|
|
 | | | |
- close
- close
- close
- close
| |||||||||
This excerpt taken from the NE DEF 14A filed Feb 11, 2009. Anti-Takeover
Provisions
Noble-Switzerland’s articles of association have provisions
that could have an anti-takeover effect. These provisions are
intended to enhance the likelihood of continuity and stability
in the composition of the board of directors and its policies,
and the ability of the board of directors to negotiate with any
potential acquirer terms that are more favorable to
shareholders. These provisions may have the effect of
discouraging actual or threatened changes of control by limiting
certain actions that may be taken by a potential acquirer prior
to its having obtained sufficient control to adopt a special
resolution amending Noble-Switzerland’s articles of
association.
The articles of association provide that
Noble-Switzerland’s board of directors will be divided into
three classes serving staggered three-year terms and that
directors may only be removed by shareholders at a meeting at
which at least two thirds of the Total Voting Shares are
represented and by a vote of at least two thirds of the Total
Voting Shares. Noble-Switzerland’s articles of association
provide that, in general, absent the approval of holders of the
number of registered shares of Noble-Switzerland equal to the
sum of (A) two thirds of the Total Voting Shares, plus
(B) a number of registered shares entitled to vote at the
general meeting that is equal to one third of the number of
shares entitled to vote held by the interested shareholder,
Noble-Switzerland may not engage in a business combination with
an interested shareholder for a period of three years after the
time of the transaction in which the person became an interested
shareholder.
The shareholder approval requirement for business combinations
with interested shareholders does not apply in some cases,
including if:
As defined in Noble-Switzerland’s articles of association,
an interested shareholder generally includes any person who,
together with that person’s affiliates or associates,
(1) owns 15% or more of the share capital registered in the
commercial register (excluding treasury shares) or (2) is
an affiliate or associate of the company and owned 15% or more
of the share capital registered in the commercial register
(excluding treasury shares) at any time within the previous
three years.
In addition, the Noble-Switzerland by-laws include “fair
price provisions” that require the approval of at least 80%
of the Total Voting Shares before Noble-Switzerland may enter
into certain “business combinations” with an
“interested shareholder” unless:
Table of Contents
For purposes of the fair price provisions, “business
combination” is broadly defined to include mergers and
consolidations of Noble-Switzerland or its subsidiaries with an
interested shareholder or any other person that is or would be
an interested shareholder after such transaction; a sale,
exchange or mortgage of assets having a fair market value of
$1.0 million or more to an interested shareholder or any
affiliate of an interested shareholder; the issuance or transfer
of securities in Noble-Switzerland or its subsidiaries having a
fair market value of $1.0 million or more to an interested
shareholder or any affiliate of an interested shareholder; the
adoption of a plan of liquidation or dissolution proposed by any
interested shareholder or any affiliate of an interested
shareholder; and any reclassification of securities or other
transaction which has the effect, directly or indirectly, of
increasing the number of shares beneficially owned by any
interested shareholder or any affiliate of an interested
shareholder. For purposes of the fair price provisions,
“interested shareholder” is generally defined as a
person who, together with any affiliates of that person,
beneficially owns, directly or indirectly, 5% or more of the
Total Voting Shares.
Swiss law generally does not prohibit business combinations with
interested shareholders. However, in certain circumstances,
shareholders and members of the board of directors of Swiss
companies, as well as certain persons associated with them, must
refund any payments they receive that are not made on an
arm’s length basis.
Upon completion of the Transaction, Noble-Switzerland’s
articles of association will include an authorized share
capital, according to which the board of directors is
authorized, at any time during a maximum two-year period, to
issue a number of registered shares of up to 50% of the share
capital registered in the commercial register and to limit or
withdraw the preemptive rights of the existing shareholders in
various circumstances, including (1) following a
shareholder or group of shareholders acting in concert having
acquired in excess of 15% of the share capital registered in the
commercial register (excluding treasury shares) without having
submitted a takeover proposal to shareholders that is
recommended by the board of directors or (2) for purposes
of the defense of an actual, threatened or potential takeover
bid, in relation to which the board of directors has, upon
consultation with an independent financial adviser retained by
the board of directors, not recommended acceptance to the
shareholders.
Courts in Switzerland have not addressed whether certain of the
provisions related to interested shareholders contained in the
articles of association are valid under Swiss law.
For other provisions that could be considered to have an
anti-takeover effect, see “— Preemptive Rights
and Preferential Subscription Rights” and
“— General Meetings of Shareholders.”
|
| |||||||
