Exhibit 99.3
AMENDMENT NO. 1 TO AMENDED AND RESTATED RIGHTS AGREEMENT
This AMENDMENT NO. 1, dated as of November 30, 1998, is between
Bankers Trust Corporation, a New York corporation (the "Corporation"), and
Xxxxxx Trust and Savings Bank, N.A., as Rights Agent (the "Rights Agent").
Recitals
WHEREAS, the Corporation and the Rights Agent are parties to
an Amended and Restated Rights Agreement, dated as of February 22, 1988,
as amended as of November 26, 1997 (the "Rights Agreement"); and
WHEREAS, Deutsche Bank AG, an Aktiengesellschaft organized
under the laws of the Federal Republic of Germany ("Parent") and the
Corporation propose to enter into an Agreement and Plan of Merger (as it
may be amended from time to time pursuant to the terms thereof, the
"Merger Agreement") pursuant to which the Corporation will merge with a
wholly-owned subsidiary of Parent (the "Merger"), and a related Stock
Option Agreement by and between the Corporation, as issuer, and Parent,
as grantee (the "Option Agreement"). The Board of Directors of the
Corporation has approved the Merger Agreement, the Merger and the Option
Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Board of Directors of the Corporation has determined that an amendment
to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Corporation and the Rights
Agent desire to evidence such amendment in writing;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements set forth herein, the parties hereto agree as follows:
(a) Amendment of Section 1(a). Section 1(a) of the
Rights Agreement is amended to add the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither Parent nor any Affiliate thereof shall be deemed
to be an Acquiring Person by virtue of (i) the consummation of the
Merger, (ii) the execution of the Merger Agreement and the Option
Agreement, or (iii) the consummation of the other transactions
contemplated in the Merger Agreement and the Option Agreement, or
any or all of the foregoing in combination."
(b) Amendment of Section 1(h). Section 1(h) of the
Rights Agreement is amended and restated to read as follows:
(i) "Final Expiration Date" shall have the
meaning set forth in Section 7 hereof.
(ii) "Merger" shall have the meaning set forth
in the Merger Agreement.
(iii) "Merger Agreement" shall mean that certain
Agreement and Plan of Merger, dated as of
November 30,
1998, by and among Parent, Circle
Acquisition Corporation and the Corporation, as
amended from time to time pursuant to the terms
thereof.
(iv) "Option Agreement" shall mean that certain
Stock Option Agreement, dated as of November 30,
1998, by and between Parent, as grantee, and the
Corporation, as issuer, as amended from time to
time pursuant to the terms thereof.
(v) "Parent" shall mean Deutsche Bank AG, an
Aktiengesellschaft organized under the laws of
the Federal Republic of Germany.
(c) Amendment of Section 3(a). Section 3(a) of the
Rights Agreement is amended to add the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have
occurred as the result of (i) the consummation of the Merger, (ii)
the execution of the Merger Agreement and the Option Agreement or
(iii) the consummation of the other transactions contemplated in
the Merger Agreement and the Option Agreement, or any or all of
the foregoing in combination."
(d) Amendment of Section 7. Section 7(a) of the Rights
Agreement is amended by striking the phrase "or (iii) the time at which
such rights are exchanged as provided in Section 24 hereof" at the end
thereof and substituting therefor the phrase "(iii) the time at which
such rights are exchanged as provided in Section 24 hereof, or (iv) the
consummation of the Merger."
(e) Amendment of Section 13. Section 13 of the Rights
Agreement is amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, (i) the consummation of the Merger, (ii) the execution
of the Merger Agreement and the Option Agreement and (iii) the
consummation of the other transactions contemplated in the Merger
Agreement and the Option Agreement, separately or in combination,
shall not be deemed to be events of the type described in the
first sentence of this Section 13 and shall not cause the Rights
to be adjusted or exercisable in accordance with, or any other
action to be taken or right or obligation to arise pursuant to,
this Section 13."
(f) Effectiveness. This Amendment shall be deemed
effective as of the date first written above, as if executed on such
date. Except as amended hereby, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
(g) Miscellaneous. This Amendment shall be deemed to
be a contract made under the laws of the State of New York and for all
purposes shall be governed by and construed in accordance with the laws
of such state applicable to contracts to be made and performed entirely
within such state. This
Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument. If any
provision, covenant or restriction of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, illegal or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be effected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.1 to be
fully executed, all as of the date and year first above written.
BANKERS TRUST CORPORATION
/s/ Xxxxx X.Xxxxx
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Name: Xxxxx X. Xxxxx
Title:Senior Vice President
XXXXXX TRUST AND SAVING BANK,
as Rights Agent
/s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President
