AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of May 10, 1998, to the Rights Agreement,
dated as of August 17, 1994, by and between Western Atlas Inc. (the "COMPANY")
and Chemical Trust Company of California (as Rights Agent) (the "RIGHTS
AGREEMENT").
WHEREAS, ChaseMellon Shareholder Services L.L.C. is the
successor as Rights Agent to Chemical Trust Company of California; and
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 May 10, 1998, among the Company and Xxxxx
Xxxxxx Incorporated and Xxxxx Xxxxxx Delaware I, Inc., as the same may be
amended from time to time (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 determined that the Merger
and the other transactions contemplated by the Merger Agreement are fair to and
in the best interests of the Company and its stockholders; and
WHEREAS, the Board of Directors has found that it is in the
best interest 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 (as such term is
hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner of 15
percent (15%) or more of the Common Shares of the Company then
outstanding, but shall not include (i) the Company, (ii) any
Subsidiary (as such term is hereinafter defined) of the
Company, (iii) any employee benefit plan of the Company or of
any Subsidiary of the Company, or any entity holding Common
Shares for or pursuant to the terms of any such plan, (iv)
Unitrin, Inc., a Delaware corporation ("Unitrin"), and its
subsidiaries as long as such entities in the aggregate
beneficially own less than 12,658,000 Common Shares.
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 shares
outstanding, increases the proportionate number of shares
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, 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 not 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. Notwithstanding
the foregoing, no Person (and no Affiliate or Associate of any
Person) shall be deemed to be the "Beneficial Owner" of or to
"beneficially own" particular securities if such Person is the
Beneficial Owner of or "beneficially owns" such securities
solely as a result of its status as Affiliate or Associate of
Unitrin and if such Person would not otherwise be the
Beneficial Owner of or "beneficially own" such securities.
Notwithstanding the foregoing, neither Xxxxx Xxxxxx
Incorporated, a Delaware corporation ("Parent"), Xxxxx Xxxxxx
Delaware I, Inc., a Delaware corporation ("Sub"), nor any
other Person, shall be deemed to be an Acquiring Person by
virtue of 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") to be entered into as of May 10,
1998, among the Company, Parent and Sub, or the Stock Option
Agreement dated as of May 10, 1998 between the Company, as
grantor, and Parent, as grantee (the "Stock Option
Agreement"), the conversion of Common Shares into the right to
receive Parent Common Stock (as defined in the Merger
Agreement) in accordance with Article 4 of the Merger
Agreement, the issuance of Common Shares upon the exercise of
the Option (as defined in the Stock Option Agreement) granted
to Parent pursuant thereto, nor the consummation of the Merger
(as defined in the Merger Agreement) or any other transaction
contemplated by the Merger Agreement or the Stock Option
Agreement (each of the foregoing, an "Exempt Event").
2. Section 1(1) of the Rights Agreement is hereby modified and amended
by adding the following sentence at the end thereof:
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"Xx Xxxxxx 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:
"No Exempt Event shall cause a Distribution Date."
4. Clauses (i), (ii), and (iii) of Section 7(a) of the Rights Agreement
are hereby modified, amended and restated in their entirety as follows:
"(i) the time immediately prior to the consummation of the
Merger, (ii) the later of the termination of the Merger
Agreement of the close of business on August 31, 2004 (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 or the Stock Option
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]
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.
WESTERN ATLAS INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
CHASEMELLON SHAREHOLDER SERVICES L.L.C.
As Successor to
CHEMICAL TRUST COMPANY OF CALIFORNIA
(as Rights Agent)
By: /s/ R. Xxxx Xxxxx
Name: R. Xxxx Xxxxx
Title: Vice President
