EXHIBIT 4.2
NABORS HOLDINGS 1, ULC
$225,000,000 4.875% SENIOR NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
New York, New York
August 22, 2002
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Nabors Holdings 1, ULC, an unlimited liability company formed under the
Companies Act of Nova Scotia (the "Company"), proposes to issue and sell to
Xxxxxx Brothers Inc. (the "Initial Purchaser"), upon the terms set forth in a
purchase agreement, dated August 22, 2002 (the "Purchase Agreement"),
$225,000,000 aggregate principal amount of its 4.875% Senior Notes due 2009 (the
"Notes") relating to the initial placement of the Notes (the "Initial
Placement"). The Notes will be unconditionally guaranteed (the "Guarantees"and
together with the Notes, the "Securities") on a senior basis by Xxxxxx
Industries Ltd., a Bermuda company ("Nabors Bermuda") and Nabors Industries,
Inc., a Delaware corporation ("Xxxxxx Delaware," and together with Nabors
Bermuda, the "Guarantors"). Concurrently with Initial Placement of the Notes,
Nabors Delaware, an indirect, wholly-owned subsidiary of Nabors Bermuda, is
offering an aggregate of $275,000,000 of its 5.375% Senior Notes due 2012,
guaranteed by Nabors Bermuda to Qualified Institutional Buyers under Rule 144A
(the "Concurrent Offering"). The consummation of the Initial Placement of the
Notes and the Concurrent Offering are not conditioned upon each other. To
satisfy a condition to the obligations of the Initial Purchaser under the
Purchase Agreement, the Company and the Guarantors agree with the Initial
Purchaser for the benefit of the holders from time to time of the Securities
(including the Initial Purchaser) and the New Securities (as defined herein)
(each a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall have the same meaning as
in Rule 501(b) of Regulation D of the Securities Act.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the 180-day period
following the consummation of the Registered Exchange Offer, exclusive
of any period during which any stop order shall be in effect suspending
the effectiveness of the Exchange Offer Registration Statement, or such
shorter period as will terminate when all New Securities held by
Exchanging Dealers or Initial Purchaser have been sold pursuant thereto.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company and the Guarantors on an appropriate form under
the Act with respect to the Registered Exchange Offer, all amendments
and supplements to such registration statement, including post-effective
amendments thereto, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Exchanging Dealer" shall mean any Holder (which may include the
Initial Purchaser) that is a Broker-Dealer and elects to exchange for
New Securities any Securities that it acquired for its own account as a
result of market-making activities or other trading activities (but not
directly from the Company or any Affiliate of the Company).
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities,
dated as of August 22, 2002, among the Company, the Guarantors and Bank
One, N.A., as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Notes and/or New Notes, as applicable,
registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"New Notes" shall mean debt securities of the Company, guaranteed
by the Guarantors, identical in all material respects to the Notes
(except that the cash interest and interest rate step-up provisions and
the transfer restrictions shall be modified or eliminated, as
appropriate) and to be issued under the Indenture or the New Securities
Indenture.
"New Securities" shall mean debt securities of the Company and the
related guarantees of the Guarantors, identical in all material respects
to the Securities (except that the cash interest and interest rate
step-up provisions and the transfer restrictions shall be modified or
eliminated, as appropriate) and to be issued under the Indenture or the
New Securities Indenture.
"New Securities Indenture" shall mean an indenture among the
Company, the Guarantors and the New Securities Trustee, identical in all
material respects to the Indenture (except that the interest rate
step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchaser, as trustee with
respect to the New Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Securities or
the New Securities covered by such Registration
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Statement, and all amendments and supplements thereto and all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are
not prohibited by any law or policy of the Commission from participating
in such offer, in exchange for the Securities, a like aggregate
principal amount of the New Notes and Related Guarantees.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration
statement, including post-effective amendments (in each case including
the Prospectus contained therein), all exhibits thereto and all material
incorporated by reference therein.
"Related Guarantees" shall mean the guarantees of the Guarantors to
be issued under the Indenture or the New Securities Indenture in respect
of New Notes.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors pursuant to the provisions
of Section 3 hereof which covers some or all of the Securities and/or
New Securities, as applicable, on an appropriate form under Rule 415
under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission promulgated
thereunder and any successor act, rules and regulations.
"Trustee" shall mean the trustee with respect to the Securities and
New Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities or New
Securities in connection with an offering thereof under a Registration
Statement.
2. Registered Exchange Offer.
(a) Except as set forth in Section 3 below, the Company and the
Guarantors shall prepare, at their cost, and, not later than 90 days
following the Closing Date (or if such 90th day is not a Business Day, the
next succeeding Business Day) shall file with the Commission the Exchange
Offer Registration Statement with respect to the Registered Exchange Offer.
The Company and the Guarantors shall use their reasonable best efforts to
cause the Exchange Offer Registration Statement to become effective under
the Act not later December 2, 2002.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the
Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Company and
the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
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(ii) commence and use their reasonable best efforts to complete the
Registered Exchange Offer promptly, but no later than December 31, 2002,
and hold the Registered Exchange Offer open for not less than 20
Business Days;
(iii) use their reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that it is
available for sales of New Securities by Exchanging Dealers or the
Initial Purchaser during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day
on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are conducting the Registered
Exchange Offer in reliance on the position of the Commission in Exxon
Capital Holdings Corporation (pub. avail. May 13, 1988), Xxxxxx Xxxxxxx
and Co., Inc. (pub. avail. June 5, 1991); and (B) including a
representation to the effect that the Company and the Guarantors have
not entered into any arrangement or understanding with any Person to
distribute the New Securities to be received in the Registered Exchange
Offer and that, to the best of their information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
New Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Guarantors shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 5(r) all Notes so accepted for exchange; and
(iii) cause the Trustee or New Securities Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Securities a
principal amount of New Notes equal to the principal amount of the Notes
of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the
Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Xxxxxxxx & Sterling dated July 2,
1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction which must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K under the Act
if the resales are of New Securities obtained by such Holder in exchange
for Securities acquired by such Holder directly from the Company or one of
its Affiliates. Accordingly, each Holder participating in
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the Registered Exchange Offer shall be required to represent to the Company
and the Guarantors that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be acquired in
the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Securities or the New
Securities within the meaning of the Act;
(iii) such Holder is not an Affiliate of the Company or any of the
Guarantors or if it is an Affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Act to the
extent applicable;
(iv) if such Holder is not a Broker-Dealer, that it is not engaged
in, and does not intend to engage in, the distribution of the New
Securities; and
(v) if such Holder is a Broker-Dealer, that it will receive New
Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading
activities and that it will deliver a prospectus in connection with any
resale of such New Securities.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable interpretations
thereof by the Commission's staff, the Company determines upon advice of
its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; (ii) for any other
reason the Exchange Offer Registration Statement is not declared effective
by December 2, 2002 or the Registered Exchange Offer is not consummated by
December 31, 2002; (iii) the Initial Purchaser determines upon advice of
its counsel that a Shelf Registration Statement must be filed in connection
with any public offering or sale of Securities that are not eligible to be
exchanged for New Securities in the Registered Exchange Offer and that are
held by it following consummation of the Registered Exchange Offer; or (iv)
any Holder (other than the Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer or does not receive freely
tradeable New Securities in the Registered Exchange Offer other than by
reason of such Holder being an Affiliate of the Company (it being
understood that the requirement that a participating Broker-Dealer deliver
the prospectus contained in the Exchange Offer Registration Statement in
connection with sales of New Securities shall not result in such New
Securities being not "freely tradeable"), the Company and the Guarantors
shall effect a Shelf Registration Statement in accordance with subsection
(b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company and the Guarantors, at their cost, shall as
promptly as practicable, but in no event later than 90 days after such
obligation to file arises, file with the Commission and thereafter shall
use their reasonable best efforts to cause to be declared effective
under the Act as soon as practicable, but in no event later than
December 31, 2002, a Shelf Registration Statement relating to the offer
and sale of the Securities or the New Securities, as applicable, by the
Holders thereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than
the Initial Purchaser) shall be entitled to have the Securities or New
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder; and provided
further, that with respect to New Securities received by the Initial
Purchaser in exchange for Securities constituting any portion of an
unsold allotment, the Company and the Guarantors may, if permitted by
current interpretations by the Commission's staff, file a post-
effective amendment to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation
S-K, as applicable, in satisfaction of their obligations under this
subsection with respect thereto, and any such Exchange Offer
Registration Statement,
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as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) the Company and the Guarantors shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period the
earlier of (A) the time when all of the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement can be sold
pursuant to Rule 144 without limitation under clauses (c), (e), (f) and
(h) of Rule 144, (B) the date on which all the Securities or New
Securities, as applicable, covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement, and (C) the
date two years from the date the Shelf Registration Statement is
declared effective by the Commission (in any such case, such period
being called the "Shelf Registration Period"). The Company and the
Guarantors shall be deemed not to have used their reasonable best
efforts to keep the Shelf Registration Statement effective during the
requisite period if they voluntarily take any action that would result
in Holders of Securities or New Securities covered thereby not being
able to offer and sell such Securities or New Securities during that
period, unless (A) such action is required by applicable law; or (B)
such action is taken by the Company and the Guarantors in good faith and
for valid business reasons (not including avoidance of the Company's and
the Guarantors' obligations hereunder), including, but not limited to,
the acquisition or divestiture of assets, so long as the Company and the
Guarantors promptly thereafter comply with the requirements of Section
5(k) hereof, if applicable.
(iii) the Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in all material
respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission; and (B) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
4. Special Interest. If (a) on or prior to December 31, 2002, the
Registered Exchange Offer has not been consummated, or (b) after either the
Exchange Offer Registration Statement or the Shelf Registration Statement
has been declared effective, such Registration Statement thereafter ceases
to be effective or usable in connection with resales of Securities or New
Securities in accordance with and during the periods specified in this
Agreement (each such event referred to in clauses (a) and (b), a
("Registration Default"), then, as liquidated damages, interest ("Special
Interest") will accrue on the principal amount of the Securities and the
New Securities (in addition to the stated interest on the Securities and
New Securities) from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration
Defaults have been cured. Special Interest will accrue at a rate of 0.25%
per annum.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Security at
the time such Security is exchanged for a New Security shall survive until
such time as all such obligations with respect to such Security have been
satisfied in full.
5. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to the Initial Purchaser, not less than five
Business Days prior to the filing thereof with the Commission, a
draft copy of any Exchange Offer Registration Statement and any Shelf
Registration Statement, and each amendment thereof and each amendment
or
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supplement, if any, to the Prospectus included therein (including all
documents incorporated by reference therein after the initial filing)
and shall use their reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as the
Initial Purchaser reasonably proposes;
(ii) include the information set forth in Annex A hereto on the
front page of the Prospectus contained in the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the
Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if requested by the Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities or New
Securities, as applicable, pursuant to the Shelf Registration
Statement as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement
thereto complies in all respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Company and the Guarantors shall advise the Initial
Purchaser, the Holders of Securities or New Securities covered by any
Shelf Registration Statement and any Exchanging Dealer under any
Exchange Offer Registration Statement that has provided in writing to
the Company and the Guarantors a telephone or facsimile number and
address for notices, and, if requested by the Initial Purchaser or any
such Holder or Exchanging Dealer shall confirm such advice in writing
(which notice pursuant to clauses (ii)-(v) hereof shall be accompanied
by an instruction to suspend the use of the Prospectus until the Company
and the Guarantors shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company and the Guarantors of any
notification with respect to the suspension of the qualification of
the Securities or New Securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose;
and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in the
light of the circumstances under which they were made) not
misleading.
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(d) The Company and the Guarantors shall use their reasonable best
efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement or the qualification of the
Securities or New Securities therein for sale in any jurisdiction at the
earliest possible time.
(e) The Company and the Guarantors shall furnish to each Holder of
Securities or New Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, and, if the Holder
so requests in writing, all material incorporated therein by reference
and all exhibits thereto (including exhibits incorporated by reference
therein).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Securities or New
Securities covered by any Shelf Registration Statement, without charge,
as many copies of the Prospectus (including each preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request. The Company
and the Guarantors consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Securities or
New Securities in connection with the offering and sale of the
Securities or New Securities covered by the Prospectus, or any amendment
or supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall furnish to each Exchanging
Dealer or the Initial Purchaser which so requests, without charge, at
least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing,
all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company and the Guarantors shall promptly deliver to the
Initial Purchaser, each Exchanging Dealer and each other Person required
to deliver a Prospectus during the Exchange Offer Registration Period,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as any such Person may reasonably request. The Company and the
Guarantors consent to the use of the Prospectus or any amendment or
supplement thereto by the Initial Purchaser, any Exchanging Dealer and
any such other Person that may be required to deliver a Prospectus
following the Registered Exchange Offer in connection with the offering
and sale of the New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities or New Securities pursuant to any Registration Statement, the
Company and the Guarantors shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under the
laws of such jurisdictions as any Holder shall reasonably request and
will maintain such qualification in effect so long as required; provided
that in no event shall the Company and the Guarantors be obligated to
qualify to do business in any jurisdiction where they are not then so
qualified or to take any action that would subject them to service of
process in suits or taxation, other than those arising out of the
Initial Placement, the Registered Exchange Offer or any offering
pursuant to a Shelf Registration Statement, in any such jurisdiction
where they are not then so subject.
(j) The Company and the Guarantors shall cooperate with the Holders
of Securities and New Securities to facilitate the timely preparation
and delivery of certificates representing New Securities or Securities
to be issued or sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such
names as Holders may request.
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(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Guarantors shall promptly
prepare a post-effective amendment to the applicable Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to the
Initial Purchaser or Exchanging Dealers, the Prospectus will not include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In such
circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be
extended by the number of days from and including the date of the giving
of a notice of suspension pursuant to Section 5(c) to and including the
date when the Initial Purchaser, the Holders of the Securities or New
Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company and the Guarantors shall provide a CUSIP number
for the Securities or the New Securities, as the case may be, registered
under such Registration Statement and provide the Trustee with printed
certificates for such Securities or New Securities, in a form eligible
for deposit with The Depository Trust Company.
(m) The Company and the Guarantors shall comply with all applicable
rules and regulations of the Commission and shall make generally
available to their security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act.
(n) The Company and the Guarantors shall cause the Indenture or the
New Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
Securities or New Securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company and the Guarantors such
information regarding the Holder and the distribution of such Securities
as the Company and the Guarantors may from time to time reasonably
require for inclusion in such Registration Statement. The Company and
the Guarantors may exclude from such Shelf Registration Statement the
Securities or New Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall enter into such agreements and take all other
appropriate actions (including if requested an underwriting agreement in
customary form) in order to expedite or facilitate the registration or
the disposition of the Securities or New Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same
to contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing
Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the Company
and the Guarantors shall use their reasonable best efforts to:
(i) make reasonably available for inspection by the Holders of
Securities or New Securities to be registered thereunder, any
Underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Underwriter all relevant
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders
or any such Underwriter, attorney, accountant or agent in connection
with any such Registration Statement as is customary for
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similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by the Holders or any such Underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Securities or New Securities registered thereunder and the
Underwriters, if any, in form, substance and scope as are customarily
made by issuers to Underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in
the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders and
Underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to
each selling Holder of Securities or New Securities registered
thereunder and the Underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto; and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the New Securities,
the Company shall mark, or caused to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the
New Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
(s) If any Broker-Dealer shall underwrite any Securities or New
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc.) thereof, whether as a Holder of such
Securities or New Securities or as an Underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist
such Broker-Dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and,
if any portion of the offering contemplated by such Registration
Statement is an underwritten
10
offering or is made through a placement or sales agent, to recommend
the yield of such Securities or New Securities;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of Underwriters provided in Section
7 hereof; and
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the
requirements of such Rules.
(t) The Company and the Guarantors shall use their reasonable best
efforts to take all other steps necessary to effect the registration of
the Securities or the New Securities, as the case may be, covered by a
Registration Statement.
6. Registration Expenses. The Company and the Guarantors shall bear
all expenses incurred in connection with the performance of their
obligations under Sections 2, 3 and 5 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees
and disbursements of one firm or counsel designated by the Majority Holders
to act as counsel for the Holders in connection therewith, but excluding
fees and expenses of counsel to the Initial Purchaser or the Holders, all
agency fees and commissions, underwriting discounts and commissions and
transfer taxes attributable to the sale or disposition of Securities by a
Holder.
7. Indemnification and Contribution.
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless (i) the Initial Purchaser, (ii) each Holder of
Securities or New Securities, as the case may be, covered by any
Registration Statement (including with respect to any Prospectus delivery
as contemplated in Section 5(h) hereof, each Exchanging Dealer), (iii) each
Person, if any, who controls (within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act) any of the foregoing
(any of the Persons referred to in this clause (iii) being hereinafter
referred to as a "controlling person"), and (iv) the respective officers,
directors, partners, employees, representatives and agents of the Initial
Purchaser, the Holders (including predecessor Holders) or any controlling
person (any person referred to in clause (i), (ii), (iii) or (iv) may
hereinafter be referred to as an "Indemnified Holder"), from and against
any and all losses, claims, damages, and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) (collectively
"Losses") caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Indemnified Holder furnished to the Company or
the Guarantors in writing by such Indemnified Holder expressly for use in
therein; provided, however, that neither the Company nor the Guarantors
shall be liable to any Indemnified Holder under the indemnity agreement of
this paragraph with respect to any preliminary prospectus to the extent
that any such loss, claim, damage, liability, judgment or expense of such
Indemnified Holder results from the fact that such Indemnified Holder sold
Securities or New Securities under a Registration Statement to a Person as
to whom it shall be established that there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the Prospectus
(or of the preliminary prospectus as then amended or supplemented if the
Company shall have furnished such Indemnified Holder with such amendment or
supplement thereto on a timely basis), in any case where such delivery is
required by applicable law and the loss, claim, damage, liability or
expense of such Indemnified Holder results from an untrue statement or
omission of a material fact contained in the preliminary prospectus which
was corrected in the Prospectus (or in the preliminary prospectus as then
amended or supplemented if the Company or the Guarantors shall have
furnished such Indemnified Holder with such amendment or supplement
thereto, as the case may be, on a timely basis). The Company or the
Guarantors shall notify such Indemnified
11
Holder promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves the
Company or the Guarantors or such Indemnified Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company and the Guarantors, each of their respective
directors and officers and each Person who controls the Company or the
Guarantors within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company and the Guarantors to each Holder, but only with
reference to such losses, claims, damages or liabilities which are caused
by any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to a
Holder furnished to the Company or the Guarantors in writing by such Holder
expressly for use in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus. This
indemnity agreement will be in addition to any liability which any such
Holder may otherwise have.
(c) The Initial Purchaser agrees to indemnify and hold harmless the
Company and the Guarantors, each of their respective directors and officers
and each Person who controls the Company or the Guarantors within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company
and the Guarantors to the Initial Purchaser, but only with reference to
such losses, claims, damages or liabilities which are caused by any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to the Initial
Purchaser furnished to the Company or the Guarantors in writing by the
Initial Purchaser expressly for use in any Registration Statement or
Prospectus, or any amendment or supplement thereto or any related
preliminary prospectus. This indemnity agreement will be in addition to any
liability which the Initial Purchaser may otherwise have.
(d) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "Indemnified
Person") shall promptly notify the Person or Persons against whom such
indemnity may be sought (each an "Indemnifying Person") in writing, and
such Indemnifying Person, upon request of the Indemnified Person, shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 7 that the Indemnifying Person may designate in
such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding. In any such proceeding, the Indemnifying Person shall
be able to participate in such proceeding and, to the extent that it so
elects, jointly with any other similarly situated Indemnifying Person, to
assume the defense thereof, subject to the right of the Indemnified Person
to be separately represented and to direct its own defense if the named
parties to any such proceeding include both the Indemnified Person and the
Indemnifying Person and the Indemnified Person has been advised by counsel
that representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless (i) such Indemnifying
Person and the Indemnified Person shall have mutually agreed to the
contrary or (ii) the named parties in any such proceeding (including any
impleaded parties) include an Indemnifying Person and an Indemnified Person
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that an Indemnifying Person shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm
for the Indemnified Holders shall be designated in writing by the Holders
of the majority in amount of Securities and New Securities offered in the
Prospectus to which the claim
12
relates, any such separate firm for the Company, its directors, respective
officers and such control Persons of the Company shall be designated in
writing by the Company, and any such separate firm for the Guarantors, its
directors, respective officers and such control Persons of the Guarantors
shall be designated in writing by the Guarantors. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, such Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute
to the amount paid or payable by such Indemnified Person as a result of
such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying
Person on the one hand and the Indemnified Person on the other hand
pursuant to the Purchase Agreement or from the offering of the Securities
or New Securities pursuant to any Registration Statement which resulted in
such losses, claims, damages or liabilities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Indemnifying Person on the one hand and the Indemnified Person on the other
in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Guarantors on the one hand and any Indemnified Holder on the other
shall be deemed to be in the same proportion as the total net proceeds from
the Initial Placement received by the Company and the Guarantors bear to
the total net proceeds received by such Indemnified Holder from sales of
Securities or New Securities giving rise to such obligations. The relative
fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors or such Indemnified
Holder and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(f) Each of the Company, the Guarantors and the Initial Purchaser
agrees that it would not be just and equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall any
Holder of any Securities or New Securities be required to contribute any
amount in excess of the amount by which the net proceeds received by such
Holder from the sale of the Security or New Security pursuant to a
Registration Statement exceeds the amount of damages which such Holder
would have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(g) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
13
(h) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Holder or any Person controlling any Holder or by or on
behalf of the Company or the Guarantors, their respective officers or
directors or any other Person controlling any of the Company or the
Guarantors and (iii) acceptance of and payment for any of the Securities or
New Securities.
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as the case may be,
covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders and shall be reasonably satisfactory to the Company and
the Guarantors.
(b) No Person may participate in any underwritten offering pursuant to
any Shelf Registration Statement, unless such Person (i) agrees to sell
such Person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes
and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements.
9. No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with
the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Majority Holders (or, after the consummation of any
Registered Exchange Offer in accordance with Section 2 hereof, of New
Securities); provided, however, that, with respect to any matter that
directly or indirectly affects the rights of the Initial Purchaser
hereunder, the Company shall obtain the written consent of the Initial
Purchaser. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities
or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on
the basis of Securities or New Securities, as the case may be, being sold
rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this Section,
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy
in like manner to Xxxxxxx Xxxxx Xxxxxx Inc;
(b) if to the Initial Purchaser, initially at its address set forth
in the Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at its or their
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
14
The Initial Purchaser or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities or New Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
13. Counterparts. This Agreement may be in signed counterparts, each
of which shall an original and all of which together shall constitute one
and the same agreement.
14. Headings. The headings used herein are for convenience only and
shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. Severability. If any one of more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect
and of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges
of the parties shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other
than subsequent Holders of Securities or New Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of
such Securities or New Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
[Remainder Of This Page Is Intentionally Left Blank]
15
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement among the
Company, the Guarantors and you.
Very truly yours,
NABORS HOLDINGS 1, ULC
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: President
NABORS INDUSTRIES LTD.
By: /s/ Xxxxxx XxXxxxxxx
----------------------------------
Name: Xxxxxx XxXxxxxxx
Title: Vice President and
Corporate Secretary
Signed in St. Xxxxxxx, Barbados
NABORS INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief
Operating Officer
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Managing Director
16
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, or such shorter period as will terminate when
all New Securities held by Exchanging Dealers or Initial Purchaser have been
sold pursuant hereto, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. Furthermore, any
broker-dealer that acquired any of the old notes directly from us:
- may not rely on the applicable interpretation of the staff of the SEC's
position contained in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991),), as
interpreted in the Commission's letter to Xxxxxxxx & Xxxxxxxx dated July
2, 1993 and similar no-action letters; and
- must also be named as a selling noteholder in connection with the
registration and prospectus delivery requirements of the Securities Act
relating to any resale transaction.
See "Plan of Distribution."
17
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
offer, resale or other transfer of such New Securities, including information
with respect to any selling holder required by the Securities Act in connection
with the resale of the New Securities. See "Plan of Distribution."
18
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. We have agreed that,
starting on the Expiration Date and ending on the close of business 180-days
after the Expiration Date or such shorter period as will terminate when all New
Securities held by Exchanging Dealers or Initial Purchaser have been sold
pursuant hereto, we will make this Prospectus, as amended or supplemented,
available to any Broker-Dealer for use in connection with any such resale. In
addition, until , 200 , all dealers effecting transactions in the New
Securities may be required to deliver a prospectus.
We will not receive any proceeds from any sale of New Securities by
brokers-dealers. New Securities received by Broker-Dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
Broker-Dealer and/or the purchasers of any such New Securities. Any
Broker-Dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
Furthermore, any broker-dealer that acquired any of the old notes directly
from us:
- may not rely on the applicable interpretation of the staff of the SEC's
position contained in Exxon Capital Holdings Corporation (pub. avail. May
13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991),), as
interpreted in the Commission's letter to Xxxxxxxx & Xxxxxxxx dated July
2, 1993 and similar no-action letters; and
- must also be named as a selling noteholder in connection with the
registration and prospectus delivery requirements of the Securities Act
relating to any resale transaction.
For a period of 180-days after the Expiration Date or such shorter period
as will terminate when all New Securities held by Exchanging Dealers or Initial
Purchaser have been sold pursuant hereto, we will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to
any Broker-Dealer that requests such documents in the Letter of Transmittal. We
have agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the holder of the Securities) other than commissions
or concessions of any brokers or dealers and will indemnify the holders of the
Securities (including any Broker-Dealers) against certain liabilities, including
liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
19
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND
10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
--------------------------------------------------------------
Address:
--------------------------------------------------------------
--------------------------------------------------------------
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that
it acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
20
