Warrant Agreement
EXHIBIT 4.2
Execution Version
Dated September 30, 2022
among
TRANSOCEAN INC.
as Company
as Parent
COMPUTERSHARE INC.
COMPUTERSHARE TRUST COMPANY, N.A.
as Warrant Agent
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Table of Contents
Page
| (i) | |
Page
EXHIBITS
Exhibit A--Form of Warrant
Exhibit B--Restricted Legend
Exhibit C--Global Warrant Legend
Exhibit D--Rule 144A Certificate
Exhibit E--Accredited Investor Certificate
| (ii) | |
WARRANT AGREEMENT, dated as of September 30, 2022, among TRANSOCEAN INC., a Cayman Islands exempted company (as further defined below, the “Company”), TRANSOCEAN LTD., a company organized under the laws of Switzerland (as further defined below, the “Parent”), and Computershare Inc., a Delaware corporation (“Computershare”), and its affiliate, Computershare Trust Company, N.A., a federally chartered trust company, (collectively with Computershare, the “Warrant Agent”);
WHEREAS, in connection with the issuance and sale of the Company’s 4.625% Senior Guaranteed Exchangeable Bonds due 2029 pursuant to those certain Exchange and Purchase Agreements, by and among the Company, the Parent and the signatories thereto, for themselves and on behalf of their respective managed accounts (the “Investors”), dated as of September 9, 2022 or September 13, 2022, the Company hereby proposes to issue warrants (the “Warrants”) to the Investors, that upon exercise shall be settled for cash or shares, par value 0.10 Swiss francs per share, of the Parent (the “Shares”), or a combination thereof, at the Company’s option (the Shares issuable upon exercise of the Warrants being referred to herein as the “Warrant Shares”); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company and the Parent, and the Warrant Agent is willing so to act in connection with the issuance, registration, transfer, exchange, exercise and replacement of the Warrants and other matters as provided herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows:
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Notwithstanding the foregoing, any holding company whose only significant asset is capital stock of the Company or any of the Company’s direct or indirect parent companies shall not itself be considered a “person” or “group” for purposes of clause (b) above. Further, notwithstanding the foregoing, no change of control of the Parent will be deemed to have occurred if at least 90% of the consideration for the Shares (excluding cash payments for fractional shares) in the transaction or transactions otherwise constituting a change of control in respect of the Parent consist of common stock, ordinary shares, American Depositary Receipts or equivalent capital stock traded on the New York Stock Exchange or the Nasdaq Global Select Market, or any successor to any such market, or which will be so traded when issued or exchanged in connection with the transaction or transactions otherwise constituting a change of control in respect of the Parent, and as a result of such transaction or transactions, the Warrant Shares become issuable, upon the conditions for exercise in accordance with the terms hereof, into such common stock, ordinary shares, American Depositary Receipts or equivalent capital stock.
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forth hereinafter in this Agreement, and the Warrant Agent xxxxxx accepts such appointment and shall perform the same in accordance with the express terms and conditions set forth in this Agreement.
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such numbers either as printed on the Warrants or as contained in any notice to any Holder. The Company will promptly notify the Warrant Agent and Holders in writing of any change in such CUSIP numbers.
From time to time, the Company will execute and the Warrant Agent will countersign additional Warrants as necessary in order to permit the registration of a transfer in accordance with this Section 3.08. All Warrants issued upon transfer shall be the duly authorized, executed and delivered Warrants of the Company entitled to the benefits of this Agreement.
No service charge will be imposed in connection with any transfer of any Warrant, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.
A party requesting transfer of Warrants or other securities must provide any evidence of authority and other documentation that may be required by the Warrant Agent, including, but not limited to, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association.
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transfer is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States.
The Warrant Agent shall have received an Opinion of Counsel in form and substance reasonably acceptable to the Warrant Agent that Warrants may be transferred in accordance with this paragraph. Any Warrant delivered in reliance upon this Section 3.09(b) will not bear the Restricted Legend.
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WM x (RP – EP) |
20 |
where,
WM | = | the “Warrant Multiplier” |
RP | = | the VWAP of the Shares on such Trading Day; and |
EP | = | the “Exercise Price”; provided, however, that that for purposes of this calculation in respect of a Cash Exercise, the Exercise Price shall be zero. |
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the product of the Cash Percentage and the Daily Net Cash Amount for such Trading Day. The number of shares deliverable in respect of each Trading Day in the Settlement Period will be a percentage of the applicable Daily Net Share Amount equal to 100% minus the Cash Percentage.
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The Company may also from time to time designate one or more other offices or agencies where the Warrants may be surrendered or presented for any of such purposes and may from time to time rescind such designations. The Company will give prompt written notice to the Warrant Agent of any such designation or rescission and of any change in the location of any such other office or agency. The Warrant Agent shall not have any responsibility or liability with respect to Warrants unless and until they are actually surrendered or delivered to the Warrant Agent.
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In the event that, at any time as a result of the provisions of this Section 6.01, the Holders of the Warrants shall become entitled upon subsequent exercise to receive any shares of Capital Stock of the Company or Parent other than Shares, the number of such other shares so receivable upon exercise of the Warrants shall thereafter be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained herein.
OS1 |
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OS0 |
where
OS0 = | the number of Shares outstanding immediately prior to such dividend or distribution; and | ||||
OS1 = | the sum of (A) the number of Shares outstanding immediately prior to such dividend or distribution and (B) the total number of Shares constituting such dividend or distribution. |
OS0 + X | ||||||||
OS0 + Y |
where
OS0 = | the number of Shares outstanding at the close of business on the record date for such issuance; | ||||
X = | the total number of Shares issuable pursuant to such Convertible Securities; and | ||||
Y = | the number of Shares equal to the Aggregate Consideration payable to exercise such Convertible Securities divided by the Market Value determined as of the last Trading Day preceding the date of the agreement on pricing (the “Pricing Date”) of such Convertible Securities. |
To the extent that such Convertible Securities are not exercised prior to their expiration or Shares are otherwise not delivered pursuant to such Convertible Securities upon the exercise of such rights or warrants, the Exercise Price, the Cap Price and the number of Warrant Shares shall be readjusted to the Exercise Price, the Cap Price and the number of Warrant Shares that would have then been in effect had the adjustment made upon the issuance of such Convertible Securities been made on the basis of the delivery of only the number of Shares actually delivered. If such Convertible Securities are only exercisable upon the occurrence of certain triggering events, then the Exercise Price, the Cap Price and the number of Warrant Shares shall not be adjusted until such triggering events occur. In determining the aggregate offering price payable for such Shares, the conversion agent shall take into account any consideration received for such Convertible Securities and the value of such consideration (if other than cash, to be determined by the Parent’s Board of Directors).
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OS1 | ||||||||
OS0 |
where
OS0 = | the number of Shares outstanding immediately prior to the effective date of such share subdivision, combination or reclassification; and | ||||
OS1 = | the number of Shares outstanding immediately after the opening of business on the effective date of such share subdivision, combination or reclassification. |
XX0 | ||||||||
XX0 - FMV |
where
SP0 = | the Closing Sale Price per Share on the Trading Day immediately preceding the Ex-Date; and | ||||
FMV = | the fair market value of the portion of the distribution applicable to one Share on the Trading Day immediately preceding the Ex-Date as determined by the Parent’s Board of Directors; provided, however, that if FMV is equal to or greater than SP0, or if the difference between FMV and SP0 is less than $1.00, then, in lieu of the foregoing adjustments, each Holder will receive, for each Warrant held by such Holder on the record date for such distribution, at the same time and on the same terms as holders of Shares, the amount and kind of consideration that such Holder would have received if such Holder had owned, on such record date, a number of Shares equal to the number of Shares that such Holder would receive assuming such Holder exercised such Warrant in a Cash Exercise settled entirely in Shares on such record date. |
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MP0 + MPS | ||||||||
MP0 |
where
MP0 = | the average of the Closing Sale Price of the Shares over each of the first 10 Trading Days commencing on and including the Ex-Date for such distribution; and | ||||
MPS = | the average of the Closing Sale Price of the Capital Stock or equity interests representing the portion of the distribution applicable to one Share over the first 10 Trading Days commencing on and including the Ex-Date for such distribution. |
In the event that such distribution described in this Section 6.01(a)(v) is not so made, the Exercise Price and Cap Price shall be readjusted, effective as of the date the Parent’s Board of Directors publicly announces its decision not to pay such dividend or distribution, to the Exercise Price and Cap Price that would then be in effect if such dividend distribution had not been declared.
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then the Company shall cause to be filed with the Warrant Agent and shall cause to be given to each of the Holders, at least 10 days prior to any applicable record date, or promptly in the case of events for which there is no record date, by email, a written notice stating (x) the date as of which the holders of record of Shares to be entitled to receive any such Convertible Securities or distribution are to be determined, (y) the initial expiration date set forth in any tender offer or exchange offer for Shares, or (z) the date on which any such Fundamental Change, Organic Change, dissolution, liquidation or winding up is expected to become effective or consummated, and the date as of which it is expected that holders of record of Shares shall be entitled to exchange such shares for securities or other property, if any, deliverable upon such reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up. The failure to give the notice required by this Section 6.03 or any defect therein shall not affect the legality or validity of any distribution, right, option, warrant, consolidation, merger, conveyance, transfer, dissolution, liquidation or winding up, or the vote upon any action. Notwithstanding anything herein to the contrary, Holders may deliver written notice to the Company requesting that such Holder not receive any or all notices from the Company set forth in this Section 6.03 and upon receipt of such notice the Company shall not provide any such notices; provided, however, that such Holder may later revoke any such opt-out notice in writing and such Holder shall thereafter be entitled to receive notices provided for pursuant to this Section 6.03.
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In the event the transfer agency relationship in effect between the Company or the Parent and the Warrant Agent terminates, the Warrant Agent will be deemed to have resigned automatically and be discharged from its duties under this Agreement as of the effective date of such termination, and the Company shall be responsible for sending any required notice.
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if to the Company or the Parent:
c/o Transocean Offshore Deepwater Drilling Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: President
With a copy to:
White & Case LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: X.X. Xxxxxxxx; Xxxxxxxx Xxxxxxx; Xxxxxx Xxxxxxx
Email: xx.xxxxxxxx@xxxxxxxxx.xxx; xxxxxxxx@xxxxxxxxx.xxx; xxxxxx.xxxxxxx@xxxxxxxxx.xxx
if to the Warrant Agent:
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Computershare Inc.
Computershare Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Services
Where this Agreement provides for notice to a Holder of any event or delivery of any information or documents to Holders, such notice or delivery shall be sufficiently given pursuant to the methods set forth in this Section 8.02(a) at the address of such Holder as it appears in the Register. Where this Agreement provides for notice to the owners of a beneficial interest in a Warrant, such notice shall be distributed through the Depositary in accordance with the procedures of the Depositary. Communications to owners shall be deemed to be effective at the time of dispatch to the Depositary. Neither the failure to provide any such notice or delivery described in this Section 8.02(a), nor any defect in any notice or delivery so otherwise provided, to any particular Holder or owner of a beneficial interest in a Warrant shall affect the sufficiency of such notice or delivery with respect to other Holders.
The Company or the Warrant Agent by notice to the other may designate additional or different addresses for subsequent notices or communications. Except as otherwise expressly provided with respect to published notices, any notice or communication to a Holder will be deemed given (i) five days after mailing when mailed to the Holder at its address as it appears on the Register by first class mail or (ii) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; provided that if the Company has been made aware of a different address pursuant to an applicable Warrant, the Company shall provide such notice to such address instead. Copies of any notice or communication to a Holder, if given by the Company, will be mailed to the Warrant Agent at the same time. Defect in mailing a notice or communication to any particular Holder will not affect its sufficiency with respect to other Holders.
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except, in each case, for adjustments expressly provided for in this Agreement.
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Notwithstanding the foregoing, the Company and the Warrant Agent may mutually agree to a jurisdiction other than New York for any litigation directly between the Company and the Warrant Agent arising out of or relating to this Warrant Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written.
TRANSOCEAN INC.
By: | /s/ Xxxxxxx Xxxxxx |
Name: | Xxxxxxx Xxxxxx |
Title: | Director |
TRANSOCEAN LTD.
By: | /s/ Xxxxxx Xxxxx |
Name: | Xxxxxx Xxxxx |
Title: | Corporate Secretary |
COMPUTERSHARE TRUST COMPANY, N.A.
COMPUTERSHARE INC.
as Warrant Agent
By: | /s/ Collin Ekegu |
Name: | Collin Ekegu |
Title: | Manager, Corporate Actions |
[Face of Warrant]
[Insert appropriate legend]
No. [●] | [●] Warrants |
CUSIP No. [●] |
Warrant Certificate
This Warrant Certificate certifies that [Cede & Co.]1 ______, or its registered assigns, is the registered holder of the number of Warrants (the “Warrants”) [set forth on Annex A hereto]2 [set forth above], exercisable for shares, par value 0.10 Swiss francs per share (the “Shares”), of Transocean Ltd, a company organized under the laws of Switzerland (the “Parent”). This Warrant Certificate is exercisable for [ ] Shares (the “Warrant Shares”). Each Warrant entitles the registered holder upon exercise at any time from 12:01 p.m. Central Time on September 30, 2022 until 5:00 p.m., New York City Time on March 13, 2026 (the “Expiration Time”), to receive from Transocean Inc. (the “Company”) an amount of fully paid and nonassessable Shares at an initial exercise price (the “Exercise Price”) of $3.71 per Warrant Share (as such price may be adjusted as provided in the Warrant Agreement), subject to the conditions and terms set forth herein and in the Warrant Agreement referred to on the reverse hereof. The Exercise Price and the number of Warrant Shares upon exercise of the Warrants are subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be signed below by its duly authorized officer.
Dated: September 30, 2022
1 Include for global Warrant.
2 Include for global Warrant.
| Exh A-1 | |
TRANSOCEAN INC.
By: | |
Name: | |
Title: | |
| Exh-A-2 | |
Countersigned on [●]:
COMPUTERSHARE TRUST COMPANY, N.A.
COMPUTERSHARE INC.
as Warrant Agent
By: | |
Name: | |
Title: | |
| Exh-A-3 | |
[Reverse of Warrant]
1. | Warrant Agreement |
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants issued or to be issued pursuant to a Warrant Agreement, dated as of September 30, 2022 (the “Warrant Agreement”), between the Company, the Parent and Computershare Inc., a Delaware corporation (“Computershare”), and its affiliate, Computershare Trust Company, N.A., a federally chartered trust company (collectively with Computershare, the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company, the Parent and the holders (the words “holders” or “holder” meaning the registered holders or registered holder) of the Warrants. To the extent permitted by law, in the event of an inconsistency or conflict between the terms of this Warrant and the Warrant Agreement, the terms of the Warrant Agreement will prevail.
2. | Exercise |
Warrants may be exercised at any time from 12:01 p.m. Central Time on September 30, 2022 and on or before the Expiration Time.
In order to exercise all or any of the Warrants represented by this Warrant Certificate, the holder must deliver to the Company this Warrant Certificate and the form of election to exercise on the reverse hereof duly completed, which signature shall be medallion guaranteed by an institution which is a member of a Securities Transfer Association recognized signature guarantee program.
The exercise of Warrants is subject to certain restrictions on exercise (including a minimum number of Warrants being exercised in a partial exercise of Warrants) as described in the Warrant Agreement.
No Warrant may be exercised after the Expiration Time, and to the extent not exercised by such time the Warrants shall become void.
3. | Settlement |
Each Warrant shall entitle the Holder thereof, upon payment of the Exercise Price in cash or through net share settlement, to receive for each Warrant either (a) cash in an amount equal to the Net Cash Amount, (b) a number of Shares equal to the Net Share Amount plus cash in lieu of any fractional shares, or (c) a combination thereof, in each case at the sole discretion of Company, as described in the Warrant Agreement.
4. | Adjustments |
The Warrant Agreement provides that, upon the occurrence of certain events, the Exercise Price, the Cap Price (as defined in the Warrant Agreement), the Warrant Multiplier (as defined in the Warrant Agreement) and, if applicable, the number of Shares issuable upon the exercise of each Warrant shall be adjusted.
5. | No Fractional Shares |
The Company or the Parent shall not be required to issue fractional Warrant Shares upon the exercise of any Warrant. The Company and the Parent may, at their option, either pay the cash value thereof determined as provided in the Warrant Agreement or round the number of Warrant Shares issued up to the nearest number of whole Warrant Shares.
| Exh-A-4 | |
6. | Registered Form; Transfer and Exchange |
The Warrants have been issued in registered form. Warrant Certificates, when surrendered at the office of the Registrar by the registered holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge (except as specified in the Warrant Agreement), for another Warrant Certificate or Warrant Certificate of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Registrar a new Warrant Certificate or Warrant Certificate of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the registered holder(s) thereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. This Warrant Certificate does not entitle any holder hereof to any rights of a shareholder of the Company or the Parent.
7. | Countersignature |
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent.
8. | Governing Law; Jurisdiction |
This Warrant shall be governed by and construed in accordance with the internal laws of the State of New York (without giving effect to principles of conflicts of laws except to the extent that the New York conflicts of laws principles would apply the applicable laws of Switzerland to internal matters relating to corporations organized thereunder). The Company and the Holder of this Warrant each hereby irrevocably and unconditionally:
(i) | submits for itself and its property in any legal action or proceeding relating solely to this Warrant or the transactions contemplated hereby, to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America, in each case located within the Southern District of New York, and appellate courts thereof; |
(ii) | consents that any such action or proceeding may be brought in such courts, and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same to the extent permitted by applicable law; |
(iii) | agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the party, as the case may be, at its address set forth in the Register or at such other address of which the other party shall have been notified pursuant thereto; |
(iv) | agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction for recognition and enforcement of any judgment or if jurisdiction in the courts referenced in the foregoing clause (i) are not available despite the intentions of the parties hereto; |
| Exh-A-5 | |
(v) | agrees that final judgment in any such suit, action or proceeding brought in such a court may be enforced in the courts of any jurisdiction to which such party is subject by a suit upon such judgment, provided that service of process is effected upon such party in the manner specified herein or as otherwise permitted by law; |
(vi) | agrees that to the extent that such party has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process with respect to itself or its property, such party hereby irrevocably waives such immunity in respect of its obligations under this Warrant Certificate, to the extent permitted by law; and |
(vii) | IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN RELATION TO THIS AGREEMENT AND THE WARRANT ISSUED. |
A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company.
| Exh-A-6 | |
[Annex A to Warrant Certificate]3
The initial number of Warrants represented by this Warrant Certificate is [●].
The following decreases in the number of Warrants represented by this Warrant Certificate have been made as a result of the exercise, cancellation, exchange or redemption of certain Warrants represented by this Warrant Certificate:
Date of Exercise/ Cancellation/ Exchange/ Redemption of Warrants | | Number of Warrants Exercised/ Cancelled/ Exchanged/ Redeemed | | Total Number of Warrants Represented Hereby Following Such Exercise/ Cancellation/ Exchange/ Redemption | | Notation Made by Warrant Agent/Custodian |
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3 Include for global Warrant.
| Exh-A-7 | |
[Form of Exercise Notice]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to acquire Shares to be settled pursuant to the procedures set forth in the Warrant Agreement.
The undersigned requests that delivery of such shares be made through the facilities of The Depository Trust Company as follows:
DTC Participant
Participant Account Number:
Contact Person:
Telephone:
E-mail address:
[This exercise is made in connection with [insert relevant public offering or sale of the Company or Parent] and is conditioned upon consummation of such transaction. The exercise shall not be deemed to be effective until immediately prior to the consummation of such transaction.]
If said number of shares is less than all of the Shares issuable hereunder, the undersigned requests that a new Warrant representing the remaining balance of such shares be registered in the name of_______, whose address is_______, and that such Warrant be delivered to_______, whose address is _______.
[The following paragraph to be included to the extent reasonably requested by the Company] [The undersigned represents and warrants that (x) it is a qualified institutional buyer (as defined in Rule 144A) and is receiving the Warrant Shares for its own account or for the account of another qualified institutional buyer, and it is aware that the Parent is issuing the Warrant Shares to it in reliance on Rule 144A; (y) it is an “accredited investor” within the meaning of Rule 501 under the Securities Act; or (z) it is receiving the Warrant Shares pursuant to another available exemption from the registration requirements of the Securities Act. Prior to receiving Warrant Shares pursuant to clause (x) above, the Company and the Warrant Agent may request a certificate substantially in the form of Exhibit D to the Warrant Agreement. Prior to receiving Warrant Shares pursuant to clause (y) above, the Company and the Warrant Agent may request a certificate substantially in the form of Exhibit E and/or an opinion of counsel. Prior to receiving Warrant Shares pursuant to clause (z) above the Company and the Warrant Agent may request appropriate certificates and/or an opinion of counsel.]
_______________________
Signature
Date: __________________
_______________________
Signature Guaranteed
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Warrant Agent, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Warrant Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
| Exh-A-8 | |
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto (the “Assignee”)
(Please type or print block letters)
(Please print or typewrite name and address including zip code of assignee)
the within Warrant and all rights thereunder (the “Securities”), hereby irrevocably constituting and appointing attorney to transfer said Warrant Certificate on the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES BEARING A RESTRICTED LEGEND]
In connection with any transfer of this Warrant Certificate occurring prior to the removal of the Restricted Legend, the undersigned confirms (i) the understanding that the Securities have not been registered under the Securities Act of 1933, as amended; (ii) that such transfer is made without utilizing any general solicitation or general advertising; and (iii) further as follows:
Check One
(1) This Warrant Certificate is being transferred to a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act of 1933, as amended, and the certification in the form of Exhibit D to the Warrant Agreement is being furnished herewith.
or
(2) This Warrant Certificate is being transferred other than in accordance with (1) above and documents are being furnished which comply with the conditions of transfer set forth in this Warrant and the Warrant Agreement.
If none of the foregoing boxes is checked, the Warrant Agent is not obligated to register this Warrant in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in the Warrant Agreement have been satisfied.
Date: _________________________
______________________________
Seller
By: ___________________________
| Exh-A-9 | |
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
______________________________
Signature Guaranteed
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Warrant Agent, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Warrant Agent in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
| Exh-A-10 | |
RESTRICTED LEGEND
THIS WARRANT AND THE UNDERLYING SHARES THAT MAY BE ISSUED UPON ITS EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THIS WARRANT EVIDENCES AND ENTITLES THE REGISTERED HOLDER HEREOF TO CERTAIN RIGHTS AS SET FORTH IN THE WARRANT AGREEMENT BETWEEN TRANSOCEAN LTD. (THE “COMPANY”), TRANSOCEAN LTD. AND COMPUTERSHARE INC. AND COMPUTERSHARE TRUST COMPANY, N.A. (OR ANY SUCCESSOR WARRANT AGENT) DATED AS OF SEPTEMBER 30, 2022, AS IT MAY FROM TIME TO TIME BE SUPPLEMENTED OR AMENDED, THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH WARRANT AND THE UNDERLYING SHARES THAT MAY BE ISSUED UPON ITS EXERCISE, PRIOR TO THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT, ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE WARRANT AGENT’S (INCLUDING ANY SUCCESSOR WARRANT AGENT) RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE WARRANT AGENT, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE WARRANT AGENT. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE EXPIRATION OF THE APPLICABLE HOLDING PERIOD WITH RESPECT TO RESTRICTED SECURITIES SET FORTH IN RULE 144 UNDER THE SECURITIES ACT.
| Exh C-1 | |
GLOBAL WARRANT LEGEND
UNLESS THIS WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO TRANSOCEAN INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS WARRANT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS WARRANT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT AGREEMENT REFERRED TO ON THE REVERSE HEREOF.
| Exh C-1 | |
Rule 144A Certificate
_________, ____
[●]
[●]
Attention: [●]
Re: Warrants to acquire Shares of Transocean Ltd. (the “Warrants”) issued under the Warrant Agreement (the “Agreement”) dated as of September 30, 2022 relating to the Warrants
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
☐A.Our proposed purchase of Warrants issued under the Agreement.
☐B.Our proposed exchange of Warrants issued under the Agreement for an equal number of Warrants to be held by us.
We and, if applicable, each account for which we are acting, in the aggregate owned and invested more than $100,000,000 in securities of issuers that are not affiliated with us (or such accounts, if applicable), as of, 20, which is a date on or since close of our most recent fiscal year. We and, if applicable, each account for which we are acting, are a qualified institutional buyer within the meaning of Rule 144A (“Rule 144A”) under the Securities Act of 1933, as amended (the “Securities Act”). If we are acting on behalf of an account, we exercise sole investment discretion with respect to such account. We are aware that the transfer of Warrants to us, or such exchange, as applicable, is being made in reliance upon the exemption from the provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to the date of this Certificate we have received such information regarding the Company as we have requested pursuant to Rule 144A(d)(4) or have determined not to request such information.
| Exh D -1 | |
You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF XXXXXX (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]
By:
Name:
Title:
Address:
Date:
| Exh D -2 | |
Accredited Investor Certificate
_________, ____
[●]
[●]
Attention: [●]
Re: Warrants to acquire Shares of Transocean Ltd. (the “Warrants”) issued under the Warrant Agreement (the “Agreement”) dated as of September 30, 2022 relating to the Warrants
Ladies and Gentlemen:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
☐A.Our proposed purchase of Warrants issued under the Agreement.
☐ B.Our proposed exchange of Warrants issued under the Agreement for an equal number of Warrants to be held by us.
We hereby confirm that:
1. | We are an “accredited investor” (an “Accredited Investor”) within the meaning of Rule 501 under the Securities Act of 1933, as amended (the “Securities Act”). |
2. | Any acquisition of Warrants by us will be for our own account or for the account of one or more other Accredited Investors as to which we exercise sole investment discretion. |
3. | We have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of an investment in the Warrants and we and any accounts for which we are acting are able to bear the economic risks of and an entire loss of our or their investment in the Warrants. |
4. | We are not acquiring the Warrants with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdiction; provided that the disposition of our property and the property of any accounts for which we are acting as fiduciary will remain at all times within our and their control. |
5. | We acknowledge that the Warrants have not been registered under the Securities Act and that the Warrants may not be offered or sold within the United States or to or for the benefit of U.S. persons except as set forth below. |
We agree for the benefit of the Company, on our own behalf and on behalf of each account for which we are acting, that such Warrants may be offered, sold, pledged or otherwise transferred only in accordance with the Securities Act and any applicable securities laws of any State of the United States and only (a) to the Company or any Subsidiary thereof, (b) pursuant to a registration statement that has been declared effective under the Securities Act, (c) to a person it reasonably believes is a qualified institutional buyer in compliance with Rule 144A under the Securities Act, (d) to an Accredited Investor that, prior to such
| Exh E -1 | |
transfer, delivers to the Warrant Agent a duly completed and signed certificate (the form of which is set forth on Exhibit E to the Agreement and may be obtained from the Warrant Agent) relating to the restrictions on transfer of the Warrants, or (e) pursuant to any other available exemption from the registration requirements of the Securities Act.
Prior to the registration of any transfer in accordance with (c) above, we acknowledge that a duly completed and signed certificate (the form of which may be obtained from the Warrant Agent) must be delivered to the Warrant Agent. Prior to the registration of any transfer in accordance with (d) or (e) above, we acknowledge that the Company reserves the right to require the delivery of such legal opinions, certifications or other evidence as may reasonably be required in order to determine that the proposed transfer is being made in compliance with the Securities Act and applicable state securities laws. We acknowledge that no representation is made as to the availability of any exemption from the registration requirements of the Securities Act.
We understand that the Warrant Agent will not be required to accept for registration of transfer any Warrants acquired by us, except upon presentation of evidence satisfactory to the Company and the Warrant Agent that the foregoing restrictions on transfer have been complied with. We further understand that the Warrants acquired by us will bear a legend reflecting the substance of the preceding paragraph. We further agree to provide to any person acquiring any of the Warrants from us a notice advising such person that resales of the Warrants are restricted as stated herein and that the Warrants will bear a legend to that effect.
We agree to notify you promptly in writing if any of our acknowledgments, representations or agreements herein ceases to be accurate and complete.
We represent to you that we have full power to make the foregoing acknowledgments, representations and agreements on our own behalf and on behalf of any account for which we are acting.
You and the Company are entitled to rely upon this Certificate and are irrevocably authorized to produce this Certificate or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[NAME OF XXXXXX (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)]
By:
Name:
Title:
Address:
Date:
Upon transfer, the Warrants would be registered in the name of the new beneficial owner as follows:
___________________________________
Taxpayer ID number: _________________
| Exh E -2 | |