EXHIBIT 4.3
FIRST AMENDMENT
This First Amendment dated as of April 30, 1997 (the "First
Amendment"), between ENERGY BIOSYSTEMS (the "Company") and KEYCORP SHAREHOLDER
SERVICES, INC., successor in interest to Society National Bank (the "Agent").
WITNESSETH
WHEREAS, the Company and the Agent entered into that Stockholders
Rights Agreement dated as of March 8, 1995 (the "Agreement"); and
WHEREAS, the Company and the Agent desire to amend the Agreement to
reflect a change in the requirements regarding the appointment of a successor
Agent.
NOW, THEREFORE, in consideration of the mutual promises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
Section 1.01 DEFINED TERMS. Capitalized terms used in this First
Amendment and not defined shall have the meanings assigned to them in the
Agreement.
Section 1.02 AMENDMENT OF SECTION 21. Section 21 of the Agreement shall
be amended as follows:
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 thirty (30) days' notice in writing mailed to
the Company and to each transfer agent of the Preferred Shares and
Common Shares by registered or certified mail, and to the holders of
the Rights Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon thirty (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 Preferred
Shares or Common Shares by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become incapable of
acting, the resigning, removed, or incapacitated Rights Agent shall
remit to the Company, or to any successor Rights Agent designated by
the Company, all books, records, funds, certificates or other documents
or instruments of any kind then in its possession which were acquired
by such resigning, removed or incapacitated Rights Agent in connection
with its services as Rights Agent hereunder, and shall thereafter be
discharged from all duties and obligations hereunder. Following notice
of such removal, resignation or incapacity, the Company shall appoint a
successor to such Rights Agent. If the Company shall fail to make such
appointment within a period of thirty (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 Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company),
then any registered holder of any Rights 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 either (a) a corporation organized and doing
business under the laws of the United States, or of the State of New
York, Texas, or Illinois (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 State of New York or Texas), in good standing,
having an office or an affiliate with an office in the State of New
York, which 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 which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$50 million or (b) an affiliate of a corporation described in clause
(a) of this sentence which is a corporation organized and doing
business under the laws of the United States or of the State of New
York or Texas (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 State of New York or Texas), in good standing, having a
principal office in the State of New York, which 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.
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. 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 or Preferred Shares, and mail a notice thereof in writing to the
registered holders of the Rights 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.
Section 1.03 AGREEMENT TO REMAIN IN FULL FORCE AND EFFECT. Other than
as specifically amended by this First Amendment, the other terms of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the day and year first above written.
ENERGY BIOSYSTEMS CORPORATION
By: /s/ Xxxx X. Xxxxx, III
--------------------------------------
KEYCORP SHAREHOLDER SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
