AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT TO THE RIGHTS AGREEMENT, effective as of June 28, 1999
(this "Amendment"), by and between Nalco Chemical Company, a Delaware
corporation (the "Company"), and First Chicago Trust Company (the "Rights
Agent"), at the Company's direction. Capitalized terms used herein and not
otherwise defined have the meanings ascribed to such terms in the Rights
Agreement (as defined below).
WHEREAS, the Company and the Rights Agent entered into a Rights
Agreement, dated as of June 20, 1996 (the "Rights Agreement"), setting forth the
terms of the Rights;
WHEREAS, the Company and the Rights Agent may, from time to time,
supplement or amend the Rights Agreement pursuant to the provisions of Section
27 of the Rights Agreement;
WHEREAS, the Board of Directors of the Company (the "Board of
Directors"), on June 27, 1999, resolved that it is advisable and in the best
interests of its stockholders for Parent (as defined below) to acquire all of
the outstanding shares of capital stock of the Company; and
WHEREAS, the Board of Directors further resolved to approve this
Amendment which provides, among other things, that Parent, Purchaser (as defined
below) and their Affiliates are exempt from the definition of Acquiring Person,
that the Merger Agreement (as defined below) and the transactions contemplated
thereby shall not constitute a Distribution Date, an event described in Section
11(a)(ii) of the Rights Agreement, an event described in Section 13(a) of the
Rights Agreement, a Shares Acquisition Date or a Triggering Event and that no
Rights shall be exercisable pursuant to the Rights Agreement;
NOW THEREFORE, in consideration of the premises and mutual agreement
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Rights Agent
hereby agree as follows:
1. Amendments to Rights Agreement. The Rights Agreement is hereby
amended as follows:
(a) The definition of "Acquiring Person" in Section 1 is amended by
inserting the following sentence at the end of such definition:
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"Notwithstanding anything in this Agreement to the contrary, none of
Suez Lyonnaise des Eaux, a societe anonyme organized under the laws of
the Republic of France ("Parent"), H2O Acquisition Co., a Delaware
corporation and a wholly owned subsidiary of Parent ("Purchaser"), or
their Affiliates, either individually or as a group, shall become an
Acquiring Person by reason of the approval, execution or delivery of
the Agreement and Plan of Merger, dated as of June 27, 1999, by and
among Parent, Purchaser and the Company (the "Merger Agreement"), the
consummation of the transactions contemplated thereby or any
announcement of the same."
(b) A new Section 35 is added to read in its entirety as follows:
"Section 35. Merger with Purchaser.
35. Notwithstanding anything in this Agreement to the contrary,
none of Parent, Purchaser or their Affiliates, either individually or
as a group, shall be considered an Acquiring Person, and no
Distribution Date, no event described in Section 11(a)(ii), no event
described in Section 13(a), no Shares Acquisition Date and no
Triggering Event shall occur and no Rights shall be exercisable
pursuant to Section 7 or any other provision of this Agreement, by
reason of the approval, execution or delivery of the Merger Agreement,
the consummation of the transactions contemplated thereby or any
announcement of the same."
2. This Amendment to the Rights Agreement may be executed in two or
more counterparts and each of such counterparts shall for all purposes be deemed
to be an original and all such counterparts shall together constitute but one
and the same instrument.
3. In all respects not inconsistent with the terms and provisions of
this Amendment to the Rights Agreement, the Rights Agreement is hereby ratified
and confirmed. In executing and delivering this Amendment to the Rights
Agreement, the Rights Agent shall be entitled to all of the privileges and
immunities afforded to the Rights Agent under the terms and conditions of the
Rights Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
the Rights Agreement to be duly executed and attested, as of the date first
written above.
ATTEST: NALCO CHEMICAL COMPANY
/s/ X. X. Xxxxxx By: /s/ X. X. Xxxxxx
------------------------------ -------------------------------------
Name: X. X. Xxxxxx Name: X. X. Xxxxxx
Title: Corporate Secretary Title: Chairman & CEO
ATTEST: FIRST CHICAGO TRUST COMPANY
as Rights Agent
/s/ Xxxxxx X. Xxxxxx By: /s/ X. Xxxxxxxx
------------------------------ -------------------------------------
Name: Xxxxxx X. Xxxxxx Name: X. Xxxxxxxx
Title: Administrator Title: Assistant Vice President
