EXHIBIT 4
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment") dated as of March 18, 2004, to
the Rights Agreement, dated as of May 16, 1996 (the "Rights Agreement"),
between Ashland Inc., a Kentucky corporation (the "Company"), and National
City Bank, a Delaware corporation, as successor to Harris Trust and Savings
Bank by appointment, as Rights Agent (the "Rights Agent"). Terms used
herein and not otherwise defined shall have the respective meanings
ascribed to such terms in the Rights Agreement.
WHEREAS the Company, ATB Holdings Inc., a Delaware corporation
("HoldCo"), EXM LLC, a Kentucky limited liability company ("New Ashland
LLC"), New EXM Inc., a Kentucky corporation ("New Ashland Inc."), Marathon
Oil Corporation, a Delaware corporation ("Marathon"), Marathon Oil Company,
an Ohio corporation ("Marathon Company"), Marathon Domestic LLC, a Delaware
limited liability company ("Merger Sub"), and Marathon Ashland Petroleum
LLC, a Delaware limited liability company ("MAP"), have proposed to enter
into a Master Agreement to be dated the date hereof (the "Master
Agreement");
WHEREAS the Company desires to amend the Rights Agreement to render
the Rights inapplicable to the Transactions (as defined in the Master
Agreement) contemplated by the Master Agreement and the other Transaction
Agreements (as defined in the Master Agreement);
WHEREAS the Company desires that, at the Acquisition Merger Effective
Time (as defined in the Master Agreement), (A) New Ashland Inc. will
succeed to all the rights and obligations of the Company under the Rights
Agreement; (B) all references to Common Stock of the Company and Preferred
Shares of the Company will be deemed to be references to Common Stock of
New Ashland Inc. and Preferred Shares of New Ashland Inc.; and (C) the
Rights Agreement will continue in effect;
WHEREAS the Company deems this Amendment to the Rights Agreement to be
desirable and in the best interests of the holders of the Rights and has
duly approved this Amendment; and
WHEREAS Section 26 of the Rights Agreement permits the Company at any
time before the occurrence of a Distribution Date and before any person
becomes an Acquiring Person to amend the Rights Agreement in the manner
provided herein.
NOW THEREFORE, the parties hereby agree as follows:
1. Succession and Continuance. Effective at the Acquisition Merger
Effective Time, New Ashland Inc. will succeed to all the rights and
obligations of the Company under the Rights Agreement and the Rights
Agreement will continue in effect after the Acquisition Merger Effective
Time.
2. Substitution of New Ashland Inc. Effective at the Acquisition
Merger Effective Time, all references to Common Stock of the Company and
Preferred Shares of the Company in the Rights Agreement will be deemed to
be references to Common Stock of New Ashland Inc. and Preferred Shares of
New Ashland Inc.
3. Amendment of Section 1. Section 1 of the Rights Agreement is
supplemented to add the following definitions in the appropriate locations:
"HOLDCO" means ATB Holdings Inc., a Delaware corporation and wholly
owned subsidiary of the Company.
"MASTER AGREEMENT" shall mean the Master Agreement, dated as of March
18, 2004, among the Company, HoldCo, New Ashland LLC, New Ashland Inc.,
Marathon, Marathon Company, Merger Sub, and MAP, as it may be amended from
time to time.
"MERGER SUB" means Marathon Domestic LLC, a Delaware limited liability
company and wholly owned subsidiary of Marathon.
"MARATHON" means Marathon Oil Corporation, a Delaware corporation.
"MARATHON COMPANY" means Marathon Oil Company, an Ohio corporation and
wholly owned subsidiary of Marathon.
"MAP" means Marathon Ashland Petroleum LLC, a Delaware limited
liability company owned by Marathon Company and the Company.
"NEW ASHLAND INC." means New EXM Inc., a Kentucky corporation and
wholly owned subsidiary of HoldCo.
"NEW ASHLAND LLC" means EXM LLC, a Kentucky limited liability company
and wholly owned subsidiary of HoldCo.
4. Amendment of the Definition of "Acquiring Person". The definition
of "ACQUIRING PERSON" in Section 1 of the Rights Agreement is amended by
adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary,
none of Marathon, Marathon Company, Merger Sub, MAP, HoldCo, New Ashland
LLC, New Ashland Inc. or any other Person, individually, or collectively,
shall be deemed to be an Acquiring Person solely by virtue of (i) the
execution and delivery of the Master Agreement or any other Transaction
Agreement (as defined in the Master Agreement) or (ii) the consummation of
the Transactions (as defined in the Master Agreement)."
5. Amendment of Section 3. Section 3(b) of the Rights Agreement is
amended and supplemented by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date or Business Combination shall not be deemed to have
occurred, no Rights shall separate from the Common Shares or otherwise
become exerciseable and no adjustment shall be made pursuant to Sections 11
or 12, in each case solely as a result of (i) the execution and delivery of
the Master Agreement or any other Transaction Agreement (as defined in the
Master Agreement) or (ii) the consummation of the Transactions (as defined
in the Master Agreement)."
Furthermore, Section 3 of the Rights Agreement is amended to add the
following sentence at the end thereof as Section 3(e):
"Nothing in this Rights Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable rights,
remedies or claims under this Rights Agreement by virtue of the execution
and delivery of the Master Agreement or any other Transaction Agreement (as
defined in the Master Agreement), or by virtue of any of the Transactions
(as defined in the Master Agreement), including without limitation the
consummation thereof."
6. Effectiveness. This Amendment shall be deemed effective as of the
date first written above, as if executed 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 may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective immediately upon execution by the Company,
whether or not also executed by the Rights Agent. This Amendment shall be
deemed to be a contract made under the laws of the Commonwealth of Kentucky
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. If any term, provision, covenant or restriction
of this Amendment is held by a court of competent jurisdiction or other
authority to be invalid, void 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. The Rights Agent and the Company hereby waive any notice
requirement under the Rights Agreement pertaining to the matters covered by
this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their authorized officers as of the date first
written above.
ASHLAND INC.,
by /s/ James J. O'Brien
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Name: James J. O'Brien
Title: Chief Executive
Officer
National City Bank,
by /s/ Marlayna J. Jeanclerc
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Name: Marlayna J. Jeanclerc
Title: Vice President