Exhibit 4.2
AMENDMENT TO
RIGHTS AGREEMENT
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This AMENDMENT TO RIGHTS AGREEMENT (this "AMENDMENT"), dated as of
September 16, 1999, is entered into by and between EVEREST REINSURANCE HOLDINGS,
INC., a Delaware corporation (the "COMPANY"), and FIRST CHICAGO TRUST COMPANY OF
NEW YORK (the "RIGHTS AGENT").
W I T N E S S E T H:
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WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of September 24, 1998 (the "RIGHTS AGREEMENT"); and
WHEREAS, the parties hereto desire to amend the Rights Agreement in
certain respects as provided for herein; and
WHEREAS, Board of Directors of the Company has authorized the execution
and delivery of this Amendment to the Rights Agreement in connection with the
proposed merger between the Company and Everest Re Merger Corporation ("EVEREST
MERGER"), a Delaware corporation and wholly owned subsidiary of Everest
Reinsurance Group, Ltd., a Bermuda company ("EVEREST GROUP"); and
WHEREAS, this Amendment is being executed prior to the execution and
delivery of the Agreement and Plan of Merger among the Company, Everest Group
and Everest Merger.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Terms used in this Amendment which are
defined in the Rights Agreement shall have the meaning assigned to such terms in
the Rights Agreement unless otherwise defined herein.
SECTION 2. AMENDMENT TO RIGHTS AGREEMENT. The definition of
"Beneficial Owner" in Section 1(c) of the Rights Agreement is hereby amended to
add the following paragraph at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
for purposes of this Agreement, neither Everest Reinsurance
Group, Ltd., a Bermuda company ("Everest Group"), nor any of
its Affiliates or Associates shall be deemed a "Beneficial Owner"
of, or to "beneficially own," any shares of any class of
capital stock of the Company as a result of the execution,
delivery or performance of the Agreement and Plan of Merger
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dated as of September 17, 1999 among the Company, Everest Group
and Everest Re Merger Corporation, a Delaware corporation and wholly
owned subsidiary of Everest Group, as amended from time to time, or the
consummation of any of the transactions contemplated thereunder."
SECTION 3. MISCELLANEOUS.
3.1 GOVERNING LAW; SEVERABILITY. THIS AMENDMENT IS TO BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, APPLICABLE
TO CONTRACTS MADE AND TO BE ENTIRELY PERFORMED IN SAID STATE. If any provision
of this Amendment shall be held invalid, illegal or unenforceable, the validity,
legality or enforceability of the other provisions hereof shall not be affected
thereby, and there shall be deemed substituted for the provision at issue a
valid and enforceable provision as similar as possible to the provision at
issue.
3.2 HEADINGS. The headings preceding the text of Sections and
subsections included in this Amendment are for convenience only and shall not be
deemed part of this Amendment or be given any effect in interpreting this
Amendment.
3.3 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, all of which shall together constitute one and the same
instrument.
3.4 REFERENCES TO RIGHTS AGREEMENT. Except as herein amended, the
Rights Agreement shall remain in full force and effect and is hereby ratified in
all respects. On and after the effectiveness of the amendments to the Rights
Agreement accomplished hereby, (i) each reference in the Rights Agreement to
"this Agreement," "hereunder," "hereof," "herein" or words of like import shall
be a reference to the Rights Agreement as amended hereby, (ii) and each
reference to the Rights Agreement in any agreement, document or other instrument
executed and delivered prior hereto shall be a reference to the Rights Agreement
as amended by this Amendment.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
the date set forth above.
EVEREST REINSURANCE HOLDINGS, INC.
By:
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Name: Xxxxx X. Xxxxx
Title: Senior Vice President
FIRST CHICAGO TRUST COMPANY OF NEW
YORK
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Director, Corporate Actions
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