EXHIBIT 10.1
SHAREHOLDER AGREEMENT
This Shareholder Agreement dated as of August 31, 2001 is between
Global Marine Inc., a corporation organized under the laws of Delaware
("Global"), and SFIC Holdings (Cayman), Inc., a corporation incorporated
under the laws of the Cayman Islands (the "Shareholder").
WHEREAS, Santa Fe International Corporation, a company incorporated
under the laws of the Cayman Islands ("Santa Fe"), Silver Sub, Inc., a
corporation organized under the laws of Delaware and a direct wholly owned
subsidiary of Santa Fe ("Sub"), Gold Merger Sub, Inc., a corporation organized
under the laws of Delaware and a direct wholly owned subsidiary of Sub ("Merger
Sub"), and Global are entering into an Agreement and Plan of Merger dated as of
the date hereof (as amended from time to time pursuant thereto, the "Merger
Agreement");
WHEREAS, the Shareholder is the registered and beneficial owner of
43,500,000 ordinary shares, par value $0.01 per share, of Santa Fe (the "Santa
Fe Ordinary Shares");
WHEREAS, as a condition to the willingness of Global to enter into
the Merger Agreement, and as an inducement to it to do so, the Shareholder has
agreed for the benefit of Global as set forth in this Agreement; and
WHEREAS, the Board of Directors of the Shareholder has approved the
Shareholder's entering into this Agreement, the form of this Agreement and the
transactions contemplated hereby;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions from Merger Agreement. Terms defined in
the Merger Agreement and used but not defined herein having the meanings
assigned to such terms in the Merger Agreement.
Section 1.02. Shareholder Shares. The term "Shareholder Shares"
shall mean (i) the Santa Fe Ordinary Shares owned by the Shareholder on the date
hereof (as described in the recitals to this Agreement), (ii) any shares of
Santa Fe acquired by the Shareholder after the date hereof, (iii) any shares or
capital stock of any person or any securities or other property that the
Shareholder is or becomes entitled to receive by reason of being a holder of any
Shareholder Shares, and (iv) any capital stock, securities or other property
into which any Shareholder Shares shall have been or shall be converted or
changed, whether by amendment to the memorandum or articles of association of
Santa Fe, merger, consolidation, reorganization, capital change or otherwise.
ARTICLE II
COVENANTS OF THE SHAREHOLDER
Section 2.01. Agreement to Vote. At any meeting of the shareholders
of Santa Fe held prior to the earliest of (i) the Effective Time of the Merger,
(ii) the termination of the Merger Agreement and (iii) the date on which the
Board of Directors of Santa Fe (without the vote of members employed by Kuwait
Petroleum Corporation) withdraws its recommendation pursuant to Section 7.4(b)
of the Merger Agreement (such earliest time being herein referred to as the
"Voting Termination Date"), however called, and at every adjournment or
postponement thereof prior to the Voting Termination Date, or in connection with
any written consent of or any other action by the shareholders of Santa Fe given
prior to the Voting Termination Date, the Shareholder shall vote or cause to be
voted the Shareholder Shares (a) in favor of the approval of the Santa Fe
Amendments and the issuance of Santa Fe Ordinary Shares pursuant to the Merger
and each of the other transactions contemplated by the Merger Agreement, and any
actions required in furtherance hereof and thereof, and (b) against any Santa Fe
Acquisition Proposal or any transaction or proposal that is inconsistent with,
or might hinder, delay, impede or frustrate, the transactions contemplated by
the Merger Agreement. The Shareholder shall not enter into any agreement or
understanding with any person prior to the Voting Termination Date, directly or
indirectly, to vote, grant any proxy or give instructions with respect to the
voting of the Shareholder Shares in any manner inconsistent with the preceding
sentence.
Section 2.02. Proxies and Voting Agreements. The Shareholder hereby
revokes any and all previous proxies granted with respect to matters set forth
in Section 2.01. Prior to the Voting Termination Date, the Shareholder shall
not, directly or indirectly, except as contemplated hereby, grant any proxies or
powers of attorney with respect to matters set forth in Section 2.01, deposit
any of the Shareholder Shares or enter into a voting agreement with respect to
any of the Shareholder Shares.
Section 2.03. No Solicitation.
(a) From and after the date hereof until the termination of the
Merger Agreement, neither the Shareholder nor any of its subsidiaries shall, and
shall not authorize or permit any of its officers, directors, employees,
partners, agents, affiliates (other than Santa Fe) or other representatives
(including, without limitation, any investment banker, attorney or accountant
retained by it or any of its subsidiaries) (collectively, the "Shareholder
Representatives") to, and on becoming aware of it will stop such person from
continuing to, directly or indirectly, solicit, initiate or encourage (including
by way of furnishing nonpublic information), or take any action designed to
facilitate, directly or indirectly, any inquiry, proposal or offer (including,
without limitation, any proposal or offer to Santa Fe shareholders) with respect
to a Santa Fe Acquisition Proposal or cooperate with or assist, participate or
engage in any discussions or negotiations concerning a Santa Fe Acquisition
Proposal.
(b) The Shareholder shall immediately cease and cause to be
terminated any existing solicitation, initiation, encouragement, activity,
discussion or negotiation with any parties conducted heretofore by the
Shareholder or any Shareholder Representatives with respect to any Santa Fe
Acquisition Proposal.
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(c) Prior to the termination of the Merger Agreement, the
Shareholder will as promptly as possible notify Global orally of and confirm in
writing any requests to the Shareholder for information in connection with, or
the receipt of, any Santa Fe Acquisition Proposal or any inquiry with respect to
or that could lead to a Santa Fe Acquisition Proposal directed to the
Shareholder. The Shareholder will (i) keep Global fully informed of the status
and details (including any changes or proposed changes to such status or
details) on a timely basis of any such requests, Santa Fe Acquisition Proposals
or inquiries and (ii) provide to Global as soon as practicable after receipt or
delivery thereof with copies of all correspondence and other written material
sent or provided to the Shareholder from any third party in connection with any
Santa Fe Acquisition Proposal or sent or provided by the Shareholder to any
third party in connection with any Santa Fe Acquisition Proposal. Any written
notice under this Section 2.03 may be given by facsimile with receipt confirmed
or personal delivery.
(d) Prior to the termination of the Merger Agreement, the
Shareholder shall not enter into any agreement with any person that provides
for, or could reasonably be expected to materially facilitate or is designed to
facilitate, a Santa Fe Acquisition Proposal.
(e) The provisions of this Section 2.03 do not prohibit or restrict
any Shareholder Representative who is also a Santa Fe Representative from taking
actions permitted by Section 7.3 of the Merger Agreement.
Section 2.04. Transfer of Shareholder Shares by the Shareholder.
Prior to the Voting Termination Date, the Shareholder shall not (a) subject any
of the Shareholder Shares to, or suffer to exist on any of the Shareholder
Shares, any lien, pledge, security interest, charge or other encumbrance or
restriction, other than pursuant to this Agreement, or (b) sell, transfer,
assign, convey or otherwise dispose of any interest in or title to any of the
Shareholder Shares (including any such action by operation of law), other than a
disposition by operation of law pursuant to the Merger.
Section 2.05. Other Actions. Prior to the Voting Termination Date,
the Shareholder shall not take any action that would restrict, limit, impede or
interfere with the performance of its obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement.
Section 2.06. Consent under Intercompany Agreement. The Shareholder
hereby consents, (i) pursuant to Section 3.1 of the Intercompany Agreement dated
as of June 9, 1997, as amended, among Santa Fe, the Shareholder and Kuwait
Petroleum Corporation, and (ii) pursuant to Article 18.8 of the Articles of
Association of Santa Fe, to the execution and delivery by Santa Fe of the Merger
Agreement, the issuance by Santa Fe of the Santa Fe Ordinary Shares contemplated
by the Merger Agreement and the performance by Santa Fe of the other
transactions contemplated by the Merger Agreement.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE SHAREHOLDER
The Shareholder represents, warrants and covenants to Global that:
Section 3.01. Ownership. The Shareholder is as of the date hereof
the beneficial and legal owner of the Shareholder Shares identified in the
recitals to this Agreement (as evidenced by the Register of Members of Santa
Fe), the Shareholder has the sole right to vote the Shareholder Shares and there
are no restrictions on rights of disposition or other lien, pledge, security
interest, charge or other encumbrance or restriction pertaining to the
Shareholder Shares. None of the Shareholder Shares is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of the Shareholder Shares, and no proxy, power of attorney or other
authorization has been granted with respect to any of the Shareholder Shares.
Section 3.02. Authority and Non-Contravention. The Shareholder is a
company duly formed and validly existing under the laws of the Cayman Islands.
The Shareholder has the right, power and authority, and the Shareholder has been
duly authorized by all necessary action (including consultation, approval or
other action by or with any other person), to execute, deliver and perform this
Agreement and consummate the transactions contemplated hereby. Such actions by
the Shareholder (a) require no action by or in respect of, or filing with, any
Governmental Entity with respect to the Shareholder, other than any required
filings under Section 13 of the Exchange Act, and (b) do not and will not
contravene or constitute default under any provision of applicable law or
regulation or any agreement, judgment, injunction, order, decree or other
instrument binding on the Shareholder or result in the imposition of any lien,
pledge, security interest, charge or other encumbrance or restriction on any of
the Shareholder Shares (other than as provided in this Agreement with respect to
Shareholder Shares).
Section 3.03. Binding Effect. This Agreement has been duly executed
and delivered by the Shareholder and is the valid and binding agreement of the
Shareholder, enforceable against the Shareholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
Section 3.04. Total Shares. The Shareholder Shares are the only
shares of Santa Fe owned beneficially by the Shareholder or registered in the
name of the Shareholder as of the date hereof, and the Shareholder does not have
any option to purchase or right to subscribe for or otherwise acquire any
securities of Santa Fe and has no other interest in or voting rights with
respect to any other securities of Santa Fe.
Section 3.05. Finder's Fees. No investment banker, broker or finder
is entitled to a commission or fee from Santa Fe, Global, or any other party to
the Merger Agreement in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of the Shareholder, except as otherwise provided
in the Merger Agreement.
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Section 3.06. Reasonable Efforts. Prior to the Voting Termination
Date, the Shareholder shall use reasonable efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with Global in doing, all things necessary, proper or advisable to consummate
and make effective the Merger and the other transactions contemplated by the
Merger Agreement and this Agreement.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF GLOBAL
Global represents, warrants and covenants to the Shareholder that:
Section 4.01. Corporate Power and Authority. Global has all
requisite corporate power and authority to enter into this Agreement and to
perform its obligations hereunder. The execution, delivery and performance by
Global of this Agreement and the consummation by Global of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Global.
Section 4.02. Binding Effect. This Agreement has been duly executed
and delivered by Global and is a valid and binding agreement of Global,
enforceable against Global in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights generally and by equitable principles to which the
remedies of specific performance and injunctive and similar forms of relief are
subject.
ARTICLE V
MISCELLANEOUS
Section 5.01. Expenses. Each party hereto shall pay its own expenses
(including, without limitation, the fees, costs and disbursements of counsel and
other advisors) incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby,
including, without limitation, any action at law or in equity to enforce or
interpret the terms of this Agreement.
Section 5.02. Further Assurances. From time to time, at the request
of the other party, each party shall execute and deliver or cause to be executed
and delivered such additional documents and instruments and take all such
further action as may be necessary or desirable to consummate the transactions
contemplated by this Agreement.
Section 5.03. Specific Performance. The Shareholder agrees that
Global would be irreparably damaged if for any reason the Shareholder fails to
perform any of the Shareholder's obligations under this Agreement, and that
Global would not have an adequate remedy at law for money damages in such event.
Accordingly, Global shall be entitled to seek specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by the Shareholder. This provision is without prejudice to any other
rights that Global may have against the Shareholder for any failure to perform
its obligations under this Agreement.
Section 5.04. Notices. Any notice or communication required or
permitted hereunder shall be in writing and either delivered personally,
telegraphed or telecopied or sent by
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certified or registered mail, postage prepaid, and shall be deemed to be given,
dated and received when so delivered personally, telegraphed or telecopied or,
if mailed, five business days after the date of mailing to the following address
or telecopy number, or to such other address or addresses as such person may
subsequently designate by notice given hereunder:
(a) if to Global, to:
Senior Vice President and General Counsel
Global Marine Inc.
000 X. Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
with a copy to:
J. Xxxxx Xxxxxxxx, Jr.
Xxxxx Xxxxx L.L.P.
0000 Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000
(b) if to Shareholder, to:
Xxxxx X. Xxxxxx, Deputy Chairman and Chief Executive Officer
X.X. Xxx 00000
Xxxxx 00000
Xxxxxx
Telephone: 000.000.000.0000
Facsimile: 000.000.000.0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Section 5.05. Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the word "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Unless the context otherwise requires, "or" is
disjunctive but not necessarily exclusive, and words in the singular include the
plural and in the plural include the singular. The term "person" is to be
interpreted broadly to include any corporation, partnership,
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trust, limited liability company, government or other entity and any group (as
used with respect to Section 13(d) of the Exchange Act).
Section 5.06. Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
all parties need not sign the same counterpart.
Section 5.07. Entire Agreement; No Third Party Beneficiaries. This
Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereto and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 5.08. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
Section 5.09. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. All costs and expenses
incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense.
Section 5.10. Amendments; Termination. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto.
Section 5.11. Certain Events. The Shareholder agrees that this
Agreement and the obligations hereunder shall attach to the Shareholder Shares
beneficially owned by such Shareholder and shall be binding upon any person to
which legal or beneficial ownership of such shares shall pass, whether by
operation of law or otherwise.
Section 5.12. Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid but if any provision or portion of any provision of
this Agreement is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision, and this Agreement will be reformed,
construed and enforced as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein. The parties shall
endeavor in good faith negotiations to replace any invalid, illegal or
unenforceable provision with a valid provision the effects of which come as
close as possible to those of such invalid, illegal or unenforceable provision.
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IN WITNESS WHEREOF, Global and the Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
SFIC HOLDINGS (CAYMAN), INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board of Directors
GLOBAL MARINE INC.
By /s/ Xxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chairman, President and
Chief Executive Officer
Kuwait Petroleum Corporation hereby agrees to be bound as if it were
the Shareholder by the provisions of Section 2.03 only of this Agreement.
KUWAIT PETROLEUM CORPORATION
By /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Deputy Chairman and
Chief Executive Officer
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