EXHIBIT 4.2
XXXXXXX CHEMICAL COMPANY
000 X. XXXXXXX XXXX
XXXXXXXXX, XXXXXXXXX 00000
(423) 229 - 2000
December 4, 2003
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Shareholder Services Division
Re: Amendment to the Rights Agreement
Ladies and Gentlemen:
Pursuant to Section 5.4 of the Stockholder Protection Rights
Agreement, dated as of December 13, 1993 (the "Rights Agreement"), between
Xxxxxxx Chemical Company (the "Company") and American Stock Transfer & Trust
Company ("AST"), as rights agent (appointed pursuant to the Agreement of
Substitution and Amendment of Stockholder Protection Rights Agreement, dated as
of April 23, 2003, between the Company and AST), the Company, by resolution
adopted by its board of directors, hereby amends the Rights Agreement as
follows:
1. Section 1.1 of the Rights Agreement is hereby amended and
restated by replacing the following definitions contained therein:
"Acquiring Person" shall mean any Person (other than the Company, any
Subsidiary of the Company, or any employee benefit of stock ownership
plan of the Company or any Subsidiary of the Company or any entity
holding shares of Common Stock for or pursuant to the terms of any
such plan) who or which, together with all Affiliates and Associates
of such Person, is the Beneficial Owner of 15% or more of the
then-outstanding shares of Common Stock; provided, however, that a
Person will not be deemed to have become an Acquiring Person solely as
a result of a reduction in the number of shares of Common Stock
outstanding unless and until such time as (i) such Person or any
Affiliate or Associate of such Person thereafter becomes the
Beneficial Owner of additional shares of Common Stock representing 1%
or more of the then-outstanding shares of Common Stock, other than as
a result of a stock dividend, stock split or similar transaction
effected by the Company in which all holders of Common Stock are
treated equally, or (ii) any other Person who is the Beneficial Owner
of Common Stock representing 1% or more of the then-outstanding shares
of Common Stock thereafter becomes an Affiliate or Associate of such
Person. Notwithstanding the
American Stock Transfer & Trust Company
December 4, 2003
Page 2
foregoing, if the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an "Acquiring Person" as
defined pursuant to the foregoing provisions, has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of shares of Common Stock so that such Person would
no longer be an "Acquiring Person" as defined pursuant to the
foregoing provisions, then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement.
"Expiration Time" shall mean the earliest of (i) the Exchange Time,
(ii) the Redemption Time and (iii) the close of business on December
4, 2013.
2. Section 4.1(a) of the Rights Agreement is hereby amended by
replacing the first sentence thereof with the following:
The Company hereby appoints the Rights Agent to act as agent for the
Company and holders of Rights in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment.
3. The Rights Agreement is hereby amended by adding as Section
2.3(h) the following:
Notwithstanding any other provision of this Section 2.3, any Right
Certificate issued pursuant hereto that represents Rights beneficially
owned by an Acquiring Person or any Associate or Affiliate thereof and
any Right Certificate issued at any time upon the transfer of any
Rights to an Acquiring Person or any Associate or Affiliate thereof or
to any nominee of such Acquiring Person, Associate or Affiliate and
any Right Certificate issued pursuant to Section 2.7, 2.8 or 3.1
hereof upon transfer, exchange, replacement or adjustment of any other
Right Certificate referred to in this sentence, shall be subject to
and contain the following legend or such similar legend as the Company
may deem appropriate and as is not inconsistent with the provisions of
this Agreement, or as may be required to comply with any applicable
law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who was an Acquiring Person or an
Affiliate or an Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement). This Right Certificate and the
Rights represented hereby may become null and void in the
circumstances specified in Section 11(a)(ii) or Section 13 of the
Rights Agreement.
4. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment to the Rights Agreement, but shall remain
in full force and effect.
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December 4, 2003
Page 3
5. Capitalized terms used without other definition in this
Amendment to the Rights Agreement shall be used as defined in the Rights
Agreement.
6. This Amendment to the Rights Agreement shall be deemed to be
a contract made under the internal substantive laws of the State of Delaware
and for all purposes will be governed by and construed in accordance with the
internal substantive laws of such State applicable to contracts to be made and
performed entirely within such State.
7. This Amendment to the Rights Agreement may be executed in any
number of counterparts and 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.
8. This Amendment to the Rights Agreement shall be effective as
of the date hereof, and all references to the Rights Agreement shall, from and
after such date, be deemed to be references to the Rights Agreement as amended
hereby.
9. Exhibit A to the Rights Agreement shall be deemed amended in
a manner consistent with this Amendment to the Rights Agreement.
Very truly yours,
XXXXXXX CHEMICAL COMPANY
By: /s/ XXXXXXX X. XXX
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Senior Vice President, Chief
Legal Officer and Corporate
Secretary
Accepted and agreed to:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ XXXXX XXXXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
