EXHIBIT 4.8
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THIRD AMENDMENT TO RIGHTS AGREEMENT
This Third Amendment is entered into effective as of June 16, 1995 by and
between Xxxxxxxx Resources, Inc. (the "Company") and Bank One, Texas, N.A., as
Rights Agent (the "Rights Agent"), with respect to that certain Rights Agreement
dated as of December 10, 1990, a copy of which is attached hereto as Exhibit A
(the "Rights Agreement").
RIGHTS
A. The Company intends to issue and sell to certain investors (together
with their successors, the "Original Preferred Holders") an aggregate of
1,500,000 shares of its Series 1995 Convertible Preferred Stock (the "Series
1995 Preferred Stock") pursuant to the terms of a Stock Purchase Agreement dated
as of June 16, 1995 between the Company and Trust Company of the West and TCW
Asset Management Company, in the capacities set forth therein and certain other
parties named therein (the "Stock Purchase Agreement"). Capitalized terms used
herein but not otherwise defined herein shall have meaning ascribed thereto in
the Rights Agreement as in effect on the date hereof.
B. As a condition to their purchase of the shares of Series 1995 Preferred
Stock, the Original Preferred Holders have required that the Rights Agreement be
amended to exclude, under certain conditions, the Series 1995 Preferred Stock,
the Common Stock issued by way of conversion or redemption of, or payment of any
dividend on the Series 1995 Preferred Stock (collectively, the "Conversion
Shares"), the Original Preferred Holders and certain other Persons from certain
provisions of the Rights Agreement.
C. The Company has determined that the offer and sale of the shares of
Series 1995 Preferred Stock are in the best interest of the Company and all of
its stockholders, and is therefore willing to so amend the Rights Agreement.
AGREEMENT
NOW, THEREFORE, pursuant to Section 27 of the Rights Agreement, the Company
hereby supplements and amends, and directs the Rights Agent to supplement and
amend, the Rights Agreement as follows: 1. Acquiring Person and Adverse Person
1.1 Notwithstanding any provision of the Rights Agreement which could be
construed to the contrary, all shares of Series 1995 Preferred Stock and all
Conversion Shares held by
(A) any Original Preferred Holder,
(B) any Affiliate, fund participant, trust beneficiary, or limited partner
of any Original Preferred Holder,
(C) any party to any investment management or other similar agreement with
Trust Company of the West, a California trust company ("Trustco") or TCW Asset
Management Company, a California corporation ("Tamco"), listed in the definition
of "TCW" in the Stock Purchase Agreement or any fund, foundation, trust or other
Person for whose benefit any such agreement with Trustco or Tamco relates or any
trustee, custodian or nominee of or for any such Person and
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(D) any Person (including any "group" as defined in the Exchange Act) who
acquires all shares of Series 1995 Preferred Stock or Conversion Shares then
held by any of the Persons described in clauses (A), (B) or (C) above directly
from such Person (provided that the transferor of such shares shall have, prior
to such transfer, given the Company the right of first offer described in
Section 1.2 below)shall be excluded from any calculation made for the purpose of
determining whether the holder of such shares is an "Acquiring Person" or an
"Adverse Person" for any purpose under the Rights Agreement.
1.2 No transferee of any Preferred Shares or Conversion Shares shall be
entitled to the exclusions set forth in Section 1.1 unless (i) at least 15
business days prior to any such transfer the transferor of such shares shall
have delivered a written notice to the Company offering to sell such shares to
the Company or its designee for cash at the same price and on the same terms as
offered to the proposed transferee and (ii) the Company or its designee shall
have failed to accept such offer within seven business days of the Company's
receipt thereof and to close such sale and purchase on the scheduled closing
date set forth in the terms offered.
2. Miscellaneous
2.1 Subject to the terms set forth herein, the Rights Agreement shall
remain in full force and effect.
2.2 This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
This Third Amendment to Rights Agreement is hereby executed as of the date
first above written.
XXXXXXXX RESOURCES, INC.
a Nevada corporation
ATTEST:
/s/XXXXXX X. XXXXX By: /s/M. XXX XXXXXXX
Xxxxxx X. Xxxxx M. Xxx Xxxxxxx
Secretary President
BANK ONE, TEXAS, N.A.
as Rights Agent
/s/XXXX XXXXXXXXXX By: /s/XXX XXXXXXX
Xxxx Xxxxxxxxxx Title: Assistant Vice President
Vice President
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