EXHIBIT 4.1.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment") dated as of
March 18, 2004, to the Rights Agreement, dated as of May
16, 1996 (the "Rights Agreement"), between Ashland Inc., a
Kentucky corporation (the "Company"), and National City
Bank, a Delaware corporation, as successor to Xxxxxx Trust
and Savings Bank by appointment, as Rights Agent (the
"Rights Agent"). Terms used herein and not otherwise
defined shall have the respective meanings ascribed to
such terms in the Rights Agreement.
WHEREAS the Company, ATB Holdings Inc., a Delaware corporation
("HoldCo"), EXM LLC, a Kentucky limited liability company ("New Ashland LLC"),
New EXM Inc., a Kentucky corporation ("New Ashland Inc."), Marathon Oil
Corporation, a Delaware corporation ("Marathon"), Marathon Oil Company, an
Ohio corporation ("Marathon Company"), Marathon Domestic LLC, a Delaware
limited liability company ("Merger Sub"), and Marathon Ashland Petroleum LLC,
a Delaware limited liability company ("MAP"), have proposed to enter into a
Master Agreement to be dated the date hereof (the "Master Agreement");
WHEREAS the Company desires to amend the Rights Agreement to render
the Rights inapplicable to the Transactions (as defined in the Master
Agreement) contemplated by the Master Agreement and the other Transaction
Agreements (as defined in the Master Agreement);
WHEREAS the Company desires that, at the Acquisition Merger
Effective Time (as defined in the Master Agreement), (A) New Ashland Inc. will
succeed to all the rights and obligations of the Company under the Rights
Agreement; (B) all references to Common Stock of the Company and Preferred
Shares of the Company will be deemed to be references to Common Stock of New
Ashland Inc. and Preferred Shares of New Ashland Inc.; and (C) the Rights
Agreement will continue in effect;
WHEREAS the Company deems this Amendment to the Rights Agreement to
be desirable and in the best interests
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of the holders of the Rights and has duly approved this Amendment; and
WHEREAS Section 26 of the Rights Agreement permits the Company at
any time before the occurrence of a Distribution Date and before any person
becomes an Acquiring Person to amend the Rights Agreement in the manner
provided herein.
NOW THEREFORE, the parties hereby agree as follows:
1. Succession and Continuance. Effective at the Acquisition Merger
Effective Time, New Ashland Inc. will succeed to all the rights and
obligations of the Company under the Rights Agreement and the Rights Agreement
will continue in effect after the Acquisition Merger Effective Time.
2. Substitution of New Ashland Inc. Effective at the Acquisition
Merger Effective Time, all references to Common Stock of the Company and
Preferred Shares of the Company in the Rights Agreement will be deemed to be
references to Common Stock of New Ashland Inc. and Preferred Shares of New
Ashland Inc.
3. Amendment of Section 1. Section 1 of the Rights Agreement is
supplemented to add the following definitions in the appropriate locations:
"HOLDCO" means ATB Holdings Inc., a Delaware corporation and wholly
owned subsidiary of the Company.
"MASTER AGREEMENT" shall mean the Master Agreement, dated as of
March 18, 2004, among the Company, HoldCo, New Ashland LLC, New
Ashland Inc., Marathon, Marathon Company, Merger Sub, and MAP, as it
may be amended from time to time.
"MERGER SUB" means Marathon Domestic LLC, a Delaware limited
liability company and wholly owned subsidiary of Marathon.
"MARATHON" means Marathon Oil Corporation, a Delaware corporation.
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"MARATHON COMPANY" means Marathon Oil Company, an Ohio corporation
and wholly owned subsidiary of Marathon.
"MAP" means Marathon Ashland Petroleum LLC, a Delaware limited
liability company owned by Marathon Company and the Company.
"NEW ASHLAND INC." means New EXM Inc., a Kentucky corporation and
wholly owned subsidiary of HoldCo.
"NEW ASHLAND LLC" means EXM LLC, a Kentucky limited liability
company and wholly owned subsidiary of HoldCo.
4. Amendment of the Definition of "Acquiring Person". The definition
of "ACQUIRING PERSON" in Section 1 of the Rights Agreement is amended by
adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
none of Marathon, Marathon Company, Merger Sub, MAP, HoldCo, New Ashland
LLC, New Ashland Inc. or any other Person, individually, or collectively,
shall be deemed to be an Acquiring Person solely by virtue of (i) the
execution and delivery of the Master Agreement or any other Transaction
Agreement (as defined in the Master Agreement) or (ii) the consummation
of the Transactions (as defined in the Master Agreement)."
5. Amendment of Section 3. Section 3(b) of the Rights Agreement is
amended and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
a Distribution Date or Business Combination shall not be deemed to have
occurred, no Rights shall separate from the Common Shares or otherwise
become exerciseable and no adjustment shall be made pursuant to Sections
11 or 12, in each case solely as a result of (i) the execution and
delivery of the Master Agreement or any other Transaction Agreement (as
defined in the Master Agreement) or (ii) the consummation of the
Transactions (as defined in the Master Agreement)."
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Furthermore, Section 3 of the Rights Agreement is amended to add the following
sentence at the end thereof as Section 3(e):
"Nothing in this Rights Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable rights,
remedies or claims under this Rights Agreement by virtue of the execution
and delivery of the Master Agreement or any other Transaction Agreement
(as defined in the Master Agreement), or by virtue of any of the
Transactions (as defined in the Master Agreement), including without
limitation the consummation thereof."
6. Effectiveness. This Amendment shall be deemed effective as of the
date first written above, as if executed on such date. Except as amended
hereby, the Rights Agreement shall remain in full force and effect and shall
be otherwise unaffected hereby.
7. Miscellaneous. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective immediately upon execution by the Company, whether or
not also executed by the Rights Agent. This Amendment shall be deemed to be a
contract made under the laws of the Commonwealth of Kentucky and for all
purposes shall be governed by and construed in accordance with the laws of
such State applicable to contracts to be made and performed entirely within
such State. If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. The Rights Agent and the
Company hereby waive any notice requirement under the Rights Agreement
pertaining to the matters covered by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their authorized officers as of the date first
written above.
ASHLAND INC.,
by /s/ Xxxxx X. X'Xxxxx
________________________
Name: Xxxxx X. X'Xxxxx
Title: Chief Executive
Officer
National City Bank,
by
________________________
Name:
Title:
