AMENDMENT TO RIGHTS AGREEMENT
Exhibit 4.5
AMENDMENT TO RIGHTS AGREEMENT
THIS AMENDMENT TO RIGHTS AGREEMENT (this “Amendment”), dated as of February 1, 2008, is
entered into by and between Hercules Offshore, Inc., a Delaware corporation (the “Company”), and
American Stock Transfer & Trust Company, as rights agent (the “Rights Agent”), pursuant to Section
27 of the Rights Agreement, dated as of October 31, 2005 (the “Rights Agreement”), between the
Company and the Rights Agent.
WHEREAS, Section 27 of the Rights Agreement provides that, at any time when the Rights (as
defined in the Rights Agreement) are redeemable, the Company may in its sole and absolute
discretion, and the Rights Agent shall, if the Company so directs, supplement or amend any
provision of the Rights Agreement in any respect without the approval of any holders of Rights or
holders of Common Stock (as defined in the Rights Agreement); and
WHEREAS, the Rights are currently redeemable, and the Board of Directors of the Company has
determined that it is in the best interests of the Company to amend the Rights Agreement to provide
for uncertificated shares of Common Stock as set forth herein; and
WHEREAS, in accordance with Section 27 of the Rights Agreement, the Company hereby certifies
that this Amendment is in compliance with the terms of Section 27 of the Rights Agreement and
hereby directs the Rights Agent to execute this Amendment;
NOW, THEREFORE, in consideration of the premises and mutual agreements set forth herein and in
the Rights Agreement, the parties hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not defined herein shall have the meaning
assigned to such terms in the Rights Agreement.
Section 2. Amendments to Rights Agreement. Sections 3(a) and 3(c) of the Rights Agreement
are hereby amended to read in their entirety as follows, respectively:
(a) Until the Distribution Date, (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for Common Stock
registered in the names of the holders of the Common Stock or, for Common Stock held in
book-entry accounts through the direct registration service of the Company’s transfer agent,
by such book-entry accounts (together with a direct registration transaction advice with
respect to such shares) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company). As soon as practicable after the Distribution Date,
the Rights Agent will (i) send by first-class, insured, postage prepaid mail, to each record
holder of the Common Stock as of the close of business on the Distribution Date (other than
any Person referred to in the first sentence of Section 7(e)), at the address of such holder
shown on the records of the Company, one or more Rights Certificates, evidencing one Right
for each share of Common Stock so held, subject to adjustment as provided herein, or (ii)
credit the book-entry account of such holder with such Rights and
send a direct registration transaction advice with respect to such Rights to such
holder. In the event that an adjustment in the number of Rights per share of Common Stock
has been made pursuant to Section 11(p) hereof, at the time of distribution of the Rights
Certificates or such credits to the book-entry accounts, the Company shall make the
necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof) so
that Rights Certificates representing only whole numbers of Rights are distributed, or only
whole numbers of Rights are credited to book-entry accounts, and cash is paid in lieu of any
fractional Rights. As of and after the Distribution Date, the Rights will be evidenced
solely by such Rights Certificates or such book-entry credits and related direct
registration transaction advices. In the event the Company elects to distribute any Rights
by crediting book-entry accounts, the provisions in this Agreement that reference Rights
Certificates shall be interpreted to reflect that the Rights are credits to the book-entry
accounts, that separate Rights Certificates are not issued with respect to some or all of
the Rights, and that any legend required on a Rights Certificate may be placed on the direct
registration transaction advice with respect to certain Rights.
* * * * * *
(c) Rights have been and shall be issued in respect of all shares of Common Stock (i)
that were issued in the Conversion or (ii) that have been or are issued (whether originally
issued or delivered from the Company’s treasury) after the Effective Time but prior to the
earlier of the Distribution Date or the Expiration Date or, in certain circumstances
provided in Section 22 hereof, after the Distribution Date. Certificates issued
representing such shares of Common Stock that shall so become outstanding or shall be
transferred or exchanged after the Effective Time but prior to the earlier of the
Distribution Date or the Expiration Date shall also be deemed to be certificates for Rights,
and shall bear the following legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Hercules Offshore, Inc. (the
“Company”) and American Stock Transfer & Trust Company (the “Rights Agent”) dated as
of October 31, 2005 as it may from time to time be supplemented or amended (the
“Rights Agreement”), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal offices of the Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may be exchanged, may expire or may be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Company will mail to the
holder of this certificate a copy of the Rights Agreement, as in effect on the date
of mailing, without charge promptly after receipt of a written request therefor.
Under certain circumstances set forth in the Rights Agreement, Rights beneficially
owned by or transferred to any Person who is, was or becomes an Acquiring Person or
an Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement), and certain transferees thereof, will become null and void and will no
longer be transferable.
Each book-entry account for such shares of Common Stock that shall so become outstanding or
shall be transferred or exchanged after the Effective Time but prior to the earlier of the
Distribution Date or the Expiration Date shall also be deemed to include the associated
Rights, and the direct registration transaction advice with respect to such shares shall
bear the following legend:
Each security covered by this Advice entitles the holder thereof to certain
Rights as set forth in the Rights Agreement between Hercules Offshore, Inc. (the
“Company”) and American Stock Transfer & Trust Company (the “Rights Agent”) dated as
of October 31, 2005 as it may from time to time be supplemented or amended (the
“Rights Agreement”), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal offices of the Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may be exchanged, may expire or may be evidenced by separate certificates
or be covered by separate book-entry credits and will no longer be covered by this
Advice or be evidenced by a certificate representing a security covered by this
Advice. The Company will mail to the holder of the security covered by this Advice
a copy of the Rights Agreement, as in effect on the date of mailing, without charge
promptly after receipt of a written request therefor. Under certain circumstances
set forth in the Rights Agreement, Rights beneficially owned by or transferred to
any Person who is, was or becomes an Acquiring Person or an Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement), and certain transferees
thereof, will become null and void and will no longer be transferable.
With respect to such shares of Common Stock described in this Section 3(c), until the
earlier of the Distribution Date or the Expiration Date, the Rights associated with the
Common Stock represented by such certificates or held in such book-entry accounts shall be
evidenced by such certificates or such book-entry accounts (together with the direct
registration transaction advice with respect to such shares) alone, and registered holders
of Common Stock shall also be the registered holders of the associated Rights, and the
transfer of any shares of Common Stock, whether by transfer of physical certificates or
book-entry transfer, shall also constitute the transfer of the Rights associated with the
Common Stock.
Section 3. Miscellaneous.
(a) The term “Agreement” as used in the Rights Agreement shall be deemed to refer to the
Rights Agreement as amended hereby.
(b) This Amendment shall be effective as of the date first above written, and, except as set
forth herein, the Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
(c) This Amendment may be executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
(d) This Amendment shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be governed by and construed in accordance with the laws of
such State applicable to contracts to be made and performed entirely within such State.
(e) Except to the extent specifically amended hereby, the provisions of the Rights Agreement
shall remain unmodified, and the Rights Agreement as amended hereby is confirmed as being in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
attested, all as of the day and year first above written.
| HERCULES OFFSHORE, INC. |
||||
| By: | /s/ Xxxxx X. Xxx | |||
| Xxxxx X. Xxx | ||||
| Senior Vice President, General Counsel, Chief Compliance Officer and Secretary |
||||
| AMERICAN STOCK TRANSFER & TRUST COMPANY, as Rights Agent |
||||
| By: | /s/ Xxxxx Carappoli | |||
| Name: | Xxxxx Carappoli | |||
| Title: | Vice President | |||
