Exhibit 4
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
AMENDMENT NO. 2 dated as of April 15, 1999 to the Rights Agreement
dated as of December 6, 1989, as amended by Amendment No. 1 dated as of April 6,
1998 (the "Rights Agreement") between Xxxxxx Oil Corporation, a Delaware
corporation (the "Company"), and Xxxxxx Trust Company of New York, as Rights
Agent (the "Rights Agent").
W I T N E S S E T H
WHEREAS, the parties hereto desire to amend the Rights Agreement in
certain respects;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. (a) Unless otherwise specifically
defined herein, each term used herein which is defined in the Rights Agreement
has the meaning assigned to such term in the Rights Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Rights Agreement shall, after this Amendment becomes effective,
refer to the Rights Agreement as amended hereby.
(b) Section 1 of the Rights Agreement is hereby amended by deleting the
definition of "Continuing Director" contained therein.
(c) Section 1 of the Rights Agreement is hereby amended by inserting in the
appropriate alphabetical position the following new definitions:
"Exempt Person" shall mean the Company or any Subsidiary of the Company, in
each case including, without limitation, in its fiduciary capacity, or any
employee benefit plan of the Company or of any Subsidiary of the Company, or any
entity or trustee holding Common Stock for or pursuant to the terms of any such
plan or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the Company.
"Qualified Institutional Investor" means, as of any time of determination,
any Person that is described in Rule 13d-1(b)(1) promulgated under the Exchange
Act (as such Rule is in effect on the date hereof) and is eligible to report
beneficial ownership of Common Stock on Schedule 13G (or any successor or
comparable report), unless such Person (i) is required to file a Schedule 13D
(or any successor or comparable report) with respect to its beneficial ownership
of Common Stock, (ii) beneficially owns 15% or more of the shares of Common
Stock then outstanding or (iii) together with all of its Affiliates and
Associates, beneficially owns 30% or more of the shares of Common Stock then
outstanding.
(d) Section 1 of the Rights Agreement is hereby amended by restating in its
entirety the following definitions to read in full as follows:
"Acquiring Person" means any Person who, together with all Affiliates and
Associates (other than an Exempt Holder) of such Person, shall be the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding, but shall
not include an Exempt Person, an Exempt Holder or a Qualified Institutional
Investor; provided that (a) if the Board of Directors of the Company determines
in good faith that a Person who would otherwise be an "Acquiring Person" became
such inadvertently (including, without limitation, because (i) such
Person was unaware that it beneficially owned a percentage of Common Stock that
would otherwise cause such Person to be an "Acquiring Person" or (ii) such
Person was aware of the extent of its Beneficial Ownership of Common Stock but
had no actual knowledge of the consequences of such Beneficial Ownership under
this Agreement) and without any intention of changing or influencing control of
the Company, and if such Person as promptly as practicable divested or divests
itself of Beneficial Ownership of a sufficient number of shares of Common Stock
so that such Person would no longer be an "Acquiring Person" (or takes such
other action as the Board of Directors requests), then such Person shall not be
deemed to be or to have become an "Acquiring Person" for any purposes of this
Agreement and (b) no Person shall become an "Acquiring Person" as the result of
an acquisition of shares of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of shares of
Common Stock beneficially owned by such Person to 15% or more of the shares of
Common Stock then outstanding; provided that if a Person shall become the
Beneficial Owner of 15% or more of the shares of Common Stock then outstanding
by reason of such share acquisition by the Company and shall thereafter become
the Beneficial Owner of any additional shares of Common Stock (other than
pursuant to a dividend or distribution paid or made by the Company on the
outstanding Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock), then such Person shall be deemed to be an "Acquiring
Person" unless upon becoming the Beneficial Owner of such additional shares of
Common Stock such Person does not beneficially own 15% or more of the shares of
Common Stock then outstanding.
A Person shall be deemed the "Beneficial Owner" of, and shall be deemed to
have "Beneficial Ownership" of and to "beneficially own", any securities:
(a) which such Person or, except in the case of a Qualified Institutional
Investor, any of its Affiliates or Associates (other than an Exempt Holder),
directly or indirectly, beneficially owns (as determined pursuant to Rule 13d-3
under the Exchange Act as in effect on the date hereof);
(b) which such Person or, except in the case of a Qualified Institutional
Investor, any of its Affiliates or Associates (other than an Exempt Holder),
directly or indirectly, has
(i) the right to acquire (whether such right is exercisable immediately
or only upon the occurrence of certain events or the passage of time or
both) pursuant to any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights, warrants or
options, or otherwise; provided that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (A) securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person
or any of such Person's Affiliates or Associates until such tendered
securities are accepted for payment or exchange, (B) securities which such
Person has a right to acquire upon the exercise of Rights at any time prior
to the time that any Person becomes an Acquiring Person or (C) securities
issuable upon the exercise of Rights from and after the time that any
Person becomes an Acquiring Person if such Rights were acquired by such
Person or any of such Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or Section 22 hereof
("Original Rights") or pursuant to Section 11(i) or Section 11(p) with
respect to an adjustment to Original Rights; or
(ii) the right to vote (whether such right is exercisable immediately
or only upon the occurrence of certain events or the passage of time or
both) pursuant to any agreement, arrangement or understanding (whether or
not in writing) or otherwise; provided that a Person shall not be deemed
the "Beneficial Owner" of or to "beneficially own" any security under this
clause (ii) as a result of an agreement, arrangement or understanding to
vote such security if such agreement, arrangement or understanding (A)
arises solely from a revocable proxy or consent given in response to a
public proxy or consent solicitation made pursuant to the applicable rules
and regulations under the Exchange Act and (B) is not also then reportable
by such Person on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
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(iii) which are beneficially owned, directly or indirectly, by any
other Person (other than an Exempt Holder), or any Affiliate or Associate
(other than an Exempt Holder) thereof, and with respect to which such
Person or any of its Affiliates or Associates (other than an Exempt Holder)
has any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities) for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy or consent
as described in subparagraph (b)(ii) immediately above) or disposing of any
such securities;
provided that no Person who is an officer, director or employee of an Exempt
Person, an Exempt Holder or a Qualified Institutional Investor shall be deemed,
solely by reason of such Person's status or authority as such, to be the
"Beneficial Owner" of, to have "Beneficial Ownership" of or to "beneficially
own" any securities that are "beneficially owned", including, without
limitation, in a fiduciary capacity, by an Exempt Person, an Exempt Holder or a
Qualified Institutional Investor or by any other such officer, director or
employee of an Exempt Person, an Exempt Holder or a Qualified Institutional
Investor.
"Exempt Holder" means Xxxxxxx X. Xxxxxx, Xx., his descendants (and their
spouses), and his and their Affiliates and Associates.
(c) Section 1 of the Rights Agreement is hereby amended by deleting from
the definition of "Distribution Date" the first instance of the words "(or such
later day as may be designated by action of a majority of the Continuing
Directors)" and by replacing the second instance of the same words with the
words "(or such later day as may be designated prior to the occurrence of a
Section 11(a)(ii) Event by action of the Board of Directors)".
SECTION 2. Exercise of Rights; Expiration Date of Rights. Section 7(d) of
the Rights Agreement is hereby amended by deleting the words "the Continuing
Directors have determined" from the first sentence thereof.
SECTION 3. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights. Section 11 of the Rights Agreement is hereby amended by:
(a) replacing the words "a majority of the Continuing Directors has
determined to be" in the first sentence of subsection (a)(iii) thereof with the
word "are";
(b) replacing each instance of the words "(as determined by the Continuing
Directors based upon the advice of a nationally recognized investment banking
firm selected by the Continuing Directors)" in subsection (a)(iii) thereof with
the words "(based upon the advice of a nationally recognized investment banking
firm)";
(c) deleting the second sentence of subsection (a)(iii) thereof;
(d) replacing the words "first and/or second sentence of this Section
11(a)(iii)" in the third sentence of subsection (a)(iii) thereof with the words
"preceding sentence";
(e) replacing the words "Substitution Period in order to seek any
authorization of additional shares and/or" in the third sentence of subsection
(a)(iii) thereof with the words "30-day period set forth above in order";
(f) replacing the words "such first and/or second" in the third sentence of
subsection (a)(iii) thereof with the words "the preceding";
(g) deleting the words "the later of" from the last sentence of subsection
(a)(iii) thereof
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(h) deleting the words "and the first date that the right to redeem the
Rights pursuant to Section 23 shall expire" from the last sentence of subsection
(a)(iii) thereof;
(i) deleting the words ", or, if at the time of such selection there is an
Acquiring Person, by a majority of the Continuing Directors" from the second
sentence of subsection (d)(i) thereof;
(j) replacing the words "majority of the Continuing Directors" in the third
sentence of subsection (d)(i) thereof with the words "nationally recognized
investment banking firm";
(k) deleting the words "by a majority of the Continuing Directors, or, if
there are no Continuing Directors," from the fourth sentence of subsection
(d)(i) thereof;
(l) deleting the words "selected by the Board of Directors" from the fourth
sentence of subsection (d)(i) thereof;
(m) deleting the words "by a majority of the Continuing Directors then in
office, or, if there are no Continuing Directors," from subsection (d)(iii)
thereof; and
(n) deleting the words "selected by the Board of Directors" from subsection
(d)(iii) thereof.
SECTION 4. Fractional Rights and Fractional Shares. Section 14(a) of the
Rights Agreement is hereby amended by:
(a) deleting the words ", or, if at the time of such selection there is an
Acquiring Person, by a majority of the Continuing Directors" from the
penultimate sentence thereof; and
(b) replacing the words "majority of the Continuing Directors" in the last
sentence thereof with the words "nationally recognized investment banking firm".
SECTION 5. Redemption. Section 23(a) of the Rights Agreement is hereby
amended by:
(a) replacing the words "close of business on the tenth day after the Stock
Acquisition Date (or such later date as a majority of the Continuing Directors
may designate prior to such time as the Rights are no longer redeemable)" in the
first sentence thereof with the words "occurrence of a Section 11(a)(ii) Event";
(b) deleting the proviso from the first sentence thereof and the semicolon
immediately preceding such proviso; and
(c) deleting the last sentence thereof.
SECTION 6. Exchange. (a) Section 24(a) of the Rights Agreement is hereby
amended by replacing the words "a majority of the Continuing Directors may, at
their option, at any time after any Person becomes an Acquiring Person," in the
first sentence thereof with the words "the Board of Directors of the Company
may, at its option, upon the occurrence of a Section 11(a)(ii) Event,".
(b) Section 24(b) of the Rights Agreement is hereby amended by
replacing the word "Continuing" in the first sentence thereof with the words
"Board of".
SECTION 7. Supplements and Amendments. Section 27 of the Rights Agreement
is hereby amended in its entirety to read in full as follows:
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For so long as the Rights are redeemable, the Company may, and the Rights
Agent shall, if the Company so directs, supplement or amend any provision of
this Agreement in any respect without the approval of any holders of
certificates representing shares of Common Stock. At any time when the Rights
are no longer redeemable, the Company may, and the Rights Agent shall if the
Company so directs, supplement or amend this Agreement without the approval of
any holders of Rights; provided that no such supplement or amendment may (a)
adversely affect the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person), (b) cause
this Agreement again to become amendable other than in accordance with this
sentence, or (c) cause the Rights again to become redeemable. Upon the delivery
of a certificate from an appropriate officer of the Company which states that
the proposed supplement or amendment is in compliance with the terms of this
Section, the Rights Agent shall execute such supplement or amendment.
SECTION 8. Determination and Actions by the Board of Directors, Etc.
Section 29 of the Rights Agreement is hereby amended by:
(a) deleting the first parenthetical clause from the second sentence
thereof; and
(b) deleting the second parenthetical clause and the words "or the
Continuing Directors" from the last sentence thereof.
SECTION 9. Severability. Section 31 of the Rights Agreement is hereby
amended by deleting the proviso contained therein and the semicolon that
immediately precedes such proviso.
SECTION 10. Form of Right Certificate. Exhibit B to the Rights Agreement is
hereby amended by replacing (x) the words "as amended on April 6, 1998" in the
first paragraph with the words "as amended on April 6, 1998 and April 15, 1999"
and (y) the words "close of business on the tenth day after the Stock
Acquisition Date (or such later date as a majority of the Continuing Directors
may designate prior to such time as the Rights are no longer redeemable)" in
subparagraph (a) of the seventh paragraph thereof with the words "occurrence of
a Section 11(a)(ii) Event".
SECTION 11. Summary of Terms. Exhibit C to the Rights Agreement is hereb
amended by:
(a) deleting the words "subject to extension by a majority of the Directors
not affiliated with the Acquiring Person" from the first footnote thereof;
(b) restating the language under the heading "Redemption" in its entirety
to read in full as follows:
(c) The Board of Directors may redeem all of the Rights at a price of $.01
per Right at any time prior to the time that any person becomes an Acquiring
Person.
(d) restating the language under the heading "Amendments" in its entirety
to read in full as follows:
For so long as the Rights are redeemable, the Rights Agreement may be
amended in any respect.
At any time after the Rights are no longer redeemable, the Rights Agreement
may be amended by the Board of Directors in any respect that does not (i)
adversely affect the Rights holders (other than any Acquiring Person and certain
affiliated persons), (ii) cause the Rights Agreement again to become amendable
other than in accordance with this paragraph or (iii) cause the Rights again to
become redeemable.
SECTION 12. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
any applicable conflicts of law rules, except that the rights and obligations of
the Rights Agent shall be governed by the laws of the State of New York.
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SECTION 13. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 14. Effectiveness. This Amendment shall become effective upon
execution by each of the parties hereto of a counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXX OIL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
General Counsel
XXXXXX TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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