Exhibit 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of October 14, 1998, to
the Rights Agreement, dated as of July 9, 1996 (the "Rights Agreement"), by
and between Xxxx-XxXxx Corporation, a Delaware corporation (the "Company"),
and The Liberty National Bank & Trust Co. of Oklahoma City, as Rights Agent
(the "Rights Agent").
R E C I T A L S
WHEREAS, the Company and the Rights Agent have heretofore executed
and entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company may from time to time supplement or amend the Rights Agreement in
accordance with the provisions thereof;
WHEREAS, the Company intends to enter into (i) an Agreement and
Plan of Merger, dated as of October 14, 1998 (as it may be further amended,
supplemented or otherwise modified from time to time, the "Merger Agreement")
between Oryx Energy Company ("Oryx") and the Company, pursuant to which Oryx
will be merged with and into the Company on the terms and conditions stated
therein (the "Merger"), and (ii) a Stock Option Agreement, dated as of
October 14, 1998 (as it may be further amended, supplemented or otherwise
modified from time to time, the "Option Agreement") pursuant to which the
Company will grant to Oryx an option to purchase shares of Common Stock of
the Company on the terms and conditions stated therein;
WHEREAS, the Merger Agreement requires that the Company amend the
Rights Agreement to the extent necessary to provide that the approval,
execution and delivery of the Merger Agreement and the Option Agreement, and
the consummation of the transactions contemplated thereby, will not (i) cause
Oryx or any of its affiliates to become an Acquiring Person or (ii) cause the
occurrence of a Stock Acquisition Date or Distribution Date; and
WHEREAS, the Board of Directors has determined that it is in the
best interest of the Company and its stockholders to amend the Rights
Agreement to exempt the Merger, the Merger Agreement and the Option
Agreement, and all of the transactions contemplated thereby, from the
application of the Rights Agreement.
A G R E E M E N T
NOW THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1(a) of the Rights Agreement is hereby modified and
amended by adding the following proviso at the end of the first sentence
thereof:
"; provided, further, that neither Oryx Energy
Company, a Delaware corporation ("Oryx"), nor any of
its Affiliates or Associates shall be deemed to be
an Acquiring Person by virtue of (i) the approval,
execution or delivery of the Agreement and Plan of
Merger dated as of October 14, 1998, as may be
amended, supplemented or otherwise modified from
time to time, between the Company and Oryx (the
"Merger Agreement"), (ii) the approval, execution or
delivery of the Stock Option Agreement dated as of
October 14, 1998, as may be amended, supplemented or
otherwise modified from time to time, between the
Company and Oryx pursuant to which the Company has
granted to Oryx an option to purchase shares of
Common Stock (the "Option Agreement") or (iii) the
consummation of any of the transactions contemplated
by the Merger Agreement or the Option Agreement."
2. The Rights Agreement is hereby further modified and amended by
adding a new Section 35 to the end thereof to read in its entirety as
follows:
"Section 35. Merger Agreement and Option Agreement
with Oryx. Notwithstanding any other provision of
this Rights Agreement, as amended by this Amendment,
neither (i) the approval, execution or delivery of
the Merger Agreement nor the consummation of any of
the transactions contemplated thereby, nor (ii) the
approval, execution or delivery of the Option
Agreement nor the consummation of any of the
transactions contemplated thereby, is or shall be
deemed to be an event described in Section 11(a)(ii)
or Section 13 hereof, nor will such performance or
consummation result in the occurrence of a Stock
Acquisition Date, a Distribution Date or any other
separation of the Rights from the underlying Common
Stock, nor entitle or permit the holders of the
Rights to exercise the Rights or otherwise affect
the rights of the holders of the Rights or otherwise
affect the rights of the holders of the Rights,
including giving the holders of the Rights the right
to acquire securities of any party to the Merger
Agreement or the Option Agreement."
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3. This Amendment shall become effective as of the date of, and
immediately prior to the execution of, the Merger Agreement and the Option
Agreement.
4. 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.
5. This Amendment may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute one and the same instrument.
6. Terms not defined herein shall, unless the context otherwise
requires, have the meanings assigned to such terms in the Rights Agreement.
7. In all respects not inconsistent with the terms and provisions
of this Amendment, the Rights Agreement is hereby ratified, adopted, approved
and confirmed. In executing and delivering this Amendment, the Rights Agent
shall be entitled to all the privileges and immunities afforded to the Rights
Agreement under the terms and conditions of the Rights Agreement.
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
XXXX-XxXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
THE LIBERTY NATIONAL
BANK & TRUST COMPANY
OF OKLAHOMA CITY
By: /s/ M.E. Xxxxx
Name: M.E. Xxxxx
Title: Vice President
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