Exhibit 4.4
Amendment No. 2
to Rights Agreement
of
McMoRan Oil & Gas Co.
This Amendment No. 2 (the "Amendment") to the Rights
Agreement between McMoRan Oil & Gas Co. (the "Company") and
Mellon Securities Trust Company, as Rights Agent (the "Rights
Agent"), dated May 19, 1994 by and between the Company and the
Rights Agent (the "Rights Agreement") is dated and effective as
of August 1, 1998.
W I T N E S S E T H
WHEREAS, Section 27 of the Rights Agreement grants the Board
of Directors of the Company the exclusive power and authority to
amend the Rights Agreement;
WHEREAS, the Company intends to enter into an Agreement and
Plan of Mergers ("Merger Agreement") with Freeport-McMoRan
Sulphur Inc. ("FSC"), McMoRan Exploration Co. ("Parent"), and
MOXY LLC and Brimstone LLC, (collectively, the "Merger Subs"),
both Delaware limited liability companies wholly owned by the
Parent.
WHEREAS, the Company's Board of Directors desires to amend
the Rights Agreement to permit FSC, the Parent, the Merger Subs,
and the Company to enter into and consummate the transactions
contemplated by the Merger Agreement without triggering the
rights under the Rights Agreement.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, the parties agree as follows:
1. The definition of "Acquiring Person" in Section 1 of
the Rights Agreement is hereby amended and restated to read in
its entirety as follows:
"Acquiring Person" means any Person who,
together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner
of 15% or more of the shares of Common Stock
then outstanding, but shall not include the
Company, any of its Subsidiaries, any
employee benefit plan of the Company or any
of its Subsidiaries or any Person organized,
appointed or established by the Company or
any of its Subsidiaries for or pursuant to
the terms of any such plan; provided,
however, that for the purpose of determining
shares of Common Stock beneficially owned by
▇▇▇▇▇▇▇▇▇▇▇ Group, Inc., all shares of Common
Stock beneficially owned by ▇▇▇▇▇▇▇▇▇▇▇
Group, Inc. on the Distribution Date shall be
excluded; and provided further, however, that
none of Freeport-McMoRan Sulphur Inc., a
Delaware corporation, McMoRan Exploration
Co., a Delaware corporation, MOXY LLC, a
Delaware limited liability company, and
Brimstone LLC, a Delaware limited liability
company, and their respective Subsidiaries,
Affiliates, and Associates (hereinafter
collectively the "Sulphur Parties") shall be
deemed to be an Acquiring Person.
Notwithstanding the foregoing, no Person
shall become an Acquiring Person if (i) such
Person has become the Beneficial Owner of 15%
or more of the shares of Common Stock, (ii)
the acquisition by such Person of the shares
that equal or exceed 15% of the shares of
Common Stock was made without apparent
knowledge of the potential implications of
such acquisition under this Agreement and
(iii) either (A) within 10 days after the
Company has notified such Person that the
Company has become aware of such potential
implications, such Person ceases to be the
Beneficial Owner of 15% or more of the shares
of Common Stock or (B) prior to receiving
such notice such Person ceases to be the
Beneficial Owner of 15% or more of the shares
of Common Stock.
2. The definition of "Beneficial Owner" and "beneficially
own" in Section 1 of the Rights Agreement is hereby amended by
adding an additional paragraph at the end of the definition
reading as follows:
Notwithstanding anything in this definition
of "Beneficial Owner" and "beneficially own"
to the contrary, none of the Sulphur Parties,
as defined in the definition of "Acquiring
Person", shall be deemed to be the Beneficial
Owner of, nor to beneficially own any Common
Stock solely by reason of the approval,
execution or delivery by any party thereto,
or by reason of the amendment or consummation
of, an Agreement and Plan of Mergers by and
among the Company and the Sulphur Parties
dated August 1, 1998 (the "Sulphur Merger
Agreement").
3. Paragraph (a) of Section 7 of the Rights Agreement is
hereby amended and restated in its entirety as follows:
(a) The registered holder of any Right
Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein,
including Section 7(d) and (e), 9(c), 11(a)
and 24) in whole or in part at any time after
the Distribution Date and prior to the
earlier of (i) the Effective Date of the
Sulphur Merger Agreement, as defined in the
definition of Beneficial Owners and
"beneficially own" in Section 1, or (ii) the
Expiration Date upon surrender of the Right
Certificate, with the form of election to
purchase and the certificate on the reverse
side duly executed, to the Rights Agent at
the principal office or offices of the Rights
Agent designated for such purpose, together
with payment (in lawful money of the United
States of America by certified check or bank
draft payable to the order of the Company) of
the aggregate Purchase Price with respect to
the Rights then to be exercised and an amount
equal to any applicable transfer tax or other
governmental charge.
4. The Rights Agreement as heretofore amended is hereby
further amended by adding at the end a new Section 35 reading as
follows:
Section 35. Sulphur Merger Agreement.
Notwithstanding anything in this Agreement to
the contrary, none of the approval,
execution, delivery, amendment, or
consummation of the Sulphur Merger Agreement,
as defined in the definition of "Beneficial
Owner" and "beneficially own", or the
transactions contemplated thereby or in
connection therewith, shall cause (a) any of
the Sulphur Parties, as defined in the
definition of "Acquiring Person", to become
an Acquiring Person, (b) a Stock Acquisition
Date to occur, or (c) a Distribution Date to
occur. Any Distribution Date that might or
could otherwise occur related to the Sulphur
Merger Agreement or the transactions
contemplated thereby or in connection
therewith under this Agreement shall be
indefinitely deferred until such time as the
Board of Directors may otherwise determine.
5. The definition of the term "Flip-In" defined in the
Summary of Terms is hereby amended to read in its entirety as
follows:
If any person becomes an Acquiring Person,_
then each Right (other than Rights
beneficially owned by the Acquiring Person
and certain affiliated persons) will entitle
the holder to purchase, for the Purchase
Price, a number of shares of the Company's
Common Stock having a market value of twice
the Purchase Price.
"Acquiring Person" means any Person who,
together with all Affiliates and Associates
of such Person, shall be the Beneficial Owner
of 15% or more of the shares of Common Stock
then outstanding, but shall not include the
Company, any of its Subsidiaries, any
employee benefit plan of the Company or any
of its Subsidiaries or any Person organized,
appointed or established by the Company or
any of its Subsidiaries for or pursuant to
the terms of any such plan; provided,
however, that for the purpose of determining
shares of Common Stock beneficially owned by
▇▇▇▇▇▇▇▇▇▇▇ Group, Inc., all shares of Common
Stock beneficially owned by ▇▇▇▇▇▇▇▇▇▇▇
Group, Inc. on the Distribution Date shall be
excluded; and provided further, however, that
none of Freeport-McMoRan Sulphur Inc., a
Delaware corporation, McMoRan Exploration
Co., a Delaware corporation, MOXY LLC, a
Delaware limited liability company, and
Brimstone LLC, a Delaware limited liability
company, and their respective Subsidiaries
Affiliates and Associates (hereinafter
collectively the "Sulphur Parties") shall be
deemed to be an Acquiring Person.
Notwithstanding the foregoing, no Person
shall become an Acquiring Person if (i) such
Person has become the Beneficial Owner of 15%
or more of the shares of Common Stock, (ii)
the acquisition by such Person of the shares
that equal or exceed 15% of the shares of
Common Stock was made without apparent
knowledge of the potential implications of
such acquisition under this Agreement and
(iii) either (A) within 10 days after the
Company has notified such Person that the
Company has become aware of such potential
implications, such Person ceases to be the
Beneficial Owner of 15% or more of the shares
of Common Stock or (B) prior to receiving
such notice such Person ceases to be the
Beneficial Owner of 15% or more of the shares
of Common Stock.
6. All capitalized terms used herein but not otherwise
defined herein shall have the meanings ascribed to them in the
Rights Agreement.
7. Except as specifically amended by this Amendment, the
Rights Agreement shall remain in full force and effect.
8. Any reference to "this Agreement" or "the Rights
Agreement" shall be deemed to be a reference to the Rights
Agreement as amended hereby.
9. This Amendment, all rights hereunder and provisions
hereof, shall be governed by, and construed in accordance with,
the laws of the State of Delaware without giving effect to
principles of conflict of laws.
10. This Amendment may be executed by the parties in one or
more counterparts, all of which shall be deemed an original, but
all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Amendment effective as of the day and year first above
written.
McMoRan OIL & GAS CO.
Attest:
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary Co-Chairman of the Board and
Chief Executive Officer
MELLON SECURITIES TRUST COMPANY
Attest:
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name:▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:Assistant Vice President Title:Assistant Vice President