Exhibit 4.1
AMENDMENT NO. 2
TO THE
HERCULES INCORPORATED RIGHTS AGREEMENT
DATED AS OF AUGUST 4, 2000
THIS AMENDMENT is made and entered into as of August 21, 2003, by and
between Hercules Incorporated, a Delaware corporation (the "Company"), and
Mellon Investor Services LLC, a New Jersey limited liability company (the
"Rights Agent").
WITNESSETH:
WHEREAS, the Company and ChaseMellon Shareholder Services, L.L.C., the
predecessor to the Rights Agent, executed a Rights Agreement, dated as of August
4, 2000 (as subsequently amended, the "Rights Agreement"); and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
and the Rights Agent may, prior to the time any Person becomes an Acquiring
Person (as defined in the Rights Agreement), supplement or amend the Rights
Agreement without the approval of any holders of Right Certificates in order to
make any provisions with respect to the Rights which the Company may deem
necessary or desirable, provided any such supplement or amendment is evidenced
by a writing signed by the Company and the Rights Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. AMENDMENT OF RIGHTS AGREEMENT. (a) Clause (i) of Section
7(a) of the Rights Agreement is hereby amended in its entirety to read as
follows:
"(i) the Close of Business on September 19, 2003 (the "Final Expiration
Date"),"
(b) Effective simultaneously with the Final Expiration Date, as amended
hereby, all references to "August 4, 2010" in Exhibit B (Form of Right
Certificate) and Exhibit C (Summary of Rights to Purchase Preferred Shares) to
the Rights Agreement, and in any Right Certificate and Summary of Rights, shall
be changed to "September 19, 2003."
SECTION 2. SAVINGS CLAUSE. All of the provisions of the Rights
Agreement not amended by this Amendment shall remain in full force and effect.
SECTION 3. MISCELLANEOUS. (a) This Amendment, as it amends the Rights
Agreement, constitutes the entire agreement and understanding of the parties
with respect to the subject matter hereof, and supersedes all prior
negotiations, commitments, representations and undertakings of the parties with
respect to the subject matter hereof. Any terms used herein, which are not
defined herein, shall have the meaning assigned to them in the Rights Agreement.
(b) This Amendment shall bind and inure to the benefit of the Company,
the Rights Agent and their respective successors and assigns.
(c) 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 made and to be
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
applicable to contracts made and to be performed entirely within such state.
(d) This Amendment 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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and their respective corporate seals to be hereto affixed and attested,
all on the day and year first above written.
ATTEST: HERCULES INCORPORATED
By: /s/ X. X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- --------------------------
Name: X. X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Corporate Secretary Title: Chief Legal Officer
ATTEST: MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxx XxXxxxxx
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Name: Xxxxxx Xxxxxxxxx Name: Xxxxxx XxXxxxxx
Title: Vice President Title: Vice President
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