Exhibit 4.1
SECOND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT (this
"Amendment"), dated as of September 26, 2002, is between BJ Services Company, a
Delaware corporation (the "Company"), and The Bank of New York, as rights agent
(the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to an Amended and
Restated Rights Agreement, dated as of September 26, 1996 and a First Amendment
to Amended and Restated Rights Agreement and Appointment of Rights Agent, dated
as of March 31, 1997 (as amended, the "Rights Agreement") and
WHEREAS, the Company desires to amend the Rights Agreement pursuant to
Section 27 of the Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment of Section 7(a).
Section 7(a) of the Rights Agreement is amended by deleting clause (i)
thereof and replacing it with the following:
(i) the close of business on September 26, 2012 (the "Final Expiration Date"),
2. Amendment of Section 7(b).
Section 7(b) of the Rights Agreement is amended by deleting the first
sentence thereof and replacing it with the following:
The Purchase Price shall be initially $520 for each one-thousandth of a share of
Preferred Stock purchasable upon the exercise of a Right.
3. Amendment of Section 27.
Section 27 of the Rights Agreement is amended by deleting the last
sentence thereof and replacing it with the following:
Upon the delivery of a certificate from an appropriate officer of the Company
which states that the proposed supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such supplement or
amendment; provided, that any supplement or amendment other than to Sections 18,
19, 20, 21, 27 or 32 that does not amend the Rights Agreement hereof in a manner
adverse to the Rights Agent shall become effective immediately upon execution by
the Company, whether or not also executed by the Rights Agent.
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4. Amendment to Section 30.
Section 30 of the Rights Agreement is amended by deleting the last
sentence thereof and replacing it with the following:
All such actions, calculations, interpretations and determinations that are done
or made by the Board of Directors of the Company in good faith shall be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights, as such, and all other parties.
5. Amendment to Form of Right Certificate.
The Form of Right Certificate set forth as Exhibit B to the Amended
and Restated Rights Agreement is amended to conform to the amendments to
Sections 7(a) and 7(b) of the Amended and Restated Rights Agreement contained
herein by changing references to (i) January 17, 2004 therein to September 26,
2012 and (ii) $150 therein to $520. [A copy of the amended Form of Right
Certificate is attached hereto as Exhibit A.]
6. Effectiveness.
This Amendment shall be deemed effective as of the date hereof as if
executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
7. Miscellaneous.
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. This Amendment may be executed in any
number of counterparts, 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. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, illegal or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date set forth above.
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BJ SERVICES COMPANY
By: /s/ X. X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
THE BANK OF NEW YORK, as rights agent
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
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Exhibit A to Second Amendment
Exhibit B
Form of Right Certificate
Certificate No. R-____________ ________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 26, 2012 OR EARLIER IF REDEMPTION
OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01
PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS
AGREEMENT, RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO BECOMES
AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND
CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO
LONGER BE TRANSFERABLE.
Right Certificate
BJ SERVICES COMPANY
This certifies that ___________________ or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the
Amended and Restated Rights Agreement, dated as of September 26, 1996, as
amended and as the same may be amended from time to time (the "Rights
Agreement"), between BJ Services Company, a Delaware corporation (the
"Company"), and The Bank of New York (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 p.m., New York City time, on September 26,
2012 at the office or agency of the Rights Agent designated for such purpose, or
of its successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series A Junior Participating Preferred Stock, par value
$1.00 per share (the "Preferred Stock"), of the Company, at a purchase price of
$520 per one one-thousandth of a share of Preferred Stock (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of one one-thousandths of a share of Preferred
Stock which may be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price as of
September 26, 2002, based on the Preferred Stock as constituted at such date. As
provided in the Rights Agreement, the Purchase Price, the number of one
one-thousandths of a share of Preferred Stock (or other securities or property)
which may be purchased upon the exercise of the Rights and the number of Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights
Agreement are on file at the principal executive offices of the Company and the
above-mentioned office or agency of the Rights Agent. The Company will mail to
the holder of this Right Certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or agency of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Preferred Stock as the Rights evidenced by the
Right Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may be redeemed by the Company at a redemption price of
$.01 per Right or (ii) may be exchanged in whole or in part for shares of
Preferred Stock or shares of the Company's Common Stock, par value $.10 per
share.
No fractional shares of Preferred Stock or Common Stock will be issued upon
the exercise or exchange of any Right or Rights evidenced hereby (other than
fractions of shares of Preferred Stock which are integral multiples of one
one-thousandth of a share of Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred Stock
or of any other securities of the Company which may at any time be issuable on
the exercise or exchange hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to the stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement) or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
(The remainder of this page is intentionally blank.)
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of the ____ day of _______________, _______.
Attest: BJ Services Company
By: ___________________________ By: ___________________________
Countersigned:
_______________________________,
as Rights Agent
By: ___________________________
Authorized Signature
