1
EXHIBIT 4.1
FIRST AMENDMENT TO THE RIGHTS AGREEMENT BETWEEN
SANTA FE ENERGY RESOURCES, INC.
AS PREDECESSOR TO
SANTA XX XXXXXX CORPORATION,
AND
FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS RIGHTS AGENT
THIS FIRST AMENDMENT ("First Amendment") to the Rights Agreement, dated
as of March 3, 1997 (the "Rights Agreement"), is by and between Santa Xx Xxxxxx
Corporation, successor to Santa Fe Energy Resources, Inc., a Delaware
corporation (the "Company"), and First Chicago Trust Company of New York, as
Rights Agent (the "Rights Agent"). This First Amendment is dated as of May 5,
1999. Capitalized terms used herein but not defined shall have the meanings
assigned to such terms in the Rights Agreement.
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore executed the
Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement to correct
typographical errors in the definition of "Preferred Shares" included in (i)
Section 1 of the Rights Agreement, (ii) the Summary of Rights included as
Exhibit C to the Rights Agreement and (iii) the Form of Right Certificate
included as Exhibit B to the Rights Agreement; and
WHEREAS, the Company desires to amend the Rights Agreement to revise
the second sentence of Section 11(a)(ii); and
WHEREAS, pursuant to the terms of that certain Agreement and Plan of
Merger, dated as of January 13, 1999, among Xxxxxx Oil Corporation ("SOCO"), a
Delaware corporation and the Company, SOCO has merged with and into the Company,
with the Company as the surviving entity, and the Company has amended its
certificate of incorporation to change its name to Santa Xx Xxxxxx Corporation
and has filed a certificate of increase to increase the number of shares of
Series A Junior Participating Preferred Stock to 3,000,000, and the Company
desires to amend the Rights Agreement to reflect these amendments to its
certificate of incorporation;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth and in accordance with Section 27 of the Rights
Agreement, the parties hereby agree as follows:
2
1. Section 1(u) of the Rights Agreement is hereby amended,
effective as of the date set forth above, by revising such Section to
read in its entirety as follows:
"Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, par value $.01 per share, of
the Company having the rights and preferences set forth in
the Form of Certificate of Designations attached to this
Agreement as Exhibit A.
2. The second sentence of Section 11(a)(ii) of the Rights
Agreement is hereby amended, effective as of the date set forth above,
by revising such section to read as follows:
Notwithstanding anything in this agreement to the contrary,
however, from and after the time (the "invalidation time")
when any Person first becomes an Acquiring Person, any
Rights that are beneficially owned by (x) any Acquiring
Person (or any Affiliate or Associate of any Acquiring
Person), (y) a transferee of any Acquiring Person (or any
such Affiliate or Associate) who becomes a transferee after
the invalidation time or (z) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who became a
transferee prior to or concurrently with the invalidation
time pursuant to either (I) a transfer from the Acquiring
Person to holders of its equity securities or to any person
with whom it has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (II) a
transfer which the Board of Directors has determined is part
of a plan, arrangement or understanding which has the
purpose or effect of avoiding the provisions of this
paragraph, and subsequent transferees of such Persons, shall
be void without any further action and any holder of such
Rights shall thereafter have no rights whatsoever with
respect to such Rights under any provision of this
Agreement.
3. Each usage in the Rights Agreement of "Santa Fe Energy
Resources, Inc." is hereby amended, effective as of the date set forth
above, to be "Santa Xx Xxxxxx Corporation."
4. "2,000,000" in Section 1 of Exhibit A to the Rights
Agreement is amended, effective as of the date set forth above, to read
"3,000,000."
5. The Summary of Rights to Purchase Preferred Shares is
hereby amended, effective as of the date set forth above, by revising
the Summary of Rights to Purchase Preferred Shares included as Exhibit
C to the Rights Agreement to read in its entirety as set forth in the
Amended Summary of Rights to Purchase Preferred Shares included as
Annex I hereto.
3
6. The Form of Right Certificate is hereby amended, effective
as of the date set forth above, by revising the Form of Right
Certificate included as Exhibit B to the Rights Agreement to read in
its entirety as set forth in the Amended Form of Right Certificate
included as Annex II hereto.
7. The Form of Certificate of Designations of Series A Junior
Participating Preferred Stock is hereby amended, effective as of the
date set forth above, by amending the Form of Certificate of
Designations of Series A Junior Participating Preferred Stock included
as Exhibit A to the Rights Agreement as set forth in the Certificate of
Increase of Authorized Number of Shares of Series A Junior
Participating Preferred Stock of Santa Xx Xxxxxx Corporation included
as Annex III hereto.
8. Except to the extent amended by this First Amendment, the
Rights Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and attested, all as of the day and year first
written.
SANTA XX XXXXXX CORPORATION
Attest:
By: /s/ Xxxx X. Older By: /s/ Xxxxx X. Xxxxx
------------------------ -------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President -- Law and
General Counsel
FIRST CHICAGO TRUST COMPANY
OF NEW YORK
Attest:
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxxxxx
------------------------ -------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
4
Annex I
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
On February 19, 1997, the Board of Directors of Santa Fe Energy
Resources, Inc., the predecessor of Santa Xx Xxxxxx Corporation (the "Company")
declared a dividend of one preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $.01 per share, of the Company (the
"Common Stock"). The dividend was paid on March 3, 1997 (the "Record Date") to
the stockholders of record on that date. Each Right entitles the registered
holder to purchase from the Company one one-hundredth of a share of Series A
Junior Participating Preferred Stock, par value $.01 per share, of the Company
(the "Preferred Shares") at a price of $42.00 (subject to adjustment as provided
in the Rights Agreement) (the "Purchase Price"). The description and terms of
the Rights are set forth in a Rights Agreement (the "Rights Agreement") between
the Company and First Chicago Trust Company of New York, as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) 10 business days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of 15% or more of the
outstanding Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors of the Company prior to such time
as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of the outstanding Common Stock
(the earlier of such dates being the "Distribution Date"), the
I-1
5
Rights will be evidenced, with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock certificate with a copy
of this Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Common Stock. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Stock certificates issued
after the Record Date upon transfer or new issuance of Common Stock will contain
a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Stock outstanding as of
the Record Date, even without such notation or a copy of this Summary of Rights
being attached thereto, will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire at 5:00 p.m., Houston, Texas time on July 25, 1999 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each case, as
described below.
The Purchase Price payable, and the number of Preferred Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of,
I-2
6
the Preferred Shares; (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a conversion price,
less than the then-current market price of the Preferred Shares; or (iii) upon
the distribution to holders of the Preferred Shares of evidences of indebtedness
or assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividend payable in Preferred Shares) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date. If the Company shall pay any dividend or distribution to the
holders of its Common Stock consisting of evidences of indebtedness or assets
(excluding quarterly cash dividends) prior to the Distribution Date, then the
Purchase Price is also subject to adjustment.
Preferred Shares purchasable upon exercise of the Rights will be
nonredeemable. Each Preferred Share will have a minimum preferential quarterly
dividend rate of $1.00 per share, but will be entitled to an aggregate dividend
of 100 times the dividend declared on the Common Stock. In the event of
liquidation, the holders of the Preferred Shares will receive a preferential
liquidation payment equal to the greater of $1.00 or 100 times the payment made
per share of Common Stock. Each Preferred Share will have 100 votes, voting
together with the Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which Common Stock are exchanged, each
I-3
7
Preferred Share will be entitled to receive 100 times the amount received per
share of Common Stock. These rights are protected by customary antidilution
provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after the first public announcement that a person or group has
become an Acquiring Person, proper provision will be made so that each holder of
a Right other than Rights beneficially owned by an Acquiring Person (which will
be void) will upon exercise have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right. In the event that any
person or group of affiliated or associated persons becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereafter be void), will
upon exercise have the right to receive upon exercise that number of shares of
Common Stock having a market value of two times the exercise price of the Right.
At any time after the first public announcement that any person or
group has become an Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Stock, the Board of Directors
of the Company may exchange the Rights (other than Rights owned by such person
or group which will have become void), in whole or in part, at an exchange ratio
of one share of Common Stock, or one one-hundredth of a Preferred Share (or of
I-4
8
a share of a class or series of the Company's Preferred Shares having equivalent
rights, preferences and privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and, in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to the close of business on the 10th business day
after the public announcement that an Acquiring Person has become such, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right (the "Redemption Price"). The redemption of
the Rights may be made effective at such time on such basis with such conditions
as the Board of Directors in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption
Price.
For so long as the Rights are then redeemable, the Company may in its
sole and absolute discretion amend the Rights Agreement without the consent of
the holders of the Rights, except that no amendment can be made to reduce the
Redemption price. At such time as the Rights have become non-redeemable, the
terms of the Rights may be amended by the Board of Directors of the Company
without the consent of the holders of the Rights, except that (i) no amendment
can be made to reduce the Redemption Price, (ii) no such amendment may adversely
affect the interest of the holders of the Rights and (iii) the redemption right
cannot be reinstated.
I-5
9
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
February 28, 1997. A copy of the First Amendment to the Rights Agreement has
been filed with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A/A dated May 11, 1999. Copies of the Rights
Agreement and the First Amendment to the Rights Agreement are available free of
charge from the Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement and the First Amendment to the Rights Agreement, which are hereby
incorporated herein by reference.
I-6
10
Annex II
Exhibit B
Form of Right Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER _______, 2007 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $0.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
SANTA XX XXXXXX CORPORATION
This certifies that _____________, or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of March 3, 1997 (the "Rights Agreement"), between Santa Xx
Xxxxxx Corporation, a Delaware corporation (the "Company"), and First Chicago
Trust Company of New York (the "Rights Agent"), to purchase from the Company at
any time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 P.M., Houston, Texas time, on July 25, 1999, at the
principal office of the Rights Agent, or at the office of its successor as
Rights Agent, one one-hundredth of a fully paid non-assessable share
II-1
11
of Series A Junior Participating Preferred Stock, par value $.01 per share, of
the Company (the "Preferred Shares") at a purchase price of $42.00 (subject to
adjustment as provided in the Rights Agreement) per one one-hundredth of a
Preferred Share (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number and
Purchase Price as of July 25, 1999, based on the Preferred Shares as constituted
at such date. As provided in the Rights Agreement, the Purchase Price and the
number of one one-hundredths of a Preferred Share which may be purchased upon
the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised
II-2
12
in part, the holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Right Certificate (i) may be redeemed by the Company at a redemption
price of $0.01 per Right or (ii) may be exchanged in whole or in part for
Preferred Shares or shares of the Company's Common Stock, par value $0.01 per
share.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may, at the election
of the Company, be evidenced by depositary receipts), but, in lieu thereof, a
cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
II-3
13
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of , .
SANTA XX XXXXXX CORPORATION
ATTEST:
By:
------------------------ --------------------------------------
Name: Name:
Title: Title:
Countersigned: FIRST CHICAGO TRUST COMPANY OF NEW YORK
By:
--------------------------------------
Name:
Title:
II-4
14
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________ hereby sells, assigns and
transfers onto ________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _________________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ,
----------------- --------
Signature
-------------------------
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
--------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
Signature
-------------------------
--------------------------------------------------------------------------------
II-5
15
Form of Reverse Side of Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: SANTA XX XXXXXX CORPORATION
The undersigned hereby irrevocably elects to exercise __________ Rights
represented by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of such Rights and requests that certificates for such
Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: ,
------------------ ---------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
(FORM OF REVERSE SIDE OF RIGHT CERTIFICATE -- CONTINUED)
--------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
Signature
--------------------------------------------------------------------------------
II-6
16
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or enlargement
or any change whatsoever.
In the event the certification act forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner of
the Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
II-7
17
Annex III
CERTIFICATE OF INCREASE
OF
AUTHORIZED NUMBER OF SHARES
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
SANTA XX XXXXXX CORPORATION
(Pursuant to Section 151 of the General Corporation
Law of the State of Delaware)
Santa Xx Xxxxxx Corporation, a corporation organized and existing under
the General Corporation Laws of the State of Delaware (the "Corporation").
DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the Corporation was
filed in the office of the Secretary of State of Delaware on January 11, 1990,
and a Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock, was filed in said office of the Secretary of
State on March 3, 1997;
That the Board of Directors of the Corporation at a meeting held on
January 13, 1999, duly adopted a resolution authorizing and directing an
increase in the authorized number of shares of Series A Junior Participating
Preferred Stock of the Corporation, from 2,000,000 shares to 3,000,000 shares,
all in accordance with the provisions of Section 151 of the General Corporation
Law of the State of Delaware.
III-1
18
IN WITNESS WHEREOF, said Santa Xx Xxxxxx Corporation has
caused this Certificate to be signed by Xxxxx X. Xxxxx, its Vice President--Law
and General Counsel, this 5th day of May, 1999.
SANTA XX XXXXXX CORPORATION
By:
-----------------------------------------
Xxxxx X. Xxxxx
Vice President -- Law and General Counsel
III-2
