Exhibit 4.5
Amendment No. 3
to Rights Agreement
of
McMoRan Oil & Gas Co.
This Amendment No. 3 (the "Amendment") to the Rights
Agreement (the "Rights Agreement") between McMoRan Oil & Gas
Co. (the "Company") and Mellon Securities Trust Company, as
Rights Agent (the "Rights Agent"), dated May 19, 1994 by and
between the Company and the Rights Agent is dated and
effective as of August 26, 1998.
W I T N E S S E T H
WHEREAS, Section 27 of the Rights Agreement grants the
Board of Directors of the Company the exclusive power and
authority to amend the Rights Agreement;
WHEREAS, the Company's Board of Directors desires to
amend the Rights Agreement to permit certain existing
stockholders to purchase additional shares of Common Stock
of the Company without triggering the rights under the
Rights Agreement.
NOW, THEREFORE, in consideration of the covenants and
agreement contained herein, the parties agree as follows:
1. The definition of "Acquiring Person" in Section 1
of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"Acquiring Person" means any Person
who, together with all Affiliates and
Associates 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; provided, however, that for the
purpose of determining shares of Common
Stock beneficially owned by Xxxxxxxxxxx
Group, Inc., all shares of Common Stock
beneficially owned by Xxxxxxxxxxx Group,
Inc. on the Distribution Date shall be
excluded; provided further, however,
that none of Freeport-McMoRan Sulphur
Inc., a Delaware corporation, McMoRan
Exploration Co., a Delaware corporation,
MOXY LLC, a Delaware limited liability
company, and Brimstone LLC, a Delaware
limited liability company, and their
respective Subsidiaries, Affiliates, and
Associates (hereinafter collectively the
"Sulphur Parties") shall be deemed to be
an Acquiring Person; and provided
further, however, that none of Alpine
Capital, L.P., Xxxxxx X. Xxxxx III,
Algenpar, Inc., X. Xxxxxx Xxxxxxxx,
Keystone, Inc., Xxxxxx X. Xxxx and their
respective Subsidiaries, Affiliates and
Associates (hereinafter collectively the
"Alpine Group") shall be deemed to be an
Acquiring Person unless the Alpine Group
shall be the Beneficial Owner of 25% or
more of the shares of Common Stock
outstanding.
Notwithstanding the foregoing, no Person
shall become an Acquiring Person if (i)
such Person has become the Beneficial
Owner of 15% (25% with respect to the
Alpine Group) or more of the shares of
Common Stock, (ii) the acquisition by
such Person of the shares that equal or
exceed 15% (25% with respect to the
Alpine Group) of the shares of Common
Stock was made without apparent
knowledge of the potential implications
of such acquisition under this Agreement
and (iii) either (A) within 10 days
after the Company has notified such
Person that the Company has become aware
of such potential implications, such
Person ceases to be the Beneficial Owner
of 15% (25% with respect to the Alpine
Group) or more of the shares of Common
Stock or (B) prior to receiving such
notice such Person ceases to be the
Beneficial Owner of 15% (25% with
respect to the Alpine Group) or more of
the shares of Common Stock.
2. The definition of the term "Flip-In" defined in
the Summary of Terms is hereby amended to read in its
entirety as follows:
If any person becomes an Acquiring
Person, then each Right (other than
Rights beneficially owned by the
Acquiring Person and certain affiliated
persons) will entitle the holder to
purchase, for the Purchase Price, a
number of shares of the Company's Common
Stock having a market value of twice the
Purchase Price.
"Acquiring Person" means any Person who,
together with all Affiliates and
Associates 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; provided, however, that for the
purpose of determining shares of Common
Stock beneficially owned by Xxxxxxxxxxx
Group, Inc., all shares of Common Stock
beneficially owned by Xxxxxxxxxxx Group,
Inc. on the Distribution Date shall be
excluded; provided further, however,
that none of Freeport-McMoRan Sulphur
Inc., a Delaware corporation, McMoRan
Exploration Co., a Delaware corporation,
MOXY LLC, a Delaware limited liability
company, and Brimstone LLC, a Delaware
limited liability company, and their
respective Subsidiaries Affiliates and
Associates (hereinafter collectively the
"Sulphur Parties") shall be deemed to be
an Acquiring Person; and provided
further, however, that none of Alpine
Capital, L.P., Xxxxxx X. Xxxxx III,
Algenpar, Inc., X. Xxxxxx Xxxxxxxx,
Keystone, Inc., Xxxxxx X. Xxxx and their
respective Subsidiaries, Affiliates and
Associates (hereinafter collectively the
"Alpine Group") shall be deemed to be an
Acquiring Person unless the Alpine Group
shall be the Beneficial Owner of 25% or
more of the shares of Common Stock
outstanding.
Notwithstanding the foregoing, no Person
shall become an Acquiring Person if (i)
such Person has become the Beneficial
Owner of 15% (25% with respect to the
Alpine Group) or more of the shares of
Common Stock, (ii) the acquisition by
such Person of the shares that equal or
exceed 15% (25% with respect to the
Alpine Group) of the shares of Common
Stock was made without apparent
knowledge of the potential implications
of such acquisition under this Agreement
and (iii) either (A) within 10 days
after the Company has notified such
Person that the Company has become aware
of such potential implications, such
Person ceases to be the Beneficial Owner
of 15% (25% with respect to the Alpine
Group) or more of the shares of Common
Stock or (B) prior to receiving such
notice such Person ceases to be the
Beneficial Owner of 15% (25% with
respect to the Alpine Group) or more of
the shares of Common Stock.
3. All capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed to
them in the Rights Agreement.
4. Except as specifically amended by this Amendment,
the Rights Agreement shall remain in full force and effect.
5. Any reference to "this Agreement" or "the Rights
Agreement" shall be deemed to be a reference to the Rights
Agreement as amended hereby.
6. This Amendment, all rights hereunder and
provisions hereof, shall be governed by, and construed in
accordance with, the laws of the State of Delaware without
giving effect to principles of conflict of laws.
7. This Amendment may be executed by the parties in
one or more counterparts, all of which may be deemed an
original, but all of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly
executed this Amendment effective as of the day and year
first above written.
McMoRan OIL & GAS CO.
Attest:
By:/s/ Xxxxxxx X. Xxxxxxxxxx Xx. By:/s/ Xxxxxxx X. Xxxxxxxx
----------------------------- -------------------------
Xxxxxxx X. Xxxxxxxxxx, Xx. Xxxxxxx X. Xxxxxxxx
Secretary Co-Chairman of the Board and
Chief Executive Officer
MELLON SECURITIES TRUST COMPANY
Attest:
By:/s/ Xxxxx X. XxXxxxxxx By:/s/ Xxxxxx X. Xxxx
-------------------------- -------------------------
Name:Xxxxx X. XxXxxxxxx Name:Xxxxxx X. Xxxx
Title:Assistant Vice President Title:Assistant Vice President
