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EXHIBIT 11
THIRD AMENDMENT TO RIGHTS AGREEMENT
THIRD AMENDMENT, dated as of May 9, 2000 (the "Third Amendment"),
amending the Rights Agreement, dated as of February 1, 1994 (the "Rights
Agreement"), between McWhorter Technologies, Inc., a Delaware corporation (the
"Company"), and Equiserve Trust Company, N.A. (as successor to Wachovia Bank of
North Carolina, N.A., a North Carolina corporation), as Rights Agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to the
Rights Agreement, specifying the terms of the Rights (as defined therein);
WHEREAS, the parties amended the Rights Agreement as set forth
in the First Amendment to Rights Agreement dated April 27, 1999 and as set forth
in the Second Amendment to Rights Agreement dated June 28, 1999;
WHEREAS, the Company and the Rights Agent desire to further
amend the Rights Agreement in accordance with Section 27 thereof;
WHEREAS, the Board of Directors of the Company has voted to
authorize this Third Amendment pursuant to resolutions adopted at a special
meeting held on May 3, 2000;
NOW THEREFORE, in consideration of the premises and mutual
agreements set forth in the Rights Agreement and this Third Amendment, the
parties hereby agree as follows:
1. Section 1(a) of the Rights Agreement is hereby further
amended by adding the following sentence at the end of such Section:
"Notwithstanding the foregoing provisions contained in this
Section 1(a), for so long as the Agreement and Plan of Merger
dated as of May 3, 2000 (the "Merger Agreement"), by and among
the Company, Eastman Chemical Company, a Delaware corporation
("Eastman"), and Tartan, Inc., a Delaware corporation
("Purchaser"), has not been terminated pursuant to Section 7.1
thereof, none of a "Distribution Date," "Stock Acquisition
Date" or "Flip-In Event" shall occur or be deemed to occur,
and neither Eastman nor the Purchaser shall become an
"Acquiring Person," as a result of the execution, delivery or
performance of the Merger Agreement or by the announcement,
making or consummation of the Offer (as defined in the Merger
Agreement), the acquisition of Shares pursuant to the Offer or
the Merger (as each such term is defined in the Merger
Agreement), the consummation of the Merger (as so defined) or
any other transaction contemplated by the Merger Agreement."
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2. Clauses (i) and (ii) of the first sentence of Section 7 of
the Rights Agreement are hereby deleted in their entirety and replaced with the
following:
"(i) the first to occur of (A) the close of business on
February 1, 2004 or (B) the opening of business on the date
that includes the consummation of the Offer, as defined in the
Merger Agreement (such earlier time being herein referred to
as the "Final Expiration Date") or (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the
earlier of clause (i) or (ii) being herein referred to as the
"Expiration Date")."
3. This Third 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 made and to be performed entirely within such State.
4. This Third Amendment may be executed in any number of
counterparts and 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.
5. All references in the Rights Agreement to "Wachovia Bank of
North Carolina, N.A." or "Rights Agent" are hereby amended to refer to
"Equiserve Trust Company, N.A., a national banking association".
6. Subsections (e) and (f) of Section 1 of the Rights
Agreement are hereby deleted in their entirety and replaced with the following:
"(e) "Business Day" shall mean any day other than a Saturday,
Sunday or a day on which banking institutions in The
Commonwealth of Massachusetts are authorized or obligated by
law or executive order to close.
(f) "Close of business" on any given date shall mean 5:00
p.m., Eastern time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 p.m.,
Eastern time, on the next succeeding Business Day."
7. Section 2 of the Rights Agreement is hereby amended to add
the following at the end of the second sentence after the word "desirable":
", upon ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and
shall in no event be liable for, the acts or omissions of any
such co-Rights Agent."
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8. The word "negligence" is hereby deleted in the second
sentence of Section 18(a) and the first sentence of Section 20(c) of the Rights
Agreement, and in each instance is hereby replaced with the words "gross
negligence".
9. Clause (a) of the fourth sentence of Section 21 of the
Rights Agreement is hereby deleted in its entirety and replaced with the
following:
"(a) a corporation or trust company organized and doing
business under the laws of the United States or of the States
of _________ or New York (or of any other state of the United
States so long as such corporation is authorized to do
business as a banking institution in the States of
________________ or New York), in good standing, having a
principal office in the States of ________________ or New
York, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by federal or state authority or"
10. In Section 26 of the Rights Agreement, the address block
relating to notices or demands to be given or made to the Rights Agent is hereby
deleted in its entirety and replaced with the following:
Equiserve Trust Company, N.A.
c/o Equiserve Limited Partnership
150 Rayall Street
Canton, MA 92021
Attention: Client Administration
11. Except as expressly set forth herein, this Third Amendment
shall not by implication or otherwise alter, modify, amend, or in any other way
affect any of the terms, conditions, obligations, covenants, or agreements
contained in the Rights Agreement, all of which are ratified and affirmed in all
respects and shall continue in full force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this Third Amendment
to Rights Agreement as of the date first written above.
McWHORTER TECHNOLOGIES, INC.
By: /s/ Warren B. Grayson
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Name: Warren B. Grayson
Title: Vice President
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Darlene DioDato
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Name: Darlene DioDato
Title: Senior Managing Director
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