EXHIBIT 4
HELMERICH & XXXXX, INC.
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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This AMENDMENT NO.1, dated as of December 8, 2005 (this "Amendment"), to
the Rights Agreement, dated as of January 8, 1996 (the "Rights Agreement"), is
entered into between Helmerich & Xxxxx, Inc., a Delaware corporation (the
"Company"), and UMB Bank, N.A. (as successor rights agent to Liberty Bank and
Trust Company of Oklahoma City, N.A.) (the "Rights Agent"). Capitalized terms
used but not defined herein shall have the meanings ascribed thereto in the
Rights Agreement.
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement specifying the terms of the Rights;
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement in accordance with Section 27 of the Rights Agreement;
WHEREAS, the Board of Directors of the Company has authorized and
adopted this Amendment at a meeting of directors duly called and held;
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth in the Rights Agreement and this Amendment, the parties hereby agree
as follows:
Section 1. Amendment of "Certain Definitions" Section.
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Section 1(c)(iii) of the Rights Agreement is hereby amended and
restated in its entirety to read as follows:
"(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except pursuant to a
revocable proxy as described in the proviso to subparagraph (ii) of
this paragraph (c)) or disposing of any voting securities of the
Company; provided, however, that nothing in this paragraph (c) shall
cause a person engaged in business as an underwriter of securities to
be the "Beneficial Owner" of, or to "beneficially own," any securities
acquired through such person's participation in good faith in a firm
commitment underwriting until the expiration of forty (40) days after
the date of such acquisition."
Section 2. Amendment of "Issuance of Rights Certificates" Section.
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Section 3(a) of the Rights Agreement is hereby amended and restated in its
entirety to read as follows:
"(a) Until the earlier of (i) the close of business on the
tenth Business Day after the Stock Acquisition Date (or, if the tenth
Business Day after the Stock Acquisition Date occurs before the Record
Date, the close of business on the Record Date), or (ii) the close of
business on the tenth Business Day (or such later date as the Board
shall determine) after the date that a tender or exchange offer by any
Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the
Company, or any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan) is first
published or sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act, if upon
consummation thereof, such Person would be the Beneficial Owner of 15%
or more of the shares of Common Stock then outstanding (the earlier of
(i) and (ii) being herein referred to as the "Distribution Date"), (x)
the Rights will be evidenced (subject to the provisions of paragraph
(b) of this Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates
for Rights) and not by separate certificates, and (y) the Rights will
be transferable only in connection with the transfer of the underlying
shares of Common Stock (including a transfer to the Company); provided,
however, that if a tender or exchange offer is terminated prior to the
occurrence of a Distribution Date, then no Distribution Date shall
occur as a result of such tender or exchange offer. As soon as
practicable after the Distribution Date, the Rights Agent will send by
first-class, insured, postage prepaid mail, to each record holder of
the Common Stock as of the close of business on the Distribution Date,
at the address of such holder shown on the records of the Company, one
or more right certificates, in substantially the form of Exhibit B
hereto (the "Rights Certificates"), evidencing one Right for each share
of Common Stock so held, subject to adjustment as provided herein. In
the event that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Section 11(p) hereof, at the
time of distribution of the Right Certificates, the Company shall make
the necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing only
whole numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates."
Section 3. Amendment of "Exercise of Rights; Purchase Price;
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Expiration Date of Rights" Section.
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Section 7(a) of the Rights Agreement is hereby amended and restated in
its entirety to read as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of
any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with
respect to the total number of one one-thousandth of a share (or other
securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earliest of
(i) the close of business on January 31, 2016, or such later date as
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may be established by the Board of Directors prior to the expiration of
the Rights (such date, as it may be extended by the Board of Directors
prior to the expiration of the Rights, the "Final Expiration Date"),
(ii) the time at which the Rights are redeemed as provided in Section
23 hereof or (iii) the time at which such Rights are exchanged pursuant
to Section 24 hereof (the earliest of (i), (ii) and (iii) being herein
referred to as the "Expiration Date")."
Section 7(b) of the Rights Agreement is hereby amended and restated in
its entirety to read as follows:
"(b) The Purchase Price for each one one-thousandth of a share
of Preferred Stock pursuant to the exercise of a Right shall be $250,
and shall be subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof and shall be payable in accordance with
paragraph (c) below."
Section 4. Amendment of "Notices" Section. The address of the
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Rights Agent set forth in Section 26 of the Rights Agreement is hereby amended
and restated in its entirety to read as follows:
"UMB Bank, N.A.
0000 Xxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attention: Corporate Trust Department"
Section 5. Amendment of "Supplements and Amendments" Section.
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Section 27 of the Rights Agreement is hereby amended and restated in its
entirety to read as follows:
"Section 27. Supplements and Amendments. Prior to the
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Distribution Date, the Company and the Rights Agent shall, if the
Company so directs, supplement or amend any provision of this Agreement
without the approval of any holders of certificates representing shares
of Common Stock. From and after the Distribution Date, the Company and
the Rights Agent shall, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or
lengthen any time period hereunder (including the redemption period
prior to the Rights becoming non-redeemable) or (iv) to change or
supplement the provisions hereunder in any manner which the Company may
deem necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person);
provided, from and after the Distribution Date, this Agreement may not
be supplemented or amended to lengthen, pursuant to clause (iii) of
this sentence, (A) a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or (B) any
other time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits
to, the holders of Rights (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person). 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
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terms of this Section 27, the Rights Agent shall execute such
supplement or amendment. Prior to the Distribution Date, the interests
of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock."
Section 6. Agreement as Amended. The term "Agreement" as used in
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the Rights Agreement shall be deemed to refer to the Agreement as amended
hereby. The effects of the amendments contained herein shall be as if the
Rights Agreement was so amended and restated as of the initial date of the
Rights Agreement (January 8, 1996). This Amendment shall be effective as of the
date hereof and, except as set forth herein, the Rights Agreement shall remain
in full force and effect and be otherwise unaffected hereby.
Section 7. Counterparts. This Amendment may be executed in any
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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.
Section 8. Governing Law. This Amendment shall be deemed to be a
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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 to be made and to be performed entirely within such
State.
Section 9. Severability. If any term or provision of this Amendment
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is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms and provisions of this
Amendment, and of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
Attest: HELMERICH & XXXXX, INC.
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxx X. Xxxx Name: Xxxxxx X. Xxxxxx
Title: Ass't Corporate Secretary Title: Vice President, Secretary
and General Counsel
Attest: UMB BANK, N.A., as Rights Agent
By: /s/ Xxxx X. Xxxxxxx By: /s/ K. Xxxxx Xxxxxxxx
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Name: Xxxx X. Xxxxxxx Name: K. Xxxxx Xxxxxxxx
Title: Ass't Secretary Title: Vice President
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