================================================================================
FOURTH SUPPLEMENTAL INDENTURE
BETWEEN
TRANSOCEAN SEDCO FOREX INC.
AND
THE CHASE MANHATTAN BANK,
as Trustee
----------------------
MAY 11, 2001
================================================================================
TABLE OF CONTENTS
ARTICLE ONE THE 2021 DEBENTURES 1
SECTION 101 Designation of 2021 Debentures; Establishment of Form. 1
SECTION 102 Amount................................................ 1
SECTION 103 Interest.............................................. 1
SECTION 104 Additional Amounts.................................... 1
SECTION 105 Denominations......................................... 1
SECTION 106 Place of Payment...................................... 1
SECTION 107 Redemption............................................ 1
SECTION 108 Conversion............................................ 1
SECTION 109 Maturity.............................................. 1
SECTION 110 Repurchase............................................ 1
SECTION 111 Discharge of Liability on 2021 Debentures............. 1
SECTION 112 Other Terms of 2021 Debentures........................ 1
ARTICLE TWO AMENDMENTS TO THE INDENTURE 1
SECTION 201 Definitions........................................... 1
SECTION 202 Registration, Registration of Transfer and Exchange... 1
SECTION 203 Mutilated, Destroyed, Lost and Stolen Securities...... 1
SECTION 204 Payment of Interest; Interest Rights Preserved........ 1
SECTION 205 Satisfaction and Discharge of Indenture............... 1
SECTION 206 Discharge of Liability on Securities of Any Series.... 1
SECTION 207 Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................. 1
SECTION 208 Consolidation, Merger and Sale........................ 1
SECTION 209 Supplemental Indentures Without Consent of Holders.... 1
SECTION 210 Supplemental Indenture with Consent of Holder......... 1
SECTION 211 Maintenance of Office or Agency....................... 1
SECTION 212 Redemption............................................ 1
SECTION 213 Conversion, Repurchase................................ 1
SECTION 214 Amendment to Events of Default........................ 1
ARTICLE THREE MISCELLANEOUS PROVISIONS 1
SECTION 301 Integral Part......................................... 1
SECTION 302 General Definitions................................... 1
SECTION 303 Adoption, Ratification and Confirmation............... 1
SECTION 304 Counterparts.......................................... 1
SECTION 305 Governing Law......................................... 1
i
TRANSOCEAN SEDCO FOREX INC.
FOURTH SUPPLEMENTAL INDENTURE
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of May 11, 2001 (the "Fourth
Supplemental Indenture"), between Transocean Sedco Forex Inc. (formerly
Transocean Offshore Inc.), a Cayman Islands exempted company limited by shares
(the "Company"), and The Chase Manhattan Bank (formerly Texas Commerce Bank
National Association) (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of April 15, 1997 (as supplemented by the First
Supplemental Indenture thereto dated as of April 15, 1997, the Second
Supplemental Indenture thereto dated as of May 14, 1999, the Third Supplemental
Indenture thereto dated as of May 24, 2000 and this Fourth Supplemental
Indenture, the "Indenture"), providing for the issuance from time to time of one
or more series of the Company's Securities;
WHEREAS, Section 901(5) of the Indenture provides that the Company and the
Trustee may from time to time enter into one or more indentures supplemental
thereto to establish the form or terms of Securities of a new series;
WHEREAS, Section 901(8) of the Indenture provides that the Company and the
Trustee may from time to time enter into one or more indentures supplemental
thereto to make provision with respect to matters or questions arising under the
Indenture which do not adversely affect the interests of the Holders of
Securities of any series in any material respect;
WHEREAS, Sections 901(2) and 901(3) of the Indenture permit the execution
of supplemental indentures without the consent of any Holders to add to the
covenants of the Company for the benefit of, and to add any additional Events of
Default with respect to, all or any series of Securities;
WHEREAS, Section 901(4) of the Indenture permits the execution of
supplemental indentures without the consent of any Holders to change or
eliminate any of the provisions of the Indenture; provided that such change or
elimination does not adversely affect any outstanding Security of any series
created prior to the execution of such supplemental indenture;
WHEREAS, Section 301 of the Indenture provides that the Company may enter
into supplemental indentures to establish the terms and provisions of a series
of Securities issued pursuant to the Indenture;
WHEREAS, the Company desires to issue 1.5% Convertible Debentures due
May 15, 2021 (the "2021 Debentures"), a new series of Security the issuance of
which was authorized by or pursuant to resolution of the Board of Directors of
the Company;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in and
by this Fourth Supplemental Indenture to supplement and amend the Indenture
insofar as it will apply only to the 2021 Debentures in certain respects; and
WHEREAS, all things necessary have been done to make the 2021 Debentures,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Fourth Supplemental Indenture a valid agreement of the Company, in accordance
with their and its terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
all Holders of the 2021 Debentures as follows:
ARTICLE ONE
THE 0000 XXXXXXXXXX
XXXXXXX 101 Designation of 2021 Debentures; Establishment of Form.
There shall be a series of Securities designated "1.5% Convertible
Debentures Due May 15, 2021" of the Company (the "2021 Debentures"), and the
form thereof shall be substantially as set forth in Annex A hereto, which is
incorporated into and shall be deemed a part of this Fourth Supplemental
Indenture, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers of the Company executing such 2021 Debentures, as
evidenced by their execution of the 2021 Debentures.
The 2021 Debentures will initially be issued in permanent global form,
substantially in the form set forth in Annex A hereto (the "Global Securities"),
as a Book-Entry Security. Each Global Security shall represent such of the
Outstanding 2021 Debentures as shall be specified therein and shall provide that
it shall represent the aggregate amount of Outstanding 2021 Debentures from time
to time endorsed thereon and that the aggregate amount of Outstanding 2021
Debentures represented thereby may from time to time be reduced to reflect
exchanges and redemptions. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of Outstanding 2021
Debentures represented thereby shall be made by the Trustee in accordance with
written instructions or such other written form of instructions as is customary
for the Depositary, from the Depositary or its nominee on behalf of any Person
having the beneficial interest in the Global Security.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Paying Agent and
Conversion Agent with respect to the 2021 Debentures.
2
SECTION 102 Amount.
(a) The Trustee shall authenticate and deliver 2021 Debentures for original
issue in an aggregate Principal Amount of up to $400,000,000 upon Company Order
for the authentication and delivery of 2021 Debentures, without any further
action by the Company. The aggregate Principal Amount of 2021 Debentures that
may be authenticated and delivered under the Indenture may not exceed the amount
set forth in the foregoing sentence, except for 2021 Debentures authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other 2021 Debentures pursuant to Section 204, 304, 305, 306, 906 or 1107 of
the Indenture.
(b) The Company may not issue new 2021 Debentures to replace 2021
Debentures that it has paid or delivered to the Trustee for cancellation or that
any Holder has converted pursuant to Article Fourteen.
SECTION 103 Interest.
The 2021 Debentures shall bear interest at the rate set forth under the
caption "Interest" in the 2021 Debentures, commencing on the Issue Date of the
2021 Debentures. Interest on the 2021 Debentures shall be payable to the
persons in whose name the 2021 Debentures are registered at the close of
business on the Regular Record Date for such interest payment. The date from
which interest shall accrue for each 2021 Debenture shall be May 11, 2001. The
Interest Payment Dates on which interest on the 2021 Debentures shall be payable
are May 15 and November 15, commencing on November 15, 2001. The Regular Record
Dates for the interest payable on the 2021 Debentures on any Interest Payment
Date shall be May 1 or November 1, as the case may be, immediately preceding
such Interest Payment Date.
SECTION 104 Additional Amounts.
Additional Amounts with respect to the 2021 Debentures shall be payable in
accordance with the provisions and in the amounts set forth under the caption
"Tax Additional Amounts" in the 2021 Debentures and in accordance with the
provisions of the Indenture.
SECTION 105 Denominations.
The 2021 Debentures shall be in fully registered form without coupons in
denominations of $1,000 of Principal Amount or any integral multiple thereof.
SECTION 106 Place of Payment.
The Place of Payment for the 2021 Debentures and the place or places where
the principal of and interest on the 2021 Debentures shall be payable, the 2021
Debentures may be surrendered for registration of transfer, the 2021 Debentures
may be surrendered for exchange, repurchase, redemption or conversion and where
notices may be given to the Company in respect of the 2021 Debentures is at the
office or agency of the Trustee in New York, New York or in Dallas, Texas;
provided that payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as such address shall
appear in the
3
Security Register (as defined in the Indenture) or by wire transfer of
immediately available funds to the accounts specified by the Holder of such 2021
Debentures.
SECTION 107 Redemption.
(a) There shall be no sinking fund for the retirement of the 2021
Debentures.
(b) The Company, at its option, may redeem the 2021 Debentures in
accordance with the provisions of and at the Redemption Prices set forth under
the captions "Optional Redemption" and "Notice of Redemption" in the 2021
Debentures and in accordance with the provisions of the Indenture, including,
without limitation, Article Eleven.
(c) The Company, at the option of the Holders thereof, shall redeem the
2021 Debentures in accordance with the provisions of and at the Change in
Control Purchase Prices set forth under the caption "Purchase of Securities at
Option of Holder Upon a Change in Control" in the 2021 Debentures and in
accordance with the provisions of the Indenture, including, without limitation,
Article Eleven.
SECTION 108 Conversion.
The 2021 Debentures shall be convertible in accordance with the provisions
and at the Conversion Rate set forth under the caption "Conversion" in the 2021
Debentures and in accordance with the provisions of the Indenture, including,
without limitation, Article Fourteen.
SECTION 109 Maturity.
The date on which the principal of the 2021 Debentures is payable, unless
accelerated pursuant to the Indenture, shall be May 15, 2021.
SECTION 110 Repurchase.
The 2021 Debentures shall be repurchased by the Company in accordance with
the provisions and at the Repurchase Prices set forth under the caption
"Repurchase by the Company at the Option of the Holder" in the 2021 Debentures
and in accordance with the provisions of the Indenture, including, without
limitation, Article Fifteen.
SECTION 111 Discharge of Liability on 2021 Debentures.
Section 403 of the Indenture shall be applicable to the 2021 Debentures.
SECTION 112 Other Terms of 2021 Debentures.
Without limiting the foregoing provisions of this Article One, the terms of
the 2021 Debentures shall be as set forth in the form of 2021 Debentures set
forth in Annex A hereto and as provided in the Indenture.
4
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
The amendments contained herein shall apply to 2021 Debentures only and not
to any other series of Security issued under the Indenture and any covenants
provided herein are expressly being included solely for the benefit of the 2021
Debentures. These amendments shall be effective for so long as there remains any
2021 Debentures Outstanding.
SECTION 201 Definitions.
Section 101 of the Indenture is amended by inserting or restating, as the
case may be, in their appropriate alphabetical position, the following
definitions:
"Capital Stock" or "capital stock" of any Person means any and all shares,
interests, partnership interests, participations, rights or other equivalents
(however designated) of such Person's equity interest (however designated)
issued by that Person.
"Change in Control" has the meaning specified in Section 1110.
"Change in Control Purchase Date" has the meaning specified in
Section 1110.
"Change in Control Purchase Notice" has the meaning specified in
Section 1110.
"Change in Control Purchase Price" has the meaning specified in
Section 1110.
"Company Notice Date" has the meaning specified in Section 1503.
"Conversion Agent" shall be the agent specified in Section 101.
"Conversion Date" has the meaning specified in Section 1402.
"Conversion Rate" has the meaning specified in Section 1401.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute.
"Global Securities" has the meaning specified in Section 101.
"Issue Date" of any 2021 Debenture means the date on which the 2021
Debenture was originally issued or deemed issued as set forth on the face of the
2021 Debenture.
"Issue Price" of any 2021 Debenture means, in connection with the original
issuance of such 2021 Debenture, the initial issue price at which the 2021
Debenture is sold as set forth on the face of the 2021 Debenture.
"Market Price" has the meaning specified in Section 1504.
"non-electing share" has the meaning specified in Section 1411.
5
"Ordinary Shares" means any stock of any class of the Company (including,
without limitation, the Company's ordinary shares of a nominal or par value of
$0.01 per share) 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 Company and which is not subject to redemption by the Company.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment, repurchase or redemption money or
Ordinary Shares in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities which have been cancelled pursuant to Section 309
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company; and
(iv) 2021 Debentures converted for Ordinary Shares pursuant to
Article Fourteen;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Principal Amount" of a 2021 Debenture means the Principal Amount as set
forth on the face of the 2021 Debenture.
"Repurchase Date" has the meaning specified in Section 1501.
"Repurchase Notice" has the meaning specified in Section 1501.
"Repurchase Price" has the meaning specified in Section 1501.
6
"Sale Price" has the meaning specified in Section 1504.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture, including 2021 Debentures.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Tax Additional Amounts" has the meaning specified in the form of 2021
Debentures attached hereto as Annex A.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Ordinary Shares are not listed
on the New York Stock Exchange, on the principal other national or regional
securities exchange on which the Ordinary Shares are then listed or, if the
Ordinary Shares are not listed on a national or regional securities exchange, on
the National Association of Securities Dealers Automated Quotation System or, if
the Ordinary Shares are not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other market on which the
Ordinary Shares are then traded.
"2021 Debentures" means the 1.5% Convertible Debentures due May 15, 2021 of
the Company authorized by or pursuant to resolution of the Board of Directors.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof under ordinary circumstances have the power to vote in
the election of the board of directors, managers or trustees of any Person (or
other Persons performing similar functions), irrespective of whether or not, at
the time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency.
SECTION 202 Registration, Registration of Transfer and Exchange.
The Indenture shall be amended by replacing the eighth paragraph of
Section 305 with the following paragraph:
The Company shall not be required (i) to issue, register the transfer
of or exchange the Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice
of redemption of Securities of that series selected for redemption and
ending at the close of business on the day of such mailing, (ii) to
register the transfer of or exchange any 2021 Debenture so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part, or (iii) to exchange or register a
transfer of any 2021 Debenture or portions thereof in respect of which a
Change in Control Purchase Notice or Repurchase Notice has been delivered
and not withdrawn by the Holder thereof (except, in the case of the
purchase of a 2021 Debenture in part, the portion not to be purchased).
7
SECTION 203 Mutilated, Destroyed, Lost and Stolen Securities.
The Indenture shall be amended by replacing the fourth paragraph of
Section 306 with the following paragraph:
In case any such mutilated, destroyed, lost or stolen Security has or
is about to become due and payable, or is about to be redeemed or purchased
by the Company upon a Change in Control pursuant to Article Eleven or
purchased by the Company on a Repurchase Date pursuant to Article Fifteen,
the Company in its discretion may, instead of issuing a new Security, pay
such Security.
SECTION 204 Payment of Interest; Interest Rights Preserved.
The Indenture shall be amended by inserting the following paragraph before
the final paragraph in Section 307:
In the case of any 2021 Debenture or portion thereof which is
surrendered for conversion after the close of business on the Regular
Record Date immediately preceding any Interest Payment Date and prior to
the opening of business on such next succeeding Interest Payment Date
(unless such 2021 Debenture or portion thereof which is being surrendered
for conversion has been called for redemption on a Redemption Date within
such period), interest whose Stated Maturity is on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly
provided for) shall be paid to the Person in whose name that 2021 Debenture
(or one or more Predecessor Securities) is registered at the close of
business on such Regular Record Date; provided, however, that such payment
of interest shall be subject to the payment to the Company by the Holder of
such 2021 Debenture or portion thereof surrendered for conversion (such
payment to accompany such surrender) of an amount equal to the amount of
such interest, in accordance with but only to the extent required by
Section 1402. Except as otherwise provided in the immediately preceding
sentence, in the case of any 2021 Debenture which is converted, interest
whose Stated Maturity is after the date of conversion of such 2021
Debenture shall not be payable.
SECTION 205 Satisfaction and Discharge of Indenture.
The Indenture shall be amended by replacing the last paragraph of Section
401 with the following paragraph:
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this
Section 401, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under
Section 614 and, except for a discharge pursuant to subclause (A) of clause
(1) of this Section 401, the obligations of the Company under Sections 305,
306, 404, 610(e), 701, 1001 and 1002 and Articles Eleven, Fourteen and
Fifteen and the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
8
SECTION 206 Discharge of Liability on Securities of Any Series.
The Indenture shall be amended by replacing the last paragraph of
Section 403 with the following paragraph:
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be
discharged from (a) any payment obligations in respect of Securities of
such series that are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of
the Company under applicable law or (b) any obligations pursuant to Section
305 or 306 or Articles Eleven, Fourteen and Fifteen.
SECTION 207 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Section 508 of the Indenture shall be amended by replacing that section
with the following:
Section 508. Unconditional Right of Holders to Receive Principal,
Premium, Interest and Tax Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on and Tax Additional Amounts, if any, with respect
to such Security on the Stated Maturity or Maturities expressed in such
Security (or in the case of redemption, to receive the Redemption Price on
the Redemption Date, in the case of a repurchase, to receive the Repurchase
Price on the Repurchase Date, or in the case of a Change in Control, to
receive the Change in Control Purchase Price on the Change in Control
Purchase Date) and to institute suit for the enforcement of any such
payment on or after such respective dates, and such rights shall not be
impaired without the consent of such Holder.
SECTION 208 Consolidation, Merger and Sale.
The Indenture shall be amended by inserting "and shall have provided for
conversion rights in accordance with Section 1411" at the end of Section 801(1).
SECTION 209 Supplemental Indentures Without Consent of Holders.
Section 901 of the Indenture shall be amended by inserting the following
paragraph:
(9) to make provision with respect to the conversion rights, if any,
to Holders of 2021 Debentures pursuant to the requirements of Article
Fourteen hereof.
9
SECTION 210 Supplemental Indenture with Consent of Holder.
The Indenture shall be amended by inserting ", or adversely affect the
right to convert any 2021 Debenture as provided in Article Fourteen, or
adversely affect the right to require the Company to repurchase the 2021
Debentures as provided in Article Fifteen." at the end of Section 902(1).
SECTION 211 Maintenance of Office or Agency.
The first paragraph of Section 1002 of the Indenture is amended by changing
the first sentence thereof to read in its entirety as follows:
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange, where 2021
Debentures may be surrendered for conversion and where notices and demands
to or upon the Company in respect of the Securities of that series and this
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 presentations, surrenders, notices and demands 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 presentations,
surrenders, notices and demands.
SECTION 212 Redemption.
Article Eleven shall be amended by inserting the following sections in
their entirety:
Section 1109 Conversion Arrangement on Call for Redemption
In connection with 2021 Debentures, the Company may arrange for the
purchase and conversion of any 2021 Debentures called for redemption by an
agreement with one or more investment bankers or other purchasers to
purchase such 2021 Debentures by paying to a Paying Agent (other than the
Company or any of its Affiliates) in trust for the Holders, on or before
11:00 A.M. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with such Paying Agent by the Company
for the redemption of such 2021 Debentures, is not less than the Redemption
Price of such 2021 Debentures. Notwithstanding anything to the contrary
contained in this Article Eleven, the obligation of the Company to pay the
Redemption Price of such 2021 Debentures, including interest, if any, shall
be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers; provided, however, that nothing in this Section
1109 shall relieve the Company of its obligation to pay the Redemption
Price on 2021 Debentures called for redemption. If such an agreement is
entered into, any 2021 Debentures called for redemption and not
10
surrendered for conversion by the Holders thereof prior to the relevant
Redemption Date may, at the option of the Company upon written notice to
the Trustee, be deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and (notwithstanding anything to the
contrary contained in Article Fourteen) surrendered by such purchasers for
conversion, all as of 11:00 A.M. New York City time on the Redemption Date,
subject to payment of the above amount as aforesaid. The Paying Agent shall
hold and pay to the Holders whose 2021 Debentures are selected for
redemption any such amount paid to it for purchase in the same manner as it
would money deposited with it by the Company for the redemption of 2021
Debentures. Without the Paying Agent's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any 2021 Debentures shall increase or otherwise affect any of
the powers, duties, responsibilities or obligations of the Paying Agent as
set forth in this Indenture, and the Company agrees to indemnify the Paying
Agent from, and hold it harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the purchase
and conversion of any 2021 Debentures between the Company and such
purchasers, including the costs and expenses incurred by the Paying Agent
in the defense of any claim or liability reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture, in accordance with the indemnity
provisions applicable to the Trustee set forth herein.
Section 1110 Purchase of Securities at Option of the Holder Upon Change in
Control
(a) If at any time that 2021 Debentures remain Outstanding there shall
occur a Change in Control, 2021 Debentures shall be purchased by the
Company at the option of the Holders thereof as of a date that is within 35
Business Days after the occurrence of the Change in Control (the "Change in
Control Purchase Date") at a purchase price equal to the Principal Amount
plus accrued and unpaid interest up to but excluding the Change in Control
Purchase Date (the "Change in Control Purchase Price"), subject to
satisfaction by or on behalf of any Holder of the requirements set forth in
subsection (c) of this Section 1110.
A "Change in Control" shall be deemed to have occurred if any of the
following occurs after the Issue Date:
(1) any "person" or "group" (as such terms are defined below) is or
becomes the "beneficial owner" (as defined below), directly or indirectly,
of shares of Voting Stock of the Company representing 50% or more of the
total voting power of all outstanding classes of Voting Stock of the
Company or has the power, directly or indirectly, to elect a majority of
the members of the Board of Directors of the Company (but specifically
excluding any right of any Person or Persons to designate directors of the
Company pursuant to Article 3 of the
11
Agreement and Plan of Merger dated July 12, 1999 among Schlumberger
Limited, the Company and certain of their respective subsidiaries); or
(2) the Company consolidates with, or merges with or into, another
person or the Company sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of the assets of the
Company, or any person consolidates with, or merges with or into, the
Company, or the Company completes a scheme of arrangement under Cayman
Islands law with another Person, in any such event other than pursuant to a
transaction in which the persons that "beneficially owned" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
immediately prior to such transaction "beneficially own" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
representing at least a majority of the total voting power of all
outstanding classes of Voting Stock of the surviving or transferee person;
or
(3) there shall occur the liquidation or dissolution of the Company.
For the purpose of the definition of "Change in Control", (i) "person"
and "group" have the meanings given such terms under Section 13(d) and
14(d) of the Exchange Act or any successor provision to either of the
foregoing, and the term "group" includes any group acting for the purpose
of acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act (or any successor provision thereto),
(ii) a "beneficial owner" shall be determined in accordance with Rule 13d-3
under the Exchange Act, as in effect on May 8, 2001, except that the number
of shares of Voting Stock of the Company shall be deemed to include, in
addition to all outstanding shares of Voting Stock of the Company and
Unissued Shares deemed to be held by the "person" or "group" (as such terms
are defined above) or other person with respect to which the Change in
Control determination is being made, all Unissued Shares deemed to be held
by all other persons, and (iii) the terms "beneficially owned" and
"beneficially own" shall have meanings correlative to that of "beneficial
owner". The term "Unissued Shares" means shares of Voting Stock not
outstanding that are subject to options, warrants, rights to purchase or
conversion privileges exercisable within 60 days of the date of
determination of a Change in Control.
(b) Within 15 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control
to the Trustee and to each Holder. The notice shall include the form of a
Change in Control Purchase Notice to be completed by the Holder and shall
state:
(1) the date of such Change in Control and, briefly, the events
causing such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 1110 must be given;
12
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) briefly, the conversion rights of the 2021 Debentures;
(6) the name and address of each Paying Agent and Conversion
Agent;
(7) the Conversion Rate and any adjustments thereto;
(8) that 2021 Debentures as to which a Change in Control Purchase
Notice has been given may be converted into Ordinary Shares pursuant
to Article Fourteen only to the extent that the Change in Control
Purchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(9) the procedures that the Holder must follow to exercise rights
under this Section 1110;
(10) the procedures for withdrawing a Change in Control Purchase
Notice, including a form of notice of withdrawal; and
(11) that the Holder must satisfy the requirements set forth in
the 2021 Debentures in order to convert the 2021 Debentures.
If any of the 2021 Debentures is in the form of a Global Security,
then the Company shall modify such notice to the extent necessary to accord
with the procedures of the Depositary applicable to the repurchase of
Global Securities.
(c) A Holder may exercise its rights specified in subsection (a) of
this Section 1110 upon delivery of a written notice (which shall be in
substantially the form included as an attachment to the Security and which
may be delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance
with the Depositary's customary procedures) of the exercise of such rights
(a "Change in Control Purchase Notice") to any Paying Agent at any time
prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date.
The delivery of such 2021 Debenture to any Paying Agent (together with
all necessary endorsements) at the office of such Paying Agent shall be a
condition to the receipt by the Holder of the Change in Control Purchase
Price therefor.
The Company shall purchase from the Holder thereof, pursuant to this
Section 1110, a portion of a 2021 Debenture if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture
13
that apply to the purchase of all of a 2021 Debenture pursuant to Sections
1110 through 1115 also apply to the purchase of such portion of such 2021
Debenture.
Notwithstanding anything herein to the contrary, any Holder delivering
to a Paying Agent the Change in Control Purchase Notice contemplated by
this subsection (c) shall have the right to withdraw such Change in Control
Purchase Notice in whole or in a portion thereof that is a Principal Amount
of $1,000 or in an integral multiple thereof at any time prior to the close
of business on the Business Day next preceding the Change in Control
Purchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 1111.
A Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Change in Control Purchase Notice may be delivered or
withdrawn and such 2021 Debentures may be surrendered or delivered for
purchase in accordance with the applicable procedures of the Depositary as
in effect from time to time.
Section 1111 Effect of Change in Control Purchase Notice
Upon receipt by any Paying Agent of the Change in Control Purchase
Notice specified in Section 1110(c), the Holder of the 2021 Debenture in
respect of which such Change in Control Purchase Notice was given shall
(unless such Change in Control Purchase Notice is withdrawn as specified
below) thereafter be entitled to receive the Change in Control Purchase
Price with respect to such 2021 Debenture. Such Change in Control Purchase
Price shall be paid to such Holder promptly following the later of (a) the
Change in Control Purchase Date with respect to such 2021 Debenture
(provided the conditions in Section 1110(c) have been satisfied) and (b)
the time of delivery of such 2021 Debenture to a Paying Agent by the Holder
thereof in the manner required by Section 1110(c). 2021 Debentures in
respect of which a Change in Control Purchase Notice has been given by the
Holder thereof may not be converted into Ordinary Shares on or after the
date of the delivery of such Change in Control Purchase Notice unless such
Change in Control Purchase Notice has first been validly withdrawn.
A Change in Control Purchase Notice may be withdrawn by means of a
written notice (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the
case of Global Securities, may be delivered electronically or by other
means in accordance with the Depositary's customary procedures) of
withdrawal delivered by the Holder to a Paying Agent at any time prior to
the close of business on the Business Day immediately preceding the Change
in Control Purchase Date, specifying the Principal Amount of the Security
or portion thereof (which must be a Principal
14
Amount of $1,000 or an integral multiple of $1,000 in excess thereof) with
respect to which such notice of withdrawal is being submitted.
Section 1112 Deposit of Change in Control Purchase Price
On or before 11:00 a.m. New York City time on the Change in Control
Purchase Date, the Company shall deposit with the Trustee or with a Paying
Agent (other than the Company or an Affiliate of the Company) an amount of
money (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Change in Control Purchase Price of all the
2021 Debentures or portions thereof that are to be purchased as of such
Change in Control Purchase Date. The manner in which the deposit required
by this Section 1112 is made by the Company shall be at the option of the
Company, provided that such deposit shall be made in a manner such that the
Trustee or a Paying Agent shall have immediately available funds on the
Change in Control Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Purchase Price of any 2021
Debenture for which a Change in Control Purchase Notice has been tendered
and not withdrawn in accordance with this Indenture then, on the Change in
Control Purchase Date, such 2021 Debenture will cease to be Outstanding and
the rights of the Holder in respect thereof shall terminate (other than the
right to receive the Change in Control Purchase Price as aforesaid). The
Company shall publicly announce the Principal Amount of 2021 Debentures
purchased as a result of such Change in Control on or as soon as
practicable after the Change in Control Purchase Date.
Section 1113 Securities Purchased In Part
Any 2021 Debenture that is to be purchased only in part shall be
surrendered at the office of a Paying Agent and promptly after the Change
in Control Purchase Date the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such 2021 Debenture, without
service charge, a new 2021 Debenture or 2021 Debentures, of such authorized
denomination or denominations as may be requested by such Holder, in
aggregate Principal Amount equal to, and in exchange for, the portion of
the Principal Amount of the 2021 Debenture so surrendered that is not
purchased.
Section 1114 Compliance With Securities Laws Upon Purchase of Securities
In connection with any offer to purchase or purchase of 2021
Debentures under Section 1110, the Company shall (a) comply with Rule 13e-4
(or any successor to either such Rule), if applicable, under the Exchange
Act, (b) file the related Schedule TO (or any successor or similar
schedule, form or report) if required under the Exchange Act, and (c)
otherwise comply with all federal and state securities laws in connection
with such offer, all so as to permit the rights of
15
the Holders and obligations of the Company under Sections 1110 through 1115
to be exercised in the time and in the manner specified therein.
Section 1115 Repayment to the Company
To the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 1112 exceeds the aggregate Change in Control
Purchase Price together with interest, if any, thereon of the 2021
Debentures or portions thereof that the Company is obligated to purchase,
then promptly after the Change in Control Purchase Date the Trustee or a
Paying Agent, as the case may be, shall return any such excess to the
Company.
SECTION 213 Conversion, Repurchase.
The Indenture is amended by adding the following Articles Fourteen and
Fifteen to the Indenture:
ARTICLE FOURTEEN
CONVERSION
Section 1401 Conversion Privilege
2021 Debentures shall be convertible in accordance with their terms
and in accordance with this Article.
A Holder of a 2021 Debenture may convert the Principal Amount of such
2021 Debenture (or any portion thereof equal to a Principal Amount of
$1,000 or any integral multiple of a Principal Amount of $1,000 in excess
thereof) into Ordinary Shares at any time during the period set forth under
the caption "Conversion" in the 2021 Debentures, at the Conversion Rate
then in effect. In case a 2021 Debenture or portion thereof is called for
redemption pursuant to Article Eleven, such conversion right shall
terminate at the close of business on the fourth Trading Day prior to the
earlier of (a) May 15, 2021 and (b) the date on which such 2021 Debenture
(or portion thereof) is redeemed (unless the Company shall default in
making the redemption payment when due, in which case the conversion right
shall terminate at the close of business on the date such default is cured
and such 2021 Debenture is redeemed). The number of Ordinary Shares
issuable upon conversion of a 2021 Debenture per $1,000 of Principal Amount
thereof (the "Conversion Rate") shall be that set forth under the caption
"Conversion" in the 2021 Debentures, subject to adjustment as herein set
forth. Provisions of this Indenture that apply to conversion of all of a
2021 Debenture also apply to conversion of a portion of a 2021 Debenture.
A 2021 Debenture in respect of which a Holder has delivered a
Repurchase Notice or Change in Control Purchase Notice exercising the
option of such Holder to require the Company to purchase such 2021
Debenture, may be converted only if such notice of exercise is withdrawn in
accordance with the
16
terms of this Indenture. A Holder of 2021 Debentures is not entitled to any
rights of a holder of Ordinary Shares until such Holder has converted its
2021 Debentures to Ordinary Shares, and only to the extent such 2021
Debentures are deemed to have been converted into Ordinary Shares pursuant
to this Article Fourteen.
Section 1402 Conversion Procedure
To convert a 2021 Debenture, a Holder must satisfy the requirements
set forth under the caption "Conversion" in the 2021 Debenture. The date
on which the Holder satisfies all of those requirements is the "Conversion
Date." As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through a Conversion Agent a certificate for the
number of whole Ordinary Shares issuable upon the conversion and cash in
lieu of any fractional shares pursuant to Section 1403. Anything herein to
the contrary notwithstanding, in the case of Global Securities, conversion
notices may be delivered and such 2021 Debentures may be surrendered for
conversion in accordance with the applicable procedures of the Depositary
as in effect from time to time. The Person in whose name the Ordinary
Shares certificate is registered shall be deemed to be a shareholder of
record on the Conversion Date; provided, however, that no surrender of a
2021 Debenture on any date when the stock transfer books of the Company
shall be closed shall be effective to constitute the Person or Persons
entitled to receive the Ordinary Shares upon such conversion as the record
holder or holders of such Ordinary Shares on such date, but such surrender
shall be effective to constitute the Person or Persons entitled to receive
such Ordinary Shares as the record holder or holders thereof for all
purposes at the close of business on the next succeeding day on which such
stock transfer books are open; provided, further, that such conversion
shall be at the Conversion Rate in effect on the date that such 2021
Debenture shall have been surrendered for conversion, as if the stock
transfer books of the Company had not been closed. Upon conversion of a
2021 Debenture, such Person shall no longer be a Holder of such 2021
Debenture.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any Ordinary Shares except as provided in
this Article Fourteen. On conversion of a 2021 Debenture, the fair market
value of such Ordinary Shares (together with any such cash payment in lieu
of fractional shares) shall be treated as issued in exchange for the 2021
Debenture being converted pursuant to the provisions hereof.
If a Holder converts more than one 2021 Debenture at the same time,
the number of Ordinary Shares issuable upon the conversion shall be based
on the aggregate Principal Amount of 2021 Debentures converted.
Upon surrender of a 2021 Debenture that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to
the
17
Holder, a new 2021 Debenture equal in Principal Amount to the Principal
Amount of the unconverted portion of the 2021 Debenture surrendered.
2021 Debentures or portions thereof surrendered for conversion after
the close of business on any Regular Record Date immediately preceding any
Interest Payment Date and prior to the opening of business on such Interest
Payment Date shall (unless such 2021 Debentures or portions thereof have
been called for redemption on a Redemption Date within such period) be
accompanied by payment to the Company or its order, in New York Clearing
House 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 2021 Debentures or portions thereof being surrendered for conversion,
and such interest payable on such Interest Payment Date shall be payable to
the registered Holder notwithstanding the conversion of such 2001
Debenture.
Section 1403 Fractional Shares
The Company will not issue fractional Ordinary Shares upon conversion
of 2021 Debentures. In lieu thereof, the Company will pay an amount in cash
based upon the closing price of the Ordinary Shares on the Trading Day
immediately prior to the Conversion Date.
Section 1404 Taxes on Conversion
If a Holder converts a 2021 Debenture, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of
Ordinary Shares upon such conversion. However, the Holder shall pay any
such tax which is due because the Holder requests the shares to be issued
in a name other than the Holder's name. The Conversion Agent may refuse to
deliver the certificate representing the Ordinary Shares being issued in a
name other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be
issued in a name other than the Holder's name. Nothing herein shall
preclude any tax withholding required by law or regulation.
Section 1405 Company to Provide Ordinary Shares
The Company shall, prior to issuance of any 2021 Debentures under this
Article Fourteen, and from time to time as may be necessary, reserve, out
of its authorized but unissued Ordinary Shares, a sufficient number of
Ordinary Shares to permit the conversion of all 2021 Debentures Outstanding
into Ordinary Shares. All Ordinary Shares delivered upon conversion of the
2021 Debentures shall be newly issued shares, shall be duly authorized,
validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal and
state securities laws regulating the registration of the offer and delivery
of Ordinary
18
Shares to a converting Holder upon conversion of 2021 Debentures, if any,
and will list or cause to have quoted such Ordinary Shares on each national
securities exchange or on the Nasdaq National Market or other over-the-
counter market or such other market on which the Ordinary Shares are then
listed or quoted.
Section 1406 Adjustment of Conversion Rate
The Conversion Rate shall be adjusted from time to time by the Company
as follows:
(a) In case the Company shall (i) pay a dividend on its Ordinary
Shares in Ordinary Shares, (ii) make a distribution on its Ordinary Shares
in Ordinary Shares, (iii) subdivide its outstanding Ordinary Shares into a
greater number of shares, or (iv) combine its outstanding Ordinary Shares
into a smaller number of shares, the Conversion Rate in effect immediately
prior thereto shall be adjusted so that the Holder of any 2021 Debenture
thereafter surrendered for conversion shall be entitled to receive that
number of Ordinary Shares which it would have owned had such 2021 Debenture
been converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend or distribution
and shall become effective immediately after the effective date in the case
of subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or
substantially all holders of its Ordinary Shares entitling them (for a
period commencing no earlier than the record date described below and
expiring not more than 60 days after such record date) to subscribe for or
purchase Ordinary Shares at a price per share less than the current market
price per Ordinary Share (as determined in accordance with subsection (e)
of this Section 1406) on the record date for the determination of
shareholders entitled to receive such rights or warrants, the Conversion
Rate in effect immediately prior thereto shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to such record date by a fraction of which the
numerator shall be the number of Ordinary Shares outstanding on such record
date plus the number of additional Ordinary Shares offered, and of which
the denominator shall be the number of Ordinary Shares outstanding on such
record date plus the number of shares which the aggregate offering price of
the total number of Ordinary Shares so offered would purchase at the
current market price per share (as determined in accordance with subsection
(e) of this Section 1406) of Ordinary Shares on such record date. Such
adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately after such record date.
If at the end of the period during which such rights or warrants are
exercisable not all rights or warrants shall have been exercised, the
adjusted Conversion Rate shall be immediately readjusted to what it would
have been based upon the number of additional Ordinary Shares actually
issued.
19
(c) In case the Company shall distribute to all or substantially all
holders of its Ordinary Shares any shares of capital stock (other than
dividends or distributions of Ordinary Shares on Ordinary Shares to which
Section 1406(a) applies) of the Company, evidences of indebtedness or other
securities or assets (including securities of any Person other than the
Company, but excluding all-cash distributions or any rights or warrants
referred to in Section 1406(b)), then in each such case the Conversion Rate
shall be adjusted so that the same shall equal the rate determined by
multiplying the current Conversion Rate by a fraction of which the
numerator shall be the current market price per share (as determined in
accordance with subsection (e) of this Section 1406) of the Ordinary Shares
on the record date mentioned below, and of which the denominator shall be
the current market price per share (as determined in accordance with
subsection (e) of this Section 1406) of the Ordinary Shares on such record
date less the fair market value on such record date (as determined by the
Board of Directors, whose determination shall be conclusive evidence of
such fair market value and which shall be evidenced by an Officers'
Certificate delivered to the Trustee) of the portion of the capital stock,
evidences of indebtedness, securities or other non-cash assets so
distributed applicable to one Ordinary Share (determined on the basis of
the number of Ordinary Shares outstanding on the record date). Such
adjustment shall be made successively whenever any such distribution is
made and shall become effective immediately after the record date for the
determination of shareholders entitled to receive such distribution.
In the event that the Company implements a shareholder rights plan,
such rights plan shall provide, subject to customary exceptions and
limitations, that upon conversion of the 2021 Debentures the Holders will
receive, in addition to the Ordinary Shares issuable upon such conversion,
the rights issued under such rights plan (notwithstanding the occurrence of
an event causing such rights to separate from the Ordinary Shares at or
prior to the time of conversion). Any distribution of rights or warrants
pursuant to a shareholder rights plan complying with the requirements set
forth in the immediately preceding sentence of this paragraph shall not
constitute a distribution of securities for the purposes of this Section
1406(c).
Rights or warrants distributed by the Company to all holders of
Ordinary Shares entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"): (i) are deemed to be
transferred with such Ordinary Shares; (ii) are not exercisable; and (iii)
are also issued in respect of future issuances of Ordinary Shares, shall be
deemed not to have been distributed for purposes of this Section 1406(c)
(and no adjustment to the Conversion Rate under this Section 1406(c) will
be required) until the occurrence of the earliest Trigger Event. If such
right or warrant is subject to subsequent events, upon the occurrence of
which such right or warrant shall become exercisable to purchase different
securities, evidences of indebtedness or other assets or entitle the holder
to purchase a different number or amount of the foregoing or to purchase
any of the foregoing at a different
20
purchase price, then the occurrence of each such event shall be deemed to
be the date of issuance and record date with respect to a new right or
warrant (and a termination or expiration of the existing right or warrant
without exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto, that resulted in an adjustment to the Conversion Rate
under this Section 1406(c), (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without exercise by any
holders thereof, the Conversion Rate shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to
the per share redemption or repurchase price received by a holder of
Ordinary Shares with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of
Ordinary Shares as of the date of such redemption or repurchase, and (2) in
the case of such rights or warrants all of which shall have expired or been
terminated without exercise, the Conversion Rate shall be readjusted as if
such rights and warrants had never been issued.
(d) (1) In case the Company shall, by dividend or otherwise, at any
time distribute (a "Triggering Distribution") to all or substantially all
holders of its Ordinary Shares all-cash distributions in an aggregate
amount that, together with the aggregate amount of (A) any cash and the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the Trustee) of any
other consideration, payable in respect of any tender offer by the Company
or a Subsidiary of the Company for Ordinary Shares consummated within the
12 months preceding the date of payment of the Triggering Distribution and
in respect of which no Conversion Rate adjustment pursuant to this Section
1406 has been made and (B) all other cash distributions to all or
substantially all holders of its Ordinary Shares made within the 12 months
preceding the date of payment of the Triggering Distribution and in respect
of which no Conversion Rate adjustment pursuant to this Section 1406 has
been made, exceeds an amount equal to 12.5% of the product of the current
market price per Ordinary Share (as determined in accordance with
subsection (e) of this Section 1406) on the Business Day (the
"Determination Date") immediately preceding the day on which such
Triggering Distribution is declared by the Company multiplied by the number
of Ordinary Shares outstanding on the Determination Date (excluding shares
held in the treasury of the Company), the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying
such Conversion Rate in effect immediately prior to the Determination Date
by a fraction of which the numerator shall be such current market price per
Ordinary Share (as determined in accordance with subsection (e) of this
Section 1406) on the Determination Date, and the denominator shall be the
current market price per Ordinary Share (as determined in accordance with
subsection (e) of this Section 1406) on the Determination Date less the sum
of the aggregate amount of cash and the aggregate fair market value
(determined as aforesaid) of any such other consideration, so distributed,
paid or payable (in the case of amounts paid in any
21
tender offer, including only that portion of the aggregate amount paid in
the tender offer that was in excess of the aggregate value of the shares
purchased in the tender offer (based on the current market price per
Ordinary Share as determined in accordance with subsection (e) of this
Section 1406 on the day the tender offer expired)) within such 12 months
(including, without limitation, the Triggering Distribution) applicable to
one Ordinary Share (determined on the basis of the number of Ordinary
Shares outstanding on the Determination Date), such increase to become
effective immediately prior to the opening of business on the day following
the date on which the Triggering Distribution is paid.
(2) In case any tender offer made by the Company or any of its
Subsidiaries for Ordinary Shares shall expire and such tender offer (as
amended upon the expiration thereof) shall involve the payment of aggregate
consideration in an amount (determined as the sum of the aggregate amount
of cash consideration and the aggregate fair market value (as determined by
the Board of Directors, whose determination shall be conclusive evidence
thereof and which shall be evidenced by an Officers' Certificate delivered
to the Trustee thereof ) of any other consideration) that, together with
the aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an Officers'
Certificate delivered to the Trustee) of any other consideration payable in
respect of any other tender offers by the Company or any Subsidiary of the
Company for Ordinary Shares consummated within the 12 months preceding the
date of the Expiration Date (as defined below) and in respect of which no
Conversion Rate adjustment pursuant to this Section 1406 has been made and
(B) all cash distributions to all or substantially all holders of its
Ordinary Shares made within the 12 months preceding the Expiration Date and
in respect of which no Conversion Rate adjustment pursuant to this Section
1406 has been made, exceeds an amount equal to 12.5% of the product of the
current market price per Ordinary Share (as determined in accordance with
subsection (e) of this Section 1406) as of the last date (the "Expiration
Date") tenders could have been made pursuant to such tender offer (as it
may be amended) (the last time at which such tenders could have been made
on the Expiration Date is hereinafter sometimes called the "Expiration
Time") multiplied by the number of Ordinary Shares outstanding (including
tendered shares but excluding any shares held in the treasury of the
Company) at the Expiration Time, then, immediately prior to the opening of
business on the day after the Expiration Date, the Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to close of business on the
Expiration Date by a fraction of which the numerator shall be the sum of
(x) the aggregate consideration (determined as aforesaid) payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender offer) of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the product
of the number of Ordinary Shares outstanding (excluding any Purchased
Shares and any shares held in the treasury of the Company) at the
Expiration Time and the current market price per Ordinary
22
Share (as determined in accordance with subsection (e) of this Section
1406) on the Trading Day next succeeding the Expiration Date, and the
denominator shall be the product of the number of Ordinary Shares
outstanding (including tendered shares but excluding any shares held in the
treasury of the Company) at the Expiration Time multiplied by the current
market price per Ordinary Share (as determined in accordance with
subsection (e) of this Section 1406) on the Trading Day next succeeding the
Expiration Date, such increase to become effective immediately prior to the
opening of business on the day following the Expiration Date. In the event
that the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable law
from effecting any or all such purchases or any or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate which would have been in effect based upon the number of shares
actually purchased. If the application of this Section 1406(d)(2) to any
tender offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer under this Section
1406(d)(2).
(3) For purposes of this Section 1406(d), the term "tender offer"
shall mean and include both tender offers and exchange offers, all
references to "purchases" of shares in tender offers (and all similar
references) shall mean and include both the purchase of shares in tender
offers and the acquisition of shares pursuant to exchange offers, and all
references to "tendered shares" (and all similar references) shall mean and
include shares tendered in both tender offers and exchange offers.
(e) For the purpose of any computation under subsections (b), (c) and
(d)(l) of this Section 1406, the current market price per Ordinary Share on
any date shall be deemed to be the average of the daily closing prices for
a period selected by the Company of either 5 consecutive Trading Days or 30
consecutive Trading Days commencing not more than 45 Trading Days before,
and ending not later than, (i) the Determination Date with respect to
distributions under subsection (d)(l) of this Section 1406 or (ii) the
record date with respect to distributions, issuances or other events
requiring such computation under subsection (b) or (c) of this Section
1406. For the purpose of any computation under subsection (d)(2) of this
Section 1406, the current market price per Ordinary Share on any date shall
be deemed to be the average of the daily closing prices for the 5
consecutive Trading Days commencing on that date. The closing price for
each day shall be the last reported sales price or, in case no such
reported sale takes place on such date, the average of the reported closing
bid and asked prices in either case on the New York Stock Exchange (the
"NYSE") or, if the Ordinary Shares are not listed or admitted to trading on
the NYSE, on the principal national securities exchange on which the
Ordinary Shares are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, the last reported
sales price of the Ordinary Shares as quoted on NASDAQ (the term "NASDAQ"
shall include, without limitation, the Nasdaq National Market) or, in case
no reported sales takes place, the average of the closing bid and asked
prices as quoted on NASDAQ or any comparable system
23
or, if the Ordinary Shares are not quoted on NASDAQ or any comparable
system, the closing sales price or, in case no reported sale takes place,
the average of the closing bid and asked prices, as furnished by any two
members of the National Association of Securities Dealers, Inc. selected
from time to time by the Company for that purpose. If no such prices are
available, the current market price per share shall be the fair value of an
Ordinary Share as determined by the Board of Directors (which shall be
evidenced by an Officers' Certificate delivered to the Trustee).
(f) In any case in which this Section 1406 shall require that an
adjustment be made following a record date or a Determination Date or
Expiration Date, as the case may be, established for purposes of this
Section 1406, the Company may elect to defer (but only until five Business
Days following the filing by the Company with the Trustee of the
certificate described in Section 1409) issuing to the Holder of any 2021
Debenture converted after such record date or Determination Date or
Expiration Date the Ordinary Shares and other capital stock of the Company
issuable upon such conversion over and above the Ordinary Shares and other
capital stock of the Company issuable upon such conversion only on the
basis of the Conversion Rate prior to adjustment; and, in lieu of the
shares the issuance of which is so deferred, the Company shall issue or
cause its transfer agents to issue due bills or other appropriate evidence
prepared by the Company of the right to receive such shares. If any
distribution in respect of which an adjustment to the Conversion Rate is
required to be made as of the record date or Determination Date or
Expiration Date therefor is not thereafter made or paid by the Company for
any reason, the Conversion Rate shall be readjusted to the Conversion Rate
which would then be in effect if such record date had not been fixed or
such effective date or Determination Date or Expiration Date had not
occurred.
Section 1407 No Adjustment
No adjustment in the Conversion Rate shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Rate as last adjusted; provided, however, that any adjustments
which by reason of this Section 1407 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article Fourteen shall be made to the nearest cent
or to the nearest 1/1000th of a share, as the case may be.
No adjustment need be made for issuances of Ordinary Shares pursuant
to a Company plan for reinvestment of dividends or interest or for a change
in the par value or a change to no par value of the Ordinary Shares.
To the extent that the 2021 Debentures become convertible into the
right to receive cash, no adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
24
Section 1408 Adjustment for Tax Purposes
The Company shall be entitled to make such increases in the Conversion
Rate, in addition to those required by Section 1406, as it in its
discretion shall determine to be advisable in order that any stock
dividends, subdivisions of shares, distributions of rights to purchase
stock or securities or distributions of securities convertible into or
exchangeable for stock hereafter made by the Company to its shareholders
shall not be taxable.
Section 1409 Notice of Adjustment
Whenever the Conversion Rate is adjusted, the Company shall promptly
mail to Holders a notice of the adjustment and file with the Trustee an
Officers' Certificate specifying the adjusted Conversion Rate, and briefly
stating the facts requiring the adjustment and the manner of computing it.
Section 1410 Notice of Certain Transactions
In the event that:
(1) the Company takes any action which would require an adjustment in
the Conversion Rate,
(2) the Company takes any action that requires a supplemental
indenture pursuant to Section 1411, or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be. The
Company shall mail the notice at least fifteen days before such date.
Failure to mail such notice or any defect therein shall not affect the
validity of any transaction referred to in clause (1), (2) or (3) of this
Section 1410.
Section 1411 Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege
If any of the following shall occur, namely: (a) any reclassification
or change of Ordinary Shares issuable upon conversion of the 2021
Debentures (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision
or combination); (b) any consolidation, merger or scheme of arrangement in
which the Company is a party consolidating with another entity or merging
with or into another entity other than a merger in which the Company is the
continuing corporation and which does not result in any reclassification
of, or change (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a
subdivision or combination triggering an adjustment under Section 1406(a))
in, Outstanding Ordinary Shares; or (c) any sale or conveyance of all or
substantially
25
all of the property and assets of the Company to any Person, then the
Company, or such successor, purchasing or transferee corporation, as the
case may be, shall (if consideration is receivable by Holders of the
Ordinary Shares in such consolidation, merger, scheme of arrangement, sale
or conveyance), as a condition precedent to such reclassification, change,
consolidation, merger, scheme of arrangement, sale or conveyance, execute
and deliver to the Trustee a supplemental indenture providing that the
Holder of each 2021 Debenture then Outstanding shall have the right to
convert such 2021 Debenture into the kind and amount of shares of stock and
other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, scheme of arrangement,
sale or conveyance by a holder of the number of Ordinary Shares deliverable
upon conversion of such 2021 Debenture immediately prior to such
reclassification, change, consolidation, merger, scheme of arrangement,
sale or conveyance assuming such Holder of Ordinary Shares of the Company
(i) is not a person party to such transaction and (ii) failed to exercise
his rights of an election, if any, as to the kind or amount of stock and
other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, scheme of arrangement,
sale or conveyance (provided, however, that if the kind or amount of stock
and other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, scheme of arrangement,
sale or conveyance is not the same for each Ordinary Share of the Company
held immediately prior to such reclassification, change, consolidation,
merger, scheme of arrangement, sale or conveyance in respect of which such
rights of election shall not have been exercised ("non-electing share"),
then for the purpose of this Section 1411 the kind and amount of stock and
other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, scheme of arrangement,
sale or conveyance by 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). Such supplemental indenture shall provide for adjustments of the
Conversion Rate which shall be as nearly equivalent as may be practicable
to the adjustments of the Conversion Rate provided for in this Article
Fourteen. If, in the case of any such consolidation, merger, scheme of
arrangement, sale or conveyance, the stock or other securities and property
(including cash) receivable thereupon by a holder of Ordinary Shares
include shares of stock or other securities and property of a Person other
than the successor, purchasing or transferee corporation, as the case may
be, in such consolidation, merger, scheme of arrangement, sale or
conveyance, then such supplemental indenture shall also be executed by such
other Person and shall contain such additional provisions to protect the
interests of the Holders of the 2021 Debentures as the Board of Directors
shall reasonably consider necessary by reason of the foregoing. The
provisions of this Section 1411 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, schemes of
arrangements, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 1411, the Company shall promptly file with the
Trustee (x) an Officers' Certificate briefly stating the reasons therefor,
the kind or amount of
26
shares of stock or other securities or property (including cash) receivable
by Holders of the 2021 Debentures upon the conversion of their 2021
Debentures after any such reclassification, change, consolidation, merger,
scheme of arrangement, sale or conveyance, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with
and (y) an Opinion of Counsel that all conditions precedent have been
complied with, and shall promptly mail notice thereof to all Holders.
Section 1412 Trustee's Disclaimer
The Trustee shall have no duty to determine when an adjustment under
this Article Fourteen should be made, how it should be made or what such
adjustment should be, but may accept as conclusive evidence of that fact or
the correctness of any such adjustment, and shall be protected in relying
upon, an Officers' Certificate including the Officers' Certificate with
respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 1409. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
2021 Debentures, and the Trustee shall not be responsible for the Company's
failure to comply with any provisions of this Article Fourteen.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture
executed pursuant to Section 1411, but may accept as conclusive evidence of
the correctness thereof, and shall be fully protected in relying upon, the
Officers' Certificate with respect thereto which the Company is obligated
to file with the Trustee pursuant to Section 1411.
Section 1413 Voluntary Increase
The Company from time to time may increase the Conversion Rate by any
amount for any period of time if the period is at least 20 days or such
longer period as may be required by law and if the increase is irrevocable
during the period.
ARTICLE FIFTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
Section 1501 General
The Company may be required to repurchase 2021 Debentures in
accordance with their terms and in accordance with this Article.
2021 Debentures shall be purchased by the Company under the paragraph
"Repurchase by the Company at the Option of the Holder" of the 2021
Debentures on May 15, 2006, May 15, 2011 and May 15, 2016 (each, a
27
"Repurchase Date"), at the repurchase price specified therein (the
"Repurchase Price"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written notice of
purchase (a "Repurchase Notice") at any time from the opening of business
on the date that is 20 Business Days prior to a Repurchase Date until the
close of business on such Repurchase Date stating:
(A) the certificate number of the 2021 Debenture which the Holder
will deliver to be repurchased or if any of the 2021 Debentures is in
the form of a Global Security, then a beneficial owner of a 2021
Debenture shall comply with the procedures of the Depositary
applicable to the repurchase of a Global Security,
(B) the portion of the Principal Amount of the 2021 Debenture
which the Holder will deliver to be repurchased, which portion must be
$1,000 or an integral multiple thereof,
(C) that such 2021 Debenture shall be purchased as of the
Repurchase Date pursuant to the terms and conditions specified under
the caption "Repurchase by the Company at the Option of the Holder" of
the 2021 Debentures and in this Indenture,
(D) in the event that the Company elects, pursuant to Section
1502 hereof, to pay the Repurchase Price to be paid as of such
Repurchase Date, in whole or in part, in Ordinary Shares but such
portion of the Repurchase Price shall ultimately be payable to such
Holder entirely in cash because any of the conditions to payment of
the Repurchase Price in Ordinary Shares is not satisfied prior to the
close of business on such Repurchase Date, as set forth in Section
1503 hereof, whether such Holder elects (i) to withdraw such
Repurchase Notice as to some or all of the 2021 Debentures to which
such Repurchase Notice relates (stating the Principal Amount at
Maturity and certificate numbers of the 2021 Debentures as to which
such withdrawal shall relate or if certificated 2021 Debentures have
not been issued, a beneficial owner of a 2021 Debenture shall comply
with the procedures of the Depositary applicable to the withdrawal of
a Repurchase Notice), or (ii) to receive cash in respect of the entire
Repurchase Price for all 2021 Debentures (or portions thereof) to
which such Repurchase Notice relates, and
(2) delivery of such 2021 Debenture to the Paying Agent prior to, on
or after the Repurchase Date (together with all necessary endorsements) at
the offices of the Paying Agent, such delivery being a condition to receipt
by the Holder of the Repurchase Price therefor; provided, however, that
such Repurchase Price shall be so paid pursuant to this Article Fifteen
only if the 2021 Debenture so delivered to the Paying Agent shall conform
in all respects to the description thereof in the related Repurchase
Notice.
28
If a Holder, in such Holder's Repurchase Notice and in any written
notice of withdrawal delivered by such Holder pursuant to the terms of
Section 1509 hereof, fails to indicate such Holder's choice with respect to
the election set forth in clause (D) of Section 1501(1), such Holder shall
be deemed to have elected to receive cash in respect of the Repurchase
Price for all 2021 Debentures subject to the Repurchase Notice in the
circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Article Fifteen, a portion of a 2021 Debenture if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to the purchase of all of a 2021 Debenture also
apply to the purchase of such portion of such 2021 Debenture.
Any purchase by the Company contemplated pursuant to the provisions of
this Article Fifteen shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of
the Repurchase Date and the time of delivery of the 2021 Debenture.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Repurchase Notice contemplated by this Section 1501
shall have the right to withdraw such Repurchase Notice at any time prior
to the close of business on the Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 1509.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Repurchase Notice or written notice of withdrawal thereof.
Section 1502 The Company's Right to Elect Manner of Payment of Repurchase
Price
(a) The Repurchase Price of 2021 Debentures or a specified portion
thereof in respect of which a Repurchase Notice pursuant to Section 1501
has been given will be paid by the Company, at the election of the Company,
with cash or Ordinary Shares or in any combination of cash and Ordinary
Shares, subject to the conditions set forth in Section 1503 and 1504
hereof. The Company shall designate, in the Company Notice delivered
pursuant to Section 1505 hereof, whether the Company will purchase the 2021
Debentures for cash or Ordinary Shares, or, if a combination thereof, the
percentages of the Repurchase Price of 2021 Debentures in respect of which
it will pay in cash and Ordinary Shares; provided that the Company will pay
cash for fractional interests in Ordinary Shares. For purposes of
determining the existence of potential fractional interests, all 2021
Debentures subject to purchase by the Company held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented). Each Holder whose 2021 Debentures are purchased pursuant to
this Article Fifteen shall receive the same percentage of cash or Ordinary
Shares in payment of the Repurchase Price for such 2021 Debentures, except
(i) as provided in Section 1504 with regard to the payment of cash in lieu
of fractional
29
Ordinary Shares and (ii) in the event that the Company is unable to
purchase the 2021 Debentures of a Holder or Holders for Ordinary Shares
because any necessary qualifications or registrations of the Ordinary
Shares under applicable state securities laws cannot be obtained, the
Company may purchase the 2021 Debentures of such Holder or Holders for
cash. The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to be
paid once the Company has given its Company Notice to Holders except
pursuant to this Section 1502 or pursuant to Section 1504 in the event of a
failure to satisfy, prior to the close of business on the Repurchase Date,
any condition to the payment of the Repurchase Price, in whole or in part,
in Ordinary Shares.
At least three Business Days before the Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 1505,
(iii) if the Company elects to pay the Repurchase Price, or a
specified percentage thereof, in Ordinary Shares, that the conditions to
such manner of payment set forth in Section 1504 have been or will be
complied with, and
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 1505.
Section 1503 Purchase with Cash
On each Repurchase Date, at the option of the Company, the Repurchase
Price of 2021 Debentures in respect of which a Repurchase Notice pursuant
to Section 1501 has been given, or a specified percentage thereof, may be
paid by the Company with cash equal to the aggregate Repurchase Price of
such 2021 Debentures. If the Company elects to purchase 2021 Debentures
with cash, the Company Notice, as provided in Section 1505, shall be sent
to Holders (and to beneficial owners as required by applicable law) not
less than 20 Business Days prior to such Purchase Date (the "Company Notice
Date").
Section 1504 Payment by Issuance of Ordinary Shares
On each Repurchase Date, at the option of the Company, the Repurchase
Price of 2021 Debentures in respect of which a Repurchase Notice pursuant
to Section 1501 has been given, or a specified percentage thereof, may be
paid by the Company by the issuance of a number of Ordinary Shares equal to
the quotient obtained by dividing (i) the amount of cash to which the
Holders would have been entitled had the Company elected to pay all or such
specified percentage, as the case may be, of the Repurchase Price of such
2021 Debentures in cash by (ii) the Market Price of an Ordinary Share,
subject to the next succeeding paragraph.
30
The Company will not issue a fractional Ordinary Share in payment of
the Repurchase Price. Instead the Company will pay cash for the current
market value of the fractional share. The current market value of a
fraction of an Ordinary Share shall be determined by multiplying the Market
Price by such fraction and rounding the product to the nearest whole cent
with one half cent being rounded upwards. It is understood that if a
Holder elects to have more than one 2021 Debenture repurchased, the number
of Ordinary Shares shall be based on the aggregate amount of 2021
Debentures to be repurchased.
If the Company elects to purchase the 2021 Debentures by the issuance
of Ordinary Shares, the Company Notice, as provided in Section 1505, shall
be sent to the Holders (and to beneficial owners as required by applicable
law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase the 2021
Debentures pursuant to this Article Fifteen through the issuance of
Ordinary Shares shall be conditioned upon:
(i) the Company's not having given its Company Notice of an election
to pay entirely in cash and its giving of timely Company Notice of election
to purchase all or a specified percentage of the 2021 Debentures with
Ordinary Shares as provided herein;
(ii) the registration of the Ordinary Shares to be issued in respect
of the payment of the Repurchase Price under the Securities Act or the
Exchange Act, in each case, if required for the initial issuance thereof;
(iii) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
Ordinary Shares are in conformity with this Indenture and (B) the Ordinary
Shares to be issued by the Company in payment of the Repurchase Price in
respect of 2021 Debentures have been duly authorized and, when issued and
delivered pursuant to the terms of this Indenture in payment of the
Repurchase Price in respect of the 2021 Debentures, will be validly issued,
fully paid and non-assessable and, to the best of such counsel's knowledge,
free from preemptive rights, and, in the case of such Officer's
Certificate, stating that conditions (i), (ii) and (iii) above and the
condition set forth in the third paragraph of this Section 1504 have been
satisfied and, in the case of such Opinion of Counsel, stating that
conditions (ii) and (iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number of Ordinary
Shares to be issued for each $1,000 Principal Amount of 2021 Debentures and
the Sale Price of an Ordinary Share on each trading day during the period
31
commencing on the first trading day of the period during which the Market
Price is calculated and ending three Business Days prior to the applicable
Repurchase Date. The Company may pay the Repurchase Price (or any portion
thereof) in Ordinary Shares only if the information necessary to calculate
the Market Price is published in The Wall Street Journal or another daily
newspaper of national circulation. If the foregoing conditions are not
satisfied with respect to a Holder or Holders prior to the close of
business on the Repurchase Date and the Company has elected to repurchase
the 2021 Debentures pursuant to this Article Fifteen through the issuance
of Ordinary Shares, the Company shall pay, without further notice, the
entire Repurchase Price of the 2021 Debentures of such Holder or Holders in
cash.
The "Market Price" means the average of the Sale Prices of the
Ordinary Shares for the five trading day period ending on the third
Business Day prior to the applicable Repurchase Date (or if the third
Business Day prior to the applicable Repurchase Date is not a trading day,
then on the last trading day prior to such third Business Day),
appropriately adjusted to take into account the occurrence, during the
period commencing on the first of such trading days during such five
trading day period and ending on such Repurchase Date, of any event
described in Section 1406; subject, however, to the conditions set forth in
Sections 1406(f) and 1407.
The "Sale Price" of the Ordinary Shares on any date means the closing
sale price per Ordinary Share (or, if no closing sale price is reported,
the average of the closing bid and ask prices or, if more than one in
either case, the average of the average closing bid and average closing ask
prices) on such date as reported in the composite transactions for the
principal United States securities exchange on which the Ordinary Shares
are traded or, if the Ordinary Shares are not listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or its
successors.
Section 1505 Notice of Election
The Company's notice of election to repurchase with cash or Ordinary
Shares or any combination thereof shall be sent to the Holders in the
manner provided in Section 106 at the time specified in Section 1503 or
1504, as applicable (the "Company Notice"). Such Company Notice shall state
the manner of payment elected and shall contain the following information:
In the event the Company has elected to pay the Repurchase Price (or a
specified percentage thereof) with Ordinary Shares, the Company Notice
shall:
(1) state that each Holder will receive Ordinary Shares with a Market
Price equal to the Repurchase Price (or such specified percentage thereof)
of the 2021 Debentures held by such Holder (except any cash amount to be
paid in lieu of fractional shares);
32
(2) set forth the method of calculating the Market Price of the
Ordinary Shares; and
(3) state that because the Market Price of Ordinary Shares will be
determined prior to the Repurchase Date, Holders will bear the market risk
with respect to the value of the Ordinary Shares to be received from the
date such Market Price is determined to the Repurchase Date.
In any case, each Company Notice shall include a form of Repurchase
Notice to be completed by a Holder and shall state:
(A) the Repurchase Price and the Conversion Rate;
(B) the name and address of the Paying Agent and the Conversion Agent;
(C) that 2021 Debentures as to which a Repurchase Notice has been
given may be converted pursuant to Article Fourteen hereof only if the
applicable Repurchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(D) that 2021 Debentures must be surrendered to the Paying Agent to
collect payment;
(E) that the Repurchase Price for any 2021 Debenture as to which a
Repurchase Notice has been given and not withdrawn will be paid promptly
following the later of the Repurchase Date and the time of surrender of
such 2021 Debenture as described in (D);
(F) the procedures the Holder must follow to exercise repurchase
rights under this Article Fifteen and a brief description of those rights;
(G) briefly, the conversion rights of the 2021 Debentures; and
(H) the procedures for withdrawing a Repurchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 1501 or 1509).
At the Company's request, the Trustee shall give such Company Notice
in the Company's name and at the Company's expense; provided, however,
that, in all cases, the text of such Company Notice shall be prepared by
the Company.
Upon determination of the actual number of Ordinary Shares to be
issued for each $1,000 Principal Amount of 2021 Debentures, the Company
will publish such determination at the Company's Web site on the World Wide
Web or through such other public medium as the Company may use at that
time.
33
Section 1506 Covenants of the Company
All Ordinary Shares delivered upon purchase of the 2021 Debentures
shall be newly issued shares, shall be duly authorized, validly issued,
fully paid and nonassessable and shall be free from preemptive rights and
free of any lien or adverse claim. The Company shall use its reasonable
efforts to list or cause to have quoted any Ordinary Shares to be issued to
purchase 2021 Debentures on the principal national securities exchange or
over-the-counter or other domestic market on which the Ordinary Shares are
then listed or quoted.
Section 1507 Procedure upon Repurchase
The Company shall deposit cash (in respect of a cash purchase under
Section 1503 or for fractional Ordinary Shares, as applicable) or Ordinary
Shares, or a combination thereof, as applicable, at the time and in the
manner as provided in Section 1510, sufficient to pay the aggregate
Repurchase Price of all 2021 Debentures to be purchased on the applicable
Repurchase Date pursuant to this Article Fifteen.
As soon as practicable after the Repurchase Date, the Company shall
deliver to each Holder entitled to receive Ordinary Shares through the
Paying Agent, a certificate for the number of full Ordinary Shares issuable
in payment of the Repurchase Price and cash in lieu of any fractional
Ordinary Shares. The Person in whose name the certificate for Ordinary
Shares is registered shall be treated as a holder of record of Ordinary
Shares on the Business Day following the Repurchase Date. Subject to
Section 1504, no payment or adjustment will be made for dividends on the
Ordinary Shares the record date for which occurred on or prior to the
Repurchase Date.
Section 1508 Taxes
If a Holder of a 2021 Debenture is paid in Ordinary Shares, the
Company shall pay any documentary, stamp or similar issue or transfer tax
due on such issue of Ordinary Shares. However, the Holder shall pay any
such tax which is due because the Holder requests the Ordinary Shares to be
issued in a name other than the Holder's name. The Paying Agent may refuse
to deliver the certificates representing the Ordinary Shares being issued
in a name other than the Holder's name until the Paying Agent receives a
sum sufficient to pay any tax which will be due because the Ordinary Shares
are to be issued in a name other than the Holder's name. Nothing herein
shall preclude any income tax withholding required by law or regulations,
subject to the payment by the Company of any Tax Additional Amounts
required by the terms of each 2021 Debenture.
Section 1509 Effect of Repurchase Notice
Upon receipt by the Paying Agent of the Repurchase Notice, the Holder
of the 2021 Debenture in respect of which such Repurchase Notice was given
shall (unless such Repurchase Notice is withdrawn as specified in the
following two
34
paragraphs) thereafter be entitled to receive solely the Repurchase Price
with respect to such 2021 Debenture. Such Repurchase Price shall be paid to
such Holder, subject to receipt of funds and/or Ordinary Shares by the
Paying Agent, promptly following the later of (x) the Repurchase Date with
respect to such 2021 Debenture (provided the conditions in Section 1501
have been satisfied) and (y) the time of delivery of such 2021 Debenture to
the Paying Agent by the Holder thereof in the manner required by Section
1501. 2021 Debentures in respect of which a Repurchase Notice has been
given by the Holder thereof may not be converted pursuant to Article
Fourteen hereof on or after the date of the delivery of such Repurchase
Notice unless such Repurchase Notice has first been validly withdrawn as
specified in the following two paragraphs.
A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with
the Repurchase Notice at any time prior to the close of business on the
applicable Repurchase Date specifying:
(1) the certificate number of the 2021 Debenture in respect of which
such notice of withdrawal is being submitted or if any of the 2021
Debentures is in the form of a Global Security, then a beneficial owner of
a 2021 Debenture shall comply with the procedures of the Depositary
applicable to the withdrawal of a Repurchase Notice;
(2) the Principal Amount of the 2021 Debenture with respect to which
such notice of withdrawal is being submitted; and
(3) the Principal Amount, if any, of such 2021 Debenture which remains
subject to the original Repurchase Notice and which has been or will be
delivered for purchase by the Company.
A written notice of withdrawal of a Repurchase Notice may be in the
form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Repurchase Notice pursuant to the
terms of Section 1501(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 1501(1)(D) and the preceding paragraph and
contained in a written notice of withdrawal delivered to the Paying Agent
as set forth in the preceding paragraph.
There shall be no purchase of any 2021 Debentures pursuant to this
Article Fifteen (other than through the issuance of Ordinary Shares in
payment of the Repurchase Price, including cash in lieu of fractional
shares) if there has occurred (prior to, on or after, as the case may be,
the giving, by the Holders of such 2021 Debentures, of the required
Repurchase Notice) and is continuing an Event of Default (other than a
default in the payment of the Repurchase Price with respect to such 2021
Debentures). The Paying Agent will promptly return to the respective
Holders thereof any 2021 Debentures (x) with respect to which a Repurchase
Notice has been withdrawn in compliance with this Indenture, or (y)
35
held by it during the continuance of an Event of Default (other than a
default in the payment of the Repurchase Price with respect to such 2021
Debentures) in which case, upon such return, the Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.
Section 1510 Deposit of Repurchase Price
Prior to 11:00 a.m. (New York City time) on the Business Day following
the Repurchase Date, the Company shall deposit with the Trustee or with the
Paying Agent an amount of money (in immediately available funds if
deposited on such Business Day) and/or Ordinary Shares, if permitted
hereunder, sufficient to pay the aggregate Repurchase Price of all of the
2021 Debentures or portions thereof which are to be purchased as of the
Repurchase Date.
Section 1511 Securities Repurchased in Part
Any 2021 Debenture which is to be purchased only in part shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company or the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such 2021 Debenture, without service charge, a
new 2021 Debenture or 2021 Debentures, of any authorized denomination as
requested by such Holder in aggregate Principal Amount equal to, and in
exchange for, the portion of the Principal Amount of the 2021 Debenture so
surrendered which is not purchased.
Section 1512 Comply with Securities Laws Upon Purchase of Securities
In connection with any offer to purchase or purchase of 2021
Debentures under this Article Fifteen (provided that such offer or purchase
constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), the Company shall (i)
comply with Rule 13e-4 under the Exchange Act, (ii) file the related
Schedule TO (or any successor schedule, form or report) under the Exchange
Act, and (iii) otherwise comply with all Federal and state securities laws
so as to permit the rights and obligations under Article Fifteen to be
exercised in the time and in the manner specified in this Article Fifteen.
Section 1513 Repayment to the Company
The Trustee and the Paying Agent shall return to the Company any cash
or Ordinary Shares that remain unclaimed for two years, subject to
applicable unclaimed property law, together with interest or dividends, if
any, thereon held by them for the payment of the Repurchase Price;
provided, however, that to the extent that the aggregate amount of cash or
Ordinary Shares deposited by the Company pursuant to Section 1510 exceeds
the aggregate Repurchase Price of the
36
2021 Debentures or portions thereof which the Company is obligated to
purchase as of the Repurchase Date, then promptly after the Business Day
following the Repurchase Date the Trustee shall return any such excess to
the Company together with interest or dividends, if any, thereon. After
that, Holders entitled to money must look to the Company for payment as
general creditors, unless an applicable abandoned property law designates
another Person.
Section 1514 Conversion Arrangement on Repurchase
Any 2021 Debentures required to be repurchased under this Article
Fifteen, unless surrendered for conversion before the close of business on
the Repurchase Date, may be deemed to be purchased from the Holders of such
2021 Debentures for an amount in cash not less than the Repurchase Price,
by one or more investment bankers or other purchasers who may agree with
the Company to purchase such 2021 Debentures from the Holders, to convert
them into Ordinary Shares of the Company and to make payment for such 2021
Debentures to the Trustee in trust for such Holders.
SECTION 214 Amendment to Events of Default.
(a) Clause (1) of Section 501 of the Indenture is amended to read in its
entirety as follows:
(1) default in the payment of any interest or of any Tax Additional
Amounts upon any 2021 Debentures when such interest or Tax Additional
Amounts become due and payable and continuance of such default for a period
of 30 days;
(b) Clause (2) of Section 501 of the Indenture is amended to read in its
entirety as follows:
(2) default in the payment of the Principal Amount, the Redemption
Price, the Repurchase Price or the Change in Control Purchase Price when
the same becomes due and payable at its Stated Maturity upon redemption,
upon declaration of acceleration, when due for repurchase by the Company or
otherwise;
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301 Integral Part.
This Fourth Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 302 General Definitions.
For all purposes of this Fourth Supplemental Indenture:
37
(a) capitalized terms used herein without definition shall have the
meanings specified in the Indenture; and
(b) the terms "herein", "hereof", "hereunder" and other words of similar
import refer to this Fourth Supplemental Indenture.
SECTION 303 Adoption, Ratification and Confirmation.
The Indenture, as supplemented and amended by this Fourth Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 304 Counterparts.
This Fourth Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed an original; and
all such counterparts shall together constitute but one and the same instrument.
SECTION 305 Governing Law.
THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
38
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed and their respective corporate seals to be
hereunto fixed and attested as of the day and year first written above.
TRANSOCEAN SEDCO FOREX INC.
[SEAL]
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President, Finance and
Treasurer
THE CHASE MANHATTAN BANK, AS TRUSTEE
[SEAL]
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Trust Officer
39
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me on May 11, 2001, by
Xxxxxxx Xxxxxxx, the Vice President of TRANSOCEAN SEDCO FOREX INC., a
Cayman Islands exempted company limited by shares, on behalf of said company.
/s/ XXXXXX XXXXXXX
------------------------------------
Notary Public
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me on May 11, 2001, by
Xxxxx X. Xxxxx, a Vice President and Trust Officer of The Chase Manhattan Bank,
a New York banking corporation, on behalf of said banking corporation.
/s/ XXXXXX XXXXXXX
------------------------------------
Notary Public
40
ANNEX A
[FORM OF GLOBAL SECURITY]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL
SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
FORM OF 1.5% CONVERTIBLE DEBENTURES
DUE MAY 15, 2021
TRANSOCEAN SEDCO FOREX INC.
Issue Date: May 11, 2001 Maturity: May 15, 2021
Principal Amount: $400,000,000 CUSIP: 893830 AD1
Registered: No. R-
Transocean Sedco Forex Inc., a Cayman Islands exempted company limited by
shares (herein called the "Company", which term includes any successor
corporation under the indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co., or registered assigns, the principal sum
of Four Hundred Million Dollars ($400,000,000) on May 15, 2021 and to pay
interest thereon and Tax Additional Amounts, if any, in immediately available
funds as specified on the other side of this Security. This Security is
convertible as specified on the other side of this Security.
Payment of the principal of and interest and Tax Additional Amounts, if
any, on this Security will be made at the office or agency of the Company
maintained for that purpose in the City of New York, New York or Dallas, Texas
in such coin or currency of the United States of
A-1
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company, payment of
interest and Tax Additional Amounts, if any, may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer of immediately available funds to the
accounts designated by the Holder of this Security.
Reference is hereby made to the further provisions of this Security 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 Security
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 instrument to be duly
executed under its corporate seal.
Dated:
TRANSOCEAN SEDCO FOREX INC.
By:
-------------------------------------
Name:
Title:
Attest:
--------------------------------
Assistant Secretary
[SEAL]
A-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, AS TRUSTEE
--------------------------------------
Authorized Signature
Date of Authentication:
----------------
A-3
[FORM OF REVERSE SIDE OF SECURITY]
TRANSOCEAN SEDCO FOREX INC.
1.5% CONVERTIBLE DEBENTURE DUE MAY 15, 2021
This Security is one of a duly authorized issue of senior securities of the
Company issued and to be issued in one or more series under an Indenture, dated
as of April 15, 1997, as amended by the First Supplemental Indenture thereto
dated as of April 15, 1997, the Second Supplemental Indenture thereto dated as
of May 14, 1999, the Third Supplemental Indenture thereto dated as of May 24,
2000 and the Fourth Supplemental Indenture thereto dated as of May 11, 2001 (as
so amended, 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), or their respective predecessors, as
applicable, 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 and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $400,000,000. As used
herein, the term "Securities" means securities of the series designated on the
face hereof except that, where the context requires that such term be construed
as including another series of securities (e.g., where phrases such as
"Securities of each series" or Securities of any series" or similar phrases are
used), the term "Securities" means securities of any series issued or to be
issued under the Indenture.
INTEREST
The rate at which this Security shall bear interest shall be 1.5% per
annum. The date from which interest shall accrue for this Security shall be
May 11, 2001. The Interest Payment Dates on which interest on this Security
shall be payable are May 15 and November 15 of each year, commencing on
November 15, 2001. The Regular Record Date for the interest payable on this
Security on any Interest Payment Date shall be the May 1 or November 1, as the
case may be, immediately preceding such Interest Payment Date. Interest will
cease to accrue on this Security upon its maturity, conversion, purchase by the
Company at the option of a holder or redemption.
METHOD OF PAYMENT
Payments in respect of principal of and interest, if any, on the Securities
shall be made by the Company in immediately available funds.
OPTIONAL REDEMPTION
No sinking fund is provided for the Securities of this series. After May
20, 2006, the Securities of this series are redeemable as a whole, or from time
to time in part, at any time at the option of the Company at a redemption price
(the "Redemption Price") equal to the Principal Amount plus accrued and unpaid
interest up to but not including the Redemption Date.
A-4
If the Company redeems less than all of the outstanding Securities, the
Trustee will select the Securities to be redeemed (i) by lot, (ii) pro rata or
(iii) by another method the Trustee considers fair and appropriate. If the
Trustee selects a portion of a Holder's Securities for partial redemption and
the Holder converts a portion of the same Securities, the converted portion will
be deemed to be from the portion selected for redemption.
NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 20 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. Securities in denominations
larger than $1,000 Principal Amount may be redeemed in part, but only in whole
multiples of $1,000. On and after the Redemption Date, subject to the deposit
with the Paying Agent of funds sufficient to pay the Redemption Price, interest
ceases to accrue on Securities or portions thereof called for redemption.
PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the Principal Amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Securities held by
such Holder on the date that is 35 Business Days after the occurrence of a
Change in Control, at a Change in Control Purchase Price equal to the Principal
Amount plus accrued and unpaid interest up to but not including the Change in
Control Purchase Date. The Holder shall have the right to withdraw any Change in
Control Purchase Notice (in whole or in a portion thereof that is $1,000
Principal Amount or an integral multiple of $1,000 in excess thereof) at any
time prior to the close of business on the Business Day prior to the Change in
Control Purchase Date by delivering a written notice of withdrawal to the Paying
Agent in accordance with the terms of the Indenture.
CONVERSION
A Holder of a Security may convert the Security into Ordinary Shares at any
time until the close of business on the Business Day prior to the Stated
Maturity; provided, that one of the conditions in the following paragraph is
satisfied; provided, further, that if the Security is called for redemption, the
conversion right will terminate at the close of business on the fourth Trading
Day prior to the earlier of (a) May 15, 2021 and (b) the date on which such
Security (or portion thereof) is redeemed (unless the Company shall default in
making the redemption payment when due, in which case the conversion right shall
terminate at the close of business on the date such default is cured and such
Security is redeemed). A Security in respect of which a Holder has delivered a
Repurchase Notice exercising the option of such Holder to require the Company to
purchase such Security may be converted only if such notice of exercise is
withdrawn in accordance with the terms of the Indenture. The initial Conversion
Rate is 13.8627 Ordinary Shares per $1,000 Principal Amount, subject to
adjustment in certain events described in the Indenture. The Company will
deliver cash or a check in lieu of any fractional Ordinary Share.
Holders may surrender Securities for conversion into Ordinary Shares on a
Conversion Date if the Sale Price (as defined in the Indenture) of the Ordinary
Shares is greater than 110% of
A-5
the then current Conversion Price for at least 20 Trading Days in the 30 Trading
Day period ending on the Trading Day immediately prior to the Conversion Date.
The "Conversion Price", as of any date, means an amount per Ordinary Share equal
to the quotient of (i) $1,000 (representing the Principal Amount of a Security
with such Principal Amount) divided by (ii) the number of Ordinary Shares
issuable upon conversion of a Security with a $1,000 Principal Amount on such
Conversion Date. In addition, a Holder may surrender for conversion a Security
or portion of a Security which has been called for redemption pursuant to the
section "Optional Redemption" hereof, even if the foregoing provision has not
been satisfied. In the event that the Company declares (a) a dividend or
distribution described in Section 1406(b) of the Indenture, or (b) a dividend or
distribution described in Section 1406(c) or (d)(1) of the Indenture where the
fair market value of such dividend or distribution per Ordinary Share, as
determined pursuant to Section 1406(c) or (d)(l), as applicable, of the
Indenture, exceeds 15% of the Sale Price of the Ordinary Shares as of the
Business Day prior to the date of declaration, the Securities may be surrendered
for conversion beginning on the date the Company gives notice to the Holders of
such right, which shall be not less than 20 days prior to the ex-dividend date
for such dividend or distribution and Securities may be surrendered for
conversion at any time thereafter until the close of business on the Business
Day immediately prior to the ex-dividend date or until the Company announces
that such distribution will not take place. Finally, in the event that the
Company is a party to a reclassification or change, consolidation, merger or
scheme of arrangement under Cayman Islands law, or a sale or conveyance of all
or substantially all of the Company's assets to another person, pursuant to
which the Ordinary Shares would be converted into shares of stock and other
securities and property (including cash) as set forth in Section 1411 of the
Indenture, the Securities may be surrendered for conversion at any time from and
after the date which is 15 days prior to the date the Company announces as the
anticipated effective time until 15 days after the actual date of such
transaction.
Securities surrendered for conversion after the close of business on any
Regular Record Date immediately preceding any Interest Payment Date and prior to
the opening of business of such Interest Payment Date (except Securities or
portions of Securities to be redeemed on a Redemption Date occurring during such
period) must be accompanied by payment from the Holder of an amount equal to the
interest thereon that the registered Holder is to receive from the Company on
such Interest Payment Date. Except where Securities surrendered for conversion
must be accompanied by payment as described above, no interest on converted
Securities will be payable by the Company on any Interest Payment Date
subsequent to the date of conversion.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Ordinary Shares except as provided
in the Indenture.
No fractional shares will be issued upon conversion; in lieu thereof, an
amount will be paid in cash based upon the closing price of the Ordinary Shares
on the Trading Day immediately prior to the Conversion Date.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Security to the Conversion Agent, (c) furnish appropriate
endorsements and transfer documents (including
A-6
any certification that may be required under applicable law) if required by the
Conversion Agent, and (d) pay any transfer or similar tax, if required.
REPURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on May 15, 2006, May 15, 2011 and May 15, 2016 (each, a
"Repurchase Date"), upon delivery of a Repurchase Notice containing the
information set forth in the Indenture, at any time from the opening of business
on the date that is 20 Business Days prior to such Repurchase Date until the
close of business on such Repurchase Date and upon delivery of the Securities to
the Paying Agent by the Holder as set forth in the Indenture.
The "Repurchase Price" shall be equal to the Principal Amount plus accrued
and unpaid interest up to but not including the Business Day immediately
following the Repurchase Date. The Repurchase Price may be paid, at the option
of the Company, in cash or by the issuance of Ordinary Shares at the Conversion
Rate, or in any combination thereof. Interest due on an Interest Payment Date
that is also a Repurchase Date will be paid to the holder of record on the
relevant Regular Record Date and will not be included in the Repurchase Price.
Holders have the right to withdraw any Repurchase Notice by delivering to
the Paying Agent a written notice of withdrawal prior to the close of business
on the Repurchase Date in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient to
pay the Repurchase Price of all Securities or portions thereof to be purchased
as of the Repurchase Date, is deposited with the Paying Agent on the Business
Day following the Repurchase Date, interest ceases to accrue on such Securities
(or portions thereof) immediately after such Repurchase Date, and the Holder
thereof shall have no other rights as such (other than the right to receive the
Repurchase Price upon surrender of such Security).
CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the
Redemption Price, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Securities from the Holders, to convert
them into Ordinary Shares of the Company and to make payment for such Securities
to the Paying Agent in trust for such Holders.
TAX ADDITIONAL AMOUNTS
The Company agrees that any amounts to be paid by the Company hereunder
with respect to any Security shall be paid without deduction or withholding for
any and all present and future withholding taxes, levies, imposts and charges
whatsoever imposed by or for the account of the Cayman Islands or any political
subdivision or taxing authority thereof or therein, or if deduction or
withholding of any such taxes, levies, imposts or charges shall at any time be
required by the Cayman Islands or any such subdivision or authority thereof or
therein, the Company will
A-7
(subject to compliance by the Holder of such Security with any relevant
administrative requirements) pay such additional amounts ("Tax Additional
Amounts") in respect of principal amount, premiums (if any), Redemption Price,
Repurchase Price and interest (if any), in accordance with the terms of the
Securities and the Indenture, as the case may be, in order that the amounts
received by the Holder of the Security, after such deduction or withholding,
shall equal the respective amounts of principal, premium (if any), Redemption
Price, Repurchase Price and interest (if any), in accordance with the terms of
the Securities and the Indenture, as specified in such Securities to which such
Holder is entitled; provided, however, that the foregoing shall not apply to:
(1) any such tax, levy, impost or charge which would not be payable or
due but for the fact that (A) the Holder of a Security (or a fiduciary, settlor,
beneficiary of, member or shareholder of, such Holder, if such Holder is an
estate, trust, partnership or corporation) is a domiciliary, national or
resident of, or engaging in business or maintaining a permanent establishment or
being physically present in, the Cayman Islands or such political subdivision or
otherwise having some present or former connection with the Cayman Islands other
than the holding or ownership of such Security or the collection of the
respective amounts of principal, premium (if any), Redemption Price, Repurchase
Price and interest (if any), in accordance with the terms of the Security and
the Indenture, or the enforcement of such Security or (B) where presentation is
required, such Security was presented more than 30 days after the date such
payment became due or was provided for, whichever is later;
(2) any estate, inheritance, gift, sales, transfer, excise, personal
property or similar tax, levy, impost or charge;
(3) any tax, levy, impost or charge which is payable otherwise than by
withholding from payment of the respective amounts of principal, premium (if
any), Redemption Price, Repurchase Price and interest (if any);
(4) any tax, levy, impost or charge which would not have been imposed
but for the failure to comply with certification, information, documentation or
other reporting requirements concerning the nationality, residence, identity or
connections with the relevant tax authority of the Holder or beneficial owner of
such Security, if such compliance is required by statute or by regulation as a
precondition to relief or exemption from such tax, levy, impost or charge; or
(5) any combination of (1) through (4);
nor shall any Tax Additional Amounts be paid to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Security to the
extent that a beneficiary or settlor with respect to such fiduciary, or a member
of such partnership or a beneficial owner thereof, would not have been entitled
to the payment of such Tax Additional Amounts had such beneficiary, settlor,
member or beneficial owner been the Holder of the Security.
TRANSFER
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for
A-8
registration or transfer at the office or agency in a Place of Payment for
Securities of this series, 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 hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of any
authorized denominations and for the same aggregate principal amount, executed
by the Company and authenticated and delivered by the Trustee, will be issued to
the designated transferee or transferees.
The Securities of this series 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 set forth therein
and on the face of this Security, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series 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 cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee or any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
AMENDMENT, SUPPLEMENT AND WAIVER; LIMITATION ON SUITS
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 of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
Subject to the right of the Holder of any Securities of this series to
institute proceedings to enforce the Holder's right to receive payment of the
principal thereof (and premium, if any) and interest thereon (or repurchase
price thereof) and any Tax Additional Amounts with respect thereto and to
receive shares on conversion, no Holder of the Securities of this series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to the Indenture, or for the appointment of a receiver or trustee, or for any
other remedy thereunder, unless
A-9
(1) an Event of Default with respect to the Securities of this series shall
have occurred and be continuing and such Holder has previously given written
notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of this series;
it being understood and intended that no one or more of such Holders shall have
the right in any manner whatever by virtue of, or by availing of, any provision
of the Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under the Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of its predecessor
under the Securities and the Indenture in accordance with the terms and
conditions of the Indenture, the predecessor corporation will (except in certain
circumstances specified in the Indenture) be released from those obligations.
DEFAULTS AND REMEDIES
If an Event of Default with respect to Securities of this series shall
occur and be continuing, all unpaid Principal Amount plus accrued and unpaid
interest through the acceleration date of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
DEFEASANCE
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
NO RECOURSE AGAINST OTHERS
No recourse shall be had for the payment of the principal of or the
interest, if any, on this Security, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of
A-10
the Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or directory, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment of penalty or
otherwise, all such liability being, by acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Security and the
Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
DEFINITIONS
All terms defined in the Indenture and used in this Security but not
specifically defined herein are used herein as so defined.
A-11
CONVERSION NOTICE
To convert this Security into Ordinary Shares of the Company, check the
box: [ ]
To convert only part of this Security, state the Principal Amount to be
converted (must be $1,000 or a multiple of $1,000): $______________.
If you want the stock certificate made out in another person's name, fill
in the form below:
________________________________________________________________________________
(Insert other person's soc. sec. or tax I.D. no.)
________________________________________________________________________________
(Print or type other person's name, address and zip code)
Your Signature:_____________________________________ Date:_____________________
(Sign exactly as your name appears on the other side of this Security)
* Signature guaranteed by:______________________________________________________
By:________________________________
----------
* The signature must be guaranteed by an institution which is a member of one of
the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.
A-12
OPTION OF HOLDER TO ELECT PURCHASE ON CHANGE IN CONTROL
If you want to elect to have this Security purchased, in whole or in
part, by the Company pursuant to Section 1110 of the Indenture, check the
following box:
If you want to have only part of this Security purchased by the
Company pursuant to Section 1110 of the Indenture, state the Principal Amount
you want to be purchased (must be $1,000 or a multiple of $1,000):
$________________
Your Signature:_________________________________ Date:______________________
(Sign exactly as your name appears on the other side of this Security)
* Signature guaranteed by:__________________________________________________
By:__________________________
-----------
* The signature must be guaranteed by an institution which is a member of one of
the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.
A-13
