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THIRD SUPPLEMENTAL INDENTURE
BETWEEN
TRANSOCEAN SEDCO FOREX INC.
AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
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MAY 24, 2000
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TABLE OF CONTENTS
ARTICLE ONE
THE 0000 XXXXXXXXXX
XXXXXXX 101 Designation of 2020 Debentures; Establishment of Form........................................2
SECTION 102 Amount.......................................................................................3
SECTION 103 Accrual of Original Issue Discount; Interest.................................................3
SECTION 104 Additional Amounts...........................................................................3
SECTION 105 Denominations................................................................................3
SECTION 106 Place of Payment.............................................................................3
SECTION 107 Redemption...................................................................................4
SECTION 108 Conversion...................................................................................4
SECTION 109 Maturity.....................................................................................4
SECTION 110 Repurchase...................................................................................4
SECTION 111 Amount Due Upon Event of Default.............................................................4
SECTION 112 Discharge of Liability on 2020 Debentures....................................................5
SECTION 113 Other Terms of 2020 Debentures...............................................................5
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
SECTION 201 Definitions..................................................................................5
SECTION 202 Registration, Registration of Transfer and Exchange..........................................8
SECTION 203 Mutilated, Destroyed, Lost and Stolen Securities.............................................9
SECTION 204 Payment of Interest; Interest Rights Preserved...............................................9
SECTION 205 Unconditional Right of Holders to Receive Principal, Premium and
Interest....................................................................................10
SECTION 206 Consolidation, Merger and Sale..............................................................10
SECTION 207 Supplemental Indentures Without Consent of Holders..........................................10
SECTION 208 Supplemental Indenture with Consent of Holder...............................................10
SECTION 209 Maintenance of Office or Agency.............................................................10
SECTION 210 Redemption..................................................................................11
SECTION 211 Conversion, Tax Event, Repurchase...........................................................17
SECTION 212 Amendment to Events of Default..............................................................41
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301 Integral Part...............................................................................42
SECTION 302 General Definitions.........................................................................42
SECTION 303 Adoption, Ratification and Confirmation.....................................................42
SECTION 304 Counterparts................................................................................42
SECTION 305 Governing Law...............................................................................42
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TRANSOCEAN SEDCO FOREX INC.
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of May 24, 2000, between
Transocean Sedco Forex Inc. (formerly, Transocean Offshore Inc.), a Cayman
Islands exempted company limited by shares (the "Company"), and Chase Bank of
Texas, National Association (formerly, Texas Commerce Bank National Association)
(the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of April 15, 1997 (as supplemented by the First
Supplemental Indenture thereto dated as of April 15, 1997, the Second
Supplemental Indenture thereto dated as of May 14, 1999 and this Third
Supplemental Indenture, the "Indenture"), providing for the issuance from time
to time of one or more series of the Company's Securities;
WHEREAS, Section 901(5) of the Indenture provides that the Company and
the Trustee may from time to time enter into one or more indentures supplemental
thereto to establish the form or terms of Securities of a new series;
WHEREAS, Section 901(8) of the Indenture provides that the Company and
the Trustee may from time to time enter into one or more indentures supplemental
thereto to make provision with respect to matters or questions arising under the
Indenture which do not adversely affect the interests of the Holders of
Securities of any series in any material respect;
WHEREAS, Sections 901(2) and 901(3) of the Indenture permit the
execution of supplemental indentures without the consent of any Holders to add
to the covenants of the Company for the benefit of, and to add any additional
Events of Default with respect to, all or any series of Securities;
WHEREAS, Section 301 of the Indenture provides that the Company may
enter into supplemental indentures to establish the terms and provisions of a
series of Securities issued pursuant to the Indenture;
WHEREAS, the Company desires to issue Zero Coupon Convertible
Debentures due May 24, 2020 (the "2020 Debentures"), a new series of Security
the issuance of which was authorized by resolution of the Board of Directors of
the Company;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this Third Supplemental Indenture to supplement and amend the Indenture
insofar as it will apply only to the 2020 Debentures in certain respects; and
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WHEREAS, all things necessary have been done to make the 2020
Debentures, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Third Supplemental Indenture a valid agreement of the Company,
in accordance with their and its terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of all Holders of the Securities as follows:
ARTICLE ONE
THE 0000 XXXXXXXXXX
XXXXXXX 101 Designation of 2020 Debentures; Establishment of Form.
There shall be a series of Securities designated "Zero Coupon
Convertible Subordinated Debentures Due May 24, 2020" of the Company (the "2020
Debentures"), and the form thereof shall be substantially as set forth in Annex
A hereto, which is incorporated into and shall be deemed a part of this Third
Supplemental Indenture, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company executing
such 2020 Debentures, as evidenced by their execution of the 2020 Debentures.
The 2020 Debentures will initially be issued in permanent global form,
substantially in the form set forth in Annex A hereto (the "Global Securities"),
as a Book-Entry Security. Each Global Security shall represent such of the
Outstanding 2020 Debentures as shall be specified therein and shall provide that
it shall represent the aggregate amount of Outstanding 2020 Debentures from time
to time endorsed thereon and that the aggregate amount of Outstanding 2020
Debentures represented thereby may from time to time be reduced to reflect
exchanges and redemptions. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of Outstanding 2020
Debentures represented thereby shall be made by the Trustee in accordance with
written instructions or such other written form of instructions as is customary
for the Depositary, from the Depositary or its nominee on behalf of any Person
having the beneficial interest in the Global Security.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Paying Agent and
Conversion Agent with respect to the 2020 Debentures.
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SECTION 102 Amount.
(a) The Trustee shall authenticate and deliver 2020 Debentures
for original issue in an aggregate Principal Amount of up to $865,000,000 upon
Company Order for the authentication and delivery of 2020 Debentures, without
any further action by the Company. The aggregate Principal Amount of 2020
Debentures that may be authenticated and delivered under the Indenture may not
exceed the amount set forth in the foregoing sentence, except for 2020
Debentures authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other 2020 Debentures pursuant to Section 204, 304,
305, 306, 906 or 1107 of the Indenture.
(b) The Company may not issue new 2020 Debentures to replace
2020 Debentures that it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article Fourteen.
SECTION 103 Accrual of Original Issue Discount; Interest.
The 2020 Debentures shall be Original Issue Discount Securities.
Original Issue Discount shall accrue with respect to the 2020 Debentures at the
rate set forth under the caption "Interest" in the 2020 Debentures, commencing
on the Issue Date of the 2020 Debentures. Except as provided under the caption
"Tax Event" in the 2020 Debentures and in Article Sixteen, there shall be no
periodic payments of interest on the 2020 Debentures.
SECTION 104 Additional Amounts.
Additional Amounts with respect to the 2020 Debentures shall be payable
in accordance with the provisions and in the amounts set forth under the caption
"Tax Additional Amounts" in the 2020 Debentures and in accordance with the
provisions of the Indenture.
SECTION 105 Denominations.
The 2020 Debentures shall be in fully registered form without coupons
in denominations of $1,000 of Principal Amount or any integral multiple thereof.
SECTION 106 Place of Payment.
The Place of Payment for the 2020 Debentures and the place or places
where the 2020 Debentures may be surrendered for registration of transfer,
exchange, repurchase, redemption or conversion and where notices may be given to
the Company in respect of the 2020 Debentures is at the office of the Trustee in
New York, New York and at the agency of the Trustee maintained for that purpose
at the office of the Trustee; provided that payment of interest may be made at
the option of the Company by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register (as defined in the
Indenture).
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SECTION 107 Redemption.
(a) There shall be no sinking fund for the retirement of the
2020 Debentures.
(b) The Company, at its option, may redeem the 2020 Debentures
in accordance with the provisions of and at the Redemption Prices set forth
under the captions "Optional Redemption" and "Notice of Redemption" in the 2020
Debentures and in accordance with the provisions of the Indenture, including,
without limitation, Article Eleven.
(c) The Company, at the option of the Holders thereof, shall
redeem the 2020 Debentures in accordance with the provisions of and at the
Change in Control Purchase Prices set forth under the caption "Purchase of
Securities at Option of Holder Upon a Change in Control" in the 2020 Debentures
and in accordance with the provisions of the Indenture, including, without
limitation, Article Eleven.
SECTION 108 Conversion.
The 2020 Debentures shall be convertible in accordance with the
provisions and at the Conversion Rate set forth under the caption "Conversion"
in the 2020 Debentures and in accordance with the provisions of the Indenture,
including, without limitation, Article Fourteen.
SECTION 109 Maturity.
The date on which the principal of the 2020 Debentures is payable,
unless accelerated pursuant to the Indenture, shall be May 24, 2020.
SECTION 110 Repurchase.
The 2020 Debentures shall be repurchased by the Company in accordance
with the provisions and at the Repurchase Prices set forth under the caption
"Repurchase by the Company at the Option of the Holder" in the 2020 Debentures
and in accordance with the provisions of the Indenture, including, without
limitation, Article Fifteen.
SECTION 111 Amount Due Upon Event of Default.
If an Event of Default with respect to any 2020 Debentures that are at
the time Outstanding occurs and is continuing, then in accordance with Section
502, the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the 2020 Debentures (in the case of an Event of
Default described in clause (1), (2), (3) or (7) of Section 501) or (ii) all
series of Securities (subject to the immediately following sentence, in the case
of an Event of Default described in clause (4) of Section 501) may declare all
unpaid Issue Price plus accrued Original Issue Discount and Tax Additional
Amounts through the acceleration date, if any (or, if the 2020 Debentures have
been converted to interest-bearing 2020 Debentures pursuant to Section 1601, the
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Restated Principal Amount plus accrued and unpaid interest and Tax Additional
Amounts, if any, from the date of conversion to the acceleration date) (which
applicable amount, in either case, shall be deemed to be the "portion of the
principal amount" specified in the terms of the 2020 Debentures) of all of the
2020 Debentures or all series, as the case may be, to be due and payable
immediately by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such specified amount shall become
immediately due and payable. If an Event of Default described in clause (5) or
(6) of Section 501 shall occur, such specified amount of all Outstanding 2020
Debentures ipso facto shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
SECTION 112 Discharge of Liability on 2020 Debentures.
Section 403 of the Indenture shall be applicable to the 2020
Debentures.
SECTION 113 Other Terms of 2020 Debentures.
Without limiting the foregoing provisions of this Article One, the
terms of the 2020 Debentures shall be as set forth in the form of 2020
Debentures set forth in Annex A hereto and as provided in the Indenture.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
The amendments contained herein shall apply to 2020 Debentures only and
not to any other series of Security issued under the Indenture and any covenants
provided herein are expressly being included solely for the benefit of the 2020
Debentures. These amendments shall be effective for so long as there remains
2020 Debentures Outstanding.
SECTION 201 Definitions.
Section 101 of the Indenture is amended by inserting or restating, as
the case may be, in their appropriate alphabetical position, the following
definitions:
"Capital Stock" or "capital stock" of any Person means any and all
shares, interests, partnership interests, participations, rights or other
equivalents (however designated) of such Person's equity interest (however
designated) issued by that Person.
"Change in Control Purchase Date" has the meaning specified in Section
1110.
"Change in Control" has the meaning specified in Section 1110.
"Change in Control Purchase Notice" has the meaning specified in
Section 1110.
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"Change in Control Purchase Price" has the meaning specified in Section
1110.
"Company Notice Date" has the meaning specified in Section 1503.
"Conversion Agent" shall be the agent specified in Section 101.
"Conversion Date" has the meaning specified in Section 1402.
"Conversion Rate" has the meaning specified in Section 1401.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute.
"Global Securities" has the meaning specified in Section 101.
"Issue Date" of any 2020 Debenture means the date on which the 2020
Debenture was originally issued or deemed issued as set forth on the face of the
2020 Debenture.
"Issue Price" of any 2020 Debenture means, in connection with the
original issuance of such 2020 Debenture, the initial issue price at which the
2020 Debenture is sold as set forth on the face of the 2020 Debenture.
"Market Price" has the meaning specified in Section 1504.
"Ordinary Shares" means any stock of any class of the Company
(including, without limitation, the Company's ordinary shares of a nominal or
par value of $0.01 per share) which has no preference in respect of dividends or
of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to redemption
by the Company.
"Original Issue Discount" of any 2020 Debenture means the difference
between the Issue Price and the Principal Amount of the 2020 Debenture as set
forth on the face of the 2020 Debenture.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment, repurchase or redemption
money or Ordinary Shares in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that, if such
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Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities which have been cancelled pursuant to Section
309 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) 2020 Debentures converted for Ordinary Shares pursuant to
Article Fourteen;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Principal Amount" of a 2020 Debenture means the Principal Amount as
set forth on the face of the 2020 Debenture.
"Repurchase Date" has the meaning specified in Section 1501.
"Repurchase Notice" has the meaning specified in Section 1501.
"Repurchase Price" has the meaning specified in Section 1501.
"Restated Principal Amount" has the meaning specified in Section 1601.
"Sale Price" has the meaning specified in Section 1504.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture, including 2020 Debentures.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute.
"Tax Additional Amounts" has the meaning specified in the form of 2020
Debentures attached hereto as Annex A.
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"Tax Event" means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on or
after May 24, 2000, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to, or change in, an interpretation or application
of such laws or regulations by any legislative body, court, governmental agency
or regulatory authority, in each case, which amendment or change is enacted,
promulgated, issued or announced or which interpretation is issued or announced
or which action is taken, on or after May 24, 2000, there is more than an
insubstantial risk that interest (including Original Issue Discount) payable on
the 2020 Debentures either (i) would not be deductible on a current accrual
basis or (ii) would not be deductible under any other method, in either case, in
whole or in part, by the Company (by reason of deferral, disallowance or
otherwise) for United States Federal income tax purposes if the Company were a
domestic corporation for such purposes.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Ordinary Shares are not listed
on the New York Stock Exchange, on the principal other national or regional
securities exchange on which the Ordinary Shares are then listed or, if the
Ordinary Shares are not listed on a national or regional securities exchange, on
the National Association of Securities Dealers Automated Quotation System or, if
the Ordinary Shares are not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other market on which the
Ordinary Shares are then traded.
"2020 Debentures" means the Zero Coupon Convertible Debentures due May
2020 of the Company authorized by resolution of the Board of Directors.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof under ordinary circumstances have the power to vote in
the election of the board of directors, managers or trustees of any Person (or
other Persons performing similar functions), irrespective of whether or not, at
the time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency.
SECTION 202 Registration, Registration of Transfer and Exchange.
The Indenture shall be amended by replacing the eighth paragraph of
Section 305 with the following paragraph:
The Company shall not be required (i) to issue, register the
transfer of or exchange the Securities of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series
selected for redemption and ending at the close of business on the
day of such mailing, (ii) to register the transfer of or exchange any
2020 Debenture so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange
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or register a transfer of any 2020 Debenture or portions thereof in
respect of which a Change in Control Purchase Notice or Repurchase
Notice has been delivered and not withdrawn by the Holder thereof
(except, in the case of the purchase of a 2020 Debenture in part, the
portion not to be purchased).
SECTION 203 Mutilated, Destroyed, Lost and Stolen Securities.
The Indenture shall be amended by replacing the fourth paragraph of
Section 306 with the following paragraph:
In case any such mutilated, destroyed, lost or stolen
Security has or is about to become due and payable, or is about to be
redeemed or purchased by the Company upon a Change in Control
pursuant to Article Eleven or purchased by the Company on a
Repurchase Date pursuant to Article Fifteen, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
SECTION 204 Payment of Interest; Interest Rights Preserved.
The Indenture shall be amended by inserting the following paragraph
before the final paragraph in Section 307:
In the event the Company exercises its option pursuant to
Section 1601, then in the case of any 2020 Debenture or portion
thereof which is surrendered for conversion after the Regular Record
Date immediately preceding any Interest Payment Date and on or prior
to such next succeeding Interest Payment Date (unless such 2020
Debenture or portion thereof which is being surrendered for
conversion has been called for redemption on a Redemption Date within
such period), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in
whose name that 2020 Debenture (or one or more Predecessor
Securities) is registered at the close of business on such Regular
Record Date; provided, however, that such payment of interest shall
be subject to the payment to the Company by the Holder of such 2020
Debenture or portion thereof surrendered for conversion (such payment
to accompany such surrender) of an amount equal to the amount of such
interest, in accordance with Section 1402. Except as otherwise
provided in the immediately preceding sentence, in the case of any
2020 Debenture which is converted, interest whose Stated Maturity is
after the date of conversion of such 2020 Debenture shall not be
payable.
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SECTION 205 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Section 508 of the Indenture shall be amended by replacing that section
with the following:
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, Interest and Tax Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 307) interest on and Tax Additional
Amounts, if any, with respect to such Security on the Stated Maturity
or Maturities expressed in such Security (or in the case of
redemption, to receive the Redemption Price on the Redemption Date,
in the case of a repurchase, to receive the Repurchase Price on the
Repurchase Date, or in the case of a Change in Control, to receive
the Change in Control Purchase Price on the Change in Control
Purchase Date) and to institute suit for the enforcement of any such
payment on or after such respective dates, and such rights shall not
be impaired without the consent of such Holder.
SECTION 206 Consolidation, Merger and Sale.
The Indenture shall be amended by inserting "and shall have provided
for conversion rights in accordance with Section 1411" at the end of Section
801(1).
SECTION 207 Supplemental Indentures Without Consent of Holders.
Section 901 of the Indenture shall be amended by inserting the
following paragraph:
(9) to make provision with respect to the conversion rights,
if any, to Holders of 2020 Debentures pursuant to the requirements of
Article Fourteen hereof.
SECTION 208 Supplemental Indenture with Consent of Holder.
The Indenture shall be amended by inserting ", or adversely affect the
right to convert any 2020 Debenture as provided in Article Fourteen, or
adversely affect the right to require the Company to repurchase the 2020
Debentures as provided in Article Fifteen." at the end of Section 902(1).
SECTION 209 Maintenance of Office or Agency.
The first paragraph of Section 1002 of the Indenture is amended by
changing the first sentence thereof to read in its entirety as follows:
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If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for
any series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities
of that series may be surrendered for registration of transfer or
exchange, where 2020 Debentures may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
SECTION 210 Redemption.
Article Eleven shall be amended by inserting the following sections in
their entirety:
SECTION 1109 Conversion Arrangement on Call for Redemption
In connection with 2020 Debentures, the Company may arrange
for the purchase and conversion of any 2020 Debentures called for
redemption by an agreement with one or more investment bankers or
other purchasers to purchase such 2020 Debentures by paying to a
Paying Agent (other than the Company or any of its Affiliates) in
trust for the Holders, on or before 11:00 A.M. New York City time on
the Redemption Date, an amount that, together with any amounts
deposited with such Paying Agent by the Company for the redemption of
such 2020 Debentures, is not less than the Redemption Price of such
2020 Debentures. Notwithstanding anything to the contrary contained
in this Article Eleven, the obligation of the Company to pay the
Redemption Price of such 2020 Debentures, including interest, if any,
shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers; provided, however, that nothing
in this Section 1109 shall relieve the Company of its obligation to
pay the Redemption Price on 2020 Debentures called for redemption. If
such an agreement is entered into, any 2020 Debentures called for
redemption and not surrendered for conversion by the Holders thereof
prior to the relevant Redemption Date may, at the option of the
Company upon written notice to the Trustee, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such
Holders and (notwithstanding anything to the contrary contained in
Article Fourteen) surrendered by such purchasers for conversion, all
as of 11:00 A.M. New York City time on the Redemption Date, subject
to payment of the above amount as aforesaid. The Paying Agent shall
hold and pay
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to the Holders whose 2020 Debentures are selected for redemption any
such amount paid to it for purchase in the same manner as it would
money deposited with it by the Company for the redemption of 2020
Debentures. Without the Paying Agent's prior written consent, no
arrangement between the Company and such purchasers for the purchase
and conversion of any 2020 Debentures shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations of
the Paying Agent as set forth in this Indenture, and the Company
agrees to indemnify the Paying Agent from, and hold it harmless
against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion
of any 2020 Debentures between the Company and such purchasers,
including the costs and expenses incurred by the Paying Agent in the
defense of any claim or liability reasonably incurred without
negligence or bad faith on their part arising out of or in connection
with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture, in accordance
with the indemnity provisions applicable to the Trustee set forth
herein.
SECTION 1110 Purchase of Securities at Option of the Holder Upon
Change in Control
Without limiting the generality of the first two sentences
of this Article Two, Section 1110 through Section 1115 of this
Article Eleven shall apply only to 2020 Debentures.
(a) If at any time that 2020 Debentures remain Outstanding
there shall occur a Change in Control, 2020 Debentures shall be
purchased by the Company at the option of the Holders thereof as of
the date that is 35 Business Days after the occurrence of the Change
in Control (the "Change in Control Purchase Date") at a purchase
price equal to the Issue Price plus accrued Original Issue Discount
through the Change in Control Purchase Date (or, if the option under
Section 1601 has been exercised, the Restated Principal Amount plus
accrued and unpaid interest from the Option Exercise Date to the
Change in Control Purchase Date) (the "Change in Control Purchase
Price"), subject to satisfaction by or on behalf of any Holder of the
requirements set forth in subsection (c) of this Section 1110.
A "Change in Control" shall be deemed to have occurred if
any of the following occurs after the Issue Date:
(1) any "person" or "group" (as such terms are defined
below) is or becomes the "beneficial owner" (as defined below),
directly or indirectly, of shares of Voting Stock of the Company
representing 50% or more of the total voting power of all outstanding
classes of Voting Stock of the Company or has the power, directly or
indirectly, to elect a majority of the members of the Board
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of Directors of the Company (but specifically excluding any right of
any Person or Persons to designate directors of the Company pursuant
to Article 3 of the Agreement and Plan of Merger dated July 12, 1999
among Schlumberger Limited, the Company and certain of their
respective subsidiaries); or
(2) the Company consolidates with, or merges with or into,
another person or the Company sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of the
assets of the Company, or any person consolidates with, or merges
with or into, the Company, or the Company completes a scheme of
arrangement under Cayman Islands law with another Person, in any such
event other than pursuant to a transaction in which the persons that
"beneficially owned" (as defined below), directly or indirectly,
shares of Voting Stock of the Company immediately prior to such
transaction "beneficially own" (as defined below), directly or
indirectly, shares of Voting Stock of the Company representing at
least a majority of the total voting power of all outstanding classes
of Voting Stock of the surviving or transferee person; or
(3) there shall occur the liquidation or dissolution of the
Company.
For the purpose of the definition of "Change in Control",
(i) "person" and "group" have the meanings given such terms under
Section 13(d) and 14(d) of the Exchange Act or any successor
provision to either of the foregoing, and the term "group" includes
any group acting for the purpose of acquiring, holding or disposing
of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act (or any successor provision thereto), (ii) a "beneficial
owner" shall be determined in accordance with Rule 13d-3 under the
Exchange Act, as in effect on May 24, 2000, except that the number of
shares of Voting Stock of the Company shall be deemed to include, in
addition to all outstanding shares of Voting Stock of the Company and
Unissued Shares deemed to be held by the "person" or "group" (as such
terms are defined above) or other person with respect to which the
Change in Control determination is being made, all Unissued Shares
deemed to be held by all other persons, and (iii) the terms
"beneficially owned" and "beneficially own" shall have meanings
correlative to that of "beneficial owner". The term "Unissued Shares"
means shares of Voting Stock not outstanding that are subject to
options, warrants, rights to purchase or conversion privileges
exercisable within 60 days of the date of determination of a Change
in Control.
(b) Within 15 Business Days after the occurrence of a Change
in Control, the Company shall mail a written notice of the Change in
Control to the Trustee and to each Holder. The notice shall include
the form of a Change in Control Purchase Notice to be completed by
the Holder and shall state:
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(1) the date of such Change in Control and, briefly,
the events causing such Change in Control;
(2) the date by which the Change in Control Purchase
Notice pursuant to this Section 1110 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) briefly, the conversion rights of the 2020
Debentures;
(6) the name and address of each Paying Agent and
Conversion Agent;
(7) the Conversion Rate and any adjustments thereto;
(8) that 2020 Debentures as to which a Change in
Control Purchase Notice has been given may be converted into
Ordinary Shares pursuant to Article Fourteen only to the
extent that the Change in Control Purchase Notice has been
withdrawn in accordance with the terms of this Indenture;
(9) the procedures that the Holder must follow to
exercise rights under this Section 1110;
(10) the procedures for withdrawing a Change in
Control Purchase Notice, including a form of notice of
withdrawal; and
(11) that the Holder must satisfy the requirements
set forth in the 2020 Debentures in order to convert the
Securities.
If any of the 2020 Debentures is in the form of a Global
Security, then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depositary applicable
to the repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection
(a) of this Section 1110 upon delivery of a written notice (which
shall be in substantially the form included as an attachment to the
Security and which may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in any other written form
and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Depositary's
customary procedures) of the exercise of such rights (a "Change in
Control Purchase Notice") to any Paying
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Agent at any time prior to the close of business on the Business Day
next preceding the Change in Control Purchase Date.
The delivery of such 2020 Debenture to any Paying Agent
(together with all necessary endorsements) at the office of such
Paying Agent shall be a condition to the receipt by the Holder of the
Change in Control Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant
to this Section 1110, a portion of a 2020 Debenture if the Principal
Amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a
2020 Debenture pursuant to Sections 1110 through 1115 also apply to
the purchase of such portion of such 2020 Debenture.
Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Change in Control Purchase Notice
contemplated by this subsection (c) shall have the right to withdraw
such Change in Control Purchase Notice in whole or in a portion
thereof that is a Principal Amount of $1,000 or in an integral
multiple thereof at any time prior to the close of business on the
Business Day next preceding the Change in Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 1111.
A Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written
withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Change in Control Purchase Notice may be
delivered or withdrawn and such 2020 Debentures may be surrendered or
delivered for purchase in accordance with the applicable procedures
of the Depositary as in effect from time to time.
SECTION 1111 Effect of Change in Control Purchase Notice
Upon receipt by any Paying Agent of the Change in Control
Purchase Notice specified in Section 1110(c), the Holder of the 2020
Debenture in respect of which such Change in Control Purchase Notice
was given shall (unless such Change in Control Purchase Notice is
withdrawn as specified below) thereafter be entitled to receive the
Change in Control Purchase Price with respect to such 2020 Debenture.
Such Change in Control Purchase Price shall be paid to such Holder
promptly following the later of (a) the Change in Control Purchase
Date with respect to such 2020 Debenture (provided the conditions in
Section 1110(c) have been satisfied) and (b) the time of delivery of
such 2020 Debenture to a
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Paying Agent by the Holder thereof in the manner required by Section
1110(c). 2020 Debentures in respect of which a Change in Control
Purchase Notice has been given by the Holder thereof may not be
converted into Ordinary Shares on or after the date of the delivery
of such Change in Control Purchase Notice unless such Change in
Control Purchase Notice has first been validly withdrawn.
A Change in Control Purchase Notice may be withdrawn by
means of a written notice (which may be delivered by letter,
overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be
delivered electronically or by other means in accordance with the
Depositary's customary procedures) of withdrawal delivered by the
Holder to a Paying Agent at any time prior to the close of business
on the Business Day immediately preceding the Change in Control
Purchase Date, specifying the Principal Amount of the Security or
portion thereof (which must be a Principal Amount of $1,000 or an
integral multiple of $1,000 in excess thereof) with respect to which
such notice of withdrawal is being submitted.
SECTION 1112 Deposit of Change in Control Purchase Price
On or before 11:00 a.m. New York City time on the Change in
Control Purchase Date, the Company shall deposit with the Trustee or
with a Paying Agent (other than the Company or an Affiliate of the
Company) an amount of money (in immediately available funds if
deposited on such Business Day) sufficient to pay the aggregate
Change in Control Purchase Price of all the 2020 Debentures or
portions thereof that are to be purchased as of such Change in
Control Purchase Date. The manner in which the deposit required by
this Section 1112 is made by the Company shall be at the option of
the Company, provided that such deposit shall be made in a manner
such that the Trustee or a Paying Agent shall have immediately
available funds on the Change in Control Purchase Date.
If a Paying Agent holds, in accordance with the terms
hereof, money sufficient to pay the Change in Control Purchase Price
of any 2020 Debenture for which a Change in Control Purchase Notice
has been tendered and not withdrawn in accordance with this Indenture
then, on the Change in Control Purchase Date, such 2020 Debenture
will cease to be Outstanding and the rights of the Holder in respect
thereof shall terminate (other than the right to receive the Change
in Control Purchase Price as aforesaid). The Company shall publicly
announce the Principal Amount of 2020 Debentures purchased as a
result of such Change in Control on or as soon as practicable after
the Change in Control Purchase Date.
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SECTION 1113 Securities Purchased In Part
Any 2020 Debenture that is to be purchased only in part
shall be surrendered at the office of a Paying Agent and promptly
after the Change in Control Purchase Date the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such
2020 Debenture, without service charge, a new 2020 Debenture or 2020
Debentures, of such authorized denomination or denominations as may
be requested by such Holder, in aggregate Principal Amount equal to,
and in exchange for, the portion of the Principal Amount of the 2020
Debenture so surrendered that is not purchased.
SECTION 1114 Compliance With Securities Laws Upon Purchase of
Securities
In connection with any offer to purchase or purchase of 2020
Debentures under Section 1110, the Company shall (a) comply with Rule
13e-4 (or any successor to either such Rule), if applicable, under
the Exchange Act, (b) file the related Schedule TO (or any successor
or similar schedule, form or report) if required under the Exchange
Act, and (c) otherwise comply with all federal and state securities
laws in connection with such offer, all so as to permit the rights of
the Holders and obligations of the Company under Sections 1110
through 1115 to be exercised in the time and in the manner specified
therein.
SECTION 1115 Repayment to the Company
To the extent that the aggregate amount of cash deposited by
the Company pursuant to Section 1112 exceeds the aggregate Change in
Control Purchase Price together with interest, if any, thereon of the
2020 Debentures or portions thereof that the Company is obligated to
purchase, then promptly after the Change in Control Purchase Date the
Trustee or a Paying Agent, as the case may be, shall return any such
excess to the Company.
SECTION 211 Conversion, Tax Event, Repurchase.
The Indenture is amended by adding the following Articles Fourteen,
Fifteen and Sixteen to the Indenture:
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ARTICLE FOURTEEN
CONVERSION
SECTION 1401 Conversion Privilege
2020 Debentures shall be convertible in accordance with
their terms and in accordance with this Article.
A Holder of a 2020 Debenture may convert the Principal
Amount of such 2020 Debenture (or any portion thereof equal to a
Principal Amount of $1,000 or any integral multiple of a Principal
Amount of $1,000 in excess thereof) into Ordinary Shares at any time
prior to the close of business on the date specified in the 2020
Debentures, at the Conversion Rate then in effect. In case a 2020
Debenture or portion thereof is called for redemption pursuant to
Article Eleven, such conversion right shall terminate at the close of
business on the Business Day immediately preceding the Redemption
Date for such 2020 Debenture or such earlier date as the Holder
presents such 2020 Debenture for redemption (unless the Company shall
default in making the redemption payment when due, in which case the
conversion right shall terminate at the close of business on the date
such default is cured and such 2020 Debenture is redeemed). The
number of Ordinary Shares issuable upon conversion of a 2020
Debenture per $1,000 of Principal Amount thereof (the "Conversion
Rate") shall be that set forth under "Conversion" in the 2020
Debentures, subject to adjustment as herein set forth. Provisions of
this Indenture that apply to conversion of all of a 2020 Debenture
also apply to conversion of a portion of a 2020 Debenture.
A 2020 Debenture in respect of which a Holder has delivered
a Repurchase Notice or Change in Control Purchase Notice exercising
the option of such Holder to require the Company to purchase such
2020 Debenture, may be converted only if such notice of exercise is
withdrawn in accordance with the terms of this Indenture. A Holder of
2020 Debentures is not entitled to any rights of a holder of Ordinary
Shares until such Holder has converted its 2020 Debentures to
Ordinary Shares, and only to the extent such 2020 Debentures are
deemed to have been converted into Ordinary Shares pursuant to this
Article Fourteen.
SECTION 1402 Conversion Procedure
To convert a 2020 Debenture, a Holder must (a) complete and
manually sign the conversion notice on the back of the 2020 Debenture
and deliver such notice to a Conversion Agent, (b) surrender the 2020
Debenture to a Conversion Agent, (c) furnish appropriate endorsements
and transfer documents if required
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by the Security Registrar or a Conversion Agent, and (d) pay any
transfer or similar tax, if required. The date on which the Holder
satisfies all of those requirements is the "Conversion Date." As soon
as practicable after the Conversion Date, the Company shall deliver
to the Holder through a Conversion Agent a certificate for the number
of whole Ordinary Shares issuable upon the conversion and cash in
lieu of any fractional shares pursuant to Section 1403. Anything
herein to the contrary notwithstanding, in the case of Global
Securities, conversion notices may be delivered and such 2020
Debentures may be surrendered for conversion in accordance with the
applicable procedures of the Depositary as in effect from time to
time. The Person in whose name the Ordinary Shares certificate is
registered shall be deemed to be a shareholder of record on the
Conversion Date; provided, however, that no surrender of a 2020
Debenture on any date when the stock transfer books of the Company
shall be closed shall be effective to constitute the Person or
Persons entitled to receive the Ordinary Shares upon such conversion
as the record holder or holders of such Ordinary Shares on such date,
but such surrender shall be effective to constitute the Person or
Persons entitled to receive such Ordinary Shares as the record holder
or holders thereof for all purposes at the close of business on the
next succeeding day on which such stock transfer books are open;
provided, further, that such conversion shall be at the Conversion
Rate in effect on the date that such 2020 Debenture shall have been
surrendered for conversion, as if the stock transfer books of the
Company had not been closed. Upon conversion of a 2020 Debenture,
such Person shall no longer be a Holder of such 2020 Debenture.
No payment or adjustment will be made for dividends on, or
other distributions with respect to, any Ordinary Shares except as
provided in this Article Fourteen. On conversion of a 2020 Debenture,
that portion of accrued Original Issue Discount (and interest, if the
Company has exercised its option provided for in Section 1601)
attributable to the period from the Issue Date (or, in the case of
interest, if the Company has exercised the option provided for in
Section 1601, the later of (x) the date of such exercise and (y) the
date on which interest was last paid) of the 2020 Debenture through
the Conversion Date with respect to the converted 2020 Debenture
shall not be cancelled, extinguished or forfeited, but rather shall
be deemed to be paid in full to the Holder thereof through delivery
of the Ordinary Shares (together with the cash payment, if any, in
lieu of fractional shares) in exchange for the 2020 Debenture being
converted pursuant to the provisions hereof; and the fair market
value of such Ordinary Shares (together with any such cash payment in
lieu of fractional shares) shall be treated as issued, to the extent
thereof, first in exchange for Original Issue Discount (and interest,
if the Company has exercised its option provided for in Section 1601)
accrued through the Conversion Date, and the balance, if any, of such
fair market value of such Ordinary Shares (and any such cash payment)
shall
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be treated as issued in exchange for the Issue Price of the 2020
Debenture being converted pursuant to the provisions hereof.
If a Holder converts more than one 2020 Debenture at the
same time, the number of Ordinary Shares issuable upon the conversion
shall be based on the aggregate Principal Amount of 2020 Debentures
converted.
Upon surrender of a 2020 Debenture that is converted in
part, the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder, a new 2020 Debenture equal in Principal
Amount to the Principal Amount of the unconverted portion of the 2020
Debenture surrendered.
Where the Company has exercised its option under Section
1601, 2020 Debentures or portions thereof surrendered for conversion
during the period from the close of business on any Regular Record
Date immediately preceding any Interest Payment Date to the opening
of business on such Interest Payment Date shall (unless such 2020
Debentures or portions thereof have been called for redemption on a
Redemption Date within such period) be accompanied by payment to the
Company or its order, in New York Clearing House funds or other funds
acceptable to the Company, of an amount equal to the interest payable
on such Interest Payment Date on the principal amount of 2020
Debentures or portions thereof being surrendered for conversion.
SECTION 1403 Fractional Shares
The Company will not issue fractional Ordinary Shares upon
conversion of 2020 Debentures. In lieu thereof, the Company will pay
an amount in cash based upon the closing price of the Ordinary Shares
on the Trading Day immediately prior to the Conversion Date.
SECTION 1404 Taxes on Conversion
If a Holder converts a 2020 Debenture, the Company shall pay
any documentary, stamp or similar issue or transfer tax due on the
issue of Ordinary Shares upon such conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The
Conversion Agent may refuse to deliver the certificate representing
the Ordinary Shares being issued in a name other than the Holder's
name until the Conversion Agent receives a sum sufficient to pay any
tax which will be due because the shares are to be issued in a name
other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulation.
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SECTION 1405 Company to Provide Ordinary Shares
The Company shall, prior to issuance of any 2020 Debentures
under this Article Fourteen, and from time to time as may be
necessary, reserve, out of its authorized but unissued Ordinary
Shares, a sufficient number of Ordinary Shares to permit the
conversion of all 2020 Debentures Outstanding into Ordinary Shares.
All Ordinary Shares delivered upon conversion of the 2020 Debentures
shall be newly issued shares, shall be duly authorized, validly
issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all
federal and state securities laws regulating the registration of the
offer and delivery of Ordinary Shares to a converting Holder upon
conversion of 2020 Debentures, if any, and will list or cause to have
quoted such Ordinary Shares on each national securities exchange or
on the Nasdaq National Market or other over-the-counter market or
such other market on which the Ordinary Shares are then listed or
quoted.
SECTION 1406 Adjustment of Conversion Rate
The Conversion Rate shall be adjusted from time to time by
the Company as follows:
(a) In case the Company shall (i) pay a dividend on its
Ordinary Shares in Ordinary Shares, (ii) make a distribution on its
Ordinary Shares in Ordinary Shares, (iii) subdivide its outstanding
Ordinary Shares into a greater number of shares, or (iv) combine its
outstanding Ordinary Shares into a smaller number of shares, the
Conversion Rate in effect immediately prior thereto shall be adjusted
so that the Holder of any 2020 Debenture thereafter surrendered for
conversion shall be entitled to receive that number of Ordinary
Shares which it would have owned had such 2020 Debenture been
converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection (a) shall become
effective immediately after the record date in the case of a dividend
or distribution and shall become effective immediately after the
effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights or warrants to
all or substantially all holders of its Ordinary Shares entitling
them (for a period commencing no earlier than the record date
described below and expiring not more than 60 days after such record
date) to subscribe for or purchase Ordinary Shares (or securities
convertible into Ordinary Shares) at a price per share (or having a
conversion price per share) less than the current market price per
Ordinary Share (as determined in accordance with subsection (e) of
this Section
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1406) on the record date for the determination of shareholders
entitled to receive such rights or warrants, the Conversion Rate in
effect immediately prior thereto shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to such record date by a fraction of which
the numerator shall be the number of Ordinary Shares outstanding on
such record date plus the number of additional Ordinary Shares
offered (or into which the convertible securities so offered are
convertible), and of which the denominator shall be the number of
Ordinary Shares outstanding on such record date plus the number of
shares which the aggregate offering price of the total number of
Ordinary Shares so offered (or the aggregate conversion price of the
convertible securities so offered, which shall be determined by
multiplying the number of Ordinary Shares issuable upon conversion of
such convertible securities by the conversion price per Ordinary
Share pursuant to the terms of such convertible securities) would
purchase at the current market price per share (as determined in
accordance with subsection (e) of this Section 1406) of Ordinary
Shares on such record date. Such adjustment shall be made
successively whenever any such rights or warrants are issued, and
shall become effective immediately after such record date. If at the
end of the period during which such rights or warrants are
exercisable not all rights or warrants shall have been exercised, the
adjusted Conversion Rate shall be immediately readjusted to what it
would have been based upon the number of additional Ordinary Shares
actually issued (or the number of Ordinary Shares issuable upon
conversion of convertible securities actually issued).
(c) In case the Company shall distribute to all or
substantially all holders of its Ordinary Shares any shares of
capital stock (other than dividends or distributions of Ordinary
Shares on Ordinary Shares to which Section 1406(a) applies) of the
Company, evidences of indebtedness or other assets (including
securities of any Person other than the Company, but excluding
all-cash distributions or any rights or warrants referred to in
1406(b)), then in each such case the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by
multiplying the current Conversion Rate by a fraction of which the
numerator shall be the current market price per share (as determined
in accordance with subsection (e) of this Section 1406) of the
Ordinary Shares on the record date mentioned below, and of which the
denominator shall be the current market price per share (as
determined in accordance with subsection (e) of this Section 1406) of
the Ordinary Shares on such record date less the fair market value on
such record date (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value
and which shall be evidenced by an Officers' Certificate delivered to
the Trustee) of the portion of the capital stock, evidences of
indebtedness or other non-cash assets so distributed or of such
rights or warrants applicable to one Ordinary Share (determined on
the basis of the number of Ordinary Shares outstanding on the record
date). Such adjustment
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shall be made successively whenever any such distribution is made and
shall become effective immediately after the record date for the
determination of shareholders entitled to receive such distribution.
In the event that the Company implements a shareholder
rights plan, such rights plan shall provide, subject to customary
exceptions and limitations, that upon conversion of the Securities
the Holders will receive, in addition to the Ordinary Shares issuable
upon such conversion, the rights issued under such rights plan
(notwithstanding the occurrence of an event causing such rights to
separate from the Ordinary Shares at or prior to the time of
conversion). Any distribution of rights or warrants pursuant to a
shareholder rights plan complying with the requirements set forth in
the immediately preceding sentence of this paragraph shall not
constitute a distribution of rights or warrants for the purposes of
this Section 1406(c).
Rights or warrants distributed by the Company to all holders
of Ordinary Shares entitling the holders thereof to subscribe for or
purchase shares of the Company's capital stock (either initially or
under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events ("Trigger Event"): (i) are
deemed to be transferred with such Ordinary Shares; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances
of Ordinary Shares, shall be deemed not to have been distributed for
purposes of this Section 1406(c) (and no adjustment to the Conversion
Rate under this Section 1406(c) will be required) until the
occurrence of the earliest Trigger Event. If such right or warrant is
subject to subsequent events, upon the occurrence of which such right
or warrant shall become exercisable to purchase different securities,
evidences of indebtedness or other assets or entitle the holder to
purchase a different number or amount of the foregoing or to purchase
any of the foregoing at a different purchase price, then the
occurrence of each such event shall be deemed to be the date of
issuance and record date with respect to a new right or warrant (and
a termination or expiration of the existing right or warrant without
exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the
Conversion Rate under this Section 1406(c), (1) in the case of any
such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion
Rate shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may
be, as though it were a cash distribution, equal to the per share
redemption or repurchase price received by a holder of Ordinary
Shares with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of
Ordinary Shares as of the date of such redemption or repurchase, and
(2) in the case of such rights or warrants all
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of which shall have expired or been terminated without exercise, the
Conversion Rate shall be readjusted as if such rights and warrants
had never been issued.
(d) (1) In case the Company shall, by dividend or otherwise,
at any time distribute (a "Triggering Distribution") to all or
substantially all holders of its Ordinary Shares all-cash
distributions in an aggregate amount that, together with the
aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an
Officers' Certificate delivered to the Trustee) of any other
consideration payable in respect of any tender offer by the Company
or a Subsidiary of the Company for Ordinary Shares consummated within
the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Rate adjustment
pursuant to this Section 1406 has been made and (B) all other cash
distributions to all or substantially all holders of its Ordinary
Shares made within the 12 months preceding the date of payment of the
Triggering Distribution and in respect of which no Conversion Rate
adjustment pursuant to this Section 1406 has been made, exceeds an
amount equal to 12.5% of the product of the current market price per
Ordinary Share (as determined in accordance with subsection (e) of
this Section 1406) on the Business Day (the "Determination Date")
immediately preceding the day on which such Triggering Distribution
is declared by the Company multiplied by the number of Ordinary
Shares outstanding on the Determination Date (excluding shares held
in the treasury of the Company), the Conversion Rate shall be
increased so that the same shall equal the rate determined by
multiplying such Conversion Rate in effect immediately prior to the
Determination Date by a fraction of which the numerator shall be such
current market price per Ordinary Share (as determined in accordance
with subsection (e) of this Section 1406) on the Determination Date,
and the denominator shall be the current market price per Ordinary
Share (as determined in accordance with subsection (e) of this
Section 1406) on the Determination Date less the sum of the aggregate
amount of cash and the aggregate fair market value (determined as
aforesaid) of any such other consideration so distributed, paid or
payable within such 12 months (including, without limitation, the
Triggering Distribution) applicable to one Ordinary Share (determined
on the basis of the number of Ordinary Shares outstanding on the
Determination Date), such increase to become effective immediately
prior to the opening of business on the day following the date on
which the Triggering Distribution is paid.
(2) In case any tender offer made by the Company or any of
its Subsidiaries for Ordinary Shares shall expire and such tender
offer (as amended upon the expiration thereof) shall involve the
payment of aggregate consideration in an amount (determined as the
sum of the aggregate amount of cash consideration and the aggregate
fair market value (as determined by the Board of
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Directors, whose determination shall be conclusive evidence thereof
and which shall be evidenced by an Officers' Certificate delivered to
the Trustee thereof ) of any other consideration) that, together with
the aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an
Officers' Certificate delivered to the Trustee) of any other
consideration payable in respect of any other tender offers by the
Company or any Subsidiary of the Company for Ordinary Shares
consummated within the 12 months preceding the date of the Expiration
Date (as defined below) and in respect of which no Conversion Rate
adjustment pursuant to this Section 1406 has been made and (B) all
cash distributions to all or substantially all holders of its
Ordinary Shares made within the 12 months preceding the Expiration
Date and in respect of which no Conversion Rate adjustment pursuant
to this Section 1406 has been made, exceeds an amount equal to 12.5%
of the product of the current market price per Ordinary Share (as
determined in accordance with subsection (e) of this Section 1406) as
of the last date (the "Expiration Date") tenders could have been made
pursuant to such tender offer (as it may be amended) (the last time
at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "Expiration Time") multiplied by the
number of Ordinary Shares outstanding (including tendered shares but
excluding any shares held in the treasury of the Company) at the
Expiration Time, then, immediately prior to the opening of business
on the day after the Expiration Date, the Conversion Rate shall be
increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to close
of business on the Expiration Date by a fraction of which the
numerator shall be the sum of (x) the aggregate consideration
(determined as aforesaid) payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender
offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of Ordinary Shares outstanding (less any
Purchased Shares and excluding any shares held in the treasury of the
Company) at the Expiration Time and the current market price per
Ordinary Share (as determined in accordance with subsection (e) of
this Section 1406) on the Trading Day next succeeding the Expiration
Date, and the denominator shall be the product of the number of
Ordinary Shares outstanding (including tendered shares but excluding
any shares held in the treasury of the Company) at the Expiration
Time multiplied by the current market price per Ordinary Share (as
determined in accordance with subsection (e) of this Section 1406) on
the Trading Day next succeeding the Expiration Date, such increase to
become effective immediately prior to the opening of business on the
day following the Expiration Date. In the event that the Company is
obligated to purchase shares pursuant to any such tender offer, but
the Company is permanently prevented by applicable law from effecting
any or all such purchases
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or any or all such purchases are rescinded, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would have been in
effect based upon the number of shares actually purchased. If the
application of this Section 1406(d)(2) to any tender offer would
result in a decrease in the Conversion Rate, no adjustment shall be
made for such tender offer under this Section 1406(d)(2).
(3) For purposes of this Section 1406(d), the term "tender
offer" shall mean and include both tender offers and exchange offers,
all references to "purchases" of shares in tender offers (and all
similar references) shall mean and include both the purchase of
shares in tender offers and the acquisition of shares pursuant to
exchange offers, and all references to "tendered shares" (and all
similar references) shall mean and include shares tendered in both
tender offers and exchange offers.
(e) For the purpose of any computation under subsections
(b), (c) and (d) of this Section 1406, the current market price per
Ordinary Share on any date shall be deemed to be the average of the
daily closing prices for the 30 consecutive Trading Days commencing
45 Trading Days before (i) the Determination Date or the Expiration
Date, as the case may be, with respect to distributions or tender
offers under subsection (d) of this Section 1406 or (ii) the record
date with respect to distributions, issuances or other events
requiring such computation under subsection (b) or (c) of this
Section 1406. The closing price for each day shall be the last
reported sales price or, in case no such reported sale takes place on
such date, the average of the reported closing bid and asked prices
in either case on the New York Stock Exchange (the "NYSE") or, if the
Ordinary Shares are not listed or admitted to trading on the NYSE, on
the principal national securities exchange on which the Ordinary
Shares are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, the last
reported sales price of the Ordinary Shares as quoted on NASDAQ (the
term "NASDAQ" shall include, without limitation, the Nasdaq National
Market) or, in case no reported sales takes place, the average of the
closing bid and asked prices as quoted on NASDAQ or any comparable
system or, if the Ordinary Shares are not quoted on NASDAQ or any
comparable system, the closing sales price or, in case no reported
sale takes place, the average of the closing bid and asked prices, as
furnished by any two members of the National Association of
Securities Dealers, Inc. selected from time to time by the Company
for that purpose. If no such prices are available, the current market
price per share shall be the fair value of an Ordinary Share as
determined by the Board of Directors (which shall be evidenced by an
Officers' Certificate delivered to the Trustee).
(f) In any case in which this Section 1406 shall require
that an adjustment be made following a record date or a Determination
Date or Expiration Date, as the case may be, established for purposes
of this Section 1406, the Company may
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elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described
in Section 1409) issuing to the Holder of any 2020 Debenture
converted after such record date or Determination Date or Expiration
Date the Ordinary Shares and other capital stock of the Company
issuable upon such conversion over and above the Ordinary Shares and
other capital stock of the Company issuable upon such conversion only
on the basis of the Conversion Rate prior to adjustment; and, in lieu
of the shares the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other
appropriate evidence prepared by the Company of the right to receive
such shares. If any distribution in respect of which an adjustment to
the Conversion Rate is required to be made as of the record date or
Determination Date or Expiration Date therefor is not thereafter made
or paid by the Company for any reason, the Conversion Rate shall be
readjusted to the Conversion Rate which would then be in effect if
such record date had not been fixed or such effective date or
Determination Date or Expiration Date had not occurred.
SECTION 1407 No Adjustment
No adjustment in the Conversion Rate shall be required
unless the adjustment would require an increase or decrease of at
least 1% in the Conversion Rate as last adjusted; provided, however,
that any adjustments which by reason of this Section 1407 are not
required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Article
Fourteen shall be made to the nearest cent or to the nearest 1/1000th
of a share, as the case may be.
No adjustment need be made for issuances of Ordinary Shares
pursuant to a Company plan for reinvestment of dividends or interest
or for a change in the par value or a change to no par value of the
Ordinary Shares.
To the extent that the 2020 Debentures become convertible
into the right to receive cash, no adjustment need be made thereafter
as to the cash. Interest will not accrue on the cash.
SECTION 1408 Adjustment for Tax Purposes
The Company shall be entitled to make such adjustments in
the Conversion Rate, in addition to those required by Section 1406,
as it in its discretion shall determine to be advisable in order that
any stock dividends, subdivisions of shares, distributions of rights
to purchase stock or securities or distributions of securities
convertible into or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable.
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SECTION 1409 Notice of Adjustment
Whenever the Conversion Rate is adjusted, the Company shall
promptly mail to Holders a notice of the adjustment and file with the
Trustee an Officers' Certificate specifying the adjusted Conversion
Rate, and briefly stating the facts requiring the adjustment and the
manner of computing it.
SECTION 1410 Notice of Certain Transactions
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Rate,
(2) the Company takes any action that requires a
supplemental indenture pursuant to Section 1411, or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be.
The Company shall mail the notice at least fifteen days before such
date. Failure to mail such notice or any defect therein shall not
affect the validity of any transaction referred to in clause (1), (2)
or (3) of this Section 1410.
SECTION 1411 Effect of Reclassification, Consolidation, Merger or
Sale on Conversion Privilege
If any of the following shall occur, namely: (a) any
reclassification or change of Ordinary Shares issuable upon
conversion of the 2020 Debentures (other than a change in par value,
or from par value to no par value, or from no par value to par value,
or as a result of a subdivision or combination); (b) any
consolidation or merger in which the Company is a party consolidating
with another entity or merging with or into another entity other than
a merger in which the Company is the continuing corporation and which
does not result in any reclassification of, or change (other than a
change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or
combination) in, Outstanding Ordinary Shares; or (c) any sale or
conveyance of all or substantially all of the property and assets of
the Company to any Person, then the Company, or such successor,
purchasing or transferee corporation, as the case may be, shall (if
consideration is receivable by Holders of the Ordinary Shares in such
consolidation, merger, sale or conveyance), as a condition precedent
to such reclassification, change, consolidation, merger, sale or
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conveyance, execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each 2020 Debenture then
Outstanding shall have the right to convert such 2020 Debenture into
the kind and amount of shares of stock and other securities and
property (including cash) receivable upon such reclassification,
change, consolidation, merger, sale or conveyance by a holder of the
number of Ordinary Shares deliverable upon conversion of such 2020
Debenture immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance. Such supplemental
indenture shall provide for adjustments of the Conversion Rate which
shall be as nearly equivalent as may be practicable to the
adjustments of the Conversion Rate provided for in this Article
Fourteen. If, in the case of any such consolidation, merger, sale or
conveyance, the stock or other securities and property (including
cash) receivable thereupon by a holder of Ordinary Shares include
shares of stock or other securities and property of a Person other
than the successor, purchasing or transferee corporation, as the case
may be, in such consolidation, merger, sale or conveyance, then such
supplemental indenture shall also be executed by such other Person
and shall contain such additional provisions to protect the interests
of the Holders of the 2020 Debentures as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The
provisions of this Section 1411 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales or
conveyances.
In the event the Company shall execute a supplemental
indenture pursuant to this Section 1411, the Company shall promptly
file with the Trustee (x) an Officers' Certificate briefly stating
the reasons therefor, the kind or amount of shares of stock or other
securities or property (including cash) receivable by Holders of the
2020 Debentures upon the conversion of their 2020 Debentures after
any such reclassification, change, consolidation, merger, sale or
conveyance, any adjustment to be made with respect thereto and that
all conditions precedent have been complied with and (y) an Opinion
of Counsel that all conditions precedent have been complied with, and
shall promptly mail notice thereof to all Holders.
SECTION 1412 Trustee's Disclaimer
The Trustee shall have no duty to determine when an
adjustment under this Article Fourteen should be made, how it should
be made or what such adjustment should be, but may accept as
conclusive evidence of that fact or the correctness of any such
adjustment, and shall be protected in relying upon, an Officers'
Certificate including the Officers' Certificate with respect thereto
which the Company is obligated to file with the Trustee pursuant to
Section 1409. The Trustee makes no representation as to the validity
or value of any securities or assets issued upon conversion of 2020
Debentures, and the Trustee shall not be
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responsible for the Company's failure to comply with any provisions
of this Article Fourteen.
The Trustee shall not be under any responsibility to
determine the correctness of any provisions contained in any
supplemental indenture executed pursuant to Section 1411, but may
accept as conclusive evidence of the correctness thereof, and shall
be fully protected in relying upon, the Officers' Certificate with
respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 1411.
SECTION 1413 Voluntary Increase
The Company from time to time may increase the Conversion
Rate by any amount for any period of time if the period is at least
20 days or such longer period as may be required by law and if the
increase is irrevocable during the period.
ARTICLE FIFTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 1501 General
The Company may be required to repurchase 2020 Debentures in
accordance with their terms and in accordance with this Article.
2020 Debentures shall be purchased by the Company under the
paragraph "Repurchase by the Company at the Option of the Holder" of
the 2020 Debentures on May 24, 2003, May 24, 2008 and May 24, 2013
(each, a "Repurchase Date"), at the repurchase price specified
therein (each, a "Repurchase Price"), at the option of the Holder
thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written
notice of purchase (a "Repurchase Notice") at any time from the
opening of business on the date that is 20 Business Days prior to a
Repurchase Date until the close of business on such Repurchase Date
stating:
(A) the certificate number of the 2020 Debenture
which the Holder will deliver to be repurchased,
(B) the portion of the Principal Amount of the 2020
Debenture which the Holder will deliver to be repurchased,
which portion must be $1,000 or an integral multiple thereof,
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(C) that such 2020 Debenture shall be purchased as of
the Repurchase Date pursuant to the terms and conditions
specified under the paragraph "Repurchase by the Company at
the Option of the Holder" of the 2020 Debentures and in this
Indenture,
(D) in the event that the Company elects, pursuant to
Section 1502 hereof, to pay the Repurchase Price to be paid as
of such Repurchase Date, in whole or in part, in Ordinary
Shares but such portion of the Repurchase Price shall
ultimately be payable to such Holder entirely in cash because
any of the conditions to payment of the Repurchase Price in
Ordinary Shares is not satisfied prior to the close of
business on such Repurchase Date, as set forth in Section 1503
hereof, whether such Holder elects (i) to withdraw such
Repurchase Notice as to some or all of the 2020 Debentures to
which such Repurchase Notice relates (stating the Principal
Amount at Maturity and certificate numbers of the 2020
Debentures as to which such withdrawal shall relate), or (ii)
to receive cash in respect of the entire Repurchase Price for
all 2020 Debentures (or portions thereof) to which such
Repurchase Price relates, and
(2) delivery of such 2020 Debenture to the Paying Agent
prior to, on or after the Repurchase Date (together with all
necessary endorsements) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the Repurchase
Price therefor; provided, however, that such Repurchase Price shall
be so paid pursuant to this Article Fifteen only if the 2020
Debenture so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Repurchase Notice.
If a Holder, in such Holder's Repurchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the
terms of Section 1509 hereof, fails to indicate such Holder's choice
with respect to the election set forth in clause (D) of Section
1501(1), such Holder shall be deemed to have elected to receive cash
in respect of the Repurchase Price for all 2020 Debentures subject to
the Repurchase Notice in the circumstances set forth in such clause
(D).
The Company shall purchase from the Holder thereof, pursuant
to this Article Fifteen, a portion of a 2020 Debenture if the
Principal Amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the purchase of
all of a 2020 Debenture also apply to the purchase of such portion of
such 2020 Debenture.
Any purchase by the Company contemplated pursuant to the
provisions of this Article Fifteen shall be consummated by the
delivery of the consideration
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to be received by the Holder promptly following the later of the
Repurchase Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Repurchase Notice contemplated by
this Section 1501 shall have the right to withdraw such Repurchase
Notice at any time prior to the close of business on the Repurchase
Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 1509.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Repurchase Notice or written notice of
withdrawal thereof.
SECTION 1502 The Company's Right to Elect Manner of Payment of
Repurchase Price
(a) The Repurchase Price of 2020 Debentures in respect of
which a Repurchase Notice pursuant to Section 1501 has been given, or
a specified percentage thereof, will be paid by the Company, at the
election of the Company, with cash or Ordinary Shares or in any
combination of cash and Ordinary Shares, subject to the conditions
set forth in Section 1502 and 1503 hereof. The Company shall
designate, in the Company Notice delivered pursuant to Section 1505
hereof, whether the Company will purchase the 2020 Debentures for
cash or Ordinary Shares, or, if a combination thereof, the
percentages of the Repurchase Price of 2020 Debentures in respect of
which it will pay in cash and Ordinary Shares; provided that the
Company will pay cash for fractional interests in Ordinary Shares.
For purposes of determining the existence of potential fractional
interests, all 2020 Debentures subject to purchase by the Company
held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose 2020
Debentures are purchased pursuant to this Article Fifteen shall
receive the same percentage of cash or Ordinary Shares in payment of
the Repurchase Price for such 2020 Debentures, except (i) as provided
in Section 1504 with regard to the payment of cash in lieu of
fractional Ordinary Shares and (ii) in the event that the Company is
unable to purchase the 2020 Debentures of a Holder or Holders for
Ordinary Shares because any necessary qualifications or registrations
of the Ordinary Shares under applicable state securities laws cannot
be obtained, the Company may purchase the 2020 Debentures of such
Holder or Holders for cash. The Company may not change its election
with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company
Notice to Holders except pursuant to this Section 1502 or pursuant to
Section 1504 in the event of a failure to satisfy, prior to the close
of business on the Repurchase Date, any condition to the payment of
the Repurchase Price, in whole or in part, in Ordinary Shares.
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At least three Business Days before the Company Notice Date,
the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 1505,
(iii) if the Company elects to pay the Repurchase Price, or
a specified percentage thereof, in Ordinary Shares, that the
conditions to such manner of payment set forth in Section 1504 have
been or will be complied with, and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 1505.
SECTION 1503 Purchase with Cash
On each Repurchase Date, at the option of the Company, the
Repurchase Price of 2020 Debentures in respect of which a Repurchase
Notice pursuant to Section 1501 has been given, or a specified
percentage thereof, may be paid by the Company with cash equal to the
aggregate Repurchase Price of such 2020 Debentures. If the Company
elects to purchase 2020 Debentures with cash, the Company Notice, as
provided in Section 1505, shall be sent to Holders (and to beneficial
owners as required by applicable law) not less than 20 Business Days
prior to such Purchase Date (the "Company Notice Date").
SECTION 1504 Payment by Issuance of Ordinary Shares
On each Repurchase Date, at the option of the Company, the
Repurchase Price of 2020 Debentures in respect of which a Repurchase
Notice pursuant to Section 1501 has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a
number of Ordinary Shares equal to the quotient obtained by dividing
(i) the amount of cash to which the Holders would have been entitled
had the Company elected to pay all or such specified percentage, as
the case may be, of the Repurchase Price of such 2020 Debentures in
cash by (ii) the Market Price of an Ordinary Share, subject to the
next succeeding paragraph.
The Company will not issue a fractional Ordinary Share in
payment of the Repurchase Price. Instead the Company will pay cash
for the current market value of the fractional share. The current
market value of a fraction of an Ordinary Share shall be determined
by multiplying the Market Price by such fraction and rounding the
product to the nearest whole cent with one half cent being rounded
upwards. It is understood that if a Holder elects to have more than
one 2020
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Debenture repurchased, the number of Ordinary Shares shall be based
on the aggregate amount of 2020 Debentures to be repurchased.
If the Company elects to purchase the 2020 Debentures by the
issuance of Ordinary Shares, the Company Notice, as provided in
Section 1505, shall be sent to the Holders (and to beneficial owners
as required by applicable law) not later than the Company Notice
Date.
The Company's right to exercise its election to purchase the
2020 Debentures pursuant to this Article Fifteen through the issuance
of Ordinary Shares shall be conditioned upon:
(i) the Company's not having given its Company Notice of an
election to pay entirely in cash and its giving of timely Company
Notice of election to purchase all or a specified percentage of the
2020 Debentures with Ordinary Shares as provided herein;
(ii) the registration of the Ordinary Shares to be issued in
respect of the payment of the Repurchase Price under the Securities
Act or the Exchange Act, in each case, if required for the initial
issuance thereof;
(iii) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate
and an Opinion of Counsel each stating that (A) the terms of the
issuance of the Ordinary Shares are in conformity with this Indenture
and (B) the Ordinary Shares to be issued by the Company in payment of
the Repurchase Price in respect of 2020 Debentures have been duly
authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the Repurchase Price in respect of the
2020 Debentures, will be validly issued, fully paid and
non-assessable and, to the best of such counsel's knowledge, free
from preemptive rights, and, in the case of such Officer's
Certificate, stating that conditions (i), (ii) and (iii) above and
the condition set forth in the second succeeding sentence have been
satisfied and, in the case of such Opinion of Counsel, stating that
conditions (ii) and (iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number
of Ordinary Shares to be issued for each $1,000 Principal Amount at
Maturity of 2020 Debentures and the Sale Price of an Ordinary Share
on each trading day during the period commencing on the first trading
day of the period during which the Market Price is calculated and
ending three Business Days prior to the applicable
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Repurchase Date. The Company may pay the Repurchase Price (or any
portion thereof) in Ordinary Shares only if the information necessary
to calculate the Market Price is published in The Wall Street Journal
or another daily newspaper of national circulation. If the foregoing
conditions are not satisfied with respect to a Holder or Holders
prior to the close of business on the Repurchase Date and the Company
has elected to repurchase the 2020 Debentures pursuant to this
Article Fifteen through the issuance of Ordinary Shares, the Company
shall pay, without further notice, the entire Repurchase Price of the
2020 Debentures of such Holder or Holders in cash.
The "Market Price" means the average of the Sale Prices of
the Ordinary Shares for the five trading day period ending on (if the
third Business Day prior to the applicable Repurchase Date is a
trading day, or if not, then on the last trading day prior to), the
third Business Day prior to the applicable Repurchase Date
appropriately adjusted to take into account the occurrence, during
the period commencing on the first of such trading days during such
five trading day period and ending on such Repurchase Date, of any
event described in Section 1406; subject, however, to the conditions
set forth in Sections 1406(f) and 1407.
The "Sale Price" of the Ordinary Shares on any date means
the closing per share sale price (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one
in either case, the average of the average bid and average ask
prices) on such date as reported in the composite transactions for
the principal United States securities exchange on which the Ordinary
Shares are traded or, if the Ordinary Shares are not listed on a
United States national or regional securities exchange, as reported
by the National Association of Securities Dealers Automated Quotation
System or its successors.
SECTION 1505 Notice of Election
The Company's notice of election to repurchase with cash or
Ordinary Shares or any combination thereof shall be sent to the
Holders in the manner provided in Section 106 at the time specified
in Section 1503 or 1504, as applicable (the "Company Notice"). Such
Company Notice shall state the manner of payment elected and shall
contain the following information:
In the event the Company has elected to pay the Repurchase
Price (or a specified percentage thereof) with Ordinary Shares, the
Company Notice shall:
(1) state that each Holder will receive Ordinary Shares with
a Market Price equal to such specified percentage of the Repurchase
Price of the 2020 Debentures held by such Holder (except any cash
amount to be paid in lieu of fractional shares);
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(2) set forth the method of calculating the Market Price of
the Ordinary Shares; and
(3) state that because the Market Price of Ordinary Shares
will be determined prior to the Repurchase Date, Holders will bear
the market risk with respect to the value of the Ordinary Shares to
be received from the date such Market Price is determined to the
Repurchase Date.
In any case, each Company Notice shall include a form of
Repurchase Notice to be completed by a Holder and shall state:
(A) the Repurchase Price and the Conversion Rate;
(B) the name and address of the Paying Agent and the
Conversion Agent;
(C) that 2020 Debentures as to which a Repurchase Notice has
been given may be converted pursuant to Article Fourteen hereof only
if the applicable Repurchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(D) that 2020 Debentures must be surrendered to the Paying
Agent to collect payment;
(E) that the Repurchase Price for any 2020 Debenture as to
which a Repurchase Notice has been given and not withdrawn will be
paid promptly following the later of the Repurchase Date and the time
of surrender of such 2020 Debenture as described in (D);
(F) the procedures the Holder must follow to exercise
repurchase rights under this Article Fifteen and a brief description
of those rights;
(G) briefly, the conversion rights of the 2020 Debentures;
and
(H) the procedures for withdrawing a Repurchase Notice
(including, without limitation, for a conditional withdrawal pursuant
to the terms of Section 1501 or 1509).
At the Company's request, the Trustee shall give such
Company Notice in the Company's name and at the Company's expense;
provided, however, that, in all cases, the text of such Company
Notice shall be prepared by the Company.
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Upon determination of the actual number of Ordinary Shares
to be issued for each $1,000 Principal Amount at Maturity of 2020
Debentures, the Company will publish such determination at the
Company's Web site on the World Wide Web or through such other public
medium as the Company may use at that time.
SECTION 1506 Covenants of the Company
All Ordinary Shares delivered upon purchase of the 2020
Debentures shall be newly issued shares or treasury shares, shall be
duly authorized, validly issued, fully paid and nonassessable and
shall be free from preemptive rights and free of any lien or adverse
claim. The Company shall use its reasonable efforts to list or cause
to have quoted any Ordinary Shares to be issued to purchase 2020
Debentures on the principal national securities exchange or
over-the-counter or other domestic market on which the Ordinary
Shares are then listed or quoted.
SECTION 1507 Procedure upon Repurchase
The Company shall deposit cash (in respect of a cash
purchase under Section 1503 or for fractional Ordinary Shares, as
applicable) or Ordinary Shares, or a combination thereof, as
applicable, at the time and in the manner as provided in Section
1510, sufficient to pay the aggregate Repurchase Price of all 2020
Debentures to be purchased on the applicable Repurchase Date pursuant
to this Article Fifteen.
As soon as practicable after the Repurchase Date, the
Company shall deliver to each Holder entitled to receive Ordinary
Shares through the Paying Agent, a certificate for the number of full
shares of Ordinary Shares issuable in payment of the Repurchase Price
and cash in lieu of any fractional Ordinary Shares. The Person in
whose name the certificate for Ordinary Shares is registered shall be
treated as a holder of record of Ordinary Shares on the Business Day
following the Repurchase Date. Subject to Section 1504, no payment or
adjustment will be made for dividends on the Ordinary Shares the
record date for which occurred on or prior to the Repurchase Date.
SECTION 1508 Taxes
If a Holder of a 2020 Debenture is paid in Ordinary Shares,
the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of Ordinary Shares. However, the
Holder shall pay any such tax which is due because the Holder
requests the Ordinary Shares to be issued in a name other than the
Holder's name. The Paying Agent may refuse to deliver the
certificates representing the Ordinary Shares being issued in a name
other than the Holder's name until the Paying Agent receives a sum
sufficient to pay any tax which will
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be due because the Ordinary Shares are to be issued in a name other
than the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations, subject to the payment by
the Company of any Tax Additional Amounts required by the terms of
each 2020 Debenture.
SECTION 1509 Effect of Repurchase Notice
Upon receipt by the Paying Agent of the Repurchase Notice,
the Holder of the 2020 Debenture in respect of which such Repurchase
Notice was given shall (unless such Repurchase Notice is withdrawn as
specified in the following two paragraphs) thereafter be entitled to
receive solely the Repurchase Price with respect to such 2020
Debenture. Such Repurchase Price shall be paid to such Holder,
subject to receipt of funds and/or Ordinary Shares by the Paying
Agent, promptly following the later of (x) the Repurchase Date with
respect to such 2020 Debenture (provided the conditions in Section
1501 have been satisfied) and (y) the time of delivery of such 2020
Debenture to the Paying Agent by the Holder thereof in the manner
required by Section 1501. 2020 Debentures in respect of which a
Repurchase Notice has been given by the Holder thereof may not be
converted pursuant to Article Fourteen hereof on or after the date of
the delivery of such Repurchase Notice unless such Repurchase Notice
has first been validly withdrawn as specified in the following two
paragraphs.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Repurchase Notice at any time prior to the close
of business on the applicable Repurchase Date specifying:
(1) the certificate number of the 2020 Debenture in respect
of which such notice of withdrawal is being submitted;
(2) the Principal Amount of the 2020 Debenture with respect
to which such notice of withdrawal is being submitted; and
(3) the Principal Amount, if any, of such 2020 Debenture
which remains subject to the original Repurchase Notice and which has
been or will be delivered for purchase by the Company.
A written notice of withdrawal of a Repurchase Notice may be
in the form set forth in the preceding paragraph or may be in the
form of (i) a conditional withdrawal contained in a Repurchase Notice
pursuant to the terms of Section 1501(1)(D) or (ii) a conditional
withdrawal containing the information set forth in Section 1501(1)(D)
and the preceding paragraph and contained in a written
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notice of withdrawal delivered to the Paying Agent as set forth in
the preceding paragraph.
There shall be no purchase of any 2020 Debentures pursuant
to this Article Fifteen (other than through the issuance of Ordinary
Shares in payment of the Repurchase Price, including cash in lieu of
fractional shares) if there has occurred (prior to, on or after, as
the case may be, the giving, by the Holders of such 2020 Debentures,
of the required Repurchase Notice) and is continuing an Event of
Default (other than a default in the payment of the Repurchase Price
with respect to such 2020 Debentures). The Paying Agent will promptly
return to the respective Holders thereof any 2020 Debentures (x) with
respect to which a Repurchase Notice has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default in the payment of the
Repurchase Price with respect to such 2020 Debentures) in which case,
upon such return, the Repurchase Notice with respect thereto shall be
deemed to have been withdrawn.
SECTION 1510 Deposit of Repurchase Price
Prior to 11:00 a.m. (New York City time) on the Business Day
following the Repurchase Date, the Company shall deposit with the
Trustee or with the Paying Agent an amount of money (in immediately
available funds if deposited on such Business Day) and/or Ordinary
Shares, if permitted hereunder, sufficient to pay the aggregate
Repurchase Price of all of the 2020 Debentures or portions thereof
which are to be purchased as of the Repurchase Date.
SECTION 1511 Securities Repurchased in Part
Any 2020 Debenture which is to be purchased only in part
shall be surrendered at the office of the Paying Agent (with, if the
Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company or the
Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing) and the Company shall execute
and the Trustee shall authenticate and deliver to the Holder of such
2020 Debenture, without service charge, a new 2020 Debenture or 2020
Debentures, of any authorized denomination as requested by such
Holder in aggregate Principal Amount equal to, and in exchange for,
the portion of the Principal Amount of the 2020 Debenture so
surrendered which is not purchased.
SECTION 1512 Comply with Securities Laws Upon Purchase of Securities
In connection with any offer to purchase or purchase of 2020
Debentures under this Article Fifteen (provided that such offer or
purchase constitutes an
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"issuer tender offer" for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange
Act at the time of such offer or purchase), the Company shall (i)
comply with Rule 13e-4 under the Exchange Act, (ii) file the related
Schedule TO (or any successor schedule, form or report) under the
Exchange Act, and (iii) otherwise comply with all Federal and state
securities laws so as to permit the rights and obligations under
Article Fifteen to be exercised in the time and in the manner
specified in this Article Fifteen.
SECTION 1513 Repayment to the Company
The Trustee and the Paying Agent shall return to the Company
any cash or Ordinary Shares that remain unclaimed for two years,
subject to applicable unclaimed property law, together with interest
or dividends, if any, thereon held by them for the payment of the
Repurchase Price; provided, however, that to the extent that the
aggregate amount of cash or Ordinary Shares deposited by the Company
pursuant to Section 1510 exceeds the aggregate Repurchase Price of
the 2020 Debentures or portions thereof which the Company is
obligated to purchase as of the Repurchase Date, then promptly after
the Business Day following the Repurchase Date the Trustee shall
return any such excess to the Company together with interest or
dividends, if any, thereon. After that, Holders entitled to money
must look to the Company for payment as general creditors, unless an
applicable abandoned property law designates another Person.
SECTION 1514 onversion Arrangement on Repurchase
Any Securities required to be repurchased under this Article
Fifteen, unless surrendered for conversion before the close of business
on the Repurchase Date, may be deemed to be purchased from the Holders
of such Securities for an amount in cash not less than the Repurchase
Price, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Securities from the Holders, to
convert them into Ordinary Shares of the Company and to make payment
for such Securities to the Trustee in trust for such Holders.
ARTICLE SIXTEEN
SPECIAL TAX EVENT CONVERSION
SECTION 1601 Optional Conversion to Interest-Bearing Securities
Upon Tax Event
From and after (i) the date (the "Tax Event Date") of the
occurrence of a Tax Event and (ii) the date the Company exercises
such option, whichever is later
(the "Option Exercise Date"), at the option of the Company with
respect to its
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2020 Debentures only, interest in lieu of future Original Issue
Discount shall accrue at the rate of 2.75% per annum on a restated
principal amount per $1,000 original Principal Amount (the "Restated
Principal Amount") equal to the Issue Price plus Original Issue
Discount accrued to the Option Exercise Date and shall be payable
semiannually on each Interest Payment Date to holders of record at
the close of business on each Regular Record Date immediately
preceding such Interest Payment Date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30- day months and
will accrue from the most recent date on which interest has been paid
or, if no interest has been paid, from the Option Exercise Date.
Within 15 days of the occurrence of a Tax Event, the Company shall
mail a written notice of such Tax Event by first-class mail to the
Trustee and within 15 days of its exercise of such option the Company
shall mail a written notice of the Option Exercise Date by
first-class mail to the Trustee and Holders of the 2020 Debentures.
From and after the Option Exercise Date, (i) the Company shall be
obligated to pay at Stated Maturity, in lieu of the Principal Amount
of a Security, the Restated Principal Amount thereof and (ii) "Issue
Price and accrued Original Issue Discount," "Issue Price plus
Original Issue Discount" or similar words, as used herein, shall mean
Restated Principal Amount plus accrued and unpaid interest with
respect to any 2020 Debenture. 2020 Debentures authenticated and
delivered after the Option Exercise Date may, and shall if required
by the Trustee, bear a notation in a form approved by the Trustee as
to the conversion of the 2020 Debentures to interest-bearing 2020
Debentures.
SECTION 212 Amendment to Events of Default.
(a) Clause (1) of Section 501 of the Indenture is amended to
read in its entirety as follows:
(1) default in the payment of any interest after the
conversion of the 2020 Debentures to interest-bearing 2020 Debentures
pursuant to Section 1601 or of any Tax Additional Amounts upon any
2020 Debentures when such interest or Tax Additional Amounts become
due and payable and continuance of such default for a period of 30
days;
(b) Clause (2) of Section 501 of the Indenture is amended to
read in its entirety as follows:
(2) default in the payment of the Principal Amount at
Maturity (or, if the 2020 Debentures have been converted to
interest-bearing 2020 Debentures pursuant to Section 1601, the
Restated Principal Amount), the Redemption Price, the Repurchase
Price or the Change in Control Purchase Price when the same becomes
due and payable at its Stated Maturity upon redemption, upon
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declaration of acceleration, when due for repurchase by the Company
or otherwise;
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301 Integral Part.
This Third Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 302 General Definitions.
For all purposes of this Third Supplemental Indenture:
(a) capitalized terms used herein without definition shall
have the meanings specified in the Indenture; and
(b) the terms "herein", "hereof", "hereunder" and other words
of similar import refer to this Third Supplemental Indenture.
SECTION 303 Adoption, Ratification and Confirmation.
The Indenture, as supplemented and amended by this Third Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed.
SECTION 304 Counterparts.
This Third Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed an original; and
all such counterparts shall together constitute but one and the same instrument.
SECTION 305 Governing Law.
THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto fixed and attested as of the day and year first written above.
TRANSOCEAN SEDCO FOREX INC.
By:
---------------------------
Name:
----------------------
Title:
---------------------
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By:
---------------------------
Name:
---------------------
Title:
---------------------
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STATE OF TEXAS )
COUNTY OF XXXXXX )
On the 24th day of May, 2000, before me personally came______________,
to me known, who, being by me duly sworn, did depose and say that he is
____________________ of TRANSOCEAN SEDCO FOREX INC., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------------------------
Notary
STATE OF TEXAS )
COUNTY OF XXXXXX )
On the 24th day of May, 2000, before me personally came______________,
to me known, who, being by me duly sworn, did depose and say that such person is
a _____________________ of CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board Directors
of said corporation, and that such person signed his name thereto by like
authority.
---------------------------------------------
Notary
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ANNEX A
GLOBAL SECURITY
FORM OF ZERO COUPON CONVERTIBLE DEBENTURES
DUE MAY 2020
TRANSOCEAN SEDCO FOREX INC.
Issue Date: May 24, 2000 Maturity: May 24, 2020
Principal Amount: $ CUSIP: 893830 AA 7
Original Issue Discount: $420.88 Issue Price: $579.12
(per $1,000 Principal Amount) (per $1,000 Principal Amount)
Registered: No. R-
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary.
Transocean Sedco Forex Inc., a Cayman Islands exempted company limited
by shares (herein called the "Company", which term includes any successor
corporation under the indenture hereinafter referred to), for value received,
hereby promises to pay to Cede & Co., or registered assigns, the principal sum
of ($_________) on May 24, 2020. The principal of this Security shall not bear
interest, except in the case of default in payment of principal upon
acceleration, redemption or maturity or as specified on the other side of this
Security. Original Issue Discount will accrue as specified on the other side of
this Security. This Security is convertible as specified on the other side of
this Security.
A-1
49
Payment of the principal of and interest, if any, and Tax Additional
Amounts, if any, on this Security will be made at the office or agency of the
Company maintained for that purpose in The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company, payment of interest, if any, and Tax Additional Amounts,
if any, may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRANSOCEAN SEDCO FOREX INC.
By:
------------------------
Name:
Title:
---------------------------------------
Corporate Secretary
A-2
50
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
--------------------------------
Authorized Signature
A-3
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[FORM OF REVERSE SIDE OF SECURITY]
TRANSOCEAN SEDCO FOREX INC.
ZERO COUPON CONVERTIBLE DEBENTURE DUE MAY 2020
This Security is one of a duly authorized issue of senior securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of April 15, 1997, as amended by the Third
Supplemental Indenture thereto, dated as of May 24, 2000 (as so amended, herein
called the "Indenture"), between the Company and Chase Bank Texas, National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount at maturity to $865,000,000.
INTEREST
This Security shall not bear interest, except as specified in this paragraph
or as described under "Tax Event". If the Principal Amount hereof or any portion
of such Principal Amount is not paid when due (whether upon acceleration
pursuant to Section 502 of the Indenture, upon the date set for payment of the
Redemption Price as described under "Optional Redemption", upon the date set for
payment of the Change in Control Purchase Price pursuant to "Purchase of
Securities at Option of Holder Upon a Change in Control", upon the date set for
payment of the Repurchase Price under "Repurchase by the Company at the Option
of the Holder" or upon the Stated Maturity of this Security) or if interest due
hereon, if any, (or any portion of such interest) is not paid when due, then in
each such case the overdue amount shall, to the extent permitted by law, bear
interest at the rate of 2.75% per annum, compounded semi-annually, which
interest shall accrue from the date such overdue amount was originally due to
the date payment of such amount, including interest thereon, has been made or
duly provided for. All such interest shall be payable as set forth in the
Indenture. The accrual of such interest on overdue amounts shall be in lieu of,
and not in addition to, the continued accrual of Original Issue Discount.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security remains
outstanding, shall accrue at 2.75% per annum, on a semiannual bond equivalent
basis using a 360- day year composed of twelve 30-day months, from the Issue
Date of this Security.
METHOD OF PAYMENT
Payments in respect of principal of and interest, if any, on the Securities
shall be made by the Company in immediately available funds.
A-4
52
OPTIONAL REDEMPTION
No sinking fund is provided for the Securities. The Securities are redeemable
as a whole, or from time to time in part, at any time at the option of the
Company at the Redemption Price set forth below, after May 24, 2003.
The table below shows Redemption Prices of a Security per $1,000 Principal
Amount on the dates shown below and at Stated Maturity, which prices reflect
accrued Original Issue Discount calculated through each such date. The
Redemption Price of a Security redeemed between such dates shall include an
additional amount reflecting the additional Original Issue Discount accrued
since the immediately preceding date in the table.
(3)
(1) (2) REDEMPTION
DEBENTURE ISSUE ACCRUED ORIGINAL PRICE
REDEMPTION DATE PRICE ISSUE DISCOUNT (1)+(2)
----------------------------------------------- ---------------- -------------------- -------------------------
May 24, 2003 .................................. $ 579.12 $ 49.45 $ 628.57
May 24, 2004 .................................. 579.12 66.85 645.97
May 24, 2005 .................................. 579.12 84.74 663.86
May 24, 2006 .................................. 579.12 103.12 682.24
May 24, 2007 .................................. 579.12 122.01 701.13
May 24, 2008 .................................. 579.12 141.43 720.55
May 24, 2009 .................................. 579.12 161.38 740.50
May 24, 2010 .................................. 579.12 181.88 761.00
May 24, 2011 .................................. 579.12 202.95 782.07
May 24, 2012 .................................. 579.12 224.61 803.73
May 24, 2013 .................................. 579.12 246.86 825.98
May 24, 2014 .................................. 579.12 269.73 848.85
May 24, 2015 .................................. 579.12 293.24 872.36
May 24, 2016 .................................. 579.12 317.39 896.51
May 24, 2017 .................................. 579.12 342.21 921.33
May 24, 2018 .................................. 579.12 367.72 946.84
May 24, 2019 .................................. 579.12 393.94 973.06
At stated maturity ............................ 579.12 420.88 1,000.00
If converted to an interest-bearing debenture following the occurrence
of a Tax Event, this Security will be redeemable at the Restated Principal
Amount plus accrued and unpaid interest from the date of such conversion to the
Redemption Date; but in no event will this Security be redeemable before May 24,
2003.
If the Company redeems less than all of the outstanding Securities, the
Trustee will select the Securities to be redeemed (i) by lot; (ii) pro rata or
(iii) by another method the Trustee considers fair and appropriate. If the
Trustee selects a portion of a Holder's Securities for partial redemption and
the Holder converts a portion of the same Securities, the converted portion will
be deemed to be from the portion selected for redemption.
A-5
53
NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 15
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. Securities in denominations
larger than $1,000 Principal Amount may be redeemed in part, but only in whole
multiples of $1,000. On and after the Redemption Date, subject to the deposit
with the Paying Agent of funds sufficient to pay the Redemption Price, Original
Issue Discount (or interest, if the Security is converted to an interest-bearing
debenture) ceases to accrue on Securities or portions thereof called for
redemption.
PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the Principal Amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Securities held by
such Holder on the date that is 35 Business Days after the occurrence of a
Change in Control, at a Change in Control Purchase Price equal to the Issue
Price plus accrued Original Issue Discount through the Change in Control
Purchase Date. The Holder shall have the right to withdraw any Change in Control
Purchase Notice (in whole or in a portion thereof that is $1,000 Principal
Amount or an integral multiple of $1,000 in excess thereof) at any time prior to
the close of business on the Business Day prior to the Change in Control
Purchase Date by delivering a written notice of withdrawal to the Paying Agent
in accordance with the terms of the Indenture.
If prior to a Change in Control Purchase Date this Security has been
converted to an interest- bearing debenture following the occurrence of a Tax
Event, the Change in Control Purchase Price shall be equal to the Restated
Principal Amount plus accrued and unpaid interest from the date of conversion to
the Change in Control Purchase Date.
CONVERSION
A Holder of a Security may convert the Security into Ordinary Shares at
any time until the close of business on the Business Day prior to the Stated
Maturity; provided, however, that if the Security is called for redemption, the
conversion right will terminate at the close of business on the Business Day
immediately preceding the Redemption Date for such Security or such earlier date
as the Holder presents such Security for redemption (unless the Company shall
default in making the redemption payment when due, in which case the conversion
right shall terminate at the close of business on the date such default is cured
and such Security is redeemed). A Security in respect of which a Holder has
delivered a Repurchase Notice exercising the option of such Holder to require
the Company to purchase such Security may be converted only if such notice of
exercise is withdrawn in accordance with the terms of the Indenture. The initial
Conversion Rate is 8.1566 Ordinary Shares per $1,000 Principal Amount, subject
to adjustment in certain events described in the Indenture. The Company will
deliver cash or a check in lieu of any fractional Ordinary Share.
A-6
54
In the event the Company exercises its option pursuant to Section 1601
of the Indenture to have interest in lieu of Original Issue Discount accrue on
the Security following a Tax Event, the Holder will be entitled on conversion to
receive the same number of Ordinary Shares such Holder would have received if
the Company had not exercised such option. If the Company exercises such option,
Securities surrendered for conversion during the period from the close of
business on any Regular Record Date immediately preceding any Interest Payment
Date to the opening of business of such Interest Payment Date (except Securities
or portions of Securities to be redeemed on a Redemption Date occurring during
the period from the close of business on a Regular Record Date and ending on the
opening of business on the first Business Day after the next Interest Payment
Date, or if this Interest Payment Date is not a Business Day, the second
Business Day after the Interest Payment Date) must be accompanied by payment
from the Holder of an amount equal to the interest thereon that the registered
Holder is to receive from the Company on such Interest Payment Date. Except
where Securities surrendered for conversion must be accompanied by payment as
described above, no interest on converted Securities will be payable by the
Company on any Interest Payment Date subsequent to the date of conversion.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Ordinary Shares except as provided
in the Indenture. On conversion of a Security, that portion of accrued Original
Issue Discount (and interest if the Security is converted to an interest-bearing
debenture) attributable to the period from the Issue Date (or, in the case of
interest, if the Company has exercised the option referred to in "Tax Event",
the later of (x) the date of such exercise and (y) the date on which interest
was last paid) through the Conversion Date with respect to the converted
Security shall not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the Holder thereof through the delivery of the
Ordinary Shares (together with the cash payment, if any, in lieu of fractional
shares) in exchange for the Security being converted pursuant to the terms
hereof; and the fair market value of such Ordinary Shares (together with any
such cash payment in lieu of fractional shares) shall be treated as issued, to
the extent thereof, first in exchange for Original Issue Discount (and interest,
if the Company has exercised its option provided for in "Tax Event") accrued
through the Conversion Date, and the balance, if any, of such fair market value
of such Ordinary Shares (and any such cash payment) shall be treated as issued
in exchange for the Issue Price of the Security being converted pursuant to the
provisions hereof.
No fractional shares will be issued upon conversion; in lieu thereof,
an amount will be paid in cash based upon the closing price of the Ordinary
Shares on the Trading Day immediately prior to the Conversion Date.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Security to the Conversion Agent, (c) furnish appropriate
endorsements and transfer documents (including any certification that may be
required under applicable law) if required by the Conversion Agent, and (d) pay
any transfer or similar tax, if required.
X-0
00
XXXXXXXXXX BY THE COMPANY AT THE OPTION OF THE HOLDER
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Repurchase Dates and at the following Repurchase
Prices per $1,000 Principal Amount, upon delivery of a Repurchase Notice
containing the information set forth in the Indenture, at any time from the
opening of business on the date that is 20 Business Days prior to such
Repurchase Date until the close of business on such Repurchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in the
Indenture.
REPURCHASE DATE REPURCHASE PRICE
----------------- ------------------
May 24, 2003 ...... $ 628.57
May 24, 2008 ...... $ 720.55
May 24, 2013 ...... $ 825.98
The Repurchase Price (equal to the Issue Price plus accrued Original
Issue Discount through the Repurchase Date) may be paid, at the option of the
Company, in cash or by the issuance of Ordinary Shares at the Conversion Rate,
or in any combination thereof.
If prior to a Repurchase Date this Security has been converted to an
interest-bearing debenture following the occurrence of a Tax Event, the
Repurchase Price will be equal to the Restated Principal Amount plus accrued and
unpaid interest from the date of conversion to the Repurchase Date.
Holders have the right to withdraw any Repurchase Notice by delivering
to the Paying Agent a written notice of withdrawal prior to the close of
business on the Repurchase Date in accordance with the provisions of the
Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay the Repurchase Price of all Securities or portions thereof to be
purchased as of the Repurchase Date, is deposited with the Paying Agent on the
Business Day following the Repurchase Date, Original Issue Discount ceases to
accrue on such Securities (or portions thereof) immediately after such
Repurchase Date, and the Holder thereof shall have no other rights as such
(other than the right to receive the Repurchase Price upon surrender of such
Security).
TAX EVENT
From and after (i) the date (the "Tax Event Date") of the occurrence of
a Tax Event and (ii) the date the Company exercises such option, whichever is
later (the "Option Exercise Date"), at the option of the Company, interest in
lieu of future Original Issue Discount shall accrue at the rate of 2.75% per
annum on a Principal Amount per Security (the "Restated Principal Amount") equal
to the Issue Price plus Original Issue Discount accrued through the Option
Exercise Date and shall be payable semiannually on May 24 and November 24, of
each year (each an "Interest Payment Date")
A-8
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to holders of record at the close of business on May 10 or November 10 (each a
"Regular Record Date") immediately preceding such Interest Payment Date.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months and will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the Option Exercise Date.
Interest on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the payee located inside
the United States.
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section 307 of the Indenture.
CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the
Redemption Price, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Securities from the Holders, to convert
them into Ordinary Shares of the Company and to make payment for such Securities
to the Paying Agent in trust for such Holders.
TAX ADDITIONAL AMOUNTS
The Company agrees that any amounts to be paid by the Company hereunder
with respect to any Security shall be paid without deduction or withholding for
any and all present and future withholding taxes, levies, imposts and charges
whatsoever imposed by or for the account of the Cayman Islands or any political
subdivision or taxing authority thereof or therein, or if deduction or
withholding of any such taxes, levies, imposts or charges shall at any time be
required by the Cayman Islands or any such subdivision or authority thereof or
therein, the Company will (subject to compliance by the Holder of such Security
with any relevant administrative requirements) pay such additional amounts ("Tax
Additional Amounts") in respect of principal amount, premiums (if any),
Redemption Price, and interest (if any), in accordance with the terms of the
Securities and the Indenture, as the case may be in order that the amounts
received by the Holder of the Security, after such deduction or withholding,
shall equal the respective amounts of principal amount, premium (if any),
Redemption Price, and interest (if any), in accordance with the terms of the
Securities and the Indenture, as specified in such Securities to which such
Holder is entitled; provided, however, that the foregoing shall not apply to:
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(1) any such tax, levy, impost or charge which would not be
payable or due but for the fact that (A) the Holder of a Security (or a
fiduciary, settlor, beneficiary of, member or shareholder of, such Holder, if
such Holder is an estate, trust, partnership or corporation) is a domiciliary,
national or resident of, or engaging in business or maintaining a permanent
establishment or being physically present in, the Cayman Islands or such
political subdivision or otherwise having some present or former connection with
the Cayman Islands other than the holding or ownership of such Security or the
collection of principal amount, premium (if any), Redemption Price, and interest
(if any), in accordance with the terms of the Security and this Indenture, or
the enforcement of such Security or (B) where presentation is required, such
Security was presented more than 30 days after the date such payment became due
or was provided for, whichever is later;
(2) any estate, inheritance, gift, sales, transfer, excise,
personal property or similar tax, levy, impost or charge;
(3) any tax, levy, impost or charge which is payable otherwise
than by withholding from payment of principal amount, premium (if any),
Redemption Price, and interest (if any);
(4) any tax, levy, impost or charge which would not have been
imposed but for the failure to comply with certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the relevant tax authority of the Holder
or beneficial owner of such Security, if such compliance is required by statute
or by regulation as a precondition to relief or exemption from such tax, levy,
impost or charge; or
(5) any combination of (1) through (4).
nor shall any Tax Additional Amounts be paid to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Security to the
extent that a beneficiary or settlor with respect to such fiduciary, or a member
of such partnership or a beneficial owner thereof, would not have been entitled
to the payment of such Tax Additional Amounts had such beneficiary, settlor,
member or beneficial owner been the Holder of the Security.
TRANSFER
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration or transfer at the
office or agency in a Place of Payment for Securities of this series, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of any authorized denominations and for the
same aggregate principal amount, executed by the Company and authenticated and
delivered by the Trustee, will be issued to the designated transferee or
transferees.
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The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations set forth therein
and on the face of this Security, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series of a different
authorized denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee or any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
AMENDMENT, SUPPLEMENT AND WAIVER
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except in
certain circumstances specified in the Indenture) be released from those
obligations.
DEFAULTS AND REMEDIES
If an Event of Default with respect to Securities of this series shall
occur and be continuing, all unpaid Issue Price plus accrued Original Issue
Discount through the acceleration date (or, if the Security has been converted
to an interest bearing debenture, the Restated Principal Amount plus accrued and
unpaid interest from the date of conversion to the acceleration date) of the
Securities
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of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
NO RECOURSE AGAINST OTHERS
No recourse shall be had for the payment of the principal of or the
interest, if any, on this Security, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
directory, as such, past, present or future, of the Company or of any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment of penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
AUTHENTICATION
This Security shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Security.
INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Security and
the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
All terms defined in the Indenture and used in this Security but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
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CONVERSION NOTICE
To convert this Security into Ordinary Shares of the Company, check the
box: [ ]
To convert only part of this Security, state the Principal Amount to be
converted (must be $1,000 or a multiple of $1,000): $______________.
If you want the stock certificate made out in another person's name,
fill in the form below:
--------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
Your Signature: Date:
---------------------------------------- -----------------
(Sign exactly as your name appears on the other side of this Security)
*Signature guaranteed by:
-------------------------------------------------------
By:
------------------------------------------
------------------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE ON CHANGE IN
CONTROL
If you want to elect to have this Security purchased, in whole or in
part, by the Company pursuant to Section 1110 of the Indenture, check the
following box: [ ]
If you want to have only part of this Security purchased by the Company
pursuant to Section 1110 of the Indenture, state the Principal Amount you want
to be purchased (must be $1,000 or a multiple of $1,000): $________________
Your Signature: Date:
-------------------------------------- -------------------
(Sign exactly as your name appears on the other side of this Security)
*Signature guaranteed by:
------------------------------------------------------
By:
--------------------------------------
-------------------------
* The signature must be guaranteed by an institution which is a member of one
of the following recognized signature guaranty programs: (i) the Securities
Transfer Agent Medallion Program (STAMP); (ii) the New York Stock Exchange
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP);
or (iv) such other guaranty program acceptable to the Trustee.
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