EXHIBIT 4.1
NOBLE CORPORATION
AND
UMB BANK, N.A.
RIGHTS AGENT
RIGHTS AGREEMENT
DATED AS OF MARCH 13, 2002
TABLE OF CONTENTS
PAGE
Section 1. Certain Definitions.............................................................................1
Section 2. Appointment of Rights Agent.....................................................................5
Section 3. Issue of Rights and Right Certificates..........................................................5
Section 4. Form of Right Certificates......................................................................7
Section 5. Execution, Countersignature and Registration....................................................7
Section 6. Transfer, Split-up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates...........................8
Section 7. Exercise of Rights; Expiration Date of Rights...................................................8
Section 8. Cancellation and Destruction of Right Certificates.............................................10
Section 9. Reservation and Availability of Shares.........................................................10
Section 10. Preferred Shares Record Date...................................................................11
Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights.............................12
Section 12. Certificate of Adjustment......................................................................18
Section 13. Consolidation, Amalgamation, Merger or Sale or
Transfer of Assets or Earning Power............................................................18
Section 14. Fractional Rights and Fractional Shares........................................................20
Section 15. Rights of Action...............................................................................21
Section 16. Agreement of Right Holders.....................................................................21
Section 17. Right Certificate Holder Not Deemed a Member...................................................22
Section 18. Concerning the Rights Agent....................................................................22
Section 19. Merger, Amalgamation or Consolidation or Change of Name of Rights Agent........................22
Section 20. Duties of Rights Agent.........................................................................23
Section 21. Change of Rights Agent.........................................................................26
Section 22. Issuance of New Right Certificates and Additional Rights.......................................26
Section 23. Redemption.....................................................................................27
Section 24. Exchange.......................................................................................27
Section 25. Notice of Certain Events.......................................................................29
Section 26. Notices........................................................................................29
Section 27. Supplements and Amendments.....................................................................30
Section 28. Successors.....................................................................................31
Section 29. Benefits of this Agreement.....................................................................31
Section 30. Severability...................................................................................31
Section 31. GOVERNING LAW..................................................................................31
Section 32. Counterparts...................................................................................31
Section 33. Descriptive Headings...........................................................................31
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RIGHTS AGREEMENT
This
RIGHTS AGREEMENT, dated as of March 13, 2002 (this
"Agreement"), between
NOBLE CORPORATION, a Cayman Islands exempted company
limited by shares (the "Company"), and UMB BANK, N.A., as Rights Agent (the
"Rights Agent");
WITNESSETH:
WHEREAS, the Board of Directors of the Company has authorized
and directed the issuance of one Right with each Ordinary Share (as such terms
are hereinafter defined) of the Company issued pursuant to the Agreement and
Plan of Merger (the "Merger Agreement"), dated as of March 11, 2002, among the
Company, Noble Drilling Corporation, a
Delaware corporation ("Noble-
Delaware"),
Noble Holding (U.S.) Corporation, a
Delaware corporation ("Holdco"), and Noble
Cayman Acquisition Corporation, a
Delaware corporation ("Merger Sub"), and has
further authorized the issuance of one Right (as such number may hereafter be
adjusted pursuant to the provisions of this Agreement) with respect to each
Ordinary Share that shall become outstanding between the Record Date and the
earliest of the Distribution Date, the Redemption Date and the Final Expiration
Date (as such terms are hereinafter defined); provided, however, that Rights may
be issued with respect to Ordinary Shares that shall become outstanding after
the Distribution Date and prior to the earlier of the Redemption Date and the
Final Expiration Date in accordance with the provisions of Section 22 of this
Agreement. Each Right shall initially represent the right to purchase one
one-hundredth of a share of the Series A Junior Participating Preferred Shares,
par value US$1.00 per share, of the Company (the "Preferred Shares"), having the
powers, rights and preferences fixed by the resolutions of the Board of
Directors attached hereto as Exhibit A;
NOW THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this
Agreement, the following terms have the meanings indicated:
"ACQUIRING PERSON" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and Associates
(as such terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as such term is hereinafter defined) of 15 percent or more of the
Ordinary Shares of the Company then outstanding, but shall not include the
Company, any Subsidiary (as such term is hereinafter defined) of the Company,
any employee benefit plan of the Company or any Subsidiary of the Company, or
any entity holding Ordinary Shares of the Company for or pursuant to the terms
of any such plan. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Ordinary Shares of the
Company by the Company which, by reducing the number of such shares outstanding,
increases the proportionate number of shares beneficially owned by such Person
to 15 percent or more of the Ordinary Shares of the Company then outstanding;
provided, however, that if a Person shall become the Beneficial Owner of 15
percent or more of the Ordinary Shares of the Company then outstanding by reason
of share purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Ordinary Shares of the
Company, then such Person shall be deemed to be an "Acquiring Person."
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good
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faith that a Person who would otherwise be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this definition, has become such
inadvertently, and such Person divests as promptly as practicable a sufficient
number of Ordinary Shares of the Company so that such Person would no longer be
an "Acquiring Person," as defined pursuant to the foregoing provisions of this
definition, then such person shall not be deemed to be an "Acquiring Person" for
any purposes of this Agreement.
"ADJUSTMENT SHARES" shall have the meaning set forth in
Section 11(a)(ii) hereof.
"AFFILIATE" and "ASSOCIATE," when used with reference to any
Person, shall have the respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the Exchange Act (as such term is
hereinafter defined), as in effect on June 28, 1995.
A Person shall be deemed the "BENEFICIAL OWNER" of, and shall
be deemed to "BENEFICIALLY OWN," and shall be deemed to have "BENEFICIAL
OWNERSHIP" of, any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion rights, exchange
rights, rights (other than the Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the Beneficial Owner of, or
to beneficially own, securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or exchange;
or (B) the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the applicable
rules and regulations promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with respect
to a bona fide public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso in clause
(ii)(B) of this definition) or disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when used with
reference to a Person's Beneficial Ownership of securities of the Company, shall
mean the number of such securities then issued
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and outstanding together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to own beneficially
hereunder.
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the Borough of Manhattan, The
City of New York are authorized or obligated by law or executive order to close.
"CLOSE OF BUSINESS" on any given date shall mean 5:00 P.M.,
New York City time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York City time, on the next succeeding
Business Day.
"DISTRIBUTION DATE" shall have the meaning set forth in
Section 3(b) hereof.
"EFFECTIVE TIME" shall mean the effective time of the Merger
(as such term is hereinafter defined) determined pursuant to the Certificate of
Merger relating to the Merger filed with and declared effective by the Secretary
of State of the State of
Delaware.
"EQUIVALENT PREFERRED SHARES" shall have the meaning set forth
in Section 11(b) hereof.
"EXCHANGE ACT" shall mean the United States Securities
Exchange Act of 1934, as in effect on the date in question, unless otherwise
specifically provided.
"EXCHANGE RATIO" shall have the meaning set forth in Section
24 (a) hereof.
"FINAL EXPIRATION DATE" shall have the meaning set forth in
Section 7(a) hereof.
"FLIP-IN EVENT" shall have the meaning set forth in Section
11(a)(ii) hereof.
"FLIP-IN TRIGGER DATE" shall have the meaning set forth in
Section 11(a)(iii) hereof.
"FLIP-OVER EVENT" shall have the meaning set forth in Section
13(a) hereof.
"MEMBER" shall have the meaning set forth in the Articles of
Association of the Company.
"MERGER" shall mean the merger of Merger Sub with and into
Noble-
Delaware, pursuant to which Noble-
Delaware will become a direct, wholly
owned subsidiary of Holdco and an indirect, wholly owned subsidiary of the
Company.
"ORDINARY SHARES" when used with reference to the Company
shall mean the Ordinary Shares, presently par value US$.10 per share, of the
Company. "Ordinary Shares" when used with reference to any Person other than the
Company shall mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary of
another Person, the Person or Persons that ultimately control such
first-mentioned Person.
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"ORDINARY SHARE EQUIVALENTS" shall have the meaning set forth
in Section 11(a)(iii) hereof.
"PERSON" shall mean any individual, firm, corporation, company
or other entity, and shall include any successor (by merger, amalgamation or
otherwise) of such entity.
"PREFERRED SHARES" shall have the meaning set forth in the
introductory paragraph of this Agreement. Any reference in this Agreement to
Preferred Shares shall be deemed to include any authorized fraction of a
Preferred Share, unless the context otherwise requires.
"PRINCIPAL PARTY" shall have the meaning set forth in Section
13(b) hereof.
"PURCHASE PRICE" with respect to each Right shall mean
US$120.00, as such amount may from time to time be adjusted as provided herein,
and shall be payable in lawful money of the United States of America. All
references herein to the Purchase Price shall mean the Purchase Price as in
effect at the time in question.
"RECORD DATE" shall mean the Effective Time.
"REDEMPTION DATE" shall have the meaning set forth in Section
7(a) hereof.
"REDEMPTION PRICE" shall have the meaning set forth in Section
23 hereof.
"RESOLUTIONS" shall mean the resolutions adopted by the Board
of Directors of the Company setting forth the powers, preferences, rights,
qualifications, limitations and restrictions of the Preferred Shares, a copy of
which are attached to this Agreement as Exhibit A.
"RIGHT CERTIFICATE" shall mean a certificate evidencing a
Right in substantially the form attached to this Agreement as Exhibit B.
"RIGHTS" shall mean the rights to purchase Preferred Shares
(or other securities) as provided in this Agreement.
"SECURITIES ACT" shall mean the United States Securities Act
of 1933, as in effect on the date in question, unless otherwise specifically
provided.
"SHARES ACQUISITION DATE" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring Person has
become such.
"SUBSIDIARY" of any Person shall mean any corporation, company
or other entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
"SUBSTITUTION PERIOD" shall have the meaning set forth in
Section 11(a)(iii) hereof.
"TRADING DAY" shall have the meaning set forth in Section
11(d)(i) hereof.
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SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall, prior to the
Distribution Date, also be the holders of the Ordinary Shares) in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-Rights Agents as
it may deem necessary or desirable.
SECTION 3. ISSUE OF RIGHTS AND RIGHT CERTIFICATES.
(a) One Right shall be associated with each Ordinary Share
outstanding on the Record Date, each additional Ordinary Share that shall become
outstanding between the Record Date and the earliest of the Distribution Date,
the Redemption Date and the Final Expiration Date, and each additional Ordinary
Share with which Rights are issued after the Distribution Date and prior to the
earlier of the Redemption Date and the Final Expiration Date as provided in
Section 22 hereof; provided, however, that, if the number of outstanding Rights
are combined into a smaller number of outstanding Rights pursuant to Section 11
hereof, the appropriate fractional Right determined pursuant to such Section
shall thereafter be associated with each such Ordinary Share.
(b) Until the earlier of (i) the tenth day after the Shares
Acquisition Date and (ii) the tenth Business Day (or such later date as may be
determined by action of the Board of Directors of the Company prior to such time
as any Person becomes an Acquiring Person) after the date of the commencement by
any Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any Subsidiary of the Company, or any entity
holding Ordinary Shares of the Company for or pursuant to the terms of any such
plan) of, or of the first public announcement of the intention of any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, or any entity holding
Ordinary Shares of the Company for or pursuant to the terms of any such plan) to
commence, a tender or exchange offer the consummation of which would result in
any Person becoming the Beneficial Owner of Ordinary Shares aggregating 15
percent or more of the then outstanding Ordinary Shares (including any such date
which is after the date of this Agreement and prior to the issuance of the
Rights; the earlier of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the provisions of Section
3(c) hereof) by the certificates for Ordinary Shares registered in the names of
the holders thereof (which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y) the Rights,
including the right to receive Right Certificates, will be transferable only in
connection with the transfer of Ordinary Shares. As soon as practicable after
the Distribution Date, the Company will prepare and execute, the Rights Agent
will countersign, and the Company will send or cause to be sent (and the Rights
Agent will, if requested, send) by first-class, insured, postage-prepaid mail,
to each record holder of Ordinary Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the records of the
Company, a Right Certificate evidencing one whole Right for each Ordinary Share
(or for the number of Ordinary Shares with which one whole Right is then
associated if the number of Rights per Ordinary Share held by such record holder
has been adjusted in accordance with the provision in Section 3(a) hereof) so
held. If the number of Rights associated with each Ordinary Share has been
adjusted in accordance with the proviso in Section 3(a) hereof, at the time of
distribution of the Right Certificates, the Company may make
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any necessary and appropriate rounding adjustments so that Right Certificates
representing only whole numbers of Rights are distributed and cash is paid in
lieu of any fractional Right in accordance with Section 14 hereof. As of and
after the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(c) With respect to certificates evidencing Ordinary Shares
outstanding on the Record Date, until the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date, the Rights will be evidenced by
such certificates registered in the names of the holders thereof together with
the summary of the Rights included in the Registration Statement on Form S-4
filed by the Company with the United States Securities and Exchange Commission
in connection with the Merger (the "Summary of Rights"). Until the earliest of
the Distribution Date, the Redemption Date and the Final Expiration Date, the
surrender for transfer of any certificate evidencing Ordinary Shares outstanding
on the Record Date, with or without a copy of the Summary of Rights attached
thereto, shall also constitute the transfer of the Rights associated with the
Ordinary Shares represented thereby.
(d) Certificates issued for Ordinary Shares after the Record
Date (including, without limitation, reacquired Ordinary Shares referred to in
the last sentence of this paragraph (d)), but prior to the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date, shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF
TO CERTAIN RIGHTS AS SET FORTH IN A
RIGHTS AGREEMENT DATED AS OF MARCH 13, 2002,
AS IT MAY BE AMENDED FROM TIME TO TIME (THE "
RIGHTS AGREEMENT"), BETWEEN
NOBLE
CORPORATION AND UMB BANK, N.A., AS RIGHTS AGENT, THE TERMS OF WHICH ARE HEREBY
INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF
NOBLE CORPORATION. UNDER CERTAIN CIRCUMSTANCES, AS SET
FORTH IN THE
RIGHTS AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE
CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS CERTIFICATE.
NOBLE
CORPORATION WILL MAIL TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE
RIGHTS
AGREEMENT WITHOUT CHARGE AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR. UNDER
CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE
RIGHTS AGREEMENT, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON OR THEIR AFFILIATES OR ASSOCIATES (AS SUCH TERMS
ARE DEFINED IN THE
RIGHTS AGREEMENT) AND BY ANY SUBSEQUENT HOLDER OF SUCH RIGHTS
ARE NULL AND VOID AND NONTRANSFERABLE.
With respect to such certificates containing the foregoing
legend, until the earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date, the Rights associated with the Ordinary Shares
represented by such certificates shall be evidenced by such certificates alone,
and the surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Ordinary Shares represented thereby.
In the event that the Company purchases or acquires any Ordinary Shares after
the Record Date but prior to the Distribution Date, any Rights associated with
such Ordinary Shares shall be deemed cancelled
6
and retired so that the Company shall not be entitled to exercise any Rights
associated with the Ordinary Shares which are no longer outstanding.
SECTION 4. FORM OF RIGHT CERTIFICATES. The Right Certificates
(and the form of election to purchase and form of assignment to be printed on
the reverse side thereof) shall be in substantially the form attached to this
Agreement as Exhibit B and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which the Rights may from time to time be listed or of
any automated quotations system of a national securities association on which
the Rights may from time to time be registered or quoted, or to conform to
usage. Subject to the provisions of Section 22 hereof, the Right Certificates,
whenever issued, on their face shall entitle the holders thereof to purchase
such number of one one-hundredths of a Preferred Share as shall be set forth
therein for the Purchase Price per one one-hundredth of a Preferred Share,
subject to adjustment from time to time as herein provided.
SECTION 5. EXECUTION, COUNTERSIGNATURE AND REGISTRATION.
(a) The Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President, its Chief Executive
Officer, or any of its Vice Presidents, or its Treasurer, either manually or by
facsimile signature, shall have affixed thereto the Company's seal or a
facsimile thereof, and shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. The Right
Certificates shall be countersigned manually or by facsimile signature by the
Rights Agent and shall not be valid or obligatory for any purpose unless
countersigned. In case any officer of the Company who shall have signed any of
the Right Certificates shall cease to be such an officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the person who signed such Right Certificates had not ceased to be such an
officer of the Company; and any Right Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Agreement any such
person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right Certificates, the
certificate number of each of the Right Certificates and the date of each of the
Right Certificates.
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SECTION 6. TRANSFER, SPLIT-UP, COMBINATION AND EXCHANGE OF
RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES.
(a) Subject to the provisions of Sections 7(e) and 14 hereof,
at any time after the close of business on the Distribution Date, and at or
prior to the close of business on the earlier of the Redemption Date and the
Final Expiration Date, any Right Certificate or Right Certificates (except as
otherwise provided herein, including, without limitation, Right Certificates
representing Rights that have become null and void and nontransferable pursuant
to Section 7(e) hereof or that have been exchanged pursuant to Section 24
hereof) may be transferred, split-up, combined or exchanged for another Right
Certificate or Right Certificates representing, in the aggregate, the same
number of Rights as the Right Certificate or Right Certificates surrendered then
represented. Any registered holder desiring to transfer, split-up, combine or
exchange any Right Certificate or Right Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Right Certificate
or Right Certificates to be transferred, split-up, combined or exchanged at the
principal office or offices of the Rights Agent designated for such purpose;
provided, however, that neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of any
Right Certificate surrendered for transfer until the registered holder shall
have completed and signed the certification of status contained in the form of
assignment on the reverse side of such Right Certificate and shall have provided
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall, subject to Sections 7(e)
and 14 hereof, countersign and deliver to the Person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The
Company or the Rights Agent may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer,
split-up, combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them, and, at the Company's
request, reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company will make a new
Right Certificate of like tenor and deliver such new Right Certificate to the
Rights Agent for delivery to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; EXPIRATION DATE OF RIGHTS.
(a) Subject to Section 7(e) hereof and except as otherwise
provided herein (including Section 24 hereof), each Right shall entitle the
registered holder thereof, upon exercise thereof as provided herein, to purchase
for the Purchase Price, at any time after the Distribution Date and at or prior
to the earliest of (i) the close of business on July 10, 2005 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption Date") and (iii) the time at which such
Rights are exchanged as provided in Section 24 hereof, one one-hundredth of a
Preferred Share, subject to adjustment from time to time as provided in Section
11 or Section 13 hereof.
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(b) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date, upon surrender of the
Right Certificate, with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the principal office or offices of
the Rights Agent designated for such purpose, together with payment of the
Purchase Price for each one one-hundredth of a Preferred Share as to which the
Rights are exercised, at or prior to the earliest of (i) the Final Expiration
Date, (ii) the Redemption Date and (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the Preferred Shares (or other
securities) to be purchased and an amount equal to any applicable transfer tax
required to be paid by the holder of such Right Certificate in accordance with
Section 9 hereof, in lawful money of the United States of America, in cash or by
certified check, cashier's check or money order payable to the order of the
Company, the Rights Agent shall thereupon (i) either (A) promptly requisition
from any transfer agent of the Preferred Shares (or make available, if the
Rights Agent serving in its capacity as a transfer agent for such shares)
certificates for the number of Preferred Shares to be purchased, and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company shall have elected to deposit the Preferred
Shares with a depositary agent under a depositary arrangement, promptly
requisition from the depositary agent depositary receipts representing the
number of one one-hundredths of a Preferred Share to be purchased (in which case
certificates for the Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent), and the Company will
direct the depositary agent to comply with all such requests, (ii) when
appropriate, promptly requisition from the Company the amount of cash to be paid
in lieu of issuance of fractional shares in accordance with Section 14 hereof,
(iii) promptly after receipt of such certificates or depositary receipts, cause
the same to be delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be designated by such
holder, and (iv) when appropriate, after receipt, promptly deliver such cash to
or upon the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise fewer than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining unexercised
shall be issued by the Rights Agent and delivered to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, any Rights that are at any time beneficially owned by an Acquiring
Person or any Affiliate or Associate of an Acquiring Person shall be null and
void and nontransferable, and any holder of any such Right (including any
purported transferee or subsequent holder) shall not have any right to exercise
or transfer any such Right.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Right
Certificate upon the occurrence of any purported exercise unless such registered
holder shall have (i) completed and signed the certification of status contained
in the form of election to purchase set forth on the reverse side of the Right
Certificate surrendered
9
for such exercise and (ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
(g) The Company may temporarily suspend, for a period of time
not to exceed 90 calendar days after the Distribution Date, the exercisability
of the Rights in order to prepare and file a Registration Statement under the
Securities Act, on appropriate form, with respect to the Preferred Shares
purchasable upon exercise of the Rights and permit such Registration Statement
to become effective; provided, however, that no such suspension shall remain
effective after, and the Rights shall without any further action by the Company
or any other Person become exercisable immediately upon, the effectiveness of
such Registration Statement. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended and shall issue a further public announcement at such time
as the suspension is no longer in effect. Notwithstanding any provision herein
to the contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification under the Blue Sky or securities laws of such
jurisdiction shall not have been obtained or the exercise of the Rights shall
not be permitted under applicable law.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES.
All Right Certificates surrendered for the purpose of exercise, transfer,
split-up, combination or exchange shall, and any Right Certificate representing
Rights that have become null and void and nontransferable pursuant to Section
7(e) hereof surrendered or presented for any purpose shall, if surrendered or
presented to the Company or to any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if surrendered or presented to
the Rights Agent, shall be cancelled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire, any Right
Certificate purchased or acquired by the Company. The Rights Agent shall deliver
all cancelled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such cancelled Right Certificates, and in either
such case shall deliver a certificate of destruction thereof or a certificate of
cancellation thereof, as may be appropriate, to the Company.
SECTION 9. RESERVATION AND AVAILABILITY OF SHARES.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Preferred Shares,
free from preemptive rights or any right of first refusal, a number of Preferred
Shares sufficient to permit the exercise in full of all outstanding Rights in
accordance with Section 7 hereof.
(b) In the event that there shall not be sufficient Preferred
Shares authorized but unissued to permit the exercise or exchange of Rights in
accordance with Section 11 or 24 hereof, as the case may be, the Company
covenants and agrees that it will take all such action as may be necessary to
authorize additional Preferred Shares for issuance upon the exercise or exchange
of Rights pursuant to Section 11 or 24 hereof, as the case may be; provided,
however, that if the Company is unable to cause the authorization of additional
Preferred Shares, then the Company shall, or in lieu of seeking any such
authorization, the Company may, to the extent necessary and permitted by
applicable law and any agreements or instruments in effect prior to the
Distribution Date to which it is a party, (i) upon surrender of a Right, pay
cash equal to the
10
Purchase Price in lieu of issuing Preferred Shares and requiring payment
therefor, (ii) upon due exercise of a Right and payment of the Purchase Price
for each Preferred Share as to which such Right is exercised, issue equity
securities having a value equal to the value of the Preferred Shares which
otherwise would have been issuable pursuant to Section 11 or 24 hereof, which
value shall be determined by a nationally recognized investment banking firm
selected by the Board of Directors of the Company, or (iii) upon due exercise of
a Right and payment of the Purchase Price for each Preferred Share as to which
such Right is exercised, distribute a combination of Preferred Shares, cash
and/or other equity and/or debt securities having an aggregate value equal to
the value of the Preferred Shares which otherwise would have been issuable
pursuant to Section 11 or 24 hereof, which value shall be determined by a
nationally recognized investment banking firm selected by the Board of Directors
of the Company. To the extent that any legal or contractual restrictions
(pursuant to agreements or instruments in effect prior to the Distribution Date
to which it is a party) prevent the Company from paying the full amount payable
in accordance with the foregoing sentence, the Company shall pay to holders of
the Rights as to which such payments are being made all amounts which are not
then restricted on a pro rata basis as such payments become permissible under
such legal or contractual restrictions until such payments have been paid in
full.
(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Preferred Shares delivered
upon exercise or exchange of Rights shall, at the time of delivery of the
certificates for such Preferred Shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable.
(d) So long as the Preferred Shares issuable upon the exercise
or exchange of Rights may be listed on any national securities exchange or
automated quotations system of a registered national securities association on
which the Preferred Shares may from time to time be listed, traded or quoted,
the Company covenants and agrees that it will use reasonable efforts to cause,
from and after such time as the Rights become exercisable or exchangeable, all
Preferred Shares reserved for such issuance to be listed on such exchange or
approved for quotation in such quotation system, upon official notice of
issuance upon such exercise.
(e) The Company further covenants and agrees, subject to the
provisions of this Agreement, that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of
the issuance or delivery of Right Certificates or of any Preferred Shares or
Ordinary Shares or other securities upon the exercise or exchange of the Rights.
The Company shall not, however, be required to pay any transfer tax which may be
payable in respect of any transfer or delivery of Right Certificates to a Person
other than, or in respect of the issuance or delivery of certificates for
Preferred Shares or Ordinary Shares or other securities, as the case may be, in
a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise or exchange or to issue or deliver
any certificates for Preferred Shares or Ordinary Shares or other securities, as
the case may be, upon the exercise or exchange of any Rights until such tax
shall have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
SECTION 10. PREFERRED SHARES RECORD DATE. Each Person in whose
name any certificate for Preferred Shares or Ordinary Shares or other securities
is issued upon the exercise or exchange of Rights shall for all purposes be
deemed to have become the holder of
11
record of the Preferred Shares or Ordinary Shares or other securities, as the
case may be, represented thereby on, and such certificate shall be dated, the
date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of any Purchase Price (and any applicable transfer
taxes) was made; provided, however, that, if the date of such surrender and
payment is a date upon which the transfer books of the Company for the Preferred
Shares or Ordinary Shares or other securities, as the case may be, are closed,
such Person shall be deemed to have become the record holder of such Preferred
Shares or Ordinary Shares or other securities, as the case may be, on, and such
certificate shall be dated, the next succeeding Business Day on which the
transfer books of the Company for the Preferred Shares or Ordinary Shares or
other securities, as the case may be, are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a Member of the Company with respect to shares for
which the Rights shall be exercisable, including, without limitation, the right
to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR
NUMBER OF RIGHTS. The Purchase Price, the number of Preferred Shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a)(i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Shares payable in
Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine
the outstanding Preferred Shares into a smaller number of Preferred Shares or
(D) issue any of its shares in a reclassification of the Preferred Shares
(including any such reclassification in connection with a consolidation,
amalgamation or merger in which the Company is the continuing or "surviving"
corporation), except as otherwise provided in this Section 11(a), the Purchase
Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and the
number and kind of shares issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares which, if such Right
had been exercised immediately prior to such date and at a time when the
transfer books of the Company for the Preferred Shares were open, he would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided, however, that
in no event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of the Company issuable upon
exercise of one Right. If an event occurs that would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided
for in this Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 of this Agreement, in the event any
Person becomes an Acquiring Person (a "Flip-In Event"), each holder of a Right,
except as provided in Section 7(e) hereof, shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then current Purchase
Price multiplied times the number of one one-hundredths of a Preferred Share for
which a Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of Ordinary Shares of the
Company (such number of Ordinary Shares being referred to herein as the
"Adjustment Shares") as shall equal the result
12
obtained by (x) multiplying the then current Purchase Price times the number of
one one-hundredths of a Preferred Share for which a Right is then exercisable
and dividing that product by (y) 50 percent of the then current per share market
price of the Company's Ordinary Shares (determined pursuant to Section 11(d)
hereof) on the date of the occurrence of such event. In the event that any
Person shall become an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action which would eliminate or
diminish the benefits intended to be afforded by the Rights.
(iii) In the event that there shall not be sufficient Ordinary
Shares authorized but unissued to permit the exercise in full of the Rights in
accordance with Section 11(a)(ii) hereof, the Company shall, to the extent
permitted by applicable law and regulation: (A) determine the excess of (1) the
value of the Adjustment Shares issuable upon the exercise of a Right (the
"Current Value") over (2) the Purchase Price (such excess to be referred to
hereinafter as the "Spread"), and (B) with respect to each Right, make adequate
provision to substitute for the Adjustment Shares, upon payment of the
applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3)
other equity securities of the Company (including, without limitation, shares,
or units of shares, of preferred shares which the Board of Directors of the
Company has deemed to have the same value as the Ordinary Shares (such shares of
preferred shares being referred to herein as "ordinary share equivalents")), (4)
debt securities of the Company, (5) other assets or (6) any combination of the
foregoing, having an aggregate value equal to the Current Value as determined by
the Board of Directors of the Company; provided, however, that if the Company
shall not have made adequate provision to deliver value pursuant to clause (B)
above within 30 days following the first occurrence of a Flip-In Event (the
"Flip-In Trigger Date"), then the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without requiring payment of the
Purchase Price, Ordinary Shares (to the extent available) and then, if
necessary, cash, which shares and/or cash have an aggregate value equal to the
Spread. If the Board of Directors of the Company determines in good faith that
it is likely that sufficient additional Ordinary Shares could be authorized for
issuance upon exercise in full of the Rights, the 30-day period set forth above
may be extended to the extent necessary, but not to more than 120 days after the
Flip-In Trigger Date, in order that the Company may seek Member approval for the
authorization of such additional shares (such period, as it may be extended, the
"Substitution Period"). To the extent the Company determines that some action
need be taken pursuant to the first and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that
such action shall apply uniformly to all outstanding Rights, and (y) may suspend
the exercisability of the Rights until the expiration of the Substitution Period
in order to seek any authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such first sentence and
to determine the value thereof. In the event of any such suspension, the Company
shall deliver a notice to the Rights Agent and issue a public announcement
stating that the exercisability of the Rights has been temporarily suspended, as
well as a notice to the Rights Agent and a public announcement at such time as
the suspension is no longer in effect. For purposes of this Section 11(a)(iii),
the value of the Ordinary Shares shall be the current per share market price (as
determined pursuant to Section 11(d) hereof) of the Ordinary Shares on the
Flip-In Trigger Date, and the value of any ordinary share equivalent shall be
deemed to have the same value as the Ordinary Shares on such date.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred Shares
entitling them (for a period expiring within
13
45 calendar days after such record date) to subscribe for or purchase Preferred
Shares (or shares having the same rights, privileges and preferences as the
Preferred Shares ("equivalent preferred shares")) or securities convertible into
Preferred Shares or equivalent preferred shares at a price per Preferred Share
or equivalent preferred share (or having a conversion price per share, if a
security convertible into Preferred Shares or equivalent preferred shares) less
than the then current per share market price of the Preferred Shares (as defined
in Section 11(d) hereof) on such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date times a fraction, the numerator of
which shall be the number of Preferred Shares outstanding on such record date
plus the number of Preferred Shares which the aggregate offering price of the
total number of Preferred Shares and/or equivalent preferred shares so to be
offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price and the
denominator of which shall be the number of Preferred Shares outstanding on such
record date plus the number of additional Preferred Shares and/or equivalent
preferred shares to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible); provided,
however, that in no event shall the consideration to be paid upon the exercise
of one Right be less than the aggregate par value of the shares of the Company
issuable upon exercise of one Right. In case such subscription price may be paid
in consideration part or all of which may be in a form other than cash, the
value of such consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent. Preferred Shares held for the account of the
Company shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is fixed;
and in the event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of the Preferred Shares (including any such
distribution made in connection with a consolidation, amalgamation or merger in
which the Company is the continuing or "surviving" corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preferred Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price to be
in effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date times a fraction, the
numerator of which shall be the then current per share market price of the
Preferred Shares on such record date, less the fair market value (as determined
in good faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent) of the portion of
the assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one Preferred Share and the
denominator of which shall be such current per share market price of the
Preferred Shares; provided, however, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate par value of
the shares of the Company to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the Purchase Price shall
again be adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
14
(d)(i) For the purpose of any computation hereunder, other
than computations made pursuant to Section 11(a)(iii) hereof, the "current per
share market price" of any security (a "Security" for the purpose of this
Section 11(d)(i)) on any date shall be deemed to be the average of the daily
closing prices per share of such Security for the 30 consecutive Trading Days
(as such term is hereinafter defined) immediately prior to such date, and for
purposes of computations made pursuant to Section 11(a)(iii) hereof, the
"current per share market price" of a Security on any date shall be deemed to be
the average of the daily closing prices per share of such Security for the 10
consecutive Trading Days immediately following such date; provided, however,
that in the event that the current per share market price of the Security is
determined during a period following the announcement by the issuer of such
Security of (A) a dividend or distribution on such Security payable in shares of
such Security or securities convertible into shares of such Security (other than
the Rights), or (B) any subdivision, combination or reclassification of such
Security, and the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, shall not
have occurred prior to the commencement of the requisite 30 Trading Day or 10
Trading Day period, as set forth above, then, and in each such case, the
"current per share market price" shall be appropriately adjusted to reflect the
current market price per share equivalent of such Security. The closing price
for each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Security is not listed or
admitted to trading on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Security is listed or
admitted to trading or, if the Security is not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if on any
such date the Security is not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Security selected by the Board of Directors of the
Company. The term "Trading Day" shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted to trading is
open for the transaction of business or, if the Security is not listed or
admitted to trading on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be determined in
accordance with the method set forth in Section 11(d)(i) hereof. If the
Preferred Shares are not publicly traded, the "current per share market price"
of the Preferred Shares shall be conclusively deemed to be the current per share
market price of the Ordinary Shares, as determined pursuant to Section 11(d)(i)
hereof (appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof), multiplied times 100. If
neither the Ordinary Shares nor the Preferred Shares are publicly held or so
listed or traded, "current per share market price" shall mean the fair value per
share as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent.
(e) Except as hereinafter provided, no adjustment in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least one percent
15
in the Purchase Price; provided, however, that any adjustments which by reason
of this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest one one-millionth
of a Preferred Share or one ten-thousandth of any other share or security, as
the case may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three years from the date of the transaction which requires such
adjustment and (ii) the date of the expiration of the right to exercise any
Rights.
(f) If as a result of an adjustment made pursuant to Section
11(a) hereof, the holder of any Right thereafter exercised shall become entitled
to receive any shares of the Company other than Preferred Shares, thereafter the
number of such other shares so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred Shares
contained in Section 11(a) through (c) hereof, inclusive, and the provisions of
Sections 7, 9, 10 and 13 hereof with respect to the Preferred Shares shall apply
on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
Preferred Share purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i) hereof, upon each adjustment of the Purchase Price as
a result of the calculations made in Sections 11(b) and (c) hereof, each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a Preferred Share (calculated to the nearest one
one-millionth of a Preferred Share) obtained by (i) multiplying (x) the number
of one one-hundredths of a share covered by a Right immediately prior to this
adjustment times (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price, and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in substitution
for any adjustment in the number of one one-hundredths of a Preferred Share
purchasable upon the exercise of a Right. Each of the Rights outstanding after
such adjustment of the number of Rights shall be exercisable for the number of
one one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may be the date
on which the Purchase Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days later than the date of
the public announcement. If Right Certificates have been
16
issued, upon each adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the option of
the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Right Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner provided for herein
and shall be registered in the names of the holders of record of Right
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a Preferred Share issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter issued
may continue to express the Purchase Price and the number of one one-hundredths
of a Preferred Share which were expressed in the initial Right Certificates
issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-hundredth of the then par value, if
any, of the Preferred Shares issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date of
the Preferred Shares and other shares or securities of the Company, if any,
issuable upon such exercise over and above the Preferred Shares and other shares
or securities of the Company, if any, issuable upon such exercise on the basis
of the Purchase Price in effect prior to such adjustment; provided, however,
that the Company shall deliver to such holder a due ββββ or other appropriate
instrument evidencing such holder's right to receive such additional shares or
securities upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that it in its sole discretion shall determine
to be advisable in order that any (i) consolidation or subdivision of the
Preferred Shares, (ii) issuance wholly for cash of any Preferred Shares at less
than the current market price, (iii) issuance wholly for cash of Preferred
Shares or securities which by their terms are convertible into or exchangeable
for Preferred Shares, (iv) dividends on Preferred Shares payable in Preferred
Shares, or (v) issuance of rights, options or warrants referred to hereinabove
in Section 11(b), hereafter made by the Company to holders of its Preferred
Shares, shall not be taxable to such holders.
(n) Anything in this Agreement to the contrary
notwithstanding, in the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Company shall (i) declare or pay any
dividend on the Ordinary Shares payable in Ordinary Shares or (ii)
17
effect a subdivision, combination or consolidation of the Ordinary Shares (by
reclassification or otherwise than by payment of dividends in Ordinary Shares)
into a greater or lesser number of Ordinary Shares, then in any such case (A)
the number of one one-hundredths of a Preferred Share purchasable after such
event upon proper exercise of each Right shall be determined by multiplying the
number of one one-hundredths of a Preferred Share so purchasable immediately
prior to such event times a fraction, the numerator of which is the number of
Ordinary Shares outstanding immediately before such event and the denominator of
which is the number of Ordinary Shares outstanding immediately after such event,
and (B) each Ordinary Share outstanding immediately after such event shall have
issued with respect to it that number of Rights which each Ordinary Share
outstanding immediately prior to such event had issued with respect to it. The
adjustments provided for in this Section 11(n) shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination
or consolidation is effected.
SECTION 12. CERTIFICATE OF ADJUSTMENT. Whenever an adjustment
is made as provided in Section 11 or 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief statement of the
facts accounting for such adjustment, (b) promptly file with the Rights Agent
and with each transfer agent for the Ordinary Shares or the Preferred Shares a
copy of such certificate and (c) mail a brief summary thereof to each holder of
a Right Certificate (or, prior to the Distribution Date, of the Ordinary Shares)
in accordance with Section 26 hereof. The Rights Agent shall be fully protected
in relying on any such certificate and on any adjustment therein contained and
shall not be obligated or responsible for calculating any adjustment nor shall
it be deemed to have knowledge of such adjustments unless and until it shall
have received such certificate.
SECTION 13. CONSOLIDATION, AMALGAMATION, MERGER OR SALE OR
TRANSFER OF ASSETS OR EARNING POWER.
(a) In the event, directly or indirectly, at any time after a
Person has become an Acquiring Person, (i) the Company shall consolidate with,
or merge or amalgamate with and into, any other Person, (ii) any Person shall
consolidate with the Company, or merge or amalgamate with and into the Company
and the Company shall be the continuing or "surviving" corporation of such
merger or amalgamation and, in connection with such merger or amalgamation, all
or part of the Ordinary Shares shall be changed into or exchanged for shares or
other securities of any other Person (or the Company) or cash or any other
property, or (iii) the Company shall sell or otherwise transfer (or one or more
of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50 percent or more of the
assets or earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person other than the Company or one or more of its wholly- owned
Subsidiaries (any such event described in clauses (i), (ii) or (iii) being
referred to herein as a "Flip-Over Event"), then, and in each such case, proper
provision shall be made so that (A) each holder of a Right (except as otherwise
provided herein) shall thereafter have the right to receive, upon the exercise
thereof at a price equal to the then current Purchase Price multiplied times the
number of one one-hundredths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu of
Preferred Shares, such number of validly authorized and issued, fully paid,
nonassessable and freely tradable Ordinary Shares of the Principal Party (as
such term is hereinafter defined), free and clear of liens, encumbrances or
other adverse claims, as shall equal the result obtained by (1) multiplying the
then current Purchase Price times the
18
number of one one-hundredths of a Preferred Share for which a Right is
exercisable immediately prior to the first occurrence of a Flip-Over Event (or,
if a Flip-In Event has occurred prior to the first occurrence of a Flip-Over
Event, multiplying the number of such one one-hundredths of a share for which a
Right was exercisable immediately prior to the first occurrence of a Flip-In
Event times the Purchase Price in effect immediately prior to such first
occurrence), and dividing that product (which, following the first occurrence of
a Flip-Over Event, shall be referred to as the "Purchase Price" for each Right
and for all purposes of this Agreement) by (2) 50 percent of the then current
per share market price of the Ordinary Shares of such Principal Party
(determined pursuant to Section 11(d) hereof) on the date of consummation of
such consolidation, amalgamation, merger, sale or transfer; (B) such Principal
Party shall thereafter be liable for, and shall assume, by virtue of such
consolidation, amalgamation, merger, sale or transfer, all the obligations and
duties of the Company pursuant to this Agreement; (C) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Flip-Over Event; (D) such
Principal Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Ordinary Shares in accordance with
Section 9 hereof) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to the Ordinary Shares thereafter deliverable
upon the exercise of the Rights; and (E) the provisions of Section 11(a)(ii)
hereof shall be of no effect following the first occurrence of any Flip-Over
Event. The Company shall not consummate any such consolidation, amalgamation,
merger, sale or transfer unless prior thereto the Company and such Principal
Party shall have executed and delivered to the Rights Agent a supplemental
agreement so providing. The Company shall not enter into any transaction of the
kind referred to in this Section 13 if at the time of such transaction there are
any rights, warrants, instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be afforded by the
Rights. The provisions of this Section 13 shall similarly apply to successive
consolidations, amalgamations or mergers or sales or other transfers.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause (i) or
(ii) of the first sentence of Section 13(a) hereof, the Person that is the
issuer of any securities into which Ordinary Shares of the Company are converted
in such transaction, or if there is more than one issuer, the issuer of Ordinary
Shares with the greatest aggregate market value, and if no securities are so
issued, the Person that is the other party to such transaction, or if there is
more than one such Person, the Person having Ordinary Shares with the greatest
aggregate market value; and
(ii) in the case of any transaction described in clause (iii)
of the first sentence of Section 13(a) hereof, the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Ordinary Shares of such
Person are not at such time and have not been continuously over the preceding
twelve-month period registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of any Person the Ordinary Shares of
which are and have been so registered, "Principal Party" shall
19
refer to such other Person; and (2) in case such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Ordinary Shares of two or
more of which are and have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Ordinary Shares having the
greatest aggregate market value.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company may, but shall not be required to, issue
fractions of Rights or distribute Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, the Company may pay to the registered
holders of the Right Certificates with regard to which such fractional Rights
would otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price for any day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Rights are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to trading on the
principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Rights selected by the Board of Directors of the Company. If on any such
date no such market maker is making a market in the Rights, the fair value of
the Rights on such date as determined in good faith by the Board of Directors of
the Company shall be used.
(b) The Company may, but shall not be required to, issue
fractions of Preferred Shares upon exercise of the Rights or distribute
certificates which evidence fractional Preferred Shares. In lieu of fractional
Preferred Shares, the Company may elect to (i) utilize a depositary arrangement
as provided by the terms of the Preferred Shares or (ii) in the case of a
fraction of a Preferred Share (other than one one-hundredth of a Preferred Share
or any integral multiple thereof), pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of a whole
Preferred Share, if any are outstanding and publicly traded (or the Formula
Number (as such term is defined in Section 2 of the Resolutions) then in effect
times the current market value of a whole Ordinary Share if the Preferred Shares
are not outstanding and publicly traded). For purposes of this Section 14(b),
the current market value of a Preferred Share (or Ordinary Share) shall be the
closing price of a Preferred Share (or Ordinary Share) (as determined pursuant
to the second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of such exercise. If, as a result of an adjustment
made pursuant to Section 11 hereof, the holder of any Right thereafter exercised
shall become entitled to receive any securities other than Preferred Shares, the
provisions of this Section 14(b) shall apply, as nearly as reasonably may be, on
like terms to such other securities.
20
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise or exchange of a Right except as provided in this Section
14.
SECTION 15. RIGHTS OF ACTION. All rights of action in respect
of this Agreement, excepting the rights of action given to the Rights Agent
under Section 18 hereof, are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered holders
of the Ordinary Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Ordinary Shares), without the consent of
the Rights Agent or of the holder of any other Right Certificate (or, prior to
the Distribution Date, of the Ordinary Shares), may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific performance of
the obligations hereunder, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a
Right, by accepting the same, consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Ordinary Shares;
(b) after the Distribution Date, the Right Certificates will
be transferable, subject to Section 7(e) hereof, only on the registry books of
the Rights Agent if surrendered at the principal office of the Rights Agent,
duly endorsed or accompanied by a proper instrument of transfer;
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the Distribution Date,
the associated Ordinary Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificate or the associated Ordinary Shares
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any liability to
any holder of a Right or other person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative agency
or commission or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligations; provided, however, the Company must use
reasonable efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as reasonably practicable.
21
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A MEMBER. No
holder, as such, of any Right Certificate shall be entitled to vote or receive
dividends or be deemed, for any purpose, the holder of the Preferred Shares or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a Member of the Company, including,
without limitation, any right to vote for the election of directors or upon any
other matter submitted to Members at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting Members (except as provided in Section 25 hereof), or to
receive dividends or other distributions or subscription rights, or otherwise,
until the Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability or expense incurred without gross negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or omitted
by the Rights Agent in connection with the acceptance and administration of this
Agreement, including the cost and expense of defending against any claim of
liability in the premises and reasonable cost of counsel fees and expenses. The
indemnity provided herein shall survive the expiration of the Rights and the
termination of this Agreement.
(b) The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in reliance upon any Right
Certificate or certificate for the Preferred Shares or Ordinary Shares or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons, or otherwise upon the advice of counsel as set
forth in Section 20 hereof.
(c) Notwithstanding anything in this Agreement to the
contrary, in no event shall the Rights Agent be liable for special, indirect or
consequential loss or damage (including, but not limited to, lost profits), even
if the Rights Agent has been advised of the likelihood of such loss or damage
and regardless of the form of action.
SECTION 19. MERGER, AMALGAMATION OR CONSOLIDATION OR CHANGE OF
NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or amalgamated or with which it may be
consolidated, or any corporation resulting from any merger, amalgamation or
consolidation to which the Rights Agent or any
22
successor Rights Agent shall be a party, or any corporation succeeding to the
stock transfer or corporate trust powers of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case, at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right Certificates either
in its prior name or in its changed name; and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Right Certificates (or, prior to the Distribution Date, of the Ordinary Shares),
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President, the Treasurer or the
Secretary of the Company and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any action taken or suffered
in good faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the Company
and any other Person only for its own gross negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its
23
countersignature thereof) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right Certificate;
nor shall it be responsible for any change in the exercisability of the Rights
(including the Rights becoming null and void and nontransferable pursuant to
Section 7(e) hereof) or any adjustment in the terms of the Rights (including the
manner, method or amount thereof) provided for in Section 3, 11, 13, 23 or 24
hereof, or the ascertaining of the existence of facts that would require any
such change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after actual notice that such change or
adjustment is required); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Preferred Shares or Ordinary Shares to be issued pursuant to this Agreement or
any Right Certificate or as to whether any Preferred Shares or Ordinary Shares
will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Secretary or the Treasurer of the Company,
and to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered by it in
good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions. Any application by the Rights
Agent for written instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or omitted by the
Rights Agent under this Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The Rights Agent shall not
be liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or after the date
specified in such application (which date shall not be less than five Business
Days after the date any of the officers of the Company specified above in this
subsection (g) actually receives such application, unless any such officer shall
have consented in writing to an earlier date), unless, prior to taking any such
action (or the effective date in the case of an omission), the Rights Agent
shall have received written instructions in response to such application
specifying the action to be taken or omitted.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing in this Agreement shall preclude the Rights Agent
from acting in any other capacity for the Company or for any other legal entity.
24
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
(j) The Company agrees to indemnify and to hold the Rights
Agent harmless against any loss, liability or expense (including reasonable fees
and expenses of counsel) that the Rights Agent may incur resulting from its
actions as Rights Agent pursuant to this Agreement; provided, however, that the
Rights Agent shall not be indemnified or held harmless with respect to any such
loss, liability, damage or expense incurred by the Rights Agent as a result of,
or arising out of, its own gross negligence, bad faith or willful misconduct. In
no case shall the Company be liable with respect to any action, proceeding, suit
or claim against the Rights Agent unless the Rights Agent shall have notified
the Company, by letter or by facsimile confirmed by letter, of the assertion of
any action, proceeding, suit or claim against the Rights Agent, promptly after
the Rights Agent shall have notice of any such assertion of an action,
proceeding, suit or claim or have been served with the summons or other first
legal process giving information as to the nature and basis of the action,
proceeding, suit or claim. The Company shall be entitled to participate at its
own expense in the defense of any such action, proceeding, suit or claim, and,
if the Company so elects, the Company shall assume the defense of any such
action, proceeding, suit or claim. If counsel satisfactory to the Rights Agent
is not retained or counsel selected by the Company fails to adequately and
competently pursue a defense, the Rights Agent may employ separate counsel and
the fees, costs and expenses related thereto shall be payable by the Company. In
the event that the Company assumes such defense, the Company shall not
thereafter be liable for the fees and expenses of any additional counsel
retained by the Rights Agent, so long as the Company shall retain counsel
satisfactory to the Rights Agent, in the exercise of its reasonable judgment, to
defend such action, proceeding, suit or claim. The Rights Agent agrees not to
settle any litigation in connection with any action, proceeding, suit or claim
with respect to which it may seek indemnification from the Company without the
prior written consent of the Company.
(k) If, with respect to any Rights Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has either
not been completed or indicated an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise of transfer without receiving written instructions from the
Company.
(l) The Rights Agent shall have no responsibility to the
Company, any holders of Rights, any holders of Ordinary Shares or any holders of
Preferred Shares for interest or earnings on any monies held by the Rights Agent
pursuant to this Agreement.
(m) The Rights Agent shall not be required to take notice or
be deemed to have notice of any fact, event or determination (including, without
limitation, any dates or events defined in this Agreement or the designation of
any Person as an Acquiring Person, Affiliate or Associate) under this Agreement
unless and until the Rights Agent shall have been notified in writing by the
Company of such fact, event or determination.
25
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Ordinary Shares or Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates (or, prior to the
Distribution Date, of the Ordinary Shares) by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Ordinary Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates (or,
prior to the Distribution Date, of the Ordinary Shares) by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise become incapable
of acting, the Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of 30 days after
giving notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (or, prior to the Distribution Date, of the
Ordinary Shares) (who shall, with such notice, submit his Right Certificate or,
prior to the Distribution Date, the certificate representing his Ordinary
Shares, for inspection by the Company), then the registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Ordinary Shares) may
apply to any court of competent jurisdiction for the appointment of a new Rights
Agent. Any successor Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business under the laws of the
United States or of the State of New York (or of any other state of the United
States so long as such corporation is authorized to conduct a stock transfer or
corporate trust business in the State of New York), in good standing, having an
office or agency in the State of New York, which is authorized under such laws
to exercise stock transfer or corporate trust powers and is subject to
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least US$50 million; provided that the principal transfer agent for the Ordinary
Shares shall in any event be qualified to be the Rights Agent. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed and the duties and obligations of the
predecessor Rights Agent shall cease and terminate; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Ordinary Shares
or Preferred Shares, and mail a notice thereof in writing to the registered
holders of the Right Certificates (or, prior to the Distribution Date, of the
Ordinary Shares). Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES AND ADDITIONAL
RIGHTS. Notwithstanding any of the provisions of this Agreement or of the Rights
to the contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of Ordinary
Shares following the Distribution Date and prior to the earlier of the
Redemption Date and the Final Expiration Date, the Company (i) shall, with
respect to Ordinary Shares so issued
26
or sold pursuant to the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of securities, notes
or debentures issued by the Company, and (ii) may, in any other case, if deemed
necessary or appropriate by the Board of Directors of the Company, issue Right
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that no such Right Certificate shall
be issued if, and to the extent that, the Company shall be advised by counsel
that such issuance would create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Right Certificate would
be issued, and no such Right Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
SECTION 23. REDEMPTION.
(a) The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (i) the close of business on the tenth day
following the Shares Acquisition Date (or, if the Shares Acquisition Date shall
have occurred prior to the Record Date, the close of business on the tenth day
following the Record Date) and (ii) the Final Expiration Date, redeem all but
not less than all the then outstanding Rights at a redemption price of US$.01
per Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). The redemption of the Rights
by the Board of Directors of the Company may be made effective at such time, on
such basis and with such conditions as the Board of Directors of the Company in
its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to paragraph (a) of
this Section 23, and without any further action and without any notice, the
right to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. Within 10 Business
Days after the action of the Board of Directors of the Company ordering the
redemption of the Rights, the Company shall give notice of such redemption to
the holders of the then outstanding Rights by mailing such notice to all such
holders at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Ordinary Shares. Each such notice of redemption will
state the method by which payment of the Redemption Price will be made. The
notice, if mailed in the manner herein provided, shall be conclusively presumed
to have been duly given, whether or not the holder of Rights receives such
notice. In any case, failure to give such notice by mail, or any defect in the
notice, to any particular holder of Rights shall not affect the sufficiency of
notice to other holders of Rights. Neither the Company nor any of its Affiliates
or Associates may redeem, acquire or purchase for value any Rights at any time
in any manner other than that specifically set forth in this Section 23 or in
Section 24 hereof, and other than in connection with the purchase of Ordinary
Shares prior to the Distribution Date.
SECTION 24. EXCHANGE.
(a) The Board of Directors of the Company may, at its option,
at any time after any Person becomes an Acquiring Person, mandatorily exchange
all or part of the then outstanding and exercisable Rights (which shall not
include Rights that shall have become null and void and nontransferable pursuant
to the provisions of Section 7(e) hereof) for Ordinary
27
Shares at an exchange ratio of one Ordinary Share per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred
to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors of the Company shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or any such Subsidiary, or any entity
holding Ordinary Shares of the Company for or pursuant to the terms of any such
plan), together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50 percent or more of the Ordinary Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to paragraph (a) of
this Section 24, and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of Ordinary Shares equal
to the number of such Rights held by such holder multiplied times the Exchange
Ratio. The Company shall promptly give public notice of any such exchange;
provided, however, that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. The Company promptly shall mail a
notice of any such exchange to all the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the Ordinary Shares for Rights will be effected
and, in the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the number
of Rights (other than Rights which have become null and void and nontransferable
pursuant to the provisions of Section 7(e) hereof) held by each holder of
Rights.
(c) In any exchange pursuant to this Section 24, the Company,
at its option, may substitute Preferred Shares (or equivalent preferred shares
of the Company) for Ordinary Shares exchangeable for Rights, at the initial rate
of one one-hundredth of a Preferred Share (or equivalent preferred share) for
each Ordinary Share, as appropriately adjusted to reflect adjustments in the
voting rights of the Preferred Shares pursuant to the terms thereof, so that the
fraction of a Preferred Share delivered in lieu of each Ordinary Share shall
have the same voting rights as one Ordinary Share.
(d) In the event that the number of Ordinary Shares or
Preferred Shares which are authorized but unissued are not sufficient to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Company may, at its option, take all such action as may be necessary to
authorize additional Ordinary Shares or Preferred Shares.
(e) The Company may, but shall not be required to, issue
fractions of Ordinary Shares upon exchange of Rights pursuant to this Section 24
or distribute certificates which evidence fractional Ordinary Shares. In lieu of
such fractional Ordinary Shares, the Company may pay to the registered holders
of the Right Certificates with regard to which such fractional Ordinary Shares
would otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole Ordinary Share for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24. For purposes of this
paragraph (e), the
28
current market value of a whole Ordinary Share shall be the closing price of an
Ordinary Share (as determined pursuant to the second sentence of Section
11(d)(i) hereof).
SECTION 25. NOTICE OF CERTAIN EVENTS.
(a) In case the Company shall propose (i) to pay any dividend
payable in shares of any class to the holders of its Preferred Shares or to make
any other distribution to the holders of its Preferred Shares (other than a
regular quarterly cash dividend), (ii) to offer to the holders of its Preferred
Shares rights or warrants to subscribe for or to purchase any additional
Preferred Shares or shares of any class or any other securities, rights or
options, (iii) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of outstanding Preferred
Shares), (iv) to effect any consolidation, amalgamation or merger into or with,
or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more transactions,
of 50 percent or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or (vi) to declare or pay
any dividend on the Ordinary Shares payable in Ordinary Shares or to effect a
subdivision, combination or consolidation of the Ordinary Shares (by
reclassification or otherwise than by payment of dividends in Ordinary Shares),
then, in each such case, the Company shall give to each holder of a Right
Certificate (or, prior to the Distribution Date, of the Ordinary Shares), in
accordance with Section 26 hereof, a notice of such proposed action, which shall
specify the record date for the purposes of such share dividend or distribution
of rights or warrants, or the date on which such reclassification,
consolidation, amalgamation, merger, sale, transfer, liquidation, dissolution,
or winding up is to take place and the date of participation therein by the
holders of the Ordinary Shares and/or Preferred Shares, if any such date is to
be fixed, and such notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 10 days prior to the record date for
determining holders of the Preferred Shares for purposes of such action, and in
the case of any such other action, at least 10 days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Ordinary Shares and/or Preferred Shares, whichever shall be the
earlier.
(b) In case a Flip-In Event shall occur, then the Company
shall as soon as practicable thereafter give to each holder of a Right
Certificate (or, prior to the Distribution Date, of Ordinary Shares), in
accordance with Section 26 hereof, a notice of the occurrence of such event,
which notice shall describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) hereof.
SECTION 26. NOTICES. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made upon
receipt if sent by registered or certified mail, postage prepaid, return receipt
required, addressed (until another address is filed in writing with the Rights
Agent) as follows:
Noble Corporation
βββββ βββββ βββββ βββββββ, βββββ βββ
βββββ ββββ, βββββ βββββ
Attention: Corporate Secretary
29
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the Company or by the
holder of any Right Certificate to or on the Rights Agent shall be sufficiently
given or made upon receipt if sent by registered or certified mail, postage
prepaid, return receipt required, addressed (until another address is filed in
writing with the Company) as follows:
UMB Bank, N.A., as Rights Agent
Attention: Corporate Trust Division
ββββ βββββ ββββ, βββββ βββ
ββββββ ββββ, ββββββββ βββββ
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any Right Certificate
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown on the
registry books of the Company.
SECTION 27. SUPPLEMENTS AND AMENDMENTS. At any time prior to
the Distribution Date and subject to the last sentence of this Section 27, the
Company may by action of its Board of Directors, and the Rights Agent shall if
the Company so directs, supplement or amend any provision of this Agreement
(including, without limitation, the date upon which the Distribution Date shall
occur, the time during which the Rights may be redeemed pursuant to Section 23
or any provision of the Resolutions) in any manner without the approval of any
holder of the Rights. From and after the Distribution Date and subject to
applicable law, the Company may by action of its Board of Directors, and the
Rights Agent shall if the Company so directs, from time to time supplement or
amend this Agreement without the approval of any holders of Right Certificates
in order (i) to cure any ambiguity or to correct or supplement any provision
contained in this Agreement which may be defective or inconsistent with any
other provision of this Agreement or (ii) to make any other provisions in regard
to matters or questions arising hereunder which the Company may deem necessary
or desirable and which shall not adversely affect the interests of the holders
of the Rights or Right Certificates (other than an Acquiring Person or any
Affiliate or Associate of an Acquiring Person). Any supplement or amendment
adopted during any period after any Person has become an Acquiring Person but
prior to the Distribution Date shall be null and void unless such supplement or
amendment could have been adopted under the prior sentence from and after the
Distribution Date. Without limiting the foregoing, the Company may at any time
prior to the Distribution Date amend this Agreement to lower the thresholds set
forth in the definition of Acquiring Person in Section 1 hereof and in Section
3(b) hereof to not less than the greater of (i) the sum of 0.001 percent and the
largest percentage of the outstanding Ordinary Shares then known by the Company
to be beneficially owned by any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or any Subsidiary of
the Company, or any entity holding Ordinary Shares of the Company for or
pursuant to the terms of any such plan) and (ii) 10 percent. Upon the delivery
of a certificate from an appropriate officer of the Company which states that
the proposed supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or amendment;
provided, however, that the Rights Agent may, but shall not be obligated to,
enter into any such supplement or amendment which affects its own rights, duties
or immunities under this Agreement. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of the Ordinary Shares of the Company. In addition,
notwithstanding anything to the contrary
30
contained in this Agreement, no supplement or amendment to this Agreement shall
be made which (i) reduces the Redemption Price (except as required hereunder by
appropriate adjustment to reflect any stock split, stock dividend or similar
transaction occurring after the date of this Agreement) or (ii) provides for an
earlier Final Expiration Date.
SECTION 28. SUCCESSORS. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 29. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, of the Ordinary Shares) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, of the
Ordinary Shares).
SECTION 30. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement 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 Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
SECTION 31. GOVERNING LAW. THIS AGREEMENT AND EACH RIGHT
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER 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.
SECTION 32. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the
same instrument.
SECTION 33. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions of
this Agreement.
31
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and year first
above written.
NOBLE CORPORATION UMB BANK, N.A., as Rights Agent
By: /s/ ββββββ β. ββββββββ By: /s/ βββββ β. ββββββββ
---------------------------- -------------------------------
Name: ββββββ β. ββββββββ Name: βββββ β. ββββββββ
-------------------------- -----------------------------
Title: President Title: Senior Vice President
------------------------- ----------------------------
Attest: Attest:
By: /s/ βββββ β. βββββββββ By: /s/ βββββββ β. ββββββ
---------------------------- -------------------------------
Name: βββββ β. βββββββββ Name: βββββββ β. ββββββ
-------------------------- -----------------------------
Title: Senior Vice President- Title: Assistant Secretary
------------------------- ----------------------------
Administration and
-------------------------
Secretary
-------------------------
32
EXHIBIT A
Ex. A-1
RESOLUTIONS OF THE BOARD OF DIRECTORS
OF
NOBLE CORPORATION
ESTABLISHING
THE
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
OF
NOBLE CORPORATION
----------
PURSUANT TO ARTICLE 7 OF THE
ARTICLES OF ASSOCIATION
OF
NOBLE CORPORATION
----------
RESOLVED, that, pursuant to the authority vested in the Board
of Directors of Noble Corporation (the "Company") in accordance with the
provisions of the Articles of Association of the Company, a series of Preferred
Shares, par value US$1.00 per share, of the Company is hereby established and
created, and that the designation and number of shares thereof and the voting
and other powers, preferences and relative, participating, optional and other
special rights of the shares of such series, and the qualifications, limitations
and restrictions thereof, are as follows:
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Shares" (the
"Series A Preferred Shares"). The number of shares initially constituting the
Series A Preferred Shares shall be 1,500,000; provided, however, that if more
than a total of 1,500,000 shares of Series A Preferred Shares shall be issuable
upon the exercise of Rights (the "Rights") issued pursuant to the
Rights
Agreement dated as of March 13, 2002 between the Company and UMB Bank, N.A., as
Rights Agent (the "Rights Agreement"), the Board of Directors of the Company
shall by resolution or resolutions increase the total number of Series A
Preferred Shares authorized to be issued (to the extent that the Memorandum of
Association and Articles of Association of the Company and applicable law
permit) to the largest number of whole shares (rounded up to the nearest whole
share) issuable upon exercise of the Rights.
Section 2. Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of
shares of any other series of Preferred Shares or other class of shares of the
Company ranking prior and superior to the Series A Preferred Shares with respect
to dividends, the holders of Series A Preferred Shares shall be entitled to
receive, when, as and if declared by the Board of Directors, out of the assets
of the Company legally available therefor, (i) quarterly dividends payable in
cash on the last day of each fiscal quarter in each year, or such other dates as
the Board of Directors of the Company shall approve (each such date being
referred to herein as a "Quarterly
Ex. A-2
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or a fraction of a share of the Series A
Preferred Shares, in the amount of US$.01 per whole share (rounded to the
nearest cent) less the amount of all cash dividends declared on the Series A
Preferred Shares pursuant to the following clause (ii) since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Shares (the total of which shall not,
in any event, be less than zero) and (ii) dividends payable in cash on the
payment date for each cash dividend declared on the Ordinary Shares in an amount
per whole share (rounded to the nearest cent) equal to the Formula Number (as
hereinafter defined) then in effect multiplied times the cash dividends then to
be paid on each share of Ordinary Shares. In addition, if the Company shall pay
any dividend or make any distribution on the Ordinary Shares payable in assets,
securities or other forms of noncash consideration (other than dividends or
distributions solely in Ordinary Shares), then, in each such case, the Company
shall simultaneously pay or make on each outstanding whole share of Series A
Preferred Shares a dividend or distribution in like kind equal to the Formula
Number then in effect multiplied times such dividend or distribution on each
Ordinary Share. As used herein, the "Formula Number" shall be 100; provided,
however, that, if at any time after the date of the Rights Agreement, the
Company shall (x) declare or pay any dividend on the Ordinary Shares payable in
Ordinary Shares or make any distribution on the Ordinary Shares in Ordinary
Shares, (y) subdivide (by a stock split or otherwise) the outstanding Ordinary
Shares into a larger number of Ordinary Shares or (z) combine (by a reverse
stock split or otherwise) the outstanding Ordinary Shares into a smaller number
of Ordinary Shares, then in each such event the Formula Number shall be adjusted
to a number determined by multiplying the Formula Number in effect immediately
prior to such event by a fraction, the numerator of which is the number of
Ordinary Shares that are outstanding immediately after such event and the
denominator of which is the number of Ordinary Shares that are outstanding
immediately prior to such event (and rounding the result to the nearest whole
number); and provided further, that, if at any time after the date of the Rights
Agreement, the Company shall issue any of its shares in a merger, amalgamation,
reclassification, or change of the outstanding Ordinary Shares, then in each
such event the Formula Number shall be appropriately adjusted to reflect such
merger, amalgamation, reclassification or change so that each Series A Preferred
Share continues to be the economic equivalent of a Formula Number of Ordinary
Shares prior to such merger, amalgamation, reclassification or change.
(b) The Company shall declare a dividend or distribution on
the Series A Preferred Shares as provided in paragraph (a) of this Section
immediately prior to or at the same time it declares a dividend or distribution
on the Ordinary Shares (other than a dividend or distribution solely in Ordinary
Shares); provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution solely in Ordinary Shares) shall have
been declared on the Ordinary Shares during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of US$.01 per share on the Series A Preferred Shares shall nevertheless
be payable on such subsequent Quarterly Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders of Series A
Preferred Shares entitled to receive a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
Ex. A-3
(c) Dividends shall begin to accrue and be cumulative on
outstanding Series A Preferred Shares from and after the Quarterly Dividend
Payment Date next preceding the date of original issue of such Series A
Preferred Shares; provided, however, that dividends on such shares which are
originally issued after the record date for the determination of holders of
Series A Preferred Shares entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall begin to
accrue and be cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on Series A Preferred Shares which are
originally issued prior to the record date for the determination of holders of
Series A Preferred Shares entitled to receive a quarterly dividend on the first
Quarterly Dividend Payment Date shall be calculated as if cumulative from and
after the last day of the fiscal quarter next preceding the date of original
issuance of such shares. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the Series A Preferred Shares in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding.
(d) So long as any Series A Preferred Shares are outstanding,
no dividends or other distributions shall be declared, paid or distributed, or
set aside for payment or distribution, on the Ordinary Shares unless, in each
case, the dividend required by this Section 2 to be declared on the Series A
Preferred Shares shall have been declared.
(e) The holders of the Series A Preferred Shares shall not be
entitled to receive any dividends or other distributions except as provided
herein.
Section 3. Voting Rights. The holders of Series A Preferred
Shares shall have the following voting rights:
(a) Each holder of Series A Preferred Shares shall be entitled
to a number of votes equal to the Formula Number then in effect, for each share
of Series A Preferred Shares held of record on each matter on which holders of
the Ordinary Shares or Members of the Company generally are entitled to vote,
multiplied times the maximum number of votes per share which any holder of
Ordinary Shares or Members of the Company generally then have with respect to
such matter (assuming any holding period or other requirement to vote a greater
number of shares is satisfied).
(b) Except as otherwise provided herein or by applicable law,
the holders of Series A Preferred Shares and the holders of Ordinary Shares
shall vote together as one class for the election of directors of the Company
and on all other matters submitted to a vote of Members of the Company.
(c) If, at the time of any annual general meeting of Members
of the Company for the election of directors, the equivalent of six quarterly
dividends (whether or not consecutive) payable on any share or shares of Series
A Preferred Shares are in default, the number of directors constituting the
Board of Directors of the Company shall be increased by two. In addition to
voting together with the holders of Ordinary Shares for the election of other
directors of the Company, the holders of record of the Series A Preferred
Shares, voting separately as a class to the exclusion of the holders of Ordinary
Shares, shall be entitled at said meeting of Members of the Company (and at any
subsequent annual general meeting of Members), unless all dividends in arrears
have been paid or declared and set apart for payment
Ex. A-4
prior thereto, to vote for the election of two directors of the Company, the
holders of any Series A Preferred Shares being entitled to cast a number of
votes per share of Series A Preferred Shares equal to the Formula Number. Until
the default in payments of all dividends which permitted the election of said
directors shall cease to exist, any director who shall have been so elected
pursuant to the next preceding sentence may be removed at any time, either with
or without cause, only by the affirmative vote of the holders of the Series A
Preferred Shares at the time entitled to cast a majority of the votes entitled
to be cast for the election of any such director at an extraordinary general
meeting of such holders called for that purpose, and any vacancy thereby created
may be filled by the vote of such holders. If and when such default shall cease
to exist, the holders of the Series A Preferred Shares shall be divested of the
foregoing special voting rights, subject to revesting in the event of each and
every subsequent like default in payments of dividends. Upon the termination of
the foregoing special voting rights, the terms of office of all persons who have
been elected directors pursuant to said special voting rights shall forthwith
terminate, and the number of directors constituting the Board of Directors shall
be reduced by two. The voting rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the holders of the Series A
Preferred Shares in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable
law, holders of Series A Preferred Shares shall have no special voting rights
and their consent shall not be required (except to the extent they are entitled
to vote with holders of Ordinary Shares as set forth herein) for authorizing or
taking any corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Shares as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on Series A Preferred Shares outstanding
shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A
Preferred Shares;
(ii) declare or pay dividends, or make any other
distributions, on any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Shares, except dividends paid ratably on the
Series A Preferred Shares and all such parity shares on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Shares; provided that the Company may, at any
time, to the extent permitted under applicable law, redeem,
purchase or otherwise acquire shares of any such parity shares in
exchange for any shares of the Company ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Shares; or
Ex. A-5
(iv) purchase or otherwise acquire for consideration
any Series A Preferred Shares, or any shares ranking on a parity
with the Series A Preferred Shares, except in accordance with a
purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the
respective series or classes.
(b) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of the Company
unless the Company could, under paragraph (a) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any Series A Preferred Shares
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued Preferred Shares,
without designation as to series, and may thereafter be issued as part of a new
series of Preferred Shares subject to the conditions and restrictions on
issuance set forth herein, in the Memorandum of Association, the Articles of
Association, or in any other resolution or resolutions creating a series of
Preferred Shares or any similar shares of the Company or as otherwise required
by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, no distribution shall be made (i) to the holders of shares ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Shares unless, prior thereto, the holders of Series A
Preferred Shares shall have received an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (x) US$1.00 per whole share
and (y) an aggregate amount per share equal to the Formula Number then in effect
multiplied times the aggregate amount to be distributed per share to holders of
Ordinary Shares, or (ii) to the holders of shares ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with the Series A
Preferred Shares, except distributions made ratably on the Series A Preferred
Shares and all such parity shares in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution
or winding up.
Section 7. Consolidation, Amalgamation, Merger, etc. In case
the Company shall enter into any consolidation, amalgamation, merger,
combination or other transaction in which the Ordinary Shares are exchanged for
or changed into other shares or securities, cash or any other property, or any
combination thereof, then in any such case the then outstanding Series A
Preferred Shares shall at the same time be similarly exchanged for or changed
into an amount per share equal to the Formula Number then in effect multiplied
times the aggregate amount of shares, securities, cash or any other property
(payable in kind), as the case may be, into which or for which each Ordinary
Share is exchanged or changed. In the event both this Section 7 and Section 2
appear to apply to a transaction, this Section 7 shall control.
Ex. A-6
Section 8. No Redemption; No Sinking Fund.
(a) The Series A Preferred Shares shall not be subject to
redemption by the Company; provided, however, that the Company may purchase or
otherwise acquire outstanding Series A Preferred Shares in the open market or by
offer to any holder or holders of Series A Preferred Shares.
(b) The Series A Preferred Shares shall not be subject to or
entitled to the operation of a retirement or sinking fund.
Section 9. Ranking. The Series A Preferred Shares shall rank,
with respect to the payment of dividends and as to distributions of assets upon
liquidation, dissolution or winding up of the Company, junior to all other
series of Preferred Shares of the Company, unless the Board of Directors shall
specifically determine otherwise in fixing the powers, preferences and relative,
participating, optional and other special rights of the shares of any such other
series and the qualifications, limitations and restrictions thereof.
Section 10. Fractional Shares. The Series A Preferred Shares
shall be issuable upon exercise of the Rights issued pursuant to the Rights
Agreement in whole shares or in any fraction of a share that is one
one-hundredth of a share or any integral multiple of such fraction which shall
entitle the holder, in proportion to such holder's fractional shares, to receive
dividends, exercise voting rights, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred Shares. In lieu of
fractional shares, the Company, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Shares, may elect (i) to make a cash
payment as provided in the Rights Agreement for fractions of a share other than
one one-hundredth of a share or any integral multiple thereof or (ii) to procure
the issue of depository receipts evidencing such authorized fraction of a share
of Series A Preferred Shares pursuant to an appropriate agreement between the
Company and a depository selected by the Company; provided that such agreement
shall provide that the holders of such depository receipts shall have all the
rights, privileges and preferences to which they are entitled as holders of the
Series A Preferred Shares.
Section 11. Amendment. None of the powers, preferences or
relative, participating, optional or other special rights of the Series A
Preferred Shares as provided herein or in the Memorandum of Association or
Articles of Association of the Company shall be amended in any manner that would
alter or change the powers, preferences, rights or privileges of the holders of
Series A Preferred Shares so as to affect them adversely without the affirmative
vote of the holders of at least two-thirds of the outstanding Series A Preferred
Shares, voting as a separate class.
Ex. A-7
EXHIBIT B
[FORM OF RIGHT CERTIFICATE]
Certificate No. R-___
_____________ Rights
NOT EXERCISABLE AFTER JULY 10, 2005, OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT US$.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) AND BY ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS ARE NULL AND VOID AND NONTRANSFERABLE.
RIGHT CERTIFICATE
NOBLE CORPORATION
This certifies that __________________________ or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of March 13, 2002 (the "Rights
Agreement"), between Noble Corporation, a Cayman Islands exempted company
limited by shares (the "Company"), and UMB Bank, N.A., as Rights Agent (the
"Rights Agent"), unless the Rights evidenced hereby have been previously
redeemed by the Company, to purchase from the Company at any time after the
Distribution Date (as defined in the Rights Agreement) and prior to 5:00 P.M.,
New York City time, on July 10, 2005, (the "Final Expiration Date"), at the
principal office or agency of the Rights Agent, or its successors as Rights
Agent, in the City of New York, one one-hundredth of a fully paid, nonassessable
share of the Series A Junior Participating Preferred Shares, par value US$1.00
per share, of the Company (the "Preferred Shares"), at a purchase price per one
one-hundredth of a share equal to US$120.00 (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of Election
to Purchase duly executed.
The Purchase Price and the number and kind of shares that may
be purchased upon exercise of each Right evidenced by this Right Certificate, as
set forth above, are the Purchase Price and the number and kind of shares that
may be purchased as of [___________, 200__]. As provided in the Rights
Agreement, the Purchase Price and the number and kind of shares that may be
purchased upon the exercise of each Right evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
reference to the Rights Agreement is hereby made for a full description of the
rights, limitations of rights, obligations, duties and immunities
Ex. B-1
hereunder of the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the above-mentioned
office and agency of the Rights Agent and are also available from the Company
upon request.
If the Rights evidenced by this Right Certificate are at any
time beneficially owned by an Acquiring Person or an Associate or Affiliate of
an Acquiring Person (as such terms are defined in the Rights Agreement), such
Rights shall be null and void and nontransferable and the holder of any such
Right (including any purported transferee or subsequent holder) shall not have
any right to exercise or transfer any such Right.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal share transfer or corporate trust
office of the Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number and kind of shares as the Rights evidenced
by the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the Company at its option
at a redemption price (in cash or shares of Ordinary Shares or other securities
of the Company deemed by the Board of Directors of the Company to be at least
equivalent in value) of US$.01 per Right (which amount may be subject to
adjustment as provided in the Rights Agreement) at any time prior to the earlier
of (i) the close of business on the tenth day following the first date of public
announcement by the Company or an Acquiring Person that an Acquiring Person has
become such and (ii) the Final Expiration Date.
The Company may, but shall not be required to, issue fractions
of a Preferred Share (other than one one-hundredth of a Preferred Share or any
integral multiple thereof) or distribute certificates which evidence fractions
of a Preferred Share upon the exercise of any Right or Rights evidenced hereby.
In lieu of issuing fractional shares, the Company may elect to make a cash
payment as provided in the Rights Agreement for fractions of a share other than
one one-hundredth of a share or any integral multiple thereof or to issue
certificates or utilize a depositary arrangement as provided in the terms of the
Rights Agreement and the Preferred Shares.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed, for any purpose, the holder
of the Preferred Shares or any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a Member of the Company, including, without
limitation, any right to vote for the election of directors or upon any other
matter submitted to Members of the Company at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting Members (except as provided in the Rights Agreement), or
to receive dividends or other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right Certificate shall
have been exercised as provided in accordance with the provisions of the Rights
Agreement.
Ex. B-2
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of:
[CORPORATE SEAL]
ATTEST: NOBLE CORPORATION
By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
Countersigned:
UMB BANK, N.A.
By:
--------------------------------------
Authorized Signature
Ex. B-3
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED
--------------------------------------------------------------------------------
hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print name and address of transferee)
--------------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint__________________________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated:
--------------------------
-----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a participant in a Securities
Transfer Association recognized signature program.
Ex. B-4
[On Reverse Side of Right Certificate, cont.]
CERTIFICATION OF STATUS
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Right Certificate / / is / / is not being sold,
assigned or transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, it / / did / / did not acquire the Rights evidenced by this Right
Certificate from any person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement).
------------------------------------
Signature
Dated:
---------------------------
Ex. B-5
[On Reverse Side of Right Certificate, cont.]
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder desires to exercise
the Rights represented by the Right Certificate.)
To: NOBLE CORPORATION
The undersigned hereby irrevocably elects to
exercise____________________ Rights represented by this Right Certificate to
purchase the Preferred Shares (or other shares) issuable upon the exercise of
such Rights and requests that certificates for such shares be issued in the name
of:
Please insert social security or other identifying number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print name and address)
--------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print name and address)
Dated:
------------------------------
-------------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a participant in a Securities
Transfer Association recognized signature program.
Ex. B-6
[On Reverse Side of Right Certificate, cont.]
CERTIFICATION OF STATUS
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate / / is / / is not being sold,
assigned or transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, it / / did / / did not acquire the Rights evidenced by this Right
Certificate from any person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement).
--------------------------------------
Signature
Dated:
----------------------------
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or enlargement
or any change whatsoever.
In the event the Certification of Status set forth above in
the Form of Assignment or the Form of Election to Purchase, as the case may be,
is not completed, the Company and the Rights Agent will deem the beneficial
owner of the Rights evidenced by this Right Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as such terms are defined in the
Rights Agreement) and such Assignment or Election to Purchase will not be
honored.
Ex. B-7