Exhibit 4.3
Conformed Copy
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SECOND AMENDMENT TO RIGHTS AGREEMENT
SECOND AMENDMENT TO RIGHTS AGREEMENT (this "Amendment"), dated as of
January 10, 2003, to the Rights Agreement, dated as of February 29, 1996,
between OFFSHORE LOGISTICS, INC., a Delaware corporation (the "Company") and
MELLON INVESTOR SERVICES LLC (f/k/a Chemical Mellon Shareholder Services,
L.L.C.), a New Jersey limited liability company, as Rights Agent (the "Rights
Agent"), as amended by the First Amendment to Rights Agreement, dated as of May
6, 1997, between the Company and the Rights Agent (as so amended, the "Rights
Agreement").
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may from time to time supplement or amend the Rights Agreement in accordance
with the provisions of Section 27 thereof; and
WHEREAS, on January 9, 2003, the Board of Directors of the Company (a)
unanimously determined that it is (i) in the best interests of the Company and
its stockholders, and (ii) desirable, to amend the Rights Agreement, and (b)
duly authorized the execution and delivery of this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
1. Section 1(a) of the Rights Agreement is hereby modified, amended and
restated in its entirety as follows:
"Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with all Affiliates
and Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined) of
10% or more of the Common Shares of the Company then outstanding, but
shall not include (i) the Company, (ii) any Subsidiary (as such term is
hereinafter defined) of the Company, (iii) any employee benefit plan of
the Company or any Subsidiary of the Company, (iv) any entity holding
Common Shares for or pursuant to the terms of any such plan or (v) any
Passive Investor (as such term is hereinafter defined). Notwithstanding
the foregoing, no Person shall become an "Acquiring Person" as the
result of an acquisition of Common Shares by the Company which, by
reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 10% or more of
the Common Shares of the Company then outstanding; provided, however,
that if a Person shall become the Beneficial Owner of 10% or more of
the Common Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Common Shares of
the Company, then such Person shall be deemed to be an "Acquiring
Person". Notwithstanding the foregoing, if the Board of Directors of
the Company determines in good faith that a Person who would otherwise
be an "Acquiring Person", as defined pursuant to the foregoing
provisions of this paragraph (a), has become such inadvertently, and
such Person divests as promptly as practicable a sufficient number of
Common Shares so that such Person would no longer be an "Acquiring
Person", as defined pursuant to the foregoing provisions of this
paragraph (a) then such Person shall not be deemed to be an "Acquiring
Person" for any purposes of this Agreement.
2. The Rights Agreement is hereby modified and amended by adding
immediately after existing Section 1(h) the following new Section 1(i):
(i) "Passive Investor" shall mean any Person specified in Rule
13d-1(b)(ii) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), but only if and for so long as (1) such Person,
together with all Affiliates and Associates, shall be the Beneficial
Owner of not more than twelve and one-half percent (12.5%) of the
Common Shares of the Company then outstanding and (2) such Person has
acquired or holds such securities in the ordinary course of its
business and not with the purpose nor with the effect of changing or
influencing the control of the Company, nor in connection with or as a
participant in any transaction having such purpose or effect, including
any transaction subject to Rule 13d-3(b) under the Exchange Act.
Notwithstanding the foregoing, no Person shall cease to be a "Passive
Investor" solely as the result of an acquisition of Common Shares by
the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such
Person to 12.5% or more of the Common Shares of the Company then
outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 12.5% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and shall,
after such share purchases by the Company, become the Beneficial Owner
of any additional Common Shares of the Company, then such Person shall
cease to be a "Passive Investor". Notwithstanding the foregoing, if the
Board of Directors of the Company determines in good faith that a
Person who previously qualified as a "Passive Investor" pursuant to the
foregoing provisions of this paragraph (i) has ceased to qualify as a
"Passive Investor" solely as the result of inadvertently becoming the
Beneficial Owner of more than 12.5% of the Common Shares of the Company
then outstanding, and such Person agrees to and does divest as promptly
as reasonably practicable a sufficient number of Common Shares so that
such Person no longer beneficially owns more than 12.5% of the Common
Shares of the Company then outstanding, then such Person shall continue
to be deemed to be a "Passive Investor" for any purposes of this
Agreement. For the avoidance of doubt, any Person shall immediately
cease to be a Passive Investor on the occurrence of any event
(including, without limitation, as set forth in Rule 13d-1(e) under the
Exchange Act) that subjects such Person to Rules 13d-1(a) and 13d-2(a)
under the Exchange Act and the obligation to file a statement on
Schedule 13D.
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3. Sections 1(i) through (m) of the Rights Agreement are hereby
renumbered as Sections 1(j) through (n), respectively.
4. Section 20(c) of the Rights Agreement is hereby amended by adding
the following language immediately after the word "misconduct" at the end of
such section:
(which negligence, bad faith or willful misconduct must be determined
by a final, non-appealable order, judgment, decree or ruling of a court
of competent jurisdiction). Anything to the contrary notwithstanding,
in no event shall the Rights Agent be liable for special, punitive,
indirect, consequential or incidental loss or damage of any kind
whatsoever (including, but not limited to, lost profits), even if the
Rights Agent has been advised of the likelihood of such loss or damage.
5. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and immunities afforded to the Rights Agent under
the terms and provisions of the Rights Agreement.
6. This Amendment shall be governed by and construed in accordance with
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.
7. This Amendment 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.
8. If any term or provision of this Amendment is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms and provisions of this Amendment, and of the Rights
Agreement, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Amendment has been duly executed by the
Company and the Rights Agent as of the day and year first written above.
Attest: OFFSHORE LOGISTICS, INC.
By /s/ Xxxxx X. Xxxxxxxxx By /s/ Xxxxxx X. Small
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Name: Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Small
Title: Executive Assistant Title: President and Chief Executive
Officer
MELLON INVESTOR SERVICES LLC,
(as Rights Agent)
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
