EXHIBIT 4.1
Execution Copy
Transocean Sedco Forex Inc.
6.625% Notes Due 2011
7.500% Notes Due 2031
_____________
Purchase Agreement
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March 29, 2001
Xxxxxxx, Xxxxx & Co.,
As representatives (the "Representatives") of the
several Purchasers named in Schedule I hereto,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Transocean Sedco Forex Inc., a Cayman Islands exempted company (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto (the "Purchasers")
an aggregate of $700,000,000 principal amount of the Company's 6.625% Notes Due
2011 and an aggregate of $600,000,000 principal amount of the Company's 7.500%
Notes Due 2031 (collectively, the "Securities").
1. The Company represents and warrants to, and agrees with, each of the
Purchasers that:
(a) A preliminary offering circular, dated March 23, 2001 (the
"Preliminary Offering Circular"), and an offering circular, dated March 29,
2001 (the "Offering Circular", in each case including the international
supplement thereto, which is attached to and made a part of the Preliminary
Offering Circular and the Offering Circular), have been prepared in
connection with the offering of the Securities. Any reference to the
Preliminary Offering Circular or the Offering Circular shall be deemed to
refer to and include the Company's most recent Annual Report on Form 10-K
and all documents filed by the Company with the United States Securities
and Exchange Commission (the "Commission") pursuant to Section 13(a) or
15(d) of the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by such Annual
Report, on or prior to the date of the Preliminary Offering Circular or the
Offering Circular, as the case may be, and any reference to the Preliminary
Offering Circular or the Offering Circular, as the case may be, as amended
or supplemented, as of any specified date, shall be deemed to include (i)
any documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of the
Preliminary Offering Circular or the Offering Circular, as
the case may be, and prior to such specified date and (ii) any Additional
Issuer Information (as defined in Section 5(f)) furnished by the Company
prior to the completion of the distribution of the Securities; and all
documents filed under the Exchange Act and so deemed to be included in the
Preliminary Offering Circular or the Offering Circular, as the case may be,
or any amendment or supplement thereto are hereinafter called the "Exchange
Act Reports". The Exchange Act Reports, when they were or are filed with
the Commission, conformed or will conform in all material respects to the
applicable requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder. The Preliminary Offering Circular
or the Offering Circular and any amendments or supplements thereto and the
Exchange Act Reports did not and will not, as of their respective dates,
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a Purchaser through
Xxxxxxx, Sachs & Co. expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements incorporated by
reference in the Offering Circular any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Offering Circular, except for losses or interferences that would not,
individually or in the aggregate, have a material adverse effect on the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries considered as one
enterprise (a "Material Adverse Effect"); and, since the respective dates
as of which information is given in the Offering Circular, there has not
been any change in the share capital or capital stock (other than pursuant
to any employee benefit plans of the Company) or increase in long-term debt
of the Company or any of its subsidiaries or any change that would have a
Material Adverse Effect, or any development involving a prospective change
that, to the best knowledge of the Company, would reasonably be expected to
have a Material Adverse Effect, otherwise than as set forth or contemplated
in the Offering Circular;
(c) The Company has been duly incorporated and is validly existing as
an exempted company in good standing under the laws of the Cayman Islands,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Circular, and has been
duly qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such
qualification, except where the failure to be so qualified would not have a
Material Adverse Effect; and each subsidiary of the Company listed on
Exhibit A hereto has been duly organized, is validly existing and in good
standing (if applicable) under the laws of its jurisdiction of
organization;
(d) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of the Company have been
duly and validly authorized and issued and are fully paid and non-
assessable;
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(e) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
indenture, dated April 15, 1997 (the "Original Indenture"), between
Transocean Offshore Inc., the predecessor to the Company, and Texas
Commerce Bank National Association, as trustee (the "Trustee"), as amended
and supplemented by the First Supplemental Indenture, Second Supplemental
Indenture and Third Supplemental Indenture, dated April 15, 1997, May 14,
1999 and May 24, 2000, respectively (the Original Indenture as so amended
and supplemented, the "Indenture"), under which they are to be issued; the
Indenture has been duly authorized, executed and delivered by the Company
and the Trustee, and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, except as the enforceability
thereof may be subject to the effect of any bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity and public policy (regardless of whether enforcement
is sought in a proceeding at law or in equity) and to the discretion of the
court before which any proceeding may be brought; and the Securities will
conform, and the Indenture conforms, in all material respects to the
descriptions thereof in the Offering Circular;
(f) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of
the Memorandum and Articles of Association of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of
their properties, except, in each case other than with respect to such
Memorandum and Articles of Association, for any such conflict, breach,
violation or default which would not, individually or in the aggregate,
have a Material Adverse Effect and would not impair the Company's ability
to perform its obligations hereunder or under the Securities or the
Indenture or have any material adverse effect upon the consummation of the
transactions contemplated hereby and thereby; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except as contemplated by
the exchange and registration rights agreement to be entered into between
the Company and Xxxxxxx, Xxxxx & Co. with respect to the Securities (the
"Exchange and Registration Rights Agreement"), and except for such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers;
(g) Neither the Company nor any of its subsidiaries is in violation of
its Memorandum and Articles of Association or its Certificate of
Incorporation or By-laws, as the case may be, or in default in the
performance or observance of any material obligation, covenant or
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condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound, except for any such
violation or default which would not, individually or in the aggregate,
have a Material Adverse Effect;
(h) The statements set forth in the Offering Circular under the caption
"Description of Notes", insofar as they purport to constitute a summary of
the terms of the Securities, and under the captions "Description of the
Notes--Exchange Offer and Registration Rights", "Cayman Islands Tax
Consequences", "Certain United States Federal Tax Considerations" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair in
all material respects;
(i) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(j) The Company is not, and after giving effect to the offering and
sale of the Securities, will not be, an "investment company", as such term
is defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act");
(k) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company;
(l) Since the end of its latest fiscal year, the Company has timely
filed all documents and amendments to previously filed documents required
to be filed by it pursuant to Section 13(a), 13(c), 14 and 15(d) of the
Exchange Act and the rules and regulations of the Commission thereunder;
(m) To the knowledge of the Company, each of Ernst & Young LLP,
PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP, who have certified
certain financial statements of the Company or its subsidiaries, are
independent public accountants as required by the United States Securities
Act of 1933, as amended (the "Act"), and the rules and regulations of the
Commission thereunder;
(n) Prior to the date hereof, neither the Company nor any of its
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the offering of the Securities;
(o) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the meaning
of Rule 144A under the Act) as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system;
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(p) The Company is subject to Section 13 or 15(d) of the Exchange Act;
(q) Neither the Company nor any person acting on its behalf has offered
or sold the Securities by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Act or, with
respect to Securities sold outside the United States to non-U.S. persons
(as defined in Rule 902 under the Act), by means of any directed selling
efforts within the meaning of Rule 902 under the Act and the Company, any
affiliate of the Company and any person acting on its or their behalf has
complied with and will implement the "offering restriction" within the
meaning of such Rule 902; and
(r) Within the preceding six months, neither the Company nor any other
person acting on its behalf has offered or sold to any person any
Securities, or any securities of the same or a similar class as the
Securities, other than Securities offered or sold to the Purchasers
hereunder. The Company will take reasonable precautions designed to ensure
that any offer or sale, direct or indirect, in the United States or to any
U.S. person (as defined in Rule 902 under the Act) of any Securities or any
substantially similar security issued by the Company, within six months
subsequent to the date on which the distribution of the Securities has been
completed (as notified to the Company by Xxxxxxx, Sachs & Co.), is made
under restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities in the United
States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Act.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price (a) in the case of the 6.625% Notes due 2011, of 98.827% of the principal
amount thereof plus accrued interest from April 5, 2001 to the Time of Delivery
(as defined below) and (b) in the case of the 7.5% Notes due 2031, of 98.660% of
the principal amount thereof plus accrued interest from April 5, 2001 to the
Time of Delivery, the principal amounts of Securities set forth opposite the
name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Act in transactions meeting the requirements of
Rule 144A or (ii) upon the terms and conditions set forth in Annex I to this
Agreement;
(b) It is an "accredited investor" within the meaning of Rule 501 under the
Act; and
(c) It has not offered and will not offer or sell the Securities by any
form of general solicitation or general advertising, including but not limited
to the methods described in Rule 502(c) under the Act.
4. (a) The Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of
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the Company with The Depository Trust Company ("DTC") or its designated
custodian. The Company will deliver the Securities to Xxxxxxx, Xxxxx & Co., for
the account of each Purchaser, against payment by such Purchaser or on its
behalf of the purchase price therefor by wire transfer of Federal (same-day)
funds, to the account specified by the Company to the Representatives at least
forty-eight hours in advance of the Time of Delivery, by causing DTC to credit
the Securities to the account of Xxxxxxx, Sachs & Co. at DTC. The Company will
cause the certificates representing the Securities to be made available to
Xxxxxxx, Xxxxx & Co. for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be 9:30 a.m., New York City time, on April 5, 2001 or such other time and date
as Xxxxxxx, Sachs & Co. and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Purchasers
pursuant to Section 7(k) hereof, will be delivered at such time and date at the
offices of Xxxxx Xxxxx L.L.P., 910 Louisiana, Xxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx
(the "Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 5:00 p.m., New York City time, on the New York Business Day
immediately preceding the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make no
amendment or supplement to the Offering Circular which shall be disapproved by
you promptly after reasonable notice thereof; and to furnish you with copies
thereof;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Securities;
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Purchasers with copies of the Offering Circular and each
amendment or supplement thereto, and any amendment or supplement containing
amendments to the financial statements covered by the independent accountants'
reports in the Offering Circular, signed by the accountants, and additional
written and electronic copies thereof, in such quantities as you may from time
to time reasonably request, and if, at any time prior to the expiration of nine
months after the date of the Offering Circular, any event shall have occurred as
a result of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Circular is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Offering Circular, to notify
you and upon your request to prepare and furnish without charge to each
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Purchaser and to any dealer in securities as many written and electronic copies
as you may from time to time reasonably request of an amended Offering Circular
or a supplement to the Offering Circular which will correct such statement or
omission or effect such compliance (it being understood that (i) the Company is
not required to so notify any Purchaser which, as previously notified to the
Company by such Purchaser, has completed its resale of the Securities purchased
by it hereunder and (ii) it would not be reasonable for any Purchaser to request
any such copies if such Purchaser has completed its resale of the Securities
purchased by it hereunder);
(d) During the period beginning on the date hereof and continuing until the
date six months after the Time of Delivery, not to offer, sell, contract to sell
or otherwise dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Securities under circumstances
that would cause the exemption afforded by Section 4(2) of the Act to cease to
be applicable to the offer and sale of the Securities;
(e) During the period beginning on the date hereof and continuing to and
including the later of (i) the termination of trading restrictions applicable to
the Purchasers for the Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for the Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and which
are substantially similar to the Securities, without the prior written consent
of the Representatives (which consent shall not be unreasonably withheld);
(f) Not to be or become, at any time prior to the expiration of three years
after the Time of Delivery, an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company Act;
(g) For a period of three years beginning on the date hereof, at any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act, for
the benefit of holders from time to time of Securities, to furnish at its
expense, upon request, to holders of Securities and prospective purchasers of
securities information (the "Additional Issuer Information") satisfying the
requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(h) To the extent that any of the reports or other information referred to
in this Section 5(h) are prepared by the Company, to furnish to the Trustee, as
soon as practicable after the end of each fiscal year, an annual report
(including a balance sheet and statements of income, shareholders' equity and
cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the date of the Offering Circular), to make available to
its shareholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(i) During a period of three years from the date of the Offering Circular,
to furnish to you all such information concerning the business and financial
condition of the Company as you may from time to time reasonably request;
(j) During a period of two years after the Time of Delivery, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144
under the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them; and
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(k) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Offering Circular
under the caption "Use of Proceeds".
6. The Company covenants and agrees with the several Purchasers that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with the
preparation and printing of the Preliminary Offering Circular and the Offering
Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing or producing any Agreement among Purchasers, this Agreement, the
Indenture, the Blue Sky and legal investment surveys, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities, including, without
limitation, the Exchange and Registration Rights Agreement; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; and (vii)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Purchasers will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company shall have performed in all material
respects all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) Xxxxxxxx & Xxxxxxxx, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, with respect to the
matters covered in paragraphs (i), (ii), (v), (vii) and the last paragraph of
subsection (c) below as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(b) Walkers, special Cayman Islands counsel to the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Cayman Islands, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Circular;
(ii) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of the Company have been
duly and validly authorized;
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(iii) This Agreement and the Exchange and Registration Rights Agreement
have been duly authorized, executed and delivered by the Company and each
of the Second Supplemental Indenture and the Third Supplemental Indenture
to the Original Indenture has been duly authorized, executed and delivered
by the parties thereto (assuming for purposes of delivery, in each case,
that the Company has physically delivered to the other parties thereto such
documents originally executed by the Company);
(iv) The Securities have been duly authorized by the Company, and
assuming their due execution and delivery by the Company insofar as such
matters are governed by New York law, and further assuming their issuance
and authentication in accordance with the terms of the Indenture, the
Securities will be duly executed and delivered by the Company;
(v) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and the Exchange and Registration Rights Agreement and the
consummation of the transactions herein and therein contemplated will not
result in any violation of the Memorandum and Articles of Association of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body in the Cayman Islands having jurisdiction over
the Company or any of its subsidiaries or any of their properties;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body in the
Cayman Islands is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement, the Exchange and Registration Rights Agreement or the Indenture;
and
(vii) The statements set forth in the Offering Circular under the
caption "Cayman Islands Tax Consequences", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(c) Xxxxx Xxxxx L.L.P., United States counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Each of the Original Indenture and the First Supplemental
Indenture thereto has been duly authorized, executed and delivered by
Transocean Offshore Inc., a Delaware corporation; each of the Second
Supplemental Indenture and the Third Supplemental Indenture to the Original
Indenture, assuming its due authorization, and further assuming its due
execution and delivery by the Company insofar as such matters are governed
by Cayman Islands law, has been duly executed and delivered by the Company;
and the Indenture, assuming the due authorization, execution and delivery
thereof by the trustee thereunder, further assuming the due authorization
of the Second Supplemental Indenture and the Third Supplemental Indenture
by the Company, and further assuming the due execution and delivery of the
Second Supplemental Indenture and the third Supplemental Indenture by the
Company insofar as such matters are governed by Cayman Islands law,
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be subject to the effect of any bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other
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laws of general applicability relating to or affecting creditors' rights
and to general principles of equity and public policy (regardless of
whether enforcement is sought in a proceeding at law or in equity) and to
the discretion of the court before which any proceeding may be brought;
(ii) The Securities have been duly authenticated and issued pursuant
to the Indenture, and assuming their due authorization, and further
assuming their due execution and delivery by the Company insofar as such
matters are governed by Cayman Islands law, have been duly executed and
delivered by the Company and constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforceability thereof may be subject to
the effect of any bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity and
public policy (regardless of whether enforcement is sought in a proceeding
at law or in equity) and to the discretion of the court before which any
proceeding may be brought; and the Securities and the Indenture conform in
all material respects to the descriptions thereof in the Offering Circular;
(iii) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
that is included as an exhibit to the Company's Annual Report on Form 10-K
for the year ended December 31, 2000, nor will such actions result in any
violation of any statute, rule or regulation or any order known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their properties,
except for any such conflict, breach, violation or default which would not,
individually or in the aggregate, have a Material Adverse Effect and could
not reasonably be expected to adversely affect the Company's ability to
perform its obligations hereunder or under the Securities, the Exchange and
Registration Rights Agreement or the Indenture (it being understood that
for purposes of this opinion, such counsel shall not be required to pass
upon compliance with respect to antifraud or similar provisions of any law,
rule or regulation);
(iv) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body which, to
the best of such counsel's knowledge, has jurisdiction over the Company or
any of its subsidiaries or any of their properties is required under the
laws of the State of New York or the State of Texas for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, the Registration Rights Agreement or the
Indenture, except as contemplated by the Exchange and Registration Rights
Agreement and except for such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers;
(v) The statements set forth in the Offering Circular under the
caption "Description of Notes", insofar as they purport to constitute a
summary of the terms of the Securities, "Description of the Notes--Exchange
Offer and Registration Rights", "Certain United States Federal Tax
Considerations" and "Underwriting", insofar as they purport to
10
constitute a summary of the provisions of the laws and documents referred
to therein, are accurate in all material respects;
(vi) Assuming (A) the accuracy of the representations and warranties
of the Company in Sections 1(o), (p), (q) and (r) and of the Purchasers in
Sections 3(b) and (c), (B) compliance by the Company with its obligations
under Section 5(g) and by the Purchasers with their obligations under
Sections 3(a) and (c), (C) the compliance by the Purchasers with the
offering and transfer procedures and restrictions described in the Offering
Circular, (D) the accuracy of the representations and warranties made in
accordance with the Offering Circular by the investors to whom you
initially resell Securities and (E) receipt by the investors to whom you
initially resell Securities of copies of the Offering Circular prior to the
effectiveness of such resale, no registration of the Securities under the
Act, and no qualification of an indenture under the United States Trust
Indenture Act of 1939 with respect thereto, is required for the offer, sale
and initial resale of the Securities by the Purchasers in the manner
contemplated by this Agreement; and
(vii) The Company is not an "investment company", as such term is
defined in the Investment Company Act.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of independent public accountants for the Company and with
representatives and counsel of the Purchasers, at which the contents of the
Offering Circular and related matters were discussed, and although such counsel
has not independently verified such information and is not passing upon, and
does not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Offering Circular (except to the extent set
forth in clause (vi) above) such counsel will advise you that, on the basis of
the foregoing (and relying, as to materiality, to a certain extent upon officers
and other representatives of the Company), no facts have come to such counsel's
attention which lead such counsel to believe that the Offering Circular (other
than the financial statements and schedules, the notes thereto and the auditors'
report thereon and the other financial and accounting data included or
incorporated by reference therein, or omitted therefrom, as to which such
counsel has not been asked to comment) as of its date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading.
In the foregoing, phrases such as "to the best of our knowledge", "known to
such counsel" and those with equivalent wording shall refer to the conscious
awareness of information by the lawyers who have prepared the opinion, signed
the opinion or been actively involved in assisting or advising the Company in
connection with the preparation of the Offering Circular or related documents.
Such counsel may rely as to matters of Cayman Islands law upon the opinion
of Walkers furnished pursuant to Section 7(b) of this Agreement. Such counsel
may limit the foregoing opinions in all respects to the laws of the State of
Texas and the State of New York and applicable Federal law, in each case as in
effect on the date of such opinions;
(d) Xxxx X. Xxxxx, Senior Vice President and General Counsel of the
Company, shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect that:
11
(i) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is in default in the performance or observance
of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it is bound or
to which any of its property or assets is subject, except for any such
defaults which would not, individually or in the aggregate, have a Material
Adverse Effect;
(ii) To the best of such counsel's knowledge and other than as set
forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have a Material
Adverse Effect; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(iii) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel (after reasonable inquiry) to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for any such
conflict, breach, violation or default which would not, individually or in
the aggregate, have a Material Adverse Effect and would not impair the
Company's ability to perform its obligations hereunder or under the
Securities or the Indenture or have any material adverse effect upon the
consummation of the transactions contemplated hereby and thereby; and
(iv) The Exchange Act Reports (other than the financial statements
and schedules, the notes thereto and the auditors' report thereon and the
other financial and accounting data included or incorporated by reference
therein, or omitted therefrom, as to which such counsel has not been asked
to comment), when they were filed with the Commission, appear on their face
to comply as to form in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the Commission thereunder.
In addition, such counsel shall state that he has participated in
conferences with officers and other representatives of the Company,
representatives of independent public accountants for the Company and with
representatives and counsel of the Purchasers, at which the contents of the
Offering Circular and related matters were discussed, and although such counsel
has not independently verified such information and is not passing upon, and
does not assume any responsibility for, the accuracy, completeness or fairness
of the statements contained in the Offering Circular, such counsel will advise
you that, on the basis of the foregoing (and relying, as to materiality, to a
certain extent upon officers and other representatives of the Company), no facts
have come to such counsel's attention which lead such counsel to believe that
the Offering Circular (other than the financial statements and schedules, the
notes thereto and the auditors' report thereon and the other financial and
accounting data included or incorporated by reference therein, or omitted
therefrom, as to which such counsel has not been asked to comment) as of its
date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein
12
or necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
Such counsel may rely as to matters of Cayman Islands law upon the opinion
of Walkers furnished pursuant to Section 7(b) of this Agreement. Such counsel
may limit the foregoing opinions in all respects to the laws of the State of
Texas, as in effect on the date of such opinions;
(e) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, Ernst & Young LLP,
PricewaterhouseCoopers LLP and Xxxxxx Xxxxxxxx LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, to the effect set forth in Annex II;
(f) The Company shall have executed and delivered the Exchange and
Registration Rights Agreement in the form attached hereto as Exhibit B;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements incorporated
by reference in the Offering Circular any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, that would, individually or in the aggregate, have a Material Adverse
Effect, otherwise than as set forth or contemplated in the Offering Circular,
and (ii) since the respective dates as of which information is given in the
Offering Circular, there shall not have been any change in the share capital or
capital stock (other than pursuant to any employee benefit plans of the Company)
or increase in long-term debt of the Company or any of its subsidiaries or any
change that would have a Material Adverse Effect, or any development involving a
prospective change that would have a Material Adverse Effect, otherwise than as
set forth or contemplated in the Offering Circular, the effect of which, in any
such case described in clause (i) or (ii), is in the reasonable judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in this Agreement and in
the Offering Circular;
(h) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(i) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the reasonable judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Offering Circular; and
13
(j) The Company shall have furnished or caused to be furnished to you at
the Time of Delivery a certificate or certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Purchaser
against any losses, claims, damages or liabilities, joint or several, to which
such Purchaser may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Offering Circular or the Offering
Circular, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein not misleading, and will reimburse each Purchaser
for any legal or other expenses reasonably incurred by such Purchaser in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Preliminary Offering Circular or the
Offering Circular or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through Xxxxxxx, Sachs & Co. expressly for use therein; provided, further, that
the foregoing indemnity with respect to the Preliminary Offering Circular shall
not inure to the benefit of any Purchaser from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities, if a copy of
the Offering Circular had not been sent or given by or on behalf of such
Purchaser to such person at or prior to the written confirmation of the sale of
Securities to such person by such Purchaser and the untrue statement or alleged
untrue statement or omission or alleged omission in the Preliminary Offering
Circular was corrected in the Offering Circular.
(b) Each Purchaser will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Preliminary Offering Circular or the Offering Circular
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Purchaser through Xxxxxxx,
Xxxxx & Co. expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection,
14
except to the extent that the indemnifying party suffers actual prejudice as a
result of such failure. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then, except to the extent (but only to
the extent) that the indemnifying party suffers actual prejudice as a result of
any failure by the indemnified party to notify the indemnifying party of any
action, proceeding or investigation as contemplated by subsection (c) of this
Section 8, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Purchasers on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then, except to the extent (but only to the extent)
that the indemnifying party suffers actual prejudice as a result of any failure
by the indemnified party to notify the indemnifying party of any action,
proceeding or investigation as contemplated by subsection (c) of this Section 8,
each indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchasers on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Purchasers, in each case
as set forth in the Offering Circular. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the Purchasers
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Purchasers were treated as one entity for such purpose)
15
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Purchaser shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to investors were offered to investors exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Act; and the obligations of the Purchasers
under this Section 8 shall be in addition to any liability which the respective
Purchasers may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your opinion may
thereby be made necessary. The term "Purchaser" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
16
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Purchasers, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Purchaser except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxx Xxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Offering
Circular, Attention: Secretary; provided, however, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Purchaser at its address set forth in
its Purchasers' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any
17
right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence for this Agreement.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. Federal income tax benefits expected to be claimed with respect to such
transaction, without the Purchasers imposing any limitation of any kind.
18
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof for the Company and each of the Representatives
plus one for each counsel, and upon the acceptance hereof by you, on behalf of
each of the Purchasers, this letter and such acceptance hereof shall constitute
a binding agreement between each of the Purchasers and the Company. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
Transocean Sedco Forex Inc.
By: /s/ XXXXXX X. XXXX
________________________
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
Accepted as of the date hereof:
/s/ XXXXXXX, XXXXX & CO.
____________________________
(Xxxxxxx, Sachs & Co.)
19
SCHEDULE I
Principal Amount of
Purchaser Securities to be Purchased
--------- --------------------------
6.625% Notes 7.500% Notes
Due 2011 Due 2031
--------- --------
Xxxxxxx, Xxxxx & Co............................................... $357,000,000 $306,000,000
SunTrust Equitable Securities Corporation......................... $115,500,000 $ 99,000,000
ABN AMRO Incorporated............................................. $ 80,500,000 $ 69,000,000
Banc of America Securities LLC.................................... $ 42,000,000 $ 36,000,000
Xxxxx Fargo Brokerage Services, LLC............................... $ 42,000,000 $ 36,000,000
Credit Suisse First Boston Corporation............................ $ 14,000,000 $ 12,000,000
BNY Capital Markets, Inc.......................................... $ 7,000,000 $ 6,000,000
Banc One Capital Markets, Inc..................................... $ 7,000,000 $ 6,000,000
Credit Lyonnais (USA) Inc......................................... $ 7,000,000 $ 6,000,000
Mizuho International plc.......................................... $ 7,000,000 $ 6,000,000
Xxxxxxx Xxxxx Xxxxxx Inc.......................................... $ 7,000,000 $ 6,000,000
The Royal Bank of Scotland plc.................................... $ 7,000,000 $ 6,000,000
Tokyo-Mitsubishi International plc................................ $ 7,000,000 $ 6,000,000
------------ ------------
Total................................................... $700,000,000 $600,000,000
============ ============
20
ANNEX I
(1) The Securities have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. Each Purchaser represents that it has offered and sold the Securities, and
will offer and sell the Securities (i) as part of their distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Time of Delivery, only in accordance with Rule 903 of
Regulation S or Rule 144A under the Act. Accordingly, each Purchaser agrees that
neither it, its affiliates nor any persons acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser agrees that, at or
prior to confirmation of sale of Securities (other than a sale pursuant to Rule
144A), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date, except in either case in accordance with Regulation S (or
Rule 144A, if available) under the Securities Act. Terms used above have
the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery of
the Securities, except with its affiliates or with the prior written consent of
the Company. Each Purchaser agrees, with respect to resales made in reliance on
Rule 144A of any of the Securities, to deliver either with the confirmation of
such resale or otherwise prior to settlement of such resale a notice to the
effect that the resale of such Securities has been made in reliance upon the
exemption from the registration requirements of the Act provided by Rule 144A.
In addition,
(A) except to the extent permitted under U.S. Treas. Reg. (S) 1.163-
5(c)(2)(i)(D) (the "D Rules"), (i) each Purchaser agrees that it has not
offered or sold, and during the restricted period will not offer or sell,
Securities in bearer form to a person who is within the United States or
its possessions or to a U.S. person, and (ii) it has not delivered and will
not deliver within the United States or its possessions definitive
Securities in bearer form that are sold during the restricted period;
(B) each Purchaser represents and agrees that it has, and throughout
the restricted period will have, in effect procedures reasonably designed
to ensure that its employees or agents who are directly engaged in selling
Securities in bearer form are aware that such Securities may not be offered
or sold during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as permitted
by the D Rules;
A-1
(C) if it is a United States person, each such Purchaser represents
that it is acquiring the Securities in bearer form for purposes of resale
in connection with their original issuance and if it retains Securities in
bearer form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. (S) 1.163-5(c)(2)(i)(D)(6); and
(D) with respect to each affiliate that acquires from it Securities in
bearer form for the purpose of offering or selling such Securities during
the restricted period, such Purchaser either (i) repeats and confirms the
representations and agreements contained in clauses (A), (B) and (C) on its
behalf or (ii) agrees that it will obtain from such affiliate for the
Company's benefit the representations and agreements contained in clauses
(A), (B) and (C).
Terms used in this paragraph have the meanings given to them by the United
States Internal Revenue Code and regulations thereunder, including the D Rules.
(2) Each Purchaser further represents and agrees that (i) it has not
offered or sold and will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Xxx 0000 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.
(3) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each Purchaser
understands that no action has been taken to permit a public offering in any
jurisdiction outside the United States where action would be required for such
purpose. Each Purchaser agrees not to cause any advertisement of the Securities
to be published in any newspaper or periodical or posted in any public place and
not to issue any circular relating to the Securities, except in any such case
with Xxxxxxx, Sachs & Co.'s express written consent and then only at its own
risk and expense.
A-2
ANNEX II
Pursuant to Section 7(d) of the Purchase Agreement, the accountants shall
furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Exchange Act
and the applicable published rules and regulations thereunder;
(ii) In our opinion, the consolidated financial statements and
financial statement schedules audited by us and included in the Offering
Circular comply as to form in all material respects with the applicable
requirements of the Exchange Act and the related published rules and
regulations;
(iii) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Offering Circular
agrees with the corresponding amounts (after restatements where applicable)
in the audited consolidated financial statements for such five fiscal
years;
(iv) On the basis of limited procedures not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of the minute
books of the Company and its subsidiaries since the date of the latest
audited financial statements included in the Offering Circular, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in
the Offering Circular are not in conformity with generally accepted
accounting principles applied on the basis substantially consistent
with the basis for the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Offering Circular;
(B) any other unaudited income statement data and balance sheet
items included in the Offering Circular do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included in the Offering Circular;
(C) the unaudited financial statements which were not included in
the Offering Circular but from which were derived any unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Offering Circular and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for the
audited consolidated financial statements included in the Offering
Circular;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Offering Circular do not comply as to form
in all material respects with the applicable accounting requirements
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Offering Circular or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or shareholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the Offering
Circular except in each case for changes, increases or decreases which
the Offering Circular discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial statements
included in the Offering Circular to the specified date referred to in
clause (E) there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for decreases or increases which
the Offering Circular discloses have occurred or may occur or which
are described in such letter; and
(v) In addition to the examination referred to in their report(s)
included in the Offering Circular and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(iii) and (iv) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Offering Circular, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries and have found them to be in agreement.
EXHIBIT A
Company Name Jurisdiction
------------ ------------
Transocean Offshore Deepwater Drilling Inc. Delaware
Transocean Offshore International Ventures Ltd. Cayman Islands
Sedco Forex Holdings Ltd. British Virgin Islands
Sedco Forex International Inc. Panama
Transocean Holdings Inc. Delaware
R&B Falcon Corporation Delaware
R&B Falcon Drilling (International & Deepwater) Inc. Delaware
R&B Falcon Drilling Co. Oklahoma
Cliffs Drilling Company Delaware
EXHIBIT B
Transocean Sedco Forex Inc.
6.625% Notes Due 2011
7.5% Notes Due 2031
Exchange and Registration Rights Agreement
------------------------------------------
April 5, 2001
Xxxxxxx, Xxxxx & Co.,
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Transocean Sedco Forex, a Cayman Islands exempted company (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the
terms set forth in the Purchase Agreement (as defined herein) its 6.625%
Notes Due 2011 and its 7.5% Notes Due 2031. As an inducement to the
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company
agrees with the Purchasers for the benefit of holders (as defined herein)
from time to time of the Registrable Securities (as defined herein) as
follows:
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
"Base Interest" shall mean the interest that would otherwise accrue on the
Securities under the terms thereof and the Indenture, without giving effect to
the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered with
the Commission under the Exchange Act.
2
"Closing Date" shall mean the date on which the Securities are initially
issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the
particular purpose.
"Conduct Rules" shall have the meaning assigned thereto in Section
3(d)(xix) hereof.
"Effective Time," in the case of (i) an Exchange Registration, shall mean
the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that has
returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same may be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Exchange Registration" shall have the meaning assigned thereto in Section
3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned thereto
in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in Section
2(a) hereof.
The term "holder" shall mean each of the Purchasers and other persons who
acquire Registrable Securities from time to time (including any successors or
assigns), in each case for so long as such person owns any Registrable
Securities.
"Indenture" shall mean the Indenture, dated April 15, 1997, as amended and
supplemented by the First Supplemental Indenture, Second Supplemental
Indenture and Third Supplemental Indenture, dated April 15, 1997, May 14, 1999
and May 24, 2000, respectively, between the Company and Chase Bank of Texas,
National Association, as trustee (or their respective predecessors, as the
case may be), as the same may be further amended or supplemented from time to
time.
"NASD" shall have the meaning assigned thereto in Section 3(d)(xix) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of March
29, 2001 between the Purchasers and the Company relating to the Securities.
3
"Purchasers" shall mean the Purchasers named in Schedule I to the Purchase
Agreement.
"Registrable Securities" shall mean the Securities; provided, however, that
a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 hereof, until resale of such
Registrable Security has been effected within the 90-day period referred to in
Section 2(a) hereof); (ii) in the circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement registering such Security under the
Securities Act has been declared or becomes effective and such Security has
been sold or otherwise transferred by the holder thereof pursuant to and in a
manner contemplated by such effective Shelf Registration Statement; (iii) such
Security is sold pursuant to Rule 144 under circumstances in which any legend
borne by such Security relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed by the Company or pursuant
to the Indenture; (iv) such Security is eligible to be sold pursuant to
paragraph (k) of Rule 144; or (v) such Security ceases to be outstanding.
"Registration Default" shall have the meaning assigned thereto in Section
2(c) hereof.
"Registration Default Period" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in Section
4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a
holder who has arrangements or understandings with any person to participate
in the Exchange Offer for the purpose of distributing Exchange Securities and
(iv) a holder that is a broker-dealer, but only with respect to Exchange
Securities received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by such broker-dealer directly
from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such rule
promulgated under the Securities Act (or any successor provision), as such
rule may be amended from time to time.
"Securities" shall mean, collectively, the 6.625% Notes Due 2011 and the
7.5% Notes Due 2031 of the Company to be issued and sold to the Purchasers,
and securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any successor
thereto, as the same may be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
4
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Shelf Registration Suspension" shall have the meaning assigned thereto
in Section 3(h) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Suspension Notice" shall have the meaning assigned thereto in Section
3(h) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same may be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
use its reasonable best efforts to file under the Securities Act, no later
than 90 days after the Closing Date, a registration statement relating to
an offer to exchange (such registration statement, the "Exchange
Registration Statement", and such offer, the "Exchange Offer") any and all
of the Securities (subject to compliance by the holders of such Securities
with the terms and conditions of the Exchange Offer, including without
limitation the condition set forth in Section 3(i) hereof, and except for
Securities held by a Purchaser and acquired directly from the Company if
such Purchaser is not permitted, pursuant to applicable law or Commission
interpretation, to participate in the Exchange Offer) for a like aggregate
principal amount of debt securities issued by the Company, which debt
securities are substantially identical to the Securities (and are entitled
to the benefits of a trust indenture which is substantially identical to
the Indenture or is the Indenture and which has been qualified under the
Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not
contain provisions for the additional interest contemplated in Section 2(c)
below (such new debt securities hereinafter called "Exchange Securities").
The Company agrees to use its reasonable best efforts to cause the Exchange
Registration Statement to become effective under the Securities Act no
later than 180 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply
with all applicable tender offer rules and regulations under the Exchange
Act. The Company further agrees to use its reasonable best efforts to
commence and complete the Exchange Offer no later than 45 days after such
Exchange Registration Statement has become effective, hold the Exchange
Offer open for at least 30 days and exchange Exchange Securities for all
Registrable Securities that may legally be exchanged in the Exchange Offer
and that have been properly tendered and not withdrawn on or prior to the
expiration of the Exchange Offer. The Exchange Offer will be deemed to have
been "completed" only if the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are,
upon receipt, transferable by each such holder without restriction under
the Securities Act (except for the requirement to deliver a prospectus
included in the Exchange Registration Statement applicable to resales
5
by broker-dealers of Exchange Securities received by such broker-dealers
pursuant to the Exchange Offer in exchange for Securities other than those
acquired by such broker-dealers directly from the Company) and without
material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America, subject
to the proviso to Section 3(c)(vi) hereof. The Exchange Offer shall be
deemed to have been completed upon the earlier to occur of (i) the Company
having exchanged the Exchange Securities for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Company having
exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that may legally be exchanged in the Exchange Offer
and that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is at least
30 days following the commencement of the Exchange Offer. The Company
agrees (x) to include in the Exchange Registration Statement a prospectus
for use in any resales by any holder of Exchange Securities that is a
broker-dealer (other than resales by broker-dealers of Exchange Securities
received by such broker-dealers pursuant to the Exchange Offer in exchange
for Securities acquired by such broker-dealers directly from the Company)
and (y) in the event that any holder of Exchange Securities notifies the
Company that it is such a broker-dealer, to keep such Exchange Registration
Statement effective for a period (the "Resale Period") beginning when
Exchange Securities are first issued in the Exchange Offer and ending upon
the earlier of the expiration of the 90th day after the Exchange Offer has
been completed or such time as such broker-dealers no longer own any
Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d) and
(e) hereof.
(b) Subject to Section 3(h) hereof, if (i) on or prior to the time the
Exchange Offer is completed existing Commission interpretations are changed
such that the debt securities received by holders other than Restricted
Holders in the Exchange Offer for Registrable Securities are not or would
not be, upon receipt, transferable by each such holder without restriction
under the Securities Act (except for the requirement to deliver a
prospectus included in the Exchange Registration Statement applicable to
resales by broker-dealers of Exchange Securities received by such broker-
dealers pursuant to the Exchange Offer in exchange for Securities other
than those acquired by such broker-dealers directly from the Company) or
(ii) the Exchange Offer has not been completed within 225 days following
the Closing Date, the Company shall, in lieu of (or, in the case of clause
(iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), use its reasonable best efforts to file under the Securities
Act, no later than the later of 60 days after the time such obligation to
file arises and 90 days after the Closing Date, a "shelf" registration
statement providing for the registration of, and the sale on a continuous
or delayed basis by the holders of, all of the Registrable Securities,
pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). The Company agrees to use
its reasonable best efforts (x) to cause the Shelf Registration Statement
to become or be declared effective no later than 120 days after such Shelf
Registration Statement is filed and, subject to Section 3(h) hereof, to
keep such Shelf Registration Statement continuously effective for a period
ending on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities outstanding,
provided, however, that no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities
unless such holder is an Electing Holder, and (y) after the Effective Time
of the Shelf Registration Statement, as soon as reasonably practicable,
upon the
6
request of any holder of Registrable Securities that is not then an
Electing Holder, to take any action reasonably necessary to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities, including without limitation any action necessary
to identify such holder as a selling securityholder in the Shelf
Registration Statement, provided, however, that nothing in this Clause (y)
shall relieve any such holder of the obligation to return a completed and
signed Notice and Questionnaire to the Company in accordance with Section
3(d)(iii) hereof. The Company further agrees to supplement or make
amendments to the Shelf Registration Statement, as and when required by the
rules, regulations or instructions applicable to the registration form used
by the Company for such Shelf Registration Statement or by the Securities
Act or rules and regulations thereunder for shelf registration, and the
Company agrees to furnish to each Electing Holder copies of any such
supplement or amendment prior to its being used or promptly following its
filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the
date on which such registration statement is required to be filed pursuant
to Section 2(a) or 2(b), respectively, or (ii) such Exchange Registration
Statement or Shelf Registration Statement has not become effective or been
declared effective by the Commission on or before the date on which such
registration statement is required to become or be declared effective
pursuant to Section 2(a) or 2(b), respectively, or (iii) the Exchange Offer
has not been completed within 45 days after the initial effective date of
the Exchange Registration Statement relating to the Exchange Offer (if the
Exchange Offer is then required to be made) or (iv) any Exchange
Registration Statement or Shelf Registration Statement required by Section
2(a) or 2(b) hereof is filed and declared effective but thereafter either
is withdrawn by the Company or becomes subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the
effectiveness of such registration statement (except as specifically
permitted herein) without being succeeded as promptly as practicable by an
additional registration statement filed and declared effective or (v) the
Company is required to file a Shelf Registration Statement and effects one
or more Shelf Registration Suspensions for (A) more than 45 days, whether
or not consecutive, within any period of 90 consecutive days or (B) more
than 90 days, whether or not consecutive, within any period of 12
consecutive months (each such event referred to in clauses (i) through (v),
a "Registration Default" and each period during which a Registration
Default has occurred and is continuing, a "Registration Default Period"),
then, as liquidated damages for such Registration Default, subject to the
provisions of Section 9(b), special interest ("Special Interest"), in
addition to the Base Interest, shall accrue during the Registration Default
Period at a per annum rate of 0.25% for the first 90 days of the
Registration Default Period, at a per annum rate of 0.50% for the second 90
days of the Registration Default Period, at a per annum rate of 0.75% for
the third 90 days of the Registration Default Period and at a per annum
rate of 1.0% thereafter for the remaining portion of the Registration
Default Period; provided that, if the Company is obligated to file a Shelf
Registration Statement pursuant to Section 2(b) hereof and the Company
sends the Notice and Questionnaire to holders of Registrable Securities in
accordance with Section 3(d)(ii) hereof, then no holder who is not an
Electing Holder shall be entitled to any Special Interest.
(d) The Company shall take all actions reasonably necessary or
advisable to be taken by it to ensure that the transactions contemplated
herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as
7
of such time and any reference herein to any post-effective amendment to a
registration statement as of any time shall be deemed to include any
document incorporated, or deemed to be incorporated, therein by reference
as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section
2(a) or Section 2(b) hereof, the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture
under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) hereof
(the "Exchange Registration"), if applicable, the Company shall, as soon as
reasonably practicable (or as otherwise specified):
(i) use its reasonable best efforts to prepare and file
with the Commission, no later than 90 days after the Closing Date,
an Exchange Registration Statement on any form which may be
utilized by the Company and which shall permit the Exchange Offer
and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a)
hereof, and use its reasonable best efforts to cause such Exchange
Registration Statement to become effective no later than 180 days
after the Closing Date;
(ii) in the event that any holder of Exchange Securities
notifies the Company that it is entitled to use a resale prospectus
during the Resale Period, as soon as practicable prepare and file
with the Commission such amendments and supplements to such
Exchange Registration Statement and the prospectus included therein
as may be necessary to effect and maintain the effectiveness of
such Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by the
applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus included
therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may request
prior to the expiration of the Resale Period, for use in connection
with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has advised
the Company that it is entitled to use a resale prospectus during
the Resale Period and requested copies of the prospectus included
in such Exchange Registration Statement, and confirm such notice in
writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Exchange Registration Statement or any post-
effective amendment, when the same has become effective,
8
(B) of any comments made to the Company or its counsel by the Commission and by
the blue sky or securities commissioner or regulator of any state with respect
thereto or any request made to the Company or its counsel by the Commission for
amendments or supplements to such Exchange Registration Statement or prospectus
or for additional information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D) if at any
time the Company becomes aware that the representations and warranties of the
Company contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, or (F) at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or supplement or post-
effective amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(iv) in the event that the Company would be required, pursuant to Section
3(c)(iii)(F) above, to notify any broker-dealers holding Exchange Securities,
without unreasonable delay prepare and furnish to each such holder a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made and the circumstances then
existing. Each broker-dealer holding Exchange Securities during the Resale
Period agrees that upon receipt of any notice from the Company pursuant to
Section 3(c)(iii)(F) above, such broker-dealer shall forthwith discontinue
disposition of Exchange Securities pursuant to the Exchange Registration
Statement applicable to such Exchange Securities until such broker-dealer shall
have received copies of such amended or supplemented prospectus, and if so
directed by the Company, such broker-dealer shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
broker-dealer's possession of the prospectus covering such Exchange Securities
at the time of receipt of such notice;
(v) use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(vi) use its reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) hereof no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein
9
in such jurisdictions until the expiration of the Resale Period and (C)
take any and all other actions as may be reasonably necessary or advisable
to enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi), (2) consent to general service of
process, or take any action that it reasonably believes would subject it to
general service of process or taxation, in any such jurisdiction or (3)
make any changes to its Memorandum or Articles of Association or any
agreement between it and its stockholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by broker-
dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not later
than the applicable Effective Time of the Exchange Registration Statement;
and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon as
practicable but no later than eighteen months after the effective date of
such Exchange Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall, subject to Section 3(h), as soon
as reasonably practicable (or as otherwise specified):
(i) use its reasonable best efforts to prepare and file with the
Commission, within the time periods specified in Section 2(b) hereof, a
Shelf Registration Statement on any form which may be utilized by the
Company and which shall register all of the Registrable Securities for
resale by the holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time to
time, may be Electing Holders and use its reasonable best efforts to cause
such Shelf Registration Statement to become effective within the time
periods specified in Section 2(b) hereof;
(ii) not less than 30 calendar days prior to the Effective Time of
the Shelf Registration Statement, mail the Notice and Questionnaire to the
holders of Registrable Securities; no holder shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement as of the
Effective Time, and no holder shall be entitled to use the prospectus
forming a part thereof for resales of Registrable Securities at any time,
unless such holder has returned a completed and signed Notice and
Questionnaire to the Company by the deadline for response set forth
therein; provided, however, that holders of Registrable Securities shall
have at least 28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and
signed Notice and Questionnaire
10
to the Company;
(iii) after the Effective Time of the Shelf Registration Statement, upon
the request of any holder of Registrable Securities that is not then an Electing
Holder, promptly send a Notice and Questionnaire to such holder; provided that
the Company shall not be required to take any action to name such holder as a
selling securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed Notice and
Questionnaire to the Company;
(iv) as soon as reasonably practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration Statement
and the prospectus included therein as may be necessary to effect and maintain
the effectiveness of such Shelf Registration Statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form of
such Shelf Registration Statement, and furnish to the Electing Holders copies of
any such supplement or amendment simultaneously with or prior to its being used
or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of disposition by
the Electing Holders provided for in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters (which term,
for purposes of this Exchange and Registration Rights Agreement, shall include a
person deemed to be an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C) any sales or placement agent therefor, (D)
not more than one counsel for any such underwriter or agent and (E) not more
than one counsel for all the Electing Holders the opportunity to participate in
the preparation of such Shelf Registration Statement, each prospectus included
therein or filed with the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section 2(b)
hereof, make available at reasonable times at the Company's principal place of
business or such other reasonable place for inspection by the persons referred
to in Section 3(d)(vi) above who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to the Shelf
Registration such financial and other information and books and records of the
Company, and cause the officers, employees, counsel and independent certified
public accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the reasonable judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; provided, however, that each such
party shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the Company as
being confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such Shelf Registration
Statement or otherwise, but not because of disclosure, unauthorized by
11
the Company or its representatives, by such person or its representatives) or
(B) such person shall be required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such order, and
only after such person shall have given the Company prompt prior written notice
of such requirement) provided, further, that nothing herein shall restrict the
ability of any of the persons referred to in Section 3(d)(vi) above to share
such information with each other, whether or not the conditions set forth in
clause (A) or (B) of the forgoing proviso are satisfied;
(viii) promptly notify each of the Electing Holders, any sales or
placement agent therefor and any underwriter thereof (which notification may be
made through any managing underwriter that is a representative of such
underwriter for such purpose) and confirm such advice in writing, (A) when such
Shelf Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been filed,
and, with respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments made to the
Company or its counsel by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any request made
to the Company or its counsel by the Commission for amendments or supplements to
such Shelf Registration Statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the Company
becomes aware that the representations and warranties of the Company
contemplated by Section 3(d)(xvii) or Section 5 hereof cease to be true and
correct in all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities Act, that such Shelf
Registration Statement, prospectus, prospectus amendment or supplement or post-
effective amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(ix) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such Shelf Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any
placement or sales agent or any Electing Holder, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as such
managing underwriter or underwriters, such agent or such Electing Holder
reasonably specifies should be included therein relating to the terms of the
sale of such Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such Electing Holder or
agent or to any underwriters, the name and description of such Electing Holder,
agent or underwriter, the offering price of such
12
Registrable Securities and any discount, commission or other compensation
payable in respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold by such Electing Holder or agent or to
such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(xi) furnish to each Electing Holder, each placement or sales agent,
if any, therefor, each underwriter, if any, thereof and the respective
counsel referred to in Section 3(d)(vi) an executed copy (or, in the case
of an Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon request) and documents incorporated by
reference therein) and such number of copies of such Shelf Registration
Statement (excluding exhibits thereto and documents incorporated by
reference therein unless specifically so requested by such Electing Holder,
agent or underwriter, as the case may be) and of the prospectus included in
such Shelf Registration Statement (including each preliminary prospectus
and any summary prospectus), in conformity in all material respects with
the applicable requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, and such
other documents, as such Electing Holder, agent, if any, and underwriter,
if any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such Electing Holder,
offered or sold by such agent or underwritten by such underwriter and to
permit such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the Company
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such Electing Holder and by any such agent and underwriter, in each case in
the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Securities covered
by the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(xii) use its reasonable best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions as any
Electing Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to
remain effective under Section 2(b) above and for so long as may be
necessary to enable any such Electing Holder, agent or underwriter to
complete its distribution (so long as such distribution is commenced during
the period during which the Shelf Registration is required to remain
effective pursuant to Section 2(b) hereof) of Securities pursuant to such
Shelf Registration Statement and (C) take any and all other actions as may
be reasonably necessary or advisable to enable each such Electing Holder,
agent, if any, and underwriter, if any, to consummate the disposition in
such jurisdictions of such Registrable Securities; provided, however, that
the Company shall not be required for any such purpose to (1) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
wherein it would not
13
otherwise be required to qualify but for the requirements of this Section
3(d)(xii), (2) consent to general service of process, or take any action that it
reasonably believes would subject it to general service of process or taxation,
in any such jurisdiction or (3) make any changes to its Memorandum or Articles
of Association or any agreement between it and its stockholders;
(xiii) use its reasonable best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local, which
may be required to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or holders to offer, or to
consummate the disposition of, their Registrable Securities;
(xiv) unless any Registrable Securities are in book-entry only form,
cooperate with the Electing Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so required by any
securities exchange upon which any Registrable Securities are listed, shall be
penned, lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters may request at least two business days prior to any
sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable Securities, not later
than the applicable Effective Time;
(xvi) enter into one or more underwriting agreements, engagement letters,
agency agreements, "best efforts" underwriting agreements or similar agreements,
as appropriate, in each case as customary for agreements of such type, including
customary provisions relating to indemnification and contribution, and take such
other actions in connection therewith as any Electing Holders aggregating at
least 35% in aggregate principal amount of the Registrable Securities at the
time outstanding may request, and as are customarily taken, in order to expedite
or facilitate the disposition of such Registrable Securities; provided that the
Company shall not be required to enter into any such agreement with respect to
any or all of the Registrable Securities more than twice and may delay entering
into such agreement until the consummation of any underwritten public offering
in which the Company may then be engaged or which it intends to commence
reasonably promptly after such request;
(xvii) whether or not an agreement of the type referred to in Section
3(d)(xvi) hereof is entered into and whether or not any portion of the offering
contemplated by the Shelf Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the placement or
sales agent, if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made in connection with a similar
offering of debt securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the Shelf Registration;
(B) obtain an opinion of counsel to the Company in customary form and covering
such matters, of the type customarily covered by such an opinion, as the
managing underwriters, if any, or as any Electing Holders of at least 35% in
aggre-
14
gate principal amount of the Registrable Securities at the time outstanding may
reasonably request, addressed to such Electing Holder or Electing Holders and
the placement or sales agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such Shelf Registration Statement (and
if such Shelf Registration Statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the closing under
the underwriting agreement relating thereto) (it being agreed that the matters
to be covered by such opinion shall include the due incorporation and good
standing of the Company; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(d)(xvi) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the Securities; the absence of material legal or governmental
proceedings involving the Company; the absence of a breach by the Company or any
of its subsidiaries of, or a default under, material agreements binding upon the
Company or any subsidiary of the Company; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration, the offering
and sale of the Registrable Securities, this Exchange and Registration Rights
Agreement or any agreement of the type referred to in Section 3(d)(xvi) hereof,
except such approvals as may be required under state securities or blue sky
laws; the material compliance as to form of such Shelf Registration Statement
and any documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder, respectively; and, as of the date
of the opinion and of the Shelf Registration Statement or most recent post-
effective amendment thereto, as the case may be, the absence from such Shelf
Registration Statement and the prospectus included therein, as then amended or
supplemented, and from the documents incorporated by reference therein (in each
case other than the financial statements and schedules, the notes thereto and
the auditors' report thereon and the other financial and accounting data
included or incorporated by reference therein, or omitted therefrom, as to which
such counsel need not comment) of an untrue statement of a material fact or the
omission to state therein a material fact necessary to make the statements
therein not misleading (in the case of such documents, in the light of the
circumstances under which they were made and existing at the time that such
documents were filed with the Commission under the Exchange Act) and such
opinion (which may be delivered by separate firms or individuals) may be subject
to reasonable and customary limitations and exceptions (it being understood and
agreed that opinions substantially in the form contemplated by the Purchase
Agreement shall be deemed to be sufficient for purposes of this paragraph
(xvii))); (C) obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the placement or sales
agent, if any, therefor or the underwriters, if any, thereof, dated (x) the
effective date of such Shelf Registration Statement and (y) the effective date
of any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf Registration
Statement which includes unaudited or audited financial statements as of a date
or for a period subsequent to that of the latest such statements included in
such prospectus (and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such
15
letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may be
reasonably requested by any Electing Holders of at least 35% in aggregate
principal amount of the Registrable Securities at the time outstanding or
the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or those
contained in Section 5(a) hereof and the compliance with or satisfaction
of any agreements or conditions contained in the underwriting agreement
or other agreement entered into by the Company; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable Securities
affected thereby of any proposal by the Company to amend or waive any
provision of this Exchange and Registration Rights Agreement pursuant to
Section 9(h) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the amendment or
waiver proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct Rules (the "Conduct
Rules") of the National Association of Securities Dealers, Inc. ("NASD")
or any successor thereto, as amended from time to time) thereof, whether
as a holder of such Registrable Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements
of such Conduct Rules, including by (A) if such Conduct Rules shall so
require, engaging a "qualified independent underwriter" (as defined in
such Conduct Rules) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities, to
exercise usual standards of due diligence in respect thereto and, if any
portion of the offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 6 hereof, and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Conduct Rules; and
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but in any event not later than eighteen months after the
effective date of such Shelf Registration Statement, an earning statement
complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 thereunder).
(e) Subject to Section 3(h) hereof, in the event that the Company would be
required, pursuant to Section 3(d)(viii)(F) above, to notify the Electing
Holders, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Company shall without unreasonable delay
prepare and furnish to each of the Electing Holders, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to
16
purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made and the circumstances then existing, not misleading. Each
Electing Holder agrees that upon receipt of any notice from the Company
pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder shall
forthwith discontinue the disposition of Registrable Securities pursuant to
the Shelf Registration Statement applicable to such Registrable Securities
until such Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such Electing
Holder shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Electing Holder's possession
of the prospectus covering such Registrable Securities at the time of
receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the
information required to be provided by each Electing Holder in its Notice
Questionnaire, the Company may require such Electing Holder to furnish to
the Company such additional information regarding such Electing Holder and
such Electing Holder's intended method of distribution of Registrable
Securities as may be required in order to comply with the Securities Act.
Each such Electing Holder agrees to notify the Company as promptly as
practicable of any inaccuracy or change in information previously furnished
by such Electing Holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a material
fact regarding such Electing Holder or such Electing Holder's intended
method of disposition of such Registrable Securities or omits to state any
material fact regarding such Electing Holder or such Electing Holder's
intended method of disposition of such Registrable Securities required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made and the circumstances then
existing, not misleading and promptly to furnish to the Company any
additional information required to correct and update any previously
furnished information or required so that such prospectus shall not
contain, with respect to such Electing Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
(h) Notwithstanding anything in Section 2(b) or Section 3(d) or (e)
hereof to the contrary, if the Company determines in good faith that the
filing of any supplement or amendment to a Shelf Registration Statement,
including without limitation a supplement or amendment contemplated by
Section 3(e) hereof, would require the disclosure of information that the
Company has a bona fide business reason to preserve as confidential, or the
disclosure of which would materially adversely affect the Company's ability
to consummate a transaction (whether or not a final decision has been made
to undertake such transaction), then upon written notice of such
determination by the Company (a "Suspension Notice") to the Electing
Holders, the obligation of the Company to supplement or amend the Shelf
Registration Statement (including any action with respect thereto
17
contemplated by Section 3(e)) will be suspended until the Company notifies
the Electing Holders (a "Suspension Termination Notice") that the reasons
for suspension of such obligations on the part of the Company no longer
exist and the Company amends or supplements the Shelf Registration
Statement as may be required (such suspension, a "Shelf Registration
Suspension"); provided that the aggregate number of days (whether or not
consecutive) during which the Company may delay the filing of any such
supplement or amendment shall in no event exceed (i) 45 days during any
period of 90 consecutive days or (ii) 90 days during any period of 12
consecutive months, and the suspension of the Company's obligation to
supplement or amend the Shelf Registration Statement under the preceding
sentence shall not result in any obligation of the Company to pay Special
Interest pursuant to Section 2(c). If the Company delivers a Suspension
Notice in accordance with this Section 3(h), then the Electing Holders
shall suspend use of the prospectus until the Company delivers a Suspension
Termination Notice in accordance with this Section 3(h).
(i) As a condition to its participation in the Exchange Offer pursuant
to the terms of this Exchange and Registration Rights Agreement, each
holder of Registrable Securities shall furnish, upon the request of the
Company, prior to the consummation thereof, written representations to the
Company (which may be contained in the letter of transmittal contemplated
by the Exchange Registration Statement) in form and substance customary for
exchange offers similar to the Exchange Offer, including without limitation
representations to the effect that such holder (i) is not an affiliate of
the Company, (ii) is not engaged in, and does not intend to engage in, and
has no arrangement or understanding with any person to participate in, a
distribution of the Exchange Securities to be issued in the Exchange Offer
and (iii) is acquiring the Exchange Securities in its ordinary course of
business.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
all expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses, (b) all fees and
expenses in connection with the qualification of the Securities for offering and
sale under the State securities and blue sky laws referred to in Section
3(d)(xii) hereof and determination of their eligibility for investment under the
laws of such jurisdictions as any managing underwriters or the Electing Holders
may designate, including any reasonable fees and disbursements of one counsel
for the Electing Holders or underwriters in connection with such qualification
and determination, (c) all expenses relating to the preparation, printing,
production, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
expenses of preparing the Securities for delivery and the expenses of printing
or producing any underwriting agreements, agreements among underwriters, selling
agreements and blue sky or legal investment memoranda and all other documents in
connection with the offering, sale or delivery of Securities to be disposed of
(including certificates representing the Securities), (d) messenger, telephone
and delivery expenses relating to the offering, sale or delivery of Securities
and the preparation of documents referred in clause (c) above, (e) fees and
expenses of the Trustee under the Indenture, any agent of the Trustee and any
counsel for the Trustee and of any collateral agent or custodian, (f) internal
expenses of the Company (including all salaries and expenses of the Company's
officers and employees performing legal or accounting duties), (g) fees,
disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or
18
incident to such performance and compliance), (h) reasonable fees, disbursements
and expenses of any "qualified independent underwriter" engaged pursuant to
Section 3(d)(xix) hereof, (i) reasonable fees, disbursements and expenses of one
counsel for the Electing Holders retained in connection with a Shelf
Registration, as selected by the Electing Holders of at least a majority in
aggregate principal amount of the Registrable Securities held by Electing
Holders (which counsel shall be reasonably satisfactory to the Company), (j) any
fees charged by securities rating services for rating the Securities, and (k)
fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration
(collectively, the "Registration Expenses"). To the extent that any Registration
Expenses are reasonably incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a request
therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each
Purchaser and each of the holders from time to time of Registrable Securities
that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant
to Section 3(d) or Section 3(c) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made and the circumstances then
existing, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by a holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the
19
Commission, as the case may be, will conform or conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made and
the circumstances then existing, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable Securities
expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any subsidiary of the Company is a
party or by which the Company or any subsidiary of the Company is bound or
to which any of the property or assets of the Company or any subsidiary of
the Company is subject, nor will such action result in any violation of the
provisions of the Memorandum and Articles of Association of the Company or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, except, in each case other than
with respect to such Memorandum and Articles of Association, for any such
conflict, breach, violation or default which would not, individually or in
the aggregate, have a material adverse effect on the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries considered as one enterprise
and could not reasonably be expected to impair the Company's ability to
perform its obligations hereunder or have any material adverse effect upon
the consummation of the transactions contemplated hereby (a "Material
Adverse Effect"); and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act of the
Securities, qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or blue sky laws
in connection with the offering and distribution of the Securities, except
as could not reasonably be expected to have a Material Adverse Effect.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless each of the holders of Registrable Securities included in an
Exchange Registration Statement, each of the Electing Holders of
Registrable Securities included in a Shelf Registration Statement and each
person who participates as a placement or sales agent or as an underwriter
in any offering or sale of such Registrable Securities against any losses,
claims, damages or liabilities (collectively, "Losses"), joint or several,
to which such holder, agent or underwriter may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in any Exchange Registration Statement or Shelf Registration
Statement, as the case may be,
20
under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to any such holder, Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse such holder, such Electing Holder,
such agent and such underwriter for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final
or summary prospectus, or amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by such
person expressly for use therein; provided, further, that the Company shall
not be liable for any Losses arising out of an offer or sale of Registrable
Securities (i) during any Shelf Registration Suspension in accordance with
Section 3(h) hereof or (ii) under the circumstances described in Section
3(c)(iv) hereof, during the period following any notification of broker-
dealers referred to therein, provided such period is not unreasonably long.
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2(b)
hereof and to entering into any underwriting agreement with respect
thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from the Electing Holder of such Registrable Securities
and from each underwriter named in any such underwriting agreement,
severally and not jointly, to (i) indemnify and hold harmless the Company,
and all other holders of Registrable Securities, against any losses,
claims, damages or liabilities to which the Company or such other holders
of Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Company to any such Electing Holder,
agent or underwriter, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder or underwriter
expressly for use therein, and (ii) reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Electing Holder shall be required
to undertake liability to any person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received by
such Electing Holder from the sale of such Electing Holder's Registrable
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is
to be made against an indemnifying party
21
pursuant to the indemnification provisions of or contemplated by this
Section 6, notify such indemnifying party in writing of the commencement of
such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by
Section 6(a) or 6(b) hereof, except to the extent that the indemnifying
party suffers actual prejudice as a result of such failure. In case any
such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the indemnified party
from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then, except to the extent (but only to the extent)
that the indemnifying party suffers actual prejudice as a result of any
failure by the indemnified party to notify the indemnifying party of any
action, proceeding or investigation as required by subsection (c) of this
Section 6, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative fault of the indemnifying party
and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 6(d),
no
22
holder shall be required to contribute any amount in excess of the amount
by which the dollar amount of the proceeds received by such holder from the
sale of any Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which
such holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The holders' and any underwriters'
obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each holder, agent and underwriter and each person, if any, who
controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or
underwriters contemplated by this Section 6 shall be in addition to any
liability which the respective holder, agent or underwriter may otherwise
have and shall extend, upon the same terms and conditions, to each officer
and director of the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof
shall be designated by Electing Holders holding at least a majority in
aggregate principal amount of the Registrable Securities to be included in
such offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i)
agrees to sell such holder's Registrable Securities on the basis provided
in any underwriting arrangements approved by the persons entitled hereunder
to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that
to the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable
23
Securities may reasonably request, all to the extent required from time to time
to enable such holder to sell Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the Commission.
Upon the request of any holder of Registrable Securities in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this
Exchange and Registration Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails, or you fail, to
perform any of its or your (as the case may be) obligations hereunder and
that the Purchasers and the holders from time to time of the Registrable
Securities may be irreparably harmed by any such failure, and accordingly
agree that the Purchasers and such holders, in addition to any other remedy
to which they or it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of the Company or you (as
the case may be) under this Exchange and Registration Rights Agreement in
accordance with the terms and conditions of this Exchange and Registration
Rights Agreement, in any court of the United States or any State thereof
having jurisdiction; provided that in the event that the Company fails to
perform any terms of this Exchange and Registration Rights Agreement with
respect to which Additional Interest pursuant to Section 2(c) hereof is
expressly provided as a remedy, and the Company is not in default of
payment of such Additional Interest, payment of such Additional Interest
shall constitute the sole monetary damages for such failure.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 0 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, facsimile
number (000) 000-0000, Attention: General Counsel, and if to a holder, to
the address of such holder set forth in the security register or other
records of the Company, or to such other address as the Company or any such
holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon
receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Registrable Securities and the respective
successors and assigns of the parties hereto and such holders. In the event
that any transferee of any holder of Registrable Securities shall acquire
Registrable Securities, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any further
writing or action of any kind, be deemed a beneficiary hereof for all
purposes and such Registrable Securities shall be held subject to all of
the terms of this Exchange and Registration Rights Agreement, and by taking
and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed to be
bound by all of the
24
applicable terms and provisions of this Exchange and Registration Rights
Agreement. If the Company shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and
Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable
Securities, any director, officer or partner of such holder, any agent or
underwriter or any director, officer or partner thereof, or any controlling
person of any of the foregoing, and shall survive delivery of and payment
for the Registrable Securities pursuant to the Purchase Agreement and the
transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(f) Governing Law. This Exchange and Registration Rights Agreement
shall be governed by and construed in accordance with the laws of the State
of New York.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning
or interpretation of this Exchange and Registration Rights Agreement.
(h) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the
Indenture and the form of Securities) or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with
respect to its subject matter. This Exchange and Registration Rights
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement may be amended and the observance of any term of this
Exchange and Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only
by a written instrument duly executed by the Company and the holders of at
least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears
on such Registrable Securities or is delivered to such holder.
(i) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights
Agreement and a complete list of the names and addresses of all the holders
of Registrable Securities shall be made available upon reasonable prior
written notice for inspection and copying on any business day by any holder
of Registrable Securities for proper purposes only (which shall include any
purpose related to the rights of the holders of Registrable Securities
under the Securities, the Indenture and this Agreement) at the offices of
the Company at the address thereof set forth in Section 9(c) above and at
the office of the Trustee under the Indenture.
(j) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
25
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof for the Company and each of the
Representatives plus one for each counsel, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
Transocean Sedco Forex Inc.
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
____________________________________
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Purchasers
26
Exhibit A
Transocean Sedco Forex Inc.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [INSERT DATE] *
-------------------------------------
*Not less than 28 calendar days from date of mailing.
-----------------------------------------------------
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the 6.625% Notes Due 2011 and 7.5% Notes
Due 2031 (the "Securities") of Transocean Sedco Forex Inc. (the "Company") are
held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
------------------------------------------------------------------------------
enclosed materials as soon as possible as their rights to have the Securities
--------------------------------------
included in the registration statement depend upon their returning the Notice
and Questionnaire by [insert deadline for response]. Please forward a copy of
the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Transocean Sedco
Forex Inc., 0 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, telephone number (713) 232-
7500.
____________________
*Not less than 28 calendar days from date of mailing.
A-1
Transocean Sedco Forex Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Transocean Sedco Forex
Inc. (the "Company") and the Purchasers named therein. Pursuant to the Exchange
and Registration Rights Agreement, the Company has filed with the United States
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (the "Shelf Registration Statement") for the registration and resale
under Rule 415 of the Securities Act of 1933, as amended (the "Securities Act"),
of the Company's 6.625% Notes Due 2011 and 7.5% Notes Due 2031 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [INSERT DEADLINE FOR RESPONSE].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. In particular, breach
by any selling securityholder of any representations or warranties made by it,
or inaccuracies or omissions in the information such securityholder is requested
to provide, herein may result in losses or harm to the Company or other selling
securityholders for which the Company or other selling securityholders may seek
redress. Accordingly, holders and beneficial owners of Registrable Securities
are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus.
The term "Registrable Securities" is defined in the Exchange and Registration
----------------------
Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including without limitation Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants to the Company that such information is
accurate and complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
_________________
_________________
_________________
Telephone: ________________________
Fax: ________________________
Contact Person: ________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned: ________
CUSIP No(s). of such Registrable Securities: __________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
_______________________________________________________________________
CUSIP No(s). of such other Securities: ________________________________
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement: ___________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement: _______________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
State any exceptions here:
A-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for
A-5
inclusion in the Shelf Registration Statement, the Selling Securityholder agrees
to promptly notify the Company of any inaccuracies or changes in the information
provided herein which may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains in effect. All notices hereunder and
pursuant to the Exchange and Registration Rights Agreement shall be made in
writing, by hand-delivery, first-class mail, or air courier guaranteeing
overnight delivery as follows:
(i) To the Company:
_________________________
_________________________
_________________________
_________________________
_________________________
(ii) With a copy to:
_________________________
_________________________
_________________________
_________________________
_________________________
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _________________
______________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: __________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [INSERT DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Texas Commerce Bank National Association
Transocean Sedco Forex Inc.
c/o Texas Commerce Bank National Association
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Trust Officer
Re: Transocean Sedco Forex Inc. (the "Company")
__% Senior Notes Due 20__
Dear Sirs:
Please be advised that _________________ has transferred $____________________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form S-3 (File No. 333-_________) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [insert date] or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
__________________________
(Name)
By:
__________________________
(Authorized Signature)
B-1
