EXHIBIT 10.2
SHAREHOLDER AGREEMENT
This Shareholder Agreement dated as of August 31, 2001 is between Global
Marine Inc., a corporation organized under the laws of Delaware ("Global"), and
SFIC Holdings (Cayman), Inc., a corporation incorporated under the laws of the
Cayman Islands (the "Shareholder").
WHEREAS, Santa Fe International Corporation, a company incorporated under
the laws of the Cayman Islands ("Santa Fe"), Silver Sub, Inc., a corporation
organized under the laws of Delaware and a direct wholly owned subsidiary of
Santa Fe ("Sub"), Gold Merger Sub, Inc., a corporation organized under the laws
of Delaware and a direct wholly owned subsidiary of Sub ("Merger Sub"), and
Global are entering into an Agreement and Plan of Merger dated as of the date
hereof (as amended from time to time pursuant thereto, the "Merger Agreement");
WHEREAS, the Shareholder is the registered and beneficial owner of
43,500,000 ordinary shares, par value $0.01 per share, of Santa Fe (the "Santa
Fe Ordinary Shares");
WHEREAS, as a condition to the willingness of Global to enter into the
Merger Agreement, and as an inducement to it to do so, the Shareholder has
agreed for the benefit of Global as set forth in this Agreement; and
WHEREAS, the Board of Directors of the Shareholder has approved the
Shareholder's entering into this Agreement, the form of this Agreement and the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions from Merger Agreement. Terms defined in the
Merger Agreement and used but not defined herein having the meanings assigned to
such terms in the Merger Agreement.
Section 1.02. Shareholder Shares. The term "Shareholder Shares" shall mean
(i) the Santa Fe Ordinary Shares owned by the Shareholder on the date hereof (as
described in the recitals to this Agreement), (ii) any shares of Santa Fe
acquired by the Shareholder after the date hereof, (iii) any shares or capital
stock of any person or any securities or other property that the Shareholder is
or becomes entitled to receive by reason of being a holder of any Shareholder
Shares, and (iv) any capital stock, securities or other property into which any
Shareholder Shares shall have been or shall be converted or changed, whether by
amendment to the memorandum or articles of association of Santa Fe, merger,
consolidation, reorganization, capital change or otherwise.
ARTICLE II
COVENANTS OF THE SHAREHOLDER
Section 2.01. Agreement to Vote. At any meeting of the shareholders of
Santa Fe held prior to the earliest of (i) the Effective Time of the Merger,
(ii) the termination of the Merger Agreement and (iii) the date on which the
Board of Directors of Santa Fe (without the vote of members employed by Kuwait
Petroleum Corporation) withdraws its recommendation pursuant to Section 7.4(b)
of the Merger Agreement (such earliest time being herein referred to as the
"Voting Termination Date"), however called, and at every adjournment or
postponement thereof prior to the Voting Termination Date, or in connection with
any written consent of or any other action by the shareholders of Santa Fe given
prior to the Voting Termination Date, the Shareholder shall vote or cause to be
voted the Shareholder Shares (a) in favor of the approval of the Santa Fe
Amendments and the issuance of Santa Fe Ordinary Shares pursuant to the Merger
and each of the other transactions contemplated by the Merger Agreement, and any
actions required in furtherance hereof and thereof, and (b) against any Santa Fe
Acquisition Proposal or any transaction or proposal that is inconsistent with,
or might hinder, delay, impede or frustrate, the transactions contemplated by
the Merger Agreement. The Shareholder shall not enter into any agreement or
understanding with any person prior to the Voting Termination Date, directly or
indirectly, to vote, grant any proxy or give instructions with respect to the
voting of the Shareholder Shares in any manner inconsistent with the preceding
sentence.
Section 2.02. Proxies and Voting Agreements. The Shareholder hereby
revokes any and all previous proxies granted with respect to matters set forth
in Section 2.01. Prior to the Voting Termination Date, the Shareholder shall
not, directly or indirectly, except as contemplated hereby, grant any proxies or
powers of attorney with respect to matters set forth in Section 2.01, deposit
any of the Shareholder Shares or enter into a voting agreement with respect to
any of the Shareholder Shares.
Section 2.03. No Solicitation.
(a) From and after the date hereof until the termination of the Merger
Agreement, neither the Shareholder nor any of its subsidiaries shall, and shall
not authorize or permit any of its officers, directors, employees, partners,
agents, affiliates (other than Santa Fe) or other representatives (including,
without limitation, any investment banker, attorney or accountant retained by it
or any of its subsidiaries) (collectively, the "Shareholder Representatives")
to, and on becoming aware of it will stop such person from continuing to,
directly or indirectly, solicit, initiate or encourage (including by way of
furnishing nonpublic information), or take any action designed to facilitate,
directly or indirectly, any inquiry, proposal or offer (including, without
limitation, any proposal or offer to Santa Fe shareholders) with respect to a
Santa Fe Acquisition Proposal or cooperate with or assist, participate or engage
in any discussions or negotiations concerning a Santa Fe Acquisition Proposal.
(b) The Shareholder shall immediately cease and cause to be terminated any
existing solicitation, initiation, encouragement, activity, discussion or
negotiation with any parties conducted heretofore by the Shareholder or any
Shareholder Representatives with respect to any Santa Fe Acquisition Proposal.
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(c) Prior to the termination of the Merger Agreement, the Shareholder will
as promptly as possible notify Global orally of and confirm in writing any
requests to the Shareholder for information in connection with, or the receipt
of, any Santa Fe Acquisition Proposal or any inquiry with respect to or that
could lead to a Santa Fe Acquisition Proposal directed to the Shareholder. The
Shareholder will (i) keep Global fully informed of the status and details
(including any changes or proposed changes to such status or details) on a
timely basis of any such requests, Santa Fe Acquisition Proposals or inquiries
and (ii) provide to Global as soon as practicable after receipt or delivery
thereof with copies of all correspondence and other written material sent or
provided to the Shareholder from any third party in connection with any Santa Fe
Acquisition Proposal or sent or provided by the Shareholder to any third party
in connection with any Santa Fe Acquisition Proposal. Any written notice under
this Section 2.03 may be given by facsimile with receipt confirmed or personal
delivery.
(d) Prior to the termination of the Merger Agreement, the Shareholder shall
not enter into any agreement with any person that provides for, or could
reasonably be expected to materially facilitate or is designed to facilitate, a
Santa Fe Acquisition Proposal.
(e) The provisions of this Section 2.03 do not prohibit or restrict any
Shareholder Representative who is also a Santa Fe Representative from taking
actions permitted by Section 7.3 of the Merger Agreement.
Section 2.04. Transfer of Shareholder Shares by the Shareholder. Prior to
the Voting Termination Date, the Shareholder shall not (a) subject any of the
Shareholder Shares to, or suffer to exist on any of the Shareholder Shares, any
lien, pledge, security interest, charge or other encumbrance or restriction,
other than pursuant to this Agreement, or (b) sell, transfer, assign, convey or
otherwise dispose of any interest in or title to any of the Shareholder Shares
(including any such action by operation of law), other than a disposition by
operation of law pursuant to the Merger.
Section 2.05. Other Actions. Prior to the Voting Termination Date, the
Shareholder shall not take any action that would restrict, limit, impede or
interfere with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement.
Section 2.06. Consent under Intercompany Agreement. The Shareholder hereby
consents, (i) pursuant to Section 3.1 of the Intercompany Agreement dated as of
June 9, 1997, as amended, among Santa Fe, the Shareholder and Kuwait Petroleum
Corporation, and (ii) pursuant to Article 18.8 of the Articles of Association of
Santa Fe, to the execution and delivery by Santa Fe of the Merger Agreement, the
issuance by Santa Fe of the Santa Fe Ordinary Shares contemplated by the Merger
Agreement and the performance by Santa Fe of the other transactions contemplated
by the Merger Agreement.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE SHAREHOLDER
The Shareholder represents, warrants and covenants to Global that:
Section 3.01. Ownership. The Shareholder is as of the date hereof the
beneficial and legal owner of the Shareholder Shares identified in the recitals
to this Agreement (as evidenced by the Register of Members of Santa Fe), the
Shareholder has the sole right to vote the Shareholder Shares and there are no
restrictions on rights of disposition or other lien, pledge, security interest,
charge or other encumbrance or restriction pertaining to the Shareholder Shares.
None of the Shareholder Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of the
Shareholder Shares, and no proxy, power of attorney or other authorization has
been granted with respect to any of the Shareholder Shares.
Section 3.02. Authority and Non-Contravention. The Shareholder is a
company duly formed and validly existing under the laws of the Cayman Islands.
The Shareholder has the right, power and authority, and the Shareholder has been
duly authorized by all necessary action (including consultation, approval or
other action by or with any other person), to execute, deliver and perform this
Agreement and consummate the transactions contemplated hereby. Such actions by
the Shareholder (a) require no action by or in respect of, or filing with, any
Governmental Entity with respect to the Shareholder, other than any required
filings under Section 13 of the Exchange Act, and (b) do not and will not
contravene or constitute default under any provision of applicable law or
regulation or any agreement, judgment, injunction, order, decree or other
instrument binding on the Shareholder or result in the imposition of any lien,
pledge, security interest, charge or other encumbrance or restriction on any of
the Shareholder Shares (other than as provided in this Agreement with respect to
Shareholder Shares).
Section 3.03. Binding Effect. This Agreement has been duly executed and
delivered by the Shareholder and is the valid and binding agreement of the
Shareholder, enforceable against the Shareholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
Section 3.04. Total Shares. The Shareholder Shares are the only shares of
Santa Fe owned beneficially by the Shareholder or registered in the name of the
Shareholder as of the date hereof, and the Shareholder does not have any option
to purchase or right to subscribe for or otherwise acquire any securities of
Santa Fe and has no other interest in or voting rights with respect to any other
securities of Santa Fe.
Section 3.05. Finder's Fees. No investment banker, broker or finder is
entitled to a commission or fee from Santa Fe, Global, or any other party to the
Merger Agreement in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of the Shareholder, except as otherwise provided
in the Merger Agreement.
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Section 3.06. Reasonable Efforts. Prior to the Voting Termination Date,
the Shareholder shall use reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with Global
in doing, all things necessary, proper or advisable to consummate and make
effective the Merger and the other transactions contemplated by the Merger
Agreement and this Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF GLOBAL
Global represents, warrants and covenants to the Shareholder that:
Section 4.01. Corporate Power and Authority. Global has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by Global of this
Agreement and the consummation by Global of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Global.
Section 4.02. Binding Effect. This Agreement has been duly executed and
delivered by Global and is a valid and binding agreement of Global, enforceable
against Global in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally and by equitable principles to which the remedies of
specific performance and injunctive and similar forms of relief are subject.
ARTICLE V
MISCELLANEOUS
Section 5.01. Expenses. Each party hereto shall pay its own expenses
(including, without limitation the fees, costs and disbursements of counsel and
other advisors) incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, any action at law or in equity to enforce or
interpret the terms of this Agreement.
Section 5.02. Further Assurances. From time to time, at the request of the
other party, each party shall execute and deliver or cause to be executed and
delivered such additional documents and instruments and take all such further
action as may be necessary or desirable to consummate the transactions
contemplated by this Agreement.
Section 5.03. Specific Performance. The Shareholder agrees that Global
would be irreparably damaged if for any reason the Shareholder fails to perform
any of the Shareholder's obligations under this Agreement, and that Global would
not have an adequate remedy at law for money damages in such event. Accordingly,
Global shall be entitled to seek specific performance and injunctive and other
equitable relief to enforce the performance of this Agreement by the
Shareholder. This provision is without prejudice to any other rights that Global
may have against the Shareholder for any failure to perform its obligations
under this Agreement.
Section 5.04. Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telegraphed or
telecopied or sent by
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certified or registered mail, postage prepaid, and shall be deemed to be given,
dated and received when so delivered personally, telegraphed or telecopied or,
if mailed, five business days after the date of mailing to the following address
or telecopy number, or to such other address or addresses as such person may
subsequently designate by notice given hereunder:
(a) if to Global, to:
Senior Vice President and General Counsel
Global Marine Inc.
000 X. Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
with a copy to:
J. Xxxxx Xxxxxxxx, Jr.
Xxxxx Xxxxx L.L.P.
0000 Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
(b) if to Shareholder, to:
Xxxxx X. Xxxxxx, Deputy Chairman and Chief Executive Officer
X.X. Xxx 00000
Xxxxx 00000
Xxxxxx
Telephone: 000.000.000.0000
Facsimile: 000.000.000.0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Section 5.05. Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the word "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation." Unless the context otherwise requires, "or" is disjunctive but not
necessarily exclusive, and words in the singular include the plural and in the
plural include the singular. The term "person" is to be interpreted broadly to
include any corporation, partnership,
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trust, limited liability company, government or other entity and any group (as
used with respect to Section 13(d) of the Exchange Act).
Section 5.06. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
Section 5.07. Entire Agreement; No Third Party Beneficiaries. This
Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereto and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 5.08. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
Section 5.09. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost or
expense.
Section 5.10. Amendments; Termination. This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto.
Section 5.11. Certain Events. The Shareholder agrees that this Agreement
and the obligations hereunder shall attach to the Shareholder Shares
beneficially owned by such Shareholder and shall be binding upon any person to
which legal or beneficial ownership of such shares shall pass, whether by
operation of law or otherwise.
Section 5.12. Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision, and this Agreement will be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision or portion of
any provision had never been contained herein. The parties shall endeavor in
good faith negotiations to replace any invalid, illegal or unenforceable
provision with a valid provision the effects of which come as close as possible
to those of such invalid, illegal or unenforceable provision.
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IN WITNESS WHEREOF, Global and the Shareholder have caused this Agreement
to be duly executed as of the day and year first above written.
SFIC HOLDINGS (CAYMAN), INC.
By /s/ SFIC HOLDINGS (CAYMAN), INC.
-------------------------------------
Name:
Title:
GLOBAL MARINE INC.
By /s/ GLOBAL MARINE INC.
-------------------------------------
Name:
Title:
Kuwait Petroleum Corporation hereby agrees to be bound as if it were the
Shareholder by the provisions of Section 2.03 only of this Agreement.
KUWAIT PETROLEUM CORPORATION
By /s/ KUWAIT PETROLEUM CORPORATION
-------------------------------------
Name:
Title:
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