Amendment to the Amended and Restated Rights Agreement
Exhibit 4
EXECUTION VERSION
Amendment to the Amended and Restated Rights Agreement
This Amendment to the Amended and Restated Rights Agreement (this “Amendment”) is
entered into as of August 6, 2008, between General Maritime Corporation, a corporation organized
under the laws of the Republic of the Xxxxxxxx Islands (the “Company”), and Mellon Investor
Services LLC, as rights agent (the “Rights Agent”).
WHEREAS, the Company and the Rights Agent have entered into the Amended and Restated Rights
Agreement dated as of August 31, 2006 (the “Rights Agreement”);
WHEREAS, Arlington Tankers Ltd., a company incorporated in the Islands of Bermuda
(“Xxxxxx”), Galileo Holding Corporation, a corporation incorporated under the laws of the
Republic of the Xxxxxxxx Islands (“New Parent”), Xxxxxx Amalgamation Limited, a company
incorporated in the Islands of Bermuda and a wholly owned subsidiary of New Parent
(“Amalgamation Sub”), Galileo Merger Corporation, a corporation incorporated under the laws
of the Republic of the Xxxxxxxx Islands and a wholly owned subsidiary of New Parent (“Merger
Sub”), and the Company, intend to enter into an Agreement and Plan of Merger and Amalgamation
(the “Merger Agreement”) pursuant to which, among other things, (i) Amalgamation Sub will
amalgamate with Xxxxxx (the “Xxxxxx Amalgamation”), and (ii) Merger Sub will merge with and
into the Company, with the Company continuing as the surviving corporation (the “Galileo
Merger”, and together with the Xxxxxx Amalgamation, the “Combinations”). In connection
with the Combinations and the other transactions contemplated by the Merger Agreement, Xxxxxx and
the Company have caused New Parent to be organized under the laws of the Republic of the Xxxxxxxx
Islands, with Xxxxxx owning 27% of the capital stock of New Parent and the Company owning 73% of
the capital stock of New Parent. The authorized capital stock of New Parent consists of 100 shares
of common stock, par value $.01 per share (“New Parent Common Stock”), of which 27 shares
have been issued to Xxxxxx and 73 shares have been issued to the Company. Each share of common
stock, $.01 par value per share, of the Company shall be automatically converted into the right to
receive 1.34 shares of New Parent Common Stock, and each share of common stock, $.01 par value per
share, of Xxxxxx shall be automatically converted into the right to receive one share of New Parent
Common Stock;
WHEREAS, Section 26 of the Rights Agreement provides that, at any time prior to the later to
occur of the Stock Acquisition Date (as defined in the Rights Agreement) and the Distribution Date
(as defined in the Rights Agreement), a majority of the Board of Directors of the Company may, and
the Rights Agent shall, if the Company so directs, amend or supplement any provision of the Rights
Agreement without the approval of any holders of Rights; and
WHEREAS, on August 5, 2008, the Board of Directors of the Company unanimously resolved to
amend the Rights Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
1. Capitalized Terms. All capitalized, undefined terms used in this Amendment shall
have the meanings assigned thereto in the Rights Agreement.
2. Amendments.
(a) The definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby
amended to add the following as Section 1(a)(iii):
“For the avoidance of doubt, notwithstanding anything in this Agreement to the
contrary, none of Galileo Holding Corporation, a corporation incorporated under the laws of
the Republic of the Xxxxxxxx Islands (“New Parent”), Xxxxxx Amalgamation Limited, a
company organized under the laws of Bermuda and a wholly owned subsidiary of New Parent
(“Amalgamation Sub”), Galileo Merger Corporation, a corporation incorporated under
the laws of the Republic of the Xxxxxxxx Islands and a wholly owned subsidiary of New Parent
(“Merger Sub”), and Arlington Tankers Ltd., a company incorporated in the Islands of
Bermuda (“Xxxxxx”), or any of their Affiliates or Associates, individually or
collectively, shall be an “Acquiring Person” under this Agreement solely by reason of the
approval, adoption, execution or delivery of the Agreement and Plan of Merger and
Amalgamation (as it may be amended and supplemented, the “Merger Agreement”) among
Xxxxxx, New Parent, Amalgamation Sub, Merger Sub, and the Company, the performance by any
party to the Merger Agreement of its obligations thereunder, or the consummation of the
transactions contemplated by the Merger Agreement.”
(b) The definition of “Beneficial Owner” and “Beneficially Owns” in Section 1(d) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
“For the avoidance of doubt, notwithstanding anything in this definition of Beneficial
Owner and Beneficially Owns to the contrary, none of New Parent, Amalgamation Sub, Merger
Sub, Xxxxxx or any of their Affiliates or Associates, individually or collectively, shall be
deemed the “Beneficial Owner” or shall be deemed to “Beneficially Own” any Common Stock
solely as a result of the approval, adoption, execution or delivery of the Merger Agreement,
the performance by any party to the Merger Agreement of its obligations thereunder, or the
consummation of the transactions contemplated by the Merger Agreement.”
(c) The definition of “Distribution Date” in Section 1(k) of the Rights Agreement is hereby
amended to add the following sentence at the end thereof:
“For the avoidance of doubt, notwithstanding anything in this Agreement to the
contrary, a Distribution Date shall be deemed not to have occurred solely as a result of (x)
the approval, adoption, execution or delivery of the Merger Agreement, (y) the consummation
of the Combinations (as such term is defined in the Merger Agreement) or (z) any of the
other transactions contemplated by the Merger Agreement.”
(d) The definition of “Expiration Date” in Section 1(q) of the Rights Agreement is hereby
amended and restated in its entirety to read as follows:
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“ “Expiration Date” shall mean the earlier of (i) the close of business on December 5,
2010 and (ii) immediately prior to the Effective Time, as such term is defined in the Merger
Agreement. In the event that the Expiration Date relates to the Effective Time as set forth
in clause (ii) in the preceding sentence, the Company shall promptly notify the Rights Agent
after the occurrence of such Effective Time. The Rights Agent shall not be deemed to have
notice of the termination of the Rights Agreement (or of any Expiration Date relating to the
Effective Time) unless and until it has received the aforementioned notice of the Effective
Time.”
(e) The definition of “Stock Acquisition Date” in Section 1(ee) of the Rights Agreement is
hereby amended to add the following sentence at the end thereof:
“For the avoidance of doubt, notwithstanding anything in this Agreement to the
contrary, no Stock Acquisition Date shall be deemed to have occurred solely as a result of
the approval, adoption, execution or delivery of the Merger Agreement, the performance by
any party to the Merger Agreement of its obligations thereunder, or the consummation of the
transactions contemplated by the Merger Agreement.”
(f) The definition of “Triggering Event” in Section 1(hh) of the Rights Agreement is hereby
amended to add the following at the end thereof immediately prior to the period:
“; provided, however, that, for the avoidance of doubt, notwithstanding anything in
this Agreement to the contrary, a Triggering Event shall be deemed not to have occurred
solely as a result of the approval, adoption, execution or delivery of the Merger Agreement,
the performance by any party to the Merger Agreement of its obligations thereunder, or the
consummation of the transactions contemplated by the Merger Agreement”
(g) Section 1 of the Rights Agreement is amended by adding thereto subsection (ii) which shall
read as follows:
“(ii) Each of “Merger Agreement”, “New Parent”, “Merger Sub”, “Xxxxxx”, and
“Amalgamation Sub” shall have the meanings given to such terms in the definition of
“Acquiring Person”.”
3. Effective Date. This Amendment shall become effective as of the date first written
above.
4. Interpretation. The term “Agreement” as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended by this Amendment.
5. Effect of Amendment. Except as expressly provided herein, the Rights Agreement
shall be and remain in full force and effect.
6. Governing Law. This Amendment for all purposes shall be governed by and construed
in accordance with the laws of the Republic of the Xxxxxxxx Islands and shall be
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interpreted and
construed to the extent permitted by Section 13 of the Republic of Xxxxxxxx Islands Associations
Law in a manner consistent with the internal laws (but not including the principles of conflict of
laws) of the State of Delaware; except that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in accordance with the law of
the State of New York applicable to contracts made and to be performed entirely within such State.
7. Counterparts. 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.
8. Severability. If any term, provision, covenant or restriction 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, provisions, covenants and restrictions of this Amendment shall remain
in full force and effect and shall in no way be affected, impaired or invalidated.
9. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the Company has executed this Amendment as of the date first above
written.
GENERAL MARITIME CORPORATION |
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By: | /s/ Xxxx X. Xxxxxxxxxxxxx | |||
Name: | Xxxx X. Xxxxxxxxxxxxx | |||
Title: | Chief Administrative Officer | |||
[ATTESTED] |
[Signature Page to Amendment to the Amended and Restated Rights Agreement]
IN WITNESS WHEREOF, the Rights Agent has executed this Amendment as of the date first above
written.
MELLON INVESTOR SERVICES LLC |
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By: | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Assistant Vice President | |||
[ATTESTED] |
[Signature Page to Amendment to the Amended and Restated Rights Agreement]