FIRST AMENDMENT
TO
STOCKHOLDERS AGREEMENT
This First Amendment to Stockholders Agreement (this "Amendment") is
made as of October 7, 2003 by and among Lyondell Chemical Company, a Delaware
corporation (the "Company"), Occidental Chemical Holding Corporation, a
California corporation ("OCHC"), and Occidental Petroleum Corporation, a
Delaware corporation ("Occidental"). The Company, OCHC and Occidental are
sometimes collectively referred to herein as the "Parties" and each individually
referred to as a "Party."
RECITALS
WHEREAS, the Company and the Stockholders entered into a Stockholders
Agreement, dated as of August 22, 2002, by and among the Company and the
Stockholders (the "Stockholders Agreement"), which restricts Occidental and its
Wholly Owned Affiliates from, among other things, acquiring, agreeing to acquire
or making any proposal to acquire, directly or indirectly, any securities of the
Company;
WHEREAS, the Company desires to sell to Occidental or one or more of
its Wholly Owned Affiliates, and Occidental or one or more of its Wholly Owned
Affiliates desires to purchase, shares of Original Common Stock in the Company's
equity offering pursuant to the Underwriting Agreement dated as of October 7,
2003 between the Company and Credit Suisse First Boston LLC (the "Offering") in
an amount that will be sufficient to maintain Occidental's approximate pro rata
share ownership of the Company's outstanding equity as of the date of
commencement of the Offering (which is approximately 22%);
WHEREAS, the Parties desire to document the correction of a
typographical error in the text of Section 3.3(b) to the Stockholders Agreement;
WHEREAS, pursuant to Section 7.11 of the Stockholders Agreement,
Occidental and the Company now desire to amend the Stockholders Agreement as set
forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
of the Parties, the Parties hereby agree as follows:
Section 1. Defined Terms. The definitions of capitalized terms
used and not otherwise defined herein shall have the meanings given such terms
in the Stockholders Agreement.
Section 2. Amendment to Section 2.2 of the Stockholders Agreement.
The Parties hereby agree that Section 2.2 of the Stockholders Agreement shall be
amended by inserting the following text as new subsection (d) to Section 2.2:
"(d) Section 2.1 shall not be applicable to the purchase,
directly or indirectly, by Occidental or one or more of its Wholly Owned
Affiliates of up to 2.7 million shares of Original Common Stock (such amount is
intended to be sufficient to permit Occidental to maintain its approximate pro
rata share of ownership of the Company's outstanding equity as of
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the date of the commencement of the Company's equity offering pursuant to the
Underwriting Agreement dated as of October 7, 2003 between the Company and
Credit Suisse First Boston LLC, which is approximately 22%) in the Offering, so
long as after giving effect to such purchase, Occidental and its Wholly Owned
Affiliates will beneficially own in the aggregate, directly or indirectly, a
lower ownership percentage in the Company than the Occidental Rights Trigger
Amount (as defined in the Securities Purchase Agreement). Occidental hereby
agrees, and shall cause its Wholly Owned Affiliates, to promptly notify the
Company of any purchase of such Original Common Stock."
Section 3. Amendment to Section 3.3(b) of the Stockholders
Agreement. The Parties hereby agree that Section 3.3(b) of the Stockholders
Agreement shall be amended and restated in its entirety to read as follows:
"'The Company shall exercise all authority under applicable law to
cause any slate of directors presented to the stockholders of the Company for
election to the Board of Directors to include both Dr. Xxx Xxxxx and Xxxxxxx X.
Xxxxxx, so long as they are qualified to serve, until Occidental and its
Subsidiaries beneficially own in the aggregate, directly or indirectly, less
than 34 million shares of Common Stock (excluding for purposes of this Section
(3.3(b), shares to be issued to OCHC or its Wholly Owned Affiliates upon
exercise of a Warrant), from which time until the Termination Date for
Occidental and its Wholly Owned Affiliates only one of such individuals (to be
determined in the sole discretion of the Company) shall be entitled to a seat on
the Board of Directors."
Section 4. Effectiveness of Stockholders Agreement. Except as
amended by this Amendment, all terms and conditions of the Stockholders
Agreement shall remain in full force and effect among the Parties thereto.
Section 5. Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall constitute an original. All signatures
need not be on the same counterpart.
Section 6. Governing Law. The laws of the State of Delaware shall
govern the construction, interpretation and effect of this Amendment without
giving effect to any conflicts of law principles.
Section 7. Specific Performance. Each Party agrees that the other
Parties would be irreparably damaged if for any reason such Party fails to
perform any of such Party's obligations under this Amendment, and that the other
Parties would not have an adequate remedy at law for money damages in such
event. Accordingly, the other Parties shall be entitled to seek specific
performance and injunctive and other equitable relief to enforce the performance
of this Amendment by such Party. This provision is without prejudice to any
other rights that the Parties may have against any other Party for any failure
to perform its obligations under this Amendment.
Section 8. Jurisdiction; Consent to Service of Process; Waiver.
ANY JUDICIAL PROCEEDING BROUGHT AGAINST ANY PARTY OR ANY DISPUTE UNDER, ARISING
OUT OF OR IN CONNECTION WITH THIS AMENDMENT SHALL BE
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BROUGHT IN THE FEDERAL OR STATE COURTS OF THE STATE OF DELAWARE, AND, BY
EXECUTION AND DELIVERY OF THIS AMENDMENT, EACH OF THE PARTIES ACCEPTS THE
EXCLUSIVE JURISDICTION OF SUCH COURTS AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT (AS FINALLY ADJUDICATED) RENDERED THEREBY IN CONNECTION WITH THIS
AMENDMENT. EACH OF THE PARTIES SHALL APPOINT THE CORPORATION TRUST COMPANY, THE
XXXXXXXX-XXXX CORPORATION SYSTEM, INC. OR A SIMILAR ENTITY (THE "AGENT") AS
AGENT TO RECEIVE ON ITS BEHALF SERVICE OF PROCESS IN ANY PROCEEDING IN ANY SUCH
COURT IN THE STATE OF DELAWARE, AND EACH OF THE PARTIES SHALL MAINTAIN THE
APPOINTMENT OF SUCH AGENT (OR A SUBSTITUTE AGENT) FROM THE DATE HEREOF UNTIL THE
TERMINATION OF THE STOCKHOLDERS AGREEMENT AND SATISFACTION OF ALL OBLIGATIONS
HEREUNDER AND THEREUNDER. THE FOREGOING CONSENTS TO JURISDICTION AND
APPOINTMENTS OF AGENT TO RECEIVE SERVICE OF PROCESS SHALL NOT CONSTITUTE GENERAL
CONSENTS TO SERVICE OF PROCESS IN THE STATE OF DELAWARE FOR ANY PURPOSE EXCEPT
AS PROVIDED ABOVE AND SHALL NOT BE DEEMED TO CONFER RIGHTS ON ANY PERSON OTHER
THAN THE PARTIES. EACH PARTY HEREBY WAIVES ANY OBJECTION IT MAY HAVE BASED ON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON-CONVENIENS.
Section 9. Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY AND
INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING UNDER, ARISING OUT OF OR IN CONNECTION WITH THIS AMENDMENT
AND FOR ANY COUNTERCLAIM THEREIN.
Section 10. Cooperation for Rule 144 Resales. The Company hereby
agrees that it will file the reports required to be filed by it under the
Securities Act of 1933, as amended (the "Securities Act"), and the Securities
Exchange Act of 1934, as amended, and the rules and regulations adopted by the
Securities Exchange Commission ("SEC") thereunder (or, if the Company is not
required to file such reports, it will, upon the request of Occidental, make
publicly available other non-confidential information so long as necessary to
permit sales under Rule 144 under the Securities Act of shares of Original
Common Stock Occidental purchases in the Offering), and it will take such other
action as Occidental may reasonably request, all to the extent required from
time to time to enable Occidental to sell shares it purchases in the Offering
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act or (b) any similar
rule or regulation hereafter adopted by the SEC.
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IN WITNESS WHEREOF, this Amendment has been executed on behalf of each
of the Parties by their respective officers thereunto duly authorized, effective
as of the date first written above.
LYONDELL CHEMICAL COMPANY
By: /s/ XXX X. XXXXX
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Name: Xxx X. Xxxxx
Title: President and Chief Executive Officer
OCCIDENTAL PETROLEUM CORPORATION
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer and Executive
Vice President - Corporate Development
OCCIDENTAL CHEMICAL HOLDING CORPORATION
By: /s/ J. R. XXXXXX
------------------------------------------
Name: J. R. Xxxxxx
Title: Vice President and Treasurer
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