Exhibit 4.1
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of
September 16, 1997, is between LOEWS CORPORATION, a Delaware
corporation (the "Company"), and THE CHASE MANHATTAN BANK, a
New York corporation, successor by merger to Chemical Bank,
successor by merger to Manufacturers Hanover Trust Company, as
trustee (herein called the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee have entered into an
Indenture dated as of December 1, 1985 and a First and Second
Supplemental Indenture thereto, each dated as of February 18,
1997 (such Indenture, as supplemented is herein called the
"Indenture").
Capitalized terms used but not otherwise defined
herein, shall have the meanings given them in the Indenture.
Section 201 of the Indenture permits the form of the
Debt Securities of any series to be established pursuant to an
indenture supplemental to the Indenture.
Section 301 of the Indenture permits the terms of the
Debt Securities of any series to be established in an indenture
supplemental to the Indenture.
Section 901(6) of the Indenture provides that a
supplemental indenture may be entered into by the Company and
the Trustee without the consent of any Holders of Debt
Securities to establish the form and terms of Debt Securities
of any series as permitted by Sections 201 and 301. In
accordance with the terms of Sections 901(6) of the Indenture,
the Company has, by Board Resolution, authorized this Third
Supplemental Indenture. The Trustee has determined that this
Third Supplemental Indenture is in form satisfactory to it.
All things necessary to make this Third Supplemental
Indenture a valid agreement of the Company and the Trustee and
a valid amendment of and supplement to the Indenture have been
done.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Debt Securities of the series to
be created hereby, as follows:
1. Definitions.
For all purposes of the Indenture and this Third
Supplemental Indenture, with respect to the Securities of the
series created hereby, except as otherwise expressly provided
or unless the context otherwise requires:
The "Average Market Value" of the Diamond Offshore
Common Stock on any date of computation means the arithmetic
average of the daily volume weighted average price of the
Diamond Offshore Common Stock, as reported on the New York
Stock Exchange Consolidated Tape, or if the Diamond Offshore
Common Stock is not then listed on the New York Stock Exchange,
as reported by the principal securities exchange or interdealer
quotations system on which the Diamond Offshore Common Stock is
then traded, for the 30-Trading Day period ending two Trading
Days prior to such date of computation as computed by the
Quotation Agent.
The "Average Market Value Amount" per $1,000
principal amount of Notes means the greater of (A) $1,000 and
(B) the product of (i) the then-prevailing Exchange Rate and
(ii) the Average Market Value of the Diamond Offshore Common
Stock as of the date of computation.
"Cash Distribution" means the distribution by Diamond
Offshore to all holders of Diamond Offshore Common Stock of
cash, other than any cash that is distributed upon a merger or
consolidation to which Section 4.11 of this Third Supplemental
Indenture applies or as part of a distribution referred to in
paragraph (4) of Section 4.4 of this Third Supplemental
Indenture.
"Closing Price" of the Diamond Offshore Common Stock
on any date means the price, as of the close of business on
such date, of the Diamond Offshore Common Stock, as reported on
the New York Stock Exchange Consolidated Tape, or if the
Diamond Offshore Common Stock is not then listed on the New
York Stock Exchange, as reported by the principal securities
exchange or interdealer quotation system on which the Diamond
Offshore Common Stock is then traded.
"common stock" includes any stock of any class of
capital stock which has no preference in respect of dividends
or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
issuer thereof and which is not subject to redemption by the
issuer thereof.
"Determination Date" means, in the case of a dividend
or other distribution, including the issuance of rights,
options or warrants, to shareholders, the date fixed for the
determination of shareholders entitled to receive such dividend
or other distribution and, in the case of a tender offer, the
last time that tenders could have been made pursuant to such
tender offer.
-2-
"Diamond Offshore" means Diamond Offshore Drilling,
Inc., a Delaware corporation and a Subsidiary of the Company.
"Diamond Offshore Common Stock" means the Common
Stock, $.01 par value per share, of Diamond Offshore authorized
at the date of this instrument as originally executed. Subject
to the provisions of Section 4.11 of this Third Supplemental
Indenture, shares issuable on exchange of Notes shall include
only shares of Common Stock or shares of any class or classes
of common stock resulting from any reclassification or
reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the
shares so issuable on exchange of Notes shall include shares of
all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all
such classes resulting from all such reclassifications.
"Excess Purchase Payment" means the excess, if any,
of (i) the amount of cash plus the fair market value (as
determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) of any non-
cash consideration required to be paid with respect to one
share of Diamond Offshore Common Stock acquired or to be
acquired in a tender offer made by Diamond Offshore or any
subsidiary of Diamond Offshore for all or any portion of the
Diamond Offshore Common Stock over (ii) the current market
price per share as defined in Section 4.4(7) for purposes of
Section 4.4(6).
"Exchange Rate" has the meaning set forth in Section
4.1 of this Third Supplemental Indenture.
"Market Capitalization" means, with respect to a
specified date, the product of (i) the current market price per
share (determined as provided in paragraph (7) of Section 4.4
of this Third Supplemental Indenture) of the Diamond Offshore
Common Stock as of such date times (ii) the number of shares of
Diamond Offshore Common Stock outstanding on such date.
"Notes" means any Debt Securities of the series of
Debt Securities entitled "3_% Exchangeable Subordinated Notes
due 2007" created by this Third Supplemental Indenture.
"Quotation Agent" means the Trustee and its
successors or substitutes.
"Trading Day" means any day on which the Diamond
Offshore Common Stock (i) is not suspended from trading on the
principal securities exchange or interdealer quotation system
on which it is traded at the close of business and (ii) has
traded at least once on such principal securities exchange or
interdealer quotation system.
2. Form of Notes.
-3-
2.1. The Notes shall be in the form set forth in
this Section.
2.2. Form of Face of Notes.
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT --
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
LOEWS CORPORATION
3_% EXCHANGEABLE SUBORDINATED NOTE DUE 2007
No. _____________ $_____
CUSIP NO. - ________________
LOEWS CORPORATION, a corporation duly organized and
existing under the laws of Delaware (herein called the
"Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to _______________, or
registered assigns, the principal sum of _____________ Dollars
($_____) on September 15, 2007 and to pay interest thereon,
from September 19, 1997, or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, semi-annually on March 15 and September 15 in each year,
commencing March 15, 1998, at the rate of 3_% per annum, until
the principal hereof is due, and at the rate of 3_% per annum
on any overdue principal and premium, if any, and, to the
extent permitted by law, on any overdue interest. The interest
so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be
the March 1 or September 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular
Record Date and may either be
-4-
paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Company, notice whereof shall be
given to Holders of Notes not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided
in the Indenture. Payment of the principal of (and premium, if
any, on) this Note shall be made upon the surrender of this
Note at the office or agency of the Company as may be
designated by it for such purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United
States of America as at the time of payment shall be legal
tender for the payment of public and private debts, or at such
other offices or agencies as the Company may designate.
Payment of interest on this Note may be made by check mailed to
the address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof
by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this Note
to be duly executed under its corporate seal.
Dated:
LOEWS CORPORATION
By:______________________
Name:
Title:
Attest:
________________________
Name:
Title:
-5-
2.3 Form of Reverse of Note.
This Note is one of a duly authorized issue of debt
securities of the Company designated as its "3_% Exchangeable
Subordinated Notes due 2007" (herein called the "Notes"),
limited in aggregate principal amount to $1,150,000,000, issued
and to be issued under an Indenture, dated as of December 1,
1985, as supplemented by a First and Second Supplemental
Indenture, each dated as of February 18, 1997, and a Third
Supplemental Indenture dated as of September 16, 1997 (herein
called the "Indenture"), between the Company and The Chase
Manhattan Bank, as Trustee (herein called the "Trustee"), which
term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the holders of Senior Indebtedness
and the Holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered.
The Notes are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, at any time on
or after September 25, 2002, as a whole or in part, at the
election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount) if redeemed
during the 12-month period beginning September 15 of the years
indicated:
Year Redemption Price
2002......................................... 101.5625%
2003......................................... 101.2500%
2004......................................... 100.9375%
2005......................................... 100.6250%
2006......................................... 100.3125%
and on September 15, 2007 at a Redemption Price equal to 100%
of the principal amount, together in the case of any such
redemption with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such
Notes, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.
Subject to and upon compliance with the provisions of
the Indenture, and subject to the Company's rights to suspend
exchanges and to elect cash settlement as set forth below, the
Holder of this Note is entitled at any time on or after October
1, 1998 and before the close of
-6-
business on September 15, 2007 (or, in case this Note or a
portion hereof is called for redemption, then in respect of
this Note or such portion hereof, as the case may be, from
October 1, 1998 until and including, but (unless the Company
defaults in making the payment due upon redemption) not after,
the close of business on the Redemption Date)) to exchange this
Note (or any portion of the principal amount hereof that is an
integral multiple of $1,000), into fully paid and nonassessable
shares (calculated as to each exchange to the nearest 1/100 of
a share) of Common Stock, $.01 par value per share ("Diamond
Offshore Common Stock" of Diamond Offshore Drilling, Inc.
("Diamond Offshore") at the rate of 15.3757 shares of Diamond
Offshore Common Stock for each $1,000 principal amount of Note
(or at the current adjusted rate if an adjustment has been made
as provided in the Indenture) by surrender of this Note, duly
endorsed or assigned to the Company or in blank to the Company
at the office or agency of the Company in the Borough of
Manhattan, The City of New York or at any other office or
agency of the Company maintained for such purpose, accompanied
by written notice to the Company that the Holder hereof elects
to exchange this Note (or if less than the entire principal
amount hereof is to be exchanged, specifying the portion hereof
to be exchanged) and, in case such surrender shall be made
during the period from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date, also
accompanied by payment in New York Clearing House (next day)
funds (or other funds acceptable to the Company) of an amount
equal to the interest payable on such Interest Payment Date on
the principal amount of this Note then being exchanged,
provided that, if this Note or any portion hereof has been
called for redemption on a Redemption Date occurring during the
period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date and is surrendered for
exchange during such period, then the Holder of this Note who
exchanges this Note or any portion hereof during such period
will be entitled to receive the interest accruing on the
principal amount of this Note or such portion thereof so
called for redemption and then being exchanged from the
Interest Payment Date next preceding the date of such exchange
to such succeeding Interest Payment Date and shall not be
required to pay such interest upon surrender of this Note for
exchange. Subject to the provisions of the preceding sentence,
no payment or adjustment is to be made on exchange for interest
accrued hereon from the Interest Payment Date next preceding
the day of exchange, or for dividends on the Diamond Offshore
Common Stock issued on exchange hereof. Interest payable on
any Interest Payment Date in respect of this Note or any
portion hereof surrendered for exchange on or after such
Interest Payment Date shall be paid to the Holder of such Note
as of the Regular Record Date next preceding such Interest Payment
Date, notwithstanding the exercise of the right of exchange.
No fractions of shares or scrip representing fractions of
shares will be issued on exchange, but instead of any
fractional interest, the Company shall pay a cash adjustment as
provided in the Indenture or, at its option, the Company shall
round up to the next higher whole share.
The Exchange Rate is subject to adjustment as
provided in the Indenture. The Indenture also provides that in
case of certain consolidations or mergers to which Diamond
-7-
Offshore is a party or the conveyance, transfer, sale or lease
of all or substantially all of the properties and assets of
Diamond Offshore, the Indenture shall be amended, without the
consent of any Holders of Notes, so that this Note, if then
Outstanding, will be exchangeable thereafter, during the period
this Note shall be exchangeable as specified above, only into
the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance,
transfer, sale or lease (including any Diamond Offshore Common
Stock retainable) by a holder of the number of shares of
Diamond Offshore Common Stock into which this Note could have
been exchanged immediately prior to such consolidation, merger,
conveyance, transfer, sale or lease (assuming such holder of
Diamond Offshore Common Stock failed to exercise any rights of
election and received per share the kind and amount received
per share by a plurality of non-electing shares and further
assuming, if such consolidation, merger, conveyance, transfer,
sale or lease is prior to October 1, 1998 that this Note was
exchangeable immediately prior to the time of such occurrence
at the initial Exchange Rate specified above as adjusted from
the original issue date of the Notes to such time as provided
in the Indenture). No adjustment in the Exchange Rate will be
made until such adjustment would require an increase or
decrease of at least one percent of such rate, provided that
any adjustment that would otherwise be made will be carried
forward and taken into account in the computation of any
subsequent adjustment.
The Company may at any time suspend the right of
exchange attaching to the Notes, by giving one business day's
notice of such suspension to the Trustee (which notice may be
given by Diamond Offshore on behalf of the Company), provided
that, (i) the total period during which such right of exchange
is suspended shall not exceed 90 consecutive days at any one
time or a total of 120 days in any 12-month period; and (ii) no
such suspension may be in effect during the 14-day period
preceding any Redemption Date or the final maturity date of the
Notes. In addition, the right of Holders to exchange will be
suspended if the Company has irrevocably elected to pay in cash
the Average Market Value Amount in respect of all Notes
delivered for exchange prior to a Redemption Date or the final
maturity date in respect of the Notes.
At any time prior to September 2, 2007, and unless
the Company shall have previously elected in connection with a
call for redemption or at maturity to pay in cash the Average
Market Value Amount upon any exchange prior to the applicable
Redemption Date or final maturity date, as set forth below, the
Company may elect to make a cash settlement in respect of any
Note surrendered for exchange by delivering notice thereof to
the tendering Holder not more than five Trading Days after such
Note is surrendered for exchange. Such cash settlement shall
be in an amount, per $1,000 principal amount of Notes delivered
for exchange, equal to the greater of (A) $1,000 and (B) the
product of (i) the then-prevailing Exchange Rate and (ii) the
average of the Closing Price of the Diamond Offshore Common
Stock on the five Trading Days commencing two Trading Days
after delivery by the Company of such notice to such Holder.
The Company will pay such cash settlement amount as promptly as
practicable
-8-
after the completion of such five Trading Day period.
The Company may elect, in connection with a
redemption of Notes or the final maturity of the Notes, to
satisfy its obligations to Holders who elect to exchange their
Notes for Diamond Offshore Common Stock by cash payment of the
Average Market Value Amount. If the Company makes such an
election, Holders of Notes will no longer be entitled to
receive Diamond Offshore Common Stock in exchange for their
Notes. The Company may make such an election, in respect of
any Notes to be redeemed on a Redemption Date or repaid on the
final maturity date, by giving an irrevocable notice thereof to
the Holders not later than the 35th Trading Day prior to such
Redemption Date or final maturity date, in which case the
Company will be obligated to pay the Average Market Value
Amount in respect of all Notes to be redeemed or repaid on such
Redemption Date or final maturity date to Holders who elect to
exchange their Notes for Diamond Offshore Common Stock. If
such notice is delivered in connection with a Redemption Date,
it shall be required to be given not later than 35 Trading Days
prior to the Redemption Date.
[IF NOT A GLOBAL SECURITY INSERT -- In the event of
redemption or exchange of this Note in part only, a new Note or
Notes for the unredeemed or unexchanged portion hereof will be
issued in the name of the Holder hereof.]
[IF A GLOBAL SECURITY INSERT -- In the event of a
deposit or withdrawal of an interest in this Note (including
upon an exchange, transfer, redemption or exchange of this Note
in part only), the Security Registrar, upon receipt of notice
of such event from the Depositary's custodian for this Note,
shall make an adjustment on its records to reflect an increase
or decrease of the Outstanding principal amount of this Note
resulting from such deposit or withdrawal, as the case may be.]
The indebtedness evidenced by this Note is, to the
extent and in the manner provided in the Indenture, subordinate
and subject in right of payment to the prior payment in full of
all Senior Indebtedness of the Company, and this Note is issued
subject to such provisions of the Indenture with respect
thereto. Each Holder of this Note, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact
for any and all such purposes.
If an Event of Default shall occur and be continuing,
the principal of all the Notes may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights under
the Indenture of the Holders of Debt Securities issued
thereunder at any time by the
-9-
Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Outstanding Debt Securities
affected thereby. The Indenture also contains provisions
permitting the Holders of specified percentages in principal
amount of the Notes at the time Outstanding, on behalf of the
Holders of all the Notes, to waive compliance by the Company
with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued in exchange herefor
or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note or such other Note.
No reference herein to the Indenture and no provision
of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on
this Note at the times, places and rate, and in the coin or
currency, herein prescribed or to exchange this Note for
Diamond Offshore Common Stock or cash as and when provided in
the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of Notes is
registrable on the Note Register upon surrender of a Note for
registration of transfer at the office or agency of the Company
in the Borough of Manhattan, The City of New York, and at such
other offices or agencies as the Company may designate, duly
endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder thereof or his attorney duly
authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form
without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes are exchangeable
for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to recover any tax or other
governmental charge payable in connection therewith.
Prior to due presentation of a Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name such Note is registered, as the owner thereof for
all purposes, whether or not such Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN
-10-
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
2.4 Form of Trustee's Certificate of Authentication.
This is one of the Notes referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:________________________
Authorized Signatory
2.5 Form of Exchange Notice.
EXCHANGE NOTICE
The undersigned Holder of this Note hereby
irrevocably exercises the option to exchange this Note, or any
portion of the principal amount hereof (which is an integral
multiple of $1,000) below designated, into shares of Common
Stock of Diamond Offshore Drilling, Inc. in accordance with the
terms of the Indenture (including the rights of the Company to
elect cash settlement) referred to in this Note, and directs
that such shares, together with a check in payment for any
fractional share, or a check in payment of the appropriate cash
settlement amount, if applicable, and any Notes representing any
unexchanged principal amount hereof, be delivered to and, in the
case of shares, be registered in the name of the undersigned
unless a different name has been indicated below. If such shares
of Common Stock or Notes are to be registered in the name of a
Person other than the undersigned, the undersigned will pay all
transfer taxes and other governmental charges payable with respect
thereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Note.
Dated: ____________________
________________________
Signature
-11-
If shares or Notes are to be If only a portion of the Notes
registered in the name of a is to be exchanged, please
Person other than the Holder, indicate:
please print such Person's
name and address: 1. Principal amount to be
exchanged:
$_____________
_____________________________
Name 2. Principal amount and
denomination of Notes
representing unexchanged
principal amount to be
issued:
_____________________________
Address
Amount: $________
Denominations: $_________
_____________________________ (any integral multiple of
Social Security or other $1,000)
Taxpayer Identification
Number, if any
Signature must be guaranteed by an eligible Guarantor
Institution (banks, stockbrokers, savings and loan associations
and credit unions) with membership in an approved signature
medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if cash or Common Stock is to be
delivered other than to, and in the name of, the registered
Holder.
[Signature Guarantee]
3. Title and Terms.
There shall be a series of Debt Securities designated
as the "3_% Exchangeable Subordinated Notes due 2007" of the
Company. Their Stated Maturity shall be September 15, 2007 and
they shall bear interest at the rate of 3_% per annum, from
September 19, 1997 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as
the case may be, payable semi-annually on March 15 and
September 15, commencing March 15, 1998 until the principal
thereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the Person in whose name
the Notes (or one or more Predecessor Securities) are registered
at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or
-12-
September 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Third Supplemental
Indenture is limited to $1,150,000,000, except for Notes
authenticated and delivered upon registration or transfer of,
or in exchange for, or in lieu of, other Notes pursuant to
Section 304, 305, 306, 906 or 1107 of the Indenture.
The Notes shall be redeemable at the option of the
Company and exchangeable into shares of Diamond Offshore Common
Stock at the option of the Holder, subject to the Company's
right to suspend exchanges and to elect cash settlement
(including by payment of the Average Market Value Amount in
connection with a redemption of Notes or final maturity of the
Notes), in each case in accordance with the terms set forth in
the form of Note and in this Third Supplemental Indenture.
The Securities of this series shall not be subject to
a sinking fund.
The Notes of this series are not subject to
defeasance at the option of the Company pursuant to Article
Fifteen of the Indenture.
4. Exchange of Notes.
4.1 Exchange Privilege and Exchange Rate; Suspension
of Exchanges; Cash Settlement.
Subject to and upon compliance with the provisions of
this Section, at the option of the Holder thereof, any Note or
any portion which is $1,000 or an integral multiple thereof may
be exchanged into fully paid and nonassessable shares
(calculated as to each exchange to the nearest 1/100th of a
share) of Diamond Offshore Common Stock at the Exchange Rate,
determined as hereinafter provided, in effect at the time of
exchange. Such exchange right shall commence on October 1,
1998 and shall expire at the close of business on September 15,
2007. In case a Note or portion thereof is called for
redemption at the election of the Company, such exchange right
in respect of the Note, or portion thereof, so called shall
expire at the close of business on the Redemption Date unless
the Company defaults in making the payment due upon redemption.
The rate at which shares of Common Stock shall be
delivered upon exchange (herein called the "Exchange Rate")
shall be initially 15.3757 shares of Diamond Offshore Common
Stock for each $1,000 principal amount of Notes. The Exchange
Rate shall be adjusted in certain instances as provided in this
Section 4.
The Company may at any time suspend the right of
exchange attaching to the
-13-
Notes, by giving one business day's notice of such suspension
to the Trustee (which notice may be given by Diamond Offshore
on behalf of the Company), provided that, (i) the total period
during which such right of exchange is suspended shall not
exceed 90 consecutive days at any one time or a total of 120
days in any 12-month period; and (ii) no such suspension may be
in effect during the 14-day period preceding any Redemption
Date or the final maturity date of the Notes. In addition, the
right of Holders to exchange will be suspended if the Company
has irrevocably elected to pay in cash the Average Market Value
Amount in respect of all Notes delivered for exchange prior to
Redemption Date or final maturity date in respect of the Notes,
as provided in the Notes.
At any time prior to September 2, 2007, and unless
the Company shall have previously elected in connection with a
call for redemption or at maturity to pay in cash the Average
Market Value Amount upon any exchange prior to the applicable
Redemption Date or final maturity date, as set forth below, the
Company may elect to make a cash settlement in respect of any
Note surrendered for exchange by delivering notice thereof to
the tendering Holder not more than five Trading Days after such
Note is surrendered for exchange. Such cash settlement shall
be in an amount, per $1,000 principal amount of Notes delivered
for exchange, equal to the greater of (A) $1,000 and (B) the
product of (i) the then-prevailing Exchange Rate and (ii) the
average of the Closing Price of the Diamond Offshore Common
Stock on the five Trading Days commencing two Trading Days
after delivery by the Company of such notice to such Holder.
The Company will pay such cash settlement amount as promptly as
practicable after the completion of such five Trading Day
period.
4.2. Exercise of Exchange Privilege.
In order to exercise the exchange privilege, the
Holder of any Note to be exchanged shall surrender such Note,
duly endorsed or assigned to the Company or in blank, at any
office or agency of the Company maintained for that purpose
pursuant to Section 4.7 of this Third Supplemental Indenture,
accompanied by a duly signed exchange notice substantially in
the form provided in Section 2.5 of this Third Supplemental
Indenture, stating that the Holder elects to exchange such Note
or, if less than the entire principal amount thereof is to be
exchanged, the portion thereof to be exchanged. Each Note
surrendered for exchange (in whole or in part) during the
period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except in the
case of any Note or portion thereof which has been called for
redemption on a Redemption Date occurring within such period)
be accompanied by payment in New York Clearing House (next day)
funds (or other funds acceptable to the Company) of an amount
equal to the interest payable on such Interest Payment Date on
the principal amount of such Note (or portion thereof, as the
case may be) being surrendered for exchange. The interest so
payable on any Interest Payment Date with respect to any Note
(or portion thereof, if applicable) which has been called for
redemption on a Redemption Date occurring during the period
from the close of
-14-
business on the Regular Record Date next preceding such
Interest Payment Date to the opening of business on such
Interest Payment Date, which Note (or portion thereof, if
applicable) so called for redemption is surrendered for
exchange (in whole or in part) prior to such Redemption Date,
shall be paid upon such exchange to the Holder of such Note
(or portion thereof) as of the exchange date in an amount
equal to the interest that would have been payable on the
principal amount of such Note (or portion thereof) so called
for redemption and being exchanged if such principal amount
had been exchanged as of the close of business on such Interest
Payment Date. The interest so payable on any Interest Payment
Date in respect of any Note (or portion thereof, as the case
may be) which has not been called for redemption on a Redemption
Date occurring during the period from the close of business on
the Regular Record Date next preceding such Interest Payment Date
to the opening of business on such Interest Payment Date, which
Note (or portion thereof, as the case may be) not so called for
redemption is surrendered for exchange (in whole or in part)
during such period, shall be paid to the Holder of such Note as
of such Regular Record Date. Interest payable on any Interest
Payment Date in respect of any Note surrendered for exchange on
or after such Interest Payment Date shall be paid to the Holder
of such Note as of the Regular Record Date next preceding such
Interest Payment Date, notwithstanding the exercise of the right
of exchange. Except as provided in this paragraph, no cash payment
or adjustment shall be made upon any exchange on account of any
interest accrued from the Interest Payment Date next preceding the
exchange date in respect of any Note (or part thereof, as the
case may be) surrendered for exchange, or on account of any
dividends on the Diamond Offshore Common Stock issued upon
exchange.
Notes shall be deemed to have been exchanged
immediately prior to the close of business on the day of
surrender of such Notes for exchange in accordance with the
foregoing provisions, and at such time the rights of the
Holders of such Notes as Holders shall cease, and the Person or
Persons entitled to receive the Diamond Offshore Common Stock
issuable upon exchange shall be treated for all purposes as the
record holder or holders of such Diamond Offshore Common Stock
at such time. Within five Trading Days of the exchange date,
the Company shall issue and deliver to the Trustee, for
delivery to the Holder, a certificate or certificates for the
number of full shares of Diamond Offshore Common Stock issuable
upon exchange, together with payment in lieu of any fraction of
a share, if any, as provided in Section 4.3 of this Third
Supplemental Indenture.
In the case of any Note which is exchanged in part
only, upon such exchange the Company shall execute and the
Trustee shall authenticate and deliver to the Holder thereof,
at the expense of the Company, a new Note or Notes of
authorized denominations in an aggregate principal amount equal
to the unexchanged portion of the principal amount of such
Note.
4.3. Fractions of Shares.
No fractional shares of Diamond Offshore Common Stock
shall be delivered upon
-15-
exchange of any Note or Notes. If more than one Note shall be
surrendered for exchange at one time by the same Holder, the
number of full shares which shall be issuable upon exchange
thereof shall be computed on the basis of the aggregate
principal amount of the Notes (or specified portions thereof)
so surrendered. Instead of any fractional share of Diamond
Offshore Common Stock which would otherwise be issuable upon
exchange of any Note or Notes (or specified portions thereof),
the Company shall calculate and pay a cash adjustment in
respect of such fraction (calculated to the nearest 1/100th of
a share) in an amount equal to the same fraction of the Closing
Price at the close of business on the day of exchange (or, if
such day is not a Trading Day, on the Trading Day immediately
preceding such day), or at the Company's option, the Company
shall round up to the next higher whole share.
4.4. Adjustment of Exchange Rate.
The Exchange Rate shall be subject to adjustments
from time to time as follows:
(1) In case Diamond Offshore shall pay or make a
dividend or other distribution on Diamond Offshore Common Stock
exclusively in Diamond Offshore Common Stock or shall pay or make
a dividend or other distribution on any other class of capital
stock of Diamond Offshore which dividend or distribution includes
Diamond Offshore Common Stock, the Exchange Rate in effect at the
opening of business on the day next following the Determination Date
of such dividend or other distribution shall be increased by dividing
such Exchange Rate by a fraction of which the numerator shall be the
number of shares of Diamond Offshore Common Stock outstanding
at the close of business on such Determination Date and the
denominator shall be the sum of such number of shares and the
total number of shares constituting such dividend or other
distribution, such increase to become effective immediately
after the opening of business on the day next following such
Determination Date. For the purposes of this paragraph (1),
the number of shares of Diamond Offshore Common Stock at any
time outstanding shall not include shares held in the treasury
of Diamond Offshore but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of
shares of Diamond Offshore Common Stock.
(2) Subject to the last sentence of paragraph (8) of
this Section, in case Diamond Offshore shall pay or make a
dividend or other distribution on Diamond Offshore Common Stock
consisting exclusively of, or shall otherwise issue to all holders
of Diamond Offshore Common Stock, rights, warrants or options
entitling the holders thereof to subscribe for or purchase shares
of Diamond Offshore Common Stock at a price per share less than the
current market price per share (determined as provided in
paragraph (7) of this Section 4.4) of the Diamond Offshore
Common Stock on the Determination Date, the Exchange Rate in effect
at the opening of business on the day following such Determination
Date shall be increased by dividing such Exchange Rate by a fraction
of which the numerator shall be the number of shares of Diamond
Offshore Common Stock outstanding at the close of business on such
Determination Date plus the number of shares of Diamond
Offshore Common Stock which the aggregate of the
-16-
offering price of the total number of shares of Diamond
Offshore Common Stock so offered for subscription or purchase
would purchase at such current market price and the denominator
shall be the number of shares of Diamond Offshore Common Stock
outstanding at the close of business on such Determination Date
plus the number of shares of Diamond Offshore Common Stock so
offered for subscription or purchase, such increase to become
effective immediately after the opening of business on the day
following such Determination Date. For the purposes of this
paragraph (2), the number of shares of Diamond Offshore Common
Stock at any time outstanding shall not include shares held in
the treasury of Diamond Offshore but shall include shares
issuable in respect of scrip certificates issued in lieu of
fractions of shares of Diamond Offshore Common Stock.
(3) In case outstanding shares of Diamond Offshore
Common Stock shall be subdivided into a greater number of
shares of Diamond Offshore Common Stock, the Exchange Rate in
effect at the opening of business on the day following the day
upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case outstanding
shares of Diamond Offshore Common Stock shall each be combined
into a smaller number of shares of Diamond Offshore Common
Stock, the Exchange Rate in effect at the opening of business
on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such
increase or reduction, as the case may be, to become effective
immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes
effective.
(4) Subject to the last sentence of this paragraph (4)
and to the last sentence of paragraph (8) of this Section, in case
Diamond Offshore shall, by dividend or otherwise, distribute to all
holders of Diamond Offshore Common Stock evidences of its
indebtedness, shares of any class of capital stock, securities,
cash or property (excluding any rights, warrants or options referred
to in paragraph (2) of this Section 4.4, any dividend or distribution
paid exclusively in cash and any dividend or distribution referred to
in paragraph (1) of this Section 4.4), the Exchange Rate shall be
increased so that the same shall equal the rate determined by
dividing the Exchange Rate in effect immediately prior to the
effectiveness of the Exchange Rate increase contemplated by
this paragraph (4) by a fraction of which the numerator shall
be the current market price per share (determined as provided
in paragraph (7) of this Section) of the Diamond Offshore
Common Stock on the date of such effectiveness less the fair
market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and
described in a Board Resolution and shall, in the case of
securities being distributed for which prior thereto there is
an actual or when-issued trading market, be no less than the
value determined by reference to the average of the closing
prices in such market over the period specified in the
succeeding sentence), on the date of such effectiveness, of the
portion of the evidences of indebtedness, shares of capital
stock, securities, cash and property so distributed applicable
to one share of Diamond Offshore Common Stock and the
denominator shall be such current market price per share of the
Diamond Offshore Common Stock, such increase to become
-17-
effective immediately prior to the opening of business on the
day next following the later of (a) the date fixed for the
payment of such distribution and (b) the date 20 days after the
notice relating to such distribution is given pursuant to
Section 4.6 (such later date of (a) and (b) being referred to
as the "Reference Date"). For purposes of this paragraph (4),
any dividend or distribution that includes shares of Diamond
Offshore Common Stock or rights, warrants or options to
subscribe for or purchase shares of Diamond Offshore Common
stock shall be deemed instead to be (a) a dividend or
distribution of the evidences of indebtedness, cash, property,
shares of capital stock or securities other than such shares of
Diamond Offshore Common Stock or such rights, warrants or
options (making any Exchange Rate increase required by this
paragraph (4)) immediately followed by (b) a dividend or
distribution of such shares of Diamond Offshore Common Stock or
such rights, warrants or options (making any further Exchange
Rate increase required by paragraph (1) or (2) of this Section
4.4, except (i) the Reference Date of such dividend or
distribution as defined in this paragraph (4) shall be
substituted as "the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution", "the date fixed for the determination of
stockholders entitled to receive such rights, warrants or
options" and "the date fixed for such determination" within the
meaning of paragraphs (1) and (2) of this Section 4.4 and (ii)
any shares of Diamond Offshore Common Stock included in such
dividend or distribution shall not be deemed "outstanding at
the close of business on the date fixed for such determination"
within the meaning of paragraph (1) of this Section 4.4).
(5) In case Diamond Offshore shall, by dividend or
otherwise, make a Cash Distribution in an aggregate amount
that, combined together with (i) the aggregate amount of any
other Cash Distributions made within the 12 months preceding
the date of payment of such distribution in respect of which no
adjustment pursuant to this paragraph (5) has been made and
(ii) any Excess Purchase Payment made within the 12 months
preceding the date of such distribution and in respect of which
no adjustment has been made pursuant to paragraph (6) of this
Section 4.4, exceeds 12.5% of Diamond Offshore's Common Stock
Market Capitalization on the Determination Date for such Cash
Distribution, then, and in each such case, immediately after
the close of business on the Determination Date for such Cash
Distribution, the Exchange Rate shall be adjusted so that the
same shall equal the rate determined by dividing the Exchange
Rate in effect immediately prior to the close of business on
such Determination Date by a fraction (a) the numerator of
which shall be equal to the current market price per share
(determined as provided in paragraph (7) of this Section) of
the Diamond Offshore Common Stock on such Determination Date
less an amount equal to the quotient of (1) the amount of such
excess (over 12.5% of Diamond Offshore's Common Stock Market
Capitalization as described above) divided by (2) the number
of shares of Diamond Offshore Common Stock outstanding on such
Determination Date and (b) the denominator of which shall be
equal to the current market price per share (determined as
provided in paragraph (7) of this Section 4.4) of the Diamond
Offshore Common Stock on such Determination Date.
(6) In case Diamond Offshore or any subsidiary of
Diamond Offshore shall make
-18-
an Excess Purchase Payment in an aggregate amount that,
combined together with (i) the aggregate amount of any other
Excess Purchase Payments made by Diamond Offshore or any
subsidiary of Diamond Offshore within the 12 months preceding
such Excess Purchase Payment in respect of which no adjustment
pursuant to this paragraph (6) has been made and (ii) the
aggregate amount of any Cash Distributions made within the 12
months preceding such Excess Purchase Payment in respect of
which no adjustment pursuant to paragraph (5) of this Section
4.4 has been made, exceeds 12.5% of Diamond Offshore's Market
Capitalization as of the Determination Date, then, and in each
such case, immediately prior to the opening of business on the
day after the tender offer in respect of which such Excess
Purchase Payment is to be made expires, the Exchange Rate shall
be adjusted so that the same shall equal the rate determined by
dividing the Exchange Rate in effect immediately prior to the
close of business on the Determination Date for such tender
offer by a fraction (a) the numerator of which shall be equal
to (A) the product of (I) the number of shares of Diamond
Offshore Common Stock outstanding (including any tendered
shares) at such Determination Date multiplied by (II) the
current market price per share (determined as provided in
paragraph (7) of this Section) of the Diamond Offshore Common
Stock less (B) the amount of such excess (over 12.5% of Diamond
Offshore's Common Stock Market Capitalization as described above)
and (b) the denominator of which shall be equal to the product of
(X) the current market price per share of the Diamond Offshore
Common Stock (determined as provided in paragraph (7) of this
Section 4.4) as of such Determination Date multiplied by (Y) the
number of shares of Diamond Offshore Common Stock outstanding
(including any tendered shares) as of the Determination Date
less the number of all shares validly tendered and not
withdrawn as of the Determination Date.
(7) For the purpose of any computation under this
paragraph and paragraphs (2), (4) and (5) of this Section 4.4,
the current market price per share of Diamond Offshore Common
Stock on any date in question shall be deemed to be the average
of the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 20 Trading
Days before, and ending not later than, the date in question;
provided, however, that (i) if the "ex" date (as hereinafter
defined) for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the
Exchange Rate pursuant to paragraph (1), (2), (3), (4), (5) or
(6) above ("Other Event") occurs on or after the 20th Trading
Day prior to the date in question and prior to the "ex" date
for the issuance or distribution requiring such computation
(the "Current Event"), the Closing Price for each Trading Day
prior to the "ex" date for such Other Event shall be adjusted
by dividing such Closing Price by the same fraction by which
the Exchange Rate is so required to be adjusted as a result of
such Other Event, (ii) if the "ex" date for any Other Event
occurs after the "ex" date for the Current Event and on or
prior to the date in question, the Closing Price for each
Trading Day on and after the "ex" date for such Other Event
shall be adjusted by dividing such Closing Price by the
reciprocal of the fraction by which the Exchange Rate is so
required to be adjusted as a result of such Other Event, (iii)
if the "ex" date for any Other Event occurs on the "ex" date
for the Current Event, one of those events shall be deemed for
purposes of clauses (i) and (ii) of this proviso to have an
"ex" date occurring prior to the "ex" date for the other event,
and (iv) if the "ex" date for the
-19-
Current Event is on or prior to the date in question, after
taking into account any adjustment required pursuant to clause
(ii) of this proviso, the Closing Price for each Trading Day on
or after such "ex" date shall be adjusted by adding thereto the
amount of any cash and the fair market value on the date in
question (as determined in good faith by the Board of Directors
in a manner consistent with any determination of such value for
purposes of paragraph (4) or (5) of this Section 4.4, whose
determination shall be conclusive and described in a Board
Resolution) of the portion of the rights, warrants, options,
evidences of indebtedness, shares of capital stock, securities,
cash or property being distributed applicable to one share of
Diamond Offshore Common Stock. For the purpose of any
computation under paragraph (6) of this Section 4.4, the
current market price per share of Diamond Offshore Common Stock
on any date in question shall be deemed to be the average of
the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing on or after the latest (the
"Commencement Date") of (i) the date 20 Trading Days before the
date in question, (ii) the date of commencement of the tender
or exchange offer requiring such computation and (iii) the date
of the last amendment, if any, of such tender or exchange offer
involving a change in the maximum number of shares for which
tenders are sought or a change in the consideration offered,
and ending not later than the date of the Expiration Time of
such tender or exchange offer (or, if such Expiration Time
occurs before the close of trading on a Trading Day, not later
than the Trading Day immediately preceding the date of such
Expiration Time); provided, however, that if the "ex" date for
any Other Event (other than the tender or exchange offer
requiring such computation) occurs on or after the Commencement
Date and on or prior to the date of the Expiration Time for the
tender or exchange offer requiring such computation, the
Closing Price for each Trading Day prior to the "ex" date for
such Other Event shall be adjusted by dividing such Closing
Price by the same fraction by which the Exchange Rate is so
required to be adjusted as a result of such other event. For
purposes of this paragraph, the term "ex" date, (i) when used
with respect to any issuance or distribution, means the first
date on which the Diamond Offshore Common Stock trades regular
way on the relevant exchange or in the relevant market from
which the Closing Price was obtained without the right to
receive such issuance or distribution, (ii) when used with
respect to any subdivision or combination of shares of Diamond
Offshore Common Stock, means the first date on which the
Diamond Offshore Common Stock trades regular way on such
exchange or in such market after the time at which such
subdivision or combination becomes effective, and (iii) when
used with respect to any tender or exchange offer means the
first date on which the Diamond Offshore Common Stock trades
regular way on such exchange or in such market after the
Expiration Time of such tender or exchange offer.
(8) The reclassification of Diamond Offshore Common
Stock into securities other than Diamond Offshore Common Stock
(other than any reclassification upon a consolidation or merger
to which Section 4.11 of the Supplemental Indenture applies)
shall be deemed to involve (a) a distribution of such
securities other than Diamond Offshore Common Stock to all
holders of Diamond Offshore Common Stock (and the effective
date of such reclassification shall be deemed to be the
Determination Date), and (b) a subdivision or
-20-
combination, as the case may be, of the number of shares of
Diamond Offshore Common Stock outstanding immediately prior to
such reclassification into the number of shares of Diamond
Offshore Common Stock outstanding immediately thereafter (and
the effective date of such reclassification shall be deemed to
be "the day upon which such subdivision becomes effective" or
"the day upon which such combination becomes effective", as the
case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of paragraph
(3) of this Section 4.4). Rights or warrants issued by Diamond
Offshore to all holders of Diamond Offshore Common Stock
entitling the holders thereof to subscribe for or purchase
shares of Diamond Offshore Common Stock, which rights or
warrants (i) are deemed to be transferred with such shares of
Diamond Offshore Common Stock, (ii) are not exercisable and
(iii) are also issued in respect of future issuances of Diamond
Offshore Common Stock, in each case in clauses (i) through
(iii) until the occurrence of a specified event or events
("Trigger Event"), shall for purposes of this Section 4.4 not
be deemed issued until the occurrence of the earliest Trigger
Event.
(9) Diamond Offshore may make such increases in the
Exchange Rate, in addition to those required by paragraphs (1),
(2), (3), (4), (5) and (6) of this Section, as it considers to
be advisable in order that any event treated for Federal income
tax purposes as a dividend of stock or stock rights shall not
be taxable to the recipients.
(10) No adjustment in the Exchange Rate shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Exchange Rate; provided,
however, that any adjustments which by reason of this paragraph
(10) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
4.5 Notice of Adjustments of Exchange Rate.
Whenever the Exchange Rate is adjusted as provided in
Section 4.4 of this Third Supplemental Indenture:
(1) the Company shall compute the adjusted Exchange
Rate in accordance with Section 4.4 and shall prepare a
certificate signed by either the chief financial officer,
the treasurer or the controller of the Company setting
forth the adjusted Exchange Rate and showing in reasonable
detail the facts upon which such adjustment is based, and
such certificate shall promptly be filed with the Trustee
and at each office or agency maintained for the purpose of
exchange of Notes pursuant to Section 4.7 of this Third
Supplemental Indenture; and
(2) a notice stating that the Exchange Rate has been
adjusted and setting forth the adjusted Exchange Rate
shall forthwith be prepared, and as soon as practicable
after it is prepared, such notice shall be provided by the
Company to the Trustee and to all Holders. Unless and
until the Trustee receives such notice, it need not
inquire into whether any
-21-
adjustment of the Exchange Rate is required and may assume
that no such adjustment has been, or is required to be,
made.
4.6. Notice of Certain Corporate Action.
In case:
(a) Diamond Offshore shall declare a dividend (or
any other distribution) on Diamond Offshore Common Stock
payable (i) otherwise than exclusively in cash or (ii)
exclusively in cash in an amount that would require any
adjustment pursuant to Section 4.4 of this Third
Supplemental Indenture; or
(b) Diamond Offshore shall authorize the granting to
the holders of Diamond Offshore Common Stock of rights,
options or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other
rights; or
(c) of any reclassification of Diamond Offshore
Common Stock, or of any consolidation, merger or share
exchange to which Diamond Offshore is a party and for
which approval of any shareholders of Diamond Offshore is
required, or of the conveyance, sale, transfer or lease of
all or substantially all of the assets of Diamond
Offshore; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of Diamond Offshore; or
(e) Diamond Offshore or any subsidiary of Diamond
Offshore shall commence a tender offer for all or a
portion of the outstanding shares of Diamond Offshore
Common Stock (or shall amend any such tender offer);
then the Company shall cause to be filed with the Trustee and
at each office or agency maintained for the purpose of
conversion of Notes pursuant to Section 4.7 of this Third
Supplemental Indenture, and shall cause to be provided to all
Holders, by the later of (i) as soon as reasonably practicable
after the Company has become aware of such matter or (ii) at
least 20 days (or 10 days in any case specified in clause (a)
or (b) above) prior to the applicable record, expiration or
effective date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a
record is not to be taken, the date as of which the holders of
Diamond Offshore Common Stock of record to be entitled to such
dividend, distribution, rights, options or warrants are to be
determined, (y) the date on which the right to make tenders
under such tender offer expires or (z) the date on which such
reclassification, consolidation, merger, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it
-22-
is expected that holders of Diamond Offshore Common Stock of
record shall be entitled to exchange their shares of Diamond
Offshore Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger,
conveyance, transfer, sale, lease, dissolution, liquidation or
winding up. Neither the failure to give such notice or the
notice referred to in the following paragraph nor any defect
therein shall affect the legality or validity of the
proceedings described in clauses (a) through (e) of this
Section 4.6.
The preceding paragraph to the contrary
notwithstanding, the Company shall cause to be filed at each
office or agency maintained for the purpose of exchange of
Notes pursuant to Section 4.7 of this Third Supplemental
Indenture, and shall cause to be provided to all Holders,
notice of any tender offer by Diamond Offshore or any
subsidiary of Diamond Offshore for all or any portion of the
Diamond Offshore Common Stock at or about the time that such
notice of tender offer is provided to the public generally.
4.7. Maintenance of Office or Agency.
The Company will maintain in the Borough of
Manhattan, The City of New York an office or agency where Notes
may be surrendered for exchange and where notices and demands
to or upon the Company in respect of the Notes and the
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof,
such surrenders may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such surrenders.
The Company may also from time to time designate one
or more other offices or agencies (in or outside the Borough of
Manhattan, The City of New York) where the Notes may be
presented or surrendered for such purpose and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such
purpose. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
4.8 Taxes on Exchanges.
Except as provided in the next sentence, the Company
will pay any and all taxes and duties that may be payable in
respect of the delivery of shares of Diamond Offshore Common
Stock pursuant hereto. The Company shall not, however, be
required to pay any tax or duty which may be payable in respect
of any transfer involved in the delivery of shares of Diamond
Offshore Common Stock in a name other than that of the Holder
of the Note or Notes
-23-
to be exchanged, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to
the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or
duty has been paid.
4.9. Covenant as to Diamond Offshore Common Stock.
The Company agrees that all shares of Diamond
Offshore Common Stock which may be delivered upon exchange of
Notes, upon such delivery, will have been duly authorized and
validly issued and will be fully paid and nonassessable and,
except as provided in Section 4.8 of this Third Supplemental
Indenture, the Company will pay all taxes, liens and charges
with respect to the issue thereof.
4.10. Cancellation of Exchanged Notes.
All Notes delivered for exchange shall be delivered
to the Trustee to be canceled by or at the direction of the
Trustee, which shall dispose of the same as provided in Section
309 of the Indenture.
4.11. Provision in Case of Consolidation, Merger or
Sale of Assets of Diamond Offshore.
In case of any consolidation of Diamond Offshore with
any other Person, any merger of Diamond Offshore into another
Person or of another Person into Diamond Offshore (other than a
merger which does not result in any reclassification, exchange,
exchange or cancellation of outstanding shares of Diamond
Offshore Common Stock) or any conveyance, sale, transfer or
lease of all or substantially all of the properties and assets
of Diamond Offshore, the Company shall execute and deliver to
the Trustee a supplemental indenture providing that the Holder
of each Note then Outstanding shall have the right thereafter,
during the period such Note shall be exchangeable, to exchange
such Note only into the kind and amount of Notes, cash and
other property receivable upon such consolidation, merger,
conveyance, sale, transfer or lease (including any Diamond
Offshore Common Stock retainable) by a holder of the number of
shares of Diamond Offshore Common Stock of the Company into
which such Note might have been exchanged immediately prior to
such consolidation, merger, conveyance, sale, transfer or
lease, (a) assuming such holder of Diamond Offshore Common
Stock (i) is not a Person with which Diamond Offshore
consolidated, into which Diamond Offshore merged or which
merged into Diamond Offshore or to which such conveyance, sale,
transfer or lease was made, as the case may be (a "Constituent
Person"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the
kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale,
transfer or lease (provided that if the kind or amount of
securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer, or lease is
not the same for each share of Diamond Offshore
-24-
Common Stock held immediately prior to such consolidation,
merger, conveyance, sale, transfer or lease by others than a
Constituent Person or an Affiliate thereof and in respect of
which such rights of election shall not have been exercised
("Non-electing Share"), then for the purpose of this Section
4.11 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale,
transfer or lease by the holders of each Non-electing Share
shall be deemed to be the kind and amount so receivable per
share by a plurality of the Non-electing Shares), and (b)
further assuming that, if such consolidation, merger,
conveyance, transfer, sale or lease occurs before the first
date on which Notes may be exchanged as provided herein, such
Note was exchangeable immediately prior to the time of such
occurrence at the initial Exchange Rate as adjusted from the
original issue date of the Notes to such time as provided
herein. Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent
as may be practicable to the adjustments provided for in this
Section 4. The above provisions of this Section 4.11 shall
similarly apply to successive consolidations, mergers,
conveyances, sales, transfers or leases. Notice of the
execution of such a supplemental indenture shall be given by
the Company to the Holder of each Note promptly upon such
execution. In this paragraph, "securities of the kind
receivable" upon such consolidation, merger, conveyance,
transfer, sale or lease by a holder of Diamond Offshore Common
Stock means securities that, among other things, are registered
and transferable under the Securities Act, and listed and
approved for quotation in all securities markets, in each case
to the same extent as such securities so receivable by a holder
of Diamond Offshore Common Stock.
Neither the Trustee nor any Paying Agent shall be
under any responsibility to determine the correctness of any
provisions contained in any such supplemental indenture
relating either to the kind or amount of shares of stock or
other securities or property or cash receivable by Holders upon
the exchange of their Notes after any such consolidation,
merger, conveyance, transfer, sale or lease or to any such
adjustment, but may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in
relying upon, an Opinion of Counsel with respect thereto, which
the Company shall cause to be furnished to the Trustee upon
request.
4.12. Responsibility of Trustee for Exchange
Provisions.
The Trustee, subject to the provisions of Section 601
of the Indenture, shall not at any time be under any duty or
responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Exchange Rate, or
with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be
entered into. The Trustee, in such capacity and subject to the
provisions of Section 601 of the Indenture, shall not be
accountable with respect to the validity or value (or the kind
or amount) of any Diamond Offshore Common Stock, or of any
other securities or property or cash, which may at any time be
issued or delivered upon the exchange of any Note; and it or
-25-
they do not make any representation with respect thereto. The
Trustee, in such capacity and subject to the provisions of
Section 601 of the Indenture, shall not be responsible for any
failure of the Company to make or calculate any cash payment or
to issue, transfer or deliver any shares of Diamond Offshore
Common Stock or share certificates or other securities or
property or cash upon the surrender of any Note for the purpose
of conversion; and the Trustee, subject to the provisions of
Section 601 of the Indenture, shall not be responsible for any
failure of the Company to comply with any of the covenants of
the Company contained in this Section.
4.13. Registration.
The Company will use its best efforts to effect or
cause to be effected all registrations with, and obtain all
approvals by, all governmental authorities that may be
necessary under any United States Federal or state law
(including the Securities Act, the Exchange Act and state
securities and Blue Sky laws) for the shares of Diamond
Offshore Common Stock issuable upon conversion of Notes to be
lawfully issued and delivered as provided herein, and
thereafter freely transferrable.
5. Miscellaneous.
(a) The Trustee accepts the trusts created by the
Indenture, as supplemented by this Third Supplemental
Indenture, and agrees to perform the same upon the terms and
conditions of the Indenture, as supplemented by this Third
Supplemental Indenture.
(b) The recitals contained herein shall be taken as
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Third
Supplemental Indenture.
(c) All covenants and agreements in this Third
Supplemental Indenture by the Company or the Trustee shall bind
its respective successors and assigns, whether so expressed or
not.
(d) In case any provisions in this Third
Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
(e) Nothing in this Third Supplemental Indenture,
express or implied, shall give to any Person, other than the
parties hereto and their successors under the Indenture and the
Holders of the Notes, any benefit or any legal or equitable
right, remedy or claim under the Indenture.
(f) If any provision hereof limits, qualifies or
conflicts with a provision of the
-26-
Trust Indenture Act of 1939, as may be amended from time to
time, that is required under such Act to be a part of and
govern this Third Supplemental Indenture, the latter provision
shall control. If any provision hereof modifies or excludes
any provision of such Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Third
Supplemental Indenture as so modified or excluded, as the case
may be.
(g) This Third Supplemental Indenture shall be
governed by and construed in accordance with the laws of the
State of New York.
(h) All provisions of this Third Supplemental
Indenture shall be deemed to be incorporated in, and made a
part of, the Indenture; and the Indenture, as supplemented by
this Third Supplemental Indenture, shall be read, taken and
construed as one and the same instrument. The provisions of
this Third Supplemental Indenture shall, subject to Section
5(f) hereof, supercede the provisions of the Indenture to the
extent the Indenture is inconsistent herewith.
_________________________
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same instrument.
-27-
IN WITNESS WHEREOF, the Company and the Trustee have
caused this Supplemental Indenture to be duly executed by their
respective officers thereunto duly authorized and the seal of
the Company and the Trustee duly attested to be hereunto
affixed all as of the day and year first above written.
LOEWS CORPORATION
[SEAL] By: /s/ Xxxxx X. Xxxxxx
----------------------------
Its: Vice President
THE CHASE MANHATTAN BANK
[SEAL] By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Its: Second Vice President
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 18th day of September, 1997, before me
personally came Xxxxxx X. Xxxxxxxx to me known, who, being by
me duly sworn, did depose and say that he resides at New York,
New York; that he is a Second Vice President of THE CHASE
MANHATTAN BANK, one of the banking corporations described
herein and that executed the above instrument; that he knows
the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
the Board of Directors of said corporation and that he signed
his name thereto by order of the Board of Directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year of this certificate
first above written.
[NOTARIAL SEAL] /s/ Kin Xx Xxx
-----------------------------
Notary Public
Kin Xx Xxx
Notary Public, State of New York
No. 01LE6031199
Qualified in New York County
Commission Expires Aug. 1, 0000
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the 18th day of September, 1997, before me
personally came Xxxxx Xxxxxx to me known, who, being by
me duly sworn, did depose and say that he resides at New York,
New York; that he is a Vice President of LOEWS CORPORATION, the
corporations described herein and that executed the above
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal;
that it was so affixed by the Board of Directors of said
corporation and that he signed his name thereto by order of the
Board of Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal the day and year of this certificate
first above written.
[NOTARIAL SEAL] /s/ Xxxxx X. Xxxxx
-------------------------
Notary Public
Xxxxx X. Xxxxx
Notary Public, State of New York
No. 4886691
Qualified in Nassau County
Commission Expires May 18, 1998
-30-
