Exhibit 4.2
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT No. 1, dated as of November 18, 2001, to the Rights Agreement
(the "Rights Agreement"), dated as of August 1, 1999, between Xxxxxxxx Petroleum
Company, a Delaware corporation (the "Company") and Mellon Investor Services LLC
(as successor to ChaseMellon Shareholder Services, L.L.C.), as Rights Agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement; and
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 of Section 27 thereof; and
WHEREAS, the Company intends to enter into an Agreement and Plan of Merger
(as it may be amended or supplemented from time to time, the "Merger
Agreement"), dated as of November 18, 2001, by and among the Company,
CorvettePorsche Corp., a Delaware corporation ("New Parent"), Porsche Merger
Corp., a Delaware corporation and direct wholly owned subsidiary of New Parent
("Merger Sub One"), Corvette Merger Corp., a Delaware corporation and direct
wholly owned subsidiary of New Parent ("Merger Sub Two"), and Conoco Inc., a
Delaware corporation ("Conoco") (all capitalized terms used in this Amendment
and not otherwise defined herein shall have the meaning ascribed thereto in the
Merger Agreement); and
WHEREAS, the Board of Directors has (i) determined that the Merger
Agreement and the transactions contemplated thereby are advisable, fair to and
in the best interests of the Company and its stockholders, (ii) approved the
Agreement and (iii) recommended that this Agreement be adopted by the holders of
Xxxxxxxx Common Stock; and
WHEREAS, the Board of Directors has found that it is in the best interests
of the Company and its stockholders, and has deemed it necessary and desirable,
to amend the Rights Agreement to exempt the Merger Agreement and the
transactions contemplated thereby from the application of the Rights Agreement.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as follows:
1. Section 1(a) of the Rights Agreement is hereby modified, amended and
restated in its entirety 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 Common Shares of the Company then
outstanding, but shall not include the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any Subsidiary of the
Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the Company
which, by reducing the number of Common Shares of the Company outstanding,
increases the proportionate number of Common Shares of the Company
beneficially owned by such Person to 15% or more of the Common Shares of
the Company then outstanding; provided, however, that, if a Person shall
become the Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the Beneficial
Owner of any additional Common Shares of the Company, then such Person
shall be deemed to be an "Acquiring Person." Notwithstanding the
foregoing, (i) if the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this paragraph (a), has
become such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such Person would
no longer be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a), then such Person shall not be deemed to
be an "Acquiring Person" for any purposes of this Agreement and (ii)
neither Conoco Inc., a Delaware corporation ("Conoco"), CorvettePorsche
Corp., a Delaware corporation ("New Parent"), Porsche Merger Corp., a
Delaware corporation and direct wholly owned subsidiary of New Parent
("Merger Sub One") or Corvette Merger Corp., a Delaware corporation and
direct wholly owned subsidiary of New Parent ("Merger Sub Two"), shall be
deemed to be an Acquiring Person by virtue of: (A) the execution and
delivery of the Agreement and Plan of Merger (as it may be amended or
supplemented from time to time, the "Merger Agreement") entered into as of
November 18, 2001, by and among the Company, New Parent, Merger Sub One,
Merger Sub Two and Conoco, (B) the conversion of Common Shares into the
right to receive the Xxxxxxxx Merger Consideration (as defined in the
Merger Agreement) in accordance with Section 3.1 of the Merger Agreement,
or (C) the consummation of the Xxxxxxxx Merger or the Conoco Merger (as
defined in the Merger Agreement) (each of the events set forth in
foregoing clauses (A) to (C), an "Exempt Event").
2. Section 1(u) of the Rights Agreement is hereby modified and amended by
adding the following sentence at the end thereof:
"No Exempt Event shall cause a Shares Acquisition Date."
3. Section 3(a) of the Rights Agreement is hereby modified and amended by
adding the following sentence at the end thereof:
"Notwithstanding the foregoing, no Exempt Event shall cause a Distribution
Date."
4. Section 7(a) of the Rights Agreement is hereby modified, amended and
restated in its entirety as follows:
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The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein), in
whole or in part, at any time after the Distribution Date, upon
surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly and properly executed, to
the Rights Agent at the office of the Rights Agent, together with
payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to
the earliest of (i) the time immediately prior to the consummation
of the Xxxxxxxx Merger and the Conoco Merger, (ii) the Close of
Business on July 31, 2009 (the "Final Expiration Date"), (iii) the
time at which the Rights are redeemed as provided in Section 23
hereof (the "Redemption Date"), or (iv) the time at which such
Rights are exchanged as provided in Section 24 hereof.
5. Section 29 of the Rights Agreement is hereby modified and amended to
add the following sentence at the end thereof:
"Notwithstanding the foregoing, nothing in this Agreement shall be
construed to give any holder of Rights or any other Person any legal or
equitable rights, remedy or claim under this Agreement in connection with
any transactions contemplated by the Merger Agreement."
6. This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
* * *
[SIGNATURE PAGE FOLLOWS]
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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.
Attest: XXXXXXXX PETROLEUM COMPANY
By /s/ Xxxxxx X. Xxxx By /s/ J. Xxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxx Name: J. Xxxxx Xxxxxxxxx
Title: Senior Counsel Title: Executive Vice President
MELLON INVESTOR SERVICES LLC
Attest: (As Rights Agent)
By /s/ Xxxxx Sandauer By /s/ Xxxx X' Xxxxxxxxxx
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Name: Xxxxx Sandauer Name: Xxxx X' Xxxxxxxxxx
Title: Vice President Title: Vice President
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