EXHIBIT 4.1.2
CONFORMED COPY
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 (the "Amendment")
dated as of April 27, 2005, to the Rights
Agreement, dated as of May 16, 1996 (as amended
by Amendment No. 1 dated as of March 18, 2004,
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"), entered into a
Master Agreement on March 18, 2004 and Amendment No. 1 to this Rights
Agreement on March 18, 2004;
WHEREAS the parties to the Master Agreement dated as of
March 18, 2004 have proposed to enter into an amendment to that Master
Agreement to be dated the date hereof (that Master Agreement, as so
amended, being referred to herein as 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 Conversion
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 Conversion 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 Conversion Merger Effective Time.
2. Substitution of New Ashland Inc. Effective at the Conversion 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. References to Master Agreement. All references in the Rights Agreement
to the "Master Agreement" shall be deemed to be references to the Master
Agreement dated as of March 18, 2004 among the parties thereto, as amended
by Amendment No. 1 thereto dated as of April 27, 2005 among the parties
thereto.
4. 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.
5. 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
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Name:
Title: