AMENDMENT NO. 4 TO
RIGHTS AGREEMENT
AMENDMENT NO. 4 TO RIGHTS AGREEMENT (this "AMENDMENT"), dated
as of April 4, 2005, to the Rights Agreement, dated January 5, 2000, as amended
(the "RIGHTS AGREEMENT"), by and between the Unocal corporation, a Delaware
corporation, and Mellon Investor Services LLC, a New Jersey limited liability
company, as Rights Agent (the "RIGHTS AGENT").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement;
WHEREAS, the Company and the Rights Agent have heretofore
executed and entered into the Amendment to Rights Agreement, dated March 27,
2002, the Amendment No. 2 to Rights Agreement, dated August 2, 2002 and
Amendment No. 3 to Rights Agreement, dated April 1, 2003;
WHEREAS, ChevronTexaco Corporation ("CHEVRONTEXACO"), a
Delaware corporation, Blue Merger Sub Inc., a Delaware corporation and a wholly
owned subsidiary of ChevronTexaco (the "MERGER SUB") and Unocal Corporation, a
Delaware corporation (the "COMPANY") propose to enter into an Agreement and Plan
of Merger ("MERGER AGREEMENT") pursuant to which the Company will merge with and
into Merger Sub (the "MERGER"), with the Company as the surviving corporation;
WHEREAS, the Board of Directors of the Company has approved
the Merger Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, from
time to time the Company may, and the Rights Agent shall if the Company so
directs, from time to time supplement and amend the Rights Agreement;
WHEREAS, the Board of Directors of the Company has determined
that an amendment to the Rights Agreement as set forth herein is necessary and
desirable in connection with the foregoing and the Company and the Rights Agent
desire to evidence such amendment in writing; and
WHEREAS, all acts and things necessary to make this Amendment
a valid agreement, enforceable according to its terms have been done and
performed, and the execution and delivery of this Amendment by the Company and
the Rights Agent have been in all respects duly authorized by the Company and
the Rights Agent.
NOW, THEREFORE, the Company and the Rights Agent hereby amend
the Rights Agreement as follows:
A. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement is hereby amended
and supplemented to add the following definitions in the appropriate
alphabetical locations:
"ChevronTexaco" shall mean ChevronTexaco Corporation, a
corporation organized under the laws of Delaware.
"Merger Sub" shall mean Blue Merger Sub Inc., a Delaware
corporation and a wholly owned subsidiary of ChevronTexaco.
"Merger" shall mean the "Merger" as such term is defined in
the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of April 4, 2005, by and between the Company,
ChevronTexaco and Merger Sub, as it may be amended from time
to time.
B. AMENDMENT OF THE DEFINITION OF "ACQUIRING PERSON". The definition of
"Acquiring Person" in Section 1 of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither ChevronTexaco, Merger Sub, nor any of their
Affiliates or Associates shall be deemed to be an Acquiring Person as a
result, directly or indirectly, of (i) the approval, execution,
delivery or performance of the Merger Agreement, (ii) the consummation
of the Merger or any other transaction contemplated by the Merger
Agreement or (iii) the public announcement of any of the foregoing."
C. AMENDMENT OF THE DEFINITION OF "DISTRIBUTION DATE". The definition of
"Distribution Date" in Section 3(a) of the Rights Agreement is hereby amended
and supplemented by adding the following proviso immediately after the words
"the earlier of such dates being herein referred to as the "Distribution Date"
in the fourth parenthetical in Section 3(a):
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred
solely as the result, directly or indirectly, of (i) the approval,
execution, delivery or performance of the Merger Agreement, (ii) the
consummation of the Merger or any other transaction contemplated by the
Merger Agreement or (iii) the public announcement of any of the
foregoing."
D. AMENDMENT OF THE DEFINITION OF "SHARES ACQUISITION DATE". The definition of
"Shares Acquisition Date" in Section 1 of the Rights Agreement is hereby amended
and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Shares Acquisition Date shall not be deemed to have
occurred solely as the result directly or indirectly, of (i) the
approval, execution, delivery or performance of the Merger Agreement,
(ii) the consummation of the Merger or any other transaction
contemplated by the Merger Agreement or (iii) the public announcement
of any of the foregoing."
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E. AMENDMENT OF SECTION 3. Section 3 of the Rights Agreement is hereby amended
and supplemented by adding the following sentence at the end thereof as a new
Section 3(d):
"Nothing in this Rights Agreement shall be construed to give
any holder of Rights or any other Person any legal or equitable rights,
remedies or claims under this Rights Agreement by virtue of (i) the
approval, execution, delivery or performance of the Merger Agreement,
(ii) the consummation of the Merger or any other transaction
contemplated by the Merger Agreement or (iii) the public announcement
of any of the foregoing."
F. AMENDMENT OF SECTION 7(A). Section 7(a) of the Rights Agreement is hereby
amended and supplemented by deleting "(i) the close of business on January 29,
2010 (the "Final Expiration Date")" and replacing it with the following:
"(i) the earlier of (x) the close of business on January 29, 2010 and
(y) immediately prior to the Effective Time (as defined in the Merger Agreement)
(such earlier date, the "Final Expiration Date")"
G. EFFECTIVENESS. This Amendment shall be deemed effective as of the date first
written above, as if executed on such date. Except as specifically amended by
this Amendment, all other terms and conditions of the Rights Agreement shall
remain in full force and effect and are hereby ratified and confirmed.
H. MISCELLANEOUS. This Amendment 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 to
be made and performed entirely within such State; PROVIDED, HOWEVER, that all
provisions regarding the rights, duties and obligations of the Rights Agent
shall be governed by and construed in accordance with the laws of the State of
New York and applicable to contracts made and performed entirely within such
state. This Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed an original, and all such
counterparts shall together constitute but one and the same instrument. If any
provision, covenant or restriction of this
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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. Except as
otherwise expressly provided herein, or unless the context otherwise requires,
all terms used herein have the meanings assigned to them in the Rights
Agreement. The Rights Agent and the Company hereby waive any notice requirement
under the Rights Agreement pertaining to the matters covered by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date and year first
above written.
Attest: UNOCAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxx X. Xxxxxxx Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary Title: Corporate Secretary
and Deputy General
Counsel
Attest: MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxxx Xxxxxxxx
Title: Vice President Title: Assistant Vice
President
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OFFICER'S CERTIFICATE
The undersigned, Xxxx X. Xxxxxxx, the Assistant Secretary of
Unocal Corporation, hereby delivers this Certificate pursuant to Section 27 of
the Rights Agreement, dated as of January 5, 2000 (the "RIGHTS AGREEMENT"),
between Unocal Corporation, a Delaware corporation (the "COMPANY"), and Mellon
Investor Services LLC, as Rights Agent (the "RIGHTS AGENT").
The undersigned certifies that the proposed Amendment to
Rights Agreement (the "AMENDMENT"), the form of which is attached hereto as
Annex A, is in compliance with the terms of Section 27 of the Rights Agreement.
The Company hereby directs the Rights Agent to execute and
deliver the Amendment.
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Certificate as of April 4, 2005.
By:
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Assistant Secretary
