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 Bank One Trust Company, N.A.*, 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.
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* The Liberty National Bank & Trust Co. of Oklahoma City was merged into
Bank One Trust Company, N.A., effective December 5, 1997.
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."
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
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Name: Xxxx X. Xxxxxxx
Title: Chairman and CEO
BANK ONE TRUST COMPANY, N.A.
By: /s/ M. E. Xxxxx
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Name: M. E. Xxxxx
Title: Vice President
