Exhibit 3
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Amendment No. 1 dated as of April 6, 1998 ("Amendment No. 1") to the
Rights Agreement dated as of December 6, 1989 (the "Original 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, on December 6, 1989 the Board of Directors of the Company
authorized and declared a dividend of one preferred stock purchase right (a
"Right") for each share of common stock of the Company outstanding at the close
of business on December 20, 1989 (the "Record Date") and authorized the
issuance, upon the terms and subject to the conditions set forth in the Original
Agreement, of one Right in respect of each share of common stock of the Company
issued after the Record Date, each Right representing the right to purchase,
upon the terms and subject to the conditions set forth in the Original
Agreement, one one-hundredth of a share of Series A Participating Cumulative
Preferred Stock of the Company; and
WHEREAS, the Board of Directors now desires to amend the Original
Agreement to extend its term and make certain other changes;
NOW, THEREFORE, the parties hereto agree as follows:
1. All references to the following terms in the Original Agreement
and the Exhibits thereto (other than Exhibit C) are amended as set forth below:
(a) references to "one-hundredth", "one-hundredths" and
"one-hundredth[s]" shall be replaced with "one-thousandth",
"one-thousandths" and "one-thousandth[s]", respectively;
(b) references to "one-millionth" shall be replaced with
"ten-millionth"; and
(c) references to "100" shall be replaced with "1000"; provided that
no reference to "Series A Participating Cumulative Preferred Stock, par
value $100.00 per share" shall be so amended.
2. Each of the following definitions in Section 1 of the Original
Agreement is amended in its entirety to read as follows:
"Acquiring Person" means any Person (other than an Exempt
Holder) 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 the Company, any of
its Subsidiaries, any employee benefit plan of the Company or
any of its Subsidiaries or any Person organized, appointed or
established by the Company or any of its Subsidiaries for or
pursuant to the terms of any such plan. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" solely
as a result of an acquisition of shares of Common Stock by the
Company which, by reducing the number of shares of Common
Stock outstanding, increases the proportionate number of
shares of Common Stock beneficially owned by such Person
(together with all Affiliates and Associates of such Person)
to 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 "beneficially own", any securities:
(a) which such Person or 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 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 (whether or not in
writing) or otherwise (other than pursuant to the Rights);
provided that a Person shall not be deemed the "Beneficial
Owner" of or to "beneficially own" securities tendered
pursuant to a tender or exchange offer made by or on behalf of
such Person or any of its Affiliates or Associates
until such tendered securities are accepted for payment or
exchange; 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
(c) 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, with which such Person or any of
its Affiliates or Associates (other than an Exempt Holder) 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 subparagraph (b)(ii) immediately above)
or disposing of any such securities.
"Distribution Date" means the earlier of (a) the close of business on
the tenth day (or such later day as may be designated by action of a majority of
the Continuing Directors) after the Stock Acquisition Date and (b) the close of
business on the tenth Business Day (or such later day as may be designated by
action of a majority of the Continuing Directors) after the date of the
commencement of a tender or exchange offer by any Person if, upon consummation
thereof, such Person would be an Acquiring Person.
"Exempt Holder" means Xxxxxxx X. Xxxxxx, Xx., his spouse, his
descendants (and their spouses) and his and their Affiliates and Associates.
"Final Expiration Date" means the close of business on April 6, 2008.
"Purchase Price" means the price (subject to adjustment as provided
herein) at which a holder of a Right may purchase one one-thousandth of a share
of Preferred Stock (subject to adjustment as provided herein) upon exercise of a
Right, which price shall initially be $200.00.
3. Section 6 (a) of the Original Agreement is hereby amended in its
entirety to read as follows:
(a) At any time after the Distribution Date and prior to the
Expiration Date, any Right Certificate or Certificates may, upon the
terms and subject to the conditions set forth below in this Section
6(a), be transferred or exchanged for another Right Certificate or
Certificates evidencing a like number of Rights as the Right
Certificate or Certificates surrendered. Any registered holder desiring
to transfer or exchange any Right Certificate or Certificates shall
surrender such Right Certificate or Certificates (with, in the case of
a transfer, the form of assignment and 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. Neither the
Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Right
Certificate or Certificates until the registered holder of the Rights
has complied with the requirements of Section 7(e). Upon satisfaction
of the foregoing requirements, the Rights Agent shall, subject to
Sections 4(b), 7(d), 11(a)(iii), 14 and 24, countersign and deliver to
the Person entitled thereto a Right Certificate or Certificates as so
requested. The Company may require payment by the registered holder of
a Right of a sum sufficient to cover any transfer tax or other
governmental charge that may be imposed in connection with any transfer
or exchange of any Right Certificate or Certificates.
4. Section 7 (a) of the Original Agreement is hereby amended in its
entirety to read as follows:
(a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein,
including Sections 7(d) and (e), 9(c), 11(a)(iii), 23 and 24) in whole
or in part at any time after the Distribution Date and prior to the
Expiration Date upon surrender of the Right 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
(in lawful money of the United States of America by certified check or
bank draft payable to the order of the Company) of the aggregate
Purchase Price with respect to the Rights then to be exercised and an
amount equal to any applicable transfer tax or other governmental
charge.
5. Section 7 (d) of the Original Agreement is hereby amended in its
entirety to read as follows:
(d) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee
after the Acquiring Person becomes such or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming
such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person (or any
such Associate or Affiliate) to holders of equity interests in such
Acquiring Person (or in any such Associate or Affiliate) or to any
Person with whom the Acquiring Person (or any such Associate or
Affiliate) has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Continung
Directors have determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the avoidance of
this Section 7(d) shall become null and void without any further
action, and no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all reasonable efforts to
insure that the provisions of this Section 7(d) and Section 4(b) are
complied with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its Affiliates
and Associates or any transferee of any of them hereunder.
6. Sections 11(a) (ii) and (iii) of the Original Agreement are hereby
amended in their entirety to read as follows:
(ii) If any Person, alone or together with its Affiliates and
Associates, shall, at any time after the date of this Agreement, become
an Acquiring Person, then proper provision shall promptly be made so
that each holder of a Right shall (except as otherwise provided herein,
including Section 7(d)) thereafter be entitled to receive, upon
exercise thereof on or after the Distribution Date at the Purchase
Price in effect immediately prior to the first occurrence of a Section
11(a)(ii) Event, in lieu of Preferred Stock, such number of duly
authorized, validly issued, fully paid and nonassessable shares of
Common Stock of the Company (such number of shares being referred to
herein as the "Adjustment Shares") as shall be equal to the result
obtained by dividing
(x) the product obtained by multiplying the Purchase
Price in effect immediately prior to the first occurrence of a
Section 11(a)(ii) Event by the number of one one-thousandths
of a share of Preferred Stock for which a Right was
exercisable immediately prior to such first occurrence (such
product being thereafter referred to as the "Purchase Price"
for each Right and for all purposes of this Agreement) by
(y) 50% of the current market price (determined pursuant
to Section 11(d)(i)) per share of Common Stock on the date of
such first occurrence.
(iii) If the number of shares of Common Stock which are authorized
by the Company's certificate of incorporation but not outstanding or
reserved for issuance other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in accordance
with Section 11(a)(ii), the Company shall, with respect to each Right,
make adequate provision to substitute for the Adjustment Shares, upon
payment of the Purchase Price then in effect, (A) (to the extent
available) Common Stock and then, (B) (to the extent available) other
equity securities of the Company which a majority of the Continuing
Directors has determined to be essentially equivalent to shares of
Common Stock in respect to dividend, liquidation and voting rights
(such securities being referred to herein as "common stock
equivalents") and then, if necessary, (C) other equity or debt
securities of the Company, cash or other assets, a reduction in the
Purchase Price or any combination of the foregoing, having an aggregate
value (as determined by the Continuing Directors based upon the advice
of a nationally recognized investment banking firm selected by the
Continuing Directors) equal to the value of the Adjustment Shares;
provided that (x) the Company may, and (y) if the Company shall not
have made adequate provision as required above to deliver value within
30 days following the later of the first occurrence of a Section
11(a)(ii) Event and the first date that the right to redeem the Rights
pursuant to Section 23 shall expire, then the Company shall be
obligated to, deliver, upon the surrender for exercise of a Right and
without requiring payment of the Purchase Price, (1) (to the extent
available) Common Stock and then (2) (to the extent available) common
stock equivalents and then, if necessary, (3) other debt or equity
securities to the Company, cash or other assets or any combination of
the foregoing, having an aggregate value (as determined by the
Continuing Directors based upon the advice of a nationally recognized
investment banking firm selected by the Continuing Directors) equal to
the excess of the value of the Adjustment Shares over the Purchase
Price. If the Continuing Directors shall determine in good faith that
it is likely that sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the Rights, the 30 day
period set forth above (such period, as it may be extended, being
referred to herein as the "Substitution Period") may be extended to the
extent necessary, but not more than 90 days following the first
occurrence of a Section 11(a)(ii) Event, in order that the Company may
seek stockholder approval for the authorization of such additional
shares. To the extent that the Company determines that some action is
to be taken pursuant to the first and/or second sentence of this
Section 11(a)(iii), the Company (X) shall provide, subject to Section
7(d), that such action shall apply uniformly to all outstanding Rights
and (Y) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the appropriate
form and value of any consideration to be delivered as referred to in
such first and/or second sentence. If any such suspension occurs, the
Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as
a public announcement at such time as the suspension is no longer in
effect. For purposes of this Section 11(a)(iii), the value of the
Common Stock shall be the current market price per share of Common
Stock (as determined pursuant to Section 11(d)) on the later of the
date of the first occurrence of a Section 11(a)(ii) Event and the first
date that the right to redeem the Rights pursuant to Section 23 shall
expire; any "common stock equivalent" shall be deemed to have the same
value as the Common Stock on such date; and the value of other
securities or assets shall be determined pursuant to Section
11(d)(iii).
7. Section 11(d) (i) of the Original Agreement is hereby amended in
its entirety to read as follows:
(d)(i) For the purpose of any computation hereunder other than
computations made pursuant to Section 11(a)(iii) or 14, the "current
market price" per share of Common Stock on any date shall be deemed to
be the average of the daily closing prices per share of such Common
Stock for the 30 consecutive Trading Days immediately prior to such
date; for purposes of computations made pursuant to Section 11(a)(iii),
the "current market price" per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices per share of
such Common Stock for the 10 consecutive Trading Days immediately
following such date; and for purposes of computations made pursuant to
Section 14, the "current market price" per share of Common Stock for
any Trading Day shall be deemed to be the closing price per share of
Common Stock for such Trading Day; provided that if the current market
price per share of the Common Stock is determined during a period
following the announcement by the issuer of such Common Stock of (A) a
dividend or distribution on such Common Stock payable in shares of such
Common Stock or securities exercisable for or convertible into shares
of such Common Stock (other than the Rights), or (B) any subdivision,
combination or reclassification of such Common Stock, and prior to the
expiration of the requisite 30 Trading Day or 10 Trading Day period, as
set forth above, after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "current market
price" shall be properly adjusted to take into account ex-dividend
trading. The closing price for each day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the
New York Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which the shares of Common
Stock are listed or admitted to trading or, if the shares of Common
Stock are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or such other system then in use
or, if on any such date the shares of Common Stock are not quoted by
any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the
Common Stock selected by the Board of Directors of the Company, or, if
at the time of such selection there is an Acquiring Person, by a
majority of the Continuing Directors. If on any such date no market
maker is making a market in the Common Stock, the fair value of such
shares on such date as determined in good faith by the Board of
Directors of the Company (or, if at the time of such determination
there is an Acquiring Person, by a majority of the Continuing
Directors) shall be used. If the Common Stock is not publicly held or
not so listed or traded, the "current market price" per share means the
fair value per share as determined in good faith by the Board of
Directors of the Company, or, if at the time of such determination
there is an Acquiring Person, by a majority of the Continuing
Directors, or if there are no Continuing Directors, by a nationally
recognized investment banking firm selected by the Board of Directors,
which determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.
8. Section 13 (a) (z) (1) of the Original Agreement is hereby amended
in its entirety to read as follows:
(1) each holder of a Right shall thereafter be entitled to receive,
upon exercise thereof at the Purchase Price in effect immediately prior to the
first occurrence of any Triggering Event, such number of duly authorized,
validly issued, fully paid and nonassessable shares of freely tradeable Common
Stock of the Principal Party (as hereinafter defined), not subject to any rights
of call or first refusal, liens, encumbrances or other claims, as shall be equal
to the result obtained by dividing
(A) the product obtained by multiplying the Purchase Price in
effect immediately prior to the first occurrence of any Triggering
Event by the number of one one-thousandths of a share of Preferred
Stock for which a Right was exercisable immediately prior to such first
occurrence (such product being thereafter referred to as the "Purchase
Price" for each Right and for all purposes of this Agreement) by
(B) 50% of the current market price (determined pursuant to
Section 11(d)(i)) per share of the Common Stock of such Principal Party
on the date of consummation of such consolidation, merger, combination,
sale or transfer;
9. Section 14 (a) of the Original Agreement is hereby amended in its
entirety to read as follows:
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in Section
11(p), or to distribute Right Certificates which evidence fractional
Rights. In lieu of any such fractional Rights, the Company shall pay to
the registered holders of the Right Certificates with regard to which
such fractional Rights would otherwise be issuable an amount in cash
equal to the same fraction of the current market price of a whole
Right. For purposes of this Section 14(a), the current market price of
a whole Right shall be the closing price of a Right for the Trading Day
immediately prior to the date on which such fractional Rights would
otherwise have been issuable. The closing price of a Right for any day
shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York Stock
Exchange, on the principal national securities exchange on which the
Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the
last quoted price, or, if not so quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported by
NASDAQ or such other system then in use or, if on any such date the
Rights are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market
maker making a market in the Rights selected by the Board of Directors
of the Company or, if at the time of such selection there is an
Acquiring Person, by a majority of the Continuing Directors. If on any
such date no such market maker is making a market in the Rights, the
current market price of the Rights on such date shall be as determined
in good faith by the Board of Directors of the Company or, if at the
time of such determination there is an Acquiring Person, by a majority
of the Continuing Directors.
10. Section 24(a) of the Original Agreement is hereby amended in its
entirety to read as follows:
(a) In addition to their powers under Section 11(a)(iii), a
majority of the Continuing Directors may, at their option, at any time
after any Person becomes an Acquiring Person, exchange all or part of
the then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to Section 7(d)) for shares of
Common Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other
than the Company, any of its Subsidiaries, any employee benefit plan of
the Company or any of its Subsidiaries or any Person organized,
appointed or established by the Company or any of its Subsidiaries for
or pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner
of 50% or more of the shares of Common Stock then outstanding.
11. Section 24(b) of the Original Agreement is hereby amended in its
entirety to read as follows:
(b) Immediately upon the action of the Continuing Directors
electing to exchange any Rights pursuant to Section 24(a) and without
any further action and without any notice, the right to exercise such
Rights will terminate and thereafter the only right of a holder of such
Rights shall be to receive that number of shares of Common Stock equal
to the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly thereafter give notice of
such exchange to the Rights Agent and the holders of the Rights to be
exchanged in the manner set forth in Section 26; provided that the
failure to give, or any defect in, such notice shall not affect the
validity of such exchange. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method
by which the exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected
pro rata based on the number of Rights (other than Rights which have
become void pursuant to Section 7(d)) held by each holder of Rights.
12. Section 29 of the Original Agreement is hereby amended in its
entirety to read as follows:
Section 29. Determinations and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) under the Exchange Act as in effect on
the date of this Agreement. The Board of Directors of the Company (or, after any
Person has become an Acquiring Person, a majority of the Continuing Directors)
shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board or to the
Company, or as may be necessary or advisable in the administration of this
Agreement, including the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including a determination to redeem or
exchange or not to redeem or exchange the Rights or to amend the Agreement). All
such actions, calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the foregoing) which
are done or made by the Board (or, after any Person has become an Acquiring
Person, a majority of the Continuing Directors) in good faith shall (x) be
final, conclusive and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties, and (y) not subject the Board of Directors of
the holders of the Rights.
13. Section 31 of the Original Agreement is hereby amended in its
entirety to read as follows:
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement 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 Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided that, notwithstanding anything in this Agreement to the contrary, if
any such term, provision, covenant or restriction is held by such court or
authority to be invalid, void or unenforceable and the Board of Directors of the
Company (or, after any Person has become an Acquiring Person, a majority of the
Continuing Directors) determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the close of business on the
tenth day following the date of such determination by the Board of Directors or
Continuing Directors, as the case may be.
14. Exhibit A to the Original Agreement is hereby amended by :
(a) replacing "R. Xxxxxxx Xxxxxx, Vice President, Planning" with
"Xxxxxx X. Xxxxx, Senior Vice President and General Counsel" and "X.
Xxxxxxx Xxxx, Secretary" with "Xxxxxx Xxxxxxx, Secretary";
(b) replacing the second paragraph with the following paragraphs:
That pursuant to the authority conferred upon the Board of Directors by
the Certificate of Incorporation of the Corporation, (i) the Board of Directors
on December 6, 1989 adopted a resolution creating a series of Preferred Stock in
an amount of 350,000 shares and having the designation, voting powers,
preferences and relative, participating, optional and other special rights and
qualifications, limitations and restrictions thereof as set forth in such
resolution and (ii) the Board of Directors on April 1, 1998 adopted resolutions
authorizing and directing that the number of shares of such series of Preferred
Stock be reduced to 60,000 and approving the amendment and restatement of the
Certificate of Designation of such series of Preferred Stock;
That no shares of such series of such series of Preferred Stock have
been issued or are outstanding; and
That the amount, designation, voting powers, preferences and relative,
participating, optional and other special rights and qualifications, limitations
and restrictions of such series of Preferred Stock as established by the
resolutions of the Board of Directors are as follows:
(c) in Section 1 of Exhibit A, replacing "350,000" with "60,000"; and
(d) replacing "December, 1989" with "April, 1998" in the last page.
15. Exhibit B to the Original Agreement is hereby amended by replacing
(w) the words "December 6, 1999" with the words "April 6, 2008", (x) the words
"December 6, 1989 (the "Rights Agreement")" in the first paragraph with the
words "December 6, 1989, as amended on April 6, 1998 (the "Rights Agreement"),",
(y) "$130.00" with "$200.00" and (z) the words "December 6, 1989" in the third
paragraph with the words "April 6, 1998".
16. Exhibit C to the Original Agreement is hereby amended by replacing
the words "Summary of Terms" in the third line with the words "Summary of Terms
as of December 6, 1989".
17. Unless otherwise specifically defined herein, each term used herein
which is defined in the Original Agreement shall have the meaning assigned to
such term in the Original Agreement. Each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and each reference to
"this Agreement" and each similar reference contained in the Original Agreement
shall from and after the date hereof refer to the Original Agreement as amended
hereby.
18. This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
principles of conflict of laws thereof.
19. This Amendment No. 1 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. This Amendment
No. 1 shall become effective as of the date hereof.
20. Except as amended hereby, all of the terms of the Original
Agreement shall remain and continue in full force and effect and are hereby
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXX OIL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
General Counsel
000 Xxxxx Xxxxxx
Xx Xxxxxx, Xxxxxxxx 00000
XXXXXX TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxxx XxXxxxxx
-------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
