EXHIBIT 10.5
NOBLE CORPORATION
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made as of the _____ day of _________, 20____, by and
between NOBLE CORPORATION, a Cayman Islands exempted company limited by shares
(the "Company"), and _____________________ ("Director");
W I T N E S S E T H:
WHEREAS, the Board has adopted and the members of the Company have
approved and ratified the Amended and Restated Noble Corporation 1992
Nonqualified Stock Option and Restricted Share Plan for Non-Employee Directors
(the "Plan"), which provides for the automatic award of Restricted Shares to
each Non-Employee Director of the Company; and
WHEREAS, pursuant to the Plan and subject to and upon the terms and
conditions herein provided, this Agreement evidences the award of Restricted
Shares under the Plan to Director, who currently serves as a Non-Employee
Director of the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Award. On the terms and conditions and subject to the restrictions,
including forfeiture, hereinafter set forth, the Company hereby makes to
Director a Restricted Share award (the "Award") of an aggregate of 4,000
ordinary shares (the "Restricted Shares"), par value U.S.$0.10 per share
("Ordinary Shares"), of the Company. The Award is made effective as of the date
hereof (the "Award Date"). The Restricted Shares shall be issued to Director,
subject to forfeiture as herein provided, without the payment of any cash
consideration by Director. A certificate representing the Restricted Shares
shall be issued in the name of Director as of the Award Date and delivered to
Director on the Award Date or as soon thereafter as practicable. Director shall
cause the certificate representing the Restricted Shares, upon receipt thereof
by Director, to be deposited, together with stock powers and any other
instrument of transfer reasonably requested by the Company duly endorsed in
blank, with the Company pursuant to an escrow agreement substantially in the
form of Exhibit A hereto (the "Escrow Agreement"). The Restricted Shares shall
be delivered to Director upon vesting or assigned and transferred to and
reacquired and canceled by the Company upon forfeiture, as hereinafter set
forth, and in accordance with the terms and conditions of the Escrow Agreement.
Unless and until the Restricted Shares are delivered to Director upon vesting,
the Restricted Shares shall not be sold, assigned, transferred, discounted,
exchanged, pledged or otherwise encumbered or disposed of by Director in any
manner.
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2. Vesting/Forfeiture.
(a) Except as otherwise set forth in this Section 2 of this Agreement,
the Award shall not be fully vested immediately but shall be subject to
forfeiture in accordance with the following restricted periods:
(i) One-third of the awarded shares shall vest and no longer be
subject to forfeiture on the first anniversary of the Award
Date (or if such date is not a business day, the business ay
immediately preceding such date); and
(ii) One-third of the awarded shares shall vest and no longer be
subject to forfeiture on the second anniversary of the Award
Date (or if such date is not a business day, the business day
immediately preceding such date); and
(iii) One-third of the awarded shares shall vest and no longer be
subject to forfeiture on the third anniversary of the Award
Date (or if such date is not a business day, the business day
immediately preceding such date).
(b) Notwithstanding the foregoing, the Board shall have the authority
to cancel all or any portion of any outstanding restrictions prior to the
expiration of such restrictions with respect to any or all of the Restricted
Shares as the Board may deem appropriate.
(c) The Restricted Shares shall vest in Director in accordance with the
restricted periods set forth above, and Director shall be entitled to have
delivered to him or her a new certificate, without the legend referenced in
Section 9 of this Agreement, for the number of such vested Ordinary Shares.
(d) If Director ceases to be a director of the Company on account of
Director's (a) fraud or intentional misrepresentation, or (b) embezzlement,
misappropriation or conversion of assets or opportunities of the Company or any
direct or indirect majority-owned subsidiary of the Company, then any Restricted
Shares remaining subject to restrictions shall thereupon be forfeited by
Director and transferred to, and reacquired by, the Company or an affiliate of
the Company at no cost to the Company or such affiliate as of the date Director
ceases to be a director of the Company.
(e) If Director ceases to be a director of the Company, for any reason,
prior to the satisfaction of the terms and conditions of this Agreement, any
Restricted Shares remaining subject to restrictions shall thereupon be forfeited
by Director and transferred to, and reacquired by, the Company or an affiliate
of the Company at no cost to the Company or such affiliate; provided, however,
if the cessation is due to Director's death, retirement or disability, the Board
may, in its sole and absolute discretion, deem that the terms and conditions
have been met for all or part of such remaining portion.
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(f) In the event of any forfeiture of Restricted Shares, Director, or
in the event of his or her death, his or her personal representative, shall
forthwith deliver to the Secretary of the Company the certificates for the
Restricted Shares remaining subject to such restrictions, accompanied by such
instruments of transfer, if any, as may reasonably be required by the Secretary
of the Company.
3. Escrow Agreement. In accordance with Section 4.02(f) of the Plan,
the Company has approved the form of the Escrow Agreement and prescribed its use
hereunder in order to enforce the restrictions, terms and conditions applicable
to the Restricted Shares.
4. Rights as Member. Upon the issuance of a certificate or certificates
representing the Restricted Shares to Director, Director shall become the owner
thereof for all purposes and shall have all rights as a member of the Company,
including, without limitation, voting rights and the right to receive dividends
and distributions, with respect to the Restricted Shares, subject to the
forfeiture provisions hereof. If the Company shall pay or declare a dividend or
make a distribution of any kind, whether due to a reorganization,
recapitalization or otherwise, with respect to the Ordinary Shares constituting
the Restricted Shares, then the Company shall pay or make such dividend or other
distribution with respect to the Restricted Shares.
5. Agreements Regarding Withholding Taxes.
(a) Director may elect, within 30 days of the Award Date and on notice
to the Company, to realize income for United States federal income tax purposes
equal to the fair market value of the Restricted Shares on the date of award,
which shall be the Award Date. In such event, Director shall make arrangements
satisfactory to the Company to pay in the year of such award any United States
federal, state or local taxes required to be withheld with respect to such
shares. If Director fails to make such payments, the Company and its
subsidiaries shall, to the extent permitted by law, have the right to deduct in
the year of such award any United States federal, state or local taxes of any
kind required by law to be withheld with respect to such Ordinary Shares.
(b) (i) No later than the date of the lapse of the restrictions on any
of the Restricted Shares set forth herein, Director will pay to the Company or
its subsidiaries, or make arrangements satisfactory to the Company regarding
payment of, any United States federal, state or local taxes of any kind required
by law to be withheld with respect to the Restricted Shares with respect to
which such restrictions have lapsed.
(ii) Director shall, to the extent permitted by law, have the right to
deliver to the Company or its subsidiaries Restricted Shares to which Director
shall be entitled upon the vesting thereof (or other Ordinary Shares owned by
Director), valued at the fair market value of such shares at the time of such
delivery to the Company or its subsidiaries, to satisfy the obligation of
Director under Section 5(b)(i) of this Agreement.
(iii) If Director does not otherwise satisfy the obligation of Director
under Section 5(b)(i) of this Agreement, then the Company and its subsidiaries
shall, to the extent permitted by law, have the right to deduct from any
payments of any kind otherwise due to Director any United States
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federal, state or local taxes of any kind required by law to be withheld with
respect to the Restricted Shares with respect to which the restrictions on the
Restricted Shares set forth herein have lapsed.
6. Non-Assignability. The Award is not assignable or transferable by
Director.
7. Newly-Issued Ordinary Shares. The Ordinary Shares awarded to
Director as the Restricted Shares shall be newly-issued Ordinary Shares of the
Company.
8. Capital Adjustments. If any of the following events shall occur at
any time while the Award is outstanding and any Restricted Shares have not
either become vested or been forfeited, the following adjustments shall be made
in the number of Ordinary Shares then constituting the Restricted Shares under
the Award, as appropriate:
(a) Share Dividend or Split; Combination. If the Company pays a
dividend on its outstanding Ordinary Shares in Ordinary Shares or subdivides its
outstanding Ordinary Shares into a greater number of Ordinary Shares, the number
of Ordinary Shares then subject to the Award shall be proportionately increased.
Conversely, if the outstanding Ordinary Shares are combined into a smaller
number of Ordinary Shares, the number of Ordinary Shares then subject to the
Award shall be proportionately reduced. An adjustment made pursuant to this
Section 8(a) shall become effective as of the record date in the case of a
dividend and shall become effective immediately after the effective date in the
case of a subdivision or combination.
(b) Recapitalization or Reorganization. In case of any recapitalization
or reclassification of the Ordinary Shares, or any merger, amalgamation or
consolidation of the Company with or into one or more other corporations, or any
sale of all or substantially all the assets of the Company, as a result of which
the holders of the Ordinary Shares receive other stock, securities or property
in lieu of or in addition to, but on account of, their Ordinary Shares, the
Company shall make or cause to be made lawful and adequate provision whereby,
upon the vesting of the Award after the record date for the determination of the
holders of Ordinary Shares entitled to receive such other stock, securities or
property, Director shall receive, in addition to the Ordinary Shares with
respect to which the Award has vested, the shares of stock, securities or other
property which would have been allocable to such Ordinary Shares had the Award
vested immediately prior to such record date. The subdivision or combination of
Ordinary Shares at any time outstanding into a greater or smaller number of
Ordinary Shares shall not be deemed to be a recapitalization or reclassification
of the Ordinary Shares for the purposes of this Section 8(b).
9. Legend. Each certificate representing Restricted Shares shall
conspicuously set forth on the face or back thereof, in addition to any legends
required by applicable law or other agreement, a legend in substantially the
following form:
THE ORDINARY SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED NOBLE CORPORATION
1992 NONQUALIFIED STOCK OPTION AND RESTRICTED SHARE PLAN FOR
NON-EMPLOYEE DIRECTORS AND
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MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, DISCOUNTED, EXCHANGED, PLEDGED
OR OTHERWISE ENCUMBERED OR DISPOSED OF IN ANY MANNER EXCEPT AS SET
FORTH IN THE TERMS OF THE AGREEMENT EMBODYING THE AWARD OF SUCH SHARES
DATED _______________, 200___. A COPY OF SUCH PLAN AND AGREEMENT IS ON
FILE IN THE OFFICES OF THE CORPORATION.
10. Defined Terms; Plan Provisions. Unless the context clearly
indicates otherwise, the capitalized terms used (and not otherwise defined) in
this Agreement shall have the meanings assigned to them under the provisions of
the Plan. By execution of this Agreement, Director agrees that the Award and the
Restricted Shares shall be governed by and subject to all applicable provisions
of the Plan. This Agreement is subject to the Plan, and the Plan shall govern
where there is any inconsistency between the Plan and this Agreement.
11. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas, without regard
to the principles of conflicts of laws thereof, except to the extent Texas law
is preempted by Federal law of the United States or by the laws of the Cayman
Islands.
12. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns.
13. Entire Agreement; Amendment. This Agreement, together with any
Exhibit and any other writings referred to herein or delivered pursuant hereto,
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
whether written or oral, between the parties with respect to the subject matter
hereof. To the fullest extent provided by applicable law, this Agreement may be
amended, modified and supplemented by mutual consent of the parties hereto at
any time, with respect to any of the terms contained herein, in such manner as
may be agreed upon in writing by such parties.
14. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if directed in the manner specified below, to
the parties at the following addresses and numbers:
(a) If to the Company, when delivered by hand, confirmed fax or mail
(registered or certified mail with postage prepaid) to:
Noble Corporation
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▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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With a copy to:
Noble Corporation
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▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Director, when delivered by hand, confirmed fax or mail
(registered or certified mail with postage prepaid) to:
The address and number, if any, set forth opposite
Director's signature below
Either party may at any time give to the other notice in writing of any change
of address of the party giving such notice and from and after the giving of such
notice the address or addresses therein specified will be deemed to be the
address of such party for the purposes of giving notice hereunder.
15. Severability. If any provision of this Agreement is held to be
unenforceable, this Agreement shall be considered divisible and such provision
shall be deemed inoperative to the extent it is deemed unenforceable, and in all
other respects this Agreement shall remain in full force and effect; provided,
however, that if any such provision may be made enforceable by limitation
thereof, then such provision shall be deemed to be so limited and shall be
enforceable to the maximum extent permitted by applicable law.
16. Counterparts. This Agreement may be executed by the parties hereto
in any number of counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same agreement. Each counterpart may
consist of a number of copies hereof each signed by less than all, but together
signed by all, the parties hereto.
17. Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only, do not constitute a part of this Agreement,
and shall not affect in any manner the meaning or interpretation of this
Agreement.
18. Gender. Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires.
19. References. The words "this Agreement," "herein," "hereof,"
"hereby," "hereunder" and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited.
Whenever the words "include," "includes" and "including" are used in this
Agreement, such words shall be deemed to be followed by the words "without
limitation."
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IN WITNESS WHEREOF, the Company and Director have executed this
Agreement as of the date first above written.
NOBLE CORPORATION
By:
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Name:
Title:
Address and fax number, if any:
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Name of Director:
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Fax:
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EXHIBIT A
NOBLE CORPORATION
ESCROW AGREEMENT
FOR RESTRICTED STOCK AWARD
THIS ESCROW AGREEMENT, made as of the ____day of __________, 200___, by
and among Noble Corporation, a Cayman Islands exempted company limited by shares
(the "Company"), ___________________ ("Director"), and the Company, as escrow
agent (the "Escrow Agent"), pursuant to a Restricted Stock Agreement dated of
even date herewith (the "Restricted Stock Agreement") between the Company and
Director;
W I T N E S S E T H:
WHEREAS, the Company and Director desire the Escrow Agent to serve as
Escrow Agent for the Deposit Shares (as hereinafter defined) as contemplated by
Section 1 of the Restricted Stock Agreement, and the Escrow Agent is willing to
serve as Escrow Agent pursuant to the provisions hereof; and
WHEREAS, the Restricted Stock Agreement requires that an Escrow
Agreement in the form hereof be entered into by the parties hereto;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Defined Terms. Each capitalized term used herein and not otherwise
defined shall have the meaning accorded thereto in the Restricted Stock
Agreement.
2. Deposit of Shares. In order to enforce the restrictions, terms and
conditions, including forfeiture, applicable to the Award of Restricted Shares
to Director pursuant to the Restricted Stock Agreement, concurrent with the
signing of the Restricted Stock Agreement, Director has deposited or caused to
be deposited with the Escrow Agent the Restricted Shares, together with stock
powers duly endorsed in blank by Director. The shares so deposited with the
Escrow Agent and such stock powers are referred to herein collectively as the
"Deposit Shares." The Deposit Shares shall be registered in the name of
Director.
3. Term. The Deposit Shares shall be held by the Escrow Agent in
accordance with the terms of this Agreement from the date of deposit until the
Deposit Shares have been disposed of by Escrow Agent in accordance with this
Agreement.
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4. Disposition of the Deposit Shares.
(a) Upon receipt by the Escrow Agent at any time of joint written
instructions from the Chief Executive Officer of the Company and Director, the
Escrow Agent will deliver the Deposit Shares in accordance with such
instructions.
(b) Upon receipt by Escrow Agent of the Company's notice that (i) a
number of the Restricted Shares specified in such notice has been forfeited by
Director (the "Forfeited Shares") and the Company is entitled to delivery of the
Forfeited Shares pursuant to the Restricted Stock Agreement and (ii) the
certificate representing the Deposit Shares, together with the stock powers duly
endorsed in blank by Director, should be delivered to the Company, Escrow Agent
shall promptly deliver the certificate representing the Deposit Shares and such
stock powers to the Company. If the number of the Forfeited Shares is less than
the number of the Deposit Shares then held in escrow hereunder, then the Company
shall cause a new certificate to be issued for the remaining number of Deposit
Shares represented by the certificate delivered to the Company and returned to
the Escrow Agent to be held pursuant to the terms of this Escrow Agreement.
(c) Upon receipt by Escrow Agent of the Company's notice that (i) a
number of the Restricted Shares specified in such notice has become vested in
Director (the "Vested Shares") and Director is entitled to delivery of the
Vested Shares pursuant to the Restricted Stock Agreement and (ii) the
certificate representing the Deposit Shares should be delivered to Director,
Escrow Agent shall promptly deliver the certificate representing the Vested
Shares to Director. If the number of the Vested Shares is less than the number
of the Deposit Shares then held in escrow hereunder, then Director shall cause a
new certificate to be issued for the remaining number of Deposit Shares
represented by the certificate delivered to Director and returned to the Escrow
Agent to be held pursuant to the terms of this Escrow Agreement.
(d) The Escrow Agent shall not be required to inquire or make any
investigation beyond the bounds of this Escrow Agreement in delivering all or
any of the Deposit Shares.
5. Certain Agreements of the Company and Director.
(a) The Company agrees with Director to give the Escrow Agent prompt
notice in accordance with Section 4(c) of this Escrow Agreement in the event of
vesting of all or any of the Deposit Shares pursuant to the Restricted Stock
Agreement.
(b) Director acknowledges (i) that the disposition of the Deposit
Shares pursuant to Section 4(b) or 4(c) of this Escrow Agreement may be made
upon the unilateral action of the Company, (ii) that even in the event Director
disagrees with the Company's notice or makes objection to the Escrow Agent with
respect thereto, the Escrow Agent shall nevertheless be required to dispose of
the Deposit Shares in accordance with the Company's notice and (iii) that any
claim or remedy with respect to any dispute Director has concerning the delivery
of all or any of the Deposit Shares to the Company pursuant to this Escrow
Agreement or otherwise concerning the Restricted
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Stock Agreement shall be raised only against the Company so long as the Escrow
Agent acts in good faith.
(c) The Company and Director hereby jointly and severally agree to
indemnify, defend and hold harmless the Escrow Agent from and against any and
all losses, damages, liabilities and expenses that may be incurred by the Escrow
Agent arising out of or in connection with its performance of its duties as
Escrow Agent hereunder in accordance with the terms hereof, including any legal
costs and expenses of defending itself against any claims or liabilities,
including, without limitation, its good faith disbursement of Deposit Shares
pursuant to this Escrow Agreement.
6. Escrow Agent.
(a) The Escrow Agent shall not be required to use its own funds in the
performance of any of its duties, or in the exercise of any of its rights or
powers, with respect to the Deposit Shares.
(b) The Escrow Agent may confer with its counsel with respect to any
question relating to its duties or responsibilities hereunder and it shall not
be liable for any act done or omitted by it in good faith on advice of counsel.
It shall be protected in acting upon any certificate, statement, request,
consent, agreement or other instrument whatsoever (not only as to its due
execution or the validity and effectiveness of its provisions, but also as to
the truth and acceptability of any information therein contained) which it shall
in good faith believe to be valid and to have been signed or presented by a
proper person or persons. The Escrow Agent shall not be bound by any notice of a
claim, or demand with respect thereto, or any waiver, modification, amendment,
termination or rescission of this Escrow Agreement, unless in writing received
by it, and if the duties of the Escrow Agent herein are affected, unless it
shall have given its prior written consent thereto. The Escrow Agent shall not
be liable or responsible for anything done or omitted to be done by it in good
faith, it being understood that its liability hereunder shall be limited solely
to gross negligence or willful misconduct on its part.
7. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if directed in the manner specified below, to
the parties at the following addresses and numbers
(a) If to the Company, when delivered by hand, confirmed fax or mail
(registered or certified mail with postage prepaid) to:
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Noble Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Noble Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Director, when delivered by hand, confirmed fax or mail
(registered or certified mail with postage prepaid) to:
The address and number, if any, set forth opposite
Director's signature on the Restricted Stock
Agreement
(c) If to the Escrow Agent, when delivered by hand, confirmed fax or
mail (registered or certified mail with postage prepaid) to:
Noble Corporation
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Escrow - Restricted Stock Award
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Any party may at any time give to the others notice in writing of any change of
address of the party giving such notice and from and after the giving of such
notice the address or addresses therein specified will be deemed to be the
address of such party for the purposes of giving notice hereunder.
8. Assignment; Binding Effect. This Escrow Agreement is not assignable
by the Escrow Agent and shall be binding upon and inure to the benefit of the
parties hereto, and their respective heirs, personal representatives, successors
and permitted assigns.
9. Governing Law. This Escrow Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Texas,
without regard to the principles of conflicts of laws thereof, except to the
extent Texas law is preempted by Federal law of the United States or by the laws
of the Cayman Islands.
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10. Termination. This Escrow Agreement shall be terminated only upon
the delivery of all the Deposit Shares either to Director as Vested Shares or to
the Company as Forfeited Shares, as the case may be, in accordance with the
provisions hereof.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as
of the date first above written.
NOBLE CORPORATION
By:
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Name:
Title:
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Name of Director: ________________________
NOBLE CORPORATION,
as Escrow Agent
By:
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Name:
Title:
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