Exhibit (c)(5)
AMENDMENT TO RIGHTS AGREEMENT BETWEEN
UNION TEXAS PETROLEUM HOLDINGS, INC. AND
FIRST CHICAGO TRUST COMPANY OF NEW YORK
THIS AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as of
this third day of May, 1998 by and between Union Texas Petroleum Holdings, Inc.,
a Delaware corporation (the "Company"), and First Chicago Trust Company of New
York, a New York corporation, as rights agent (the "Rights Agent"). Capitalized
terms used but not defined herein shall have the meanings give to such terms in
the Merger Agreement (as defined below).
WHEREAS, the Corporation is entering into an Agreement and Plan of
Merger (as the same may be amended from time to time, the "Merger Agreement")
among the Company, Atlantic Richfield Company, a Delaware corporation
("Parent"), and VWK Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("the Sub"), providing for transactions (collectively, the
"Merger") pursuant to which, among other things, the Company will become a
wholly-owned subsidiary of Parent and the former stockholders of the Company
will receive the Merger Consideration;
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of September 12, 1997 (the "Rights Agreement"); and
WHEREAS, the parties desire to amend the Rights Agreement in
connection with the execution and delivery of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein set forth, the parties hereby agree as follows:
1. The definition of "Acquiring Person" set forth in Section 1
of the Rights Agreement is hereby amended by adding the following sentence to
the end of that definition:
Notwithstanding the foregoing, no Person shall be or become
an Acquiring Person by reason of (i) the execution and delivery
of the Agreement and Plan of Merger dated as of May 4, 1998 among
the Company, Atlantic Richfield Company, a Delaware corporation
("Parent"), and , a Delaware corporation ("Sub"), (the "Merger
Agreement") or the execution of any amendment thereto, (ii) the
purchase of Common Stock by Parent or Sub pursuant to (A) the
Offer or (B) Section 4 of the Stockholder Agreement dated May 4,
1998 among Parent, KKR Partners II, L.P., a Delaware limited
partnership, and Petroleum Associates, L.P., a Delaware limited
partnership (the "Stockholder Agreement") or (iii) the
consummation of the other Transactions.
2. Section 7(a)(i) of the Rights Agreement shall be amended to
read in its entirety as follows:
(i) the earlier of (1) the consummation of the Offer (as
defined in the Merger Agreement) or (2) the Close of
Business on September 30, 2007.
3. The definition of "Stock Acquisition Date" included in
Section 1 of the Rights Agreement shall be
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amended by adding the following sentence to the end of such definition:
Notwithstanding anything else set forth in this Agreement, a
Stock Acquisition Date shall not be deemed to have occurred by
reason of (i) the public announcement, public disclosure,
execution and delivery or amendment of the Merger Agreement, (ii)
the public announcement, public disclosure, execution and
delivery or amendment of the Stockholder Agreement, (iii) the
purchase of Common Stock by Parent or Sub pursuant to (A) Section
4 of the Stockholder Agreement or (B) the consummation of the
Offer or (iv) the consummation of any of the other Transactions.
4. Section 3(a) of the Rights Agreement shall be amended by
adding the following sentence to the end thereof:
Notwithstanding anything else set forth in this Agreement,
no Distribution Date shall be deemed to have occurred by reason
of (i) the execution and delivery or amendment of the Merger
Agreement, (ii) the execution and delivery or amendment of the
Stockholder Agreement, (iii) the purchase of Common Stock by
Parent or Sub pursuant to (A) Section 4 of the Stockholder
Agreement or (B) the consummation of the Offer or (iv) the
consummation of any of the other Transactions.
5. The first paragraph of Section 13(c) of the Rights Agreement
shall be amended to read in its entirety as follows:
The Company shall not consummate any consolidation, merger,
sale or transfer referred to in Section 13(a) (other than any
such transaction contemplated by the Merger Agreement or the
Stockholder Agreement) unless the Principal Party shall have a
sufficient number of authorized shares of its
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Common Stock which have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto the Company and the Principal
Party involved therein shall have executed and delivered to the Rights
Agent an agreement confirming that the requirements of Section 13(a)
and (b) shall promptly be performed in accordance with their terms and
that such consolidation, merger, sale or transfer of assets shall not
result in a default by the Principal Party under this Agreement as the
same shall have been assumed by the Principal Party pursuant to
Sections 13(a) and (b) hereof and further providing that, as soon as
practicable after executing such agreement pursuant to this Section
13, the Principal Party will:
6. The Rights Agreement, as amended by this Amendment, shall remain in
full force and effect in accordance with its terms.
7. 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, void or unenforceable, the remainder of the terms,
provisions,
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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 herein have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
UNION TEXAS PETROLEUM HOLDINGS, INC.,
by
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Name: John L. Whitmire
Title: Chairman of the
Board and Chief
Executive Officer
Attest: _________________
Name:
Title:
FIRST CHICAGO TRUST COMPANY OF NEW
YORK, RIGHTS AGENT,
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by /s/ Gerard O'Leary
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Name: Gerard O'Leary
Title: Vice President
Attest: /s/ Mary E. Garcia
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Name: Mary E. Garcia
Title: Customer Servie Officer
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