EXHIBIT 10.1
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AGREEMENT AND PLAN OF MERGER
among
SANTA FE INTERNATIONAL CORPORATION
SILVER SUB, INC.
GOLD MERGER SUB, INC.
and
GLOBAL MARINE INC.
Dated as of August 31, 2001
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TABLE OF CONTENTS
Page
ARTICLE 1 THE MERGER............................................................................................ 1
Section 1.1 The Merger.................................................................................. 1
Section 1.2 The Closing................................................................................. 1
Section 1.3 Effective Time.............................................................................. 2
ARTICLE 2 MEMORANDUM AND ARTICLES OF ASSOCIATION OF SANTA FE AND CERTIFICATE OF INCORPORATION AND BYLAWS OF THE
SURVIVING ENTITY..................................................................................... 2
Section 2.1 Memorandum and Articles of Association of Santa Fe.......................................... 2
Section 2.2 Certificate of Incorporation of the Surviving Entity........................................ 2
Section 2.3 Bylaws of the Surviving Entity.............................................................. 2
ARTICLE 3 DIRECTORS AND OFFICERS OF SANTA FE AND OF THE SURVIVING ENTITY; HEADQUARTERS.......................... 3
Section 3.1 Board of Directors of Santa Fe.............................................................. 3
Section 3.2 Certain Officers of Santa Fe................................................................ 3
Section 3.3 Employment Agreements....................................................................... 4
Section 3.4 Board of Directors of Surviving Entity...................................................... 4
Section 3.5 Officers of Surviving Entity................................................................ 4
Section 3.6 Headquarters Location....................................................................... 4
ARTICLE 4 CONVERSION OF GLOBAL COMMON STOCK..................................................................... 4
Section 4.1 Merger Ratio................................................................................ 4
Section 4.2 Conversion of Capital Stock of Global and Merger Sub........................................ 4
Section 4.3 Exchange of Certificates Representing Global Common Stock................................... 7
Section 4.4 Adjustment of Merger Ratio.................................................................. 9
Section 4.5 Rule 16b-3 Approval......................................................................... 9
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF GLOBAL.............................................................. 9
Section 5.1 Existence; Good Standing; Corporate Authority............................................... 9
Section 5.2 Authorization, Validity and Effect of Agreements............................................ 10
Section 5.3 Capitalization.............................................................................. 10
Section 5.4 Subsidiaries................................................................................ 10
Section 5.5 Compliance with Laws; Permits............................................................... 11
Section 5.6 No Conflict................................................................................. 12
Section 5.7 SEC Documents............................................................................... 13
Section 5.8 Litigation.................................................................................. 13
Section 5.9 Absence of Certain Changes.................................................................. 13
Section 5.10 Taxes....................................................................................... 14
Section 5.11 Employee Benefit Plans...................................................................... 15
Section 5.12 Labor Matters............................................................................... 16
Section 5.13 Environmental Matters....................................................................... 17
Section 5.14 Intellectual Property....................................................................... 17
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Section 5.15 Decrees, Etc................................................................................ 18
Section 5.16 Insurance................................................................................... 18
Section 5.17 No Brokers.................................................................................. 18
Section 5.18 Opinion of Financial Advisor................................................................ 19
Section 5.19 Santa Fe Share Ownership.................................................................... 19
Section 5.20 Vote Required............................................................................... 19
Section 5.21 Ownership of Drilling Rigs and Drillships................................................... 19
Section 5.22 Undisclosed Liabilities..................................................................... 20
Section 5.23 Certain Contracts........................................................................... 20
Section 5.24 Capital Expenditure Program................................................................. 21
Section 5.25 Improper Payments........................................................................... 21
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF SANTA FE, SUB AND MERGER SUB........................................ 21
Section 6.1 Existence; Good Standing; Corporate Authority............................................... 21
Section 6.2 Authorization, Validity and Effect of Agreements............................................ 22
Section 6.3 Capitalization.............................................................................. 22
Section 6.4 Subsidiaries................................................................................ 22
Section 6.5 Compliance with Laws; Permits............................................................... 23
Section 6.6 No Conflict................................................................................. 23
Section 6.7 SEC Documents............................................................................... 24
Section 6.8 Litigation.................................................................................. 25
Section 6.9 Absence of Certain Changes.................................................................. 25
Section 6.10 Taxes....................................................................................... 25
Section 6.11 Employee Benefit Plans...................................................................... 26
Section 6.12 Labor Matters............................................................................... 27
Section 6.13 Environmental Matters....................................................................... 28
Section 6.14 Intellectual Property....................................................................... 29
Section 6.15 Decrees, Etc................................................................................ 29
Section 6.16 Insurance................................................................................... 29
Section 6.17 No Brokers.................................................................................. 30
Section 6.18 Opinion of Financial Advisor................................................................ 30
Section 6.19 Global Stock Ownership...................................................................... 30
Section 6.20 Vote Required............................................................................... 30
Section 6.21 Ownership of Drilling Rigs and Drillships................................................... 30
Section 6.22 Undisclosed Liabilities..................................................................... 31
Section 6.23 Certain Contracts........................................................................... 31
Section 6.24 Capital Expenditure Program................................................................. 32
Section 6.25 Improper Payments........................................................................... 32
ARTICLE 7 COVENANTS............................................................................................. 32
Section 7.1 Conduct of Business......................................................................... 32
Section 7.2 No Solicitation by Global................................................................... 36
Section 7.3 No Solicitation by Santa Fe................................................................. 37
Section 7.4 Meetings of Stockholders.................................................................... 38
Section 7.5 Filings; Reasonable Best Efforts, Etc....................................................... 39
Section 7.6 Inspection.................................................................................. 41
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Section 7.7 Publicity................................................................................... 41
Section 7.8 Registration Statement on Form S-4.......................................................... 41
Section 7.9 Listing Application......................................................................... 42
Section 7.10 Letters of Accountants...................................................................... 42
Section 7.11 Agreements of Rule 145 Affiliates........................................................... 43
Section 7.12 Expenses.................................................................................... 43
Section 7.13 Indemnification and Insurance............................................................... 43
Section 7.14 Employee Matters............................................................................ 44
Section 7.15 Delivery of Santa Fe Ordinary Shares........................................................ 46
Section 7.16 Supplemental Indenture...................................................................... 46
Section 7.17 Notification................................................................................ 47
ARTICLE 8 CONDITIONS............................................................................................ 47
Section 8.1 Conditions to Each Party's Obligation to Effect the Merger.................................. 47
Section 8.2 Conditions to Obligation of Global to Effect the Merger..................................... 48
Section 8.3 Conditions to Obligation of Santa Fe, Sub and Merger Sub to Effect the Merger............... 49
ARTICLE 9 TERMINATION........................................................................................... 49
Section 9.1 Termination by Mutual Consent............................................................... 49
Section 9.2 Termination by Santa Fe or Global........................................................... 49
Section 9.3 Termination by Global....................................................................... 50
Section 9.4 Termination by Santa Fe..................................................................... 51
Section 9.5 Effect of Termination....................................................................... 52
Section 9.6 Extension; Waiver........................................................................... 53
ARTICLE 10 GENERAL PROVISIONS................................................................................... 53
Section 10.1 Nonsurvival of Representations, Warranties and Agreements................................... 53
Section 10.2 Notices..................................................................................... 53
Section 10.3 Assignment; Binding Effect; Benefit......................................................... 54
Section 10.4 Entire Agreement............................................................................ 54
Section 10.5 Amendments.................................................................................. 55
Section 10.6 Governing Law............................................................................... 55
Section 10.7 Counterparts................................................................................ 55
Section 10.8 Headings.................................................................................... 55
Section 10.9 Interpretation.............................................................................. 55
Section 10.10 Waivers..................................................................................... 56
Section 10.11 Incorporation of Exhibits................................................................... 56
Section 10.12 Severability................................................................................ 56
Section 10.13 Enforcement of Agreement.................................................................... 56
Section 10.14 Waiver of Jury Trial........................................................................ 57
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GLOSSARY OF DEFINED TERMS
Defined Terms Where Defined
------------- -------------
Action...................................................................................... Section 7.13(a)
Affected Employee........................................................................... Section 7.14(b)
Agreement................................................................................... Preamble
Antitrust Laws.............................................................................. Section 7.5(c)
Applicable Laws............................................................................. Section 5.5(a)
Assumed Plans............................................................................... Section 4.2(d)
Certificate of Merger....................................................................... Section 1.3
Certificates................................................................................ Section 4.3(b)
Closing..................................................................................... Section 1.2
Closing Date................................................................................ Section 1.2
Code........................................................................................ Section 4.2(d)
Confidentiality and Standstill Agreement.................................................... Section 7.6
Cutoff Date................................................................................. Section 7.2(d), 7.3(d)
DGCL........................................................................................ Section 1.1
Effective Time.............................................................................. Section 1.3
Employees................................................................................... Section 7.14(d)
Employment Agreement........................................................................ Section 3.3
Environmental Laws.......................................................................... Section 5.13(a)
ERISA....................................................................................... Section 5.11(a)
ERISA Affiliate............................................................................. Section 5.11(b)
Exchange Act................................................................................ Section 4.5
Exchange Agent.............................................................................. Section 4.3(a)
Exchange Fund............................................................................... Section 4.3(a)
Form S-4.................................................................................... Section 7.8(a)
Former Global Directors..................................................................... Section 3.1(a)
Former Santa Fe Directors................................................................... Section 3.1(a)
Global...................................................................................... Preamble
Global Acquisition Proposal................................................................. Section 7.2(a)
Global Benefit Plans........................................................................ Section 5.11(a)
Global Common Stock......................................................................... Section 4.2(b)
Global Convertible Debentures............................................................... Section 4.3
Global Disclosure Letter.................................................................... Article 5 Preface
Global Material Adverse Effect.............................................................. Section 10.9(c)
Global Material Contract.................................................................... Section 5.23(a)
Global Option............................................................................... Section 4.2(e)(i)
Global Permits.............................................................................. Section 5.5(b)
Global Permitted Liens...................................................................... Section 5.21
Global Real Property........................................................................ Section 5.5(d)
Global Reports.............................................................................. Section 5.7
Global Stock Plans.......................................................................... Section 4.1(e)(i)
Global Superior Proposal.................................................................... Section 7.2(a)
Hazardous Materials......................................................................... Section 5.13(b)
HSR Act..................................................................................... Section 5.6(b)
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Indemnified Parties......................................................................... Section 7.13(a)
Indenture Trustee........................................................................... Section 5.6(c)
Letter of Transmittal....................................................................... Section 4.3(b)
Liens....................................................................................... Section 5.4
Material Adverse Effect..................................................................... Section 10.9(c)
Merger...................................................................................... Recitals
Merger Ratio................................................................................ Section 4.1(a)
Merger Sub.................................................................................. Preamble
Non-U.S. Antitrust Laws..................................................................... Section 7.5(a)(i)
NYSE........................................................................................ Section 4.3(e)
Proxy Statement/Prospectus.................................................................. Section 7.8(a)
Regulatory Filings.......................................................................... Section 5.6(b)
Returns..................................................................................... Section 5.10(a)
Rule 145 Affiliates......................................................................... Section 7.11
Rule 16b-3.................................................................................. Section 4.5
Santa Fe.................................................................................... Preamble
Santa Fe Acquisition Proposal............................................................... Section 7.3(a)
Santa Fe Amendments......................................................................... Section 2.1
Santa Fe Benefit Plans...................................................................... Section 6.11
Santa Fe Disclosure Letter.................................................................. Article 6 Preface
Santa Fe Material Adverse Effect............................................................ Section 10.9(c)
Santa Fe Material Contract.................................................................. Section 6.23(a)
Santa Fe Ordinary Shares.................................................................... Section 2.1
Santa Fe Ordinary Share Price............................................................... Section 4.3(e)
Santa Fe Permits............................................................................ Section 6.5(b)
Santa Fe Permitted Liens.................................................................... Section 6.21
Santa Fe Preference Shares.................................................................. Section 6.3
Santa Fe Real Property...................................................................... Section 6.5(d)
Santa Fe Reports............................................................................ Section 6.7
Santa Fe Superior Proposal.................................................................. Section 7.3(a)
SEC......................................................................................... Section 4.2(e)(ii)
Securities Act.............................................................................. Section 4.3(d)
Severance Program........................................................................... Section 7.14(e)
Significant Subsidiary...................................................................... Section 5.4
Shareholder Agreement....................................................................... Recitals
Sub......................................................................................... Preamble
Subsidiary.................................................................................. Section 10.9(d)
Supplemental Indenture...................................................................... Section 5.6(c)
Surviving Entity............................................................................ Section 1.1
Taxes....................................................................................... Section 5.10(e)
Third-Party Provisions...................................................................... Section 10.3
2001 Plan................................................................................... Section 4.2(d)
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as
of August 31, 2001, is by and among Santa Fe International Corporation, a
company incorporated under the laws of the Cayman Islands ("Santa Fe"), Silver
Sub, Inc., a company organized under the laws of Delaware and a direct wholly
owned subsidiary of Santa Fe ("Sub"), Gold Merger Sub, Inc., a company organized
under the laws of Delaware and a direct wholly owned subsidiary of Sub ("Merger
Sub"), and Global Marine Inc., a company organized under the laws of Delaware
("Global").
RECITALS
A. The Merger. At the Effective Time (as defined herein),
the parties intend to effect a merger of Merger Sub with and into Global, with
Global being the surviving entity (the "Merger"), thus enabling Sub to acquire
all of the stock of Global solely in exchange for voting shares of Santa Fe.
B. Shareholder Agreement. Concurrently with the execution
and delivery hereof, SFIC Holdings (Cayman), Inc., the owner of 43,500,000 Santa
Fe Ordinary Shares (as hereinafter defined), is entering into a Shareholder
Agreement (the "Shareholder Agreement") with Global providing for, among other
things, the voting of the Santa Fe Ordinary Shares owned by SFIC Holdings
(Cayman), Inc.
C. Intended U.S. Accounting Treatment. The parties to this
Agreement intend that the Merger be treated as the purchase of Santa Fe by
Global for U.S. generally accepted accounting principles.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions
of this Agreement, at the Effective Time, Merger Sub shall be merged with and
into Global in accordance with this Agreement, and the separate corporate
existence of Merger Sub shall thereupon cease. Global shall be the surviving
entity in the Merger (sometimes hereinafter referred to as the "Surviving
Entity"). The Merger shall have the effects specified herein and in the General
Corporation Law of the State of Delaware (the "DGCL").
Section 1.2 The Closing. Upon the terms and subject to the
conditions of this Agreement, the closing of the Merger (the "Closing") shall
take place (a) at the offices of Xxxxx Xxxxx L.L.P., Xxx Xxxxx Xxxxx, 000
Xxxxxxxxx, Xxxxxxx, Xxxxx 00000, at 9:00 a.m., local time, on the first business
day immediately following the day on which the last to be fulfilled or waived of
the conditions set forth in Section 8.1, or, if on such day any condition set
forth in Section 8.2 or 8.3 has not been fulfilled or waived, as soon as
practicable after all the conditions set forth in
Article 8 have been fulfilled or waived in accordance herewith or (b) at such
other time, date or place as Santa Fe and Global may agree. The date on which
the Closing occurs is hereinafter referred to as the "Closing Date."
Section 1.3 Effective Time. On the Closing Date, Santa Fe,
Global and Merger Sub shall cause a certificate of merger (the "Certificate of
Merger") meeting the requirements of Section 251 of the DGCL to be properly
executed and filed in accordance with such section. The Merger shall become
effective at the time of filing of the Certificate of Merger with the Secretary
of State of the State of Delaware in accordance with the DGCL or at such later
time that Santa Fe and Global shall have agreed upon and designated in such
filing as the effective time of the Merger (the "Effective Time").
ARTICLE 2
MEMORANDUM AND ARTICLES OF ASSOCIATION OF SANTA FE AND
CERTIFICATE OF INCORPORATION AND BYLAWS OF THE SURVIVING ENTITY
Section 2.1 Memorandum and Articles of Association of Santa
Fe. Subject to the approval by the holders of the issued ordinary shares, par
value $.01 per share, of Santa Fe ("Santa Fe Ordinary Shares") as and to the
extent required by Cayman Islands law and Santa Fe's memorandum of association
and articles of association, as of the Effective Time, Santa Fe's memorandum of
association and articles of association shall be amended as described in Exhibit
2.1 hereto (the "Santa Fe Amendments") such that, among other things:
(a) The name of Santa Fe shall be changed to
"GlobalSantaFe Corporation"; and
(b) Any action taken prior to the third anniversary of the
Effective Time to remove or replace the Chairman of the Board or the
Chief Executive Officer shall require a vote of two-thirds of the
entire Board of Directors of Santa Fe.
Section 2.2 Certificate of Incorporation of the Surviving
Entity. As of the Effective Time, the certificate of incorporation of Global in
effect immediately prior to the Effective Time shall be the certificate of
incorporation of the Surviving Entity, until duly amended in accordance with
applicable law.
Section 2.3 Bylaws of the Surviving Entity. As of the
Effective Time, the bylaws of Global in effect immediately prior to the
Effective Time shall be the bylaws of the Surviving Entity, until duly amended
in accordance with applicable law.
ARTICLE 3
DIRECTORS AND OFFICERS OF SANTA FE AND
OF THE SURVIVING ENTITY; HEADQUARTERS
Section 3.1 Board of Directors of Santa Fe.
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(a) At the Effective Time, the Board of Directors of Santa Fe
shall consist of 14 members, one-half consisting of current members of the Santa
Fe board of directors designated by Santa Fe, after consultation with Global,
before the Effective Time ("Former Santa Fe Directors") and one-half consisting
of current members of the Global board of directors designated by Global, after
consultation with Santa Fe, before the Effective Time ("Former Global
Directors"), with such persons being allocated by Santa Fe or Global as
applicable as nearly as practicable on a proportionate basis to each of the
three classes into which the Board of Directors is divided in accordance with
Santa Fe's articles of association. At the Effective Time, Xxxxxx X. Xxxx shall
be the Chairman of the Board of Santa Fe. From and after the Effective Time,
each person so designated shall serve as a director of Santa Fe until such
person's successor shall be elected and qualified or such person's earlier
death, resignation or removal in accordance with the memorandum of association
and articles of association of Santa Fe.
(b) At the Effective Time, the membership of each committee
of the Board of Directors of Santa Fe shall consist of an equal number of Former
Santa Fe Directors and Former Global Directors. The Former Santa Fe Directors
shall select the Chairman of the Nominating and Governance Committee and the
Audit Committee. Xxxxxx X. Xxxx shall be Chairman of the Executive Committee.
The Former Global Directors shall select the Chairman of the Compensation
Committee. The Chairmen of all other committees shall be selected so that one-
half have been selected by the Former Global Directors and one-half selected by
the Former Santa Fe Directors.
(c) Santa Fe shall cause the directors of Santa Fe not
continuing after the Effective Time to resign from the Board of Directors of
Santa Fe as of the Effective Time.
(d) Prior to the Effective Time, the Board of Directors of
Santa Fe shall take such action as may be necessary to cause (i) any Santa Fe
designees who are changing classes to be elected to the appropriate classes as
of the Effective Time and (ii) the Global designees (including Xxxxxx X. Xxxx)
to be elected to the Board of Directors of Santa Fe as of the Effective Time.
Section 3.2 Certain Officers of Santa Fe. At the Effective
Time, Xxxxxx X. Xxxx shall be the Chairman of the Board of Santa Fe, C. Xxxxxxx
Xxxxxx, Xx. shall be the President and Chief Executive Officer of Santa Fe and
the other individuals listed on Exhibit 3.2 hereto shall have the officer
positions with Santa Fe listed on such Exhibit, and each such officer shall
thereafter serve until such officer's successor shall be appointed or such
officer's earlier death, resignation, retirement, disqualification or removal in
accordance with the memorandum of association and articles of association of
Santa Fe. If, before the Effective Time, any such person is unable or unwilling
to serve as an officer of Santa Fe in the capacity set forth in Exhibit 3.2,
then a substitute officer shall be selected by mutual agreement of Santa Fe and
Global.
Section 3.3 Employment Agreements. Santa Fe is entering into
a letter agreement, with duties to be effective as of the Effective Time, with
C. Xxxxxxx Xxxxxx, Xx. and shall assume, as of the Effective Time, Global's
obligation under the employment agreement with Xxxxxx X. Xxxx, as amended,
identified on Schedule 5.9 to the Global Disclosure Letter (as hereinafter
defined) (each such agreement, as so amended, or any successor agreement,
including any amendment thereto, an "Employment Agreement"). During the terms of
their respective
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Employment Agreements, Xx. Xxxx and Xx. Xxxxxx will have the respective powers,
and perform the respective duties, set forth in each of their respective
Employment Agreements.
Section 3.4 Board of Directors of Surviving Entity. The
directors of Merger Sub immediately prior to the Effective Time shall be the
directors of the Surviving Entity as of the Effective Time, until their
successors shall be elected and qualified or their earlier death, resignation or
removal in accordance with the certificate of incorporation and bylaws of the
Surviving Entity.
Section 3.5 Officers of Surviving Entity. The officers of
Global immediately prior to the Effective Time shall be the officers of the
Surviving Entity as of the Effective Time, until their successors shall be
appointed or their earlier death, resignation or removal in accordance with the
certificate of incorporation and bylaws of the Surviving Entity.
Section 3.6 Headquarters Location. From and after the
Effective Time, the principal U.S. executive offices of Santa Fe shall be
located in Houston, Texas.
ARTICLE 4
CONVERSION OF GLOBAL COMMON STOCK
Section 4.1 Merger Ratio. For purposes of this Agreement, the
"Merger Ratio" shall equal 0.665.
Section 4.2 Conversion of Capital Stock of Global and Merger
Sub.
(a) At the Effective Time, each share of common stock, par
value $.01 per share, of Merger Sub issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into and become one fully paid and non-
assessable share of common stock, par value $.01 per share, of the Surviving
Entity.
(b) At the Effective Time, each share of common stock, par
value $.10 per share, of Global ("Global Common Stock") issued and outstanding
immediately prior to the Effective Time (other than shares of Global Common
Stock to be canceled without payment of any consideration therefor pursuant to
Section 4.2(c)), shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to receive a number of
Santa Fe Ordinary Shares equal to the Merger Ratio, which Santa Fe Ordinary
Shares shall be transferred by Sub pursuant to the Merger, and each such share
of Global Common Stock shall cease to be outstanding and shall be canceled and
retired and shall cease to exist, and each holder of such shares of Global
Common Stock shall thereafter cease to have any rights with respect to such
shares of Global Common Stock, except the right to receive, without interest,
certificates for Santa Fe Ordinary Shares in accordance with Section 4.3(b) and
cash for fractional shares in accordance with Sections 4.3(b) and 4.3(d) upon
the surrender of the relevant Certificate (as hereinafter defined).
(c) Each share of Global Common Stock issued and held in
Global's treasury and each share of Global Common Stock owned by any wholly
owned Subsidiary of Global or
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by Santa Fe, Sub or Merger Sub, shall, at the Effective Time and by virtue of
the Merger, cease to be outstanding and shall be canceled and retired without
payment of any consideration therefor, and no capital shares of Santa Fe or
other consideration shall be delivered in exchange therefor.
(d) (i) At the Effective Time, all options to acquire
shares of Global Common Stock outstanding at the Effective Time under Global's
stock plans (collectively, the "Global Stock Plans") identified in Section
4.2(d) of the Global Disclosure Letter and all options to acquire shares of
Global Common Stock issued hereafter pursuant to Section 7.1(f) (individually, a
"Global Option" and collectively, the "Global Options") shall remain outstanding
following the Effective Time, subject to the modifications described in this
Section 4.2(d). Prior to the Effective Time, Global and Santa Fe shall take all
actions (if any) as may be required to permit the assumption of such Global
Options by Santa Fe pursuant to this Section 4.2(d)(i). At the Effective Time,
the Global Options shall be assumed and adjusted by Santa Fe in such manner that
Santa Fe (i) is a corporation "assuming a stock option in a transaction to which
Section 424(a) applies" within the meaning of Section 424 of the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), or (ii) to the extent that the
Global Option is not or ceases to qualify as an "incentive stock option" within
the meaning of Section 422 of the Code, would be such a corporation were Section
424 of the Code applicable to such option. Each Global Option assumed and
adjusted by Santa Fe shall, in accordance with the Global Stock Plans and the
option agreements entered into pursuant thereto, be fully vested and exercisable
as of the Effective Time and shall otherwise be subject to the same terms and
conditions as under the applicable Global Stock Option Plan and the applicable
option agreement entered into pursuant thereto, except that (i) immediately
following the Effective Time (A) each Global Option shall be exercisable for
that whole number of Santa Fe Ordinary Shares equal to the product (rounded to
the nearest whole share) of the number of shares of Global Common Stock subject
to such Global Option immediately prior to the Effective Time multiplied by the
Merger Ratio, and (B) the exercise price per Santa Fe Ordinary Share shall be an
amount equal to the exercise price per share of Global Common Stock subject to
such Global Option in effect immediately prior to the Effective Time divided by
the Merger Ratio (the price per share, as so determined, being rounded down to
the nearest whole cent), and (ii) as of the Effective Time, each Global Option
outstanding under Global's 1990 Non-Employee Director Stock Option Plan
identified in Section 4.2(d) of the Global Disclosure Letter shall be deemed
modified to remain exercisable for the full scheduled term of such Global Option
in the event the holder of such Global Option does not become a non-employee
director of Santa Fe, or terminates service as a non-employee director of Santa
Fe prior to the expiration of the option under conditions which would permit the
option to remain outstanding and exercisable for its full scheduled term under
the terms of the Global Options issued to such non-employee director pursuant to
the Global 2001 Non-Employee Director Stock Option and Incentive Plan (the "2001
Plan"), and to remain exercisable for three months following termination of
service under any other conditions. Without limiting the foregoing, effective at
the Effective Time, Santa Fe shall assume the Global 1998 Stock Option and
Incentive Plan, the Global 1994 Non-Employee Stock Option and Incentive Plan,
and the 2001 Plan (collectively the "Assumed Plans") for purposes of employing
such plans to make grants of stock options and other awards based on Santa Fe
Ordinary Shares following the Effective Time.
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(ii) At or prior to the Effective Time, Santa Fe
shall take all corporate action necessary to reserve for
issuance a number of Santa Fe Ordinary Shares equal to the
number of Santa Fe Ordinary Shares available for issuance
pursuant to the Assumed Plans (which number shall be the
product (rounded to the nearest whole share) of the number of
shares of Global Common Stock available for issuance
immediately prior to the Effective Time multiplied by the
Merger Ratio). On the Closing Date, Santa Fe shall file with
the U.S. Securities and Exchange Commission (the "SEC") a
Registration Statement on Form S-8 (or a post-effective
amendment on Form S-8 with respect to the Form S-4 (as defined
in Section 7.8) or such other appropriate form) covering all
such Santa Fe Ordinary Shares and shall cause such
registration statement to remain effective (and shall cause
the prospectus or prospectuses relating thereto to remain
compliant with applicable securities laws) for as long as
there are outstanding any such Global Options.
(iii) Except as otherwise specifically provided by
this Section 4.2(d), the terms of the Global Options and the
relevant Global Stock Plans, as in effect on the Effective
Time, shall remain in full force and effect with respect to
the Global Options after giving effect to the Merger and the
assumptions by Santa Fe as set forth above. As soon as
practicable following the Effective Time, Santa Fe shall
deliver to the holders of Global Options appropriate notices
setting forth such holders' rights pursuant to the respective
Global Stock Plans and the agreements evidencing the grants of
such Global Options, and that such Global Options and such
agreements shall be assumed by Santa Fe and shall continue in
effect on the same terms and conditions (subject to the
adjustments required by this Section 4.2(d)).
(e) Santa Fe shall agree to be bound by the conversion
provisions of Global's Zero Coupon Convertible Debentures due 2020 (the "Global
Convertible Debentures"), such that following the Effective Time, each
outstanding Global Convertible Debenture will be convertible into the number of
Santa Fe Ordinary Shares (and cash in lieu of fractional shares) that the holder
thereof would have had the right to receive after the Effective Time if such
Global Convertible Debenture had been converted immediately prior to the
Effective Time.
Section 4.3 Exchange of Certificates Representing Global
Common Stock.
(a) As of the Effective Time, Sub shall appoint Mellon
Investor Services LLC or such other party reasonably satisfactory to Global as
exchange agent (the "Exchange Agent"), and Sub shall, when and as needed,
deposit, or cause to be deposited with the Exchange Agent for the benefit of the
holders of shares of Global Common Stock for exchange in accordance with this
Article 4, certificates representing the Santa Fe Ordinary Shares to be issued
pursuant to Section 4.2 and delivered pursuant to this Section 4.3 in exchange
for outstanding shares of Global Common Stock. When and as needed, the Surviving
Entity shall provide the Exchange Agent immediately following the Effective Time
cash sufficient to pay cash in lieu of fractional shares in accordance with
Sections 4.3(b) and 4.3(d) (such cash and certificates for Santa Fe Ordinary
Shares together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Exchange Fund").
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(b) Promptly after the Effective Time, Sub shall cause the
Exchange Agent to mail to each holder of record of one or more certificates
("Certificates") that immediately prior to the Effective Time represented shares
of Global Common Stock (other than to holders of shares of Global Common Stock
that, pursuant to Section 4.2(c), are canceled without payment of any
consideration therefor): (A) a letter of transmittal (the "Letter of
Transmittal") which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and shall be in such form and have such other
provisions as Santa Fe may reasonably specify and (B) instructions for use in
effecting the surrender of the Certificates in exchange for certificates
representing Santa Fe Ordinary Shares and cash in lieu of fractional shares.
Upon surrender of a Certificate for cancellation to the Exchange Agent together
with such Letter of Transmittal, duly executed and completed in accordance with
the instructions thereto, the holder of such Certificate shall be entitled to
receive in exchange therefor (x) a certificate representing that number of whole
Santa Fe Ordinary Shares and (y) a check representing the amount of cash in lieu
of fractional shares, if any, and unpaid dividends and distributions, if any,
which such holder has the right to receive pursuant to the provisions of this
Article 4, after giving effect to any required withholding tax, and the
Certificate so surrendered shall forthwith be canceled. No interest will be paid
or accrued on the cash in lieu of fractional shares and unpaid dividends and
distributions, if any, payable to holders of Certificates. In the event of a
transfer of ownership of Global Common Stock which is not registered in the
transfer records of Global, a certificate representing the proper number of
Santa Fe Ordinary Shares together with a check for the cash to be paid in lieu
of fractional shares, may be issued to such a transferee if the Certificate
representing such Global Common Stock is presented to the Exchange Agent,
accompanied by all documents required to evidence and effect such transfer and
to evidence that any applicable stock transfer taxes have been paid.
(c) Notwithstanding any other provisions of this
Agreement, no dividends or other distributions declared or made after the
Effective Time with respect to Santa Fe Ordinary Shares with a record date after
the Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the Santa Fe Ordinary Shares represented by such Certificate as
a result of the conversion provided in Section 4.2(b) or 4.2(c) until such
Certificate is surrendered as provided herein. Subject to the effect of
applicable laws, following surrender of any such Certificate, there shall be
paid to the holder of the Certificates so surrendered, without interest, (i) at
the time of such surrender, the amount of dividends or other distributions with
a record date after the Effective Time theretofore payable and not paid with
respect to the number of whole Santa Fe Ordinary Shares issued pursuant to
Section 4.2, less the amount of any withholding taxes, and (ii) at the
appropriate payment date, the amount of dividends or other distributions with a
record date after the Effective Time but prior to surrender and a payment date
subsequent to surrender payable with respect to such whole Santa Fe Ordinary
Shares, less the amount of any withholding taxes.
(d) At or after the Effective Time, the Surviving Entity
shall pay from funds on hand at the Effective Time any dividends or make other
distributions with a record date prior to the Effective Time that may have been
declared or made by Global on shares of Global Common Stock which remain unpaid
at the Effective Time, and after the Effective Time, there shall be no transfers
on the stock transfer books of the Surviving Entity of the shares of Global
Common Stock which were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving Entity,
the presented Certificates shall
7
be canceled and exchanged for certificates representing Santa Fe Ordinary Shares
and cash in lieu of fractional shares, if any, deliverable in respect thereof
pursuant to this Agreement in accordance with the procedures set forth in this
Article 4. Certificates surrendered for exchange by any person constituting an
"affiliate" of Global for purposes of Rule 145(c) under the Securities Act of
1933, as amended (the "Securities Act"), shall not be exchanged until Global has
received a written agreement from such person as provided in Section 7.11.
(e) No fractional Santa Fe Ordinary Shares shall be issued
pursuant hereto. In lieu of the issuance of any fractional Santa Fe Ordinary
Shares pursuant to Section 4.2(b), cash adjustments provided by Sub will be paid
to holders in respect of any fractional Santa Fe Ordinary Shares that would
otherwise be issuable, and the amount of such cash adjustment shall be equal to
such fractional proportion of the Santa Fe Ordinary Share Price. For purposes of
this Agreement, the "Santa Fe Ordinary Share Price" shall mean the average of
the per share closing prices of the Santa Fe Ordinary Shares as reported on the
consolidated transaction reporting system for securities traded on the New York
Stock Exchange, Inc. ("NYSE") (as reported in the New York City edition of The
Wall Street Journal or, if not reported thereby, another authoritative source)
for the 20 consecutive trading days ending on the fifth trading day prior to the
Closing Date, appropriately adjusted for any stock splits, reverse stock splits,
stock dividends, recapitalizations or other similar transactions.
(f) Any portion of the Exchange Fund (including the
proceeds of any investments thereof and any certificates for Santa Fe Ordinary
Shares) that remains undistributed to the former stockholders of Global one year
after the Effective Time shall be delivered to Sub. Any former stockholders of
Global who have not theretofore complied with this Article 4 shall thereafter
look only to Sub for delivery of certificates representing their Santa Fe
Ordinary Shares and cash in lieu of fractional shares and to Santa Fe for any
unpaid dividends and distributions on the Santa Fe Ordinary Shares deliverable
to such former stockholder pursuant to this Agreement.
(g) None of Santa Fe, Sub, Global, the Surviving Entity,
the Exchange Agent or any other person shall be liable to any person for any
portion of the Exchange Fund properly delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
(h) In the event any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Entity, the posting by such person of a bond in such reasonable
amount as the Surviving Entity may direct as indemnity against any claim that
may be made against it with respect to such Certificate, the Exchange Agent will
issue in exchange for such lost, stolen or destroyed Certificate certificates
representing the Santa Fe Ordinary Shares, cash in lieu of fractional shares and
unpaid dividends and distributions on Santa Fe Ordinary Shares, as provided in
Section 4.3(c), deliverable in respect thereof pursuant to this Agreement.
Section 4.4 Adjustment of Merger Ratio. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, Santa
Fe changes the number of Santa Fe Ordinary Shares, or Global changes the number
of shares of Global Common Stock, issued and outstanding as a result of a stock
split, reverse stock split, stock dividend, recapitalization or
8
other similar transaction, the Merger Ratio and other items dependent thereon
shall be appropriately adjusted.
Section 4.5 Rule 16b-3 Approval. Santa Fe agrees that the Santa Fe
Board of Directors or the Executive Compensation Committee of the Santa Fe Board
of Directors shall, at or prior to the Effective Time, adopt resolutions
specifically approving, for purposes of Rule 16b-3 ("Rule 16b-3") under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), the receipt,
pursuant to Section 4.2, of Santa Fe Ordinary Shares, and of options to acquire
Santa Fe Ordinary Shares, by executive officers or directors of Global who
become executive officers or directors of Santa Fe subject to Rule 16b-3.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF GLOBAL
Except as set forth in the disclosure letter delivered to Santa Fe by
Global at or prior to the execution hereof (the "Global Disclosure Letter") and
making reference to the particular subsection of this Agreement to which
exception is being taken, Global represents and warrants to Santa Fe, Sub and
Merger Sub that:
Section 5.1 Existence; Good Standing; Corporate Authority. Global is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. Global is duly qualified to do business and, to
the extent such concept or similar concept exists in the relevant jurisdiction,
is in good standing under the laws of any jurisdiction in which the character of
the properties owned or leased by it therein or in which the transaction of its
business makes such qualification necessary, except where the failure to be so
qualified does not and is not reasonably likely to have, individually or in the
aggregate, a Global Material Adverse Effect (as defined in Section 10.9). Global
has all requisite corporate power and authority to own, operate and lease its
properties and to carry on its business as now conducted. The copies of Global's
certificate of incorporation and bylaws previously made available to Santa Fe
are true and correct and contain all amendments as of the date hereof.
Section 5.2 Authorization, Validity and Effect of Agreements. Global
has the requisite corporate power and authority to execute and deliver this
Agreement and all other agreements and documents contemplated hereby to which it
is a party. The consummation by Global of the transactions contemplated hereby
have been duly authorized by all requisite corporate action on behalf of Global,
other than the approvals referred to in Section 5.20. This Agreement constitutes
the valid and legally binding obligation of Global, enforceable against Global
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
and general principles of equity. Global has taken all action necessary to
render the restrictions set forth in Section 203 of the DGCL, and any other
applicable takeover law restricting or purporting to restrict business
combinations, and in Article Ninth of its certificate of incorporation
inapplicable to this Agreement and the transactions contemplated hereby.
Section 5.3 Capitalization. The authorized capital stock of Global
consists of 300,000,000 shares of Global Common Stock and 10,000,000 shares of
preferred stock, par
9
value $.01 per share. As of August 29, 2001, there were 176,602,294 outstanding
shares of Global Common Stock, 19,124,251 shares of Global Common Stock reserved
for issuance upon conversion of Global Options, 241,891 shares reserved for
issuance under the Global Non-Employee Director Restricted Stock Plan, 7,330,920
shares of Global Common Stock reserved for issuance upon conversion of
outstanding Global Convertible Debentures, 5,043 shares of Global Common Stock
reserved for issuance upon conversion of Global senior debt (none of which
shares will ever be issuable because none of such senior debt remains
enforceable) and no outstanding shares of Global preferred stock. All such
issued and outstanding shares of Global Common Stock are duly authorized,
validly issued, fully paid, nonassessable and free of preemptive rights. As of
the date of this Agreement, except as set forth in this Section 5.3, there are
no outstanding shares of capital stock and there are no options, warrants,
calls, subscriptions, convertible securities or other rights, agreements or
commitments which obligate Global or any of its Subsidiaries to issue, transfer
or sell any shares of capital stock or other voting securities of Global or any
of its Subsidiaries. Global has no outstanding bonds, debentures, notes or other
obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of Global on any matter.
Section 5.4 Subsidiaries. For purposes of this Agreement, "Significant
Subsidiary" shall mean significant subsidiary as defined in Rule 1-02 of
Regulation S-X of the Exchange Act. Each of Global's Significant Subsidiaries is
a corporation or other legal entity duly organized, validly existing and, to the
extent such concept or similar concept exists in the relevant jurisdiction, in
good standing under the laws of its jurisdiction of incorporation or
organization, has the corporate or other entity power and authority to own,
operate and lease its properties and to carry on its business as it is now being
conducted, and is duly qualified to do business and is in good standing (where
applicable) in each jurisdiction in which the ownership, operation or lease of
its property or the conduct of its business requires such qualification, except
for jurisdictions in which such failure to be so qualified or to be in good
standing does not and is not reasonably likely to have a Global Material Adverse
Effect. As of the date of this Agreement, all of the outstanding shares of
capital stock of, or other ownership interests in, each of Global's Subsidiaries
are duly authorized, validly issued, fully paid and nonassessable and are owned,
directly or indirectly, by Global free and clear of all mortgages, deeds of
trust, liens, security interests, pledges, leases, conditional sale contracts,
charges, privileges, easements, rights of way, reservations, options, rights of
first refusal and other encumbrances ("Liens").
Section 5.5 Compliance with Laws; Permits. Except for such matters as,
individually or in the aggregate, do not or are not reasonably likely to have a
Global Material Adverse Effect and except for matters arising under
Environmental Laws (as defined herein) which are treated exclusively in Section
5.13:
(a) Neither Global nor any Subsidiary of Global is in violation of any
applicable law, rule, regulation, code, governmental determination, order,
treaty, convention, governmental certification requirement or other public
limitation, U.S. or non-U.S. (collectively, "Applicable Laws"), and no
claim is pending or, to the knowledge of Global, threatened with respect to
any such matters. No condition exists which does or is reasonably likely to
constitute a violation of or deficiency under any Applicable Law by Global
or any Subsidiary of Global.
10
(b) Global and each Subsidiary of Global hold all permits, licenses,
certifications, variations, exemptions, orders, franchises and approvals of
all governmental or regulatory authorities necessary for the conduct of
their respective businesses (the "Global Permits"). All Global Permits are
in full force and effect and there exists no default thereunder or breach
thereof, and Global has no notice or actual knowledge that such Global
Permits will not be renewed in the ordinary course after the Effective
Time. No governmental authority has given, or to the knowledge of Global
threatened to give, any action to terminate, cancel or reform any Global
Permit.
(c) Each drilling rig, drillship or other drilling unit owned or
leased by Global or a subsidiary of Global which is subject to
classification is in class according to the rules and regulations of the
applicable classifying body and is duly and lawfully documented under the
laws of its flag jurisdiction.
(d) Global and each Subsidiary of Global possess all permits,
licenses, operating authorities, orders, exemptions, franchises, variances,
consents, approvals or other authorizations required for the present
ownership and operation of all its real property or leaseholds ("Global
Real Property"). There exists no material default or breach with respect
to, and no party or governmental authority has taken or, to the knowledge
of Global, threatened to take, any action to terminate, cancel or reform
any such permit, license, operating authority, order, exemption, franchise,
variance, consent, approval or other authorization pertaining to Global
Real Property.
Section 5.6 No Conflict. (a) Neither the execution and delivery by
Global of this Agreement nor the consummation by Global of the transactions
contemplated hereby in accordance with the terms hereof will (i) subject to the
approvals referred to in Section 5.20, conflict with or result in a breach of
any provisions of the certificate of incorporation or bylaws of Global, (ii)
violate, or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination or in a right of
termination or cancellation of, or give rise to a right of purchase under, or
accelerate the performance required by, or result in the creation of any Lien
upon any of the properties of Global or its Subsidiaries under, or result in
being declared void, voidable, or without further binding effect, or otherwise
result in a detriment to Global or any of its Subsidiaries under, any of the
terms, conditions or provisions of, any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, lease, contract, agreement, joint venture or
other instrument or obligation to which Global or any of its Subsidiaries is a
party, or by which Global or any of its Subsidiaries or any of their properties
is bound or affected or (iii) subject to the filings and other matters referred
to in Section 5.6(b), contravene or conflict with or constitute a violation of
any provision of any law, rule, regulation, judgment, order or decree binding
upon or applicable to Global or any of its Subsidiaries, except, for such
matters described in clause (ii) or (iii) as do not and are not reasonably
likely to have, individually or in the aggregate, a Global Material Adverse
Effect.
(b) Neither the execution and delivery by Global of this Agreement nor
the consummation by Global of the transactions contemplated hereby in accordance
with the terms hereof will require any consent, approval or authorization of, or
filing or registration with, any governmental or regulatory authority, other
than (i) the filing of the Certificate of Merger
11
provided for in Section 1.3, (ii) filings required under the U.S. Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), the
Exchange Act, the Securities Act or applicable state securities and "Blue Sky"
laws, and (iii) filings and notifications required under applicable Non-U.S.
antitrust laws set forth in Schedule 5.6 of the Global Disclosure Letter ((i),
(ii) and (iii) collectively, the "Regulatory Filings"), except for any consent,
approval or authorization the failure of which to obtain and for any filing or
registration the failure of which to make does not and is not reasonably likely
to have a Global Material Adverse Effect.
(c) This Agreement, the Merger and the transactions contemplated
hereby do not, and will not upon consummation of such transactions in accordance
with their terms, constitute a "Change of Control" for the purposes of, or a
default under, (A) the Indenture dated as of September 1, 1997, between Global
and Wilmington Trust Company, as Trustee (the "Indenture Trustee"), or the First
Supplemental Indenture dated as of June 23, 2000 between Global and the
Indenture Trustee (the "Supplemental Indenture") or (B) the Global Convertible
Debentures.
Section 5.7 SEC Documents. Global has filed with the SEC all documents
(including exhibits and any amendments thereto) required to be so filed by it
since January 1, 1999 pursuant to Sections 13(a), 14(a) and 15(d) of the
Exchange Act, and has made available to Santa Fe each registration statement,
report, proxy statement or information statement (other than preliminary
materials) it has so filed, each in the form (including exhibits and any
amendments thereto) filed with the SEC (collectively, the "Global Reports"). As
of its respective date, each Global Report (i) complied in all material respects
in accordance with the applicable requirements of the Exchange Act and the rules
and regulations thereunder and (ii) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading except for such statements, if any,
as have been modified by subsequent filings with the SEC prior to the date
hereof. Each of the consolidated balance sheets included in or incorporated by
reference into the Global Reports (including the related notes and schedules)
fairly presents in all material respects the consolidated financial position of
Global and its Subsidiaries as of its date, and each of the consolidated
statements of operations, cash flows and changes in stockholders' equity
included in or incorporated by reference into the Global Reports (including any
related notes and schedules) fairly presents in all material respects the
results of operations, cash flows or changes in stockholders' equity, as the
case may be, of Global and its Subsidiaries for the periods set forth therein
(subject, in the case of unaudited statements, to (x) such exceptions as may be
permitted by Form 10-Q of the SEC and (y) normal year-end audit adjustments), in
each case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except as may be noted
therein. Except as and to the extent set forth on the consolidated balance sheet
of Global and its Subsidiaries included in the most recent Global Report filed
prior to the date of this Agreement that includes such a balance sheet,
including all notes thereto, as of the date of such balance sheet, neither
Global nor any of its Subsidiaries has any liabilities or obligations of any
nature (whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on, or reserved against in, a balance sheet of Global
or in the notes thereto prepared in accordance with generally accepted
accounting principles consistently applied, other than liabilities or
obligations which do not and are not reasonably likely to have, individually or
in the aggregate, a Global Material Adverse Effect.
12
Section 5.8 Litigation. Except as described in the Global Reports
filed prior to the date of this Agreement, there are no actions, suits or
proceedings pending against Global or any of its Subsidiaries or, to Global's
knowledge, threatened against Global or any of its Subsidiaries, at law or in
equity or in any arbitration or similar proceedings, before or by any U.S.
federal, state or non-U.S. court, commission, board, bureau, agency or
instrumentality or any U.S. or non-U.S. arbitral or other dispute resolution
body, that are reasonably likely to have, individually or in the aggregate, a
Global Material Adverse Effect.
Section 5.9 Absence of Certain Changes. From December 31, 2000 to the
date of this Agreement, there has not been (i) any event or occurrence that has
had or is reasonably likely to have a Global Material Adverse Effect, (ii) any
material change by Global or any of its Subsidiaries, when taken as a whole, in
any of its accounting methods, principles or practices or any of its tax
methods, practices or elections, (iii) any declaration, setting aside or payment
of any dividend or distribution in respect of any capital stock of Global or any
redemption, purchase or other acquisition of any of its securities or (iv) any
increase in or establishment of any bonus, insurance, severance, deferred
compensation, pension, retirement, profit sharing, stock option, stock purchase
or other employee benefit plan, except in the ordinary course of business
consistent with past practice.
Section 5.10 Taxes. (a) All tax returns, statements, reports,
declarations, estimates and forms ("Returns") required to be filed by or with
respect to Global and any of its Subsidiaries (including any Return required to
be filed by a consolidated, combined or unitary group that included Global or
any of its Subsidiaries) on or prior to the date hereof have been duly filed on
a timely basis with the appropriate governmental authorities, except to the
extent that any failure to file does not and is not reasonably likely to have,
individually or in the aggregate, a Global Material Adverse Effect, and all
taxes due with such Returns have been duly paid, or deposited in full on a
timely basis or adequately reserved for in accordance with generally accepted
accounting principles, except to the extent that any failure to pay or deposit
or make adequate provision for the payment of such taxes does not and is not
reasonably likely to have, individually or in the aggregate, a Global Material
Adverse Effect. Representations made in this Section 5.10 are made to the
knowledge of Global to the extent that the representations relate to a
corporation which was, but is not currently, a part of Global's or any
Subsidiary's affiliated, consolidated, combined unitary or similar group.
(b) Except to the extent not reasonably likely to have, individually
or in the aggregate, a Global Material Adverse Effect, (i) no audits or other
administrative proceedings or court proceedings are presently pending with
regard to any taxes or Returns of Global or any of its Subsidiaries as to which
any taxing authority has asserted in writing any claim; (ii) no governmental
authority is now asserting in writing any deficiency or claim for taxes or any
adjustment to taxes with respect to which Global or any of its Subsidiaries may
be liable with respect to income and other material taxes which have not been
fully paid or finally settled; and (iii) neither Global nor any of its
Subsidiaries has any liability for taxes under Treas. Reg. (S) 1.1502-6 or any
similar provision of state, local, or non-U.S. tax law, except for taxes of the
affiliated group of which Global is the common parent, within the meaning of
Section 1504(a)(1) of the Code or any similar provision of state, local, or non-
U.S. tax law. As of the date of this Agreement, neither Global nor any of its
Subsidiaries has granted any requests, agreements, consents or waivers to extend
the statutory period of limitations applicable to the assessment of
13
any taxes with respect to any Returns of Global or any of its Subsidiaries.
Neither Global nor any of its Subsidiaries is a party to any closing agreement
described in Section 7121 of the Code or any predecessor provision thereof or
any similar agreement under state, local, or non-U.S. tax law. Neither Global
nor any of its Subsidiaries is a party to, is bound by or has any obligation
under any tax sharing, allocation or indemnity agreement or any similar
agreement or arrangement. Neither Global nor any of its Subsidiaries has made an
election under Section 341(f) of the Code. To the knowledge of Global, Global
has not been a United States real property holding corporation within the
meaning of Section 897(c)(2) of the Code at any time within the past five years.
(c) For purposes of this Agreement, "tax" or "taxes" means all net
income, gross income, gross receipts, sales, use, ad valorem, transfer,
accumulated earnings, personal holding company, excess profits, franchise,
profits, license, withholding, payroll, employment, excise, severance, stamp,
occupation, premium, property, disability, capital stock, or windfall profits
taxes, customs duties or other taxes, fees, assessments or governmental charges
of any kind whatsoever, together with any interest and any penalties, additions
to tax or additional amounts imposed by any taxing authority (U.S. or non-U.S.).
Section 5.11 Employee Benefit Plans. (a) Section 5.11 of the Global
Disclosure Letter contains a list of all Global Benefit Plans. The term "Global
Benefit Plans" means all material employee benefit plans and other material
benefit arrangements, including all "employee benefit plans" as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether or not U.S.-based plans, and all other material employee
benefit, bonus, incentive, deferred compensation, stock option (or other equity-
based), severance, employment, change in control, welfare (including post-
retirement medical and life insurance) and fringe benefit plans, practices or
agreements, whether or not subject to ERISA or U.S.-based and whether written or
oral, sponsored, maintained or contributed to or required to be contributed to
by Global or any of its Subsidiaries, to which Global or any of its Subsidiaries
is a party or is required to provide benefits under applicable law or in which
any person who is currently, has been or, prior to the Effective Time, is
expected to become an employee of Global is a participant. Global will provide
Santa Fe, within 30 days after the date hereof, with true and complete copies of
the Global Benefit Plans and, if applicable, the most recent trust agreements,
Forms 5500, summary plan descriptions, funding statements, annual reports and
actuarial reports, if applicable, for each such plan.
(b) Except as for such matters as, individually or in the aggregate,
do not and are not reasonably likely to have a Global Material Adverse Effect:
all applicable reporting and disclosure requirements have been met with respect
to Global Benefit Plans; there has been no "reportable event," as that term is
defined in Section 4043 of ERISA, with respect to Global Benefit Plans subject
to Title IV of ERISA for which the 30-day reporting requirement has not been
waived; to the extent applicable, the Global Benefit Plans comply with the
requirements of ERISA and the Code or with the regulations of any applicable
jurisdiction, and any Global Benefit Plan intended to be qualified under Section
401(a) of the Code has received a favorable determination letter from the IRS;
the Global Benefit Plans have been maintained and operated in accordance with
their terms, and, to Global's knowledge, there are no breaches of fiduciary duty
in connection with the Global Benefit Plans; there are no pending or, to
Global's knowledge, threatened claims against or otherwise involving any Global
Benefit Plan, and no
14
suit, action or other litigation (excluding claims for benefits incurred in the
ordinary course of Global Benefit Plan activities) has been brought against or
with respect to any such Global Benefit Plan; all material contributions
required to be made as of the date hereof to the Global Benefit Plans have been
made or provided for; with respect to the Global Benefit Plans or any "employee
pension benefit plans," as defined in Section 3(2) of ERISA, that are subject to
Title IV of ERISA and have been maintained or contributed to within six years
prior to the Effective Time by Global, its Subsidiaries or any trade or business
(whether or not incorporated) which is under common control, or which is treated
as a single employer, with Global or any of its Subsidiaries under Section
414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate"), (i) neither Global
nor any of its Subsidiaries has incurred any direct or indirect liability under
Title IV of ERISA in connection with any termination thereof or withdrawal
therefrom; and (ii) there does not exist any accumulated funding deficiency
within the meaning of Section 412 of the Code or Section 302 of ERISA, whether
or not waived.
(c) Neither Global nor any of its Subsidiaries nor any of its ERISA
Affiliates contributes to, or has an obligation to contribute to, and has not
within six years prior to the Effective Time contributed to, or had an
obligation to contribute to, a "multiemployer plan" within the meaning of
Section 3(37) of ERISA, and the execution of, and performance of the
transactions contemplated by, this Agreement will not (either alone or upon the
occurrence of any additional or subsequent events) constitute an event under any
benefit plan, policy, arrangement or agreement or any trust or loan (in
connection therewith) that will or may result in any payment (whether of
severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligations to fund benefits with respect
to any employee of Global or any Subsidiary thereof.
(d) No Global Benefit Plan provides medical, surgical,
hospitalization, death or similar benefits (whether or not insured) for
employees or former employees of Global or any Subsidiary of Global for periods
extending beyond their retirement or other termination of service other than (i)
coverage mandated by applicable law, (ii) death benefits under any "pension
plan" or (iii) benefits the full cost of which is borne by the current or former
employee (or his beneficiary).
Section 5.12 Labor Matters. (a) Neither Global nor any of its
Subsidiaries is a party to, or bound by, any collective bargaining agreement or
similar contract, agreement or understanding with a labor union or similar labor
organization (i) covering any employees in the U.S. or (ii) covering, in any
single instance, 10% or more of the employees of Global and its Subsidiaries
taken as a whole. As of the date of this Agreement, to Global's knowledge, there
are no organizational efforts with respect to the formation of a collective
bargaining unit presently being made or threatened (x) involving any employees
in the U.S. or (y) involving, in any single instance, 10% or more of the
employees of Global and its Subsidiaries taken as a whole.
(b) Except for such matters as do not and are not reasonably likely to
have a Global Material Adverse Effect and except as described in the Global
Reports filed prior to the date of this Agreement, (i) neither Global nor any
Subsidiary of Global has received any written complaint of any unfair labor
practice or other unlawful employment practice or any written notice of any
material violation of any federal, state or local statutes, laws, ordinances,
rules,
15
regulations, orders or directives with respect to the employment of individuals
by, or the employment practices of, Global or any Subsidiary of Global or the
work conditions or the terms and conditions of employment and wages and hours of
their respective businesses and (ii) there are no unfair labor practice charges
or other employee related complaints against Global or any Subsidiary of Global
pending or, to the knowledge of Global, threatened, before any governmental
authority by or concerning the employees working in their respective businesses.
Section 5.13 Environmental Matters. (a) Global and each Subsidiary of
Global has been and is in compliance with all applicable orders of any court,
governmental authority or arbitration board or tribunal and any applicable law,
ordinance, rule, regulation or other legal requirement (including common law)
related to human health and the environment ("Environmental Laws") except for
such matters as do not and are not reasonably likely to have, individually or in
the aggregate, a Global Material Adverse Effect. There are no past or present
facts, conditions or circumstances that interfere with the conduct of any of
their respective businesses in the manner now conducted or which interfere with
continued compliance with any Environmental Law, except for any non-compliance
or interference that is not reasonably likely to have, individually or in the
aggregate, a Global Material Adverse Effect.
(b) Except for such matters as do not and are not reasonably likely to
have, individually or in the aggregate, a Global Material Adverse Effect, no
judicial or administrative proceedings or governmental investigations are
pending or, to the knowledge of Global, threatened against Global or its
Subsidiaries that allege the violation of or seek to impose liability pursuant
to any Environmental Law, and there are no past or present facts, conditions or
circumstances at, on or arising out of, or otherwise associated with, any
current (or, to the knowledge of Global or its Subsidiaries, former) businesses,
assets or properties of the Global or any Subsidiary of Global, including but
not limited to on-site or off-site disposal, release or spill of any material,
substance or waste classified, characterized or otherwise regulated as
hazardous, toxic, pollutant, contaminant or words of similar meaning under
Environmental Laws, including petroleum or petroleum products or byproducts
("Hazardous Materials") which violate Environmental Law or are reasonably likely
to give rise to (i) costs, expenses, liabilities or obligations for any cleanup,
remediation, disposal or corrective action under any Environmental Law, (ii)
claims arising for personal injury, property damage or damage to natural
resources, or (iii) fines, penalties or injunctive relief.
(c) Neither Global nor any of its Subsidiaries has (i) received any
notice of noncompliance with, violation of, or liability or potential liability
under any Environmental Law or (ii) entered into any consent decree or order or
is subject to any order of any court or governmental authority or tribunal under
any Environmental Law or relating to the cleanup of any Hazardous Materials,
except for any such matters as do not and are not reasonably likely to have a
Global Material Adverse Effect.
Section 5.14 Intellectual Property. Global and its Subsidiaries own or
possess adequate licenses or other valid rights to use all patents, patent
rights, trademarks, trademark rights and proprietary information used or held
for use in connection with their respective businesses as currently being
conducted, except where the failure to own or possess such licenses and other
rights does not and is not reasonably likely to have, individually or in the
aggregate, a Global Material Adverse Effect, and there are no assertions or
claims challenging the validity of
16
any of the foregoing that are reasonably likely to have, individually or in the
aggregate, a Global Material Adverse Effect. The conduct of Global's and its
Subsidiaries' respective businesses as currently conducted does not conflict
with any patents, patent rights, licenses, trademarks, trademark rights, trade
names, trade name rights or copyrights of others that are reasonably likely to
have, individually or in the aggregate, a Global Material Adverse Effect. There
is no material infringement of any proprietary right owned by or licensed by or
to Global or any of its Subsidiaries that is reasonably likely to have,
individually or in the aggregate, a Global Material Adverse Effect.
Section 5.15 Decrees, Etc. Except for such matters as do not and are
not reasonably likely to have a Global Material Adverse Effect, (a) no order,
writ, fine, injunction, decree, judgment, award or determination of any court or
governmental authority or any arbitral or other dispute resolution body has been
issued or entered against Global or any Subsidiary of Global that continues to
be in effect that affects the ownership or operation of any of their respective
assets or that involves an amount greater than $5 million, and (b) since January
1, 1991, no criminal order, writ, fine, injunction, decree, judgment or
determination of any court or governmental authority has been issued against
Global or any Subsidiary of Global.
Section 5.16 Insurance. (a) Except for such matters as do not and
are not reasonably likely to have, individually or in the aggregate, a Global
Material Adverse Effect, Global and its Subsidiaries maintain insurance coverage
with financially responsible insurance companies in such amounts and against
such losses as are customary in the drilling services and oil and gas industries
on the date hereof.
(b) Except for such matters as do not and are not reasonably likely
to have, individually or in the aggregate, a Global Material Adverse Effect, no
event relating specifically to Global or its Subsidiaries (as opposed to events
affecting the drilling services or oil and gas industries in general) has
occurred that is reasonably likely, after the date of this Agreement, to result
in an upward adjustment in premiums under any insurance policies they maintain.
Excluding insurance policies that have expired and been replaced in the ordinary
course of business, no excess liability, hull or protection and indemnity
insurance policy has been canceled by the insurer within one year prior to the
date hereof, and to Global's knowledge, no threat in writing has been made to
cancel (excluding cancellation upon expiration or failure to renew) any such
insurance policy of Global or any Subsidiary of Global during the period of one
year prior to the date hereof. Prior to the date hereof, no event has occurred,
including the failure by Global or any Subsidiary of Global to give any notice
or information or by giving any inaccurate or erroneous notice or information,
which materially limits or impairs the rights of Global or any Subsidiary of
Global under any such excess liability, hull or protection and indemnity
insurance policies.
Section 5.17 No Brokers. Global has not entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligation of Global or Santa Fe to pay any finder's fees, brokerage or other
like payments in connection with the negotiations leading to this Agreement or
the consummation of the transactions contemplated hereby, except that Global has
retained Xxxxxx Xxxxxxx & Co. Incorporated as its financial advisor, the
arrangements with which have been disclosed in writing to Santa Fe prior to the
date hereof.
17
Section 5.18 Opinion of Financial Advisor. The Board of Directors of
Global has received the opinion of Xxxxxx Xxxxxxx & Co. Incorporated to the
effect that, as of the date of this Agreement, the Merger Ratio is fair, from a
financial point of view, to the holders of Global Common Stock.
Section 5.19 Santa Fe Share Ownership. Neither Global nor any of its
Subsidiaries owns any shares in the capital of Santa Fe or any other securities
convertible into or otherwise exercisable to acquire shares in the capital of
Santa Fe.
Section 5.20 Vote Required. The only votes of the holders of any
class or series of Global capital stock necessary to approve any transaction
contemplated by this Agreement are the affirmative vote in favor of the adoption
of this Agreement of the holders of at least a majority of the outstanding
shares of Global Common Stock.
Section 5.21 Ownership of Drilling Rigs and Drillships. (a) As of
the date hereof, Global or a Subsidiary of Global has good and marketable title
to the drilling rigs and drillships listed in Global's most recent annual report
on Form 10-K, in each case free and clear of all Liens except for (a) defects or
irregularities of title or encumbrances of a nature that do not materially
impair the ownership or operation of these assets and which have not had and are
not reasonably likely to have a Global Material Adverse Effect, (b) Liens that
secure obligations not yet due and payable or, if such obligations are due and
have not been paid, Liens securing such obligations that are being diligently
contested in good faith and by appropriate proceedings (any such contests
involving an amount in excess of $10 million being described in the Global
Disclosure Letter), (c) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being contested in good faith, (d)
Liens in connection with workmen's compensation, unemployment insurance or other
social security, old age pension or public liability obligations not yet due or
which are being contested in good faith, (e) operators', vendors', suppliers of
necessaries to Global's drilling rigs and drillships, carriers', warehousemen's,
repairmen's, mechanics', workmen's, materialmen's, construction or shipyard
liens (during repair or upgrade periods) or other like Liens arising by
operation of law in the ordinary course of business or statutory landlord's
liens, each of which is in respect of obligations that have not been outstanding
more than 90 days (so long as no action has been taken to file or enforce such
Liens within said 90-day period) or which are being contested in good faith and
(f) other Liens disclosed in the Global Disclosure Letter (the Liens described
in clauses (a), (b), (c), (d), (e) and (f), collectively, "Global Permitted
Liens"). No such asset is leased under an operating lease from a lessor that, to
Global's knowledge, has incurred non-recourse indebtedness to finance the
acquisition or construction of such asset.
(b) As of the date hereof and except as would not have a Global
Material Adverse Effect, Global has caused the drilling rigs and drillships
listed in Global's most recent annual report on 10-K to be maintained consistent
with general practice in the offshore drilling industry, and all such drilling
rigs and drillships are in good operating condition and repair consistent with
general practice in the offshore drilling industry.
Section 5.22 Undisclosed Liabilities. Neither Global nor any of its
Subsidiaries has any liabilities or obligations of any nature, whether or not
fixed, accrued, contingent or otherwise, except liabilities and obligations that
(i) are disclosed in the Global Reports filed prior
18
to the date of this Agreement, (ii) are referred to in the Global Disclosure
Letter, or (iii) do not and are not reasonably likely to have, individually or
in the aggregate, a Global Material Adverse Effect.
Section 5.23 Certain Contracts. (a) Section 5.23 of the Global
Disclosure Letter contains a list of all of the following contracts or
agreements (other than those set forth on an exhibit index in the Global Reports
filed prior to the date of this Agreement) to which Global or any Subsidiary of
Global is a party or by which any of them or their assets is bound as of the
date of this Agreement: (i) any non-competition agreement that purports to limit
the manner in which, or the localities in which, all or any portion of their
respective businesses is conducted, other than any such limitation that is not
material to Global and its Subsidiaries, taken as a whole, and will not be
material to Santa Fe and its Subsidiaries, taken as a whole, following the
Effective Time, (ii) any drilling rig construction or conversion contract with
respect to which the drilling rig has not been delivered and paid for, (iii) any
drilling contracts of one year or greater remaining duration including fixed
price customer options, (iv) any contract or agreement for the borrowing of
money with a borrowing capacity or outstanding indebtedness of $50 million or
more or (v) any "material contract" (as such term is defined in Item 601(b)(10)
of Regulation S-K of the SEC) (all contracts or agreements of the types
described in clauses (i) through (v) being referred to herein as "Global
Material Contracts").
(b) As of the date of this Agreement, each Global Material Contract
is, to the knowledge of Global, in full force and effect, and Global and each of
its Subsidiaries have in all material respects performed all obligations
required to be performed by them to date under each Global Material Contract to
which it is a party, except where such failure to be binding or in full force
and effect or such failure to perform does not and is not reasonably likely to
create, individually or in the aggregate, a Global Material Adverse Effect.
Except for such matters as do not and are not reasonably likely to have a Global
Material Adverse Effect, neither Global nor any of its Subsidiaries (x) knows
of, or has received written notice of, any breach of or violation or default
under (nor, to the knowledge of Global, does there exist any condition which
with the passage of time or the giving of notice or both would result in such a
violation or default under) any Global Material Contract or (y) has received
written notice of the desire of the other party or parties to any such Global
Material Contract to exercise any rights such party has to cancel, terminate or
repudiate such contract or exercise remedies thereunder. Except as would not be
reasonably likely to have, individually or in the aggregate, a Global Material
Adverse Effect, the consummation of the transactions contemplated by this
Agreement will not breach or violate any Global Material Contract or permit any
other party to a Global Material Contract to exercise rights adverse to Global.
Each Global Material Contract is enforceable by Global or a Subsidiary of Global
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
and general principles of equity, except where such unenforceability is not
reasonably likely to create, individually or in the aggregate, a Global Material
Adverse Effect.
Section 5.24 Capital Expenditure Program. As of the date of this
Agreement, the Global Disclosure Letter accurately sets forth in all material
respects, for each of Global's sustaining and life extension capital expenditure
programs, the capital expenditures for all such programs that were forecasted to
be incurred in each of 2001 and 2002 on a monthly basis, as
19
previously provided to Santa Fe. Global has no newbuild rigs under
construction or contracted to be built.
Section 5.25 Improper Payments. No bribes, kickbacks or other
improper payments have been made by Global or any Subsidiary of Global or agent
of any of them in connection with the conduct of their respective businesses or
the operation of their respective assets, and neither Global, any Subsidiary of
Global nor any agent of any of them has received any such payments from vendors,
suppliers or other persons, where any such payment made or received is
reasonably likely to have a Global Material Adverse Effect.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
OF SANTA FE, SUB AND MERGER SUB
Except as set forth in the disclosure letter delivered to Global by
Santa Fe at or prior to the execution hereof (the "Santa Fe Disclosure Letter")
and making reference to the particular subsection of this Agreement to which
exception is being taken, Santa Fe, Sub and Merger Sub, jointly and severally,
represent and warrant to Global that:
Section 6.1 Existence; Good Standing; Corporate Authority. Each of
Santa Fe, Sub and Merger Sub is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation. Santa Fe is duly
qualified to do business and, to the extent such concept or similar concept
exists in the relevant jurisdiction, is in good standing under the laws of any
jurisdiction in which the character of the properties owned or leased by it
therein or in which the transaction of its business makes such qualification
necessary, except where the failure to be so qualified does not and is not
reasonably likely to have, individually or in the aggregate, a Santa Fe Material
Adverse Effect (as defined in Section 10.9). Santa Fe has all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now conducted. The copies of Santa Fe's memorandum of
association and articles of association and the comparable charter and
organizational documents of Sub and Merger Sub previously made available to
Global are true and correct and contain all amendments as of the date hereof.
Section 6.2 Authorization, Validity and Effect of Agreements. Each
of Santa Fe, Sub and Merger Sub has the requisite corporate power and authority
to execute and deliver this Agreement and all other agreements and documents
contemplated hereby to which it is a party. The consummation by each of Santa
Fe, Sub and Merger Sub of the transactions contemplated hereby, including the
issuance by Santa Fe and delivery by Sub of Santa Fe Ordinary Shares pursuant to
the Merger, have been duly authorized by all requisite corporate action on
behalf of Santa Fe, other than the approvals referred to in Section 6.20. This
Agreement constitutes the valid and legally binding obligation of Santa Fe, Sub
and Merger Sub, enforceable against Santa Fe, Sub or Merger Sub, as applicable,
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors' rights
and general principles of equity.
20
Section 6.3 Capitalization. The authorized share capital of Santa Fe
consists of 600,000,000 Santa Fe Ordinary Shares. As of July 31, 2001, there
were 115,483,594 Santa Fe Ordinary Shares issued, including 196,865 restricted
shares, and 5,212,977 Santa Fe Ordinary Shares reserved for issuance upon
exercise of outstanding Santa Fe options. All such issued Santa Fe Ordinary
Shares are duly authorized, validly issued, fully paid, nonassessable and free
of preemptive rights. The Santa Fe Ordinary Shares to be issued in connection
with the Merger, when issued in accordance with this Agreement, will be validly
issued, fully paid, nonassessable and free of preemptive rights. As of the date
of this Agreement, except as set forth in this Section 6.3, there are no
outstanding shares, and there are no options, warrants, calls, subscriptions,
convertible securities or other rights, agreements or commitments which obligate
Santa Fe or any of its Subsidiaries to issue, transfer or sell any shares or
other voting securities of Santa Fe or any of its Subsidiaries. Santa Fe has no
outstanding bonds, debentures, notes or other obligations the holders of which
have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the shareholders of Santa Fe on any
matter.
Section 6.4 Subsidiaries. (a) Each of Santa Fe's Significant
Subsidiaries is a corporation or other legal entity duly organized, validly
existing and, to the extent such concept or similar concept exists in the
relevant jurisdiction, in good standing under the laws of its jurisdiction of
incorporation or organization, has the corporate or other entity power and
authority to own, operate and lease its properties and to carry on its business
as it is now being conducted, and is duly qualified to do business and is in
good standing (where applicable) in each jurisdiction in which the ownership,
operation or lease of its property or the conduct of its business requires such
qualification, except for jurisdictions in which such failure to be so qualified
or to be in good standing does not and is not reasonably likely to have a Santa
Fe Material Adverse Effect. As of the date of this Agreement, all of the
outstanding shares of capital stock of, or other ownership interests in, each of
Santa Fe's Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable, and are owned, directly or indirectly, by Santa Fe free and clear
of all Liens.
(b) Sub and Merger Sub. All of the outstanding capital stock of
Merger Sub is owned directly by Sub, all of the outstanding capital stock of Sub
is owned directly by Santa Fe, and Merger Sub has been formed solely for the
purpose of engaging in the transactions contemplated hereby and, as of the
Effective Time, will have not engaged in any activities other than in connection
with the transactions contemplated by this Agreement. Immediately prior to the
Effective Time, Merger Sub will have 100 outstanding shares of its common stock,
par value $0.01 per share.
Section 6.5 Compliance with Laws; Permits. Except for such matters
as, individually or in the aggregate, do not or are not reasonably likely to
have a Santa Fe Material Adverse Effect and except for matters arising under
Environmental Laws which are treated exclusively in Section 6.13:
(a) Neither Santa Fe nor any Subsidiary of Santa Fe is in
violation of any Applicable Laws and no claim is pending or, to the
knowledge of Santa Fe, threatened with respect to any such matters. No
condition exists which does or is reasonably likely
21
to constitute a violation of or deficiency under any Applicable Law by
Santa Fe or any Subsidiary of Santa Fe.
(b) Santa Fe and each Subsidiary of Santa Fe hold all permits,
licenses, certifications, variations, exemptions, orders, franchises
and approvals of all governmental or regulatory authorities necessary
for the conduct of their respective businesses (the "Santa Fe
Permits"). All Santa Fe Permits are in full force and effect and there
exists no default thereunder or breach thereof, and Santa Fe has no
notice or actual knowledge that such Santa Fe Permits will not be
renewed in the ordinary course after the Effective Time. No
governmental authority has given, or to the knowledge of Santa Fe
threatened to give, any action to terminate, cancel or reform any Santa
Fe Permit.
(c) Each drilling rig, drillship or other drilling unit owned or
leased by Santa Fe or a subsidiary of Santa Fe which is subject to
classification is in class according to the rules and regulations of
the applicable classifying body and is duly and lawfully documented
under the laws of its flag jurisdiction.
(d) Santa Fe and each Subsidiary of Santa Fe possess all permits,
licenses, operating authorities, orders, exemptions, franchises,
variances, consents, approvals or other authorizations required for the
present ownership and operation of all its real property or leaseholds
("Santa Fe Real Property"). There exists no material default or breach
with respect to, and no party or governmental authority has taken or,
to the knowledge of Santa Fe, threatened to take, any action to
terminate, cancel or reform any such permit, license, operating
authority, order, exemption, franchise, variance, consent, approval or
other authorization pertaining to the Santa Fe Real Property.
Section 6.6 No Conflict. (a) Neither the execution and delivery by
Santa Fe, Sub and Merger Sub of this Agreement nor the consummation by Santa Fe,
Sub and Merger Sub of the transactions contemplated hereby in accordance with
the terms hereof will (i) subject to the approvals referred to in Section 6.20,
conflict with or result in a breach of any provisions of the memorandum of
association or articles of association of Santa Fe or the certificate of
incorporation or bylaws of Sub or Merger Sub; (ii) violate, or conflict with, or
result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the termination or in a right of termination or cancellation of, or
give rise to a right of purchase under or accelerate the performance required
by, or result in the creation of any Lien upon any of the properties of Santa Fe
or its Subsidiaries under, or result in being declared void, voidable, or
without further binding effect, or otherwise result in a detriment to Santa Fe
or any of its Subsidiaries under any of the terms, conditions or provisions of,
any note, bond, mortgage, indenture, deed of trust, license, franchise, permit,
lease, contract, agreement, joint venture or other instrument or obligation to
which Santa Fe or any of its Subsidiaries is a party, or by which Santa Fe or
any of its Subsidiaries or any of their properties is bound or affected; or
(iii) subject to the filings and other matters referred to in Section 6.6(b),
contravene or conflict with or constitute a violation of any provision of any
law, rule, regulation, judgment, order or decree binding upon or applicable to
Santa Fe or any of its Subsidiaries, except for such matters described in clause
(ii) or (iii) as do not and are not reasonably likely to have, individually or
in the aggregate, a Santa Fe Material Adverse Effect.
22
(b) Neither the execution and delivery by Santa Fe, Sub or Merger
Sub of this Agreement nor the consummation by Santa Fe, Sub or Merger Sub of the
transactions contemplated hereby in accordance with the terms hereof will
require any consent, approval or authorization of, or filing or registration
with, any governmental or regulatory authority, other than the Regulatory
Filings and the filing of a listing application with the NYSE pursuant to
Section 7.9(a) and the filing of the resolutions relating to the Santa Fe
Amendments with the Registrar of Companies of the Cayman Islands, except for any
consent, approval or authorization the failure of which to obtain and for any
filing or registration the failure of which to make does not and is not
reasonably likely to have a Santa Fe Material Adverse Effect.
Section 6.7 SEC Documents. Santa Fe has filed with the SEC all
documents (including exhibits and any amendments thereto) required to be so
filed by it since January 1, 1999 pursuant to Sections 13(a), 14(a) and 15(d) of
the Exchange Act, and has made available to Global each registration statement,
report, proxy statement or information statement (other than preliminary
materials) it has so filed, each in the form (including exhibits and any
amendments thereto) filed with the SEC (collectively, the "Santa Fe Reports").
As of its respective date, each Santa Fe Report (i) complied in all material
respects in accordance with the applicable requirements of the Exchange Act and
the rules and regulations thereunder and (ii) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading except for such
statements, if any, as have been modified by subsequent filings with the SEC
prior to the date hereof. Each of the consolidated balance sheets included in or
incorporated by reference into the Santa Fe Reports (including the related notes
and schedules) fairly presents in all material respects the consolidated
financial position of Santa Fe and its Subsidiaries as of its date, and each of
the consolidated statements of operations, cash flows and changes in
shareholders equity included in or incorporated by reference into the Santa Fe
Reports (including any related notes and schedules) fairly presents in all
material respects the results of operations, cash flows or changes in
shareholders equity, as the case may be, of Santa Fe and its Subsidiaries for
the periods set forth therein (subject, in the case of unaudited statements, to
(x) such exceptions as may be permitted by Form 10-Q of the SEC and (y) normal
year-end audit adjustments), in each case in accordance with generally accepted
accounting principles consistently applied during the periods involved, except
as may be noted therein. Except as and to the extent set forth on the
consolidated balance sheet of Santa Fe and its Subsidiaries included in the most
recent Santa Fe Report filed prior to the date of this Agreement that includes
such a balance sheet, including all notes thereto, as of the date of such
balance sheet, neither Santa Fe nor any of its Subsidiaries has any liabilities
or obligations of any nature (whether accrued, absolute, contingent or
otherwise) that would be required to be reflected on, or reserved against in, a
balance sheet of Santa Fe or in the notes thereto prepared in accordance with
generally accepted accounting principles consistently applied, other than
liabilities or obligations which do not and are not reasonably likely to have,
individually or in the aggregate, a Santa Fe Material Adverse Effect.
Section 6.8 Litigation. Except as described in the Santa Fe Reports
filed prior to the date of this Agreement, there are no actions, suits or
proceedings pending against Santa Fe or any of its Subsidiaries or, to Santa
Fe's knowledge, threatened against Santa Fe or any of its Subsidiaries, at law
or in equity or in any arbitration or similar proceedings, before or by any U.S.
federal, state or non-U.S. court, commission, board, bureau, agency or
instrumentality or
23
any U.S. or non-U.S. arbitral or other dispute resolution body, that are
reasonably likely to have, individually or in the aggregate, a Santa Fe Material
Adverse Effect.
Section 6.9 Absence of Certain Changes. From December 31, 2000
to the date of this Agreement, there has not been (i) any event or occurrence
that has had or is reasonably likely to have a Santa Fe Material Adverse Effect,
(ii) any material change by Santa Fe or any of its Subsidiaries, when taken as a
whole, in any of its accounting methods, principles or practices or any of its
tax methods, practices or elections, (iii) any declaration, setting aside or
payment of any dividend or distribution in respect of any share capital of Santa
Fe or any redemption, purchase or other acquisition of any of its securities,
except dividends on Santa Fe Ordinary Shares at a rate of not more than $0.0325
per share per quarter or (iv) any increase in or establishment of any bonus,
insurance, severance, deferred compensation, pension, retirement, profit
sharing, stock option, stock purchase or other employee benefit plan, except in
the ordinary course of business consistent with past practice.
Section 6.10 Taxes. (a) All Returns required to be filed by or with
respect to Santa Fe and any of its Subsidiaries (including any Return required
to be filed by a consolidated, combined or unitary group that included Santa Fe
or any of its Subsidiaries) on or prior to the date hereof have been duly filed
on a timely basis with the appropriate governmental authorities, except to the
extent that any failure to file does not and is not reasonably likely to have,
individually or in the aggregate, a Santa Fe Material Adverse Effect, and all
taxes due with such Returns have been duly paid, or deposited in full on a
timely basis or adequately reserved for in accordance with generally accepted
accounting principles, except to the extent that any failure to pay or deposit
or make adequate provision for the payment of such taxes does not and is not
reasonably likely to have, individually or in the aggregate, a Santa Fe Material
Adverse Effect. Representations made in this Section 6.10 are made to the
knowledge of Santa Fe to the extent that the representations relate to a
corporation which was, but is not currently, a part of Santa Fe's or any
Subsidiary's affiliated, consolidated, combined unitary or similar group.
(b) Except to the extent not reasonably likely to have,
individually or in the aggregate, a Santa Fe Material Adverse Effect, (i) no
audits or other administrative proceedings or court proceedings are presently
pending with regard to any taxes or Returns of Santa Fe or any of its
Subsidiaries as to which any taxing authority has asserted in writing any claim;
(ii) no governmental authority is now asserting in writing any deficiency or
claim for taxes or any adjustment to taxes with respect to which Santa Fe or any
of its Subsidiaries may be liable with respect to income and other material
taxes which have not been fully paid or finally settled; and (iii) neither Santa
Fe nor any of its Subsidiaries has any liability for taxes under Treas. Reg. ss.
1.1502-6 or any similar provision of state, local, or non-U.S. tax law, except
for taxes of the affiliated group of which Santa Fe or any of its Subsidiaries
is the common parent, within the meaning of Section 1504(a)(1) of the Code or
any similar provision of state, local, or non-U.S. tax law. As of the date of
this Agreement, neither Santa Fe nor any of its Subsidiaries has granted any
requests, agreements, consents or waivers to extend the statutory period of
limitations applicable to the assessment of any taxes with respect to any
Returns of Santa Fe or any of its Subsidiaries. Neither Santa Fe nor any of its
Subsidiaries is a party to any closing agreement described in Section 7121 of
the Code or any predecessor provision thereof or any similar agreement under
state, local, or non-U.S. tax law. Neither Santa Fe nor any of its Subsidiaries
is a party to, is bound by or has any obligation under any tax sharing,
allocation or
24
indemnity agreement or any similar agreement or arrangement. Neither Santa Fe
nor any of its Subsidiaries has made an election under Section 341(f) of the
Code. To the knowledge of Santa Fe, Santa Fe has not been a United States real
property holding corporation within the meaning of Section 897(c)(2) of the Code
at any time within the past five years.
Section 6.11 Employee Benefit Plans. (a) Section 6.11 of the
Santa Fe Disclosure Letter contains a list of all Santa Fe Benefit Plans. The
term "Santa Fe Benefit Plans" means all material employee benefit plans and
other material benefit arrangements, including all "employee benefit plans" as
defined in Section 3(3) of ERISA, whether or not U.S.-based plans, and all other
material employee benefit, bonus, incentive, deferred compensation, stock option
(or other equity-based), severance, employment, change in control, welfare
(including post-retirement medical and life insurance) and fringe benefit plans
or agreements, whether or not subject to ERISA or U.S.-based and whether written
or oral, sponsored, maintained or contributed to or required to be contributed
to by Santa Fe or any of its Subsidiaries, to which Santa Fe or any of its
Subsidiaries is a party or is required to provide benefits under applicable law
or in which any person who is currently, has been or, prior to the Effective
Time, is expected to become an employee of Santa Fe is a participant. Santa Fe
will provide Global, within 30 days after the date hereof, with true and
complete copies of the Santa Fe Benefit Plans and, if applicable, the most
recent trust agreements, Forms 5500, summary plan descriptions, funding
statements, annual reports and actuarial reports, if applicable, for each such
plan.
(b) Except for such matters as, individually or in the
aggregate, do not and are not reasonably likely to have a Santa Fe Material
Adverse Effect: all applicable reporting and disclosure requirements have been
met with respect to Santa Fe Benefit Plans; there has been no "reportable
event," as that term is defined in Section 4043 of ERISA, with respect to Santa
Fe Benefit Plans subject to Title IV of ERISA for which the 30-day reporting
requirement has not been waived; to the extent applicable, Santa Fe Benefit
Plans comply with the requirements of ERISA and the Code or with the regulations
of any applicable jurisdiction, and any Santa Fe Benefit Plan intended to be
qualified under Section 401(a) of the Code has received a favorable
determination letter from the IRS; Santa Fe Benefit Plans have been maintained
and operated in accordance with their terms, and, to Santa Fe's knowledge, there
are no breaches of fiduciary duty in connection with Santa Fe Benefit Plans;
there are no pending, or to Santa Fe's knowledge, threatened claims against or
otherwise involving any Santa Fe Benefit Plan, and no suit, action or other
litigation (excluding claims for benefits incurred in the ordinary course of
Santa Fe Benefit Plan activities) has been brought against or with respect to
any such Santa Fe Benefit Plan; all material contributions required to be made
as of the date hereof to Santa Fe Benefit Plans have been made or provided for;
with respect to Santa Fe Benefit Plans or any "employee pension benefit plans,"
as defined in Section 3(2) of ERISA, that are subject to Title IV of ERISA and
have been maintained or contributed to within six years prior to the Effective
Time by Santa Fe, its Subsidiaries or any of its ERISA Affiliates, (i) neither
Santa Fe nor any of its Subsidiaries has incurred any direct or indirect
liability under Title IV of ERISA in connection with any termination thereof or
withdrawal therefrom; and (ii) there does not exist any accumulated funding
deficiency within the meaning of Section 412 of the Code or Section 302 of
ERISA, whether or not waived.
(c) Neither Santa Fe nor any of its Subsidiaries nor any of
its ERISA Affiliates contributes to, or has an obligation to contribute to, and
has not within six years prior
25
to the Effective Time contributed to, or had an obligation to contribute to, a
"multiemployer plan" within the meaning of Section 3(37) of ERISA, and the
execution of, and performance of the transactions contemplated by, this
Agreement will not (either alone or upon the occurrence of any additional or
subsequent events) constitute an event under any benefit plan, policy,
arrangement or agreement or any trust or loan (in connection therewith) that
will or may result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligations to fund benefits with respect to any employee of Santa
Fe or any Subsidiary thereof.
(d) No Santa Fe Benefit Plan provides medical, surgical,
hospitalization, death or similar benefits (whether or not insured) for
employees or former employees of Santa Fe or any Subsidiary of Santa Fe for
periods extending beyond their retirement or other termination of service other
than (i) coverage mandated by applicable law, (ii) death benefits under any
"pension plan" or (iii) benefits the full cost of which is borne by the current
or former employee (or his beneficiary).
Section 6.12 Labor Matters. (a) Neither Santa Fe nor any of
its Subsidiaries is a party to, or bound by, any collective bargaining agreement
or similar contract, agreement or understanding with a labor union or similar
labor organization (i) covering any employees in the U.S. or (ii) covering, in
any single instance, 10% or more of the employees of Santa Fe and its
Subsidiaries taken as a whole. As of the date of this Agreement, to Santa Fe's
knowledge, there are no organizational efforts with respect to the formation of
a collective bargaining unit presently being made or threatened (x) involving
any employees in the U.S. or (y) involving, in any single instance, 10% or more
of the employees of Santa Fe and its Subsidiaries taken as a whole.
(b) Except for such matters as do not and are not reasonably
likely to have a Santa Fe Material Adverse Effect and except as described in the
Santa Fe Reports filed prior to the date of this Agreement, (i) neither Santa Fe
nor any Subsidiary of Santa Fe has received any written complaint of any unfair
labor practice or other unlawful employment practice or any written notice of
any material violation of any federal, state or local statutes, laws,
ordinances, rules, regulations, orders or directives with respect to the
employment of individuals by, or the employment practices of, Santa Fe or any
Subsidiary of Santa Fe or the work conditions or the terms and conditions of
employment and wages and hours of their respective businesses and (ii) there are
no unfair labor practice charges or other employee related complaints against
Santa Fe or any Subsidiary of Santa Fe pending or, to the knowledge of Santa Fe,
threatened, before any governmental authority by or concerning the employees
working in their respective businesses.
Section 6.13 Environmental Matters. (a) Santa Fe and each
Subsidiary of Santa Fe has been and is in compliance with all Environmental Laws
except for such matters as do not and are not reasonably likely to have,
individually or in the aggregate, a Santa Fe Material Adverse Effect. There are
no past or present facts, conditions or circumstances that interfere with the
conduct of any of their respective businesses in the manner now conducted or
which interfere with continued compliance with any Environmental Law, except for
any non-compliance or interference that is not reasonably likely to have,
individually or in the aggregate, a Santa Fe Material Adverse Effect.
26
(b) Except for such matters as do not and are not reasonably
likely to have, individually or in the aggregate, a Santa Fe Material Adverse
Effect, no judicial or administrative proceedings or governmental investigations
are pending or, to the knowledge of Santa Fe, threatened against Santa Fe or its
Subsidiaries that allege the violation of or seek to impose liability pursuant
to any Environmental Law, and there are no past or present facts, conditions or
circumstances at, on or arising out of, or otherwise associated with, any
current (or, to the knowledge of Santa Fe or its Subsidiaries, former)
businesses, assets or properties of Santa Fe or any Subsidiary of Santa Fe,
including but not limited to on-site or off-site disposal, release or spill of
any Hazardous Materials which violate Environmental Law or are reasonably likely
to give rise to (i) costs, expenses, liabilities or obligations for any cleanup,
remediation, disposal or corrective action under any Environmental Law, (ii)
claims arising for personal injury, property damage or damage to natural
resources, or (iii) fines, penalties or injunctive relief.
(c) Neither Santa Fe nor any of its Subsidiaries has (i)
received any notice of noncompliance with, violation of, or liability or
potential liability under any Environmental Law or (ii) entered into any consent
decree or order or is subject to any order of any court or governmental
authority or tribunal under any Environmental Law or relating to the cleanup of
any Hazardous Materials, except for any such matters as do not and are not
reasonably likely to have a Santa Fe Material Adverse Effect.
Section 6.14 Intellectual Property. Santa Fe and its
Subsidiaries own or possess adequate licenses or other valid rights to use all
patents, patent rights, trademarks, trademark rights and proprietary information
used or held for use in connection with their respective businesses as currently
being conducted, except where the failure to own or possess such licenses and
other rights does not and is not reasonably likely to have, individually or in
the aggregate, a Santa Fe Material Adverse Effect, and there are no assertions
or claims challenging the validity of any of the foregoing that are reasonably
likely to have, individually or in the aggregate, a Santa Fe Material Adverse
Effect. The conduct of Santa Fe's and its Subsidiaries' respective businesses as
currently conducted does not conflict with any patents, patent rights, licenses,
trademarks, trademark rights, trade names, trade name rights or copyrights of
others that are reasonably likely to have, individually or in the aggregate, a
Santa Fe Material Adverse Effect. There is no material infringement of any
proprietary right owned by or licensed by or to Santa Fe or any of its
Subsidiaries that is reasonably likely to have, individually or in the
aggregate, a Santa Fe Material Adverse Effect.
Section 6.15 Decrees, Etc. Except for such matters as do not
and are not reasonably likely to have a Santa Fe Material Adverse Effect, (a) no
order, writ, fine, injunction, decree, judgment, award or determination of any
court or governmental authority or any arbitral or other dispute resolution body
has been issued or entered against Santa Fe or any Subsidiary of Santa Fe that
continues to be in effect that affects the ownership or operation of any of
their respective assets or that involves an amount greater than $5 million, and
(b) since January 1, 1991, no criminal order, writ, fine, injunction, decree,
judgment or determination of any court or governmental authority has been issued
against Santa Fe or any Subsidiary of Santa Fe.
Section 6.16 Insurance. (a) Except for such matters as do not
and are not reasonably likely to have, individually or in the aggregate, a Santa
Fe Material Adverse Effect, Santa Fe and its Subsidiaries maintain insurance
coverage with financially responsible insurance
27
companies in such amounts and against such losses as are customary in the
drilling services industry on the date hereof.
(b) Except for such matters as do not and are not reasonably
likely to have, individually or in the aggregate, a Santa Fe Material Adverse
Effect, no event relating specifically to Santa Fe or its Subsidiaries (as
opposed to events affecting the drilling services industry in general) has
occurred that is reasonably likely, after the date of this Agreement, to result
in an upward adjustment in premiums under any insurance policies they maintain.
Excluding insurance policies that have expired and been replaced in the ordinary
course of business, no excess liability, hull or protection and indemnity
insurance policy has been canceled by the insurer within one year prior to the
date hereof, and to Santa Fe's knowledge, no threat in writing has been made to
cancel (excluding cancellation upon expiration or failure to renew) any such
insurance policy of Santa Fe or any Subsidiary of Santa Fe during the period of
one year prior to the date hereof. Prior to the date hereof, no event has
occurred, including the failure by Santa Fe or any Subsidiary of Santa Fe to
give any notice or information or by giving any inaccurate or erroneous notice
or information, which materially limits or impairs the rights of Santa Fe or any
Subsidiary of Santa Fe under any such excess liability, hull or protection and
indemnity insurance policies.
Section 6.17 No Brokers. Santa Fe has not entered into any
contract, arrangement or understanding with any person or firm which may result
in the obligation of Global or Santa Fe to pay any finder's fees, brokerage or
other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby, except
that Santa Fe has retained Credit Suisse First Boston Corporation as its
financial advisor, the arrangements with which have been disclosed in writing to
Global prior to the date hereof.
Section 6.18 Opinion of Financial Advisor. The Board of
Directors of Santa Fe has received the opinion of Credit Suisse First Boston
Corporation to the effect that, as of the date of this Agreement, the Merger
Ratio is fair to Santa Fe from a financial point of view.
Section 6.19 Global Stock Ownership. Neither Santa Fe nor any
of its Subsidiaries owns any shares of capital stock of Global or any other
securities convertible into or otherwise exercisable to acquire capital stock of
Global.
Section 6.20 Vote Required. The only votes of the holders of
any class or series of Santa Fe share capital necessary to approve any
transaction contemplated by this Agreement are (a) the vote of the holders of
Santa Fe Ordinary Shares required by the rules of the NYSE to approve the
issuance of Santa Fe Ordinary Shares pursuant to the Merger and (b) the
affirmative vote of at least two-thirds of the votes represented by the holders
of the issued Santa Fe Ordinary Shares present in person or by proxy at a
meeting to be held in accordance with Section 7.4 to approve the Santa Fe
Amendments.
Section 6.21 Ownership of Drilling Rigs and Drillships. (a) As
of the date hereof, Santa Fe or a Subsidiary of Santa Fe has good and marketable
title to the drilling rigs and drillships listed in Santa Fe's most recent
annual report on Form 10-K, in each case free and clear of all Liens except for
(a) defects or irregularities of title or encumbrances of a nature that
28
do not materially impair the ownership or operation of these assets and which
have not had and are not reasonably likely to have a Santa Fe Material Adverse
Effect, (b) Liens that secure obligations not yet due and payable or, if such
obligations are due and have not been paid, Liens securing such obligations that
are being diligently contested in good faith and by appropriate proceedings (any
such contests involving an amount in excess of $10 million being described in
the Santa Fe Disclosure Letter), (c) Liens for taxes, assessments or other
governmental charges or levies not yet due or which are being contested in good
faith, (d) Liens in connection with workmen's compensation, unemployment
insurance or other social security, old age pension or public liability
obligations not yet due or which are being contested in good faith, (e)
operators', vendors', suppliers of necessaries to Santa Fe's drilling rigs and
drillships, carriers', warehousemen's, repairmen's, mechanics', workmen's,
materialmen's, construction or shipyard liens (during repair or upgrade periods)
or other like Liens arising by operation of law in the ordinary course of
business or statutory landlord's liens, each of which is in respect of
obligations that have not been outstanding more than 90 days (so long as no
action has been taken to file or enforce such Liens within said 90-day period)
or which are being contested in good faith and (f) other Liens disclosed in the
Santa Fe Disclosure Letter (the Liens described in clauses (a), (b), (c), (d),
(e) and (f), collectively, "Santa Fe Permitted Liens"). No such asset is leased
under an operating lease from a lessor that, to Santa Fe's knowledge, has
incurred non-recourse indebtedness to finance the acquisition or construction of
such asset.
(b) As of the date hereof and except as would not have Santa
Fe Material Adverse Effect, Santa Fe has caused the drilling rigs and drillships
listed in Santa Fe's most recent annual report on Form 10-K to be maintained
consistent with general practice in the offshore drilling industry, and all such
drilling rigs and drillships are in good operating condition and repair
consistent with general practice in the offshore drilling industry.
Section 6.22 Undisclosed Liabilities. Neither Santa Fe nor any
of its Subsidiaries has any liabilities or obligations of any nature, whether or
not fixed, accrued, contingent or otherwise, except liabilities and obligations
that (i) are disclosed in the Santa Fe Reports filed prior to the date of this
Agreement, (ii) are referred to in the Santa Fe Disclosure Letter, or (iii) do
not and are not reasonably likely to have, individually or in the aggregate, a
Santa Fe Material Adverse Effect.
Section 6.23 Certain Contracts. (a) Section 6.23 of the Santa
Fe Disclosure Letter contains a list of all of the following contracts or
agreements (other than those set forth on an exhibit index in the Santa Fe
Reports filed prior to the date of this Agreement) to which Santa Fe or any
Subsidiary of Santa Fe is a party or by which any of them or their assets is
bound as of the date of this Agreement: (i) any non-competition agreement that
purports to limit the manner in which, or the localities in which, all or any
portion of their respective businesses is conducted other than any such
limitation that is not, and will not be following the Effective Time, material
to Santa Fe and its Subsidiaries, taken as a whole, (ii) any drilling rig
construction or conversion contract with respect to which the drilling rig has
not been delivered and paid for, (iii) any drilling contracts of one year or
greater remaining duration including fixed price customer options, (iv) any
contract or agreement for the borrowing of money with a borrowing capacity or
outstanding indebtedness of $50 million or more or (v) any "material contract"
(as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) (all
contracts or agreements of the
29
types described in clauses (i) through (v) being referred to herein as "Santa Fe
Material Contracts").[B
(b) As of the date of this Agreement, each Santa Fe Material
Contract is, to the knowledge of Santa Fe, in full force and effect, and Santa
Fe and each of its Subsidiaries have in all material respects performed all
obligations required to be performed by them to date under each Santa Fe
Material Contract to which it is a party, except where such failure to be
binding or in full force and effect or such failure to perform does not and is
not reasonably likely to create, individually or in the aggregate, a Santa Fe
Material Adverse Effect. Except for such matters as do not and are not
reasonably likely to have a Santa Fe Material Adverse Effect, neither Santa Fe
nor any of its Subsidiaries (x) knows of, or has received written notice of, any
breach of or violation or default under (nor, to the knowledge of Santa Fe, does
there exist any condition which with the passage of time or the giving of notice
or both would result in such a violation or default under) any Santa Fe Material
Contract or (y) has received written notice of the desire of the other party or
parties to any such Santa Fe Material Contract to exercise any rights such party
has to cancel, terminate or repudiate such contract or exercise remedies
thereunder. Except as would not be reasonably likely to have, individually or in
the aggregate, a Santa Fe Material Adverse Effect, the consummation of the
transactions contemplated by this Agreement will not breach or violate any Santa
Fe Material Contract or permit any other party to a Santa Fe Material Contract
to exercise rights adverse to Santa Fe. Each Santa Fe Material Contract is
enforceable by Santa Fe or a Subsidiary of Santa Fe in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws relating to creditors' rights and general principles of
equity, except where such unenforceability is not reasonably likely to create,
individually or in the aggregate, a Global Material Adverse Effect.
Section 6.24 Capital Expenditure Program. As of the date of
this Agreement, the Santa Fe Disclosure Letter accurately sets forth in all
material respects, for each of Santa Fe's sustaining, life extension and
newbuild capital expenditure programs, the capital expenditures for all such
programs that were forecasted to be incurred from July 1, 2001 through December
31, 2002 on a calendar quarter basis, as previously provided to Global. The
construction in progress attributable to the newbuilds and included in the
consolidated balance sheet of Santa Fe at June 30, 2001 included in the Santa Fe
Reports and the projected newbuild capital expenditures to be incurred in 2001
and thereafter as previously provided to Global equal the projected total
construction costs to complete such newbuilds, as at the time of such forecast.
Section 6.25 Improper Payments. No bribes, kickbacks or other
improper payments have been made by Santa Fe or any Subsidiary of Santa Fe or
agent of any of them in connection with the conduct of their respective
businesses or the operation of their respective assets, and neither Santa Fe,
any Subsidiary of Santa Fe, nor any agent of any of them has received any such
payments from vendors, suppliers or other persons, where any such payment made
or received is reasonably likely to have a Santa Fe Material Adverse Effect.
30
ARTICLE 7
COVENANTS
Section 7.1 Conduct of Business. Prior to the Effective Time,
except as set forth in the Santa Fe Disclosure Letter or the Global Disclosure
Letter or as expressly contemplated by any other provision of this Agreement or
(provided that the party proposing to take such action has provided the other
party with advance notice of the proposed action to the extent practicable) as
required by Applicable Laws, unless the other party has consented in writing
thereto, each of Santa Fe and Global:
(a) shall, and shall cause each of its Subsidiaries to,
conduct its operations according to their usual, regular and ordinary
course in substantially the same manner as heretofore conducted;
(b) shall use its reasonable best efforts, and shall cause
each of its Subsidiaries to use its reasonable best efforts, to
preserve intact their business organizations and goodwill (except that
any of its Subsidiaries may be merged with or into, or be consolidated
with, any of its Subsidiaries or may be liquidated into it or any of
its Subsidiaries), keep available the services of their respective
officers and employees and maintain satisfactory relationships with
those persons having business relationships with them;
(c) shall not amend its memorandum of association or
articles of association, or its certificate of incorporation or bylaws,
respectively, and in the case of Santa Fe, shall not amend the
Intercompany Agreement dated as of June 9, 1997, by and among Santa Fe,
SFIC Holdings (Cayman), Inc. and Kuwait Petroleum Corporation or any
other related agreement between Santa Fe, on the one hand, and Kuwait
Petroleum Corporation or any of its affiliates, on the other hand;
(d) shall promptly notify the other of any material change
in its condition (financial or otherwise) or business or any
termination, cancellation, repudiation or material breach of any Santa
Fe Material Contract or Global Material Contract, respectively (or
communications indicating that the same may be contemplated), or any
material litigation or proceedings (including arbitration and other
dispute resolution proceedings) or material governmental complaints,
investigations or hearings (or communications indicating that the same
may be contemplated), or the breach in any material respect of any
representation or warranty contained herein;
(e) shall promptly deliver to the other true and correct
copies of any report, statement or schedule filed with the SEC
subsequent to the date of this Agreement;
(f) shall not, (i) except pursuant to the exercise of
options, warrants, conversion rights and other contractual rights
existing on the date hereof and disclosed pursuant to this Agreement or
pursuant to the exercise of awards granted after the date hereof and
expressly permitted under this Agreement or in connection with
transactions permitted by Section 7.1(i), issue any shares of its
capital stock, effect any stock split or
31
otherwise change its capitalization as it existed on the date hereof,
(ii) grant, confer or award any option, warrant, conversion right or
other right not existing on the date hereof to acquire any shares of
its capital stock, except for (A) awards of options to acquire up to
30,000 shares of Global Common Stock, per person, to newly hired
employees or to existing employees as the result of promotions, in each
case other than officers or directors of Global (including former
officers or directors) in the ordinary course of business consistent
with past practices as set forth in Section 7.1(f) of the Global
Disclosure Letter and (B) up to 7,000, in the aggregate, of restricted
Santa Fe Ordinary Shares for award to newly hired employees, (iii)
amend or otherwise modify any option, warrant, conversion right or
other right to acquire any shares of its capital stock existing on the
date hereof, (iv) with respect to any of its former, present or future
employees (excluding officers and directors), increase any compensation
or benefits, or enter into, amend or extend (or permit the extension
of) any employment or consulting agreement, except in each case in the
ordinary course of business consistent with past practice, (v) with
respect to any of its former, present or future officers or directors,
increase any compensation or benefits or enter into, amend or extend
(or permit the extension of) any employment or consulting agreement,
(vi) adopt any new employee benefit plan or agreement (including any
stock option, stock benefit or stock purchase plan) or amend (except as
required by law) any existing employee benefit plan in any material
respect, or (vii) permit any holder of an option to acquire Santa Fe
Ordinary Shares or Global Common Stock to have shares withheld upon
exercise, for tax purposes, in excess of the number of shares needed to
satisfy the minimum statutory withholding requirements for federal and
state tax withholding;
(g) except for the payment of regular quarterly dividends
on the Santa Fe Ordinary Shares not to exceed $.0325 per share with
customary record and payment dates, shall not (i) declare, set aside or
pay any dividend or make any other distribution or payment with respect
to any shares of its share capital or capital stock or (ii) redeem,
purchase or otherwise acquire any shares of its share capital or
capital stock or capital stock of any of its Subsidiaries, or make any
commitment for any such action;
(h) shall not, and shall not permit any of its
Subsidiaries to, sell, lease or otherwise dispose of any of its assets
(including capital stock of Subsidiaries) which are, individually or in
the aggregate, material to it and its Subsidiaries as a whole, except
for (i) sales of surplus or obsolete equipment, (ii) sales of other
assets in the ordinary course of business, or (iii) sales, leases or
other transfers between such party and its wholly owned Subsidiaries or
between those Subsidiaries;
(i) shall not, and shall not permit any of its
Subsidiaries to, except pursuant to contractual commitments in effect
on the date hereof and disclosed in the Santa Fe Disclosure Letter or
the Global Disclosure Letter, acquire or agree to acquire by merging or
consolidating with, or by purchasing an equity interest in or a
substantial portion of the assets of, or by any other manner, any
business or any corporation, partnership, association or other business
organization or division thereof, in each case (i) for an aggregate
consideration for all such acquisitions in excess of $10 million
(excluding acquisitions approved in writing by both parties) or (ii)
where a filing under the HSR Act or any non -U.S. competition,
antitrust or premerger notification laws is required;
32
(j) shall not, except as may be required as a result of a
change in generally accepted accounting principles, change any of the
material accounting principles or practices used by it;
(k) shall, and shall cause any of its Subsidiaries to, use
reasonable efforts to maintain with financially responsible insurance
companies insurance in such amounts and against such risks and losses
as are customary for such party;
(l) shall not, and shall not permit any of its
Subsidiaries to, (i) make or rescind any material election relating to
taxes, including elections for any and all joint ventures,
partnerships, limited liability companies, working interests or other
investments where it has the capacity to make such binding election,
(ii) settle or compromise any material claim, action, suit, litigation,
proceeding, arbitration, investigation, audit or controversy relating
to taxes, or (iii) change in any material respect any of its methods of
reporting any item for tax purposes from those employed in the
preparation of its tax returns for the most recent taxable year for
which a return has been filed, except as may be required by applicable
law;
(m) shall not, and shall not permit any of its
Subsidiaries to, (i) incur any indebtedness for borrowed money in
excess of $25 million, in the aggregate, or guarantee any such
indebtedness or issue or sell any debt securities or warrants or rights
to acquire any of its debt securities or any of its Subsidiaries or
guarantee any debt securities of others, (ii) except in the ordinary
course of business or with or between its Subsidiaries, enter into any
material lease (whether such lease is an operating or capital lease) or
create any material mortgages, Liens, security interests or other
encumbrances on its property in connection with any indebtedness
thereof (other than Permitted Liens) or (iii) make or commit to make
aggregate capital expenditures in excess of $50 million per quarter for
each quarter from the date of this Agreement to the Effective Time over
the capital expenditures forecast disclosed in Schedule 6.24 of the
Santa Fe Disclosure Letter or Schedule 5.24 of the Global Disclosure
Letter for such quarter, excluding capital expenditures to repair
damage covered by insurance, provided, however, that capital
expenditures in connection with the total loss (actual or constructive)
of any drilling rig or other vessel shall require the consent of the
other party;
(n) shall not, and shall cause its Subsidiaries not to,
purchase or otherwise acquire any Santa Fe Ordinary Shares or Global
Common Stock;
(o) subject to Section 7.5, shall not take any action that
is reasonably likely to delay materially or adversely affect the
ability of any of the parties hereto to obtain any consent,
authorization, order or approval of any governmental commission, board
or other regulatory body or the expiration of any applicable waiting
period required to consummate the transactions contemplated by this
Agreement;
(p) unless in the good faith opinion of its Board of
Directors after consultation with its outside legal counsel the
following would be inconsistent with its fiduciary duties, (i) shall
not terminate, amend, modify or waive any provision of any agreement
containing a standstill covenant to which it is a party; and (ii)
during such period shall
33
enforce, to the fullest extent permitted under Applicable Law, the
provisions of such agreement, including by obtaining injunctions to
prevent any breaches of such agreements and to enforce specifically the
terms and provisions thereof in any court of the United States of
America or any state having jurisdiction;
(q) shall not take any action that would reasonably be
expected to result in (i) the breach of any representation or warranty
contained herein, or (ii) any condition in Article VIII not being
satisfied; and
(r) shall not (i) agree in writing or otherwise to take
any of the foregoing actions or (ii) permit any of its Subsidiaries to
agree in writing or otherwise to take any of the foregoing actions that
refer to Subsidiaries.
Section 7.2 No Solicitation by Global. (a) Global agrees that
(i) neither it nor any of its Subsidiaries shall, and it shall not authorize or
permit any of its officers, directors, employees, agents or representatives
(including, without limitation, any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) to, and on becoming aware of it will
use its reasonable best efforts to 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 its stockholders) with respect to a tender or exchange
offer, merger, consolidation, business combination, purchase or similar
transaction or series of transactions (other than the transactions contemplated
by this Agreement) involving, individually or in the aggregate, 15% or more of
the assets, net revenues or net income of Global and its Subsidiaries on a
consolidated basis or 15% or more of any class of capital stock of Global,
including, without limitation, any merger or similar transaction in which 15% or
more of Global's capital stock is issued to a third party or its stockholders
(any such proposal, offer or transaction being hereinafter referred to as a
"Global Acquisition Proposal") or cooperate with or assist, participate or
engage in any discussions or negotiations concerning a Global Acquisition
Proposal; and (ii) it will immediately cease and cause to be terminated any
existing negotiations with any parties conducted heretofore with respect to any
of the foregoing; provided that nothing contained in this Agreement shall
prevent Global or its Board of Directors from (A) complying with Rule 14e-2
promulgated under the Exchange Act with regard to a Global Acquisition Proposal
or (B) prior to the Cutoff Date (as defined herein), providing information
(pursuant to a confidentiality and standstill agreement in reasonably customary
form and which does not contain terms that prevent Global from complying with
its obligations under this Section 7.2) to, or engaging in any negotiations or
discussions with, any person or entity who has made an unsolicited bona fide
written Global Acquisition Proposal with respect to all the outstanding capital
stock of Global or all or substantially all the assets of Global (or a merger or
similar transaction in which 40% or more of Global's capital stock is issued to
a third party or its stockholders) that, in the good faith judgment of the Board
of Directors of Global, taking into account the likelihood of financing and
consummation, after consultation with a financial advisor of recognized national
reputation, is superior to the Merger (a "Global Superior Proposal"), to the
extent the Board of Directors of Global, after consultation with its outside
legal counsel, determines that the failure to do so would be inconsistent with
its fiduciary obligations.
34
(b) Prior to taking any action referred to in Section
7.2(a), if Global intends to participate in any such discussions or negotiations
or provide any such information to any such third party, Global shall give
prompt prior oral and written notice to Santa Fe of each such action. Global
will immediately notify Santa Fe orally and in writing of any such requests for
such information or the receipt of any Global Acquisition Proposal or any
inquiry with respect to or that could lead to a Global Acquisition Proposal,
including the identity of the person or group engaging in such discussions or
negotiations, requesting such information or making such Global Acquisition
Proposal, and the material terms and conditions of any Global Acquisition
Proposal. Global will (i) keep Santa Fe 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, Global Acquisition Proposals or inquiries and
(ii) provide to Santa Fe as soon as practicable after receipt or delivery
thereof with copies of all correspondence and other written material sent or
provided to Global from any third party in connection with any Global
Acquisition Proposal or sent or provided by Global to any third party in
connection with any Global Acquisition Proposal. Any written notice under this
Section 7.2 shall be given by facsimile with receipt confirmed or personal
delivery.
(c) Nothing in this Section 7.2 shall permit Global to
enter into any agreement with respect to a Global Acquisition Proposal during
the term of this Agreement, it being agreed that during the term of this
Agreement (except pursuant to Section 9.3(c)), Global shall not enter into any
agreement with any person that provides for, or in any way facilitates, a Global
Acquisition Proposal, other than a confidentiality and standstill agreement in
reasonably customary form and which does not contain terms that prevent Global
from complying with its obligations under this Section 7.2.
(d) For purposes hereof, the "Cutoff Date," when used with
respect to Global, means the date the condition set forth in Section 8.1(a)(i)
is satisfied.
Section 7.3 No Solicitation by Santa Fe. (a) Santa Fe agrees
that (i) neither it nor any of its Subsidiaries shall, and it shall not
authorize or permit any of its officers, directors, employees, agents or
representatives (including, without limitation, any investment banker, attorney
or accountant retained by it or any of its Subsidiaries) to, and on becoming
aware of it will use its reasonable best efforts to 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 its shareholders) with respect to a
tender or exchange offer, merger, consolidation, business combination, purchase
or similar transaction or series of transactions (other than the transactions
contemplated by this Agreement) involving, individually or in the aggregate, 15%
or more of the assets, net revenues or net income of Santa Fe and its
Subsidiaries on a consolidated basis or 15% or more of any class of share
capital of Santa Fe, including, without limitation, any merger or similar
transaction in which 15% or more of Santa Fe's share capital is issued to a
third party or its shareholders (any such proposal, offer or transaction being
hereinafter referred to as a "Santa Fe Acquisition Proposal") or cooperate with
or assist, participate or engage in any discussions or negotiations concerning a
Santa Fe Acquisition Proposal; and (ii) it will immediately cease and cause to
be terminated any existing negotiations with any parties conducted heretofore
with respect to any of the foregoing; provided that nothing contained in this
Agreement shall prevent Santa Fe or its Board of Directors from
35
(A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to
a Santa Fe Acquisition Proposal or (B) prior to the Cutoff Date (as defined
herein), providing information (pursuant to a confidentiality and standstill
agreement in reasonably customary form and which does not contain terms that
prevent Santa Fe from complying with its obligations under this Section 7.3) to
or engaging in any negotiations or discussions with any person or entity who has
made an unsolicited bona fide written Santa Fe Acquisition Proposal with respect
to all the outstanding Santa Fe Ordinary Shares or all or substantially all the
assets of Santa Fe (or a merger or similar transaction in which 40% or more of
Santa Fe's share capital is issued to a third party or its stockholders) that,
in the good faith judgment of the Board of Directors of Santa Fe, taking into
account the likelihood of financing and consummation, after consultation with a
financial advisor of recognized national reputation, is superior to the Merger
(a "Santa Fe Superior Proposal"), to the extent that the Board of Directors of
Santa Fe, after consultation with its outside legal counsel, determines that the
failure to do so would be inconsistent with its fiduciary obligations
(b) Prior to taking any action referred to in Section
7.3(a), if Santa Fe intends to participate in any such discussions or
negotiations or provide any such information to any such third party, Santa Fe
shall give prompt prior oral and written notice to Global of each such action.
Santa Fe will immediately notify Global orally and in writing of any such
requests for such information 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, including the identity of the person or group engaging in
such discussions or negotiations, requesting such information or making such
Santa Fe Acquisition Proposal, and the material terms and conditions of any
Santa Fe Acquisition Proposal. Santa Fe 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 Santa Fe from any third party in connection with
any Santa Fe Acquisition Proposal or sent or provided by Santa Fe to any third
party in connection with any Santa Fe Acquisition Proposal. Any written notice
under this Section 7.3 shall be given by facsimile with receipt confirmed or
personal delivery.
(c) Nothing in this Section 7.3 shall permit Santa Fe to
enter into any agreement with respect to a Santa Fe Acquisition Proposal during
the term of this Agreement, it being agreed that during the term of this
Agreement (except pursuant to Section 9.4(c)), Santa Fe shall not enter into any
agreement with any person that provides for, or in any way facilitates, a Santa
Fe Acquisition Proposal, other than a confidentiality agreement in reasonably
customary form and which does not contain terms that prevent Santa Fe from
complying with its obligations under this Section 7.3.
(d) For purposes hereof, the "Cutoff Date," when used with
respect to Santa Fe, means the date the condition set forth in Section
8.1(a)(ii) is satisfied.
Section 7.4 Meetings of Stockholders. (a) Each of Santa Fe
and Global shall take all action necessary, in accordance with applicable law
and its memorandum of association and articles of association (Santa Fe) or
certificate of incorporation and bylaws (Global), to convene a meeting of its
stockholders as promptly as practicable to consider and vote upon (i) in
36
the case of Santa Fe, the approval of the Santa Fe Amendments and the issuance
of Santa Fe Ordinary Shares pursuant to the Merger and (ii) in the case of
Global, the adoption of this Agreement. Santa Fe and Global shall coordinate and
cooperate with respect to the timing of such meetings and shall use their
reasonable best efforts to hold such meetings on the same day. Notwithstanding
any other provision of this Agreement, unless this Agreement is terminated in
accordance with the terms hereof, Global and Santa Fe shall each submit this
Agreement to its stockholders, whether or not the Board of Directors of Global
or Santa Fe, as the case may be, withdraws, modifies or changes its
recommendation and declaration regarding the foregoing matters.
(b) Each of Santa Fe and Global, through its Board of
Directors, shall recommend approval of such matters and use its reasonable best
efforts to solicit from its stockholders proxies in favor of such matters;
provided, however, that the Board of Directors of Santa Fe or the Board of
Directors of Global may at any time prior to the Effective Time upon one
business day's prior written notice to Global or Santa Fe, respectively, (i)
withdraw, modify or change any recommendation and declaration regarding such
matters or (ii) recommend and declare advisable any Global Superior Proposal or
Santa Fe Superior Proposal, as the case may be, if in the good faith opinion of
such Board of Directors after consultation with its outside legal counsel the
failure to (x) so withdraw, modify or change its recommendation and declaration
or (y) so recommend and declare advisable any Global Superior Proposal or Santa
Fe Superior Proposal, as the case may be, would be inconsistent with its
fiduciary obligations.
Section 7.5 Filings; Reasonable Best Efforts, Etc. (a)
Subject to the terms and conditions herein provided, Global and Santa Fe shall:
(i) make their respective required filings under the
HSR Act and any applicable non-U.S. competition, antitrust or
premerger notification laws ("Non-U.S. Antitrust Laws") to be
made pursuant to Section 8.1(b), including, for the avoidance
of doubt, filing of a Merger Notice with the U.K. Office of
Fair Trading (and shall share equally all filing fees incident
thereto), which filings shall be made promptly, and which
filings as required under the HSR Act shall be made in not
more than 15 business days from the date hereof, and
thereafter shall promptly make any other required submissions
under the HSR Act or other such laws;
(ii) use their reasonable best efforts to cooperate
with one another in (A) determining which filings are required
to be made prior to the Effective Time with, and which
consents, approvals, permits or authorizations are required to
be obtained prior to the Effective Time from, governmental or
regulatory authorities of the United States, the several
states, and non-U.S. jurisdictions in connection with the
execution and delivery of this Agreement, including, for the
avoidance of doubt, filing of a Merger Notice with the U.K.
Office of Fair Trading, and the consummation of the Merger and
the transactions contemplated hereby; and (B) timely making
all such filings and timely seeking all such consents,
approvals, permits or authorizations without causing a Santa
Fe Material Adverse Effect or a Global Material Adverse
Effect;
37
(iii) promptly notify each other of any communication
concerning this Agreement or the transactions contemplated
hereby to that party from any governmental authority and
permit the other party to review in advance any proposed
communication concerning this Agreement or the transactions
contemplated hereby to any governmental entity;
(iv) not agree to participate in any meeting or
discussion with any governmental authority in respect of any
filings, investigation or other inquiry concerning this
Agreement or the transactions contemplated hereby unless it
consults with the other party in advance and, to the extent
permitted by such governmental authority, gives the other
party the opportunity to attend and participate in such
meeting or discussion;
(v) furnish the other party with copies of all
correspondence, filings and communications (and memoranda
setting forth the substance thereof) between them and their
affiliates and their respective representatives on the one
hand, and any government or regulatory authority or members or
any such authority's staff on the other hand, with respect to
this Agreement and the transactions contemplated hereby; and
(vi) furnish the other party with such necessary
information and reasonable assistance as such other party and
its affiliates may reasonably request in connection with their
preparation of necessary filings, registrations or submissions
of information to any governmental or regulatory authorities,
including, without limitation, any filings necessary or
appropriate under the provisions of the HSR Act or any
applicable Non-U.S. Antitrust Laws.
(b) Without limiting Section 7.5(a), but subject to
Section 7.5(c), Santa Fe and Global shall:
(i) each use reasonable best efforts to avoid the
entry of, or to have vacated, terminated or modified, any
decree, order or judgment that would restrain, prevent or
delay the Closing; and
(ii) each use reasonable best efforts to take any
and all steps necessary to obtain any consents or eliminate
any impediments to the Merger.
(c) Nothing in this Agreement shall require Santa Fe or
Global to dispose of any of its assets or to limit its freedom of action with
respect to any of its businesses, or to consent to any disposition of its assets
or limits on its freedom of action with respect to any of its businesses,
whether prior to or after the Effective Time, or to commit or agree to any of
the foregoing, to obtain any consents, approvals, permits or authorizations or
to remove any impediments to the Merger relating to the HSR Act, Non-U.S.
Antitrust Laws or other antitrust, competition or premerger notification, trade
regulation law, regulation or order ("Antitrust Laws") or to avoid the entry of,
or to effect the dissolution of, any injunction, temporary restraining order or
other order in any suit or proceeding relating to Antitrust Laws, other than
dispositions, limitations or consents, commitments or agreements that in each
such case may be
38
conditioned upon the consummation of the Merger and the transactions
contemplated hereby and that in each such case do not and are not reasonably
likely individually or in the aggregate to have a Material Adverse Effect on
Santa Fe and its Subsidiaries taken as a whole as constituted after the
Effective Time of the Merger.
Section 7.6 Inspection. From the date hereof to the Effective Time,
each of Global and Santa Fe shall allow all designated officers, attorneys,
accountants and other representatives of Santa Fe or Global, as the case may be,
access, at all reasonable times, upon reasonable notice, to the records and
files, correspondence, audits and properties, as well as to all information
relating to commitments, contracts, titles and financial position, or otherwise
pertaining to the business and affairs of Santa Fe and Global and their
respective Subsidiaries, including inspection of such properties; provided that
no investigation pursuant to this Section 7.6 shall affect any representation or
warranty given by any party hereunder, and provided further that notwithstanding
the provision of information or investigation by any party, no party shall be
deemed to make any representation or warranty except as expressly set forth in
this Agreement. Notwithstanding the foregoing, no party shall be required to
provide any information which it reasonably believes it may not provide to the
other party by reason of applicable law, rules or regulations, which constitutes
information protected by attorney/client privilege, or which it is required to
keep confidential by reason of contract or agreement with third parties. The
parties hereto shall make reasonable and appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding
sentence apply. Each of Santa Fe and Global agrees that it shall not, and shall
cause its respective representatives not to, use any information obtained
pursuant to this Section 7.6 for any purpose unrelated to the consummation of
the transactions contemplated by this Agreement. All non-public information
obtained pursuant to this Section 7.6 shall be governed by the Confidentiality
and Standstill Agreement dated May 10, 2001 between Santa Fe and Global (the
"Confidentiality and Standstill Agreement").
Section 7.7 Publicity. The parties will consult with each other before
issuing any press release or public announcement pertaining to this Agreement or
the transactions contemplated hereby and shall not issue any such press release
or make any such public announcement without the prior written consent of the
other party, which consent shall not be unreasonably withheld, except as may be
required by applicable law or by obligations pursuant to any listing agreement
with any national securities exchange, in which case the party proposing to
issue such press release or make such public announcement shall use its
reasonable best efforts to consult in good faith with the other party before
issuing any such press releases or making any such public announcements.
Section 7.8 Registration Statement on Form S-4. (a) Each of Santa Fe
and Global shall cooperate and promptly prepare, and Santa Fe shall file with
the SEC, as soon as practicable, a Registration Statement on Form S-4 (the "Form
S-4") under the Securities Act with respect to the Santa Fe Ordinary Shares
issuable in the Merger, a portion of which Registration Statement shall also
serve as the joint proxy statement with respect to the meetings of the
stockholders of Santa Fe and of Global in connection with the transactions
contemplated by this Agreement (the "Proxy Statement/Prospectus"). The
respective parties will cause the Proxy Statement/Prospectus and the Form S-4 to
comply as to form in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the rules and regulations
39
thereunder. Santa Fe shall use reasonable best efforts, and Global shall
cooperate with Santa Fe, to have the Form S-4 declared effective by the SEC as
promptly as practicable. Santa Fe shall use reasonable best efforts to obtain,
prior to the effective date of the Form S-4, all necessary non-U.S., state
securities law or "Blue Sky" permits or approvals required to carry out the
transactions contemplated by this Agreement and the parties shall share equally
all expenses incident thereto (including all SEC and other filing fees and all
printing and mailing expenses associated with the Form S-4 and the Proxy
Statement/Prospectus). Santa Fe will advise Global, promptly after it receives
notice thereof, of the time when the Form S-4 has become effective or any
supplement or amendment has been filed, the issuance of any stop order, the
suspension of the qualification of the Santa Fe Ordinary Shares issuable in
connection with the Merger for offering or sale in any jurisdiction or any
request by the SEC for amendment of the Proxy Statement/Prospectus or the Form
S-4 or comments thereon and responses thereto or requests by the SEC for
additional information. Each of the parties shall also promptly provide each
other party copies of all written correspondence received from the SEC and
summaries of all oral comments received from the SEC in connection with the
transactions contemplated by this Agreement. Each of the parties shall promptly
provide each other party with drafts of all correspondence intended to be sent
to the SEC in connection with the transactions contemplated by this Agreement
and allow each such party the opportunity to comment thereon prior to delivery
to the SEC.
(b) Santa Fe and Global shall each use its reasonable best efforts to
cause the Proxy Statement/Prospectus to be mailed to its stockholders as
promptly as practicable after the Form S-4 is declared effective under the
Securities Act.
(c) Each of Santa Fe and Global shall ensure that the information
provided by it for inclusion in the Proxy Statement/Prospectus and each
amendment or supplement thereto, at the time of mailing thereof and at the time
of the respective meetings of stockholders of Santa Fe and Global, or, in the
case of information provided by it for inclusion in the Form S-4 or any
amendment or supplement thereto, at the time it becomes effective, (i) will not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading and (ii)
will comply as to form in all material respects with the provisions of the
Securities Act and the Exchange Act.
Section 7.9 Listing Application. Santa Fe shall promptly prepare and
submit to the NYSE a listing application covering the Santa Fe Ordinary Shares
issuable in the Merger and shall use reasonable best efforts to obtain, prior to
the Effective Time, approval for the listing of such Santa Fe Ordinary Shares,
subject to official notice of issuance.
Section 7.10 Letters of Accountants. (a) Global shall use reasonable
best efforts to cause to be delivered to Santa Fe "comfort" letters of
PricewaterhouseCoopers LLP, Global's independent public accountants, dated
within two business days of the effective date of the Form S-4 and within two
business days of the Closing Date, respectively, and addressed to Santa Fe with
regard to certain financial information regarding Global included in the Form S-
4, in form reasonably satisfactory to Santa Fe and customary in scope and
substance for "comfort" letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4.
40
(b) Santa Fe shall use reasonable best efforts to cause to be
delivered to Global "comfort" letters of Ernst & Young LLP, Santa Fe's
independent public accountants, dated within two business days of the effective
date of the Form S-4 and within two business days of the Closing Date,
respectively, and addressed to Global, with regard to certain financial
information regarding Santa Fe included in the Form S-4, in form reasonably
satisfactory to Global and customary in scope and substance for "comfort"
letters delivered by independent public accountants in connection with
registration statements similar to the Form S-4.
Section 7.11 Agreements of Rule 145 Affiliates. Prior to the Effective
Time, Global shall cause to be prepared and delivered to Santa Fe a list
identifying all persons who Global believes, at the date of the meeting of
Global's stockholders to consider and vote upon the adoption of this Agreement,
may be deemed to be "affiliates" of Global, as that term is used in paragraphs
(c) and (d) of Rule 145 under the Securities Act (the "Rule 145 Affiliates").
Global shall use reasonable best efforts to cause each person who is identified
as a Rule 145 Affiliate in such list to deliver to Santa Fe, at or prior to the
Effective Time, a written agreement, in the form of Exhibit 7.11. Santa Fe shall
be entitled to place restrictive legends on any Santa Fe Ordinary Shares issued
to such Rule 145 Affiliates pursuant to the Merger.
Section 7.12 Expenses. Whether or not the Merger is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses, except as expressly provided in Sections 7.5(a)(i) and 7.8(a) of this
Agreement or as otherwise agreed in writing by the parties.
Section 7.13 Indemnification and Insurance. (a) From and after the
Effective Time, Santa Fe shall cause the Surviving Entity to indemnify, defend
and hold harmless to the fullest extent permitted under applicable law each
person who is, or has been at any time prior to the Effective Time, an officer
or director of Global (or any Subsidiary or division thereof) and each person
who served at the request of Global as a director, officer, trustee or fiduciary
of another corporation, partnership, joint venture, trust, pension or other
employee benefit plan or enterprise, and each person who is, or has been at any
time prior to the Effective Time, a party to a written employee indemnification
agreement with Global or any Subsidiary thereof (individually, an "Indemnified
Party" and, collectively, the "Indemnified Parties") against all losses, claims,
damages, liabilities, costs or expenses (including attorneys' fees), judgments,
fines, penalties and amounts paid in settlement in connection with any claim,
action, suit, proceeding or investigation arising out of or pertaining to acts
or omissions, or alleged acts or omissions, by them in their capacities as such,
whether commenced, asserted or claimed before or after the Effective Time. In
the event of any such claim, action, suit, proceeding or investigation (an
"Action"), (i) Santa Fe shall cause the Surviving Entity to pay, as incurred,
the fees and expenses of counsel selected by the Indemnified Party, which
counsel shall be reasonably acceptable to the Surviving Entity, in advance of
the final disposition of any such Action to the fullest extent permitted by
applicable law and, if required, upon receipt of any undertaking required by
applicable law, and (ii) Santa Fe and the Surviving Entity will cooperate in the
defense of any such matter; provided, however, the Surviving Entity shall not be
liable for any settlement effected without its written consent (which consent
shall not be unreasonably withheld or delayed), and provided further, that Santa
Fe and the Surviving Entity shall not be obligated pursuant to this Section 7.13
to pay the fees and disbursements of more than one counsel for all Indemnified
Parties in any single Action, unless, in the good faith judgment of
41
any of the Indemnified Parties, there is or may be a conflict of interests
between two or more of such Indemnified Parties, in which case there may be
separate counsel for each similarly situated group.
(b) The parties agree that the rights to indemnification, including
provisions relating to advances of expenses incurred in defense of any action or
suit, in the certificate of incorporation and bylaws of Global and its
Subsidiaries with respect to matters occurring through the Effective Time, shall
survive the Merger.
(c) For a period of six years after the Effective Time, Santa Fe and
the Surviving Entity shall cause to be maintained officers' and directors'
liability insurance covering the Indemnified Parties who are, or at any time
prior to the Effective Time were, covered by Global's existing officers' and
directors' liability insurance policies on terms substantially no less
advantageous to the Indemnified Parties than such existing insurance, provided
that Santa Fe and the Surviving Entity shall not be required to pay annual
premiums in excess of 150% of the last annual premium paid by Global prior to
the date hereof (the amount of which premium is set forth in the Global
Disclosure Letter), but in such case shall purchase as much coverage as
reasonably practicable for such amount.
(d) The rights of each Indemnified Party hereunder shall be in
addition to any other rights such Indemnified Party may have under the
certificate of incorporation or bylaws of Global or any of its Subsidiaries,
under applicable law or otherwise. The provisions of this Section 7.13 shall
survive the consummation of the Merger and expressly are intended to benefit
each of the Indemnified Parties.
(e) In the event Santa Fe, the Surviving Entity or any of their
respective successors or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving corporation or entity in
such consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person, then and in either such case, proper
provision shall be made so that the successors and assigns of Santa Fe or the
Surviving Entity, as the case may be, shall assume the obligations set forth in
this Section 7.13.
Section 7.14 Employee Matters. (a) At the Effective Time, Santa Fe
will cause the Surviving Entity and its Subsidiaries to continue the employment
of all of the employees of Global and its Subsidiaries initially at the same
salaries and wages of such employees immediately prior to the Effective Time.
Nothing in this Agreement shall be considered a contract between Santa Fe, the
Surviving Entity, its Subsidiaries and any employee or consideration for, or
inducement with respect to, any employee's continued employment and, without
limitation, all such employees are and will continue to be considered to be
employees at will pursuant to the applicable employment at will laws or
doctrines, subject to any express written agreement to the contrary with such
employee, and the Surviving Entity and its Subsidiaries will have the right, in
their discretion and subject to this Section 7.14, to alter the salaries, wages
and terms of employment of such employees at any time after the Effective Time.
(b) With respect to each employee of Global and its Subsidiaries
("Affected Employee"), Santa Fe shall cause the Surviving Entity to deem the
period of employment with Global and its Subsidiaries to have been employment
and service with Santa Fe for purposes of
42
determining the Affected Employee's eligibility to join and vesting (but not
benefit accrual for any purpose other than vacation pay, sick leave and life
insurance) under all employee benefit plans, programs, policies or similar
employment related arrangements of Santa Fe and its Subsidiaries in which the
Affected Employee is eligible to participate. Santa Fe shall waive, and to the
extent necessary to effect the terms hereof, shall use its reasonable best
efforts to cause the relevant insurance carriers and other third parties to
waive, any restrictions and limitations for medical conditions existing as of
the Effective Time of those Affected Employees and their dependents who were
covered immediately prior to the Effective Time under a group health plan
maintained by Global, but only to the extent that such medical condition would
be covered by Santa Fe's or the Surviving Entity's group health plan if it were
not a pre-existing condition and only to the extent that such limitations would
not have applied under Global's group health plan prior to the Effective Time.
Further, Santa Fe shall cause the Surviving Entity to offer at the Effective
Time to each Affected Employee coverage under a group health plan (as defined in
Section 5000(b)(1) of the Code) which credits such Affected Employee towards the
deductibles, coinsurance and maximum out-of-pocket provisions imposed under such
group health plan, for the year during which the Effective Time (or such later
date as the Affected Employees participate in such group health plan) occurs,
with any applicable expenses already incurred during such year under Global's
group health plan.
(c) Santa Fe and Global agree to cooperate in good faith to (i)
establish a process to promptly integrate their compensation and benefit plans
following the Effective Time and (ii) take appropriate and substantially
consistent actions to retain key employees and provide for a smooth transition.
(d) Except with respect to offers of employment to prospective new
employees in the ordinary course of business consistent with past practices and
other than statements that merely repeat or summarize the effects of this
Agreement or the terms of agreements identified in the disclosure schedules,
Global and Santa Fe agree that they will not make, or permit their Subsidiaries
to make, any representations or promises, oral or written, to their employees
concerning continued employment following the Effective Time, or the terms and
conditions of that employment or benefits offered, other than with the express
mutual consent of both Global and Santa Fe.
(e) Santa Fe agrees that in the event the annual bonus payments for
employees of Global and its Subsidiaries in respect of service during 2001 have
not been paid prior to the Effective Date, Santa Fe shall pay, or cause its
Subsidiaries to pay, such annual bonus in accordance with the terms of the
management incentive award plans listed in Schedule 5.11 of the Global
Disclosure Letter.
(f) Santa Fe agrees to continue, or cause its Subsidiaries to
continue, the Global Severance Program for Shorebased Staff Personnel (as
identified on Schedule 5.11 of the Global Disclosure Letter) (the "Severance
Program") for the benefit of any Affected Employee who would be eligible for
severance benefits under the Severance Program as a result of a qualifying
layoff or termination of employment within twelve months following the Effective
Time.
43
(g) Santa Fe agrees to treat the Merger as a change in control with
respect to (i) awards made under the Global Stock Plans and the Global Non-
Employee Director Restricted Stock Plan, (ii) the Severance Program, (iii) the
employment agreement with Xxxxxx X. Xxxx , as amended, identified on Schedule
5.9 to the Global Disclosure Letter, and (iv) the severance agreements
identified on Schedule 7.14 of the Global Disclosure Letter. Santa Fe agrees to
assume the obligations of Global with respect to the severance agreements listed
on Schedule 7.14 of the Global Disclosure Schedule.
(h) Santa Fe agrees to assume the obligations of Global with respect
to the performance stock awards identified on Schedule 7.14 to the Global
Disclosure Schedule, including the obligation to accelerate the removal of all
conditions, contingencies and other restrictions from the total number of shares
of Global Common Stock subject to the awards for all Affected Employees. Within
10 days after the Effective Time, Santa Fe agrees to issue to each holder of
performance shares identified on Schedule 7.14, other than any holder who has
terminated employment with Global and its Subsidiaries prior to the Effective
Time without entitlement to a performance share payment, a number of Santa Fe
Ordinary Shares equal to the product (rounded to the nearest whole share) of the
number of shares of Global Common Stock subject to the performance share award
multiplied by the Merger Ratio.
(i) Santa Fe agrees to assume the obligation of Global to issue an
award of 250,000 restricted shares of Global Common Stock to Xxxxxx X. Xxxx, by
the issuance as of the Effective Time of a number of Santa Fe Ordinary Shares
equal to the product (rounded to the nearest whole share) of 250,000 multiplied
by the Merger Ratio, with such award to be subject to the forfeiture
restrictions previously approved by the Compensation Committee of the Board of
Directors of Global.
Section 7.15 Delivery of Santa Fe Ordinary Shares. Prior to the
Merger, Sub shall purchase from Santa Fe and Santa Fe shall sell to Sub all or a
portion of that number of Santa Fe Ordinary Shares which Sub is required to
deliver pursuant to Section 4.3(a). If Sub purchases fewer than all such shares
from Santa Fe, Santa Fe will otherwise provide to Sub the remaining required
shares.
Section 7.16 Supplemental Indenture. Santa Fe and Global shall comply
with all of the provisions of the Supplemental Indenture, including without
limitation, the provisions contained in Section 11.11 of the Supplemental
Indenture prior to the Effective Time.
Section 7.17 Notification. Each party shall give to the others prompt
notice of (i) any representation or warranty made by it or contained in this
Agreement becoming untrue or inaccurate in any material respect and (ii) the
failure by it to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it under this
Agreement; provided, however, that no such notification shall affect the
representations, warranties, covenants or agreements of the parties or the
conditions to the obligations of the parties under this Agreement.
44
ARTICLE 8
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to Effect
the Merger. The respective obligation of each party to effect the Merger shall
be subject to the fulfillment at or prior to the Closing Date of the following
conditions:
(a) (i) This Agreement shall have been adopted by the
affirmative vote of holders of a majority of the outstanding shares of
Global Common Stock entitled to vote thereon; and
(ii) Each of the Santa Fe Amendments and the issuance
of Santa Fe Ordinary Shares pursuant to the Merger shall have
been approved by the holders of issued Santa Fe Ordinary
Shares as and to the extent required by Cayman Islands law,
Santa Fe's memorandum of association and articles of
association and the rules of the NYSE.
(b) (i) Any waiting period applicable to the consummation
of the Merger under the HSR Act shall have expired or been terminated,
(ii) there shall not be pending or threatened in writing any claim,
proceeding or action by an agency of the government of the United
States, of the United Kingdom or of the European Union seeking to
restrain, prohibit or rescind any transactions contemplated by this
Agreement as an actual or threatened violation of any Antitrust Law, as
applicable, or seeking to penalize a party for completing any such
transaction which in any of such cases is, in the reasonable judgment
of either Global or Santa Fe, reasonably likely to have any of the
effects described in Section 7.5(c), (iii) in the event of any review
by the U.K. Office of Fair Trading or, if applicable, the U.K.
Secretary of State for Trade and Industry, indications reasonably
satisfactory to each of Global and Santa Fe that the Merger will not be
referred to the Competition Commission shall have been received or, if
the Merger is referred to the Competition Commission, indications
reasonably satisfactory to each of Global and Santa Fe that the Merger
can proceed, (iv) any mandatory waiting period under any applicable
Non-U.S. Antitrust Laws (where the failure to observe such waiting
period referred to in this clause (iv) would, in the reasonable
judgment of either Global or Santa Fe, reasonably be expected to have
any of the effects described in Section 7.5(c) shall have expired or
been terminated and (v) there shall not have been a final or
preliminary administrative order denying approval of or prohibiting the
Merger issued by a governmental authority with jurisdiction to enforce
applicable Non-U.S. Antitrust Laws, which order is in the reasonable
judgment of either Global or Santa Fe reasonably likely to have any of
the effects described in Section 7.5(c).
(c) None of the parties hereto shall be subject to any
decree, order or injunction of a court of competent jurisdiction, U.S.
or non-U.S., which prohibits the consummation of the Merger; provided,
however, that, prior to invoking this condition, each party agrees to
comply with Section 7.5, and with respect to other matters not covered
by Section 7.5, to use its reasonable best efforts to have any such
decree, order or injunction lifted or vacated; and no statute, rule or
regulation shall have been enacted by
45
any governmental authority which prohibits or makes unlawful the
consummation of the Merger.
(d) The Form S-4 shall have become effective and no stop order
with respect thereto shall be in effect.
(e) The Santa Fe Ordinary Shares to be issued pursuant to the
Merger shall have been authorized for listing on the NYSE, subject to
official notice of issuance.
Section 8.2 Conditions to Obligation of Global to Effect the
Merger. The obligation of Global to effect the Merger shall be subject to the
fulfillment or waiver at or prior to the Closing Date of the following
conditions:
(a) Santa Fe, Sub and Merger Sub shall have performed, in all
material respects, their covenants and agreements contained in this
Agreement required to be performed on or prior to the Closing Date, and
the representations and warranties of Santa Fe, Sub and Merger Sub
contained in this Agreement (i) that are qualified as to materiality or
Santa Fe Material Adverse Effect shall be true and correct in all
respects as of the Closing Date, except to the extent such
representations and warranties expressly relate to an earlier date (in
which case as of such earlier date), and (ii) that are not so qualified
shall be true and correct in all respects as of the Closing Date,
except to the extent such representations and warranties expressly
relate to an earlier date (in which case as of such earlier date),
except for such breaches of representations and inaccuracies in
warranties in this clause (ii) that do not and are not reasonably
likely to have, individually or in the aggregate, a Santa Fe Material
Adverse Effect, and Global shall have received a certificate of each of
Santa Fe, Sub and Merger Sub, executed on its behalf by its President
or one of its Vice Presidents, dated the Closing Date, certifying to
such effect.
(b) At any time after the date of this Agreement, there shall
not have been any event or occurrence, or series of events or
occurrences, that has had or is reasonably likely to have, individually
or in the aggregate with all other events or occurrences since the date
of this Agreement, a Santa Fe Material Adverse Effect.
Section 8.3 Conditions to Obligation of Santa Fe, Sub and
Merger Sub to Effect the Merger. The obligations of Santa Fe, Sub and Merger Sub
to effect the Merger shall be subject to the fulfillment or waiver at or prior
to the Closing Date of the following conditions:
(a) Global shall have performed, in all material respects, its
covenants and agreements contained in this Agreement required to be
performed on or prior to the Closing Date, and the representations and
warranties of Global contained in this Agreement (i) that are qualified
as to materiality or Global Material Adverse Effect shall be true and
correct in all respects as of the Closing Date, except to the extent
such representations and warranties expressly relate to an earlier date
(in which case as of such earlier date), and (ii) that are not so
qualified shall be true and correct in all respects as of the Closing
Date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case as of such earlier
date), except for such breaches of
46
representations and inaccuracies in warranties in this clause (ii) that
do not and are not reasonably likely to have, individually or in the
aggregate, a Global Material Adverse Effect, and Santa Fe shall have
received a certificate of Global, executed on its behalf by its
President or one of its Vice Presidents, dated the Closing Date,
certifying to such effect.
(b) At any time after the date of this Agreement, there shall
not have been any event or occurrence, or series of events or
occurrences, that has had or is reasonably likely to have, individually
or in the aggregate with all other events or occurrences since the date
of this Agreement, a Global Material Adverse Effect.
ARTICLE 9
TERMINATION
Section 9.1 Termination by Mutual Consent. This Agreement may
be terminated at any time prior to the Effective Time by the mutual written
consent of Global and Santa Fe.
Section 9.2 Termination by Santa Fe or Global. This Agreement
may be terminated at any time prior to the Effective Time by action of the Board
of Directors of Santa Fe or Global if:
(a) the Merger shall not have been consummated by March 31,
2002; provided, however, that the right to terminate this Agreement
pursuant to this clause (a) shall not be available to any party whose
failure to perform or observe in any material respect any of its
obligations under this Agreement in any manner shall have been the
cause of, or resulted in, the failure of the Merger to occur on or
before such date;
(b) a meeting (including adjournments and postponements) of
Global's stockholders for the purpose of obtaining the approvals
required by Section 8.1(a)(i) shall have been held and such stockholder
approvals shall not have been obtained;
(c) a meeting (including adjournments and postponements) of
Santa Fe's shareholders for the purpose of obtaining the approvals
required by Section 8.1(a)(ii) shall have been held and such
shareholder approvals shall not have been obtained; or
(d) a U.S. federal, state or non-U.S. court of competent
jurisdiction or federal, state or non-U.S. governmental, regulatory or
administrative agency or commission shall have issued an order, decree
or ruling or taken any other action permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have
become final and nonappealable; provided, however, that the party
seeking to terminate this Agreement pursuant to this clause (d) shall
have complied with Section 7.5 and, with respect to other matters not
covered by Section 7.5, shall have used its reasonable best efforts to
remove such injunction, order or decree.
47
Section 9.3 Termination by Global. This Agreement may be
terminated at any time prior to the Effective Time by action of the Board of
Directors of Global, after consultation with its outside legal advisors, if
(a) (i) there has been a breach by Santa Fe, Sub or
Merger Sub of any representation, warranty, covenant or agreement set
forth in this Agreement or if any representation or warranty of Santa
Fe, Sub or Merger Sub shall have become untrue, in either case such
that the conditions set forth in Section 8.2(a) would not be satisfied
and (ii) such breach is not curable, or, if curable, is not cured
within 30 days after written notice of such breach is given to Santa Fe
by Global; provided, however, that the right to terminate this
Agreement pursuant to Section 9.3(a) shall not be available to Global
if it, at such time, is in breach of any representation, warranty,
covenant or agreement set forth in this Agreement such that the
condition set forth in Section 8.3(a) shall not be satisfied;
(b) the Board of Directors of Santa Fe shall have
withdrawn or materially modified, in a manner adverse to Global, its
approval or recommendation of the Santa Fe Amendments or the issuance
of Santa Fe Ordinary Shares pursuant to the Merger or recommended a
Santa Fe Acquisition Proposal, or resolved to do so; or
(c) prior to the Cutoff Date, (i) the Board of Directors
of Global has received a Global Superior Proposal, (ii) in light of
such Global Superior Proposal the Board of Directors of Global shall
have determined in good faith, (A) after consultation with its outside
legal advisors, that proceeding with the Merger would be inconsistent
with its fiduciary obligations and (B) that there is a substantial
likelihood that the adoption by Global's stockholders of this Agreement
will not be obtained by reason of the existence of such Global Superior
Proposal, (iii) Global has complied in all material respects with
Section 7.2, (iv) Global has previously paid the fee provided for under
Section 9.5(a)(i), and (v) the Board of Directors of Global
concurrently approves, and Global concurrently enters into, a binding
definitive written agreement providing for the implementation of such
Global Superior Proposal; provided that Global may not effect such
termination pursuant to this Section 9.3(c) unless and until (i) Santa
Fe receives at least five business days' prior written notice from
Global of its intention to effect such termination pursuant to this
Section 9.3(c); and (ii) during such five business day period, Global
shall, and shall cause its respective financial and legal advisors to,
consider any adjustment in the terms and conditions of this Agreement
that Santa Fe may propose.
Section 9.4 Termination by Santa Fe. This Agreement may be
terminated at any time prior to the Effective Time by action of the Board of
Directors of Santa Fe, after consultation with its outside legal advisors, if:
(a) (i) there has been a breach by Global of any
representation, warranty, covenant or agreement set forth in this
Agreement or if any representation or warranty of Global shall have
become untrue, in either case such that the conditions set forth in
Section 8.3(a) would not be satisfied and (ii) such breach is not
curable, or, if curable, is not cured within 30 days after written
notice of such breach is given by Santa Fe to Global; provided,
however, that the right to terminate this Agreement pursuant to Section
9.4(a) shall not be available to Santa Fe if it, at such time, is in
breach of any
48
representation, warranty, covenant or agreement set forth in this
Agreement such that the conditions set forth in Section 8.2(a) shall
not be satisfied; or
(b) the Board of Directors of Global shall have withdrawn
or materially modified, in a manner adverse to Santa Fe, its approval
or recommendation of the Merger or recommended a Global Acquisition
Proposal, or resolved to do so; or
(c) prior to the Cutoff Date, (i) the Board of Directors
of Santa Fe has received a Santa Fe Superior Proposal, (ii) in light of
such Santa Fe Superior Proposal the Board of Directors of Santa Fe
shall have determined in good faith, (A) after consultation with its
outside legal advisors, that proceeding with the Merger would be
inconsistent with its fiduciary obligations and (B) that there is a
substantial likelihood that the adoption by Santa Fe's shareholders of
this Agreement will not be obtained by reason of the existence of such
Santa Fe Superior Proposal, (iii) Santa Fe has complied in all material
respects with Section 7.3, (iv) Santa Fe has previously paid the fee
provided for under Section 9.5(b)(i), and (v) the Board of Directors of
Santa Fe concurrently approves, and Santa Fe concurrently enters into,
a binding definitive written agreement providing for the implementation
of such Santa Fe Superior Proposal; provided that Santa Fe may not
effect such termination pursuant to this Section 9.4(c) unless and
until (i) Global receives at least five business days' prior written
notice from Santa Fe of its intention to effect such termination
pursuant to this Section 9.4(c); and (ii) during such five business day
period, Santa Fe shall, and shall cause its respective financial and
legal advisors to, consider any adjustment in the terms and conditions
of this Agreement that Global may propose.
Section 9.5 Effect of Termination. (a) (i) If this Agreement
is terminated:
(A) by Global or Santa Fe pursuant to Section 9.2(b)
after the public announcement of a Global Acquisition
Proposal, whether or not the Global Acquisition Proposal is
still pending or has been consummated; or
(B) by Santa Fe pursuant to Section 9.4(b); or
(C) by Global pursuant to Section 9.3(c);
then Global shall pay Santa Fe a fee of $120 million at the time of such
termination in cash by wire transfer to an account designated by Santa Fe.
(ii) If this Agreement is terminated by Global
pursuant to Section 9.3(c) and in accordance with the terms
thereof (including the payment of the fee referred to
therein), no fee additional to the fee specified in Section
9.3(c) shall be payable by Global to Santa Fe.
(b) (i) If this Agreement is terminated:
(A) by Global or Santa Fe pursuant to Section 9.2(c)
after the public announcement of a Santa Fe Acquisition
Proposal, whether or not the Santa Fe Acquisition Proposal is
still pending or has been consummated; or
49
(B) by Global pursuant to Section 9.3(b); or
(C) by Santa Fe pursuant to Section 9.4(c);
then Santa Fe shall pay Global a fee of $120 million at the time of such
termination in cash by wire transfer to an account designated by Global.
(ii) If this Agreement is terminated by Santa Fe
pursuant to Section 9.4(c) and in accordance with the terms
thereof (including the payment of the fee referred to
therein), no fee additional to the fee specified in Section
9.4(c) shall be payable by Santa Fe to Global.
(c) If this Agreement is terminated by Global or Santa Fe
pursuant to Section 9.2(b) other than in circumstances covered by Section
9.5(a), then Global shall pay Santa Fe a fee of $10 million to reimburse it for
its costs and expenses incurred in connection with this transaction. If this
Agreement is terminated by Global or Santa Fe pursuant to Section 9.2(c), other
than in circumstances covered by Section 9.5(b), then Santa Fe shall pay Global
a fee of $10 million to reimburse it for its costs and expenses incurred in
connection with this transaction.
(d) In the event of termination of this Agreement and the
abandonment of the Merger pursuant to this Article 9, all obligations of the
parties hereto shall terminate, except the obligations of the parties pursuant
to this Section 9.5, the last sentence of Section 7.6 and Section 7.12 and
except for the provisions of Sections 10.2, 10.3, 10.4, 10.6, 10.8, 10.9, 10.11,
10.12 and 10.13, provided that nothing herein shall relieve any party from any
liability for any willful and material breach by such party of any of its
representations, warranties, covenants or agreements set forth in this Agreement
and all rights and remedies of such nonbreaching party under this Agreement in
the case of such a willful and material breach, at law or in equity, shall be
preserved. The Confidentiality and Standstill Agreement shall survive any
termination of this Agreement, and the provisions of such Confidentiality and
Standstill Agreement shall apply to all information and material delivered by
any party hereunder.
Section 9.6 Extension; Waiver. At any time prior to the
Effective Time, each party may by action taken by its Board of Directors, to the
extent legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE 10
GENERAL PROVISIONS
Section 10.1 Nonsurvival of Representations, Warranties and
Agreements. All representations, warranties and agreements in this Agreement or
in any instrument delivered pursuant to this Agreement shall not survive the
Merger; provided, however, that the agreements
50
contained in Article 4 and in Sections 3.1, 3.2, 7.11, 7.12, 7.13, 7.14, 7.15
and this Article 10 and the agreements delivered pursuant to this Agreement
shall survive the Merger.
Section 10.2 Notices. Except as otherwise provided herein, any notice
required to be given hereunder shall be sufficient if in writing, and sent by
facsimile transmission or by courier service (with proof of service), hand
delivery or certified or registered mail (return receipt requested and first-
class postage prepaid), addressed as follows:
(a) if to Global:
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:
Xxxxx Xxxxx L.L.P.
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: J. Xxxxx Xxxxxxxx, Jr., Esq.
Facsimile: (000) 000-0000
(b) if to Santa Fe, Sub or Merger Sub:
Santa Fe International Corporation
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Seals X. XxXxxxx
Senior Vice President and Chief
Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Xxxxxxxxx O'X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
51
Section 10.3 Assignment; Binding Effect; Benefit. 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 parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, except for the provisions
of Article 4 and Section 7.13 and except as provided in any agreements delivered
pursuant hereto (collectively, the "Third-Party Provisions"), nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement. The Third-Party Provisions may be enforced
by the beneficiaries thereof.
Section 10.4 Entire Agreement. This Agreement, the exhibits to this
Agreement, the Global Disclosure Letter, the Santa Fe Disclosure Letter and any
documents delivered by the parties in connection herewith constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto, except that the Confidentiality and Standstill Agreement shall continue
in effect. No addition to or modification of any provision of this Agreement
shall be binding upon any party hereto unless made in writing and signed by all
parties hereto.
Section 10.5 Amendments. This Agreement may be amended by the parties
hereto, by action taken or authorized by their Boards of Directors, at any time
before or after approval of matters presented in connection with the Merger by
the stockholders of Global or Santa Fe, but after any such stockholder approval,
no amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
Section 10.6 Governing Law. Except to the extent that the laws of the
jurisdiction of organization of any party hereto, or any other jurisdiction, are
mandatorily applicable to the Merger or to matters arising under or in
connection with this Agreement, this Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to its rules of conflicts of laws.
Section 10.7 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
Section 10.8 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only and shall be given no
substantive or interpretative effect whatsoever.
52
Section 10.9 Interpretation. In this Agreement:
(a) Unless the context otherwise requires, words describing
the singular number shall include the plural and vice versa, words
denoting any gender shall include all genders, and words denoting
natural persons shall include corporations and partnerships and vice
versa.
(b) The phrase "to the knowledge of" and similar phrases
relating to knowledge of Global or Santa Fe, as the case may be, shall
mean the actual knowledge of its executive officers.
(c) "Material Adverse Effect" with respect to any person shall
mean a material adverse effect on or change in (a) the business,
assets, financial condition or results of operations of such person and
its Subsidiaries, taken as a whole, except for such changes or effects
in general economic, capital market, regulatory or political conditions
or changes that affect generally the drilling services industry and do
not disproportionately affect such person, or (b) the ability of the
party to consummate the transactions contemplated by this Agreement or
fulfill the conditions to closing. "Global Material Adverse Effect" and
"Santa Fe Material Adverse Effect" mean a Material Adverse Effect with
respect to Global and Santa Fe, respectively.
(d) The term "Subsidiary," when used with respect to any
party, means any corporation or other organization (including a limited
liability company), whether incorporated or unincorporated, of which
such party directly or indirectly owns or controls at least a majority
of the securities or other interests having by their terms ordinary
voting power to elect a majority of the board of directors or others
performing similar functions with respect to such corporation or other
organization or any organization of which such party is a general
partner.
Section 10.10 Waivers. Except as provided in this Agreement,
no action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 10.11 Incorporation of Exhibits. The Global Disclosure
Letter, the Santa Fe Disclosure Letter and all exhibits attached hereto and
referred to herein are hereby incorporated herein and made a part hereof for all
purposes as if fully set forth herein.
Section 10.12 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of
53
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
Section 10.13 Enforcement of Agreement. (a) The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which they are entitled at law or in equity.
(b) Each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of any Delaware state court or any Federal court located
in the State of Delaware in the event any dispute arises out of this Agreement
or any of the transactions contemplated herein, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, and (iii) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated herein
in any court other than any Delaware state court or any Federal court sitting in
the State of Delaware.
(c) Santa Fe designates and appoints Corporation Services Company with
an address in the State of Delaware at 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000 and such person's successors and assigns as its lawful agent in the State
of Delaware upon which may be served, and which may accept and acknowledge for
and on behalf of Santa Fe, all process in any action, suit or proceedings that
may be brought against Santa Fe in any of the courts referred to in this
Section, and agrees that such service of process, or the acceptance or
acknowledgment thereof by said agent, shall be valid, effective and binding in
every respect.
Section 10.14 Waiver of Jury Trial. EACH OF SANTA FE, SUB, MERGER SUB
AND GLOBAL HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ALL RIGHTS OF TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
54
IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on their behalf on the day and year first
written above.
SANTA FE INTERNATIONAL
CORPORATION
By: /s/ SANTA FE INTERNATIONAL CORPORATION
--------------------------------------
Name:
Title:
SILVER SUB, INC.
By: /s/ SILVER SUB, INC.
--------------------------------------
Name:
Title:
GOLD MERGER SUB, INC.
By: /s/ GOLD MERGER SUB, INC.
--------------------------------------
Name:
Title:
GLOBAL MARINE INC.
By: /s/ GLOBAL MARINE INC.
--------------------------------------
Name:
Title:
55
================================================================================
EXECUTION COPY
EXHIBITS
TO
AGREEMENT AND PLAN OF MERGER
among
SANTA FE INTERNATIONAL CORPORATION
SILVER SUB, INC.
GOLD MERGER SUB, INC.
and
GLOBAL MARINE INC.
Dated as of August 31, 2001
===============================================================================
INDEX TO EXHIBITS
-----------------
Exhibit 2.1 Amendments to Articles of Association and
Memorandum of Association
Exhibit 3.2 Other Officers
Exhibit 7.11 Form of Agreement of Rule 145 Affiliate
EXHIBIT 2.1
-----------
AMENDMENTS TO ARTICLES OF ASSOCIATION AND
MEMORANDUM OF ASSOCIATION
THE COMPANIES LAW (2001 SECOND REVISION)
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
GLOBALSANTAFE CORPORATION
(Adopted by Special Resolution of the
Shareholders effective _____________, 2001)/1/
I. INTERPRETATION
1.1 The Regulations or Articles contained or incorporated in Table 'A' in
the First Schedule to the Statute shall not apply to this Company and the
following Articles shall comprise the Articles of Association of the Company.
Unless there be something in the subject or context inconsistent therewith,
"Articles" means these Amended and Restated Articles of Association as
originally framed or as from time to time amended.
"Board of Directors" or "Board" means the Board of Directors of the
Company, comprised of Directors holding office from time to time.
"Company" means GlobalSantaFe Corporation.
"Directors" means the directors for the time being of the Company.
"dividend" includes share dividend.
"Effective Time" shall mean the effective time of the merger
contemplated by the Agreement and Plan of Merger among Santa Fe
International Corporation, Silver Sub, Inc., Gold Merger Sub, Inc. and
Global Marine Inc. dated as of August 31, 2001.
"holder" in relation to any shares means the Shareholder whose name is
entered in the Register as the holder of such shares.
"Independent Director" means a Director who is not a current or
former, (i) director, officer, employee or affiliate of any member of the
KPC Affiliated Group or (ii) officer or employee of the Company or any of
its subsidiaries.
---------------------
/1/ To be the date of the effective time of the Merger.
"Memorandum" means the Amended and Restated Memorandum of Association
of the Company, as the same may be amended from time to time.
"Merger Agreement" means the Agreement and Plan of Merger among Santa
Fe International Corporation, Silver Sub, Inc., Gold Merger Sub, Inc. and
Global Marine Inc., dated as of August 31, 2001.
"Month" means calendar month.
"Ordinary Resolution" means a resolution passed by a simple majority
of the votes cast by Shareholders being entitled to vote and present in
person or by proxy at a general meeting.
"Ordinary Shares" has the meaning ascribed to it in Article III.
"Outstanding Voting Stock" means the shares of Voting Stock issued and
outstanding from time to time, and shall not include shares of Voting Stock
held by the Company or any subsidiary of the Company.
"Paid-up" means paid-up and/or credited as paid-up.
"Register" means the Register of Shareholders of the Company as
maintained in accordance with Section 40 of the Statute.
"Registered Office" means the registered office for the time being of
the Company.
"seal" means the common seal of the Company and includes every
official seal.
"Secretary" means the secretary of the Company and includes an
Assistant Secretary and any person appointed to perform the duties of
Secretary of the Company.
"shares" means any Ordinary Shares or other shares issued in the
capital of the Company.
"share dividend" means a distribution of shares in lieu of payment of
a dividend in cash.
"Shareholder" has the meaning ascribed to the term "member" in Section
38 of the Statute.
"Special Resolution" has the same meaning as in the Statute.
"Specified Period" means the period of time commencing at the
Effective Time and terminating upon the later of the date on which the
members of the KPC Affiliated Group shall cease to own, in the aggregate,
at least ten percent (10%), (i) of the voting power of the Outstanding
Voting Stock or (ii) of all the outstanding Ordinary Shares.
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"Statute" means the Companies Law (2001 Second Revision) of the Cayman
Islands as amended and every statutory modification or re-enactment thereof
for the time being in force.
"Voting Stock" means all shares and other securities issued by the
Company having the ordinary power to vote in the election of directors of
the Company, other than securities having such power only upon the
occurrence of a default or any other extraordinary contingency.
"written" and "in writing" includes all modes of representing or
reproducing words in visible form.
For the purposes of this Article I, the members of the KPC Affiliated
Group shall have the meaning set forth in Article XXXIII.
Words importing the singular number shall also include the plural
number and vice-versa.
Words importing the masculine gender shall also include the feminine
gender.
Words importing persons shall also include corporations, partnerships,
trusts and other entities.
II. CERTIFICATES FOR SHARES
2.1 Certificates representing shares of the Company shall be in such form
and may bear such legends (reflecting or referring to the terms of issue of the
shares thereby represented, or any of these Articles or other relevant matters)
as shall be determined by the Board of Directors. Such certificates shall be
under seal (which may be a facsimile), signed manually or by facsimile by the
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President of the Company, countersigned manually or by facsimile by the
Secretary or another authorized person, registered in the Register and signed
manually by or on behalf of the transfer agent. In case any officer or officers
who have signed, or whose facsimile signature or signatures have been used on,
any such certificate or certificates shall cease to be such officer or officers
of the Company, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the Company, such certificate
or certificates may nevertheless be validly issued and delivered as though the
person or persons who signed such certificate or certificates or whose facsimile
signature or signatures have been used thereon had not ceased to be such officer
or officers of the Company. Certificates for shares shall be in such form as
shall be in conformity to law or as may be prescribed from time to time by the
Board of Directors. All certificates for shares shall be consecutively numbered
or otherwise identified and shall specify the shares to which they relate. The
name and address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue and whether fully paid, or
deemed fully paid or partly paid, shall be entered in the Register of the
Company. All certificates surrendered to the Company for transfer shall be
cancelled and no new certificate shall be issued until the former certificate
for a like number of shares has been surrendered and cancelled.
3
2.2 The Company shall maintain, or cause to be maintained, a register of
its Shareholders and every person whose name is entered as a Shareholder in the
Register shall be entitled without payment to receive within two months after
allotment or lodgment of transfer (or within such other period as the conditions
of issue shall provide) one certificate for all his shares or several
certificates each for one or more of his shares provided that in respect of a
share or shares held jointly by several persons the Company shall not be bound
to issue more than one certificate and delivery of a certificate for a share to
one of the several joint holders shall be sufficient delivery to all such
holders.
2.3 Notwithstanding Section 2.1, if a share certificate be defaced, lost or
destroyed, it may be renewed on such terms (if any) as to evidence and indemnity
and the payment of the expenses incurred by the Company in investigating
evidence, as any Director or officer of the Company may prescribe.
III. ISSUE OF SHARES
3.1 The authorized share capital of the Company shall be as set forth in
the Memorandum represented by (i) Ordinary Shares of the Company (the "Ordinary
Shares") , with the rights as set forth in Article IV, and (ii) such other
classes or series of shares with the respective rights to be determined upon the
creation thereof by action of the Board of Directors from time to time in
accordance with Article V.
IV. ORDINARY SHARES
4.1 Subject to the provisions of the Articles, all unissued shares for the
time being in the capital of the Company shall be at the disposal of the Board
of Directors, and the Board of Directors may (subject as aforesaid) allot, issue
or grant any option, right, warrant or other security exercisable for,
convertible into, or exchangeable for, or otherwise dispose of, the shares to
such persons, on such terms and conditions and at such times as they deem
proper.
4.2 Dividends, whether to be paid in cash or to be satisfied by
distributions of property other than cash, will be made or paid (as the case may
be) on an equal per share basis (in all material respects) to all holders of
Ordinary Shares as of the record date fixed for such dividend.
4.3 No holder of Ordinary Shares or any other shares of the Company (unless
otherwise expressly agreed to by the Company) shall, by reason of such holding,
have any preemptive or preferential right to subscribe to or purchase any shares
of any class or series of any shares of the Company, now or hereafter to be
authorized, or any notes, debentures, bonds or other securities, whether or not
the issuance of any such shares, notes, debentures, bonds or other securities
would adversely affect the dividend, voting or any other rights of such holder.
4.4 Upon approval of the Board of Directors, such number of Ordinary
Shares, or other shares or securities of the Company, as may be required for
such purpose shall be reserved for issuance in connection with any option,
right, warrant or other security of the Company or any other person that is
exercisable for, convertible into, exchangeable for or otherwise issuable in
respect of such Ordinary Shares or other shares or securities of the Company.
Without limiting the generality of Section 4.1 or the foregoing, the Board of
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Directors is expressly authorized and empowered to approve and enter into a
rights agreement between the Company and a rights agent pursuant to which rights
to purchase shares are granted to the holders of the Ordinary Shares on such
terms and for such purposes, including the influencing of takeovers, as the
Board of Directors shall in its absolute discretion determine.
4.5 Unless otherwise specified by the Board of Directors, any shares which
have been redeemed or repurchased by the Company shall have the status of
authorized but unissued shares and may be subsequently issued in accordance with
the Memorandum and the Articles.
4.6 The Board of Directors shall have the fullest powers permitted by law
to pay all or any redemption or repurchase monies in respect of any shares out
of the profits and reserves of the Company, the Company's share capital and
share premium account.
V. OTHER CLASSES OR SERIES OF SHARES
5.1 Subject to Article VI, the Board of Directors is authorized, subject to
any limitations prescribed by law, to provide from time to time for the issuance
of other classes or series of shares, and in accordance with applicable
procedures of the Statute, to establish the characteristics of each class or
series including, without limitation, the following:
(a) the number of shares of that class or series, which may
subsequently be increased or decreased (but not below the number of shares
of that class or series then outstanding) by resolution of the Board of
Directors, and the distinctive designation thereof;
(b) the voting powers, full or limited, if any, of the shares of that
class or series, including without limitation, the authority to confer
multiple votes per share, voting rights as to specified matters or issues
such as mergers, consolidations or sales of assets, or voting rights to be
exercised either together with holders of Ordinary Shares as a single
class, or independently as a separate class;
(c) the rights in respect of dividends, if any, on the shares of that
class or series; the rate at which such dividends shall be payable and/or
cumulate, which rate may be determined on factors external to the Company
and which dividends may be payable in cash, shares of capital or other
securities or property of the Company; whether dividends shall be
cumulative and, if so, from which date or dates; the relative rights or
priority, if any, of payment of dividends on shares of that class or
series; and any limitation, restrictions or conditions on the payment of
dividends;
(d) the relative amounts, and the relative rights or priority, if any,
of payment in respect of shares of that class or series, which the holder
of the shares of that class or series shall be entitled to receive upon any
liquidation, dissolution or winding up of the Company;
(e) any redemption, repurchase, retirement and sinking fund rights,
preferences and limitations of that class or series, the amount payable on
shares of that class or series in the event of such redemption, repurchase
or retirement, the terms and
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conditions of any sinking fund, the manner of creating such fund or funds
and whether any of the foregoing shall be cumulative or non-cumulative;
(f) the terms, if any, upon which the shares of that class or series
shall be convertible into or exchangeable for shares of any other classes,
or series, or other securities, whether or not issued by the Company;
(g) the restrictions, limitations and conditions, if any, upon
issuance of indebtedness of the Company so long as any shares of that class
or series are outstanding; and
(h) any other preferences and relative, participating, optional or
other rights and limitations.
VI. VARIATION OF RIGHTS OF SHARES
6.1 (a) If at any time the share capital of the Company is divided into
different classes or series of shares, the rights attached to any class or
series (unless otherwise provided by the terms of issue of the shares of that
class) may, whether or not the Company is being wound-up, be varied with the
consent in writing of the holders of all of the issued shares of that class or
series, or with the sanction of a Special Resolution passed at a general meeting
with the holders of the shares of that class or series voting separately as a
class.
(b) The provisions of the Articles relating to separate general meetings
shall apply to every such general meeting of the holders of one class or series
of shares.
(c) Class or series meetings and class or series votes may only be called
at the direction of the Board of Directors or upon the written request of
Shareholders holding an aggregate of at least 25% of the outstanding shares of
such class or series of shares of the Company (unless otherwise expressly
provided by the terms of issue of the shares of such class or series).
6.2 The rights conferred upon the holders of the shares of any class or
series issued with preferred or other rights shall not, unless otherwise
expressly provided by the terms of issue of the shares of that class or series,
be deemed to be varied by the creation or issue of further shares ranking pari
passu therewith. The rights of the holders of Ordinary Shares shall not be
deemed to be varied by the granting of rights to purchase Ordinary Shares to the
holders of Ordinary Shares under any rights agreement that may be entered into
between the Company and a rights agent in accordance with the provisions of
these Articles or the issue of Ordinary Shares pursuant to those rights. The
entry into any such rights agreement, the granting of such rights and the issue
of Ordinary Shares pursuant to such rights may be effected by the Directors
without any consent or vote of the holders of the Ordinary Shares.
VII. REPURCHASE OF ORDINARY SHARES
7.1 Subject to the provisions of the Statute and the Memorandum, the
Company may at any time and from time to time purchase the Company's issued
Ordinary Shares by (i) agreement between the Company and any one or more of its
Shareholders holding
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the Ordinary Shares to be purchased, (ii) tender offer to all Shareholders or
(iii) purchase on any exchange or market on which the Ordinary Shares are
traded, provided always that, in each case, unless approved by Ordinary
Resolution, the purchase price is no greater than the then existing market price
as determined by the Directors by reference to the closing prices on the
principal exchange or market for the Ordinary Shares for a period of not less
than one and not more than ten consecutive trading days ending not more than
three trading days before such determination. In the event of a purchase by the
Company of its own Ordinary Shares on any exchange or market on which the
Ordinary Shares are traded, the manner of the purchase shall be in accordance
with the rules and regulations of the relevant exchange or market.
VIII. TRANSFER OF SHARES
8.1 Upon surrender to the Company or the transfer agent of the Company of a
certificate for shares duly endorsed or accompanied by proper evidence of
transfer, and otherwise meeting all legal requirements for transfer, it shall be
the duty of the Company to cause the issue of a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction in the
Register. Transfers of shares shall be made on the books of the Company only by
the registered holder thereof, or by such holder's attorney thereunto authorized
by power of attorney filed with the Secretary or the transfer agent. The Company
shall be entitled to recognize the exclusive right of a person registered in the
Register as the owner of shares to receive dividends, and to vote as such owner.
8.2 The holder of any redeemable shares for which the Company has issued a
notice of redemption may not transfer such shares, whether or not the Company
has yet paid the redemption price to the Shareholder unless otherwise provided
(i) by the terms of such shares or (ii) by the Board of Directors in connection
with the redemption of such shares.
IX. NON-RECOGNITION OF TRUSTS OR OTHER EQUITABLE OWNERSHIP
9.1 The Company shall not be required to recognize any person as holding
any share upon any trust (except the trustee(s) thereof) and the Company shall
not be bound by or be compelled in any way to recognize (even when having notice
thereof) any equitable, contingent, future, or partial interest in any share, or
any interest in any fractional part of a share, or (except only as is otherwise
provided by the Articles or the Statute) any other rights in respect of any
share except an absolute right to the entirety thereof in the registered holder.
X. TRANSMISSION OF SHARES
10.1 In case of the death of a Shareholder who is a natural person, the
survivor or survivors where the deceased was a joint holder, and the legal
personal representatives of the deceased where he was a sole holder, shall be
the only persons recognized by the Company as having any title to his interest
in the shares, but nothing herein contained shall release the estate of any such
deceased holder from any liability in respect of any shares which had been held
by him solely or jointly with other persons.
10.2 (a) Any person becoming entitled to a share by reason of the death or
bankruptcy of a Shareholder (or in any way other than by transfer) may, upon
such evidence being produced as may from time to time be required by the Board
of Directors and subject as
7
hereinafter provided, elect either to be registered himself as holder of the
share or to make such transfer of the share to such other person nominated by
him as the deceased or bankrupt person could have made and to have such person
registered as the transferee thereof, but the Board of Directors shall, in
either case, have the same right to decline or suspend registration as they
would have had in the case of a transfer of the share by that Shareholder before
his death or bankruptcy as the case may be.
(b) If the person so becoming entitled shall elect to be registered himself
as holder he shall deliver or send to the Company a notice in writing signed by
him stating that he so elects.
10.3 A person becoming entitled to a share by reason of the death or
bankruptcy of the holder (or in any way other than by transfer) shall be
entitled to the same dividends and other advantages to which he would be
entitled if he were the registered holder of the share, except that he shall
not, before being registered as a Shareholder in respect of the share, be
entitled in respect of it to exercise any right conferred by share ownership in
relation to meetings of the Company; provided, however, that the Board of
Directors may at any time give notice requiring any such person to elect either
to be registered himself or to transfer the share and if the notice is not
complied with within ninety days the Board of Directors may thereafter withhold
payment of all dividends, bonuses or other monies payable in respect of the
share until the requirements of the notice have been complied with.
XI. AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION,
CHANGE OF LOCATION OR REGISTERED OFFICE & ALTERATION OF CAPITAL
11.1 (a) Subject to and insofar as permitted by the provisions of the
Statute, the Company may from time to time by Special Resolution alter or amend
the Memorandum and Articles and may by Ordinary Resolution:
(i) increase the share capital by such sum to be divided into shares
of such amount or without nominal or par value as the resolution shall
prescribe;
(ii) consolidate all or any of its share capital into shares of larger
amount than its existing shares;
(iii) by subdivision of its existing shares or any of them divide the
whole or any part of its share capital into shares of smaller amount than
is fixed by the Memorandum; and
(iv) cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any person.
(b) All new shares created hereunder shall be subject to the same
provisions with reference to transfer, transmission, and otherwise as provided
in the Articles.
(c) Subject to the provisions of the Statute, the Company may by Special
Resolution reduce its share capital or any capital redemption reserve fund.
8
11.2 Subject to the provisions of the Statute, the Company may by Special
Resolution change its name or alter its objects.
11.3 Subject to the provisions of the Statute, the Company may by
resolution of the Board of Directors change the location of its registered
office.
XII. CLOSING REGISTER OF SHAREHOLDERS OR FIXING RECORD DATE
12.1 For the purpose of determining Shareholders entitled to notice of or
to vote at any meeting of Shareholders or any adjournment thereof, or
Shareholders entitled to receive payment of any dividend, or in order to make
the determination of Shareholders for any other proper purpose, the Board of
Directors of the Company may provide that the Register shall be closed for
transfers for a stated period but not to exceed in any case forty days. If the
Register shall be so closed for the purpose of determining Shareholders entitled
to notice of or to vote at a meeting of Shareholders such register shall be so
closed for at least ten days immediately preceding such meeting and the record
date for such determination shall be the date of the closure of the Register.
12.2 In lieu of or apart from closing the Register, the Board of Directors
may fix in advance a date as the record date for any such determination of
Shareholders entitled to notice of or to vote at a meeting of the Shareholders,
and for the purpose of determining the Shareholders entitled to receive payment
of any dividend, the Board of Directors may fix a subsequent date no later than
the date of payment as the record date for such dividend.
12.3 If the Register is not so closed and no record date is fixed for the
determination of Shareholders entitled to notice of or to vote at a meeting of
Shareholders or Shareholders entitled to receive payment of a dividend, the date
on which notice of the meeting is mailed or the date on which the resolution of
the Board of Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of Shareholders. When a
determination for Shareholders entitled to vote at any meeting of Shareholders
has been made as provided in this section, such determination shall apply to any
adjournment thereof.
XIII. GENERAL MEETING
13.1 (a) The Company shall in each year of its existence hold a general
meeting as its annual general meeting. The annual general meeting shall be held
at such time and place as the Board of Directors shall appoint.
(b) At each annual general meeting, the Directors to be elected at that
meeting shall be elected for the applicable term or until their respective
successors have been elected and have qualified.
13.2 (a) Except as otherwise required by law, and subject to the terms of
any class or series of shares issued by the Company having a preference over the
Ordinary Shares as to dividends or upon liquidation or to elect directors in
specified circumstances, extraordinary general meetings of the Shareholders of
the Company may be called only (i) by the Board of
9
Directors or (ii) upon the written request of Shareholders holding at least 35%
of the outstanding Ordinary Shares generally entitled to vote.
(b) Any action required or permitted to be taken by the Shareholders of the
Company must be taken at a duly called annual or extraordinary general meeting
of the Shareholders of the Company and may not be taken by consent of the
Shareholders in writing or otherwise.
XIV. NOTICE OF GENERAL MEETINGS
14.1 Written notice of each meeting of the Shareholders stating the place,
date and time of the meeting shall be given not less than fifteen nor more than
sixty days before the date of the meeting, to each Shareholder entitled to vote
at such meeting. The notice of any extraordinary meeting of Shareholders shall
state the purpose or purposes for which the meeting is called. Business
transacted at any extraordinary meeting shall be limited to the purposes stated
in the notice.
14.2 The accidental omission to give notice of a general meeting to, or the
non-receipt of notice of a general meeting by, any person entitled to receive
notice shall not invalidate the proceedings of that meeting.
XV. PROCEEDINGS AT GENERAL MEETINGS
15.1 No business shall be transacted at any general meeting unless a quorum
of Shareholders is present at the time when the meeting proceeds to business.
Subject to the proviso below, one or more Shareholders present in person or by
proxy holding at least a majority of the issued and outstanding shares of the
Company entitled to vote at such meeting shall constitute a quorum; provided
that the quorum for any meeting at which a Special Resolution is to be
considered and voted upon pursuant to Sections 18.8(c), 19.1(c), 33.8, 34.7 or
35.5 shall be one or more Shareholders present in person or by proxy holding at
least a majority of the issued and outstanding shares of the Company entitled to
vote at such meeting and, for so long as members of the KPC Affiliated Group
own, in the aggregate, at least four percent (4%), (i) of the voting power of
Outstanding Voting Stock, or (ii) of all the outstanding Ordinary SHARES, one of
such Shareholders present is SFIC Holdings (a "Special Quorum"). The
Shareholders present at a duly constituted general meeting may continue to
transact business until adjournment, despite the withdrawal of enough
Shareholders to leave less than a quorum, or, as the case may be, Special
Quorum. If a meeting is adjourned for lack of quorum, or, as the case may be,
Special Quorum, it will stand adjourned to such other day at such other time and
place as the Board of Directors may determine and at which a quorum or, as the
case may be, Special Quorum is present in person or by proxy.
15.2 (a) Subject to the terms of any class or series of shares issued by
the Company, if a Shareholder desires to nominate persons for election as
Directors at any general meeting duly called for the election of Directors,
written notice of such Shareholder's intent to make such a nomination must be
given and received by the Secretary of the Company at the principal executive
offices of the Company not later than (i) with respect to an annual general
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meeting of Shareholders, ninety days in advance of the anniversary date of the
immediately preceding annual general meeting and (ii) with respect to an
extraordinary general meeting, the close of business on the tenth day following
the date on which notice of such meeting is first sent or given to Shareholders.
Each such notice shall set forth (i) the name and address, as it appears in the
Register of the Company, of the Shareholder who intends to make the nomination
and of the person or persons to be nominated; (ii) a representation that the
Shareholder is a holder of record of shares of the Company entitled to vote at
such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (iii) the class and
number of shares of the Company which are beneficially owned by the Shareholder;
(iv) a description of all arrangements or understandings between the Shareholder
and each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by the
Shareholder; (v) such other information regarding each nominee proposed by such
Shareholder as would be required to be included in a proxy statement filed
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
from time to time, of the United States of America, whether or not the Company
is then subject to such Regulation; and (vi) the consent of each nominee to
serve as a Director of the Company, if so elected. The Chairman of the annual
general meeting or extraordinary general meeting shall, if the facts warrant,
refuse to acknowledge a nomination not made in compliance with the foregoing
procedure, and any such nomination not properly brought before the meeting shall
not be considered.
(b) Subject to the terms of any class or series of shares issued by the
Company, if a Shareholder desires to submit a proposal for consideration by the
Shareholders at any general meeting, written notice of such Shareholder's intent
to submit such a proposal must be given and received by the Secretary of the
Company not later than (i) with respect to an annual general meeting of
Shareholders, ninety days in advance of the anniversary date of the immediately
preceding annual general meeting; and (ii) with respect to an extraordinary
general meeting, the close of business on the tenth day following the date on
which notice of such meeting is sent or given to Shareholders. Each such notice
shall set forth (i) the name and address, as it appears in the Register, of the
Shareholder who intends to submit the proposal; (ii) a representation that the
Shareholder is a holder of record of shares of the Company entitled to vote at
such meeting and intends to appear in person or by proxy at the meeting to
submit the proposal specified in the notice; (iii) the class and number of
shares of the Company which are beneficially owned by the Shareholder; and (iv)
such other information regarding each proposal submitted by such Shareholder as
would be required to be included in a proxy statement filed pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended from time
to time, of the United States of America, whether or not the company is then
subject to such Regulation. The Chairman of the annual general meeting or
extraordinary general meeting shall, if the facts warrant, refuse to acknowledge
a proposal not made in compliance with the foregoing procedure, and any such
proposal not properly brought before the meeting shall not be considered.
15.3 The Chairman of the Board, or any Director designated by the Board of
Directors, shall preside as Chairman at every general meeting of the Company, or
if there is no such Chairman, or if he or such designee shall not be present
within one hour after the time appointed for the holding of the meeting, or is
unwilling to act, the Directors present shall elect one of their number to be
Chairman of the meeting.
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15.4 If at any general meeting no Director is willing to act as Chairman or
if no Director is present within one hour after the time appointed for holding
the meeting, the Shareholders present shall choose one of their number to be
Chairman of the meeting.
15.5 The Chairman may, with the consent of any general meeting duly
constituted hereunder, adjourn the meeting from time to time and from place to
place, but no business shall be transacted at any adjourned meeting other than
the business left unfinished at the meeting from which the adjournment took
place. When a general meeting is adjourned for thirty days or more, notice of
the adjourned meeting shall be given as in the case of an original meeting; save
as aforesaid it shall not be necessary to give any notice of an adjournment or
of the business to be transacted at an adjourned general meeting.
15.6 At any general meeting a resolution put to the vote at the meeting
shall be decided on a poll taken in such manner as the Chairman directs.
15.7 Subject to the terms of any class or series of shares issued by the
Company, every Shareholder of record present in person or by proxy shall have
one vote for each issued Ordinary Share registered in his name in the Register.
Cumulative voting is expressly prohibited. Elections of Directors need not be by
ballot.
15.8 In the case of joint holders of record, the vote of each joint holder,
whether in person or by proxy, shall be required in order for such joint
holders` vote to be counted.
15.9 A Shareholder of unsound mind, or in respect of whom an order has been
made by any court, having jurisdiction in lunacy, may vote, whether on a show of
hands or on a poll, by his committee, receiver, curator bonis, or other person
in the nature of a committee, receiver or curator bonis appointed by that court,
and any such committee, receiver, curator bonis or other persons may vote by
proxy.
15.10 No Shareholder shall be entitled to vote at any general meeting
unless he is registered as a Shareholder of the Company on the record date for
such meeting or holds a valid proxy of such a Shareholder and unless all sums
presently payable in respect of the shares to be voted have been paid.
15.11 Votes may be given either personally or by proxy.
XVI. PROXIES
16.1 The instrument appointing a proxy shall be in writing and shall be
executed under the hand of the appointer or of his attorney duly authorized in
writing, or, if the appointer is a corporation under the hand of an officer or
attorney duly authorized in that behalf. A proxy need not be a Shareholder of
the Company.
16.2 The instrument appointing a proxy shall be deposited at the Registered
Office or at such other place as is specified for that purpose in the notice
convening the meeting no later than the time for holding the meeting, or
adjourned meeting provided that the Chairman of the meeting may at his
discretion direct that an instrument of proxy shall be deemed to have been duly
deposited upon receipt of facsimile transmission of the signed proxy or upon
receipt of
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telex or cable confirmation from the appointer that the instrument of proxy duly
signed is in the course of transmission to the Company.
16.3 The instrument appointing a proxy may be in any usual or common form
and may be expressed to be for a particular meeting or any adjournment thereof
or generally until revoked.
16.4 A vote given in accordance with the term of an instrument of proxy
shall be valid notwithstanding the previous death or insanity of the principal
or revocation of the proxy or of the authority under which the proxy was
executed, or the transfer of the share in respect of which the proxy is given
provided that no intimation in writing of such death, insanity, revocation or
transfer as aforesaid shall have been received by the Company at the office
before the commencement of the general, meeting, or adjourned meeting at which
it is sought to use the proxy.
16.5 Any corporation which is a Shareholder of record of the Company may in
accordance with its articles of association or other governing documents or in
the absence of such provision by resolution of its board of directors or other
governing body authorize one or more persons as it thinks fit to act as its
representative or representatives at any meeting of the Company or of any class
or series of Shareholders of the Company, and the person or persons so
authorized shall be entitled to exercise the same powers on behalf of the
corporation which he or they represent as the corporation could exercise if it
were an individual Shareholder of record of the Company and may cast votes or
abstain on any motion in any manner as he or they may be directed.
XVII. DIRECTORS
17.1 (a) The Board of Directors shall consist of not less than six nor more
than fifteen persons. Subject to Section 17.1(c), the Board of Directors shall
have the exclusive power and right to set the exact number of Directors within
that range from time to time by resolution adopted by the vote of a majority of
the whole Board of Directors. Until the Board of Directors adopts such a
resolution, the exact number of Directors shall be fourteen.
(b) Upon the date that these Articles are adopted, the Directors shall by
resolution of the Board of Directors be divided into three classes of equal
size, designated as Class I, Class II and Class III, each class to be comprised
of at least three Directors; provided, however, if the total number of Directors
is 10, 11, 13 or 14, one Class may have one fewer or one more Director than the
other two Classes. The Board of Directors shall make the subsequent appointments
of individual Directors to particular Classes. Upon the date that these Articles
are adopted, the Directors then appointed to Class I will hold office for a term
expiring at the 2004 annual general meeting of Shareholders; the Directors then
appointed to Class II will hold office for a term expiring at the 2002 annual
general meeting of Shareholders; and the Directors then appointed to Class III
will hold office for a term expiring at the 2003 annual general meeting of
Shareholders. At each annual general meeting of Shareholders, the successors of
the class of Directors whose terms expire at that meeting shall be of the same
class as the Directors they succeed and shall be elected for three-year terms.
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(c) No resolution of the Board of Directors may be adopted if its effect
would be to remove from office, or shorten the term of, any incumbent Director.
(d) A Director shall hold office until the annual general meeting for the
year in which his term expires and until his successor shall be elected and
shall qualify, subject, however, to prior death, resignation, retirement or
removal from office. Any newly created directorship resulting from an increase
in the number of Directors and any other vacancy on the Board of Directors,
however caused, may be filled by a majority vote of the Directors then in
office, although less than a quorum, or by a sole remaining Director. Any
Director elected by the Board of Directors to fill a vacancy shall hold office
until the annual general meeting of Shareholders for the year in which the term
of the Director vacating office expires and until his successor shall have been
elected and qualified. Any newly created directorship resulting from an increase
in the number of Directors may be created in any class of Directors that the
Board of Directors may determine, and any Director elected to fill the newly
created vacancy shall hold office until the term of office of such class
expires.
(e) One or more or all of the Directors of the Company may be removed only
for cause by the affirmative vote of the holders of at least a majority of the
outstanding shares generally entitled to vote, voting together as a single
class, at a meeting of Shareholders for which proper notice of the proposed
removal has been given.
(f) If at any time the number of Directors is less than six, the Board of
Directors may act to fill any vacancies on the Board of Directors.
17.2 The Board of Directors shall have the authority to fix the
compensation of Directors, which may include their expenses, if any, of
attendance at each meeting of the Board of Directors or of a committee.
17.3 A Director may hold any other office or place of profit under the
Company in conjunction with his office of Director for such period and on such
terms as to remuneration and otherwise as the Board of Directors may determine.
17.4 A Director may act by himself or his firm in a professional capacity
for the Company and he or his firm shall be entitled to remuneration for
professional services as if he were not a Director.
17.5 (a) No share ownership qualification for Directors shall be required.
(b) No person shall serve as a Director of the Company who at the time of
his or her election has reached his or her 70th birthday.
17.6 A Director of the Company may be or become a Director or other officer
of or otherwise interested in any company promoted by the Company or in which
the Company may be interested as shareholder or otherwise and no such Director
shall be accountable to the Company for any remuneration or other benefits
received by him as a director or officer of, or from his interest in, such other
company.
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17.7 No person shall be disqualified from the office of Director or
prevented by such office from contracting with the Company, either as vendor,
purchaser or otherwise, nor shall any such contract or any contract or
transaction entered into by or on behalf of the Company in which any Director
shall be in any way interested or be liable to be avoided, nor shall any
Director so contracting or being so interested be liable to account to the
Company for any profit realized by any such contract or transaction by reason of
such Director holding office or of the fiduciary relation thereby established. A
Director shall be at liberty to vote in respect of any contract or transaction
in which he is so interested as aforesaid; provided, however, that the nature of
the interest of any Director in any such contract or transaction shall be
disclosed by him at or prior to its consideration and any vote thereon.
17.8 A general notice that a Director is an officer, director or
shareholder of any specified firm or company and is to be regarded as interested
in any transaction with such firm or company shall be sufficient disclosure
under Section 17.7 and after such general notice it shall not be necessary to
give special notice relating to any particular transaction.
XVIII. POWERS AND DUTIES OF DIRECTORS
18.1 The business and affairs of the Company shall be managed by the Board
of Directors who may exercise all such powers of the Company and do all such
lawful acts and things as are not from time to time by the Statute or by the
Articles required to be exercised or done by the Company in general meeting.
18.2 The Board of Directors may from time to time and at any time by powers
of attorney appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Board of Directors, to be the attorney
or attorneys of the Company for such purpose and with such powers, authorities
and discretions (not exceeding those vested in or exercisable by the Board of
Directors under these Articles) and for such period and subject to such
conditions as it may think fit, and any such powers of attorney may contain such
provisions for the protection and convenience of persons dealing with any such
attorneys as the Board of Directors may deem fit and may also authorize any such
attorney to delegate all or any of powers, authorities and discretions vested in
him.
18.3 All cheques, promissory notes, drafts, bills of exchange and other
negotiable instruments and all receipts for monies paid to the Company shall be
signed, drawn, accepted, endorsed or otherwise executed as the case may be by
such officer or officers or such other person or persons as the Board of
Directors shall from time to time designate.
18.4 The Board of Directors shall cause minutes to be made for the purpose
of recording the proceedings at all meetings of the Shareholders and the
Directors and of Committees of the Board of Directors.
18.5 The Board of Directors on behalf of the Company may direct the payment
of a gratuity or pension or allowance on retirement to any Director who has held
any other salaried office or place of profit with the Company or to his widow or
dependents and may make contributions to any fund and pay premiums for the
purchase or provision of any such gratuity, pension or allowance.
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18.6 The Board of Directors may exercise all the powers of the Company to
borrow money and to mortgage or charge its undertaking, property and uncalled
capital or any part thereof and to issue debentures, debenture stock and other
securities whether outright or as security for any debt, liability or obligation
of the Company or of any third party.
18.7 Board of Directors may authorize any officer, officers, agent or
agents to enter into any contract or agreement of any nature whatsoever,
including, without limitation, any contract, deed, bond, mortgage, guaranty,
deed of trust, security agreement, pledge agreement, act of pledge, collateral
mortgage, collateral chattel mortgage or any other document or instrument of any
nature whatsoever, and to execute and deliver any such contract, agreement,
document or other instrument of any nature whatsoever for and in the name of and
on behalf of the Company, and such authority may be general or confined to
specific instances.
18.8 (a) Notwithstanding anything in the Articles to the contrary, during
the Specified Period the Board of Directors shall cause the Company, and shall
use its best endeavors to cause the subsidiaries of the Company, not to permit
the following to occur without obtaining the prior consent, as provided in
Section 18.8(b), of SFIC Holdings (Cayman), Inc. ("SFIC Holdings"): (i) the
reincorporation or organization of any existing subsidiary of the Company or the
incorporation or organization of any new subsidiary of the Company in any
jurisdiction (other than, in the case of existing subsidiaries, in the
jurisdiction in which it is then incorporated or under which laws it is then
organized), in a manner materially adversely affecting the rights or interest of
any member of the KPC Affiliated Group, or (ii) the reincorporation or
organization of the Company in a jurisdiction other than in the jurisdiction in
which it is then incorporated or under which laws it is then organized.
(b) As soon as practicable following a determination by the Board of
Directors to undertake any of the actions specified in Section 18.8(a), the
Board of Directors shall give SFIC Holdings written notice of the proposed
action, which notice shall set forth in reasonable detail the terms of the
proposed action, including without limitation, as applicable, the parties to the
action, the intended timing of the action, the amount of consideration and
assets involved and such other terms as may be relevant to SFIC Holdings'
decision whether to consent to the proposed action. Within thirty calendar days
after SFIC Holdings receives such notice, SFIC Holdings shall give the Company
written notice of its consent or withholding of consent to the action specified
in the notice. In the event that SFIC Holdings fails to deliver to the Company
during such thirty-day period a written notice indicating its withholding of
consent to the proposed action, SFIC Holdings shall be deemed to have consented
to such action. For purposes of this Section 18.8(b), (i) notices shall be given
by personal delivery, confirmed facsimile or overnight courier and (ii) any
notice by SFIC Holdings either giving or withholding consent to a proposed
action may be signed by any director or authorized officer of SFIC Holdings (and
need not be preceded by a resolution of the board of directors of SFIC
Holdings). The Company shall not take until after the date defined in Section
18.8(a) the action specified in Section 18.8(a) unless the Company shall have
obtained SFIC Holdings' consent or SFIC Holdings shall be deemed to have
consented to such action pursuant to this Section 18.8(b).
(c) The provisions of Section 18.8, including, without limitation, the
provisions of this Section 18.8(c), may only be altered or amended by a Special
Resolution passed at a meeting of the Company at which a Special Quorum of
Shareholders is present.
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XIX. COMMITTEES
19.1 (a) Subject to Sections 19.1(b) and 19.2, the Board of Directors may
designate one or more committees of the Board, each such committee to consist of
four or more Directors during the Specified Period and thereafter not less than
three Directors. Except as limited by the Statute, the Memorandum, the Articles
or the resolution establishing such committee, each committee shall have and may
exercise all of the authority of the Board of Directors as specified in the
Articles with respect to each such committee or as the Board of Directors may
determine and specify in the respective resolutions appointing each such
committee. Subject to Sections 19.1(b) and 19.2, a majority of all of the
members of any such committee may elect the Chairman of such committee and may
fix the time and place of its meetings, unless the Articles or the Board of
Directors shall otherwise provide, and meetings of any committee may be held
upon such notice, or without notice, as shall from time to time be determined by
the members of any such committee. At all meetings of any committee, any three
of its members shall constitute a quorum for the transaction of business, and
the act of a majority of the members present shall be the act of any such
committee, unless otherwise specifically provided by the Statute, the
Memorandum, the Articles or the resolution establishing such committee. The
committees shall keep regular minutes of their proceedings and report the same
to the Board of Directors when required. The Board of Directors shall have power
at any time to change the number, subject as aforesaid, and members of any such
committee, to fill vacancies and to modify the powers of (except that powers of
committees established by the Articles shall not be decreased) or discharge any
such committee. Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of
Directors.
(b) As long as SFIC Holdings has the right to designate a Director pursuant
to the first sentence of Section 35.1(a), SFIC Holdings shall have the right, by
notice in writing to the Board of Directors, to appoint one designee (being a
KPC Designee on the Board of Directors) to each committee, including the Audit,
Nominating and Governance, Compensation and Executive Committees, of the Board
of Directors; provided, however, that if any applicable law or regulation of the
New York Stock Exchange shall prohibit the Board from appointing a designee who
is not an Independent Director to serve on any committee, at any time at which
there is no such designee of SFIC Holdings who is an Independent Director, SFIC
Holdings shall not be permitted to appoint any designee of SFIC Holdings to
serve on such committee.
(c) The provisions of Section 19.1(b) and this Section 19.1(c) may only be
altered or amended by a Special Resolution passed at a meeting of the Company at
which a Special Quorum of Shareholders is present.
19.2 Until further action of the Board of Directors creating additional
committees, the following shall constitute the committees of the Board of
Directors:
(a) AUDIT COMMITTEE.
(i) The Board of Directors shall appoint at least four Directors
during the Specified Period and thereafter not less than three Directors,
each of whom shall not be an officer or employee of the Company, to act as
its Audit Committee.
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(ii) The Audit Committee shall recommend to the Board of Directors
periodically a firm of certified public accountants to serve as auditors
for the Company, which accountants shall be subject to appointment by the
Board of Directors and ratification thereof by Shareholders entitled to
vote thereon. The Audit Committee shall determine the manner, if at all, in
which the accounts relating to the Company's affairs shall be audited and
shall meet with the Company's auditors to discuss the scope of their
examination, with particular emphasis on areas where either the Audit
Committee or the auditors believe special attention should be directed.
After the audit, the Audit Committee shall review the financial statements
and the auditors report thereon to determine whether they had received all
information and explanations requested. The Audit Committee shall also
invite the auditors' recommendations regarding internal controls and such
other matters as it deems appropriate and shall see that the
recommendations for changes which the Audit Committee feels are necessary
have been implemented. In addition, the Audit Committee is authorized to
have the auditors perform such supplemental review or audits as it deems
necessary or appropriate. The Audit Committee shall meet with the auditors
at least once a year, as soon after the completion of the audit of the
Company's books as practicable.
(iii) The Audit Committee shall be responsible for reviewing
relationships between the Company and other parties, including employment
and consulting relationships, for conflicts of interest. The Audit
Committee shall review Company policy and practices to ensure that the
Company acts in an ethical manner and to ensure compliance with all
applicable laws regarding business conduct.
(b) COMPENSATION COMMITTEE.
(i) The Board of Directors shall appoint at least four Directors
during the Specified Period and thereafter not less than three Directors,
each of whom shall not be an officer or employee of the Company, to act as
its Compensation Committee.
(ii) The Compensation Committee shall from time to time fix the
salaries of the executive officers of the Company and grant such bonuses
and awards pursuant to the Company's compensation plans, or otherwise, to
Directors and officers and employees of the Company as it deems
appropriate. The Compensation Committee shall establish, or recommend the
establishment of, compensation plans for Directors and officers and
employees of the Company as it deems appropriate. The Compensation
Committee shall also oversee the Company's employee benefit programs. No
member of the Compensation Committee shall in any way take part in the
determination of any compensation or awards paid or granted to him.
(c) EXECUTIVE COMMITTEE
(i) The Board of Directors shall appoint at least four Directors
during the Specified Period and thereafter not less than three Directors to
act as its Executive Committee.
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(ii) The Executive Committee shall have and may exercise such power
and authority of the Board of Directors in the management of the business
and affairs of the Company (including, without limitation, reviewing, and
making recommendations to the Board of Directors concerning, the general
financial policies and direction of the Company), as the Board of Directors
shall specify by a majority vote of the Board of Directors.
(d) NOMINATING AND GOVERNANCE COMMITTEE
(i) The Board of Directors shall appoint at least four Directors
during the Specified Period and thereafter not less than three Directors,
each of whom shall not be an officer or employee of the Company, to act as
its Nominating and Governance Committee.
(ii) The Nominating and Governance Committee shall from time to time,
subject to Article XXXV, (w) recommend to the Board of Directors such
matters pertaining to governance of the Company as it shall from time to
time consider appropriate, (x) recommend to the Board of Directors, prior
to the annual general meeting, each director nominee to be voted on at such
annual general meeting to the Board of Directors, (y) recommend to the
Board of Directors any candidate to fill any directorships or memberships
of committees that become vacant, and (z) recommend to the Board of
Directors the directors to be appointed to each standing committee,
including the Audit, Compensation, Executive and Nominating and Governance
Committees.
19.3 Each member of any such committee shall hold office until such
member's successor is elected and has qualified, unless such member sooner dies,
resigns or is removed.
XX. PROCEEDINGS OF DIRECTORS
20.1 Except as otherwise provided by the Articles, the Board of Directors
shall meet together for the dispatch of business, convening, adjourning and
otherwise regulating its meetings as it thinks fit. Subject to Section 24.1,
questions arising at any meeting shall be decided by a majority of the Directors
present at a meeting at which there is a quorum.
20.2 Regularly scheduled meetings of the Board of Directors may be held at
such time and at such place as shall from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may, or upon the
written request of any two Directors shall, be called by the Chairman of the
Board on at least forty-eight hours' notice to each Director, either personally
or by facsimile, telex or cable. Unless otherwise required by these Articles,
neither the business to be transacted at, nor the purpose of, any special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting in respect of such Director. Attendance of a Director at
any meeting shall constitute a waiver of notice of such meeting, except when a
Director attends for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
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20.3 The Chairman of the Board shall preside as Chairman at every meeting
of the Board of Directors. In the event that the Chairman of the Board is unable
to attend a meeting of the Board of Directors, any Director designated by the
Board of Directors shall preside over such meeting.
20.4 The quorum necessary for the transaction of the business of the Board
of Directors shall be a majority of the Board then in office.
20.5 All acts done by any meeting of the Board of Directors or of a
committee of the Board of Directors shall, notwithstanding that it afterwards be
discovered that there was some defect in the appointment of any Director, or
that they or any of them were disqualified, be as valid as if every such person
had been duly appointed and qualified to be a Director.
20.6 Members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
20.7 A resolution in writing (in one or more counterparts) signed by all
the Directors for the time being or all the members of a committee of Directors
shall be as valid and effectual as if it had been passed at a meeting of the
Board of Directors or committee as the case may be duly convened and held.
XXI. VACATION OF OFFICE OF DIRECTOR
21.1 The office of a Director shall be vacated:
(a) If he gives notice in writing to the Company that he resigns the
office of Director;
(b) If he dies;
(c) If he is found to be or becomes of unsound mind;
(d) If he is removed pursuant to Section 17.1(e); or
(e) If he is deemed to resign pursuant to Section 35.2(b).
XXII. CERTAIN BUSINESS COMBINATIONS
22.1 In addition to any approval by Shareholders and Directors required by
the Statute or any other law of the Cayman Islands, the approval by Ordinary
Resolution, at a meeting called, for such purpose, shall be required in order
for the Board of Directors to approve any of the following matters:
(i) to merge, consolidate or amalgamate with another company;
20
(ii) to reorganize or reconstruct itself pursuant to a plan sanctioned
by the Cayman Islands courts; or
(iii) to sell, lease or exchange all or substantially all of the
assets of the Company;
provided that the foregoing approval by Shareholders shall not be required for
any such transaction of the Company with any entity which the Company, directly
or indirectly, controls, as defined in Rule 405 under the Securities Act of
1933, as amended from time to time, of the United States of America, unless the
Company is not the surviving entity in such transaction or the Company transfers
all or substantially all of its assets in such transaction and provided further
that the foregoing shall be without prejudice to the requirement for such
statutory majorities and approvals as may be necessary.
XXIII. SEAL
23.1 The Company may have a seal, and the seal may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or otherwise. Any
Director or officer of the Company will have the authority to affix the seal to
any document requiring it. The Company may have for use in any place or places
outside the Cayman Islands, a duplicate seal or seals each of which shall be a
facsimile of the common seal of the Company and, if the Directors so determine,
with the addition on its face of the name of every place where it is to be used.
XXIV. OFFICERS
24.1 The officers of the Company shall be appointed by the Board of
Directors and shall include a Chairman of the Board, a Chief Executive Officer,
a President, a Secretary and a Treasurer and may also include one or more Vice
Chairmen, Senior and Executive Vice Presidents and Vice Presidents, Assistant
Secretaries and Assistant Treasurers. The Board of Directors may also choose
such other officers and agents as it shall deem necessary or desirable and such
persons shall hold their offices for such terms and shall exercise such powers
and perform such duties as shall be determined by the Board of Directors from
time to time. Two or more offices may be held by the same person. None of the
officers other than the Chairman of the Board need be a Director of the Company,
and none of the officers need be a Shareholder of the Company. No officer shall
be prevented from receiving compensation as an officer by reason of his also
being a Director. The officers of the Company shall hold office until their
successors are elected or appointed and qualified, or until their earlier death,
resignation, retirement, disqualification or removal. Any officer elected or
appointed by the Board of Directors may be removed at any time with or without
cause by the Board of Directors, provided, however that until the third
anniversary of the date these Articles are adopted, a vote of two-thirds of the
whole Board of Directors shall be required (i) to remove the Chairman of the
Board, the Chief Executive Officer or the President, and (ii) to authorize any
modification, amendment or termination of (A) the employment agreement dated
August 31, 2001 between the Company and Xxxxxx X. Xxxx or (B) the employment
agreement dated August 31, 2001 between the Company and X. Xxxxxxx Xxxxxx. Any
officer may resign at any time by giving written notice to the Company. Any such
resignation shall take effect at the date of the receipt of such notice or at
such other time specified therein, and unless otherwise specified therein, the
acceptance of
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such resignation shall not be necessary to make it effective. Election or
appointment of an officer shall not of itself create contract rights.
24.2 Any provision of the Statute or the Articles requiring or authorizing
a thing to be done by a Director and an officer shall not be satisfied by its
being done by the one person acting in the dual capacity of Director and
officer.
XXV. DIVIDENDS AND RESERVES
25.1 Subject to the Statute, the Board of Directors may from time to time
declare dividends on shares of the Company outstanding and authorize payment of
the same out of the profits of the Company (realized or unrealized), share
premium account, or any other account permitted by the Statute, and may from
time to time pay to the Shareholders such interim dividends, as appears to the
Board of Directors to be appropriate.
25.2 The Board of Directors may declare that any dividend be paid wholly or
partly by the distribution of shares or other securities of the Company and/or
specific assets and in particular of paid up shares, debentures, or debenture
stock of any other company or in any one or more of such ways and where any
difficulty arises in regard to such distribution, the Board of Directors may
settle the same as it deems expedient and in particular may issue fractional
shares and fix the value for distribution of such specific assets or any part
thereof and may determine that cash payments shall be made to any Shareholders
upon the basis of the value so fixed in order to adjust the rights of all
Shareholders and may vest any such specific assets in trustees as may seem
expedient to the Board of Directors.
25.3 No dividend shall bear interest against the company unless expressly
authorized by the Board of Directors.
XXVI. CAPITALIZATION
26.1 The Company may upon the recommendation of the Board of Directors
capitalize any sum standing to the credit of any of the Company's reserve
accounts (including share premium account and capital redemption reserve fund)
or any sum standing to the credit of profit and loss account or otherwise
available for distribution and to appropriate such sum to Shareholders in the
proportions in which such sum would have been divisible amongst them had the
same been a distribution of profits by way of dividend and to apply such sum on
their behalf in paying up in full unissued shares (not being redeemable shares)
for allotment and distribution credited as fully paid up to and amongst then in
the proportion aforesaid. In such event the Board of Directors shall do all acts
and things required to give effect to such capitalization, with full power to
the Board of Directors to make such provisions as it thinks fit for the case of
shares becoming distributable in fractions (including provisions whereby the
benefit of fractional entitlements accrue to the Company rather than to the
Shareholders concerned).
XXVII. INDEMNITY AND LIMITATION OF LIABILITY
27.1 (a) The Company shall indemnify, except in respect of wilful default
or fraud, to the full extent now or hereafter permitted by law, any person
(including his heirs, executors and administrators) who was or is a party or is
threatened to be made a party to any
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threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (including, without limitation, an
action by or in the right of the Company), by reason of his acting as, or having
in the past acted as, a Director, officer, employee or agent of, or his acting
in any other capacity for or on behalf of, the Company (including his serving
for, on behalf of or at the request of the Company as a director, officer
employee or agent of another company, partnership, joint venture, trust or other
enterprise, or in a fiduciary or other capacity with respect to any employee
benefit plan maintained by the company) against any expense (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person (or his heirs, executors and administrators)
in respect thereof. The Company shall advance the expenses of defending any such
action, suit or proceeding (including appeals) in accordance with and to the
full extent now or hereafter permitted by law.
(b) The Board of Directors may, notwithstanding any interest of the
Directors in such action, authorize the Company to purchase and maintain
insurance on behalf of any person described in Section 27.1(a), against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the provisions of this
Article XXVII.
(c) The provisions of this Article XXVII shall be applicable to all
actions, claims, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before or after
its adoption. The provisions of this Article XXVII shall be deemed to be a
contract between the Company and each Director, officer, employee or agent who
serves in such capacity at any time while this Article XXVII and the relevant
provisions of the law, if any, are in effect, and any repeal or modification
thereof shall not affect any rights or obligations then existing with respect to
any state of facts or any action, suit or proceeding then or theretofore
existing, or any action, suit or proceeding thereafter brought or threatened
based in whole or in part on any such state of facts.
If any provision of this Article XXVII shall be found to be invalid or limited
in application by reason of any law or regulation, it shall not affect any other
application of such provision or the validity of the remaining provisions
hereof. The rights of indemnification and advancement of expenses provided in
this Article XXVII shall neither be exclusive of, nor be deemed in limitation
of, any rights to which any such officer, Director, employee or agent may
otherwise be entitled or permitted by contract, vote of Shareholders or
Directors or otherwise, or as a matter of law, both as to actions in his
official capacity and actions in any other capacity while holding such office,
it being the policy of the Company that indemnification of the specified
individuals, except in respect of wilful default or fraud, shall be made to the
fullest extent permitted by law.
XXVIII. BOOKS AND RECORDS
28.1 In addition to any rights which may be conferred on Shareholders by
Statute, upon written demand under oath stating the purpose thereof, any
Shareholder may review for any proper purpose, during usual hours for business,
the books and records of the Company, including without limitation, the
Register. A proper purpose shall mean a purpose reasonably related to such
person's interest as a Shareholder.
23
XXIX. WINDING UP
29.1 In the event of any liquidation or winding up of the Company, whether
voluntary or involuntary, after there shall have been paid or set aside for
payment to the holders of any outstanding shares ranking senior to the Ordinary
Shares as to distribution on liquidation, distribution or winding up, the full
amounts to which they shall be entitled, the holders of the then outstanding
Ordinary Shares shall be entitled to receive, pro rata according to the number
of Ordinary Shares registered in the names of such Shareholders, any remaining
assets of the Company available for distribution to its Shareholders; provided,
if, at such time, the holder of Ordinary Shares has any outstanding debts,
liabilities or engagements to or with the Company (whether presently payable or
not), either alone or jointly with any other person, whether a Shareholder or
not (including, without limitation, any liability associated with the unpaid
purchase price of such Ordinary Shares), the liquidator appointed may deduct
from the amount payable in respect of such Ordinary Shares the aggregate amount
of such debts, liabilities and engagements and apply such amount to any of such
holder's debts, liabilities or engagements to or with the Company (whether
presently payable or not). The liquidator may distribute, in kind, to the
holders of the Ordinary Shares the remaining assets of the Company or may sell,
transfer or otherwise dispose of all or any part of such remaining assets to any
other person, corporation, trust or entity and receive payment therefor in cash,
shares or obligations of such other person, corporation, trust or entity or any
combination thereof, and may sell all or any part of the consideration so
received, and may distribute the consideration received or any balance or
proceeds thereof to holders of the Ordinary Shares. The liquidator may, with the
like authority, vest the whole or any part of such assets in trustees upon such
trusts for the benefit of the holders of the Ordinary Shares as the liquidator,
with the like authority shall think fit, but so that no Shareholder shall be
compelled to accept any shares or other securities whereon there is any
liability.
XXX. DEREGISTRATION
30.1 (a) Subject to Section 18.8(a), the Company may by Special Resolution
resolve to be registered by way of continuation in a jurisdiction outside the
Cayman Islands or such other jurisdiction in which it is for the time being
incorporated, registered or existing; and
(b) In furtherance of a resolution adopted pursuant to (a) above of this
Section 30.1 and subject as aforesaid, the Directors may cause an application to
be made to the Registrar of Companies to deregister the Company in the Cayman
Islands or such other jurisdiction in which it is for the time being
incorporated, registered or existing and may cause all such further steps as
they consider appropriate to be taken to effect the transfer by way of
continuation of the Company.
XXXI. FISCAL YEAR
31.1 Each Fiscal Year shall commence on such date as may be specified by
the Board of Directors.
24
XXXII. NOTICES
32.1 Notices shall be in writing and may be given by the Company to any
Shareholder either personally or by sending it by post, air courier, cable,
facsimile transmission or telex to him or to his address as shown in the
Register, such notice, if mailed, to be forwarded by airmail where practicable.
Any such notice shall be deemed to have been effected on the date the letter
containing the same is posted as aforesaid, or sent by air courier, cable,
facsimile transmission or telex.
32.2 A notice shall be given by the Company to the joint holders of record
of a share by giving the notice to all joint holders named on the Register in
respect of the share.
32.3 A notice may be given by the Company to the person or persons which
the Company has been advised are entitled to a share or shares in consequence of
the death or bankruptcy of a Shareholder by sending it through the post as
aforesaid in a prepaid letter addressed to them by name, or by the title of
representatives of the deceased, or trustee of the bankruptcy, or by any like
description at the address supplied for that purpose by the persons claiming to
be so entitled, or at the option of the Company by giving the notice in any
manner in which the same might have been given if the death or bankruptcy had
not occurred.
32.4 Notice of every general meeting shall be given in any manner
hereinbefore authorized to:
(a) every holder of voting shares as shown in the Register as of the
record date for such meeting;
(b) every person upon whom the ownership of a voting share devolves by
reason of his being a legal personal representative or a trustee in
bankruptcy of a holder of voting shares of record where such holder but for
his death or bankruptcy would be entitled to receive notice of the meeting;
and
except as otherwise required by law or the Articles, no other person shall be
entitled to receive notice of general meetings.
XXXIII. CORPORATE OPPORTUNITIES
33.1 In anticipation that the Company and the members of the KPC Affiliated
Group (as defined below) may engage in the same or similar activities or lines
of business and have an interest in the same areas of corporate opportunities,
and in recognition of the benefits to be derived by the Company through its
continued contractual, corporate and business relations with the members of the
KPC Affiliated Group (including service of officers and directors of the members
of the KPC Affiliated Group as Directors of the Company), the provisions of this
Article XXXIII are set forth to regulate and define the conduct of certain
affairs of the Company as they may involve the members of the KPC Affiliated
Group and their officers and directors, and the powers, rights, duties and
liabilities of the Company and its officers, Directors and Shareholders in
connection therewith.
25
33.2 The members of the KPC Affiliated Group shall have the right to, and
shall have no duty not to, (i) engage in the same or similar business activities
or lines of business as the Company, (ii) do business with any client or
customer of the Company and (iii) employ or otherwise engage any officer or
employee of the Company, and no member of the KPC Affiliated Group nor any
officer or director thereof (except as provided in Section 33.3) shall be liable
to the Company or its Shareholders by reason of any such activities of the KPC
Affiliated Group or of such person's participation therein. In the event that a
member of the KPC Affiliated Group acquires knowledge of a potential transaction
or matter which may be a corporate opportunity for both such member of the KPC
Affiliated Group and the Company, such member of the KPC Affiliated Group shall
be under no obligation to communicate or present such corporate opportunity to
the Company and shall not be liable to the Company or its Shareholders by reason
of the fact that such member of the KPC Affiliated Group pursues or acquires
such corporate opportunity for itself, directs such corporate opportunity to
another person or entity, or does not present such corporate opportunity to the
Company.
33.3 In the event that a Director or officer of the Company who is also a
director or officer of a member of the KPC Affiliated Group acquires knowledge
of a potential transaction or matter which may be a corporate opportunity for
both the Company and any member of the KPC Affiliated Group, such Director or
officer of the Company shall not be liable to the Company or its Shareholders by
reason of the fact that such member of the KPC Affiliated Group pursues or
acquires such corporate opportunity for itself or directs such corporate
opportunity to another person or does not present such corporate opportunity to
the Company, except for willful default or fraud of such Director or officer, if
such Director or officer acts in a manner consistent with the following policy:
(a) a corporate opportunity offered to any person who is an officer of
the Company and who is also a director but not an officer of a member of
the KPC Affiliated Group shall first be offered to the Company, unless such
opportunity is expressly offered to such person solely in his capacity as a
director of such member of the KPC Affiliated Group in which case such
opportunity shall first be offered to such member of the KPC Affiliated
Group;
(b) a corporate opportunity offered to any person who is a Director
but not an officer of the Company and who is also a director or officer of
a member of the KPC Affiliated Group shall first be offered to the Company
only if such opportunity is expressly offered to such person solely in his
capacity as a Director of the Company, and otherwise shall first be offered
to such member of the KPC Affiliated Group; and
(c) a corporate opportunity offered to any person who is an officer of
both the Company and a member of the KPC Affiliated Group shall first be
offered to such member of the KPC Affiliated Group unless (x) such person
is an employee of the Company or (y) such opportunity is expressly offered
to such person solely in his capacity as an officer of the Company, in
either of which case such opportunity shall first be offered to the
Company.
33.4 For the purposes of this Article XXXIII, "corporate opportunities"
shall include, but not be limited to, business opportunities which the Company
is financially able to
26
undertake, which are, from their nature, in the line of the Company's business,
are of practical advantage to it and are ones in which the Company has an
interest or a reasonable expectancy, and in which, by embracing the
opportunities, the self-interest of a member of the KPC Affiliated Group or its
officers or directors, will be brought into conflict with that of the Company.
33.5 Any person or entity purchasing or otherwise acquiring any interest in
shares shall be deemed to have notice of and consented to the provisions of this
Article XXXIII.
33.6 For purposes of this Article XXXIII, and, to the extent set forth
therein, Article XXXIV and Article XXXV and, in relation to the definition of
"KPC Affiliated Group" only, Article I:
(a) the members of the "KPC Affiliated Group" shall mean,
collectively, Kuwait Petroleum Corporation, a company organized under the
laws of Kuwait ("KPC"), SFIC Holdings (Cayman), Inc., a Cayman Islands
company ("SFIC Holdings"), and all corporations, partnerships, joint
ventures, limited liability companies, trust, associations, governments or
government agencies or instrumentalities which would be considered
"affiliates" of KPC or SFIC Holdings within the meaning of Regulation S-K
or Regulation S-X under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), including without limitation any entity in which KPC or
SFIC Holdings owns (directly or indirectly) fifty percent (50%) or more of
the outstanding voting shares or stock, voting power, partnership interests
or similar ownership interests, and all successors to KPC, SFIC Holdings
and their affiliates by way of merger, consolidation or sale of all or
substantially all of its assets, but shall not include the Company (as
defined in clause (b) below); and
(b) the "Company" shall mean the Company and all corporations,
partnerships, joint ventures, limited liability companies, trusts,
associations and other entities in which the Company owns (directly or
indirectly) more than fifty percent (50%) of the outstanding voting shares
or stock, voting power, partnership interests or similar ownership
interests.
33.7 If any contract, agreement, arrangement or transaction between the
company and a member of the KPC Affiliated Group involves a corporate
opportunity and is approved in accordance with the procedures set forth in
Article XXXIV, the officers and directors of such member of the KPC Affiliated
Group shall, for purposes of these Articles, not be liable to the Company or its
Shareholders, except for wilful default or fraud on the part of the relevant
officer or director.
33.8 The provisions of this Section 33, including, without limitation, the
provisions of this Section 33.8, may only be altered or amended by a Special
Resolution passed at a meeting of the Company at which a Special Quorum of
Shareholders is present.
XXXIV. TRANSACTIONS WITH RELATED ENTITIES
34.1 In anticipation that (i) the Company and the members of the KPC
Affiliated Group may enter into contracts or otherwise transact business with
each other and that
27
the Company and the members of the KPC Affiliated Group may derive benefits
therefrom and (ii) the Company may from time to time enter into contractual,
corporate or business relations with one or more of its Directors, or one or
more corporations, partnerships, associations or other organizations in which
one or more of its Directors have a financial interest (collectively, "Related
Entities"), the provisions of this Article XXXIV are set forth to regulate and
define certain contractual relations and other business relations of the Company
as they may involve the members of the KPC Affiliated Group, Related Entities
and their respective officers and directors, and the powers, rights, duties and
liabilities of the Company and its officers, Directors and Shareholders in
connection therewith. The provisions of this Article XXXIV are in addition to,
and not in limitation of, the provisions of the Statute and the other provisions
of the Articles. Any contract or business relation which does not comply with
the procedures set forth in this Article XXXIV shall not by reason thereof be
deemed void or voidable or be deemed to result in any breach of any fiduciary
duty or duty of loyalty or failure to act in good faith or in the interests of
the Company or to be the derivation of any improper personal benefit, but shall
be governed by the provisions of the Articles, the Memorandum, the Statute and
other applicable law.
34.2 No contract, agreement, arrangement or transaction between the Company
and a member of the KPC Affiliated Group or between the Company and one or more
of the Directors or officers of the Company, a member of the KPC Affiliated
Group or any Related Entity or between the Company and any Related Entity shall
be void or voidable solely for the reason that a member of the KPC Affiliated
Group, any Related Entity or any one or more of the officers or Directors of the
Company, a member of the KPC Affiliated Group or any Related Entity are parties
thereto, or solely because any such Directors or officers are present at or
participate in the meeting of the Board of Directors or committee thereof which
authorizes the contract, agreement, arrangement or transaction, or solely
because his or their votes are counted for such purpose, and such member of the
KPC Affiliated Group, any Related Entity and such Directors and officers shall
not be liable to the Company or its Shareholders by reason of the entering into,
performance or consummation of any such contract, agreement, arrangement or
transaction, except in the case of wilful default or fraud on the part of such
directors or officers, if:
(a) the material facts as to the contract, agreement, arrangement or
transaction are disclosed or are known to the Board of Directors or the
committee thereof that authorizes the contract, agreement, arrangement or
transaction, and the Board of Directors or such committee in good faith
authorizes the contract, agreement, arrangement or transaction by the
affirmative vote of a majority of the disinterested Directors, even though
the disinterested Directors be less than a quorum; or
(b) the material facts as to the contract, agreement, arrangement or
transaction are disclosed or are known to the holders of the Ordinary
Shares entitled to vote thereon, and the contract, agreement, arrangement
or transaction is specifically approved by vote of the holders of a
majority of the voting power of the Ordinary Shares then outstanding not
owned by the members of the KPC Affiliated Group or a Related Entity, as
the case may be.
28
34.3 Directors of the Company who are also directors or officers of a
member of the KPC Affiliated Group or any Related Entity may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract, agreement, arrangement or
transaction. Ordinary Shares owned by the members of the KPC Affiliated Group
and any Related Entities may be counted in determining the presence of a quorum
at a meeting of Shareholders which authorizes the contract, agreement,
arrangement or transaction.
34.4 Any person or entity purchasing or otherwise acquiring any interest in
any shares will be deemed to have notice of and to have consented to the
provisions of this Article XXXIV.
34.5 For purposes of this Article XXXIV, the members of the KPC Affiliated
Group and the Company shall have the meanings set forth in Article XXXIII.
34.6 For purposes of this Article XXXIV, any contract, agreement,
arrangement or transaction with any corporation, partnership, joint venture,
limited liability company, trust, association or other entity which would be
considered a "subsidiary" of the Company within the meaning of Regulation S-K or
Regulation S-X under the Securities Act, shall be deemed to be a contract,
agreement, arrangement or transaction with the Company.
34.7 The provisions of Section 34, including, without limitation, the
provisions of this Section 34.7, may only be altered or amended by a Special
Resolution passed at a meeting of the Company at which a Special Quorum of
Shareholders is present.
XXXV. KPC PROVISIONS
35.1 (a) For so long as members of the KPC Affiliated Group own, in the
aggregate, at least four percent (4%), (i) of the voting power of Outstanding
Voting Stock, or (ii) of all the outstanding Ordinary Shares, the Nominating and
Governance Committee and the Board of Directors shall, subject to Section 35.3,
the next succeeding sentence of this Section 35.1(a) and the Statute, cause any
slate of Directors presented to the Shareholders for election to the Board of
Directors to consist of such nominees that, if elected, would result in a Board
of Directors that includes individuals designated by SFIC Holdings (the "KPC
Designees") such that, after giving effect to the election of such KPC Designees
to the Board of Directors, the number of KPC Designees then serving as Directors
shall equal the product (rounded up to the nearest whole number) of (i) the
total number of Directors constituting the whole Board of Directors, multiplied
by (ii) the KPC Ownership Percentage on the date such slate of Directors is
presented to the Shareholders. As used herein, the "KPC Ownership Percentage"
means, (i) as of any date on and after the date any member of the KPC Affiliated
Group has sold or otherwise disposed of any Outstanding Voting Stock (the
"Disposition Date"), the percentage of the voting power of all Outstanding
Voting Stock represented by shares of Outstanding Voting Stock which are owned
by members of the KPC Affiliated Group on such date, which shares were also
owned on the date of the Merger Agreement by members of the KPC Affiliated
Group, and (ii) as of any date prior to the Disposition Date, the percentage of
the voting power of all Outstanding Voting Stock immediately following the
Effective Time represented by shares of Outstanding Voting Stock which are owned
by members of the KPC Affiliated Group on such date, which shares were also
29
owned immediately following the Effective Time by members of the KPC Affiliated
Group. Notwithstanding anything to the contrary in the foregoing, it is
understood and agreed that as long as SFIC Holdings has the right to designate a
director pursuant to the first sentence of this Section 35.1(a), the number of
KPC Designees entitled to be nominated for election to the Board of Directors
pursuant to the first sentence of this Section 35.1(a) shall be not less than
(i) three until such time as the KPC Ownership Percentage is reduced to less
than 12.5% and equal to or greater than 7.5%, at which time the number of KPC
Designees entitled to be so nominated shall be reduced from three to two, (ii)
two until such time as the KPC Ownership Percentage is reduced to less than 7.5%
and equal to or greater than 4%, at which time the number of KPC Designees
entitled to be so nominated shall be reduced from two to one, and (iii) one
until such time as the KPC Ownership Percentage is reduced to less than 4%, at
which time no KPC Designees shall be entitled to be so nominated.
(b) As long as SFIC Holdings has the right, pursuant to Section 35.1, to
designate more than one Director, to the extent possible, each KPC Designee
shall be elected or designated to different classes.
35.2 (a) As long as SFIC Holdings has the right to designate a Director
pursuant to the first sentence of Section 35.1(a), subject to Section 35.1,
Section 35.2(b) and Section 35.3, if a KPC Designee ceases to serve as a
Director for any reason, the Nominating and Governance Committee and the Board
of Directors shall exercise all authority under applicable law to cause the
vacancy created by such Director ceasing to serve to be filled by the
affirmative vote of a majority of the remaining Directors then in office,
through the appointment of another KPC Designee.
(b) In the event that, on the date of any election of Directors by the
Shareholders, (A)(i) the KPC Ownership Percentage is less than 12.5% and equal
to or greater than 7.5%, and (ii) the aggregate number of KPC Designees on the
Board on such date (immediately prior to such election) exceeds two, then the
number of KPC Designees on the Board exceeding two shall be deemed to have
resigned from the Board of Directors on such date (immediately prior to such
election) such that the remaining number of KPC Designees is two and (B)(i) the
KPC Ownership Percentage is less than 7.5%, and (ii) the aggregate number of KPC
Designees on the Board on such date (immediately prior to such election) exceeds
one, then the number of KPC Designees on the Board exceeding one shall be deemed
to have resigned from the Board of Directors on such date (immediately prior to
such election) such that the remaining number of KPC Designee(s) is one. Unless
otherwise decided among the KPC Designees and SFIC Holdings, the KPC Designee(s)
who shall resign pursuant to this Section 35.2(b) shall be the KPC Designees
selected by the Nominating and Governance Committee.
35.3 Each KPC Designee shall be reasonably acceptable to the Company.
35.4 For the purposes of this Article XXXV, the members of the KPC
Affiliated Group shall have the meaning set forth in Article XXXIII.
35.5 The provisions of Section 35, including, without limitation, the
provisions of this Section 35.5, may only be altered or amended by a Special
Resolution passed at a meeting of the Company at which a Special Quorum of
Shareholders is present.
30
XXXVI. AMENDMENTS OF ARTICLES
36.1 Subject to the Statute and except as otherwise provided in the
Articles, the Company may at any time and from time to time by Special
Resolution alter or amend the Articles in whole or in part.
31
THE COMPANIES LAW
COMPANY LIMITED BY SHARES (2001 SECOND REVISION)
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
GLOBALSANTAFECORPORATION
(Adopted by Special Resolution of
the members effective ______________, 2001)
1. The name of the company is GLOBALSANTAFE Corporation (the "Company").
2. The Registered Office of the Company shall be situated at the offices
of Xxxxxx and Xxxxxx, P.O. Box 309, Xxxxxx House, South Church Street, Grand
Cayman, Cayman Islands, or at such other place as the Board of Directors may
from time to time determine.
3. The objects for which the Company is established are unrestricted and
the Company shall have full power and authority to carry out any object not
prohibited by any law as provided by Section 6(4) of the Companies Law (2001
Second Revision).
4. Except as prohibited or limited by the Companies Law (2001 Second
Revision), in carrying out its objects the Company shall have all the powers of
a natural person in doing in any part of the world whether as principal, agent,
contractor, or otherwise whatever may be considered by it necessary or desirable
for the attainment of its objects and whatever else may be considered by it as
incidental or conducive thereto or consequential thereof, including, but without
in any way restricting the generality of the foregoing, the power to make any
alterations or amendments to this Amended and Restated Memorandum of Association
and the Amended and Restated Articles of Association of the Company considered
necessary or
convenient in the manner set out in the Amended and Restated Articles of
Association of the Company all irrespective of any question of corporate
benefit, and the power to do any of the following acts or things, viz: to pay
all expenses of and incidental to the promotion, formation and incorporation of
the Company; to sell, lease or dispose of any property of the Company; to draw,
make, accept, endorse, discount, execute and issue promissory notes, debentures,
bills of exchange, bills of lading, warrants and other negotiable or
transferable instruments; to lend money or other assets and to act as
guarantors; to borrow or raise money on the security of the undertaking or on
all or any of the assets of the Company, including uncalled capital or without
security; to invest monies of the Company; to sell the undertaking of the
Company for cash or any other consideration; to distribute assets in specie to
members of the Company; to carry on any trade or business and generally to do
all acts and things which may be conveniently or profitably or usefully acquired
and dealt with, carried on, executed or done by the Company.
5. The liability of each member is limited to the amount from time to time
unpaid on such member's shares.
6. The authorized share capital of the Company is US$6,000,000, divided
into 600,000,000 Ordinary Shares, par value of US $.01 per share, all of such
shares with power for the Company, insofar as is permitted by law and subject to
the provisions of the Companies Law (2001 Second Revision) and the Amended and
Restated Articles of Association of the Company, to redeem, call or purchase any
of its shares, to increase or reduce the said capital and to issue any part of
its capital, whether original, redeemed, called or increased with or without any
preference, priority or special privilege or subject to any postponement of
rights or to any conditions or restrictions and so that unless the conditions of
issue shall otherwise expressly
2
declare every issue of shares whether declared to be ordinary, preference or
otherwise shall be subject to the powers hereinabove contained.
EXHIBIT 3.2
-----------
OTHER OFFICERS
Executive Vice President and Chief Mr. Xxx Xxxxxxxx
Operating Officer
Executive Vice President - Xx. Xxxxx XxXxxxx
Finance and Administration
Senior Vice President, Xx. Xxxxx X. XxXxxxxxx
General Counsel and Secretary
Senior Vice President and Mr. W. Xxxx Xxxxx
Chief Financial Officer
Vice President, Human Xx. Xxx X. Xxxx
Resources
Vice President, Investor Xx. Xxxxxxx X. Xxxxxxx
Relations
EXHIBIT 7.11
------------
RULE 145 AFFILIATE AGREEMENT
__________, 2001
Santa Fe International Corporation
Two Lincoln Centre, Suite 1100
0000 XXX Xxxxxxx
Xxxxxx, XX 00000-0000
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may be deemed
to be an "affiliate" of Global Marine Inc., a Delaware corporation ("Global"),
as the term "affiliate" is defined for purposes of paragraphs (c) and (d) of
Rule 145 of the Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"). I have been further advised that
pursuant to the terms of the Agreement and Plan of Merger dated as of August 31,
2001 (the "Merger Agreement") among Santa Fe International Corporation, a
company organized under the laws of the Cayman Islands ("Santa Fe"), Silver Sub,
Inc., a Delaware corporation and a wholly owned subsidiary of Santa Fe ("Sub"),
Gold Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Sub ("Merger Sub"), and Global, Merger Sub will be merged with and into Global
(the "Merger") and that as a result of the Merger, I may receive Santa Fe
Ordinary Shares (as defined in the Merger Agreement) in exchange for shares of
Global Common Stock (as defined in the Merger Agreement) owned by me.
I represent, warrant and covenant to Santa Fe that in the event I
receive any Santa Fe Ordinary Shares as a result of the Merger:
(a) I shall not make any sale, transfer or other disposition of such
Santa Fe Ordinary Shares in violation of the Securities Act or the Rules
and Regulations.
(b) I have carefully read this letter and discussed its requirements
and other applicable limitations upon my ability to sell, transfer or
otherwise dispose of Santa Fe Ordinary Shares to the extent I believed
necessary with my counsel or counsel for Global.
(c) I have been advised that the issuance of Santa Fe Ordinary Shares
to me pursuant to the Merger will be registered with the Commission under
the Securities Act on a Registration Statement on Form S-4. However, I
have also been advised that, since at the time the Merger will be submitted
for a vote of the stockholders of Global I may be deemed to have been an
affiliate of Global for purposes of paragraphs (c) and (d) of Rule 145 of
the Rules and Regulations, I may not sell, transfer or otherwise dispose of
Santa Fe Ordinary Shares issued to me in the Merger within one year
following the Merger, and, if I am then an affiliate of Santa Fe,
thereafter, unless (i) such sale, transfer or other disposition has been
registered under the Act, (ii) such sale, transfer or other disposition is
made in conformity with the volume and other limitations of Rule 145 of the
Rules and
Regulations, or (iii) such sale, transfer or other disposition is otherwise
exempt from registration under the Act.
(d) I understand that Santa Fe is under no obligation to register such
sale, transfer or other disposition by me or on my behalf under the
Securities Act or take any other action necessary in order to make
compliance with an exemption from such registration available.
(e) I also understand that stop transfer instructions will be given to
Santa Fe's transfer agents with respect to the Santa Fe Ordinary Shares and
that there will be placed on the certificate for the Santa Fe Ordinary
Shares issued to me in connection with the Merger, or any substitutions
therefor, a legend substantially in the form set forth below:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933 APPLIES. THE SECURITIES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN COMPLIANCE WITH THE REQUIREMENTS OF SAID RULE 145 OR
PURSUANT TO A REGISTRATION STATEMENT UNDER SAID ACT OR AN EXEMPTION
FROM SUCH REGISTRATION."
It is understood and agreed that the legend set forth in paragraph (e)
above shall be removed by delivery of substitute certificates without such
legend (i) prior to the first anniversary of the Merger if (x) I am not at
such time an affiliate of Santa Fe and (y) the undersigned shall have
delivered to Santa Fe a copy of a letter from the staff of the Commission
or an opinion of counsel, in each case reasonably satisfactory to Santa Fe
in form and substance, to the effect that such legend is no longer required
for purposes of the Securities Act, or (ii) thereafter at the request of
the undersigned.
(f) I also understand that unless the transfer by me of my Santa Fe
Ordinary Shares has been registered under the Securities Act or is a sale
made in conformity with the provisions of Rule 145 of the Rules and
Regulations, Santa Fe reserves the right to put the following legend on the
certificates issued to my transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED FROM A PERSON WHO
RECEIVED SUCH SHARES IN A TRANSACTION TO WHICH RULE 145 PROMULGATED
UNDER THE SECURITIES ACT OF 1933 APPLIES. THE SHARES HAVE BEEN
ACQUIRED BY THE HOLDER NOT WITH A VIEW TO, OR FOR RESALE IN CONNECTION
WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING OF THE SECURITIES
ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT IN
2
ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OF 1933."
It is understood and agreed that the legend set forth in paragraph (f)
above shall be removed by delivery of substitute certificates without such
legend if such legend is not required for purposes of the Securities Act.
Execution of this letter should not be construed as an admission,
stipulation or acknowledgment by me that I am an "affiliate" of Santa Fe as
described in the first paragraph hereof or considered as a waiver of any rights
that I may have to object to any claim that I am such an affiliate on or after
the date of this letter.
Very truly yours,
---------------------------------
Name:
ACCEPTED AND AGREED THIS
---- DAY OF ----------, 2001.
SANTA FE INTERNATIONAL CORPORATION
By: ------------------------------
Name: ------------------------------
Title: ------------------------------
3
