EXHIBIT 4.12
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") dated as of the 27 day
of August, 2002, between Harken Energy Corporation, a Delaware corporation (the
"Company"), and American Stock Transfer and Trust Company (successor to Mellon
Investor Services LLC, a New Jersey limited liability company (formerly known as
ChaseMellon Shareholder Services L.L.C.)), as Rights Agent (the "Rights Agent").
RECITALS
1. The Company and the Rights Agent have previously entered into that
certain Rights Agreement, dated as of April 6, 1998 (the "Agreement").
2. Section 27 (Supplements and Amendments) of the Agreement provides,
in part, that, as long as the Rights are redeemable, the Agreement may be
supplemented or amended without the approval of any holders of Rights.
3. The Company may distribute to it stockholders and certain other
parties, non-transferable rights to subscribe for and purchase the Company's
Common Stock, $0.01 par value ("Common Stock") pursuant to an offering of such
rights which is authorized and approved by the Company's Board of Directors
prior to December 31, 2002.
4. The Company desires to amend the Agreement to ensure that no Person
will be deemed to be an Acquiring Person (as defined in the Agreement) solely as
a result of acquiring the Company's Common Stock upon the exercise of such
rights in such rights offering under the circumstances described herein.
AGREEMENT
Section 1. Definitions. All capitalized terms used but not defined
herein shall have the meanings given to them in the Agreement.
Section 2. Amended Definition. Pursuant to Section 27 of the Agreement
(Supplements and Amendments), the undersigned wish to amend Section 1(k) of the
Agreement (Certain Definitions -- Exempt Person) by deleting the existing
Section 1(k) in its entirety and replacing it with a new Section 1(k) to read as
follows:
"(k) "Exempt Person" shall mean (i) the Company or any Subsidiary (as
such term is hereinafter defined) of the Company, in each case
including, without limitation, in its fiduciary capacity, or any
employee benefit plan of the Company or any Subsidiary of the Company,
or any entity or trustee holding Common Stock for or pursuant to the
terms of any such plan or for the purpose of funding any such plan or
funding other employee benefits for employees of the Company or of any
Subsidiary of the Company, (ii) any Person who or which is or becomes
the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding as the result of such Person's Beneficial Ownership of
the Company's 5% Convertible Subordinated Notes due 2003, or
acquisition from the Company of the Company's securities, and any
shares of Common Stock issued by the Company to such Person upon
conversion, exchange or redemption thereof, in exchange for the
Company's 5% Convertible Subordinated Notes due 2003 held by such
Person or both, unless and until such Person, while a Beneficial Owner
of 15% or more of the shares of Common Stock then outstanding, shall
become the Beneficial Owner of additional shares of Common Stock
constituting 1% or more of the then outstanding shares of Common Stock
other than pursuant to such exchange, conversion or redemption, and
(iii) any Person who or which is or becomes the Beneficial Owner of 15%
or more of the shares of Common Stock then outstanding as the result of
such Person's acquisition from the Company of rights to subscribe for
and purchase Common Stock pursuant to an offering of such rights
authorized and approved by the Board of Directors of the Company prior
to December 31, 2002 (the "Board Approved Rights Offering"), and any
shares of Common Stock issued by the Company to such Person upon
exercise of such rights, unless and until such Person, while a
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, shall become a Beneficial Owner of additional shares of
Common Stock constituting 1% or more of the then outstanding shares of
Common Stock other than pursuant to such Board Approved Rights
Offering.
Section 3. Governing Law. 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 made and to be performed entirely within such State.
Section 4. Counterparts. This Agreement 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Rights Agreement to be duly executed as of the day and year first above written.
HARKEN ENERGY CORPORATION
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
President and Chief Operating Officer
AMERICAN STOCK TRANSFER AND TRUST
COMPANY, as Rights Agent
By: /s/___________________________________
Name:_________________________________
Title:________________________________
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