EXHIBIT 4.4
AMENDMENT TO RIGHTS AGREEMENT
Amendment, dated as of August 22, 2002, to the Rights Agreement, dated as
of December 8, 1995 (the "Rights Agreement"), between Lyondell Chemical Company
(formerly Lyondell Petrochemical Company), a Delaware corporation (the
"Company"), and The Bank of New York, a New York banking corporation, as Rights
Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the Rights Agreement
specifying the terms of the Rights (as defined therein);
WHEREAS, the Company desires to amend the Rights Agreement in accordance
with Section 27 of the Rights Agreement to, among other things, provide for the
issuance of one Right (as such number may be adjusted pursuant to the provisions
of Section 11(p) of the Rights Agreement, as amended hereby) for each share of
Series B Common Stock (as hereinafter defined) issued prior to the earlier of
the Distribution Date and the Expiration Date, and, in certain circumstances
provided for in Section 22 hereof, after the Distribution Date, so that the
holders of Series B Common Stock are in the same position with respect to the
issuance of Rights as they would have been had they been issued Common Stock in
lieu of Series B Common Stock;
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein and in the Rights Agreement, the parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meaning assigned to such terms in the Rights Agreement.
Section 2. Amendments to Rights Agreement. The Rights Agreement is hereby
amended as set forth in this Section 2.
(a) The definition of "Acquiring Person" in Section 1 of the Rights
Agreement is amended in its entirety to read as follows:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the shares of Common Equity then outstanding,
but shall not include any Exempt Person; provided, however, that a
Person shall not be or become an Acquiring Person if such Person,
together with its Affiliates and Associates, shall become the
Beneficial Owner of 15% or more of the shares of Common Equity then
outstanding solely as a result of a reduction in the number of shares
of Common Equity outstanding due to the repurchase of Common Equity by
the Company, unless and until such time as such Person or any
Affiliate or Associate of such Person shall purchase or otherwise
become the Beneficial Owner of additional shares of Common Equity,
constituting 1% or more of the then outstanding
shares of Common Equity, or any other Person (or Persons) who is (or
collectively are) the Beneficial Owner(s) of shares of Common Equity,
constituting 1% or more of the then outstanding shares of Common
Equity, shall become an Affiliate or Associate of such Person, unless,
in either such case, such Person, together with its Affiliates and
Associates, is not then the Beneficial Owner of 15% or more of the
shares of Common Equity then outstanding; and provided, further, that,
notwithstanding anything in this definition of "Acquiring Person" to
the contrary, if, as of the date hereof, any Person, together with any
of his or its Affiliates or Associates, is the Beneficial Owner of a
number of shares of Common Equity that would otherwise cause such
Person to be an Acquiring Person, such Person shall not be or become
an Acquiring Person, unless and until such time as such Person or any
Affiliate or Associate of such Person shall purchase or otherwise
become the Beneficial Owner(s) of additional shares of Common Equity,
constituting 1% or more of the then outstanding shares of Common
Equity, or any other Person (or Persons) who is (or are) the
Beneficial Owner(s) of shares of Common Equity, constituting 1% or
more of the then outstanding shares of Common Equity, shall become an
Affiliate or Associate of such Person, unless, upon becoming the
Beneficial Owner of such additional shares of Common Equity, such
Person, together with its Affiliates and Associates, is not then the
Beneficial Owner of 15% or more of the shares of Common Equity
outstanding; and provided, further, that if the Board of Directors
determines in good faith that any Person that would otherwise be an
"Acquiring Person" is an Inadvertent Acquiring Person, then such
Person shall not be deemed to be or to have become an "Acquiring
Person" for any purposes of this Agreement.
At any time that the Rights are redeemable, the Board of
Directors may, with respect to any specified Person or Persons,
determine to increase to a specified percentage or amount greater than
that set forth herein or decrease to a specified percentage or amount
lower than that set forth herein (but not lower than the percentage or
amount of Common Equity then beneficially owned by such Person), the
level of Beneficial Ownership of Common Equity at which such Person or
Persons becomes an Acquiring Person.
For purposes of this definition of "Acquiring Person," any
calculation of a percentage of Common Equity beneficially owned by any
Person shall include (i) in the numerator, the number of shares of
Common Stock, Series B Common Stock and any other series of Common
Equity held by such Person and (ii) in the denominator, the aggregate
number of all outstanding shares of Common Equity (including Common
Stock, Series B Common Stock and any other series of Common Stock of
the Company outstanding).
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(b) The words "Common Stock" in Section 1 of the Rights Agreement in the
definition of " Associate" and "Permitted Offer" and in Sections 2,
3(a), 3(c), 11(a)(ii)(2), 11(p), 12, 13(a)(y), 15, 16, 18, 21, 22,
23(b), 25(b), 26, 27, 29 and 30 of the Rights Agreement shall be
amended and replaced with the words "Common Equity."
(c) The following definitions shall be added to Section 1 of the Rights
Agreement:
"Series B Common Stock" shall mean the Company's Series B Common
Stock, par value $1.00 per share.
"Common Equity" shall mean the Company's Common Stock and Series B
Common Stock and any other series of Common Stock of the Company
issued and outstanding after the Record Date and prior to the earlier
of the Distribution Date or the Expiration Date.
"Inadvertent Acquiring Person" shall mean a Person that would
otherwise be an "Acquiring Person" because of such Person's beneficial
ownership of Common Equity, if either:
(i) (a) such Person has reported or is required to report ownership
of Common Equity on Schedule 13G under the Exchange Act (or any
comparable or successor report) or on Schedule 13D under the
Exchange Act (or any comparable or successor report), which
Schedule 13D, or any amendment thereto, does not state any
intention to or reserve the right to control or influence the
management or policies of the Company or engage in any of the
actions specified in Item 4 of Schedule 13D (other than the
disposition of the Common Equity), (b) such Person is not the
Beneficial Owner of 20% or more of the shares of Common Equity
then outstanding, and (c) after becoming aware that such Person
has become the Beneficial Owner of 15% or more of the shares of
Common Equity then outstanding, such Person thereafter, while the
Beneficial Owner of 15% or more of the shares of Common Equity
then outstanding does not purchase or otherwise become the
Beneficial Owner of additional Common Equity or become an
Affiliate or Associate of any other Person (or Persons) who is
(or collectively are) the Beneficial Owner of Common Equity; or
(ii) the Board of Directors, with the concurrence of a majority of the
members of the Board of Directors who are not, and are not
representatives, nominees, Affiliates or Associates of, such
Person or an Acquiring Person, determines in good faith that such
Person that would otherwise be an "Acquiring Person" has become
such inadvertently (including, without limitation, because (a)
such Person was unaware that it beneficially owned Common Equity
that would otherwise cause such Person to be an "Acquiring
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Person" or (b) such Person was aware of the extent of its
Beneficial Ownership of Common Equity but had no actual knowledge
of the consequences of such Beneficial Ownership under this
Agreement) and without any intention of changing or influencing
control of the Company, and such Person as promptly as
practicable divested or divests itself of Beneficial Ownership of
a sufficient number of Common Equity so that such Person would no
longer be an "Acquiring Person."
Section 3. Miscellaneous.
(a) The term "Agreement" as used in the Rights Agreement shall be deemed
to refer to the Rights Agreement as amended hereby.
(b) The foregoing amendment shall be effective as of the date first above
written, and, except as set forth herein, the Rights Agreement shall
remain in full force and effect and shall be otherwise unaffected
hereby.
(c) This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all for which together
shall constitute one and the same instrument.
(d) This Amendment shall be deemed to be a 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 performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
LYONDELL CHEMICAL COMPANY
By: /s/ XXXXXX X. X'XXXXX
---------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: Vice President and Deputy
General Counsel
THE BANK OF NEW YORK
By: /s/ XXXXXX XXXXX
---------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
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