets or earning power of the Company and its Subsidiaries (taken as
a whole) to any Person or Persons other than the Company or one or more of its
wholly-owned Subsidiaries (such Persons, together with the Persons described in
clauses (1) and (2) above shall be collectively referred to in this Section as
the "Surviving Person"), then, and in each such case, proper provision shall be
made so that:
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<PAGE>
(i) except as provided in Section 7(d) hereof, each holder of a Right
shall thereafter have the right to receive, upon the exercise thereof in
accordance with the terms of this Agreement and payment of the then current
Exercise Price, in lieu of the securities or other property otherwise
purchasable upon such exercise, such number of validly authorized and
issued, fully paid and nonassessable Common Shares of the Surviving Person
(and if such Surviving Person has more than one class or series of Common
Shares, such number of validly authorized and issued, fully paid and
nonassessable Common Shares of each series or class) as shall be equal to a
fraction, the numerator of which is:
(A) if a Section 11(a)(ii) Event has not occurred prior to such
Section 13(a) Event, the product of the then current Exercise Price
multiplied by the number of one-hundredths of a Preferred Share
purchasable upon the exercise of one Right immediately prior to the
first Section 13(a) Event (or, if the Distribution Date shall not have
occurred prior to the date of such Section 13(a) Event, the number of
one-hundredths of a Preferred Share that would have been so
purchasable if the Distribution Date had occurred on the Business Day
immediately preceding the date of such Section 13(a) Event), or
(B) if a Section 11(a)(ii) Event has occurred prior to such
Section 13(a) Event, the product of the Exercise Price in effect
immediately prior to such Section 11(a)(ii) Event multiplied by the
number of one-hundredths of a Preferred Share purchasable upon the
exercise of one Right immediately prior to such Section 11(a)(ii)
Event (or, if the Distribution Date shall not have occurred prior to
the date of such Section 11(a)(ii) Event, the number of one-hundredths
of a Preferred Share that would have been so purchasable if the
Distribution Date had occurred on the Business Day immediately
preceding the date of such Section 11(a)(ii) Event),
and the denominator of which is 50% of the Current Market Price per Common
Share of the Surviving Person on the date of consummation of such Section
13(a) Event;
(ii) the Surviving Person shall thereafter be liable for and shall
assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to the
Surviving Person; and
(iv) the Surviving Person shall take such steps (including, but not
limited to, the reservation of a sufficient number of its Common Shares in
accordance with Section 9 hereof) in connection with such consummation as
may be necessary to ensure that the provisions hereof shall thereafter be
applicable to its Common Shares thereafter deliverable upon the exercise of
Rights.
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<PAGE>
(b) Notwithstanding the foregoing, if the Section 13(a) Event is the
sale or transfer in one or more transactions of assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole), but less than 100% thereof, then each Person
acquiring all or a portion thereof shall assume the obligations of the Company
as to a fraction of each of the Rights equal to the fraction of the assets of
the Company and its Subsidiaries (taken as a whole) acquired by such Person, and
the obligations of the Company as to the remaining fraction of each of the
Rights shall continue to be the obligations of the Company.
(c) The Company shall not consummate a Section 13(a) Event unless
prior thereto the Company and the Surviving Person shall have executed and
delivered to the Rights Agent a supplemental agreement confirming that such
Surviving Person shall, upon consummation of such Section 13(a) Event, assume
this Agreement in accordance with Section 13 hereof, that all rights of first
refusal or preemptive rights in respect of the issuance of Common Shares of such
Surviving Person upon exercise of outstanding Rights have been waived and that
such Section 13(a) Event shall not result in a default by such Surviving Person
under this Agreement, and further providing that, as soon as practicable after
the date of consummation of such Section 13(a) Event, such Surviving Person
shall:
(i) prepare and file a registration statement under the Securities Act
with respect to the Rights and the securities purchasable upon exercise of
the Rights on an appropriate form, use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing, use its best efforts to cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements
of the Securities Act) until the Rights Expiration Date, and similarly
comply with all applicable state securities laws;
(ii) use its best efforts to list (or continue the listing of) the
Rights and the Common Shares of the Surviving Person purchasable upon
exercise of the Rights on a national securities exchange, or use its best
efforts to cause the Rights and such Common Shares to meet the eligibility
requirements for quotation on NASDAQ; and
(iii) deliver to holders of the Rights historical financial
statements for such Surviving Person that comply in all respects with the
requirements for registration on Form 10 (or any successor form) under the
Exchange Act.
(d) In the event that at any time after the occurrence of a Section
11(a)(ii) Event some or all of the Rights shall not have been exercised pursuant
to Section 11 hereof prior to the date of a Section 13(a) Event, such Rights
shall thereafter be exercisable only in the manner described in Section 13(a)
hereof. In the event that a Section 11(a)(ii) Event occurs on or after the date
of a Section 13(a) Event, Rights shall not be exercisable pursuant to Section 11
hereof but shall instead be exercisable pursuant to, and only pursuant to, this
Section 13.
(e) The provisions of this Section 13 shall apply to each successive
merger, consolidation, sale or other transfer constituting a Section 13(a)
Event.
20
<PAGE>
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates that represent fractional Rights. If the
Company shall determine not to issue such fractional Rights, the Company shall
pay to the registered holders of the Right Certificates with respect to which
such fractional Rights would otherwise be issuable, at the time such fractional
Rights would otherwise have been issued as provided herein, an amount in cash
equal to the same fraction of the Current Market Price of a whole Right on the
Business Day immediately prior to the date upon which such fractional Rights
would otherwise have been issuable.
(b) The Company shall not be required to issue fractions of Common
Shares or Preferred Shares (other than fractions that are integral multiples of
one one-hundredth of a Preferred Share) upon exercise of Rights, or to
distribute certificates that represent fractional Common Shares or Preferred
Shares (other than fractions that are integral multiples of one one-hundredth of
a Preferred Share). Fractions of Preferred Shares in integral multiples of one
one-hundredth of a Preferred Share may, at the election of the Company, be
represented by depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by it, provided that such agreement shall
provide that the holders of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as beneficial owners of
Preferred Shares. If the Company shall determine not to issue fractional Common
Shares or Preferred Shares (or depositary receipts in lieu of Preferred Shares),
the Company shall pay to the registered holders of Right Certificates with
respect to which such fractional Common Shares or Preferred Shares would
otherwise be issuable, at the time such Rights are exercised as provided herein,
an amount in cash equal to the same fraction of the Current Market Price of a
whole Common Share or Preferred Share, as the case may be. For purposes of this
Section 14(b), the Current Market Price of a whole Common Share or Preferred
Share shall be the Closing Price per share for the Trading Day immediately prior
to the date of such exercise.
(c) The holder of a Right, by the acceptance of such Right, expressly
waives such holder's right to receive any fractional Rights or any fractional
Common Shares or Preferred Shares upon exercise of such Right, except as
permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of this
----------------
Agreement, except the rights of action given to the Rights Agent under Section
18 hereof, are vested in the respective registered holders of the Right
Certificates and certificates for Common Shares representing Rights, and any
registered holder of any Right Certificate or of such certificate for Common
Shares, without the consent of the Rights Agent or of the holder of any other
Right Certificate or any other certificate for Common Shares may, in such
holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder's right to exercise the
Rights represented by such Right Certificate or by such certificate for Common
Shares in the manner provided in such 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 shall
21
<PAGE>
be entitled to specific performance, and injunctive relief against actual or
threatened violations, of the obligations of any Person under this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
--------------------------
accepting the same, consents and agrees with the Company and the Rights Agent
and every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be represented by
certificates for Common Shares registered in the name of the holders of such
Common Shares (which certificates for Common Shares shall also constitute Right
Certificates), and each such Right shall be transferable only in connection with
the transfer of such Common Shares;
(b) after the Distribution Date, the Right Certificates shall only be
transferable on the registry books of the Rights Agent if surrendered at the
principal office of the Rights Agent, duly endorsed or accompanied by a proper
instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the person in
whose name the Right Certificate is registered as the absolute owner thereof and
of the Rights represented thereby (notwithstanding any notations of ownership or
writing on the Right Certificate by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
Section 17. Right Holder and Right Certificate Holder Not Deemed a
------------------------------------------------------
Stockholder. No holder, as such, of any Right or Right Certificate
-----------
shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the securities of the Company that may at any time be issuable upon
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 or Right Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, to give or withhold consent to
any corporate action, to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, in each case until such Right or the
Rights represented by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
---------------------------
(a) The Company 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 Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
negligence, bad faith 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. The costs and expenses of enforcing
this right
22
<PAGE>
of indemnification shall also be paid by the Company. The indemnification
provided for hereunder shall survive the expiration of the Rights and the
termination of this Agreement.
(b) The Rights Agent may conclusively rely upon and 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 Preferred Shares or
Common Shares or for other securities of the Company, 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, or otherwise upon the advice of
its counsel as set forth in Section 20 hereof.
(c) Notwithstanding anything in this Agreement to the contrary, in no
event shall the Rights Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Rights Agent has been advised of the likelihood of such
loss or damage and regardless of the form of the action.
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 hereof. If, 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 if 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 such Right Certificate and in
this Agreement.
(b) If 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 if 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 such Right Certificate and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
----------------------
duties and obligations imposed by this Agreement (and no implied duties or
obligations shall be read into
23
<PAGE>
this Agreement against the Rights Agent) upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance of the Rights, shall be bound:
(a) Before the Rights Agent acts or refrains from acting, it may
consult with legal counsel (who may be legal counsel for the Company), and the
advice or 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 advice or 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 be
proved or established by the Company 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 any one of the Chairman of the Board, the
Vice Chairman of the Board, the President, any Vice President, the Treasurer,
the Secretary or any Assistant Secretary of the Company 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 to the Company and any
other Person only for its own negligence, bad faith 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 Company 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 authorization, execution and delivery 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
Company 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 any Rights becoming null and void pursuant to Section 7(d)
hereof) or any adjustment in the terms of the Rights (including the manner,
method or amount thereof) provided for in Sections 7, 11, 13 and 23 hereof, or
the ascertaining of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of Rights represented by Right
Certificates after actual notice that such change or adjustment is required);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Preferred Shares or
Common Shares or other securities to be issued pursuant to this Agreement or any
Right Certificate, or as to whether any Preferred Shares or Common Shares or
other securities will, when issued, be validly authorized and issued, fully paid
and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and
24
<PAGE>
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 any
one of the Chairman of the Board, the Vice Chairman, the President, any Vice
President, the Chief Financial Officer, the Secretary or the Treasurer of the
Company, 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
or for any delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from the Company may,
at the option of the Rights Agent, set forth in writing any action proposed to
be taken or omitted by the Rights Agent under this Agreement and the date on or
after which such action shall be taken or such omission shall be effective. The
Rights Agent shall not be liable for any action taken by, or omission of, the
Rights Agent in accordance with a proposal included in any such application on
or after the date specified in such application (which date shall not be less
than ten Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent shall have received
written instructions from the Company in response to such application to the
contrary.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company 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 Company 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 Company resulting from any such act, default,
neglect or misconduct, provided that 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) The Rights Agent shall not be required to take notice or be deemed
to have notice of any fact, event or determination (including, without
limitation, any dates or events defined in this Agreement or the designation of
any Person as a 15% Stockholder, Affiliate or
25
<PAGE>
Associate) under this Agreement unless and until the Rights Agent shall be
specifically notified in writing by the Company of such fact, event or
determination.
(l) If, with respect to any Rights 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 case may be, has not been
completed, the Rights Agent shall not take any further action with respect to
such requested exercise or transfer without first consulting with the Company.
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 Company and to each transfer agent
of the Common Shares and Preferred Shares by registered or certified mail, and,
at the expense of the Company to the holders of the Right Certificates by first-
class mail. The Company 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
Shares and Preferred Shares 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 as such, the Company
shall appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of 30 days after giving notice of 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 such holder's Right Certificate
for inspection by the Company), then the Company shall become the Rights Agent
and 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 Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
of the States of New York or California (or of any other state of the United
States so long as such corporation is authorized to do business as a banking
institution in the States of New York or California), in good standing, having a
principal office in New York or California, that is authorized under such laws
to exercise corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and that has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50,000,000. 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 of this
Agreement and so that the successor Rights Agent may appropriately act as Rights
Agent hereunder. Not later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares and Preferred Shares, 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.
26
<PAGE>
Section 22. Issuance of New Right Certificates. Notwithstanding any of
----------------------------------
the provisions of this Agreement or of the Right Certificates to the contrary,
the Company may, at its option, issue new Right Certificates in such form as may
be approved by the Board of Directors in order to reflect any adjustment or
change in the Exercise Price and the number or kind or class of shares or other
securities or property purchasable upon exercise of the Rights in accordance
with the provisions of this Agreement.
Section 23. Redemption of Rights.
--------------------
(a) Until the earliest of (i) the date of the first Section 11(a)(ii)
Event, (ii) the date of the first Section 13(a) Event or (iii) the Rights
Expiration Date, the Board of Directors of the Company may, at its option,
authorize and direct the redemption of all, but not less than all, of the then
outstanding Rights at a redemption price of $.001 per Right, as such redemption
price shall be appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (the "Redemption Price"),
and the Company shall so redeem the Rights.
(b) Immediately upon the action of the Board of Directors of the
Company authorizing and directing the redemption of the Rights pursuant to
subsection (a) of this Section 23, or at such time and date thereafter as it may
specify, and without any further action and without any notice, the right to
exercise Rights shall terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. Within ten (10) Business Days
after the date of such action, the Company shall give notice of such redemption
to the holders of Rights by mailing such notice to all holders of Rights at
their last addresses as they appear upon the registry books of the Rights Agent
or, if prior to the Distribution Date, on the registry books of the transfer
agent for the Common Shares. Any notice that is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives such notice,
but neither the failure to give any such notice nor any defect therein shall
affect the legality or validity of such redemption. Each such notice of
redemption shall state the method by which the payment of the Redemption Price
will be made. Neither the Company nor any of its Affiliates or Associates may,
directly or indirectly, redeem, acquire or purchase for value any Rights in any
manner other than that specifically set forth in Section 24 hereof or in this
Section 23, or in connection with the purchase of Common Shares prior to the
earlier of the date of the first Section 11(a)(ii) Event or the date of the
first Section 13(a) Event.
(c) The Company may, at its option, pay the Redemption Price in cash,
Common Shares, Preferred Shares, other equity securities of the Company, debt
securities of the Company, other property or any combination of the foregoing,
in each case having an aggregate Current Market Price on the Redemption Date
equal to the Redemption Price.
Section 24. Exchange of Rights.
------------------
(a) At any time during the period of 180 days after a Section
11(a)(ii) Event, the Board of Directors of the Company may, at its option,
authorize and direct the exchange of all, but not less than all, of the then
outstanding Rights for Common Shares, one one-hundredths of Preferred Shares,
debt securities of the Company, other property, or any combination of the
27
<PAGE>
foregoing, in each case having an aggregate Current Market Price equal to the
result obtained by (i) multiplying the Current Market Price per Common Share on
the record date for such exchange by the number of Common Shares for which a
Right is exercisable on such record date and (ii) subtracting from such product
the Exercise Price on such Record Date (the "Exchange Ratio"), and the Company
shall so exchange the Rights.
(b) Immediately upon the action of the Board of Directors of the
Company authorizing and directing the exchange of the Rights pursuant to
subsection (a) of this Section 24, or at such time and date thereafter as it may
specify, and without any further action and without any notice, the right to
exercise Rights shall terminate and the only right thereafter of the holders of
Rights shall be to receive the securities described in Section 24(a) in
accordance with the Exchange Ratio. Within ten (10) Business Days after the
date of such action, the Company shall give notice of such exchange to the
holders of Rights by mailing such notice to all holders of Rights at their last
addresses as they appear upon the registry books of the Rights Agent or, if
prior to the Distribution Date, on the registry books of the transfer agent for
the Common Shares. Any notice that is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives such notice, but
neither the failure to give any such notice nor any defect therein shall affect
the legality or validity of such exchange. Each such notice of exchange shall
state the method by which the Rights will be exchanged.
(c) Notwithstanding the foregoing, in the event that the aggregate
number of Common Shares that are authorized by the Company's Certificate of
Incorporation, as amended from time to time, but not outstanding or reserved for
issuance for purposes other than upon exercise or exchange of the Rights is less
than the aggregate number of Common Shares issuable upon the exchange of the
Rights in accordance with this Section 24 (the excess of such number of
authorized Common Shares over and above such number of issuable Common Shares
being hereinafter referred to as the "Unavailable Exchange Shares"), then the
Company shall substitute for the pro rata portion of the Unavailable Exchange
Shares that would otherwise be issuable upon the exchange of the Rights in
accordance with this Section 24 (i) cash, (ii) other equity securities of the
Company (including, without limitation, Common Share Equivalents), (iii) debt
securities of the Company, (iv) other property or (v) any combination of the
foregoing, in each case having an aggregate Current Market Price equal to the
aggregate Current Market Price of the Unavailable Exchange Shares for which
substitution is made. Subject to Section 7(d) hereof, in the event that the
Company takes any action pursuant to this Section 24, such action shall apply
uniformly to all outstanding Rights.
Section 25. Notice of Certain Events.
------------------------
(a) In the event that the Company shall propose (i) to declare or pay
any dividend on or make any distribution with respect to its Common Shares or
Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Common Shares or Preferred Shares options, rights or
warrants to subscribe for or to purchase any additional shares thereof or shares
of stock of any class or any other securities, rights or options, (iii) to
effect any reclassification of its Common Shares or Preferred Shares (other than
a reclassification involving only the subdivision of outstanding shares), (iv)
to effect any consolidation or merger with or
28
<PAGE>
into, 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 or more transactions,
of more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person or Persons, or (v) to
effect the liquidation, dissolution or winding up of the Company, then and in
each such case, the Company shall give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of such proposed action that shall
specify the record date for the purpose of such dividend or distribution, or the
date upon 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 record of the Common Shares 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 Common Shares or
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 the Common Shares or
Preferred Shares, whichever date shall be the earlier. The failure to give the
notice required by this Section 25 or any defect therein shall not affect the
legality or validity of the action taken by the Company or the vote upon any
such action.
(b) Upon the occurrence of each Section 11(a)(ii) Event and each
Section 13(a) Event, the Company shall as soon as practicable thereafter give to
each holder of a Right Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event, specifying the event and the
consequences of the event to holders of Rights under Sections 11 and 13 hereof.
Section 26. 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 Company 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:
Bank Plus Corporation
4565 Colorado Boulevard
Los Angeles, California 90039
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made to or on the Rights Agent (i) by the
Company shall be sufficiently given or made if sent, postage prepaid, by
registered or certified mail, addressed to the principal office of the Rights
Agent as set forth below (until another address is filed in writing with the
Company) or (ii) by the holder of any Right Certificate shall be sufficiently
given or made if sent by first-class mail, postage prepaid, addressed to the
principal office of the Rights Agent as set forth below (until another address
is filed in writing with the Company), and shall be deemed given upon actual
receipt. The Company hereby agrees that it shall encourage the holders of the
Right Certificates, in any and all writings to such holders regarding the Rights
or this Agreement, to give or make any notice or demand authorized by this
Agreement by registered or certified mail, addressed to the principal office of
the Rights Agent as follows (until another address is filed in writing with the
Company):
29
<PAGE>
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, New York 10005
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate 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 Company.
Section 27. Supplements and Amendments.
--------------------------
(a) The Board of Directors of the Company may, from time to time,
without the approval of any holders of Rights, supplement or amend any provision
of this Agreement in any manner, whether or not such supplement or amendment is
adverse to any holder of Rights, and direct the Rights Agent so to supplement or
amend such provision, and the Rights Agent shall so supplement or amend such
provision; provided, however, that from and after the earliest of (i) the date
-------- -------
of the first Section 11(a)(ii) Event, (ii) the date of the first Section 13(a)
Event, (iii) the Redemption Date or (iv) the Expiration Date, this Agreement
shall not be supplemented or amended in any manner that would materially and
adversely affect any holder of outstanding Rights other than a 15% Stockholder
or a Surviving Person.
(b) From and after the earlier of the date of the first Section
11(a)(ii) Event or the date of the first Section 13(a) Event and prior to the
Rights Expiration Date, the Company shall not effect any amendment to the
Certificate of Designations for the Preferred Shares that would materially and
adversely affect the rights, privileges or preferences of the Preferred Shares
without the prior approval of the holders of two-thirds or more of the then
outstanding Rights. Notwithstanding anything in this Agreement to the contrary,
no supplement or amendment that changes the rights and duties of the Rights
Agent under this Agreement in any manner adverse to the Rights Agent will be
effective against the Rights Agent without the execution of such supplement or
amendment by the Rights Agent.
Section 28. Certain Covenants. Subject to Section 27 hereof and the
-----------------
other provisions of this Agreement, from and after the earlier of the date of
the first Section 11(a)(ii) Event or the date of the first Section 13(a) Event
and prior to the earlier of the Redemption Date or the Rights Expiration Date,
the Company shall not (a) issue or sell, or permit any Subsidiary to issue or
sell, to a 15% Stockholder or a Surviving Person, or any Affiliate or Associate
of a 15% Stockholder or a Surviving Person, or any Person holding Voting Shares
of the Company that are Beneficially Owned by a 15% Stockholder or a Surviving
Person, (i) any rights, options, warrants or convertible securities on terms
similar to, or that materially adversely affect the value of, the Rights or (ii)
Preferred Shares, Common Shares or shares of any other class of capital stock,
if such sale is intended to or would materially adversely affect the value of
the Rights, or (b) take any other action that is intended to or would materially
adversely affect the value of the Rights.
30
<PAGE>
Section 29. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this Agreement shall
--------------------------
be construed to give to any Person other than the Company, the Rights Agent and
the registered holders of the Right Certificates (other than those representing
Rights that have become null and void) and the certificates for Common Shares
representing Rights (other than those Rights that have become null and void) any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the Rights
Agent and such registered holders of Right Certificates and certificates for
Common Shares representing Rights.
Section 31. 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 32. Governing Law. This Agreement and each Right Certificate
-------------
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such state applicable to contracts made and
performed entirely within such state, except as to the rights and obligations of
the Rights Agent which shall be governed by and construed in accordance with the
laws of the State of New York.
Section 33. Counterparts. This Agreement may be executed in any number
------------
of counterparts and each such counterpart shall for all purposes be deemed to be
an original and all such counterparts shall together constitute but one and the
same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
--------------------
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
31
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of March 29, 1999.
BANK PLUS CORPORATION
Attest:
By:________________________________ By:________________________________
Name: Name:
Title: Title:
American Stock Transfer & Trust Company,
as Rights Agent
Attest:
By:________________________________ By:________________________________
Name: Name:
Title: Title:
Exhibit A
32
<PAGE>
EXHIBIT A
---------
Form of Right Certificate
Certificate No. _____ __________ Rights
NOT EXERCISABLE AFTER THE LATER OF FEBRUARY 3, 2009 OR THE TENTH
ANNIVERSARY OF THE DISTRIBUTION DATE (AS THAT TERM IS DEFINED IN THE RIGHTS
AGREEMENT) OR EARLIER IF REDEEMED. THE RIGHTS ARE SUBJECT TO REDEMPTION AT
$.001 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY A 15% STOCKHOLDER OR AN
AFFILIATE OR ASSOCIATE OF A 15% STOCKHOLDER (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT AND AS THOSE CIRCUMSTANCES ARE SPECIFIED IN THE RIGHTS
AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS A 15% STOCKHOLDER OR AN AFFILIATE OR ASSOCIATE OF A 15%
STOCKHOLDER. THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT.]*
Right Certificate
BANK PLUS CORPORATION
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 February 3, 1999 (the "Rights Agreement")
between Bank Plus Corporation, a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company, a New York banking corporation (the
"Rights Agent"), to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00 P.M.,
- ------------
* That portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
33
<PAGE>
California time, on the later of February 3, 2009 or the tenth anniversary of
the Distribution Date at the office or agency of the Rights Agent at American
Stock Transfer & Trust Company, 40 Wall Street, 46th Floor, New York, New York
10005, or at the office of its successors as Rights Agent, one one-hundredth of
a fully paid non-assessable share of Series C Junior Participating Cumulative
Preferred Stock, $.01 par value (the "Preferred Shares"), of the Company, at an
exercise price of $25.00 per Right (the "Exercise Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase duly
executed. The number of Rights evidenced by this Right Certificate (and the
number of Preferred Shares that may be purchased upon exercise thereof) set
forth above, and the Exercise Price per share set forth above, are the number
and Exercise Price as of February 3, 1999, based on the Preferred Shares as
constituted at such date.
As provided in the Rights Agreement, the Exercise Price and the number
of Preferred Shares that 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 Company and the holders of the
Rights Certificates. Copies of the Rights Agreement are on file at the
principal executive offices of Bank Plus Corporation and the above-mentioned
offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or agency of the Rights Agent at American Stock Transfer
& Trust Company, 40 Wall Street, 46th Floor, New York, New York 10005, 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 may, but are not
required to, be redeemed by the Company at a redemption price of $.001 per
Right.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions that are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), 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 the Preferred Shares or of
any other securities of the Company that 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 Company 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
34
<PAGE>
(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 Company and
its corporate seal. Dated as of _______________.
ATTEST: BANK PLUS CORPORATION
__________________________ __________________________
Secretary President
Countersigned:
American Stock Transfer & Trust Company
By:_______________________
Title: ___________________
35
<PAGE>
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 Company, with full power of substitution.
Dated: ____________________, ____
_____________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor institution (a
bank, stockbroker, savings and loan association or credit union with membership
in an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
of the Securities Exchange Act of 1934.
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not Beneficially Owned by a 15% Stockholder or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
________________________________
Signature
(Signature must conform in all respects to name of
holder as specified on the face of this Right
Certificate in every particular, without
alteration or enlargement or any change
whatsoever)
- --------------------------------------------------------------------------------
36
<PAGE>
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise the Right Certificate.)
TO BANK PLUS CORPORATION
The undersigned hereby irrevocably elects to exercise
___________________ Rights represented by this Right Certificate to purchase the
Preferred Shares or other securities issuable upon the exercise of such Rights
and requests that certificates for such Preferred Shares or other securities be
issued in the following name:
(please print name, address and social security,
tax identification or other identifying number:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
(please print name, address and social security,
tax identification or other identifying number:
__________________________________________
__________________________________________
__________________________________________
__________________________________________
Dated: _____________________________
________________________________
Signature
37
<PAGE>
(Signature must conform in all respects to name of
holder as specified on the face of this Right
Certificate in every particular, without
alteration or enlargement or any change
whatsoever)
Form of Reverse Side of Right Certificate -- continued
Signature Guarantee:
Signatures must be guaranteed by an eligible guarantor institution (a
bank, stockbroker, savings and loan association or credit union with membership
in an approved signature guarantee medallion program) pursuant to Rule 17Ad-15
of the Securities Exchange Act of 1934.
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not Beneficially Owned by a 15% Stockholder or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
________________________________
Signature
(Signature must conform in all respects to name of
holder as specified on the face of this Right
Certificate in every particular, without
alteration or enlargement or any change
whatsoever)
- --------------------------------------------------------------------------------
NOTICE
------
The signatures in the foregoing Forms of Assignment and Election 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.
In the event the certification set forth above in the Forms of Assignment and
Election is not completed, the Company will deem the Beneficial Owner of the
Rights evidenced by this Right Certificate to be a 15% Stockholder or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and, in the
case of an Assignment, will affix a legend to that effect on any Right
Certificates issued in exchange for this Right Certificate.
38
<PAGE>
EXHIBIT 5
AMENDED AND RESTATED
BY-LAWS OF
BANK PLUS CORPORATION
ARTICLE I
STOCKHOLDERS
------------
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be
---------------
held for the election of directors at such date, time and place either within or
without the State of Delaware as may be designated by the Board of Directors
from time to time. Any other proper business may be transacted at the annual
meeting.
Section 1.2. Special Meetings. Special meetings of stockholders may be
----------------
called at any time by the Chairman of the Board, if any, the Vice Chairman of
the Board, if any, the President or the Board of Directors, to be held at such
date, time and place either within or without the State of Delaware as may be
stated in the notice of the meeting. A special meeting of stockholders shall be
called upon the written request, stating the purpose of the meeting, of three or
more unaffiliated stockholders who together own not less than one-fifth of the
shares of outstanding capital stock entitled to be voted at the special meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are required or
------------------
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or
------------
special, may be adjourned from time to time, to reconvene at the same or some
other place, and notice need not be given of any such adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given as
in the case of an original meeting to each stockholder of record entitled to
vote at the meeting.
<PAGE>
Section 1.5. Quorum. At each meeting of stockholders, except where
------
otherwise provided by law or the certificate of incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote on
a matter at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, where a separate vote by
class or classes is required for any matter, the holders of a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum to take action with respect to that vote on
that matter. Two or more classes or series of stock shall be considered a
single class if the holders thereof are entitled to vote together as a single
class at the meeting. In the absence of a quorum of the holders of any class or
classes of stock entitled to vote on a matter, the holders of such class or
classes so present or represented may, by majority vote, adjourn the meeting of
such class or classes from time to time in the manner provided by Section 1.4 of
these by-laws until a quorum of such class or classes shall be so present or
represented. Shares of its own capital stock belonging on the record date for
the meeting to the Corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the Corporation, shall neither be entitled
to vote nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation to vote stock, including
but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided
------------
over by the Chairman of the Board; if any, or in the absence of the Chairman of
the Board by the Vice Chairman of the Board, if any, or in the absence of the
Vice Chairman of the Board by the President, or in the absence of the President
by a Vice President, or in the absence of the foregoing persons by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary, or in the absence of the
Secretary an Assistant Secretary, shall act as secretary of the meeting, but in
the absence of the Secretary and any Assistant Secretary the chairman of the
meeting may appoint any person to act as secretary of the meeting.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof and the opening
and closing of the voting polls.
Section 1.7. Inspectors. Prior to any meeting of stockholders, the Board
----------
of Directors or the President shall appoint one or more inspectors to act at
such meeting and make a written report thereof and may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate is able to act at the meeting of stockholders, the
person presiding at the meeting shall appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take
2
<PAGE>
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall ascertain the number of shares outstanding and the voting power of each,
determine the shares represented at the meeting and the validity of proxies and
ballots, disposition of any challenges made to any determination by the
inspectors and certify their determination of the number of shares represented
at the meeting and their count of all votes and ballots. The inspectors may
appoint or retain other persons to assist them in the performance of their
duties. The date and time of the opening and closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxy or vote, nor any revocation thereof or change
thereto, shall be accepted by the inspectors after the closing of the polls. In
determining the validity and counting of proxies and ballots, the inspectors
shall be limited to an examination of the proxies, any envelopes submitted
therewith, any information provided by the proxies, any envelopes submitted
therewith, any information provided by a stockholder who submits a proxy by
telegram, cablegram or other electronic transmission from which it can be
determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the stockholder holds of records. If the
inspectors consider their reliable information for such purpose, they shall, at
the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 1.8. Voting; Proxies. Unless otherwise provided in the
---------------
certificate of incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
such stockholder which has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for such stockholder by proxy, but no such
proxy shall be voted or acted upon after three years from the date of its
execution unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power, regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the Corporation generally.
A stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot unless the holders of a majority of the outstanding shares of all classes
of stock entitled to vote thereon present in person or represented by proxy at
such meeting shall so determine. Directors shall be elected by a plurality of
the votes of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors. In all other matters, unless
otherwise provided by law or by the certificate of incorporation or these by-
laws, the affirmative vote of the holders of a majority of
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the shares present in person or represented by proxy at the meeting and entitled
to vote on the subject matter shall be the act of the stockholders. Where a
separate vote by class or classes is required, the affirmative vote of the
holders of a majority of the shares of such class or classes present in person
or represented by proxy at the meeting shall be the act of such class or
classes, except as otherwise provided by law or by the certificate of
incorporation or these by-laws.
Section 1.9. Fixing Date for Determination of Stockholders of Record. In
-------------------------------------------------------
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty nor less than ten
days before the date of such meeting. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the board of Directors adopts the resolution taking such
prior action.
In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty days prior to such action. If
no record date is
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fixed, the record date for determining stockholders for any such purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
Section 1.10. List of Stockholders Entitled to Vote. The Secretary shall
-------------------------------------
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
Section 1.11. Advance Notice of Stockholder Proposals. Nominations of
---------------------------------------
persons for election to the Board and the proposal of business to be transacted
by the stockholders may be made at an annual meeting of stockholders (a)
pursuant to the Corporation's notice with respect to such meeting, (b) by or at
the direction of the Board or (c) by any stockholder of record of the
Corporation who was a stockholder of record at the time of the giving of the
notice provided for in the following paragraph, who is entitled to vote at the
meeting and who has complied with the notice procedures set forth in this
section.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, (1)
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, (2) such business must be a proper matter for
stockholder action under the Delaware General Corporation Law, (3) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in subclause (c)(iii) of this paragraph, such stockholder
or beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice and (4) if no Solicitation Notice relating thereto has been
timely provided pursuant to this section, the stockholder or beneficial owner
proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this section. To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal executive offices of the Corporation (A) for the
1999 annual meeting, not later than February 28, 1999, and (B) for all
subsequent annual meetings, not less than 45 or more than 75 days prior to the
first anniversary (the "Anniversary") of the date on which the Corporation first
mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30
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days prior to or delayed by more than 30 days after the anniversary of the
preceding year's annual meeting, notice by the stockholder to be timely must be
so delivered not later than the close of business on the later of (i) the 90th
day prior to such annual meeting or (ii) the 10th day following the day on which
public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and such person's written consent to serve as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of such business, the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to deliver a
proxy statement and form of proxy to holders of, in the case of a proposal, at
least the percentage of the Corporation's voting shares required under
applicable law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the Corporation's voting shares
to elect such nominee or nominees (an affirmative statement of such intent, a
"Solicitation Notice").
Notwithstanding anything in the second sentence of the second paragraph of
this Section 1.11 to the contrary, in the event that the number of directors to
be elected to the Board is increased and there is no public announcement naming
all of the nominees for director or specifying the size of the increased Board
made by the Corporation at least 55 days prior to the Anniversary, a
stockholder's notice required by this Bylaw shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
Only persons nominated in accordance with the procedures set forth in this
Section 1.11 shall be eligible to serve as directors and only such business
shall be conducted at an annual meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to procedures set forth in these
by-laws and, if any proposed nomination or business is not in compliance with
these by-laws, to declare that such defective proposed business or nomination
shall not be presented for stockholder action at the meeting and shall be
disregarded.
Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting.
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Nominations of persons for election to the Board may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board or (b)
by any stockholder of record of the Corporation who is a stockholder of record
at the time of giving of notice provided for in this paragraph, who shall be
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 1.11. Nominations by stockholders of persons for election
to the Board may be made at such a special meeting of stockholders if the
stockholder's notice required by the second paragraph of this Section 1.11 shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board to be elected at such meeting.
For purposes of this section, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 1.11, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 1.11. Nothing in this Section 1.11 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
------------------
Section 2.1. Powers; Number; Qualifications. The business and affairs of
------------------------------
the Corporation shall be managed by or under the direction of the Board of
Directors, except as may be otherwise provided by law or in the certificate of
incorporation. The Board of Directors shall consist of one or more members, the
number thereof to be determined from time to time by the Board. Directors need
not be stockholders.
Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies.
---------------------------------------------------------
Each director shall hold office until the next election of the class for which
such director shall have been chosen, and until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any director
may resign at any time upon written notice to the Board of Directors or to the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. Any
director or the entire Board of Directors may be removed, for cause, by the
holders of a majority of the shares then entitled to vote at an election of
directors. Unless otherwise provided in the certificate of incorporation or
these by-
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laws, vacancies and newly created directorships resulting from any increase in
the authorized number of directors elected by all of the stockholders having the
right to vote as a single class or from any other cause may be filled by a
majority of the directors then in office, although less than a quorum, or by the
sole remaining director.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors
----------------
may be held at such places within or without the State of Delaware and at such
times as the Board may from time to time determine, and if so determined
additional notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of Directors
----------------
may be held at any time or place within or without the State of Delaware
whenever called by the Chairman of the Board, if any, by the Vice Chairman of
the Board, if any, by the President or by a majority of the directors.
Reasonable notice thereof shall be given by the person or persons calling the
meeting.
Section 2.5. Participation in Meetings by Conference Telephone Permitted.
-----------------------------------------------------------
Unless otherwise restricted by the certificate of incorporation or these by-
laws, members of the Board of Directors, or any committee designated by the
Board, may participate in a meeting of the Board or of such committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings of the
--------------------------------
Board of Directors a majority of the entire Board shall constitute a quorum for
the transaction of business. The vote of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board unless the
certificate of incorporation or these by-laws shall require a vote of a greater
number. In case at any meeting of the Board a quorum shall not be present, the
members of the Board present may adjourn the meeting from time to time until a
quorum shall be present.
Section 2.7. Organization. Meetings of the Board of Directors shall be
------------
presided over by the Chairman of the Board, if any, or in the absence of the
Chairman of the Board by the Vice Chairman of the Board, if any, or in the
absence of the Vice Chairman of the Board by the President, or in their absence
by a chairman chosen at the meeting. The Secretary, or in the absence of the
Secretary an Assistant Secretary, shall act as secretary of the meeting, but in
the absence of the Secretary and any Assistant Secretary the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless otherwise
-------------------------------------
restricted by the certificate of incorporation or these by-laws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof, may be taken without a meeting if all members of the
Board or of such committee, as the case may be, consent
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thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 2.9. Compensation of Directors. Unless otherwise restricted by
-------------------------
the certificate of incorporation or these by-laws, the Board of Directors shall
have the authority to fix the compensation of directors.
ARTICLE III
COMMITTEES
----------
Section 3.1. Committees. The Board of Directors may designate one or more
----------
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors or in these by-laws,
shall have and may exercise all of the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to the following matter: (a) approving or adopting or recommending to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or (b) adopting,
amending or repealing any bylaw of the Corporation.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise
---------------
provides, each committee designated by the Board may adopt, amend and repeal
rules for the conduct of its business. In the absence of a provision by the
Board or a provision in the rules of such committee to the contrary, a majority
of the entire authorized number of members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the members
present at a meeting at the time of such vote if a quorum is then present shall
be the act of such committee, and in other respects each committee shall conduct
its business in the same manner as the Board conducts its business pursuant to
Article II of these by-laws.
ARTICLE IV
OFFICERS
--------
Section 4.1. Officers; Election. As soon as practicable after the annual
------------------
meeting of stockholders in each year, the Board of Directors shall elect a
President and a Secretary, and it
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may, if it so determines, elect from among its members a Chairman of the Board
and a Vice Chairman of the Board. The Board may also elect one or more Vice
Presidents, one or more Assistant Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers and such other
officers as the Board may deem desirable or appropriate and may give any of them
such further designations or alternate titles as it considers desirable. Any
number of offices may be held by the same person unless the certificate of
incorporation or these by-laws otherwise provide.
Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless
-----------------------------------------------
otherwise provided in the resolution of the Board of Directors electing any
officer, each officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any officer
may resign at any time upon written notice to the Board or to the President or
the Secretary of the Corporation. Such resignation shall take effect at the
time specified therein, and unless otherwise specified therein no acceptance of
such resignation shall be necessary to make it effective. The Board may remove
any officer with or without cause at any time. Any such removal shall be
without prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election of an officer shall not of itself create
contractual rights. Any vacancy occurring in any office of the Corporation by
death, resignation, removal or otherwise may be filled by the Board at any
regular or special meeting.
Section 4.3. Powers and Duties. The officers of the Corporation shall
-----------------
have such powers and duties in the management of the Corporation as shall be
stated in these by-laws or in a resolution of the Board of Directors which is
not inconsistent with these by-laws and, to the extent not so stated, as
generally pertain to their respective offices, subject to the control of the
Board The Secretary shall have the duty to record the proceedings of the
meetings of the stockholders, the Board of Directors and any committees In a
book to be kept for that purpose. The Board may require any officer, agent or
employee to give security for the faithful performance of his or her duties.
ARTICLE V
STOCK
-----
Section 5.1. Certificates. Every holder of stock in the Corporation shall
------------
be entitled to have a certificate signed by or in the name of the Corporation by
the Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation, representing the
number of shares of stock in the Corporation owned by such holder. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before
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such certificate is issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar at the
date of issue.
If the Corporation is authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided by law, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Except as otherwise expressly provided by law, the rights and obligations
of the holders of uncertificated shares and the rights and obligations of the
holders of certificates representing stock of the same class and series shall be
identical.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of
----------------------------------------------------------
New Certificates. The Corporation may issue a new certificate of stock [or
- ----------------
uncertificated shares] in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or such owner's legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be
-----------
determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal which shall
----
have the name of the Corporation inscribed thereon and shall be in such form as
may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and
-----------------------------------------------------------
Committees. Whenever notice is required to be given by law or under any
- ----------
provision of the certificate of incorporation or these by-laws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to
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notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors or members of a committee of directors need be
specified in any written waiver of notice unless so required by the certificate
of incorporation or these by-laws.
Section 6.4. Indemnification of Directors, Officers and Employees. The
----------------------------------------------------
Corporation shall indemnify to the full extent permitted by law any person made
or threatened to be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person or such person's testator or intestate is or was a director, officer
or employee of the Corporation or serves or served at the request of the
Corporation any other enterprise as a director, officer or employee. Expenses,
including attorneys' fees, incurred by any such person in defending any such
action, suit or proceeding shall be paid or reimbursed by the Corporation
promptly upon receipt by it of an undertaking of such person to repay such
expenses if it shall ultimately be determined that such person is not entitled
to be indemnified by the Corporation. The rights provided to any person by this
by-law shall be enforceable against the Corporation by such person who shall be
presumed to have relied upon it in serving or continuing to serve as a director,
officer or employee as provided above. No amendment of this by-law shall impair
the rights of any person arising at any time with respect to events occurring
prior to such amendment. For purposes of this by-law, the term "Corporation"
shall include any predecessor of the Corporation and any constituent corporation
(including any constituent of a constituent) absorbed by the Corporation in a
consolidation or merger; the term "other enterprise" shall include any
corporation, partnership, joint venture, trust or employee benefit plan; service
"at the request of the Corporation" shall include service as a director, officer
or employee of the Corporation which imposes duties on, or involves services by,
such director, officer or employee with respect to an employee benefit plan, its
participants or beneficiaries; any excise taxes assessed on a person with
respect to an employee benefit plan shall be deemed to be indemnifiable
expenses; and action by a person with respect to an employee benefit plan which
such person reasonably believes to be in the interest of the participants and
beneficiaries of such plan shall be deemed to be action not opposed to the best
interests of the Corporation.
Section 6.5. Interested Directors; Quorum. No contract or transaction
----------------------------
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (1) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts
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<PAGE>
as to his or her relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board, a committee
thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the Corporation
---------------
in the regular course of its business, including its stock ledger, books of
account and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
Section 6.7. Amendment of By-Laws. These by-laws may be amended or
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repealed, and new by-laws adopted, by the Board of Directors, but the
stockholders entitled to vote may adopt additional by-laws and may amend or
repeal any by-law whether or not adopted by them. Any action taken by the
stockholders pursuant to the foregoing sentence, whether adopting additional by-
laws or amending and repealing existing by-laws, may not be modified, directly
or indirectly, by the Board of Directors without the prior approval of the
stockholders entitled to vote.
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