FOURTH AMENDMENT OF RIGHTS AGREEMENT
Exhibit
4.1
FOURTH
AMENDMENT OF RIGHTS AGREEMENT
This
Fourth Amendment ( this “Amendment No. 4”) of
the Rights Agreement as amended and restated on May 18, 2005 (the “Rights Agreement”) is
dated as of the 24th day of March, 2009 between Unit Corporation, a Delaware
corporation (the “Company”), and
American Stock Transfer and Trust Company, LLC as Rights Agent (the “Rights
Agent”).
WHEREAS,
the Company and the ▇▇▇▇▇▇ ▇▇▇▇▇▇ Family Foundation (“GKFF”), have entered
into a Standstill Agreement, dated as of March 24, 2009, (the “Standstill
Agreement”) which provides, among other things, that for so long as GKFF
Beneficially Holds (as defined in the Standstill Agreement) in excess of 15% of
the total number of outstanding Common Shares (as defined in the Standstill
Agreement) GKFF will be prohibited from certain actions including seeking or
proposing to control the Company;
WHEREAS,
the Board of Directors of the Company has considered the reasons underlying the
adoption of the Rights Agreement, has determined that those reasons continue to
be valid at present and deems it advisable and in the best interests of the
Company and its stockholders to amend certain provisions of the Rights
Agreement;
WHEREAS,
the Company and the Rights Agent desire to amend the Rights Agreement on the
terms and conditions hereinafter set forth; and
WHEREAS,
the Board of Directors of the Company has authorized this Amendment No. 4
at a meeting of directors duly called and held.
NOW,
THEREFORE, the undersigned, in consideration of the premises, covenants and
agreements contained herein and in the Rights Agreement, and other good,
sufficient and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, do hereby agree as follows:
1. Amendment to Section
1. Section 1 of the Rights Agreement is amended
by:
(a) deleting
the definition of “Acquiring Person” and replacing it in its entirety with the
following:
“Acquiring Person” shall mean
any Person who or which, alone or together with all Affiliates and Associates of
such Person, shall be the Beneficial Owner of more than 15% of the Common Shares
then outstanding, but shall not include the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any of its Subsidiaries,
or any Person holding Common Shares for or pursuant to the terms of any such
employee benefit plan; provided, however, that (i) if the Board of Directors of
the Company determines in good faith that a Person who would otherwise be an
“Acquiring Person” became the Beneficial Owner of a number of Common Shares such
that the Person would otherwise qualify as an “Acquiring Person” inadvertently
(including, without limitation, because (A) such Person was unaware that it
beneficially owned a percentage of Common Shares that would otherwise cause such
Person to be an “Acquiring Person” or (B) such Person was aware of the extent of
its Beneficial Ownership of Common Shares but had no actual knowledge of the
consequences of such Beneficial Ownership under this Agreement) and without any
intention of
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changing
or influencing control of the Company, then such Person shall not be deemed to
be or to have become an “Acquiring Person” for any purposes of this Agreement
unless and until such Person shall have failed to divest itself, as soon as
practicable (as determined, in good faith, by the Board of Directors of the
Company), of Beneficial Ownership of a sufficient number of Common Shares so
that such Person would no longer otherwise qualify as an “Acquiring Person” and
(ii) no Person shall become an “Acquiring Person” as the result of an
acquisition of Common Shares by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of Common Shares
beneficially owned by such Person to more than 15% of the Common Shares then
outstanding, provided, however, that if a Person shall become the Beneficial
Owner of more than 15% of the Common Shares then outstanding by reason of such
share acquisitions by the Company and shall thereafter become the Beneficial
Owner of any additional Common Shares (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Shares or
pursuant to a split or subdivision of the outstanding Common Shares), then such
Person shall be deemed to be an “Acquiring Person” unless upon becoming the
Beneficial Owner of such additional Common Shares such Person does not
beneficially own more than 15% of the Common Shares then
outstanding. Notwithstanding the foregoing, the references to 15% in
the preceding sentence shall be deemed to be 25% with respect to the ▇▇▇▇▇▇
▇▇▇▇▇▇ Family Foundation together with its Affiliates (“GKFF”); provided,
however, that this sentence shall cease to be applicable, and the provisions of
the first sentence of this definition of Acquiring Person shall govern all
applicable Persons, including, without limitation, GKFF, upon the earlier of (i)
the first date GKFF reports or is required to report its Beneficial Ownership of
Common Shares on Schedule 13D under the Exchange Act which Schedule 13D states
any present intention to (or reserves the right to) hold Common Shares with the
purpose or effect of changing or influencing the control of the Company, or in
connection with or as a participant in any transaction having such purpose or
effect, (ii) after the first instance in which GKFF Beneficially Owns more than
15% of the Common Shares then outstanding, GKFF Beneficially Owning less than
15% of the Common Shares then outstanding, and (iii) GKFF breaching any
provision of the Standstill Agreement dated as of March 24, 2009 by and between
the Company and GKFF (each of the events described in clauses (i),
(ii) and (iii) of this sentence, a “Triggering
Event”).
(b) adding
the following terms:
"GKFF" shall have the meaning
set forth in the definition of Acquiring Person.
"Triggering Event" shall have
the meaning set forth in the definition of Acquiring Person.
2. Amendment to Section
3(b). Section
3(b) of the Rights Agreement is hereby amended by deleting the term “15%” in
such section, and replacing it with the term “15% (or in the case of GKFF prior
to a Triggering Event, 25%)”.
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3. Amendment to Section
25. Section 25 of the Rights Agreement is hereby amended to
provide that notices or demands to or on the Rights Agent shall be addressed as
follows:
If to
AST: American
Stock Transfer & Trust Company, LLC
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate
Trust Department
4. Amendment to Exhibit C. Exhibit
C to the Rights Agreement is hereby amended by deleting the term “15%” in each
place in which such term appears in Exhibit C, and replacing it with the term
“15% (or in the case of GKFF prior to a Triggering Event, 25%)”.
5. Other Terms
Unchanged. This Amendment No. 4 shall be effective as of the
date hereof and, except as set forth herein, the Rights Agreement shall remain
in full force and effect and shall be otherwise unaffected
hereby. The term “Rights Agreement” as used in the Rights Agreement
shall be deemed to refer to the Rights Agreement as amended hereby.
6. Severability. If
any term, provision, covenant or restriction of this Amendment No. 4 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 No. 4 shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
7. Governing
Law. This Amendment No. 4 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; except that
all provisions regarding the rights, duties and obligations of the Rights Agent
shall be governed by and construed in accordance with the law of the State of
New York applicable to contracts made and to be performed entirely within such
State.
8. Counterparts. This
Amendment No. 4 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.
9. Descriptive
Headings. Descriptive headings of the several Sections of this
Amendment No. 4 are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to be duly
executed as of the day and year first above written.
UNIT
CORPORATION
By: /s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Senior Vice
President
AMERICAN STOCK TRANSFER &
TRUSTCOMPANY, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Title: Vice
President