EXHIBIT 4.4
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") dated as of the 21st
day of April 2003, between Harken Energy Corporation, a Delaware corporation
(the "Company"), and American Stock Transfer and Trust Company (successor to
Mellon Investor Services LLC, a New Jersey limited liability company (formerly
known as ChaseMellon Shareholder Services L.L.C.)), as Rights Agent (the "Rights
Agent").
RECITALS
1. The Company and the Rights Agent have previously entered into that
certain Rights Agreement, dated as of April 6, 1998 (the "Agreement").
2. Section 27 (Supplements and Amendments) of the Agreement provides,
in part, that, as long as the Rights are redeemable, the Agreement may be
supplemented or amended without the approval of any holders of Rights.
3. The Company desires to amend the Agreement to reduce the capital and
surplus requirement of a successor Rights Agent.
AGREEMENT
Section 1. Definitions. All capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement.
Amended Definition. Pursuant to Section 27 of the Agreement
(Supplements and Amendments), the undersigned wish to amend Section 1(k) of the
Agreement (Certain Definitions -- Exempt Person) by deleting the existing
Section 1(k) in its entirety and replacing it with a new Section 1(k) to read as
follows:
"(k) "Exempt Person" shall mean (i) the Company or any Subsidiary (as
such term is hereinafter defined) of the Company, in each case including,
without limitation, in its fiduciary capacity, or any employee benefit plan of
the Company or any Subsidiary of the Company, or any entity or trustee holding
Common Stock for or pursuant to the terms of any such plan or for the purpose of
funding any such plan or funding other employee benefits for employees of the
Company or of any Subsidiary of the Company, (ii) any Person who or which is or
becomes the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding as the result of such Person's Beneficial Ownership of either of (A)
the Company's 5% Convertible Notes due 2003, or (B) the Company's 5% Senior
Convertible Notes due 2003, or acquisition from the Company of the Company's
securities, including, but not limited to securities convertible into Common
Stock, and any shares of Common Stock issued by the Company to such Person upon
conversion, exchange or redemption thereof, in exchange for the Company's 5%
Convertible Notes due 2003 and/or 5% Senior Convertible Notes held by such
Person or both, unless and until such Person, while a Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding, shall become the Beneficial
Owner of additional shares of Common Stock
constituting 1% or more of the then outstanding shares of Common Stock other
than pursuant to such exchange, conversion or redemption, (iii) any Person who
or which is or becomes the Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding as the result of such Person's acquisition from
the Company (A) of rights to subscribe for and purchase Common Stock pursuant to
an offering of such rights which is described in the Company's registration
statement to be filed with the Securities and Exchange Commission in September
2002 (the "Rights Offering"), and any shares of Common Stock issued to such
Person upon exercise of such rights and (B) of Common Stock pursuant to the
Standby Purchase Agreement to be entered into between Xxxxxx Investments
Enterprises Ltd. and the Company (the "Standby Purchase Agreement"), unless and
until such Person, while a Beneficial Owner of 15% or more of the shares of
Common Stock then outstanding, shall become a Beneficial Owner of additional
shares of Common Stock constituting 1% or more of the then outstanding shares of
Common Stock other than pursuant to such Rights Offering or the Standby Purchase
Agreement, except that Xxxxxx Investments Enterprises shall also be an Exempt
Person as a result of its becoming the Beneficial Owner of additional shares of
Common Stock constituting 1% or more of the then outstanding shares of Common
Stock in connection with such Person's acquisition on April , 2003, of the
Company's 5% Senior Convertible Notes due May 26, 2003, or in connection with
such Person's acquisition of Common Stock upon the redemption or conversion of
such Notes into shares of Common Stock pursuant to the terms of the such Notes;
(iv) any Person who or which is or becomes the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding as the result of such Person's
Beneficial Ownership of the Company's Series G1 Convertible Preferred Stock or
Series G2 Convertible Preferred Stock, or acquisition from the Company of the
Company's securities, including, but not limited to securities convertible into
Common Stock, and any shares of Common Stock issued by the Company to such
Person upon conversion, exchange or redemption thereof, in exchange for the
Company's Series G1 Convertible Preferred Stock or Series G2 Convertible
Preferred Stock held by such Person or both, unless and until such Person, while
a Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, shall become the Beneficial Owner of additional shares of Common
Stock constituting 1% or more of the then outstanding shares of Common Stock
other than pursuant to such exchange, conversion or redemption."
Section 3. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.
Section 4. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Rights Agreement to be duly executed as of the day and year first above written.
HARKEN ENERGY CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx,
Executive Vice President-Finance and
Chief Financial Officer
AMERICAN STOCK TRANSFER AND TRUST
COMPANY, as Rights Agent
By: /s/ Xxxxxxx Xxxxxxx-Xxxxxx
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Name: Xxxxxxx Xxxxxxx-Xxxxxx
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Title: Manager Reorg - V.P.
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