EXHIBIT 4.3
PRIDE INTERNATIONAL, INC.
and
JPMORGAN CHASE BANK
Trustee.
-------------------------
SIXTH SUPPLEMENTAL INDENTURE
Dated as of April 28, 2003
-------------------------
Supplementing the Indenture
dated as of
May 1, 1997
3 1/4% CONVERTIBLE SENIOR NOTES DUE 2033
TABLE OF CONTENTS
ARTICLE 1 SUPPLEMENT OF THE ORIGINAL INDENTURE................................................... 2
Section 1.01. Supplement to Article One of the Original Indenture...................... 2
Section 1.02. Supplement to Article Two of the Original Indenture...................... 18
Section 1.03. Supplement to Article Three of the Original Indenture.................... 18
Section 1.04. Supplement to Article Four of the Original Indenture..................... 24
Section 1.05. Supplement to Article Five of the Original Indenture..................... 25
Section 1.06. Supplement to Article Eight of the Original Indenture.................... 27
Section 1.07. Supplement to Article Nine of the Original Indenture..................... 29
Section 1.08. Supplement to Article Ten of the Original Indenture...................... 30
Section 1.09. Supplement to Article Eleven of the Original Indenture................... 36
Section 1.10. New Article Fourteen..................................................... 51
Section 1.11. New Article Fifteen...................................................... 57
Section 1.12. Effect of Article One.................................................... 74
ARTICLE 2 THE NOTES.............................................................................. 75
Section 2.01. Form and Terms........................................................... 75
Section 2.02. Designation and Amount................................................... 75
Section 2.03. Registered Securities.................................................... 75
ARTICLE 3 REPRESENTATIONS OF THE COMPANY......................................................... 75
Section 3.01. Authority of the Company................................................. 75
Section 3.02. Truth of Recitals and Statements......................................... 75
ARTICLE 4 CONCERNING THE TRUSTEE................................................................. 76
Section 4.01. Acceptance of Trusts..................................................... 76
Section 4.02. No Responsibility of Trustee for Recitals, Etc........................... 76
ARTICLE 5 MISCELLANEOUS PROVISIONS............................................................... 76
Section 5.01. Relation to the Original Indenture....................................... 76
Section 5.02. Meaning of Terms......................................................... 76
Section 5.03. Counterparts of Supplemental Indenture................................... 77
Section 5.04. Governing Law............................................................ 77
THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of April 28, 2003 between
Pride International, Inc., a Delaware corporation (successor by merger to Pride
International, Inc., a Louisiana corporation formerly known as Pride Petroleum
Services, Inc.) (the "Company"), and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), a New York banking corporation, as Trustee (the
"Trustee") under the Indenture (as defined below),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance from time to time
of its unsecured debentures, notes or other evidences of indebtedness (the
"Securities"), which are to be issued in one or more series, and the Company has
heretofore made, executed and delivered to the Trustee its Indenture dated as of
May 1, 1997 (the "Original Indenture") pursuant to which the Securities are
issuable;
WHEREAS, the Original Indenture has been previously supplemented in
connection with (a) the issuance of the Company's first series of Securities
designated as its 9 3/8% Senior Notes due 2007, its second series of Securities
designated as its 10% Senior Notes due 2009, its third series of Securities
designated as its Zero Coupon Convertible Senior Debentures Due 2021, and its
fourth series of Securities designated as its 2 1/2% Convertible Senior Notes
Due 2007, pursuant to the First Supplemental Indenture dated as of May 1, 1997,
the Second Supplemental Indenture dated as of May 26, 1999, the Third
Supplemental Indenture dated as of January 16, 2001 and the Fifth Supplemental
Indenture dated as of March 4, 2002, respectively, each between the Company and
the Trustee and (b) the merger of Pride International, Inc., a Louisiana
corporation ("Pride Louisiana"), into the Company and the succession, pursuant
to the Fourth Supplemental Indenture dated as of September 10, 2001, between the
Company and the Trustee, by the Company to the position of Pride Louisiana under
the Indenture;
WHEREAS, Sections 201, 301 and 901 of the Original Indenture provide
that the form or terms of any series of Securities may be established in an
Indenture supplemental thereto, and the Company desires to establish in this
Sixth Supplemental Indenture both the form and terms of a series of Securities
designated as its 3 1/4% Convertible Senior Notes Due 2033 (the "Notes");
WHEREAS, Section 901 of the Original Indenture further provides that
under certain conditions the Company and Trustee, may, without the consent of
any Holders, from time to time and at any time, enter into an indenture or
indentures supplemental thereto, for the purposes, inter alia, of adding to the
covenants of the Company for the benefit of the Holders of all or any series of
Securities, and adding any additional Events of Default, and the Company desires
by means of this Sixth Supplemental Indenture to add to its covenants for the
sole benefit of the Holders of the Notes and to add certain additional Events of
Default, also solely for the benefit of such Holders; and
1
WHEREAS, all things necessary to authorize the execution and delivery
of this Sixth Supplemental Indenture, to establish the Notes as provided for in
this Sixth Supplemental Indenture, and to make the Original Indenture, as
supplemented by this Sixth Supplemental Indenture and as otherwise supplemented
with applicability with respect to the Notes (the Original Indenture, as so
supplemented, being sometimes referred to herein as the "Indenture"), a valid
agreement of the Company, in accordance with its terms, have been done;
NOW, THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH that for
and in consideration of the premises and the purchase of the Notes by the
Holders, the Company and the Trustee mutually covenant and agree, solely for the
equal and proportionate benefit of the respective Holders from time to time of
Notes, as follows:
ARTICLE 1
SUPPLEMENT OF THE ORIGINAL INDENTURE
Section 1.01. Supplement to Article One of the Original Indenture.
Section 101 of the Original Indenture is supplemented or superseded with respect
to the Notes, in the case of definitional paragraphs that may be inconsistent,
by inserting therein, in alphabetical order, the following definitional
paragraphs:
"Adjusted Net Assets" of a Subsidiary Guarantor at any date
shall mean the amount by which the Fair Value of the properties and
assets of such Subsidiary Guarantor exceeds the total amount of
liabilities, including, without limitation, contingent liabilities
(after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under its
Subsidiary Guarantee, of such Subsidiary Guarantor at such date.
"Affiliate" of any specified Person means another Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of
this definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control with"),
as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise; provided, however, that
beneficial ownership of 10% or more of the Voting Stock of a Person
shall be deemed to be control.
"Applicable Stock Price" means, in respect of a Conversion
Date, the average of the Sale Prices of a share of Common Stock over
the five Trading Day period starting the third Trading Day following
such Conversion Date.
2
"Average Life" means, as of any date, with respect to any debt
security or preferred stock, the quotient obtained by dividing (i) the
sum of the products of (x) the number of years from such date to the
date of each scheduled principal payment (including any sinking fund or
mandatory redemption payment requirements) of such debt security or
preferred stock multiplied in each case by (y) the amount of such
principal payment by (ii) the sum of all such principal payments.
"Average Sale Price" has the meaning specified in Section
1501.
"Capital Lease Obligation" means, at any time as to any Person
with respect to any Property leased by such Person as lessee, the
amount of the liability with respect to such lease that would be
required at such time to be capitalized and accounted for as a capital
lease on the balance sheet of such Person prepared in accordance with
GAAP. For purposes of Section 1009, a Capital Lease Obligation shall be
deemed secured by a Lien on the Property being leased.
"Capital Stock" in any Person means any and all shares,
interests, partnership interests, participations or other equivalents
in the equity interest (however designated) in such Person and any
rights (other than debt securities convertible into an equity
interest), warrants or options to acquire an equity interest in such
Person.
The term "certificated," when referring to the form of Notes,
shall mean Notes in the form of Registered Securities under the
Indenture other than Notes in global form, including as Book-Entry
Securities or otherwise.
"Change in Control" means (i) a determination by the Company
that any Person or group (as defined in Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
other than a Parent Holding Company has become the direct or indirect
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
more than 50% of the Voting Stock of the Company; (ii) the Company is
merged with or into or consolidated with another Person and,
immediately after giving effect to the merger or consolidation, less
than 50% of the outstanding voting securities entitled to vote
generally in the election of directors or persons who serve similar
functions of the surviving or resulting Person are then beneficially
owned (within the meaning of Rule 13d-3 of the Exchange Act) in the
aggregate by (x) the stockholders of the Company immediately prior to
such merger or consolidation, or (y) if the record date has been set to
determine the stockholders of the Company entitled to vote on such
merger or consolidation, the stockholders of the Company as of such
record date, or (z) a Parent Holding Company; (iii) the Company, either
individually or in conjunction with one or more Subsidiaries, sells,
conveys, transfers or leases, or the Subsidiaries sell, convey,
transfer or lease, all or
3
substantially all of the assets of the Company and the Subsidiaries,
taken as a whole (either in one transaction or a series of related
transactions), including Capital Stock of the Subsidiaries, to any
Person (other than a Parent Holding Company or a Wholly Owned
Subsidiary of the Company); (iv) the liquidation or dissolution of the
Company; or (v) the first day on which a majority of the individuals
who constitute the Board of Directors are not Continuing Directors.
"Change in Control Purchase Date" has the meaning specified in
Section 1110(a).
"Change in Control Purchase Price" has the meaning specified
in Section 1110(a).
"Common Stock" means Common Stock, par value $.01 per share,
of the Company as it exists on the Issue Date or any other Capital
Stock of the Company into which such Common Stock shall be reclassified
or changed.
"Company Notice" has the meaning specified in Section 1117(d).
"Company Notice Date" has the meaning specified in Section
1117(d).
"Consolidated Current Liabilities" of any Person means, as of
any date, the total liabilities (including tax and other proper
accruals) of such Person and its subsidiaries (other than Non-Recourse
Subsidiaries) on a consolidated basis at such date which may properly
be classified as current liabilities in accordance with GAAP, after
eliminating (1) all intercompany items between such Person and its
subsidiaries (other than Non-Recourse Subsidiaries) or between
subsidiaries (other than between a subsidiary that is not a
Non-Recourse Subsidiary and Non-Recourse Subsidiaries) and (2) all
current maturities of long-term Indebtedness.
"Consolidated Net Tangible Assets" of any Person means, as of
any date, Consolidated Tangible Assets of such Person at such date,
after deducting therefrom (without duplication of deductions) all
Consolidated Current Liabilities of such Person at such date.
"Consolidated Tangible Assets" of any Person means, as of any
date, the consolidated assets of such Person and its subsidiaries
(other than Non-Recourse Subsidiaries) at such date, after eliminating
intercompany items between such Person and its subsidiaries (other than
Non-Recourse Subsidiaries) or between subsidiaries (other than between
a subsidiary that is not a Non-Recourse Subsidiary and Non-Recourse
Subsidiaries) and after deducting from such total (i) the net book
value of all assets that would be
4
classified as intangibles under GAAP (including, without limitation,
goodwill, organizational expenses, trademarks, trade names, copyrights,
patents, licenses and any rights in any thereof) and (ii) any prepaid
expenses, deferred charges and unamortized debt discount and expense,
each such item determined in accordance with GAAP.
"Continuing Director" means an individual (i) who is a member
of the full Board of Directors and (ii) either (A) who was a member of
the Board of Directors on the Issue Date or (B) whose nomination for
election or election to the Board of Directors was approved by vote of
at least two-thirds of the directors then still in office who were
either directors on the Issue Date or whose election or nomination for
election was previously so approved.
"Conversion Agent" means an office or agency where Notes may
be presented for conversion pursuant to the terms and conditions of the
Sixth Supplemental Indenture.
"Conversion Date" has the meaning specified in Section 1502.
"Conversion Price" has the meaning specified in Section 1501.
"Conversion Rate" has the meaning specified in Section 1501.
"Currency Hedge Obligations" means, at any time as to any
Person, the obligations of such Person at such time which were incurred
in the ordinary course of business pursuant to any foreign currency
exchange agreement, option or future contract or other similar
agreement or arrangement designed to protect against or manage such
Person's or any of its subsidiaries' exposure to fluctuations in
foreign currency exchange rates.
"Exchange Act" has the meaning specified within the definition
of "Change in Control" and also includes any successor statute.
"Ex-Dividend Time" has the meaning specified in Section 1501.
"Fair Market Value" means the fair market value as determined
in good faith by the Board of Directors.
"Fair Value" means the price that could be negotiated in an
arm's-length free market transaction, for cash, between a willing
seller and a willing buyer, neither of whom is under undue pressure or
compulsion to complete the transaction.
"GAAP" means, at any date, United States generally accepted
accounting principles, consistently applied, as set forth in the
opinions of the Accounting Principles Board of the American Institute
of Certified Public
5
Accountants ("AICPA") and statements of the Financial Accounting
Standards Board, or in such other statements by such other entity as
may be designated by the AICPA, that are applicable to the
circumstances as of the date of determination; provided, however, that
all calculations made for purposes of determining compliance with the
provisions set forth in Sections 1008, 1009 and 1010 shall utilize GAAP
in effect at the Issue Date.
"Global Note" has the meaning specified in Section 305(b).
"Indebtedness" as applied to any Person means, at any time,
without duplication, (i) any obligation of such Person, contingent or
otherwise, for borrowed money; (ii) any obligation of such Person
evidenced by bonds, debentures, notes or other similar instruments;
(iii) any obligation of such Person for all or any part of the purchase
price of Property or for the cost of Property constructed or of
improvements thereto (including any obligation under or in connection
with any letter of credit related thereto), other than accounts payable
included in current liabilities incurred in respect of Property and
services purchased in the ordinary course of business; (iv) any
obligation of such Person upon which interest charges are customarily
paid (other than accounts payable incurred in the ordinary course of
business); (v) any obligation of such Person under conditional sale or
other title retention agreements relating to purchased Property (other
than accounts payable incurred in the ordinary course of business);
(vi) any obligation of such Person issued or assumed as the deferred
purchase price of Property (other than accounts payable incurred in the
ordinary course of business); (vii) any Capital Lease Obligation;
(viii) any obligation of any other Person secured by (or for which the
obligee thereof has an existing right, contingent or otherwise, to be
secured by) any Lien on Property owned or acquired, whether or not any
obligation secured thereby has been assumed, by such Person, the amount
of such obligation being deemed to be the lesser of the value of such
Property or the amount of the obligation so secured; (ix) any
obligation of such Person in respect of any letter of credit supporting
any obligation of any other Person; (x) the maximum fixed repurchase
price of any Redeemable Stock of such Person (or if such Person is a
subsidiary, any preferred stock of such Person); (xi) any Interest Swap
Obligation or Currency Hedge Obligation of such Person; and (xii) any
obligation that is in economic effect a guarantee, regardless of its
characterization (other than an endorsement in the ordinary course of
business or any performance guarantee), with respect to any
Indebtedness of another Person, to the extent guaranteed. For purposes
of the preceding sentence, the maximum fixed repurchase price of any
Redeemable Stock or subsidiary preferred stock that does not have a
fixed repurchase price shall be calculated in accordance with the terms
of such Redeemable Stock or subsidiary preferred stock as if such
Redeemable Stock or subsidiary preferred stock were repurchased on any
date on which Indebtedness shall be required to be determined pursuant
to this Indenture; provided, however, that if such Redeemable Stock or
6
subsidiary preferred stock is not then permitted to be repurchased, the
repurchase price shall be the book value of such Redeemable Stock or
subsidiary preferred stock. The amount of Indebtedness of any Person at
any date shall be (x) the outstanding book value at such date of all
unconditional obligations as described above and (y) the maximum
liability of any such contingent obligation at such date.
"Indenture" has the meaning specified in the recitals to the
Sixth Supplemental Indenture.
"Initial Purchaser" means Xxxxxx Xxxxxxx & Co. Incorporated,
as initial purchaser under the Purchase Agreement.
"Interest Swap Obligation" means, with respect to any Person,
the obligation of such Person pursuant to any interest rate swap
agreement, interest rate cap, collar or floor agreement or other
similar agreement or arrangement designed to protect against or manage
such Person's or any of its subsidiaries' exposure to fluctuations in
interest rates.
"Investment" means, with respect to any Person, any investment
in another Person, whether by means of a share purchase, capital
contribution, loan, advance (other than advances to employees for
moving and travel expenses, drawing accounts and similar expenditures
or prepayments or deposits in the ordinary course of business) or
similar credit extension constituting Indebtedness of such other Person
or any guarantee of Indebtedness of any other Person; provided,
however, that the term "Investment" shall not include any transaction
involving the purchase or other acquisition (including by way of
merger) of Property (including Capital Stock) by the Company or any
Subsidiary in exchange for Capital Stock (other than Redeemable Stock)
of the Company. The amount of any Person's Investment shall be the
original cost of such Investment to such Person, plus the cost of all
additions thereto paid by such Person, and minus the amount of any
portion of such Investment repaid to such Person in cash as a repayment
of principal or a return of capital, as the case may be, but without
any other adjustments for increases or decreases in value, or writeups,
writedowns or writeoffs with respect to such Investment. In determining
the amount of any investment involving a transfer of any Property other
than cash, such Property shall be valued at its Fair Value at the time
of such transfer as determined in good faith by the board of directors
(or comparable body) of the Person making such transfer.
"Investment Grade Status" exists as of any time if at such
time (i) the rating assigned to the Notes by Xxxxx'x is Baa3 (or the
equivalent) or higher and (ii) the rating assigned to the Notes by S&P
is BBB- (or the equivalent) or higher.
7
"Issue Date" means the date on which the Notes are first
authenticated and delivered under this Indenture.
"Legal Holiday" means a day that is not a Business Day in the
Place of Payment for the Note.
"Lien" means any mortgage, pledge, hypothecation, charge,
assignment, deposit arrangement, encumbrance, security interest, lien
(statutory or other), or preference, priority or other security or
similar agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any agreement to give or
xxxxx x Xxxx or any lease, conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Limited Recourse Indebtedness" means (i) Indebtedness with
respect to the two drilling/workover barge rigs owned by the Company's
Venezuelan Subsidiary as in effect on the Issue Date (the "Venezuelan
Barge Financing"), (ii) Indebtedness with respect to two drillships
owned by Andre Maritime Ltd. and Xxxxxx Maritime Ltd. as in effect on
the Issue Date (the "Angola/Africa Drillship Financing") and (iii)
Indebtedness incurred to finance the purchase, acquisition, renovation
or construction of capital assets and related items (including interest
added to principal), or refinancings thereof, (a) for which the
recourse of the holder of such Indebtedness is effectively limited to
such capital assets and related items or (b) in which the recourse and
security are similar to (or more favorable to the Company and its
Subsidiaries than) the Venezuelan Barge Financing or the Angola/Africa
Drillship Financing.
"Liquidated Damages" means Liquidated Damages (as defined in
the Registration Rights Agreement) owing with respect to the Notes
under the Registration Rights Agreement.
"Market Capitalization" means an amount determined by
multiplying the number of shares of Common Stock outstanding on the
applicable date by the Average Sale Price as of such date.
"Market Price" means, as of any Repurchase Date, the average
of the Sale Prices of a share of Common Stock over the five Trading Day
period ending on the third Business Day prior to the applicable
Repurchase Date (if the third Business Day prior to the applicable
Repurchase Date is a Trading Day or, if it is not a Trading Day, then
the five Trading Day period ending on the last Trading Day prior to
such third Business Day), appropriately adjusted to take into account
the occurrence, during the period commencing on the first Trading Day
of such five Trading Day period and ending on such Repurchase Date, of
any event described in Article Fourteen hereof that would result in an
adjustment of the Conversion Rate.
8
"Maturity" means the date on which the principal of a Note
becomes due and payable as provided therein or in this Indenture,
whether at the Stated Maturity or by declaration of acceleration or
otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc., and includes
any successor to its credit ratings business.
"98% Trading Exception" has the meaning specified in Section
1501.
"Non-Recourse Indebtedness" means Indebtedness or that portion
of Indebtedness of a Non-Recourse Subsidiary as to which (a) neither
the Company nor any Subsidiary provides credit support constituting
Indebtedness of the Company or any Subsidiary or is otherwise directly
or indirectly liable (other than such Indebtedness permitted to be
incurred under the definition of Non-Recourse Subsidiary) and (b) no
default with respect to such Indebtedness (including any rights which
the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would permit (upon notice or lapse of time or
both) any holder of any other Indebtedness of the Company or its
Subsidiaries to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated
maturity.
"Non-Recourse Subsidiary" means (i) any subsidiary of the
Company that at the time of determination will be designated a
Non-Recourse Subsidiary by the Board of Directors as provided below and
(ii) any subsidiary of a Non-Recourse Subsidiary. The Board of
Directors may designate any subsidiary of the Company as a Non-Recourse
Subsidiary so long as (a) neither the Company nor any Subsidiary is
directly or indirectly liable pursuant to the terms of any Indebtedness
of such subsidiary or has made an Investment in such subsidiary,
subject to the proviso described below; (b) no default with respect to
any Indebtedness of such Subsidiary would permit (upon notice or lapse
of time or otherwise) any holder of any other Indebtedness of the
Company or any Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (c) such designation does not result
in the creation or imposition of any Lien on any Property of the
Company or any Subsidiary (other than any Permitted Lien or any Lien
the creation or imposition of which shall have been in compliance with
Section 1009 hereof); provided, however, that with respect to clause
(a), the Company or a Subsidiary may be liable for Indebtedness of, or
may have an Investment in, a Non-Recourse Subsidiary if (x) at the time
of incurrence, such liability or Investment,
9
together with all other liabilities and Investments within clause (a)
outstanding at such time, does not exceed 5% of the Company's
Consolidated Net Tangible Assets, or (y) at the time of designation of
such subsidiary as a Non-Recourse Subsidiary, such liability or
Investment, together with all other liabilities and Investments within
clause (a) outstanding at such time, does not exceed 5% of the
Company's Consolidated Net Tangible Assets (calculated as if such
subsidiary were a Non-Recourse Subsidiary). Any such designation by the
Board of Directors shall be evidenced to the Trustee by filing a Board
Resolution with the Trustee giving effect to such designation. The
Board of Directors may designate any Non-Recourse Subsidiary as a
Subsidiary if, immediately after giving effect to such designation, (i)
no Default or Event of Default shall have occurred and be continuing,
and (ii) if any Property of the Company or any of its Subsidiaries
would upon such designation become subject to any Lien (other than a
Permitted Lien), the creation or imposition of such Lien shall have
been in compliance with Section 1009 hereof.
"Notes" has the meaning specified in the recitals to the Sixth
Supplemental Indenture to this Indenture.
"Original Indenture" means the Indenture, dated as of May 1,
1997, between the Company and the Trustee, as originally executed.
"Parent Holding Company" means (a) from and after the time the
Common Stock is not listed on a United States or foreign national or
regional securities exchange or traded through the National Association
of Securities Dealers Automated Quotation System or similar system or
another Person succeeds to and is substituted for the Company under
this Indenture, a Person which, immediately after such time, had
substantially the same stockholders, directly or indirectly, as the
Company immediately prior to such time with holdings in substantially
the same proportion as such stockholders' holdings in the Company
immediately prior to such time, (b) from and after the sale,
conveyance, assignment, transfer, lease or other disposition of all or
substantially all of the Company's and the Subsidiaries' assets, the
Company (as determined prior to the transaction) and (c) each Wholly
Owned Subsidiary of another Parent Holding Company.
"Permitted Liens" means (a) Liens in existence on the Issue
Date; (b) Liens created for the benefit of the Notes; (c) Liens on
Property of a Person existing at the time such Person is merged or
consolidated with or into, or otherwise acquired by, the Company or a
Subsidiary (and not incurred as a result of, or in anticipation of,
such transaction), provided that such Liens relate solely to such
Property and the proceeds thereof and accessories and upgrades thereto;
(d) Liens on Property existing at the time of the acquisition thereof
(and not incurred as a result of, or in anticipation of, such
transaction), provided that such Liens relate solely to such Property
and the proceeds thereof and accessories and upgrades thereto; (e)
Liens incurred or pledges and deposits made in connection with worker's
compensation, unemployment insurance and other social security
benefits, statutory obligations, bid, surety or appeal bonds,
performance bonds or
10
other obligations of a like nature incurred in the ordinary course of
business; (f) Liens imposed by law or arising by operation of law,
including, without limitation, landlords', mechanics', carriers',
warehousemen's, materialmen's, suppliers' and vendors' Liens and Liens
for master's and crew's wages and other similar maritime Liens, and
incurred in the ordinary course of business; (g) zoning restrictions,
easements, licenses, covenants, reservations, restrictions on the use
of property and defects, irregularities and deficiencies in title to
property that do not, individually or in the aggregate, materially
affect the ability of the Company and its Subsidiaries, taken as a
whole, to conduct the business presently conducted; (h) Liens for taxes
or assessments or other governmental charges or levies not yet due and
payable, or the validity of which is being contested by the Company or
a Subsidiary in good faith appropriate proceedings upon stay of
execution or the enforcement thereof and for which adequate reserves in
accordance with GAAP or other appropriate provision has been made; (i)
Liens to secure Indebtedness incurred for the purpose of financing all
or a part of the purchase price or construction cost of Property
(including the cost of upgrading or refurbishing rigs or drillships)
acquired or constructed after the Issue Date, provided that (1) the
principal amount of Indebtedness secured by such Liens shall not exceed
100% of the lesser of cost or Fair Market Value of the Property so
acquired, upgraded or constructed plus transaction costs related
thereto, (2) such Liens shall not encumber any other Property of the
Company or any Subsidiary (other than the proceeds thereof and
improvements, accessions and upgrades thereto) and (3) such Liens shall
attach to such Property within 180 days of the date of the later of
commencement of commercial operations of such Property and completion
of the construction, acquisition, upgrade or improvement of such
Property; (j) Liens securing Capital Lease Obligations and other
obligations, provided that such Liens secure Capital Lease Obligations
and other obligations which, when combined with (1) the outstanding
secured Indebtedness of the Company and its Subsidiaries (other than
Indebtedness secured by Liens described under clauses (b) and (i)
hereof) and (2) the aggregate amount of all other Capital Lease
Obligations and other obligations of the Company and its Subsidiaries,
do not exceed 10% of the Company's Consolidated Net Tangible Assets;
(k) Liens to secure any extension, renewal, refinancing or refunding
(or successive extensions, renewals, refinancings or refundings), in
whole or in part, of any Indebtedness secured by Liens referred to in
the foregoing clauses (a), (b), (c), (d) and (i), provided that such
Liens do not extend to any other Property of the Company or any
Subsidiary (other than the proceeds thereof and accessions and upgrades
thereto) and the principal amount of the Indebtedness secured by such
Liens is not increased; (1) any charter or lease of drilling rigs in
the ordinary of course of business; (m) leases or subleases of property
to other Persons in the ordinary course of business; (n) Liens securing
Non-Recourse Indebtedness; (o) Liens securing Indebtedness (and any
guarantee or pledge) under one or more credit
11
facilities, in an aggregate principal amount at any one time
outstanding not to exceed the greater of (A) $100 million and (B) an
amount equal to 10% of the Company's Consolidated Net Tangible Assets
determined as of the date of the incurrence of such Indebtedness (plus
interest and fees under such facilities); (p) judgment liens not giving
rise to an Event of Default so long as any appropriate legal
proceedings which may have been only initiated for the review of such
judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired; (q)
rights of set-off of banks and other Persons; (r) other deposits made
in the ordinary course of business to secure liability to insurance
carriers under insurance or self-insurance arrangements; (s) Liens
securing reimbursement obligations under letters of credit, entered
into in the ordinary course of business if in each case such Liens
cover only the title documents and related goods (and any proceeds
thereof) covered by the related letter of credit; (t) Liens or
equitable encumbrances deemed to exist by reason of fraudulent
conveyance or transfer laws or negative pledge or similar agreements to
refrain from permitting Liens; and (u) Liens securing up to $500
million of other Indebtedness.
"Permitted Subsidiary Indebtedness" means any of the following
Indebtedness of a Subsidiary, other than guarantees of the Company's
Indebtedness (provided that a pledge of assets to secure Indebtedness
for which the pledgor is not otherwise liable shall not be considered a
guarantee): (i) Indebtedness or preferred stock issued to and held by
the Company or a Wholly Owned Subsidiary, so long as any transfer of
such Indebtedness or preferred stock to a Person other then the Company
or a Wholly Owned Subsidiary of the Company shall be deemed to
constitute the issuance of such Indebtedness or preferred stock by the
issuer; (ii) Indebtedness or preferred stock of a Subsidiary that
existed at the time such Person became a Subsidiary (other than
Indebtedness or preferred stock issued in connection with or in
anticipation of that Person becoming a Subsidiary); (iii) Indebtedness
or preferred stock outstanding on the Issue Date; (iv) Indebtedness
(and any guarantee or pledge) under one or more credit facilities, in
an aggregate principal amount at any one time outstanding not to exceed
$250 million plus the greater of (x) $100 million and (y) an amount
equal to 10% of the Company's Consolidated Net Tangible Assets
determined as of the date of the incurrence of such Indebtedness (plus
interest and fees under such facilities); (v) Indebtedness under
Interest Swap Obligations if (a) such Interest Swap Obligations are
related to payment obligations on Indebtedness, and (b) the notional
principal amount of such Interest Swap Obligations does not exceed the
principal amount of the Indebtedness to which such Interest Swap
Obligations relate; (vi) Indebtedness under Currency Hedge Obligations
if (x) such Currency Hedge Obligations are related to payment
obligations on Indebtedness or to the foreign currency cash flows
reasonably expected to be generated by the Company and the
Subsidiaries, and (y) the notional
12
principal amount of such Currency Hedge Obligations does not exceed the
principal amount of the Indebtedness and the amount of the foreign
currency cash flows to which such Currency Hedge Obligations relate;
(vii) Indebtedness for bid performance bonds, surety bonds, appeal
bonds and letters of credit or similar arrangements issued for the
account of the Company or any Subsidiary, in each case in the ordinary
course of business; (viii) Permitted Subsidiary Refinancing
Indebtedness; (ix) preferred stock issued in exchange for, or the
proceeds of which are used to refinance, repurchase or redeem,
Indebtedness or preferred stock described in clauses (ii) and (iii)
above (the "Retired Indebtedness or Stock"), if the preferred stock so
issued has (a) a liquidation value not in excess of the principal
amount or liquidation value of the Retired Indebtedness or Stock plus
related expenses for redemption and issuance, and (b) a redemption date
later than the stated maturity or redemption date (if any) of the
Retired Indebtedness or Stock; (x) Indebtedness of a Subsidiary that
represents the assumption by that Subsidiary of Indebtedness of another
Subsidiary (other than Non-Recourse Indebtedness) in connection with a
merger of those Subsidiaries, if no Subsidiary existing on the Issue
Date or any successor assumes or otherwise becomes responsible for any
Indebtedness of an entity that is not a Subsidiary on the Issue Date
except to the extent that a Subsidiary would be permitted to incur such
Indebtedness under this definition; (xi) Indebtedness to finance the
construction and operation of the drillships Pride Africa and Pride
Angola pursuant to the credit agreements among the Company, certain of
its Subsidiaries, and lenders thereunder, as in effect on the Issue
Date, and any refinancings or replacements thereof; and (xii)
Indebtedness or preferred stock of any Subsidiary, which when taken
together with all other Indebtedness and preferred stock of the
Subsidiaries (except Indebtedness or preferred stock incurred pursuant
to clauses (i), (ii), (iv), (v), (vi), (vii) and (xi) of this
definition and clauses (viii) and (ix) of this definition to the extent
relating to Indebtedness incurred pursuant to clauses (i), (ii), (iv),
(v), (vi) and (vii) of this definition), does not exceed at any one
time outstanding the greater of (x) $100 million and (y) 15% of the
Company's Consolidated Net Tangible Assets determined as of the date of
incurrence of such Indebtedness.
"Permitted Subsidiary Refinancing Indebtedness" means
Indebtedness of any Subsidiary incurred in exchange for, or the net
proceeds of which are used to renew, extend, refinance, refund or
repurchase, outstanding Indebtedness of such Subsidiary or any other
Subsidiary (provided that, if any Subsidiary that is an obligor on the
Indebtedness being exchanged, renewed, extended, refinanced, refunded
or repurchased (the "Existing Indebtedness") is a Subsidiary Guarantor,
each Subsidiary that is an obligor on such Permitted Refinancing
Subsidiary Indebtedness, if not an obligor on the Existing
Indebtedness, must become a Subsidiary Guarantor), which outstanding
Indebtedness was incurred in accordance with or is otherwise permitted
by the terms of this Indenture, provided that (a) if the
13
Indebtedness being renewed, extended, refinanced, refunded or
repurchased is equal or subordinated in right of payment to the
Subsidiary Guarantees, then such new Indebtedness is equal or
subordinated, as the case may be, in right of payment (without regard
to its being secured) to the Subsidiary Guarantees at least to the same
extent as the Indebtedness being renewed, extended, refinanced,
refunded or repurchased; (b) such new Indebtedness is scheduled to
mature later than the Indebtedness being renewed, extended, refinanced,
refunded or repurchased; (c) such new Indebtedness has an Average Life
at the time such Indebtedness is incurred that is greater than the
Average Life of the Indebtedness being renewed, extended, refinanced,
refunded or repurchased; and (d) such new Indebtedness is in an
aggregate principal amount (or, if such Indebtedness is issued at a
price less than the principal amount thereof, the aggregate amount of
gross proceeds therefrom is) not in excess of the aggregate principal
amount then outstanding of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased (or if the Indebtedness being
renewed, extended, refinanced, refunded or repurchased was issued at a
price less than the principal amount thereof, then not in excess of the
amount of liability in respect thereof determined in accordance with
GAAP) plus the amount of reasonable fees, expenses and any premium
incurred by the Company or such Subsidiary in connection therewith.
"Principal Amount" means, with respect to any Note, the
principal amount due at the Stated Maturity thereof as set forth on the
face of the Note.
"Principal Value Conversion" has the meaning specified in
Section 1501.
"Property" means, with respect to any Person, any interest of
such Person in any kind of property or asset, whether real, personal or
mixed, or tangible or intangible.
"Purchase Agreement" means the Purchase Agreement dated April
22, 2003 between the Company and the Initial Purchaser.
"Purchase Price" has the meaning specified in Section 1117(a).
"Redeemable Stock" means, with respect to any Person, any
equity security that by its terms or otherwise is required to be
redeemed, or is redeemable at the option of the holder thereof, at any
time prior to one year following the Stated Maturity of the Notes or is
exchangeable into Indebtedness of such Person or any of its
subsidiaries.
14
"Registration Rights Agreement" means the Registration Rights
Agreement dated April 28, 2003 between the Company and the Initial
Purchaser and certain permitted assigns.
"Repurchase Date" has the meaning specified in Section
1117(a).
"Repurchase Notice" has the meaning specified in Section
1117(a)(1).
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"S&P" means Standard & Poor's Ratings Services, and includes
any successor to its credit ratings business.
"Sale and Lease-Back Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which Property
is sold or transferred by such Person or a subsidiary of such Person
and is thereafter leased back from the purchaser or transferee thereof
by such Person or one of its subsidiaries.
"Sale Price of a share of Common Stock" or "Sale Price" means,
on any date, 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) for the Common Stock on such date (or, if such date is not a
Trading Day, on the last Trading Day prior to such date) as reported in
the composite transactions for the principal United States securities
exchange on which the Common Stock is traded or, if the Common Stock is
not listed on a United States national or regional securities exchange,
as reported by the Nasdaq System or by the National Quotation Bureau
Incorporated.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of
Regulation S-X, promulgated pursuant to the Securities Act, as such
Regulation is in effect on the Issue Date.
"Sixth Supplemental Indenture" means the Sixth Supplemental
Indenture, dated as of the Issue Date, between the Company and the
Trustee, supplementing and amending the Original Indenture as set forth
therein.
"Subordinated Indebtedness" means any Indebtedness of the
Company or any Subsidiary Guarantor that is subordinated in right of
payment to the Notes or the Subsidiary Guarantees, as the case may be,
15
pursuant to a written agreement to that effect and does not mature
prior to one year following the Stated Maturity of the Notes.
The term "subsidiary" means, with respect to any Person, (i)
any corporation more than 50% of the outstanding Voting Stock of which
is owned, directly or indirectly, by such Person, or by one or more
other subsidiaries of such Person, or by such Person and one or more
other subsidiaries of such Person, (ii) any general partnership, joint
venture or similar entity more than 50% of the outstanding partnership
or similar interests of which is owned, directly or indirectly, by such
Person, or by one or more other subsidiaries of such Person, or by such
Person and one or more other subsidiaries of such Person and (iii) any
limited partnership of which such Person or any subsidiary of such
Person is a general partner.
"Subsidiary" means a subsidiary of the Company other than a
Non-Recourse Subsidiary.
"Subsidiary Guarantee" means any guarantee of the Notes by any
Subsidiary Guarantor in accordance with the provisions described under
Article Fourteen hereof.
"Subsidiary Guarantor" means (i) each of the Company's
Subsidiaries, if any, executing this Indenture and (ii) any Person that
becomes a successor guarantor of the Notes in compliance with the
provisions described under Article Fourteen hereof.
"Tax Original Issue Discount" means the amount of ordinary
interest income on a Note that must be accrued as original issue
discount for United States Federal income tax purposes pursuant to U.S.
Treasury Regulation Section 1.1275-4.
"Time of Determination" has the meaning specified in Section
1501.
"Trading Day" means each day on which the securities exchange
or quotation system which is used to determine the Sale Price or the
independent nationally recognized securities dealers used to determine
the Trading Price, as applicable, is open for trading or quotation;
provided, however, that, in a context where both the Sale Price and
Trading Price are required, "Trading Day" means each day on which both
the securities exchange or quotation system which is used to determine
the Sale Price and the independent nationally recognized securities
dealers used to determine the Trading Price are open for trading or
quotation.
"Trading Price per $1,000 Principal Amount of Notes" or
"Trading Price" means, on any Trading Day, the average of the secondary
market bid quotations (expressed as Dollars per $1,000 Principal Amount
of Notes)
16
obtained by the Trustee for $10,000,000 principal amount of Notes at
approximately 3:30 p.m., New York City time, on such Trading Day from
three independent nationally recognized securities dealers selected by
the Company; provided that if at least three such bids cannot
reasonably be obtained by the Trustee, but two bids are obtained, then
the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Trustee, one bid shall be used; and
provided further that if the Trustee cannot reasonably obtain at least
one such bid or, in the Company's reasonable judgment, the bid
quotations are not indicative of the secondary market value of the
Notes, then (a) for purposes of evaluating the 98% Trading Exception,
the Trading Price per $1,000 Principal Amount of Notes for such Trading
Day shall be deemed to be less than 98% of the product of (i) the
Conversion Rate in effect as of such Trading Day and (ii) the Sale
Price of a share of Common Stock on such Trading Day and (b) for
purposes of determining whether contingent interest is payable in
respect of any six-month interest period, the Trading Price per $1,000
Principal Amount of Notes for such Trading Day shall be deemed to be
equal to the Trading Price per $1,000 Principal Amount of Notes on the
Trading Day nearest thereto for which the Trading Price was determined
for purposes of this Indenture and to which this proviso did not apply
(provided that, if there are two such Trading Days equally near to the
applicable Trading Day, the earlier of the two shall be used).
"Transfer Restricted Notes" has the meaning specified in
Section 305(d).
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock or other interests (including
partnership interests) in such Person entitling the holders thereof
(whether at all times or at the times that such class of Capital Stock
has voting power by reason of the happening of any contingency) to vote
in the election of members of the board of directors or comparable body
of such Person.
"Wholly Owned Subsidiary" means, with respect to any Person,
any subsidiary of such Person to the extent (i) all of the Voting Stock
or other ownership interests in such subsidiary, other than any
director's qualifying shares mandated by applicable law, is owned
directly or indirectly by such Person or (ii) such subsidiary is
organized in a foreign jurisdiction and is required by the applicable
laws and regulations of such foreign jurisdiction to be partially owned
by the government of such foreign jurisdiction or individual or
corporate citizens of such foreign jurisdiction in order for such
subsidiary to transact business in such foreign jurisdiction, provided,
in the case of clause (ii), that such Person, directly or indirectly,
owns the remaining Capital Stock or ownership interest in such
subsidiary and, by contract or otherwise, controls the management and
business of such subsidiary and derives the economic benefits of
ownership of such
17
subsidiary to substantially the same extent as if such subsidiary were
a wholly owned subsidiary.
Section 1.02. Supplement to Article Two of the Original Indenture. The
Original Indenture is supplemented with respect to the Notes by revising the
second sentence within the second full paragraph of Section 204(c) to read as
follows:
Upon receipt of such notice, or if either (1) the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for any Book-Entry Securities representing the Notes and a
successor Depositary is not appointed by the Company within 90 days of
such notice or (2) an Event of Default has occurred with respect to the
Notes and is continuing and the Security Registrar has received a
request from the Depositary or the Trustee to issue Registered
Securities not in global form, then in any such case the Depositary
shall promptly surrender or cause the surrender of its Book-Entry
Security or Securities to the Trustee. Concurrently therewith (or
within 30 days of any request referred to in the preceding clause (2)
of this paragraph), Registered Securities not issued in global form
will be issued in an aggregate principal amount equal to the principal
amount of the Book-Entry Security or Securities theretofore held by or
on behalf of the Depositary.
Section 1.03. Supplement to Article Three of the Original Indenture.
Section 305 of the Original Indenture is supplemented with respect to the Notes
by adding (i) the reference "(a)" prior to the current text of Section 305 and
(ii) the following provisions thereafter (provided that, in the event of
inconsistency between the following provisions and the provisions of Section 305
of the Original Indenture (now Section 305(a)), the following provisions shall
control):
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required by law,
all Notes will be represented by one or more Notes in global form
registered in the name of the Depositary or the nominee of the
Depositary (collectively, the "Global Note"). Transfers, exchanges and
redemptions of beneficial interests in the Global Note shall be
effected through the Depositary in accordance with this Indenture and
the procedures of the Depositary therefor. The Trustee shall make
appropriate endorsements to reflect increases or decreases in the
principal amounts of the Global Note as set forth on the face of the
Note to reflect any such transfers, exchanges and redemptions. Except
as provided below, beneficial owners of the Global Note shall not be
entitled to have certificates registered in their names, will not
receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered Holders of the Global Note
for any purposes under this Indenture.
18
(c) Any Global Note may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes
not inconsistent with the provisions of this Indenture as may be
required by the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Notes to be tradable on The PORTAL
Market or as may be required for the Notes to be tradable on any other
market developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation thereunder
or with the rules and regulations of any securities exchange or
automated quotation system upon which the Notes may be listed or traded
or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Notes are
subject.
(d) Every Note that bears or is required under this
Section 305(d) to bear the legend set forth in this Section
305(d) (together with any Common Stock issued upon conversion of the
Notes and required to bear the legend set forth in Section 305(e),
collectively, the "Transfer Restricted Notes") shall be subject to
the restrictions on transfer set forth in this Section 305(d)
(including those set forth in the legend set forth below), and the
Holder of each such Transfer Restricted Note, by such Holder's
acceptance thereof, agrees to be bound by all such restrictions on
transfer. As used in Sections 305(d) and 305(e), the term "transfer"
encompasses any sale, pledge, transfer or other disposition
whatsoever of any Transfer Restricted Note. The Company shall not
register any transfer of a Transfer Restricted Note not made in
accordance with the restrictions on transfer set forth in this
Section 305.
Until the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor
provision), any certificate evidencing such Note (and all securities
issued in exchange therefor or substitution thereof, other than Common
Stock, if any, issued upon conversion thereof, which shall bear the
legend set forth in Section 305(e), if applicable) shall bear a legend
in substantially the following form, unless such Note has been sold
pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the
time of such transfer):
THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF PRIDE
INTERNATIONAL, INC. (THE
19
"COMPANY") THAT THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (X) PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD UNDER
RULE 144(k) (OR ANY SUCCESSOR THERETO) UNDER THE SECURITIES ACT WHICH
IS APPLICABLE TO THIS SECURITY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY OR (Y) BY ANY HOLDER THAT WAS AN
"AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT)
OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE
OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE COMPANY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. [INCLUDE
FOLLOWING IF THE SECURITY IS IN CERTIFICATED FORM: PRIOR TO A TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (4) ABOVE),
THE HOLDER OF THIS SECURITY MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION
AND, IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (3) ABOVE, A LEGAL
OPINION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY
IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS.] THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR
THE BENEFIT OF THE COMPANY THAT IT IS A QUALIFIED INSTITUTIONAL BUYER.
Any Note (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired
20
in accordance with their terms or that has been transferred pursuant to
a registration statement that has been declared effective under the
Securities Act may, upon surrender of such Note for exchange to the
Security Registrar in accordance with the provisions of this Section
305, be exchanged for a new Note or Notes, of like tenor and aggregate
principal amount, which shall not bear the restrictive legend required
by this Section 305(d).
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in Section 305(c) and in this Section
305(d)), the Global Note may not be transferred as a whole or in part
except 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.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust
Company to act as Depositary with respect to the Global Note.
Initially, the Global Note shall be issued to the Depositary,
registered in the name of Cede & Co., as the nominee of the Depositary,
and deposited with the Custodian for Cede & Co. Any transfer of any
beneficial interest in the Global Note shall only be permitted if such
transfer is in compliance with the provisions of Section 305(d)
applicable to transfers of the Notes and the rules and procedures of
the Depositary therefor, which shall include restrictions on transfer
comparable to those set forth therein and herein to the extent required
by the Securities Act.
If a Note in certificated form is issued in exchange for any
portion of the Global Note after the close of business at the office or
agency where such exchange occurs on any record date and before the
opening of business at such office or agency on the next succeeding
Interest Payment Date, interest will not be payable on such Interest
Payment Date in respect of such Note, but will be payable on such
Interest Payment Date, subject to the provisions of the Note, only to
the person to whom interest in respect of such portion of the Global
Note is payable in accordance with the provisions of this Indenture and
the Notes.
Notes in certificated form issued in exchange for all or a
part of the Global Note pursuant to Section 204 and this Section 305
shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. Upon execution
and authentication, the Trustee shall deliver such Notes in
21
certificated form to the persons in whose names such Notes in
certificated form are so registered.
At such time as all interests in the Global Note have been
redeemed, converted, canceled, exchanged for Notes in certificated
form, or transferred to a transferee who receives Notes in certificated
form, such Global Note shall, upon receipt thereof, be canceled by the
Trustee in accordance with standing procedures and instructions
existing between the Depositary and the Custodian for Cede & Co. At any
time prior to such cancellation, if any interest in the Global Note is
redeemed, converted, repurchased or canceled, the Principal Amount of
the Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian for Cede
& Co., be appropriately reduced and an endorsement shall be made on
such Global Note, by the Trustee or the Custodian for Cede & Co., at
the direction of the Trustee, to reflect such reduction.
(e) Every stock certificate representing Common Stock
issued upon conversion of a Transfer Restricted Note that bears or is
required under this Section 305(e) to bear the legend set forth in
this Section 305(e) shall be subject to the restrictions on transfer
set forth in this Section 305(e) (including those set forth in the
legend set forth below), and the holder of such Common Stock issued
upon conversion of a Transfer Restricted Note, by such holder's
acceptance thereof, agrees to be bound by all such restrictions on
transfer. The Company shall not register any transfer of Common Stock
issued upon conversion of such a Transfer Restricted Note not made in
accordance with the restrictions on transfer set forth in this
Section 305.
Until the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor
provision), any stock certificate representing Common Stock issued upon
conversion of a Transfer Restricted Note shall bear a legend in
substantially the following form, unless such Common Stock has been
sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective
at the time of such transfer) or such Common Stock has been issued upon
conversion of Notes that have been transferred pursuant to a
registration statement that has been declared effective under the
Securities Act:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
22
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF PRIDE
INTERNATIONAL, INC. (THE "COMPANY") THAT THIS SECURITY MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE EXPIRATION OF
THE HOLDING PERIOD UNDER RULE 144(k) (OR ANY SUCCESSOR THERETO) UNDER
THE SECURITIES ACT WHICH IS APPLICABLE TO THIS SECURITY OR (Y) BY ANY
HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144 UNDER
THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO
THE COMPANY, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON
THE CERTIFICATE OF TRANSFER APPLICABLE TO THIS SECURITY, THE FORM OF
WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRANSFER AGENT) OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES. PRIOR TO A TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE (3) ABOVE), THE HOLDER OF
THIS SECURITY MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE COMPANY AND
THE TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AND, IN THE
CASE OF A TRANSFER PURSUANT TO CLAUSE (2) ABOVE, A LEGAL OPINION AS
THEY MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS
SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS.
Any such Common Stock as to which such restrictions on
transfer shall have expired in accordance with their terms or that has
been transferred pursuant to a registration statement that has been
declared effective under the Securities Act may, upon surrender of the
certificates representing such shares of Common Stock for exchange in
accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like
number of shares of Common Stock, which shall not bear the restrictive
legend required by this Section 305(e).
23
(f) Any Note or Common Stock issued upon the conversion
or exchange of a Note that, prior to the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision), is purchased or owned by
the Company or any Affiliate thereof may not be resold by the Company
or such Affiliate unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the
Securities Act in a transaction which results in such Notes or Common
Stock, as the case may be, no longer being "restricted securities" (as
defined under Rule 144).
(g) Each Holder of a Note agrees to indemnify the Company
and the Trustee against any liability that may result from the
registration of transfer, exchange or assignment of such Holder's Note
in violation of any provision of this Indenture and/or applicable
United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between
or among Depositary Participants or beneficial owners of interests in
the Global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and
to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 1.04. Supplement to Article Four of the Original Indenture. The
Original Indenture is supplemented with respect to the Notes by (a) adding the
words "Article Fifteen and" immediately before the words "Sections 305" in the
last paragraph of Section 401 and (b) inserting the following provision in
Article Four:
SECTION 405. Discharge of Subsidiary Guarantees.
The obligations of each Subsidiary Guarantor with respect to
its Subsidiary Guarantee and under this Indenture shall be discharged
automatically to the same extent as the obligations of the Company with
respect to the Notes are discharged pursuant to this Article Four (in
addition to any release or discharge pursuant to Section 1404), and
such obligations of each Subsidiary Guarantor so discharged shall be
subject to reinstatement pursuant to Section 404 in the event that such
obligations of the Company shall be reinstated (unless released or
discharged pursuant to Section 1404).
24
Section 1.05. Supplement to Article Five of the Original Indenture.
(a) Section 501 of the Original Indenture is supplemented
with respect to the Notes by deleting provisions (3) and (4) thereto
(without renumbering) and adding the following provisions (8)-(14)
thereto:
(8) the Company (i) defaults in the payment (other than
payment in shares of Common Stock or cash in lieu of fractional
interests in shares of Common Stock, which is covered by clause (ii) of
this Section 501(8)) of the Principal Amount, Redemption Price,
Purchase Price or Change in Control Purchase Price with respect to any
Note when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration, when due for purchase by the Company or
otherwise, or (ii) defaults in the delivery of shares of Common Stock
(or cash in lieu of fractional interests in shares of Common Stock) in
accordance with the terms hereof when such Common Stock or cash is
required to be delivered upon conversion or purchase of a Note and such
default in this clause (ii) is not remedied for a period of 10 days;
(9) the Company fails to comply with any of its covenants
or agreements contained in Section 801 or Section 1110 hereof;
(10) default in the performance or breach of any covenant
or agreement of the Company or any Subsidiary Guarantor contained in
the Notes, any Subsidiary Guarantee or this Indenture (other than a
covenant or agreement a default in performance or breach of which is
specifically dealt with) and continuance of such default or breach for
a period of 30 days after written notice thereof has been mailed, by
registered or certified mail, to the Company or such Subsidiary
Guarantor by the Trustee or to the Company or such Subsidiary Guarantor
and the Trustee by the Holders of at least 25% of the aggregate
principal amount of the outstanding Notes;
(11) Indebtedness (other than Non-Recourse Indebtedness or
Limited Recourse Indebtedness) of the Company or any Subsidiary is not
paid when due within the applicable grace period or is accelerated by
the holders thereof and, in either case, the aggregate principal amount
of such due and unpaid or accelerated Indebtedness exceeds $10 million;
(12) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of any
Subsidiary that constitutes a Significant Subsidiary or any group of
25
Subsidiaries that, taken together, would constitute a Significant
Subsidiary, in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging such Subsidiary or
Subsidiaries a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of such Subsidiary or Subsidiaries under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of such Subsidiary or Subsidiaries or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 90
consecutive days;
(13) the commencement by any Subsidiary that constitutes a
Significant Subsidiary or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary, of a voluntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case of
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of such
Subsidiary or Subsidiaries in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against such Subsidiary or Subsidiaries,
or the filing by such Subsidiary or Subsidiaries, of a petition or
answer or consent seeking reorganization or relief under any applicable
federal or state law, or the consent by such Subsidiary or Subsidiaries
to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Subsidiary or Subsidiaries or
of any substantial part of the property of such Subsidiary or
Subsidiaries, or the making by such Subsidiary or Subsidiaries of an
assignment for the benefit of creditors, or the admission by such
Subsidiary or Subsidiaries in writing of the inability of such
Subsidiary or Subsidiaries to pay the debts of such Subsidiary or
Subsidiaries generally as they become due, or the taking of corporate
action by such Subsidiary or Subsidiaries in furtherance of any such
action; or
(14) any Subsidiary Guarantee shall for any reason cease
to be, or be asserted by the Company or any Subsidiary Guarantor, as
applicable, not to be, in full force and effect (except pursuant to the
release of any such Subsidiary Guarantee in accordance with this
Indenture).
26
(b) The first paragraph of Section 502 of the Original
Indenture is superseded with respect to the Notes by the following
provision:
If an Event of Default with respect to any Notes at the time
Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Notes may declare the Principal Amount on the Notes to be
due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), except that, in the case of an
Event of Default specified in clause (10) of Section 501, if the Event
of Default affects more than one series of Securities, the Trustee, or
the Holders of not less than 25% in principal amount of the Outstanding
Securities, of all series of Securities shall be required to make such
declaration. Upon any such declaration, such amount shall become
immediately due and payable. If an Event of Default described in clause
(5), (6), (12) or (13) of Section 501 shall occur, the Principal Amount
on the Notes to and including the date of occurrence of such event 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 1.06. Supplement to Article Eight of the Original Indenture.
Section 801 of the Original Indenture is superseded with respect to the Notes by
the following provisions:
The Company will not, in any transaction or series of
transactions, consolidate with or merge into any other Person (other
than a merger of a Subsidiary or any other Person into the Company in
which the Company is the continuing corporation), or sell, convey,
assign, transfer, lease or otherwise dispose of all or substantially
all of the assets of the Company and its Subsidiaries, taken as a
whole, to any Person, unless:
(i) either (a) the Company shall be the continuing Person
or (b) the Person (if other than the Company) formed by such
consolidation or which acquires, by sale, assignment, conveyance,
transfer, lease or other disposition, all or substantially all of the
assets of the Company and its Subsidiaries, taken as a whole (such
Person, the "Surviving Entity"), shall be a Person organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia, the Bahamas, Barbados,
Bermuda, the British Virgin Islands, the Cayman Islands, any of the
Channel Islands, France, the Netherlands or the Netherlands Antilles
and shall expressly assume, by a supplement to this Indenture, the due
and punctual payment of all amounts owing on all the Notes and
27
the performance of the Company's covenants and obligations under this
Indenture;
(ii) immediately after giving effect to such transaction
or series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), no Event of Default or Default shall have occurred and
be continuing or would result therefrom;
(iii) in the event that the Company or the Surviving Entity
is organized in a jurisdiction other than the United States which is
different from the jurisdiction in which the obligor on the Notes was
organized immediately before giving effect to the transaction or series
of transactions, (a) the Company or such Surviving Entity, as
applicable, delivers to the Trustee an Opinion of Counsel stating that
(1) the obligations of the Company or the Surviving Entity, as
applicable, are enforceable under the laws of the new jurisdiction of
its formation subject to customary exceptions and (2) the Holders of
Notes will not recognize any income, gain or loss for U.S. federal
income tax purposes as a result of the transaction or series of
transactions and will be subject to U.S. federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such transaction or series of transactions had not
occurred, (b) the Company or such Surviving Entity, as applicable,
agrees in writing to submit to jurisdiction to the competent courts of
the State of New York or the federal district court sitting in The City
of New York and appoints an agent in the State of New York for the
service of process, each under terms satisfactory to the Trustee and
(c) the Board of Directors of the Company or the comparable governing
body of such Surviving Entity, as applicable, determines in good faith
that such transaction will have no material adverse effect on any
Holder of Notes and a Board Resolution (or its equivalent if the
Surviving Entity is not a corporation) to that effect is delivered to
the Trustee; and
(iv) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, assignment, transfer, lease or other
disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for relating
to such transaction or series of transactions have been complied with.
28
Section 1.07. Supplement to Article Nine of the Original Indenture.
(a) Section 901 of the Original Indenture is supplemented
with respect to the Notes by inserting the following provisions at the
end of Section 901:
(9) to provide for uncertificated Notes in addition to or
in place of certificated Notes (provided that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the
Internal Revenue Code of 1986);
(10) to add any Subsidiary Guarantor or release any
Subsidiary Guarantor as provided in Article Four or Section 1404;
(11) to release any Subsidiary Guarantor pursuant to the
terms of this Indenture other than as provided in Article Four or
Section 1404, provided that such action will not adversely affect the
interests of the Holders in any material respect; or
(12) to provide for the assumption of the obligations of
the Company in any case contemplated by Section 1514 hereof.
(b) Article Nine of the Original Indenture is
supplemented with respect to the Notes by inserting the following
provisions at the end of Article Nine:
SECTION 908. Supplemental Indentures with Consent of Holders of Notes.
Notwithstanding Section 902, without the consent of each
Holder affected, an amendment or supplement to this Indenture or the
Notes may not:
(1) make any change to the principal amount of the Notes
whose Holders must consent to an amendment or supplement to this
Section 907;
(2) reduce the Conversion Rate applicable to the Notes;
(3) reduce the Redemption Price or Change in Control
Purchase Price of any Note or extend the date on which the Change in
Control Purchase Price of any Note is payable;
(4) subordinate in right of payment, or otherwise
subordinate, the Notes or any Subsidiary Guarantee to any other
Indebtedness;
29
(5) make any change that materially and adversely affects
the right to convert any Note; or
(6) make any change that materially and adversely affects
the right to require the Company to purchase the Notes upon a Change in
Control in accordance with the terms thereof and this Indenture.
Section 1.08. Supplement to Article Ten of the Original Indenture.
(a) Section 1001 of the Original Indenture is
supplemented with respect to the Notes by inserting the following three
paragraphs at the end thereof:
The Company will pay contingent interest in respect of any
six-month interest period from May 1 to October 31 or November 1 to
April 30 commencing on or after May 1, 2008 for which the Trading Price
for each of the five Trading Days immediately preceding the first day
of such six-month interest period equals 120% or more of $1,000 per
$1,000 Principal Amount of Notes. For any six-month interest period in
respect of which contingent interest is payable, the contingent
interest payable on each $1,000 Principal Amount of Notes shall equal
0.25% of the average Trading Price per $1,000 Principal Amount of Notes
during the five Trading Day measuring period immediately preceding the
first day of such six-month interest period.
Contingent interest due under this Article Ten shall be
treated for all purposes of this Indenture like any other interest
accruing on the Notes. By the first Business Day of a six-month
interest period in respect of which contingent interest will be paid,
the Company shall disseminate a press release through Dow Xxxxx &
Company, Inc. or Bloomberg Business News stating that contingent
interest will be paid on the Notes and identifying the six-month
interest period.
(b) The first sentence of Section 1002 of the Original
Indenture is superseded with respect to the Notes by the following
sentence:
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency of the Trustee, Security
Registrar, Paying Agent and Conversion Agent where Notes may be
presented or surrendered for payment, where Notes may be surrendered
for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon
30
the Company in respect of the Notes and this Indenture may be served.
(c) Article Ten of the Original Indenture is supplemented
with respect to the Notes by inserting the following Sections at the
end thereof:
SECTION 1008. Limitation on Sale and Lease-Back Transactions.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, enter into, assume, guarantee or otherwise
become liable with respect to any Sale and Lease-Back Transaction
unless (i) the proceeds from such Sale and Lease-Back Transaction are
at least equal to the Fair Market Value of the Property being
transferred and (ii) the Company or such Subsidiary would have been
permitted to enter into such transaction under the tests described
under Section 1009 hereof.
SECTION 1009. Limitation on Liens.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, create, affirm, incur, assume or suffer to
exist any Liens, other than Permitted Liens, on or with respect to any
Property of the Company or such Subsidiary or any interest in such
Property or any income or profits from such Property, whether owned at
the Issue Date or thereafter acquired, without effectively providing
that the Notes shall be secured equally and ratably with (or prior to)
any Indebtedness so secured.
SECTION 1010. Limitation on Non-Guarantor Subsidiaries.
The Company will not permit any Subsidiary that is not a
Subsidiary Guarantor to incur any Indebtedness, other than Indebtedness
of Non-Recourse Subsidiaries and Permitted Subsidiary Indebtedness,
unless: (i)(A) such Subsidiary simultaneously executes and delivers a
supplement to this Indenture providing for a Subsidiary Guarantee of
the Notes by such Subsidiary and (B) with respect to Indebtedness in
the form of a guarantee of Subordinated Indebtedness of the Company by
such Subsidiary, any such guarantee shall be subordinated to such
Subsidiary's Subsidiary Guarantee at least to the same extent as such
Subordinated Indebtedness is subordinated to the Notes; (ii) such
Subsidiary waives, and agrees not in any manner whatsoever to exercise
any right or claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other
31
rights against the Company or any other Subsidiary as a result of any
payment by such Subsidiary under its Subsidiary Guarantee until such
time as the obligations guaranteed thereby are paid in full; and (iii)
such Subsidiary shall deliver to the Trustee an Opinion of Counsel of
independent legal counsel to the effect that such supplement has been
duly executed and authorized and such Subsidiary Guarantee constitutes
a valid, binding and enforceable obligation of such Subsidiary, except
insofar as enforcement thereof may be limited by bankruptcy, insolvency
or similar laws (including, without limitation, all laws relating to
fraudulent transfers) and except insofar as enforcement thereof is
subject to general principles of equity.
SECTION 1011. Reports.
The Company and any Subsidiary Guarantors shall file with the
Commission, to the extent such filings are accepted by the Commission
and whether or not the Company has a class of securities registered
under the Exchange Act, the annual reports, quarterly reports and other
documents that the Company would be required to file if the Company
were subject to Section 13 or 15 of the Exchange Act, in each case on
or before the dates on which such reports and other documents would
have been required to have been filed with the Commission if the
Company had been subject to Section 13 or 15 of the Exchange Act,
beginning with the Company's fiscal quarter ended March 31, 2003. The
Company shall also (i) file with the Trustee (with exhibits), and
provide to each Holder of Notes (without exhibits), without cost to
such Holder, copies of such reports and documents within 15 days after
the date on which the Company files such reports and documents with the
Commission or the date on which the Company would be required to file
such reports and documents if the Company were so required and (ii) if
filing such reports and documents with the Commission is not accepted
by the Commission or is prohibited under the Exchange Act, supply at
the Company's cost copies of such reports and documents (including any
exhibits thereto) to any Holder of Notes promptly upon written request.
The Company shall at all times comply with Trust Indenture Act Section
314(a).
SECTION 1012. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in
good faith and by appropriate proceedings or where the failure to
32
effect such payment is not adverse in any material respect to the
Holders of the Notes.
SECTION 1013. Liquidated Damages.
(a) Whenever in this Indenture there is mentioned, in any
context, the payment of interest on, or in respect of, any Note, such
mention shall be deemed to include mention of the payment of Liquidated
Damages to the extent that, in such context, Liquidated Damages are,
were or would be payable in respect thereof pursuant to the provisions
of the Registration Rights Agreement and express mention of the payment
of Liquidated Damages (if applicable) in any provisions hereof shall
not be construed as excluding Liquidated Damages in those provisions
hereof where such express mention is not made; provided, however, that,
if a conflict or inconsistency with respect to Liquidated Damages
exists between the Registration Rights Agreement and this Indenture,
this Indenture shall control with respect to timing and mechanics of
payment, and the Registration Rights Agreement shall control otherwise
(including with respect to whether and the amount of Liquidated Damages
payable). For the avoidance of doubt, this Section 1013 shall not give
rise to an independent obligation of the Company to pay Liquidated
Damages and is included in this Indenture only to establish the timing
and mechanics of payment of Liquidated Damages but only to the extent
payable pursuant to the Registration Rights Agreement.
(b) If Liquidated Damages are payable pursuant to the
Registration Rights Agreement, the Company shall deliver to the Trustee
a certificate to that effect stating (i) the amount of such Liquidated
Damages that are payable and (ii) the date on which such Liquidated
Damages are payable. Unless and until a Responsible Officer receives at
the Corporate Trust Office such a certificate, the Trustee may assume
without inquiry that no such Liquidated Damages are payable.
SECTION 1014. Stay, Extension and Usury Laws.
Each of the Company and the Subsidiary Guarantors covenants
(to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture, and each of the Company
and the Subsidiary Guarantors (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage
33
of any such law, and covenants that it shall not, by resort to any such
law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such
power as though no such law has been enacted.
SECTION 1015. Suspension of Certain Covenants During
Investment Grade Status Period.
If, during any period, the Notes shall achieve and continue to
maintain Investment Grade Status and no Event of Default shall have
occurred and then be continuing (such period being referred to as an
"Investment Grade Status Period"), then, immediately upon the Company's
delivery to the Trustee of an Officers' Certificate certifying the
existence of an Investment Grade Status Period, the covenants set forth
in Sections 1010 and 1011 shall be suspended and shall not during such
Investment Grade Status Period be applicable to the Company and its
Subsidiaries. Further, no failure to comply with Section 1010 or 1011
during an Investment Grade Status Period by the Company or any
Subsidiary shall constitute a Default or Event of Default in the event
that the suspended covenants shall be subsequently reinstated. As soon
as practicable following the termination of any Investment Grade Status
Period, the Company shall notify the Trustee thereof in writing;
provided, however, that the failure of the Company to give such notice
shall not avoid the reinstatement of the suspended covenants, which
reinstatement shall occur concurrently with the termination of such
Investment Grade Status Period.
SECTION 1016. Contingent Debt Tax Treatment. The Company
agrees, and by acceptance of a Note or beneficial interest in a Note,
each Holder and beneficial holder of the Note is deemed to have agreed,
with respect to each of the matters set forth in (a) and (b) below, as
follows:
(a) Tax Treatment:
(i) to treat the Notes as indebtedness of the Company
for all tax purposes;
(ii) to treat the Notes as indebtedness that is
subject to the special regulations governing contingent payment debt
instruments that are contained in U.S. Treasury Regulation section
1.1275-4; and
(iii) to treat any payment to and receipt by a holder
of Common Stock upon conversion of a Note as a contingent payment
34
that may result in an adjustment under U.S. Treasury Regulation section
1.1275-4(b).
(b) Comparable Yield and Projected Payment Schedule. Solely
for purposes of applying U.S. Treasury Regulation section 1.1275-4 to
the Notes:
(i) for United States Federal Income tax purposes, the Company
shall accrue interest with respect to outstanding Notes as Tax Original
Issue Discount according to the "noncontingent bond method," as set
forth in U.S. Treasury Regulation section 1.1275-4(b);
(ii) the Company has determined that the comparable yield, as
defined in U.S. Treasury Regulation section 1.1275-4(b) (4) (i), for
the Notes is 8.25%, compounded semiannually;
(iii) the Company has determined that the projected payment
schedule, as defined in U.S. Treasury Regulation section 1.1275-4(b)
(ii), for the Notes consists of the projected payment schedule referred
to in (v) below;
(iv) the Company acknowledges and agrees, and each Holder and
any beneficial holder of the Note, by its acceptance of a Note or
beneficial interest in a Note, shall be deemed to acknowledge and agree
that (A) the projected payment schedule is determined on a basis of an
assumption of linear growth of stock price, (B) the comparable yield
and the projected payment schedule are not determined for any purpose
other than for the purpose of applying U.S. Treasury Regulation section
1.1275-4(b) to the Notes and (C) the comparable yield and the projected
payment schedule do not constitute a projection or representation
regarding the actual amounts payable on the Notes; and
(v) the projected payment schedule, as defined in U.S.
Treasury Regulation section 1.1275-4(b) (4) (ii) for the Notes is set
forth in Annex 1 hereto.
SECTION 1017. Calculation of Tax Original Issue Discount. The
Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of Tax
Original Issue Discount (including daily rates and accrual periods)
accrued on outstanding Notes as of the end of such year and (ii) such
other specific information relating to such Tax Original Issue Discount
as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
35
SECTION 1018. Rule 144A Information Requirement. Within the
period prior to the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), the Company covenants and agrees that it shall,
during any period in which it is not subject to Section 13 or 15(d)
under the Exchange Act, make available to any holder or beneficial
holder of Notes or any Common Stock issued upon conversion thereof
which continue to be Transfer Restricted Notes in connection with any
sale thereof, and to any prospective purchaser of such Notes or such
Common Stock designated by such holder or beneficial holder in such
connection, the information required pursuant to Rule 144A(d)(4) under
the Securities Act upon the request of any holder or beneficial holder
of such Notes or such Common Stock. In addition, upon the request of
any holder or beneficial holder of such Notes or such Common Stock in
connection with any sale thereof, the Company shall deliver to such
holder or beneficial holder a written statement as to whether any
information made available by the Company to such holder or beneficial
holder complies with the requirements of Rule 144A(d)(4) under the
Securities Act.
Section 1.09. Supplement to Article Eleven of the Original Indenture.
(a) Article Eleven of the Original Indenture is
supplemented with respect to the Notes by inserting the following
paragraph at the end of Section 1103 thereof:
If any Note selected for partial redemption is thereafter
surrendered for conversion in part before termination of the conversion
right with respect to the portion of the Note so selected, the
converted portion of such Note shall be deemed (so far as may be),
solely for purposes of determining the aggregate Principal Amount of
Notes to be redeemed by the Company, to be the portion selected for
redemption. Notes that have been converted during a selection of Notes
to be redeemed may be treated by the Trustee as Outstanding for the
purpose of such selection. Nothing in this Section 1103 shall affect
the right of any Holder to convert any Notes pursuant to Article
Fifteen before the termination of the conversion right with respect
thereto.
(b) The notice of redemption provided for in Section 1104
of the Original Indenture shall also state with respect to the Notes:
(1) the Conversion Rate; (2) the name and address of the Conversion
Agent; (3) that Notes called for redemption may be converted at any
time before the close of business on the Business Day prior to the
Redemption Date; (4) that Holders who want to
36
convert Notes must satisfy the requirements set forth in paragraph 8 of
the Notes and (5) that, unless the Company defaults in making payment
of such Redemption Price, interest, if any, will cease to accrue on and
after the Redemption Date.
(c) The reference in Section 1105 of the Original
Indenture relating to the deposit of money before 10:00 a.m. is hereby
amended to read 11:00 a.m. with respect to the Notes.
(d) New Sections 1109 through 1116 are hereby added to
Article Eleven of the Original Indenture, but only with respect to the
Notes, as follows:
SECTION 1109. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Notes, the Company may
arrange, in lieu of redemption, for the purchase and conversion of any
Notes called for redemption by an agreement with one or more investment
banks or other purchasers to purchase all or a portion of such Notes by
paying to the Trustee in trust for the Holders whose Notes are to be so
purchased, on or before the close of business on the Redemption Date,
an amount that, together with any amounts deposited with the Trustee by
the Company for the redemption of such Notes, is not less than the
Redemption Price, plus (unless the Redemption Date is an Interest
Payment Date) accrued and unpaid interest to but excluding the
Redemption Date. Notwithstanding anything to the contrary contained in
this Article Eleven, the obligation of the Company to pay the
Redemption Price of such Notes, plus all accrued interest, shall be
deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers, but no such agreement shall relieve the
Company of its obligation to pay such Redemption Price, plus all
accrued interest, until such amount is so paid by such purchasers. If
such an agreement is entered into, any Notes not duly surrendered for
conversion by the Holders thereof may, at the option of the Company, 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 Fifteen) surrendered by such purchasers
for conversion, all as of immediately prior to the close of business on
the Redemption Date, subject to payment of the above amount as
aforesaid. The Trustee shall hold and pay to the Holders whose Notes
are selected for redemption any such amount paid to it for purchase and
conversion in the same manner as it would moneys deposited with it by
the Company for the redemption of Notes. Without the Trustee's prior
written consent, no
37
arrangement between the Company and such purchasers for the purchase
and conversion of any Notes shall increase or otherwise affect any of
the powers, duties, responsibilities or obligations of the Trustee as
set forth in this Indenture, and the Company agrees to indemnify the
Trustee 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 Notes between the Company and such
purchasers, including the costs and expenses incurred by the Trustee in
the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 1110. Purchase of Notes at Option of the Holder upon
Change in Control.
(a) If there shall have occurred a Change in Control, the
Company shall, at the option of the Holder, become obligated to
repurchase the Notes held by such Holder for cash at the purchase price
specified in paragraph 6 of the Notes (the "Change in Control Purchase
Price") on the date that is 35 Business Days after the occurrence of
the Change in Control (the "Change in Control Purchase Date"), subject
to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 1110(c).
(b) Within 15 Business Days after the Change in Control,
the Company shall mail a written notice of such Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial
owners if required by applicable law). The notice shall include a form
of Change in Control Purchase Notice to be completed by the Holder and
shall state:
(1) briefly, the events causing a Change in Control and
the date such Change in Control is deemed to have occurred for purposes
of this Section 1110;
(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) the name and address of the Paying Agent and the
Conversion Agent and the office or agency referred to in Section 1002;
38
(6) the Conversion Rate and any adjustments thereto;
(7) that Notes with respect to which a Change in Control
Purchase Notice has been given by the Holder may be converted into
Common Stock at any time prior to the close of business on the Change
in Control Purchase Date only if the Change in Control Purchase Notice
has been withdrawn by the Holder in accordance with the terms of this
Indenture;
(8) that Notes must be surrendered to the Paying Agent or
the office or agency referred to in Section 1002 to collect payment;
(9) that the Change in Control Purchase Price for any
Note as to which a Change in Control Purchase Notice has been duly
given and not withdrawn will be paid on the later of (A) the Business
Day following the Change in Control Purchase Date and (B) promptly
following the time of surrender of such Note as described in clause (8)
above;
(10) the procedures the Holder must follow to exercise
rights under this Section 1110 and a brief description of those rights;
(11) briefly, the conversion rights of the Notes; and
(12) the procedures for withdrawing a Change in Control
Purchase Notice.
(c) A Holder may exercise its rights specified in Section
1110(a) upon delivery of a written notice of purchase (a "Change in
Control Purchase Notice") to the Paying Agent or to the office or
agency referred to in Section 1002 at any time prior to the close of
business on the Change in Control Purchase Date, stating:
(1) the certificate number of any Note in certificated
form which the Holder will deliver to be purchased;
(2) the portion of the Principal Amount of each Note
which the Holder will deliver to be purchased, which portion must be
$1,000 or an integral multiple thereof; and
(3) that such Note shall be purchased as of the Change in
Control Purchase Date pursuant to the terms and conditions specified in
paragraph 6 of the Note and in this Indenture.
Receipt of the Note, prior to, on or after the Change in
Control Purchase Date (together with all necessary endorsements),
39
by the Paying Agent at the offices of the Paying Agent or by the office
or agency referred to in Section 1002 shall be a condition to the
receipt by the Holder of the Change in Control Purchase Price therefor,
together with accrued and unpaid interest through and including the
Change in Control Purchase Date (subject to the right of Holders as of
the immediate preceding Regular Record Date to receive such accrued and
unpaid interest if the Change in Control Purchase Date is an Interest
Payment Date); provided, however, that such Change in Control Purchase
Price and accrued and unpaid interest shall be so paid pursuant to this
Section 1110 only if each Note so delivered to the Paying Agent or such
office or agency shall conform in all respects to the description
thereof set forth in the related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant
to this Section 1110, a portion of a Note 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 Note also apply
to the purchase of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 1110 shall be consummated by the payment of
cash to the Holder according to the second sentence of the first
paragraph of Section 1111.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent or to the office or agency referred to
in Section 1002 the Change in Control Purchase Notice contemplated by
this Section 1110(c) shall have the right to withdraw such Change in
Control Purchase Notice at any time prior to the close of business on
the Change in Control Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent or to such office or agency in
accordance with Section 1111.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written
withdrawal thereof.
SECTION 1111. Effect of Change in Control Purchase Notice.
Upon receipt by the Paying Agent or by the office or agency
referred to in Section 1002 of the Change in Control Purchase Notice
according to Section 1110(c), the Holder of the Note in respect of
which such Change in Control Purchase Notice was given shall (unless
such Change in Control Purchase Notice is withdrawn as
40
specified in the following paragraph) thereafter be entitled to receive
solely the Change in Control Purchase Price with respect to such Note,
plus accrued and unpaid interest through and including the Change in
Control Purchase Date (subject to the right of the Holder as of the
immediate preceding Regular Record Date to receive such accrued and
unpaid interest if the Change in Control Purchase Date is an Interest
Payment Date). Such Change in Control Purchase Price and accrued
interest shall be paid to such Holder (subject to the right of the
Holder as of the immediate preceding Regular Record Date to receive
such accrued and unpaid interest if the Change in Control Purchase Date
is an Interest Payment Date) on the later of (x) the Business Day
following the Change in Control Purchase Date with respect to such Note
and (y) promptly following the time of delivery of such Note to the
Paying Agent or to the office or agency referred to in Section 1002 by
the Holder thereof in the manner required by Section 1110(c). Notes in
respect of which a Change in Control Purchase Notice has been given by
the Holder thereof may not be converted into shares of Common Stock 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 as specified in the following paragraph.
A Change in Control Purchase Notice may be withdrawn by means
of a written notice of withdrawal delivered to the office of the Paying
Agent or to the office or agency referred to in Section 1002 at any
time prior to the close of business on the Change in Control Purchase
Date, specifying:
(1) the certificate number of the Note in certificated
form in respect of which such notice of withdrawal is being submitted;
(2) the Principal Amount of the Note with respect to
which such notice of withdrawal is being submitted; and
(3) the Principal Amount, if any, of such Note (which
must be $1,000 or an integral multiple thereof) which remains subject
to the original Change in Control Purchase Notice and which has been or
will be delivered for purchase by the Company.
There shall be no purchase of any Notes pursuant to Section
1110 if there has occurred (prior to, on or after, as the case may be,
the giving, by the Holders of such Notes, of the required Change in
Control Purchase Notice) and is continuing an Event of Default (other
than a default in the payment of the Change in Control Purchase Price,
or accrued and unpaid interest through and including the Change in
Control Purchase Date (other than overdue interest),
41
with respect to such Notes). The Paying Agent will promptly return to
the respective Holders thereof any Notes (x) with respect to which a
Change in Control Purchase 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 Change in Control
Purchase Price, or accrued and unpaid interest through and including
the Change in Control Purchase Date (other than overdue interest), with
respect to such Notes) in which case, upon such return, the Change in
Control Purchase Notice with respect thereto shall be deemed to have
been withdrawn.
SECTION 1112. Deposit of Change in Control Purchase Price.
Prior to 11:00 a.m. (local time in The City of New York) on
the Business Day following the Change in Control Purchase Date the
Company shall deposit with the Trustee or with the Paying Agent (or, if
the Company is acting as Paying Agent, shall segregate and hold in
trust as provided in Section 1103) an amount of cash in immediately
available funds sufficient to pay the aggregate Change in Control
Purchase Price of all the Notes or portions thereof which are to be
purchased as of the Change in Control Purchase Date, plus (unless the
Change of Control Purchase Date is an Interest Payment Date) accrued
and unpaid interest thereon through and including the Change in Control
Purchase Date.
SECTION 1113. Notes Purchased in Part.
Any Note which is to be purchased under Section 1110 or 1117
only in part shall be surrendered at the office of the Paying Agent or
the office or agency referred to in Section 1002 (with, if the Company
or the Trustee so requires, due endorsement, or a written instrument of
transfer in form satisfactory to the Company and the Trustee executed
by the Holder 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 Note, without service charge, a new Note
or Notes, 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 Note so surrendered which is not
purchased.
42
SECTION 1114. Covenant to Comply with Securities Laws upon
Purchase of Notes.
In connection with any offer to purchase or purchase of Notes
under Section 1110 or 1117, the Company shall (i) comply with Rule
13e-4 and Rule 14e-1 under the Exchange Act, if applicable, and (ii)
file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act, if applicable.
SECTION 1115. Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company,
upon written request, any cash, together with interest on such cash as
hereinafter provided (subject to the provisions of Section 601(a)), and
other consideration held by them for the payment of a Change in Control
Purchase, Redemption Price or Purchase Price or accrued and unpaid
interest that remain unclaimed as provided in paragraph 12 of the
Notes, provided, however, that to the extent that the aggregate amount
of consideration deposited by the Company pursuant to Section 1112 or
1117(f) exceeds the aggregate Change in Control Purchase Price or
Repurchase Price, respectively, of the Notes or portions thereof to be
purchased, plus (unless such date is an Interest Payment Date) accrued
and unpaid interest thereon through and including such date, then
promptly after the Business Day following the Change in Control
Purchase Date or Repurchase Price, as the case may be, the Trustee
shall return any such excess to the Company together with interest on
any cash as hereinafter provided thereon (subject to the provisions of
Section 601(a)). Any cash deposited with the Trustee or with the Paying
Agent pursuant to Section 1112 or Section 1117(f) or Section 1105 shall
be invested by the Trustee or Paying Agent, as applicable, in
short-term obligations of, or fully guaranteed by, the United States of
America, or commercial paper rated A-1 or better by S&P or P-1 or
better by Xxxxx'x as specifically directed in writing by the Company.
Interest earned on such investments shall be repaid to the Company
pursuant to this Section 1115. Except as provided for in this Section
1115, the Trustee shall be under no liability for interest on any money
received by it pursuant to this Indenture.
SECTION 1116. Outstanding Notes.
If the Paying Agent holds, in accordance with this Indenture,
on a Redemption Date, or on the Business Day following a Change in
Control Purchase Date or Repurchase Date, or at Stated Maturity, money
and/or other consideration sufficient to pay the Notes payable on that
date, then on and after such Redemption Date, Change in
43
Control Purchase Date, Repurchase Date or Stated Maturity, as
applicable, such Notes shall cease to be Outstanding, interest on such
Notes shall cease to accrue and all other rights of the Holder shall
terminate (other than the right to receive the applicable Redemption
Price, Change in Control Purchase Price, Purchase Price or Principal
Amount, as the case may be, upon delivery of the Note in accordance
with the terms of this Indenture, plus accrued and unpaid interest to
but excluding the Redemption Date or through and including the Change
in Control Purchase Date or the Repurchase Date or the Stated Maturity,
as the case may be, subject always to the right of Holders as of the
immediate preceding Regular Record Date to receive such accrued and
unpaid interest if the applicable date is an Interest Payment Date);
provided that if the Notes 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.
If a Note is converted in accordance with Article Fifteen,
then from and after the Conversion Date such Note shall cease to be
Outstanding and interest shall cease to accrue on such Note and all
other rights of the Holder shall terminate.
SECTION 1117. Repurchase of Notes at Option of the Holder.
(a) General. The Company shall, at the option of the
Holder, become obligated to repurchase the Notes held by such Holder on
May 1 of 2008, 2010, 2013, 2018, 2023 or 2028 (each, a "Repurchase
Date") at the purchase price specified in paragraph 6 of the Notes (the
"Purchase Price") upon:
(1) delivery by the Holder of a written notice of
purchase (a "Repurchase Notice") to the Paying Agent or to the office
or agency referred to in Section 1002 at any time from the opening of
business on the date that is 20 Business Days prior to the Repurchase
Date until the close of business on such Repurchase Date, stating:
(A) the certificate number of any Note in
certificated form which the Holder will deliver to be
repurchased;
(B) the portion of the Principal Amount of the
Note which the Holder will deliver to be repurchased, which
portion must be $1,000 in Principal Amount or an integral
multiple thereof;
44
(C) that such Note shall be repurchased as of
the Repurchase Date pursuant to the terms and conditions
specified in paragraph 6 of the Note and in this Indenture;
and
(D) if the Company elects, pursuant to a Company
Notice, to pay the Purchase Price to be paid as of such
Repurchase Date, in whole or in part, in Common Stock,
whether, in the event such portion of the Purchase Price shall
ultimately be payable to such Holder in cash because any of
the conditions to the payment of the Purchase Price in Common
Stock are not satisfied prior to or on the Repurchase Date, as
set forth in Section 1117(c), such Holder elects (x) to
withdraw such Repurchase Notice as to some or all of the Notes
to which such Repurchase Notice relates (stating the Principal
Amount and certificate numbers of any certificated Notes as to
which such withdrawal shall relate) or (y) to receive cash in
respect of the entire Purchase Price for all Notes to which
such Repurchase Notice relates; and
(2) receipt of such Notes, prior to, on or after the
Repurchase Date (together with all necessary endorsements), by the
Paying Agent at the offices of the Paying Agent or by the office or
agency referred to in Section 1002, such delivery being a condition to
receipt by the Holder of the Purchase Price therefor, together with
accrued and unpaid interest through and including the Repurchase Date
(subject to the right of Holders as of the immediate preceding Regular
Record Date to receive such accrued and unpaid interest if the
Repurchase Date is an Interest Payment Date); provided, however, that
such Purchase Price and accrued and unpaid interest shall be so paid
pursuant to this Section 1117 only if the Note so delivered to the
Paying Agent or to the office or agency referred to in Section 1002
shall conform in all respects to the description thereof in the related
Repurchase Notice.
If a Holder, in such Holder's Repurchase Notice, fails to
indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 1117(a)(1), such Holder shall be deemed to have
elected to receive cash in respect of the entire Purchase Price for all
Notes subject to such Repurchase Notice in the circumstances set forth
in such clause (D).
The Company shall purchase from the Holder thereof, pursuant
to this Section 1117, a portion of a Note if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000.
45
Provisions of this Indenture that apply to the purchase of all of a
Note also apply to the repurchase of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 1117 shall be consummated by the delivery of
the consideration to be received by the Holder according to the
immediately following paragraph.
Upon receipt by the Paying Agent or by the office or agency
referred to in Section 1002 of a Repurchase Notice according to this
Section 1117(a), the Holder of the Note in respect of which such
Repurchase Notice was given shall (unless such Repurchase Notice is
withdrawn as specified in the following paragraph) thereafter be
entitled to receive solely the Repurchase Price with respect to such
Note, plus accrued and unpaid interest through and including the
Repurchase Date (subject to the right of the Holder as of the immediate
preceding Regular Record Date to receive such accrued and unpaid
interest if the Repurchase Date is an Interest Payment Date). Such
Repurchase Price and accrued and unpaid interest shall be paid to such
Holder (subject to the right of the Holder as of the immediate
preceding Regular Record Date to receive such accrued and unpaid
interest if the Repurchase Date is an Interest Payment Date) on the
later of (x) the Business Day following the Repurchase Date with
respect to such Note and (y) promptly following the time of delivery of
such Note to the Paying Agent or to the office or agency referred to in
Section 1002 by the Holder thereof in the manner required by this
Section 1117. Notes in respect of which a Repurchase Notice has been
given by the Holder thereof may not be converted into shares of Common
Stock 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 paragraph.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent or to
the office or agency referred to in Section 1002 at any time prior to
the close of business on the Repurchase Date, specifying:
(1) the certificate number of any Note in certificated
form in respect of which such notice of withdrawal is being submitted;
(2) the Principal Amount of the Note with respect to
which such notice of withdrawal is being submitted; and
46
(3) the Principal Amount, if any, of such Note (which
must be $1,000 or an integral multiple thereof) which remains subject
to the original Repurchase Notice and which has been or will be
delivered for purchase by the Company.
The Paying Agent or the office or agency referred to in
Section 1002 shall promptly notify the Company of the receipt by it of
any Repurchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of
Purchase Price. The Company may elect with respect to any Repurchase
Date to pay the Purchase Price in respect of the Notes to be purchased
pursuant to Section 1117(a) as of such Repurchase Date, in U.S. legal
tender ("cash") or Common Stock, or in any combination of cash and
Common Stock, subject to the conditions set forth in Section 1117(c).
The Company shall designate, in the Company Notice delivered pursuant
to Section 1117(d), (i) whether the Company will repurchase the Notes
for cash or Common Stock or a combination thereof and (ii) if a
combination thereof, the relative percentages of the Purchase Price of
Notes which it will pay in cash and Common Stock; provided that the
Company will pay cash for fractional interests in shares of Common
Stock. Each Holder whose Notes are repurchased pursuant to this Section
1117 shall receive the same percentage of cash and/or Common Stock in
payment of the Purchase Price for such Notes, except (i) as provided in
Section 1117(c) with regard to the payment of cash in lieu of
fractional interests in shares of Common Stock and (ii) that, in the
event that the Company is unable to repurchase the Notes of a Holder or
Holders for Common Stock because any necessary qualifications or
registrations of the Common Stock under applicable federal or state
securities laws cannot be obtained, the Company may repurchase the
Notes 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
1117(b) or Section 1117(c).
If the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Common Stock, the Company shall, at
least one Business Day before the Company Notice Date, deliver an
Officers' Certificate to the Trustee specifying that the conditions to
such manner of payment set forth in Section 1117(c) have been complied
with and/or that the Company will use commercially reasonable efforts
to cause them to be complied with. In addition, if the Company desires
the Trustee to give the Company Notice
47
required by Section 1117(d), the Company shall so inform the Trustee at
such time.
(c) Payment By Issuance of Common Stock. If, pursuant to
Section 1117(b), the Company elects to pay the Purchase Price of Notes
in respect of which a Repurchase Notice pursuant to Section 1117(a) has
been given, or a specified percentage thereof, by the issuance of a
number of shares of Common Stock, such number of shares of Common Stock
shall be 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 Purchase Price of such Notes in cash by (ii) the Market Price of a
share of Common Stock as of the applicable Repurchase Date, subject to
the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock
in payment of the Purchase Price. Instead the Company will pay cash for
the current market value of the fractional share. The current market
value of a fraction of a share shall be determined by multiplying the
Market Price as of the applicable Repurchase Date by such fraction and
rounding the product to the nearest whole cent. It is understood that
if a Holder elects to have more than one Note repurchased, the number
of shares of Common Stock shall be based on the aggregate amount of
Notes to be repurchased.
The Company's right to exercise its election to repurchase the
Notes pursuant to Section 1117 through the issuance of shares of Common
Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of
election to purchase all or a specified percentage of the Securities
with Common Stock as provided herein;
(ii) the registration of the shares of Common Stock to be
issued in respect of the payment of the specified percentage of the
Purchase Price under the Exchange Act and the Securities 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 Common Stock are in conformity with this
Indenture
48
and (B) the shares of Common Stock to be issued by the Company in
payment of the specified percentage of the Purchase Price in respect of
the Notes have been duly authorized and, when issued and delivered
pursuant to the terms of this Indenture in payment of the specified
percentage of the Purchase Price in respect of the Notes, will be
validly issued, fully paid and nonassessable, and, in the case of such
Officers' Certificate, stating that conditions (i), (ii) and (iii)
above have been satisfied and, in the case of such Opinion of Counsel,
stating that conditions (ii) and (iii) above have been satisfied.
The Company may elect to pay the Purchase Price (or any
portion thereof) in Common Stock only if the Common Stock is listed on
a United States national securities exchange or quoted in an
inter-dealer quotation system of any registered United States national
securities association. If such conditions are not satisfied with
respect to a Holder or Holders prior to or on the Repurchase Date and
the Company elected to repurchase the Notes to be repurchased as of
such Repurchase Date pursuant to this Section 1117 through the issuance
of shares of Common Stock, the Company shall pay the entire Purchase
Price in respect of such Notes of such Holder or Holders in cash.
If required, the Company shall (i) disseminate the number of
shares of Common Stock to be issued for each $1,000 Principal Amount of
Notes as soon as practicable after determination thereof by news
release or via the Company's website in accordance with the Company's
customary practices and (ii) concurrently notify each securities
exchange on which the Common Stock is then listed of such information.
(d) Notice of Election. The Company's notices of election
to repurchase with cash or Common Stock or any combination thereof
(each, a "Company Notice") shall be sent to the Holders (and to
beneficial owners as required by applicable law) in the manner provided
in Section 107 hereof not less than 20 Business Days prior to the
Repurchase Date (the "Company Notice Date"). In the event the Company
has elected to pay a Purchase Price (or a specified percentage thereof)
with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock with
a Market Price determined as of a specified date prior to the
Repurchase Date equal to such specified percentage of the Purchase
Price of the Notes held by such Holder (except any cash amount to be
paid in lieu of a fractional share); and
49
(2) set forth the method of calculating the Market Price
and state that because the Market Price of Common Stock will be
determined prior to the Repurchase Date, the Holders will bear the
market risk with respect to the value of the Common Stock 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:
(i) the Purchase Price and Conversion Rate;
(ii) the name and address of the Paying Agent and the
Conversion Agent and the office or agency referred to in Section 1002;
(iii) that Notes as to which a Repurchase Notice has been
given may be converted only if the applicable Repurchase Notice has
been withdrawn in accordance with the terms of this Indenture;
(iv) that Notes must be surrendered to the Paying Agent or
the office or agency referred to in Section 1002 to collect payment;
(v) that the Purchase Price for any Note as to which a
Repurchase Notice has been given and not withdrawn will be paid on the
later of (A) the Business Day following the Repurchase Date or (B)
promptly following the time of delivery of such Note as described in
clause (iv) above;
(vi) the procedures the Holder must follow under this
Section 1117;
(vii) briefly, the conversion rights of the Notes; and
(viii) the procedures for withdrawing a Repurchase Notice
(including, without limitation, for a conditional withdrawal pursuant
to the terms of Section 1117(a)(1)(D) or Section 1119 hereof).
At the Company's request, the Trustee shall give the Company
Notice in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of the Company Notice shall be
prepared by the Company.
(e) Covenants of the Company. All shares of Common Stock
delivered upon repurchase of the Notes shall be newly issued shares or
treasury shares, shall be fully paid and nonassessable and
50
shall be free from preemptive rights and free of any lien or adverse
claim.
(f) Procedure Upon Purchase. On the Business Day
following the Repurchase Date, the Company shall deposit with the
Trustee or with the Paying Agent (or, if the Company is acting as
Paying Agent, shall segregate and hold in trust as provided in Section
1103) cash (in respect of a cash purchase or for fractional interests,
as applicable), or shares of Common Stock, or a combination thereof, as
applicable, sufficient to pay the aggregate Purchase Price in respect
of the Notes or portions thereof to be repurchased pursuant to this
Section 1117, plus (unless the Repurchase Date is an Interest Payment
Date) accrued and unpaid interest thereon through and including the
Repurchase Date. As soon as practicable after the Repurchase Date, the
Company shall deliver to each Holder entitled to receive Common Stock,
through the Paying Agent, a certificate for the number of full shares
of Common Stock, as applicable, issuable in payment of such Purchase
Price. The Person in whose name the certificate for Common Stock is
registered shall be treated as a holder of record on the Business Day
following the Repurchase Date. No payment or adjustment will be made
for dividends on the Common Stock the record date for which occurred on
or prior to the Repurchase Date.
(g) Taxes. If a Holder of a Note is paid in Common Stock,
the Company shall pay any documentary, stamp or similar issue or
transfer tax due on such issue of shares of Common Stock. However, the
Holder shall pay any such tax which is due because the Holder requests
the shares of Common Stock to be issued in a name other than the
Holder's name. The Paying Agent may, and, if so instructed by the
Company, shall, refuse to deliver the certificates representing the
Common Stock being issued in a name other than the Holder's name until
the Paying Agent receives a sum sufficient to pay any tax which will be
due because the shares of Common Stock are to be issued in a name other
than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulations.
Section 1.10. New Article Fourteen.
The Original Indenture is supplemented with respect to the
Notes by inserting the following Article Fourteen:
51
ARTICLE FOURTEEN
SUBSIDIARY GUARANTEES
SECTION 1401. Subsidiary Guarantees.
Each Subsidiary Guarantor, jointly and severally, hereby
unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and their respective
successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that: (a) the principal of and any premium and
interest on the Notes shall be promptly paid in full when due, whether
at Stated Maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on premium and
interest on the Notes, if any, if lawful, and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder shall
be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same
shall be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to pay
the same immediately. The Subsidiary Guarantors hereby agree that their
obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture,
the absence of any action to enforce the same, any waiver or consent by
any Holder with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the
same or any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a Subsidiary Guarantor. Each
Subsidiary Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and
covenants that this Subsidiary Guarantee shall not be discharged (other
than in accordance with Article Four or Section 1404 of this Indenture)
except by complete performance of the obligations contained in the
Notes and this Indenture. If any Holder or the Trustee is required by
any court or otherwise to return to the Company or Subsidiary
Guarantors, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or Subsidiary
Guarantors, any amount
52
paid by either to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Subsidiary Guarantor further agrees that,
as between the Subsidiary Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five for
the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby and (y) in the event of any
declaration of acceleration of such obligations as provided in Article
Five, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Subsidiary Guarantors for the purpose of
this Subsidiary Guarantee. In order to provide for just and equitable
contribution among the Subsidiary Guarantors, in the event any payment
or distribution is made by any Subsidiary Guarantor (a "Funding
Subsidiary Guarantor") under its Subsidiary Guarantee, such Funding
Subsidiary Guarantor shall be entitled to a contribution from each
other Subsidiary Guarantor in a pro rata amount based on the Adjusted
Net Assets of each Subsidiary Guarantor (including the Funding
Subsidiary Guarantor) for all payments, damages and expenses incurred
by the Funding Subsidiary Guarantor in discharging the Company's
obligations with respect to the Notes or any other Subsidiary
Guarantor's obligations with respect to any Subsidiary Guarantee. Each
Subsidiary Guarantor agrees that it will not be entitled to exercise
any right of subrogation or contribution in relation to the Holders of
Notes in respect of any obligations guaranteed hereby until payment in
full of all amounts guaranteed under this Section 1401.
SECTION 1402. Execution and Delivery of Subsidiary Guarantees.
To evidence its Subsidiary Guarantee set forth in Section
1401, each Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form of Exhibit B to the
Sixth Supplemental Indenture shall be endorsed by an officer of such
Subsidiary Guarantor on each Note thereafter authenticated and
delivered by the Trustee, that a supplement to this Indenture shall be
executed on behalf of such Subsidiary Guarantor by its duly authorized
officer in accordance with Section 1010 hereof and that such Subsidiary
Guarantor shall deliver to the Trustee the Opinion of Counsel required
by Section 1010 hereof.
Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 1401 shall remain in full force and
53
effect notwithstanding any failure to endorse on each Note a notation
of such Subsidiary Guarantee.
If an officer whose signature is on a supplement to this
Indenture or on the notation of Subsidiary Guarantee no longer holds
that office at the time the Trustee authenticates the Note on which a
notation of Subsidiary Guarantee is endorsed, the Subsidiary Guarantee
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder and whether upon original issue,
registration of transfer, exchange or otherwise, shall constitute due
delivery of the Subsidiary Guarantee set forth in this Indenture on
behalf of each Person that is then a Subsidiary Guarantor.
SECTION 1403. Subsidiary Guarantors May Consolidate, etc., on
Certain Terms.
No Subsidiary Guarantor may consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving
Person), another Person whether or not affiliated with such Subsidiary
Guarantor unless:
(a) subject to the provisions of Section 1404 hereof, the
Person formed by or surviving any such consolidation or merger (if
other than such Subsidiary Guarantor) assumes all the obligations of
such Subsidiary Guarantor, pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee in respect of the
Notes, this Indenture and such Subsidiary Guarantor's Subsidiary
Guarantee;
(b) immediately after giving effect to such transaction,
no Default or Event of Default exists; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation or merger and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Notwithstanding the foregoing, no Subsidiary Guarantor shall
be permitted to consolidate with or merge with or into (whether or not
such Subsidiary Guarantor is the surviving Person) another Person
pursuant to the preceding sentence if such consolidation or merger is
not permitted by Article Eight hereof.
54
In case of any such consolidation or merger and upon the
assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee,
of the obligations of the Subsidiary Guarantor in respect of the Notes,
this Indenture and such Subsidiary Guarantor's Subsidiary Guarantee,
such successor Person shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named
herein as a Subsidiary Guarantor. Such successor Person thereupon may
cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee.
All the Subsidiary Guarantees so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Subsidiary
Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had
been issued at the date of the execution hereof.
Except as set forth in Articles Eight and Ten hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor, or shall prevent any sale or
other disposition of all or substantially all of the assets of a
Subsidiary Guarantor to the Company.
SECTION 1404. Releases of Subsidiary Guarantees.
In the event of a sale or other disposition of all or
substantially all of the assets of any Subsidiary Guarantor to a Person
other than a Subsidiary or the Company in a transaction that does not
violate any provisions of this Indenture, by way of merger,
consolidation or otherwise, or a sale or other disposition (including,
without limitation, by foreclosure) of all of the Capital Stock of any
Subsidiary Guarantor to a Person other than a Subsidiary or the
Company, then such Subsidiary Guarantor shall be released and relieved
of any obligations under this Indenture and its Subsidiary Guarantee;
provided that all obligations of such Subsidiary Guarantor under all of
its guarantees of, and under all pledges of assets or other security
interests that secure, any other Indebtedness of the Company or any
other Subsidiary shall also terminate or be released upon such sale or
other disposition. Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made in accordance with the provisions of
this Indenture, the Trustee shall execute any documents reasonably
required in order to evidence the
55
release of any Subsidiary Guarantor from its obligations under this
Indenture and its Subsidiary Guarantee.
In the event of a release or discharge in full of all
obligations of any Subsidiary Guarantor in respect of all of its
guarantees of Indebtedness of the Company (other than the Notes) and
the repayment of all Indebtedness, other than Permitted Subsidiary
Indebtedness, of such Subsidiary Guarantor, such Subsidiary Guarantor
shall, upon the written request of the Company to the Trustee, be
released and relieved of any obligation under this Indenture and its
Subsidiary Guarantee. Upon delivery by the Company to the Trustee of an
Officers' Certificate to the effect that such Subsidiary Guarantor has
been released or discharged in full from all of its obligations under
all of its guarantees of Indebtedness of the Company (other than the
Notes) and that all Indebtedness, other than Permitted Subsidiary
Indebtedness, of such Subsidiary Guarantor has been repaid, the Trustee
shall execute any documents reasonably required in order to evidence
the release of such Subsidiary Guarantor from its obligations under
this Indenture and its Subsidiary Guarantee.
Any Subsidiary Guarantor that is designated a Non-Recourse
Subsidiary in accordance with the terms of this Indenture shall be
released from and relieved of its obligations under this Indenture and
its Subsidiary Guarantee. Upon effectiveness of such designation, the
Trustee shall execute any documents reasonably required in order to
evidence the release of such Subsidiary Guarantor from its obligations
under this Indenture and its Subsidiary Guarantee.
Upon the commencement of an Investment Grade Status Period and
delivery of the Officer's Certificate provided for in the first
sentence of Section 1015, each Subsidiary Guarantor shall be released
from and relieved of its obligations under this Indenture and its
Subsidiary Guarantee. Upon delivery by the Company to the Trustee of an
Officer's Certificate certifying the existence of an Investment Grade
Status Period (which can be the same Officer's Certificate delivered
pursuant to Section 1015), the Trustee shall execute any documents
reasonably required in order to evidence the release of each Subsidiary
Guarantor from its obligations under this Indenture and its Subsidiary
Guarantee.
Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the full amount
of principal of and any premium and interest on the Notes and for the
other obligations of any Subsidiary Guarantor under this Indenture.
56
SECTION 1405. Limitation on Subsidiary Guarantor Liability.
For purposes hereof, each Subsidiary Guarantor's liability
shall be that amount from time to time equal to the aggregate liability
of such Subsidiary Guarantor thereunder, but shall be limited to the
lesser of (i) the aggregate amount of the obligations of the Company
under the Notes and this Indenture and (ii) the amount, if any, which
would not have (A) rendered such Subsidiary Guarantor "insolvent" (as
such term is defined in the Bankruptcy Act and in the Debtor and
Creditor Law of the State of New York) or (B) left it with unreasonably
small capital at the time its Subsidiary Guarantee of the Notes was
entered into, after giving effect to the incurrence of existing
Indebtedness immediately prior to such time; provided that, it shall be
a presumption in any lawsuit or other proceeding in which such
Subsidiary Guarantor is a party that the amount guaranteed pursuant to
its Subsidiary Guarantee is the amount set forth in clause (i) above
unless any creditor, or representative of creditors of such Subsidiary
Guarantor, or debtor in possession or trustee in bankruptcy of such
Subsidiary Guarantor, otherwise proves in such a lawsuit that the
aggregate liability of such Subsidiary Guarantor is limited to the
amount set forth in clause (ii). In making any determination as to the
solvency or sufficiency of capital of a Subsidiary Guarantor in
accordance with the previous sentence, the right of such Subsidiary
Guarantor to contribution from other Subsidiary Guarantors and any
other rights such Subsidiary Guarantor may have, contractual or
otherwise, shall be taken into account.
Section 1.11. New Article Fifteen The Original Indenture is
supplemented with respect to the Notes by inserting the following Article
Fifteen:
ARTICLE FIFTEEN
CONVERSION
SECTION 1501. Conversion Privilege.
A Holder of a Note may convert such Note into shares of Common
Stock, but only during the period stated in paragraph 8 of the Notes
and only upon the occurrence of one of the events set forth in this
Section 1501. The number of shares of Common Stock issuable upon
conversion of a Note per $1,000 of Principal Amount thereof (the
"Conversion Rate") shall be that set forth in paragraph 8 in the Notes,
subject to adjustment as herein set forth. The
57
"Conversion Price" in effect at any time shall be equal to $1,000
divided by the Conversion Rate.
A Holder may convert a portion of the Principal Amount of a
Note if the portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to conversion of all of a Note
also apply to conversion of a portion of a Note.
"Average Sale Price" means the average of the Sale Prices of a
share of Common Stock for the shorter of:
(i) 30 consecutive Trading Days ending on the last full
Trading Day prior to the Time of Determination with respect to the
rights, options, warrants, distribution or repurchase in respect of
which the Average Sale Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding
the first public announcement of (a) the issuance of rights, options or
warrants, (b) the distribution or (c) the repurchase, in each case, in
respect of which the Average Sale Price is being calculated and (y)
proceeding through the last full Trading Day prior to the Time of
Determination with respect to the rights, warrants, distribution or
repurchase in respect of which the Average Sale Price is being
calculated, or
(iii) the period, if any, (x) commencing on the date next
succeeding (i) the Ex-Dividend Time with respect to the next preceding
(a) issuance of rights, warrants or options or (b) distribution, or
(ii) the trade date with respect to the next preceding repurchase, in
each case, for which an adjustment is required by the provisions of
Section 1506(4), 1507, 1508 or 1509 and (y) proceeding through the last
full Trading Day prior to the Time of Determination with respect to the
rights, warrants, options, distribution or repurchase in respect of
which the Average Sale Price is being calculated.
If the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 1506(1), (2), (3) or (5) applies
occurs during the period applicable for calculating "Average Sale
Price" pursuant to the definition in the preceding sentence, "Average
Sale Price" shall be calculated for such period in a manner determined
in good faith by the Board of Directors to reflect the impact of such
dividend, subdivision, combination or reclassification on the Sale
Price of a share of Common Stock during such period.
58
"Time of Determination" means the time and date of (x) the
earlier of (i) the determination of stockholders entitled to receive
rights, warrants or options or a distribution, in each case to which
Sections 1507 and 1508 apply and (ii) the time ("Ex-Dividend Time")
immediately prior to the commencement of "ex-dividend" trading for such
rights, options, warrants or distribution on the New York Stock
Exchange or such other national or regional exchange or market on which
the shares of the Common Stock are then listed or quoted or (y) the
trade date with respect to the repurchase, in the case of an adjustment
pursuant to Section 1509.
The Notes shall be convertible only during the period
specified in paragraph 8 of the Notes and only:
(i) during any fiscal quarter of the Company commencing
after June 30, 2003 for which the Sale Price exceeded 120% of the
Conversion Price for at least 20 Trading Days in the 30 consecutive
Trading Day period ending on the last Trading Day of the preceding
fiscal quarter (it being understood for purposes of this Section 15.01
that the Conversion Price in effect at the close of business on each of
the 30 consecutive Trading Days shall be used);
(ii) as described below after the occurrence of the 98%
Trading Exception;
(iii) if such Note has been called for redemption, at any
time on or after the date the notice of redemption has been given until
the close of business on the Business Day immediately preceding the
Redemption Date; or
(iv) as described below after the occurrence of any of the
specified corporate transactions described below.
The Company shall, within the first five Business Days of each
fiscal quarter, determine whether the Notes shall be convertible during
such fiscal quarter as a result of the occurrence of an event specified
in clause (i) above, and, if the Notes shall be so convertible, the
Company shall promptly deliver to the Trustee written notice thereof.
Whenever the Notes shall become convertible pursuant to this Section
1501, the Company or, at the Company's request, the Trustee in the name
and at the expense of the Company, shall notify the Holders of the
event triggering such convertibility in the manner provided in Section
107.
59
Conversion after the Occurrence of the 98% Trading Exception
Notes may be surrendered for conversion during the five
Business Day period (but only to the extent such five Business Day
period occurs during the period specified in paragraph 8 of the Notes)
immediately after any five consecutive Trading Day period in which the
Trading Price per $1,000 Principal Amount of Notes, as determined
following a request by a Holder according to the procedures described
below, for each day of such five Trading Day period was less than 98%
of the product of the Sale Price and the Conversion Rate as of such
Trading Day (the "98% Trading Exception").
Notwithstanding the foregoing, if, on any Conversion Date that
is on or after May 1, 2028, the Sale Price of a share of Common Stock
is greater than the Conversion Price, the Holders of Notes surrendered
for conversion shall receive, in lieu of Common Stock based on the
Conversion Rate, cash or Common Stock or a combination of cash and
Common Stock, at the Company's option, with a value equal to the
Principal Amount of such Notes, plus accrued and unpaid interest as of
the Conversion Date ("Principal Value Conversion"). If a Holder
surrenders its Notes for a Principal Value Conversion, the Company
shall notify such Holder by the second Trading Day following the
Conversion Date whether the Company will pay such Holder all or a
portion of the Principal Amount plus accrued and unpaid interest in
cash, Common Stock or a combination of cash and Common Stock, and in
what relative percentages. Any Common Stock delivered upon a Principal
Value Conversion will be valued at the greater of the Conversion Price
on the Conversion Date and the Applicable Stock Price as of the
Conversion Date. The Company will pay such Holder any portion of the
Principal Amount plus accrued and unpaid interest to be paid in cash,
and deliver Common Stock with respect to any portion of the Principal
Amount plus accrued and unpaid interest to be paid in Common Stock, no
later than the third Business Day following the determination of the
Applicable Stock Price.
In connection with any conversion pursuant to the immediately
preceding two paragraphs of this Section 1501, the Trustee shall not
have any obligation to determine the Trading Price unless the Company
has requested such determination, and the Company shall have no
obligation to make such request unless a Holder provides the Company
with reasonable evidence that the 98% Trading Exception will apply. At
such time, the Company shall instruct the Trustee to determine the
Trading Price beginning on the next Trading Day and on each successive
Trading Day until the
60
Trading Price per $1,000 Principal Amount of Notes is greater than or
equal to 98% of the product of the Sale Price of a share of Common
Stock and the Conversion Rate as of such Trading Day.
Conversion after the Occurrence of Specified Corporate Transactions
If:
(i) (A) the Company distributes to all holders of its
Common Stock rights or warrants entitling them (for a period expiring
within 45 days after the record date for the determination of the
stockholders entitled to receive such distribution) to subscribe for or
purchase shares of Common Stock at a price per share less than the
average of the Sale Prices of a share of Common Stock over the ten
Trading Day period immediately preceding, but not including, the date
such distribution is first publicly announced by the Company, or (B)
the Company distributes to all holders of its Common Stock, cash or
other assets, debt securities or rights to purchase its securities,
where the Fair Market Value of such distribution per share of Common
Stock exceeds 10% of the Sale Price on the Trading Day immediately
preceding the date such distribution is first publicly announced by the
Company, then, in either case, the Notes may be surrendered for
conversion at any time on and after the date that the Company gives
notice of such distribution to the Holders, which shall be not less
than 20 days prior to the Ex-Dividend Time for such distribution, until
the earlier of the close of business on the Business Day immediately
preceding, but not including, the Ex-Dividend Time or the date the
Company publicly announces that such distribution will not take place
(but only to the extent such period occurs during the period specified
in paragraph 8 of the Notes); provided that no adjustment to the
Conversion Rate or the ability of the Holder of a Note to convert will
be made if the Holder will otherwise participate in such distribution
without conversion; or
(ii) the Company consolidates with or merges with or into
another Person or is a party to a binding share exchange or conveys,
transfers, sells, leases or otherwise disposes of all or substantially
all of the assets of the Company and its Subsidiaries, taken as a
whole, then the Notes may be surrendered for conversion, if during the
period specified in paragraph 8 of the Notes, at any time from and
after the date 15 days prior to the anticipated effective date of the
transaction and ending on and including the date 15 days after the
consummation of the transaction. The Board of Directors shall determine
the anticipated effective date of the transaction, and such
61
determination shall be conclusive and binding on the Holders and shall
be publicly announced by the Company and posted on its web site or
notified to the Holders by the Company or, at the Company's request,
the Trustee in the name and at the expense of the Company, in either
case, not later than two Business Days prior to such 15th day. For the
avoidance of doubt, if such transaction constitutes a Change in
Control, the Holders may exercise their rights under Section 1110.
SECTION 1502. Conversion Procedure.
To convert a Note, a Holder must satisfy the requirements in
paragraph 8 of the Notes. The date on which the Holder satisfies all
those requirements is the conversion date (the "Conversion Date").
In the case of any conversion other than a Principal Value
Conversion (which is covered by Section 1501):
(i) Each Holder's rights to convert Notes into Common
Stock are subject to the Company's right to elect instead to pay each
such Holder the amount of cash determined pursuant to item (iii) below
(or a combination of cash and shares of Common Stock) in lieu of
delivering such Common Stock; provided, however, that if an Event of
Default (other than a Default in a cash payment upon conversion of the
Notes) shall have occurred and be continuing, the Company shall deliver
Common Stock in accordance with this Article Fifteen, whether or not
the Company has delivered a notice pursuant to item (ii) below to the
effect that the Notes would be paid in cash or a combination of cash
and Common Stock.
(ii) Within two Business Days following the Conversion
Date, the Company shall deliver to the Holder, through the Conversion
Agent, written notice of whether such Notes shall be converted into
Common Stock or paid in cash or a combination of cash and Common Stock
(unless the Company shall have already done so pursuant to a notice of
redemption pursuant to paragraph 7 of the Notes in respect of a
Conversion Date occurring before the Redemption Date set forth in such
notice). The Company shall deliver to the Holder through the Conversion
Agent, no later than the third Business Day following the date on which
the Applicable Stock Price is determined, the whole shares of Common
Stock issuable upon the conversion, cash in lieu of such Common Stock
and/or cash in lieu of any fractional shares pursuant to Section 1503,
in each case, as applicable according to the foregoing notice and this
Section 1502. As soon as practicable on or after such third Business
Day, the Company shall deliver to each Holder entitled to receive whole
62
shares of Common Stock upon conversion, through the Paying Agent, a
certificate for such whole shares of Common Stock.
(iii) If the Company shall have notified the Holder that
all or a portion of such Note shall be converted solely into cash, the
Company shall deliver to the Holder surrendering such Note the amount
of cash equal to (A) the Applicable Stock Price multiplied by (B) the
Conversion Rate in effect with respect to such Conversion Date
multiplied by (C) the multiple of $1,000 that equals the Principal
Amount of such Note (or a portion of a Note). Except as required by
item (i) above, the Company may not change its election with respect to
the consideration to be delivered upon conversion of a Note once the
Company has notified the Holder in accordance with item (ii) above.
Anything herein to the contrary notwithstanding, in the case of Global
Notes, conversion notices may be delivered and such Notes 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 a certificate is registered
representing Common Stock issued upon conversion of a Note shall be
treated as a shareholder of record as of the Conversion Date; provided,
however, that no surrender of a Note 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 shares of
Common Stock upon such conversion as the record holder or holders of
such shares of Common Stock on such date, but such surrender (assuming
all other requirements in paragraph 8 of the Notes have been satisfied)
shall be effective to constitute the Person or Persons entitled to
receive such shares of Common Stock 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 Note shall have been surrendered for conversion
(assuming all other requirements in paragraph 8 of the Notes have been
satisfied), as if the stock transfer books of the Company had not been
closed. Upon conversion of a Note, such Person shall no longer be a
Holder of such Note.
If the Holder converts more than one Note at the same time,
the number of shares of Common Stock issuable upon the conversion shall
be computed based on the total Principal Amount of the Notes converted.
63
Upon surrender of a Note that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver
to the Holder, a new Note in an authorized denomination equal in
Principal Amount to the unconverted portion of the Note surrendered.
If the last day on which a Note may be converted is a Legal
Holiday in a place where the Conversion Agent is located, the Note may
be surrendered to such Conversion Agent on the next succeeding day that
is not a Legal Holiday.
SECTION 1503. Fractional Shares.
The Company will not issue a fractional share of Common Stock
upon conversion of a Note. Instead, the Company will pay cash for the
current market value of the fractional share. The current market value
of a fractional share shall be determined to the nearest 1/1,000th of a
share by multiplying the Sale Price, on the last Trading Day prior to
the Conversion Date, of a full share by the fractional amount and
rounding the product to the nearest whole cent.
SECTION 1504. Taxes on Conversion
If a Holder converts a Note, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of
shares of Common Stock upon such conversion. The Holder, however, shall
pay any such tax that is due because the Holder requests the shares to
be issued in a name other than the Holder's name. The Conversion Agent
may, and, if so instructed by the Company, shall, refuse to deliver the
certificates representing the Common Stock 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 regulations.
SECTION 1505. Company to Provide Stock.
The Company shall, prior to issuance of any Notes hereunder,
and from time to time as may be necessary, reserve out of its
authorized but unissued Common Stock a sufficient number of shares of
Common Stock to permit the conversion of the Notes into shares of
Common Stock.
64
All shares of Common Stock delivered upon conversion of the
Notes shall be newly issued shares or treasury shares, shall be duly
and validly issued and 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 offer and delivery of shares
of Common Stock upon conversion of Notes, if any, and will list or
cause to have quoted such shares of Common Stock on each national
securities exchange or in the over-the-counter market or such other
market on which the Common Stock is then listed or quoted.
SECTION 1506. Adjustment for Change in Capital Stock.
If, after the Issue Date, the Company:
(1) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock
into a greater number of shares;
(3) combines its outstanding shares of Common Stock into
a smaller number of shares;
(4) pays a dividend or makes a distribution on its Common
Stock in shares of its Capital Stock (other than Common Stock or
rights, warrants or options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any
shares of its Capital Stock (other than rights, warrants or options for
its Capital Stock),
then the conversion privilege and the Conversion Rate in effect
immediately prior to such action shall be adjusted so that the Holder
of a Note thereafter converted may receive the number of shares or
other units of Capital Stock of the Company that such Holder would have
owned immediately following such action if such Holder had converted
the Note immediately prior to such action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately
after the effective date in the case of a subdivision, combination or
reclassification.
65
If after an adjustment a Holder of a Note upon conversion of
such Note may receive shares or other units of two or more classes or
series of Capital Stock of the Company, the Conversion Rate shall
thereafter be subject to adjustment upon the occurrence of an action
taken with respect to any such class or series of Capital Stock as is
contemplated by this Article Fifteen with respect to the Common Stock,
on terms comparable to those applicable to Common Stock in this Article
Fifteen.
SECTION 1507. Adjustment for Rights Issue.
If, after the Issue Date, the Company distributes any rights,
warrants or options to all holders of its Common Stock entitling them,
for a period expiring within 60 days after the record date for such
distribution, to purchase shares of Common Stock or securities
convertible into Common Stock at a price per share less than the Sale
Price as of the Time of Determination, the Conversion Rate shall be
adjusted in accordance with the formula:
R1 = R x (O+N)
(O+(N x P)/M)
where:
R1 = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on
the record date for the distribution to which this Section
1507 is being applied.
N = the number of additional shares of Common Stock
offered pursuant to the distribution.
P = the offering price per share of such additional
shares.
M = the Average Sale Price, minus, for any (i)
distribution to which Section 1506(4) applies or (ii)
distribution to which Section 1508 applies, for which, in each
case, (x) the record date shall occur on or before the record
date for the distribution to which this Section 1507 applies
and (y) the Ex-Dividend Time shall occur on or after the date
of the Time of Determination for the distribution to which
this Section 1507 applies, the Fair Market Value (on the
66
record date for the distribution to which this Section 1507
applies) of the
(1) Capital Stock of the Company distributed in respect
of each share of Common Stock in such Section 1506(4) distribution, and
(2) assets of the Company or debt securities or any
rights, warrants or options to purchase securities of the Company
distributed in respect of each share of Common Stock in such Section
1508 distribution.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights,
warrants or options to which this Section 1507 applies.
No adjustment shall be made under this Section 1507 if the
application of the formula stated above in this Section 1507 would
result in a value of R1 that is equal to or less than the value of R.
SECTION 1508. Adjustment for Other Distributions.
If, after the Issue Date, the Company distributes to all
holders of its Common Stock any of its assets or debt securities or any
rights, warrants or options to purchase securities of the Company
(including securities or cash, but excluding (x) distributions of
Capital Stock referred to in Section 1506 and distributions of rights,
warrants or options referred to in Section 1507 and (y) cash dividends
or other cash distributions that are paid out of consolidated current
net income or earnings retained in the business as shown on the books
of the Company), the Conversion Rate shall be adjusted, subject to the
provisions of the last paragraph of this Section 1508, in accordance
with the formula:
R1 = R x M
M-F
where:
R1 = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, for any distribution to which
Section 1506(4) applies for which (i) the record date shall occur on or
before the record date for the distribution to which this Section
67
1508 applies and (ii) the Ex-Dividend Time shall occur on or after the
date of the Time of Determination for the distribution to which this
Section 1508 applies, the Fair Market Value (on the record date for the
distribution to which this Section 1508 applies) of any Capital Stock
of the Company distributed in respect of each share of Common Stock in
such Section 1506(4) distribution.
F = the Fair Market Value (on the record date for the distribution
to which this Section 1508 applies) of the assets, securities, rights,
warrants or options to be distributed in respect of each share of
Common Stock in the distribution to which this Section 1508 is being
applied (including, in the case of cash dividends or other cash
distributions giving rise to an adjustment, all such cash distributed
concurrently).
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the
distribution to which this Section 1508 applies.
For purposes of this Section 1508, the term "Extraordinary Cash
Dividend" shall mean any cash dividend with respect to the Common Stock
the amount of which, together with (i) the amounts of all cash
dividends on the Common Stock with Ex-Dividend Times occurring in the
twelve-month period ending on the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being
applied and (ii) the amounts of all repurchases of the type described
in Section 1509 occurring in the twelve-month period ending on the date
prior to the Ex-Dividend Time with respect to the cash dividend to
which this provision is being applied for which no adjustment pursuant
to this Article Fifteen has been made, equals or exceeds 5.0% of the
Company's Market Capitalization on the date of the cash dividend to
which this provision is being applied, such cash dividend together with
each other cash dividend with an Ex-Dividend Time occurring in such
twelve-month period shall be deemed to be an Extraordinary Cash
Dividend and for purposes of applying the formula set forth above in
this Section 1508, the value of "F" shall be equal to (w) the aggregate
amount of such cash dividend together with the amounts of the other
cash dividends with Ex-Dividend Times occurring in such period minus
(x) the aggregate amount of such other cash dividends with Ex-Dividend
Times occurring in such period for which a prior adjustment in the
Conversion Rate was previously made under this Section 1508.
In making the determinations required by the immediately
preceding paragraph, the amount of cash dividends paid on a per
68
share basis and the average of the Sale Prices, in each case during the
period specified in the immediately preceding paragraph, shall be
appropriately adjusted to reflect the occurrence during such period of
any event described in Section 1506.
In the event that, with respect to any distribution to which
this Section 1508 would otherwise apply, the difference "M-F" as
defined in the above formula is less than $1.00 or "F" is equal to or
greater than "M," then the adjustment provided by this Section 1508
shall not be made and in lieu thereof the provisions of Section 1515
shall apply to such distribution.
SECTION 1509. Adjustment for Repurchases.
In case the Company or any of its Subsidiaries shall
repurchase (including by way of tender offer) shares of Common Stock,
and the Fair Market Value of the sum of (i) the aggregate consideration
paid for such Common Stock, (ii) the aggregate cash dividends and
distributions of the type described in clause (y) of Section 1508 paid
within the twelve months preceding the date of purchase of such shares
of Common Stock in respect of which no adjustment pursuant to any
section of this Article Fifteen previously has been made, and (iii) the
aggregate of any amounts previously paid for the repurchase of Common
Stock of a type described in this Section 1509 within the twelve months
preceding the date of purchase of such shares of Common Stock in
respect of which no adjustment pursuant to any section of this Article
Fifteen previously has been made, exceeds 5.0% of Market Capitalization
on the date of, and after giving effect to, such repurchase, then the
Conversion Rate shall be adjusted in accordance with the formula:
R1 = R x M
M - P O-S
where:
R1 = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price.
P = the excess, if any, of the aggregate repurchase price paid for
all shares of Common Stock that are the subject of such repurchase over
the aggregate value of such shares calculated at the Average Sale
Price.
69
O = the number of shares of Common Stock outstanding prior to
such repurchase.
S = the number of shares of Common Stock that are the subject
of such repurchase
The adjustment shall become effective immediately after the
trade date for the repurchase.
SECTION 1510. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the
adjustment would require an increase or decrease of at least 1% (e.g.,
if the Conversion Rate is 4, an increase or decrease of .04 (1% of 4))
in the Conversion Rate. Any adjustments that are not made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Article Fifteen shall be made to
the nearest cent or to the nearest 1/1,000th of a share, as the case
may be, with one-half of a cent and 5/10,000ths of a share being
rounded upwards.
SECTION 1511. When No Adjustment Required.
No adjustment need be made for a transaction referred to in
Section 1506, 1507, 1508, 1509 or 1515 if Holders are to participate in
the transaction on a basis and with notice that the Board of Directors
determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction.
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no
par value of the Common Stock.
To the extent the Notes become convertible into cash pursuant
to the terms of Section 1508 or 1515, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash.
Notwithstanding any provision to the contrary in this
Indenture, no adjustment shall be made in the Conversion Rate to the
extent, but only to the extent, such adjustment results in the
70
following quotient being less than the par value of the Common Stock:
(i) the Principal Amount divided by (ii) the Conversion Rate as so
adjusted.
SECTION 1512. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall
file with the Trustee and the Conversion Agent a notice of such
adjustment and a certificate from the Company's independent public
accountants briefly stating the facts requiring the adjustment and the
manner of computing it. The Conversion Agent will promptly mail such
notice to Holders at the Company's expense. The certificate shall be
conclusive evidence that the adjustment is correct. Neither the Trustee
nor any Conversion Agent shall be under any duty or responsibility with
respect to any such certificate except to exhibit the same to any
Holder desiring inspection thereof.
SECTION 1513. Voluntary Increase.
The Company from time to time may increase the Conversion Rate
by any amount and for any period of time; provided that such period is
not less than 20 Business Days. Whenever the Conversion Rate is
increased, the Company shall mail to Holders and file with the Trustee
and the Conversion Agent a notice of the increase. The Company shall
mail the notice at least 15 days before the date the increased
Conversion Rate takes effect. The notice shall state the increased
Conversion Rate and the period it will be in effect.
A voluntary increase of the Conversion Rate does not change or
adjust the Conversion Rate otherwise in effect for purposes of Section
1506, 1507, 1508 or 1509.
SECTION 1514. Notice of Certain Transactions.
If:
(1) the Company takes any action that would
require an adjustment in the Conversion Rate pursuant to Section 1506,
1507, 1508 or 1509 (unless no adjustment is to occur pursuant to
Section 1511); or
(2) the Company takes any action that would
require a supplemental indenture pursuant to Section 1515; or
(3) there is a liquidation or dissolution of the
Company,
71
then the Company shall mail to Holders and file with the
Trustee and the Conversion Agent a notice stating the proposed record
date for a dividend or distribution of the proposed effective date of a
subdivision, combination, reclassification, consolidation, merger,
binding share exchange, transfer, liquidation or dissolution. The
Company shall file and mail the notice at least 15 days before such
date. Failure to file or mail the notice or any defect in it shall not
affect the validity of the transaction.
SECTION 1515. Reorganization of Company; Special
Distributions.
If the Company is a party to a transaction subject to Section
801 (other than a sale of all or substantially all of the assets of the
Company in a transaction in which the holders of Common Stock
immediately prior to such transaction do not receive securities, cash
or other assets of the Company or any other Person) or a merger or
binding share exchange that reclassifies or changes its outstanding
Common Stock (including by resulting in the Company's becoming a
subsidiary of a Parent Holding Company), the Person obligated to
deliver securities, cash or other assets upon conversion of Notes shall
enter into a supplemental indenture. If the issuer of securities
deliverable upon conversion of Notes is an Affiliate of the successor
Company, that issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a
Note may convert it into the kind and amount of securities, cash or
other assets which such Holder would have received immediately after
the consolidation, merger, binding share exchange or transfer if such
Holder had converted the Note immediately before the effective date of
the transaction, assuming (to the extent applicable) that such Holder
(i) was not a constituent Person or an Affiliate of a constituent
Person to such transaction; (ii) made no election with respect thereto;
and (iii) was treated alike with the plurality of non-electing Holders.
The supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practical to the adjustments provided
for in this Article Fifteen. The successor Company shall mail to
Holders a notice briefly describing the supplemental indenture.
If this Section 1515 applies, none of Sections 1506, 1507,
1508 or 1509 shall apply.
If the Company makes a distribution to all holders of its
Common Stock of any of its assets, or debt securities or any rights,
warrants or options to purchase securities of the Company that, but
72
for the provisions of the last paragraph of Section 1508, would
otherwise result in an adjustment in the Conversion Rate pursuant to
the provisions of Section 1508, then, from and after the record date
for determining the holders of Common Stock entitled to receive the
distribution, a Holder of a Note that converts such Note in accordance
with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common Stock into
which the Note is convertible, the kind and amount of securities, cash
or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Note immediately prior to the
record date for determining the holders of Common Stock entitled to
receive the distribution.
SECTION 1516. Rights Issued Under the Outstanding Rights
Agreement; Future Stockholder Rights Plans.
The Company has entered into a Rights Agreement dated as of
September 13, 2001 (the "Rights Agreement") with American Stock
Transfer & Trust Company. Under the Rights Agreement, preferred share
purchase rights (the "Rights") have been, and may in the future be,
issued in respect of shares of Common Stock. The Rights Agreement
provides that, upon conversion, Holders of Notes will receive, in
addition to the shares of Common Stock issuable upon such conversion,
the Rights attached to such shares or, if the Rights have separated
from the Common Stock, the Rights that would have attached to such
shares had the Rights not become separated. There shall be no
adjustment pursuant to this Article Fifteen in connection with the
distribution, separation, exercise or other action relating to the
Rights; provided, however, that, if the Rights Agreement is amended, or
the Company adopts another stockholder rights agreement of the nature
of the Rights Agreement, such that, upon separation of the Rights (or
rights under the future stockholder rights agreement) from the Common
Stock in accordance with the Rights Agreement (or future stockholder
rights agreement), Holders of Notes would not thereafter be entitled to
receive Rights (or rights under the future stockholder rights
agreement) in respect of the Common Stock issuable upon conversion, the
Conversion Rate will be adjusted as provided in Section 1507 on the
separation or rights distribution date, subject to readjustment in the
event of expiration, termination or redemption of the Rights or rights
under the future stockholder rights agreement (but, unless the
condition to this sentence does not hold, no adjustment pursuant to
this Article Fifteen in connection with the distribution, separation,
exercise or other action relating to the Rights or rights under the
future stockholder rights agreement shall be made).
73
SECTION 1517. Company Determination Final.
Any determination that the Company or the Board of Directors
must make pursuant to this Article Fifteen is conclusive in the absence
of manifest error.
SECTION 1518. Trustee's Adjustment Disclaimer.
The Trustee has no duty to determine when an adjustment under
this Article Fifteen should be made, how it should be made or what it
should be. The Trustee has no duty to determine whether a supplemental
indenture under Section 1515 need be entered into or whether any
provisions of any supplemental indenture are correct. The Trustee shall
not be accountable for and makes no representation as to the validity
or value of any securities or assets issued upon conversion of Notes.
The Trustee shall not be responsible for the Company's failure to
comply with this Article Fifteen. Each Conversion Agent (other than the
Company or an Affiliate of the Company) shall have the same protection
under this Section 1518 as the Trustee.
SECTION 1519. Simultaneous Adjustments.
If this Article Fifteen requires adjustments to the Conversion
Rate under more than one of Sections 1506(4), 1507 or 1508, and the
record dates for the distributions giving rise to such adjustments
shall occur on the same date, then such adjustments shall be made by
applying, first, the provisions of Section 1506, second, the provisions
of Section 1508 and, third, the provisions of Section 1507.
SECTION 1520. Successive Adjustments.
After an adjustment to the Conversion Rate under this Article
Fifteen, any subsequent event requiring an adjustment under this
Article Fifteen shall cause an adjustment to the Conversion Rate as so
adjusted.
Section 1.12. Effect of Article One. The supplements to the Original
Indenture set forth in Article One of this Sixth Supplemental Indenture affect
only the provisions of the Original Indenture as such provisions relate to the
Notes, the series of Securities comprised of the Notes and the rights, remedies
and obligations of the Company, the Subsidiary Guarantors, the Holders of Notes,
the Trustee and other Persons set forth in the Original Indenture as such
rights, remedies and obligations relate to the Notes.
74
ARTICLE 2
THE NOTES
Section 2.01. Form and Terms. The Notes shall be issued in the form of
one or more permanent global Notes substantially in the form set forth on
Exhibit A hereto, duly executed by the Company and authenticated by the Trustee
as provided in the Indenture. The terms of the Notes set forth on Exhibit A
hereto are incorporated by reference herein as if set forth herein in their
entirety.
Section 2.02. Designation and Amount.
(a) The Notes shall be entitled the "3 1/4% Senior Convertible Notes
Due 2033" of the Company.
(b) The Trustee shall authenticate and deliver Notes for original issue
on the Issue Date in an aggregate Principal Amount of $250,000,000 upon Company
Order for the authentication and delivery of Notes, without any further action
by the Company; provided, however, that in the event the Company sells any Notes
pursuant to the option granted pursuant to the Purchase Agreement, then the
Trustee shall authenticate and deliver additional Notes for original issue on or
after the Issue Date in an aggregate Principal Amount of up to $50,000,000
aggregate Principal Amount of Notes, upon Company Order for the authentication
and delivery of Notes, without any further action by the Company. The aggregate
Principal Amount of Notes that may be authenticated and delivered under the
Indenture for original issue may not exceed the amount set forth in the
foregoing sentence, subject to the proviso thereto.
(c) The Company may not issue new Notes to replace Notes that it has
paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article Fifteen.
Section 2.03. Registered Securities. The Notes shall be Registered
Securities.
ARTICLE 3
REPRESENTATIONS OF THE COMPANY
Section 3.01. Authority of the Company. The Company is duly authorized
to execute and deliver this Sixth Supplemental Indenture, and all corporate
action on its part required for the execution and delivery of this Sixth
Supplemental Indenture has been duly and effectively taken.
Section 3.02. Truth of Recitals and Statements. The Company warrants
that the recitals of fact and statements contained in this Sixth Supplemental
75
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished thereunder will be
true and correct.
ARTICLE 4
CONCERNING THE TRUSTEE
Section 4.01. Acceptance of Trusts. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and conditions
set forth in the Original Indenture and in this Sixth Supplemental Indenture, to
all of which the Company and the respective Holders of the Notes at any time
hereafter Outstanding agree by their acceptance thereof.
Section 4.02. No Responsibility of Trustee for Recitals, Etc. The
recitals and statements contained in this Sixth Supplemental Indenture shall be
taken as the recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Sixth Supplemental
Indenture, except that the Trustee is duly authorized by all necessary corporate
actions to execute and deliver this Sixth Supplemental Indenture.
ARTICLE 5
MISCELLANEOUS PROVISIONS
Section 5.01. Relation to the Original Indenture. The provisions of
this Sixth Supplemental Indenture shall become effective immediately upon the
execution and delivery hereof. This Sixth Supplemental Indenture and all the
terms and provisions herein contained shall form a part of the Original
Indenture as fully and with the same effect as if all such terms and provisions
had been set forth in the Original Indenture; provided, however, such terms and
provisions shall be so included in this Sixth Supplemental Indenture solely for
the benefit of the Company, the Subsidiary Guarantors, the Trustee and the
Holders of the Notes. The Original Indenture is hereby ratified and confirmed
and shall remain and continue in full force and effect in accordance with the
terms and provisions thereof, as supplemented by this Sixth Supplemental
Indenture and as otherwise supplemented with applicability with respect to the
Notes, and the Original Indenture (as otherwise supplemented with applicability
with respect to the Notes) and this Sixth Supplemental Indenture shall be read,
taken and construed together as one instrument.
Section 5.02. Meaning of Terms. Any term used in this Sixth
Supplemental Indenture which is defined in the Original Indenture shall have the
meaning specified in the Original Indenture (as otherwise supplemented with
applicability with respect to the Notes), unless the context shall otherwise
require.
76
Section 5.03. Counterparts of Supplemental Indenture. This Sixth
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instruments.
Section 5.04. Governing Law. This Sixth Supplemental Indenture and the
Notes shall be governed by and construed in accordance with the laws of the
State of New York.
77
IN WITNESS WHEREOF, Pride International, Inc. has caused this Sixth
Supplemental Indenture to be executed in its corporate name by a duly authorized
officer and JPMorgan Chase Bank has caused this Sixth Supplemental Indenture to
be executed by a duly authorized officer, all as of the date first above
written.
PRIDE INTERNATIONAL, INC.
By: /s/ Xxxx X. XxXxxx
--------------------------------------------
Xxxx X. XxXxxx
Vice President and Chief Financial Officer
JPMORGAN CHASE BANK, as Trustee
BY: /s/ X. X'Xxxxx
--------------------------------------------
Name: X. X'Xxxxx
Title: Vice President
ANNEX 1
PROJECTED PAYMENT SCHEDULE
-----------------------------------------------------------------------------------------
Number of Trigger Met? Non-
Semi-Annual (Yes=1, Contingent Contingent
Date Periods Stock Price Bond Price No=0) Payment Payment
-----------------------------------------------------------------------------------------
3/28/2003 14.28 1,000.00
11/15/2003 1.26 15.04 1,000.00 (20.49)
5/15/2004 1.00 15.68 1,000.00 (16.25)
11/15/2004 1.00 16.34 1,000.00 (16.25)
5/15/2005 1.00 17.02 1,000.00 (16.25)
11/15/2005 1.00 17.74 1,000.00 (16.25)
5/15/2006 1.00 18.49 1,000.00 (16.25)
11/15/2006 1.00 19.27 1,000.00 (16.25)
5/15/2007 1.00 20.08 1,000.00 (16.25)
11/15/2007 1.00 20.92 1,000.00 (16.25)
5/15/2008 1.00 21.81 1,000.00 0 (16.25)
11/15/2008 1.00 22.72 1,000.00 0 - (16.25)
5/15/2009 1.00 23.68 1,000.00 0 - (16.25)
11/15/2009 1.00 24.68 1,000.00 0 - (16.25)
5/15/2010 1.00 25.72 1,000.55 0 - (16.25)
11/15/2010 1.00 26.80 1,042.69 0 - (16.25)
5/15/2011 1.00 27.93 1,086.60 0 - (16.25)
11/15/2011 1.00 29.11 1,132.37 0 - (16.25)
5/15/2012 1.00 30.33 1,180.06 0 - (16.25)
11/15/2012 1.00 31.61 1,229.76 1 - (16.25)
5/15/2013 1.00 32.94 1,281.55 1 (3.07) (16.25)
11/15/2013 1.00 34.33 1,335.53 1 (3.20) (16.25)
5/15/2014 1.00 35.77 1,391.78 1 (3.34) (16.25)
11/15/2014 1.00 37.28 1,450.39 1 (3.48) (16.25)
5/15/2015 1.00 38.85 1,511.48 1 (3.63) (16.25)
11/15/2015 1.00 40.49 1,575.14 1 (3.78) (16.25)
5/15/2016 1.00 42.19 1,641.48 1 (3.94) (16.25)
11/15/2016 1.00 43.97 1,710.62 1 (4.10) (16.25)
5/15/2017 1.00 45.82 1,782.66 1 (4.28) (16.25)
11/15/2017 1.00 47.75 1,857.74 1 (4.46) (16.25)
5/15/2018 1.00 49.76 1,935.98 1 (4.64) (16.25)
11/15/2018 1.00 51.86 2,017.52 1 (4.84) (16.25)
5/15/2019 1.00 54.04 2,102.49 1 (5.04) (16.25)
11/15/2019 1.00 56.32 2,191.05 1 (5.26) (16.25)
5/15/2020 1.00 58.69 2,283.33 1 (5.48) (16.25)
11/15/2020 1.00 61.16 2,379.49 1 (5.71) (16.25)
5/15/2021 1.00 63.74 2,479.71 1 (5.95) (16.25)
11/15/2021 1.00 66.42 2,584.15 1 (6.20) (16.25)
5/15/2022 1.00 69.22 2,692.99 1 (6.46) (16.25)
11/15/2022 1.00 72.14 2,806.41 1 (6.73) (16.25)
5/15/2023 1.00 75.17 2,924.60 1 (7.02) (16.25)
11/15/2023 1.00 78.34 3,047.78 1 (7.31) (16.25)
5/15/2024 1.00 81.64 3,176.14 1 (7.62) (16.25)
11/15/2024 1.00 85.08 3,309.91 1 (7.94) (16.25)
5/15/2025 1.00 88.66 3,449.32 1 (8.27) (16.25)
11/15/2025 1.00 92.40 3,594.59 1 (8.62) (16.25)
5/15/2026 1.00 96.29 3,745.99 1 (8.99) (16.25)
11/15/2026 1.00 100.34 3,903.76 1 (9.36) (16.25)
5/15/2027 1.00 104.57 4,068.17 1 (9.76) (16.25)
11/15/2027 1.00 108.97 4,239.51 1 (10.17) (16.25)
5/15/2028 1.00 113.56 4,418.07 1 (10.60) (16.25)
11/15/2028 1.00 118.34 4,604.14 1 (11.05) (16.25)
5/15/2029 1.00 123.33 4,798.06 1 (11.51) (16.25)
11/15/2029 1.00 128.52 5,000.14 1 (12.00) (16.25)
5/15/2030 1.00 133.94 5,210.73 1 (12.50) (16.25)
11/15/2030 1.00 139.58 5,430.19 1 (13.03) (16.25)
5/15/2031 1.00 145.46 5,658.89 1 (13.58) (16.25)
11/15/2031 1.00 151.58 5,897.23 1 (14.15) (16.25)
5/15/2032 1.00 157.97 6,145.60 1 (14.74) (16.25)
11/15/2032 1.00 164.62 6,404.44 1 (15.36) (16.25)
5/15/2033 1.00 171.55 6,674.17 1 (16.01) (16.25)
-----------------------------------------------------------------------------------------
---------------------------------------------------------------
Payment
Upon
Conversion Discount Present
Immediately Factor using Value to
Prior to Total Comparable Total
Date Maturity Payments Yield Payments
---------------------------------------------------------------
3/28/2003 1,000.00 1.00 1,000.00
11/15/2003 (20.49) 0.95 (19.47)
5/15/2004 (16.25) 0.91 (14.83)
11/15/2004 (16.25) 0.88 (14.24)
5/15/2005 (16.25) 0.84 (13.68)
11/15/2005 (16.25) 0.81 (13.14)
5/15/2006 (16.25) 0.78 (12.62)
11/15/2006 (16.25) 0.75 (12.12)
5/15/2007 (16.25) 0.72 (11.64)
11/15/2007 (16.25) 0.69 (11.18)
5/15/2008 (16.25) 0.66 (10.73)
11/15/2008 (16.25) 0.63 (10.31)
5/15/2009 (16.25) 0.61 (9.90)
11/15/2009 (16.25) 0.59 (9.51)
5/15/2010 (16.25) 0.56 (9.13)
11/15/2010 (16.25) 0.54 (8.77)
5/15/2011 (16.25) 0.52 (8.42)
11/15/2011 (16.25) 0.50 (8.09)
5/15/2012 (16.25) 0.48 (7.77)
11/15/2012 (16.25) 0.46 (7.46)
5/15/2013 (19.32) 0.44 (8.52)
11/15/2013 (19.45) 0.42 (8.24)
5/15/2014 (19.59) 0.41 (7.97)
11/15/2014 (19.73) 0.39 (7.70)
5/15/2015 (19.88) 0.38 (7.45)
11/15/2015 (20.03) 0.36 (7.21)
5/15/2016 (20.19) 0.35 (6.98)
11/15/2016 (20.35) 0.33 (6.76)
5/15/2017 (20.53) 0.32 (6.55)
11/15/2017 (20.71) 0.31 (6.34)
5/15/2018 (20.89) 0.29 (6.15)
11/15/2018 (21.09) 0.28 (5.96)
5/15/2019 (21.29) 0.27 (5.78)
11/15/2019 (21.51) 0.26 (5.61)
5/15/2020 (21.73) 0.25 (5.44)
11/15/2020 (21.96) 0.24 (5.28)
5/15/2021 (22.20) 0.23 (5.13)
11/15/2021 (22.45) 0.22 (4.98)
5/15/2022 (22.71) 0.21 (4.84)
11/15/2022 (22.98) 0.20 (4.70)
5/15/2023 (23.27) 0.20 (4.57)
11/15/2023 (23.56) 0.19 (4.44)
5/15/2024 (23.87) 0.18 (4.32)
11/15/2024 (24.19) 0.17 (4.21)
5/15/2025 (24.52) 0.17 (4.10)
11/15/2025 (24.87) 0.16 (3.99)
5/15/2026 (25.24) 0.15 (3.89)
11/15/2026 (25.61) 0.15 (3.79)
5/15/2027 (26.01) 0.14 (3.70)
11/15/2027 (26.42) 0.14 (3.61)
5/15/2028 (26.85) 0.13 (3.52)
11/15/2028 (27.30) 0.13 (3.44)
5/15/2029 (27.76) 0.12 (3.36)
11/15/2029 (28.25) 0.12 (3.28)
5/15/2030 (28.75) 0.11 (3.21)
11/15/2030 (29.28) 0.11 (3.14)
5/15/2031 (29.83) 0.10 (3.07)
11/15/2031 (30.40) 0.10 (3.00)
5/15/2032 (30.99) 0.09 (2.94)
11/15/2032 (31.61) 0.09 (2.88)
5/15/2033 (6,674.17) (6,706.43) 0.09 (586.96)
---------------------------------------------------------------
TOTAL PV 0.00
---------------------------------------------------------------
1-1
EXHIBIT A
[FORM OF FACE OF NOTE]
PRIDE INTERNATIONAL, INC.
3 1/4% CONVERTIBLE SENIOR
NOTE DUE 2033
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR U.S. FEDERAL INCOME TAX
PURPOSES. FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THE ISSUE PRICE OF EACH NOTE IS $1,000 PER $1,000 OF PRINCIPAL AMOUNT, THE ISSUE
DATE IS APRIL 28, 2003 AND THE COMPARABLE YIELD IS 8.25%, COMPOUNDED
SEMI-ANNUALLY. HOLDERS OF THIS NOTE MAY OBTAIN INFORMATION REGARDING THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT, YIELD TO MATURITY AND THE PROJECTED PAYMENT SCHEDULE
FOR THIS NOTE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: PRIDE
INTERNATIONAL, INC., CHIEF FINANCIAL OFFICER, 0000 XXX XXXXXX, XXXXX 0000,
XXXXXXX, XXXXX 00000.
[ADD LEGENDS REQUIRED BY SECTION 305 OF THE INDENTURE REFERRED TO ON THE OTHER
SIDE OF THIS NOTE]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE 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. THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), SHALL
ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST THEREIN.]*
-----------------------
* On Global Notes only.
A-1
CUSIP No. [ ]
No. $ _____________________
Pride International, Inc., a Delaware corporation, promises to pay to
_____________, or registered assigns, the Principal Amount of
_________________________________ Dollars[, or such greater or lesser amount as
indicated on the Schedule of Exchanges hereto,]* on May 1, 2033.
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this Note. All
capitalized terms used herein without definition shall have the respective
meanings assigned thereto in the Indenture referred to on the other side of this
Note.
Additional provisions of this Note are set forth on the other side of
this Note.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
A-2
Dated: ________________
PRIDE INTERNATIONAL, INC.
[SEAL] By:___________________________
Name:
Title:
ATTEST:
__________________________
Name:
Title:
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:________________________
Authorized Officer
A-3
[FORM OF REVERSE SIDE OF NOTE]
3 1/4% CONVERTIBLE SENIOR
NOTE DUE 2033
1. Interest
Pride International, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the Principal Amount of this Note at the rate per
annum shown above. The Company shall pay such interest semi-annually in arrears
on May 1 and November 1 of each year, commencing November 1, 2003. Interest will
be paid on each Interest Payment Date to the Holder as of the immediately
preceding Regular Record Date, even if such Interest Payment Date is a
Redemption Date, Repurchase Date or Change in Control Purchase Date, but subject
to the other provisions of this Note and the Indenture. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from April 28, 2003. Contingent interest on the Notes
will accrue as provided in Section 1001 of the Indenture for any six-month
interest period from May 1 to October 31 or November 1 to April 30 commencing on
or after May 1, 2008 for which the Trading Price for each of the five Trading
Days immediately preceding the first day of such six-month interest period
equals 120% or more of $1,000 per $1,000 Principal Amount of Notes and will be
treated like any other interest accruing on the Notes. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. The Company promises to
pay interest at the rate of 4 1/4% per annum on overdue principal, premium, if
any, and (to the extent that payment of such interest is enforceable under
applicable law) interest on the Notes.
2. Method of Payment
Subject to the surrender contemplated by this sentence and the other
terms and conditions of the Indenture, the Company will make payments of the
Redemption Price, Purchase Price, Change in Control Purchase Price and Principal
Amount at Stated Maturity to the Holders that surrender Notes to a Paying Agent
to collect such payments in respect of the Notes, together with accrued and
unpaid interest to but excluding the Repurchase Date or through and including
the Repurchase Date or Change in Control Purchase Date, as the case may be;
provided that, if any Redemption Date, Repurchase Date or Change in Control
Purchase Date is an Interest Payment Date, accrued and unpaid interest to but
excluding the Repurchase Date or through and including the Repurchase Date or
Change in Control Purchase Date, as the case may be, shall be paid to the Holder
as of the immediately preceding Regular Record Date notwithstanding such
Redemption Date, Repurchase Date or Change in Control Purchase Date. The Company
will pay cash amounts in money of The United States of America that at the time
of payment is legal tender for payment of public and private debts. The Company
will make such cash payments (i) by wire transfer of immediately available funds
with respect
A-4
to Notes held in book-entry form or Notes held in certificated form with an
aggregate Principal Amount in excess of $2,000,000 whose Holder has requested
such method of payment and provided wire transfer instructions to the Paying
Agent or (ii) by check payable in such money mailed to a Holder's registered
address with respect to any other certificated Notes.
3. Paying Agent, Conversion Agent and Security Registrar
Initially, JPMorgan Chase Bank, the Trustee under the Indenture, will
act as Paying Agent, Conversion Agent and Security Registrar. The Company may
appoint and change any Paying Agent, Conversion Agent or Security Registrar
without notice, other than notice to the Trustee, provided that the Company
shall maintain in the Borough of Manhattan, The City of New York, an office or
agency of the Security Registrar, Paying Agent or Conversion Agent. The Company
or any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent and/or Security Registrar.
4. Indenture
This Note is one of a duly authorized series of Securities of the
Company, designated as its 3 1/4% Convertible Senior Notes Due 2033, issued
under an Indenture dated as of May 1, 1997, as amended and supplemented by a
Sixth Supplemental Indenture dated as of the Issue Date and as otherwise
supplemented with applicability with respect to the Notes (as so amended and
supplemented, the "Indenture"), between the Company and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), except as provided in the Indenture. Capitalized terms
used herein or on the face hereof and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all such terms, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of those terms. Those terms are incorporated herein by reference.
The Notes are unsecured, general obligations of the Company limited to
an aggregate Principal Amount specified in the Indenture.
5. Redemption at the Option of the Company
No sinking fund is provided for the Notes.
On or after May 5, 2008, the Notes are redeemable for cash as a whole
at any time, or from time to time in part, at the option of the Company, at a
Redemption Price equal to 100% of the Principal Amount of Notes to be redeemed.
Such Redemption Price shall be paid in cash.
A-5
6. Purchase by the Company at the Option of the Holder upon a Change in Control;
Purchase by the Company at the Option of the Holder
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs, the Company shall, at the option of the Holder, become obligated
to repurchase all Notes for which a Change in Control Purchase Notice shall have
been delivered as provided in the Indenture and not withdrawn on the date that
is 35 Business Days after the occurrence of such Change in Control for a Change
in Control Purchase Price equal to 100% of the Principal Amount. Such Change in
Control Purchase Price shall be paid in cash.
Subject to the terms and conditions of the Indenture, the Company
shall, at the option of the Holder, become obligated to repurchase all Notes for
which a Repurchase Notice shall have been delivered as provided in the Indenture
and not withdrawn on any Repurchase Date for a Purchase Price equal to 100% of
the Principal Amount. Such Purchase Price may be paid, at the option of the
Company, in cash or by the issuance and delivery of shares of Common Stock or in
any combination thereof.
Holders have the right to withdraw any Change in Control Purchase
Notice or Repurchase Notice, as the case may be, by delivering to the Paying
Agent a written notice of withdrawal in accordance with the provisions of the
Indenture.
If cash (and/or securities if permitted by the Indenture) sufficient to
pay the Change in Control Purchase Price or Purchase Price, as the case may be,
of all Notes or portions thereof to be purchased as of the Change in Control
Purchase Date or the Repurchase Date, as the case may be, plus (unless such date
is an Interest Payment Date) accrued and unpaid interest through and including
such date, is deposited with the Paying Agent on the Business Day following such
date, then interest ceases to accrue on such Notes (or portions thereof) on and
after such date and the Holders thereof shall have no other rights as such
(other than the right to receive the Change in Control Purchase Price or
Purchase Price, as the case may be, according to the Indenture upon surrender of
such Note, plus accrued and unpaid interest through and including the Change in
Control Purchase Date or the Repurchase Date, as the case may be, subject always
to the right of Holders as of the immediate preceding Regular Record Date to
receive such accrued and unpaid interest if the Change in Control Purchase Date
or the Repurchase Date, as the case may be, is an Interest Payment Date). No
interest on the Notes to be purchased will be payable by the Company on any
Interest Payment Date subsequent to the Business Day following the Change in
Control Purchase Date or Repurchase Date, as the case may be, if the
requirements of the immediately preceding sentence are satisfied.
A-6
7. Notice of Redemption
Notice of redemption will be given in the manner provided in the
Indenture not less than 30 days nor more than 60 days prior to the Redemption
Date. If money sufficient to pay the Redemption Price of all Notes (or portions
thereof) to be redeemed on the Redemption Date, plus (unless the Redemption Date
is an Interest Payment Date) accrued and unpaid interest to but excluding the
Redemption Date, is deposited with the Paying Agent prior to or on the
Redemption Date, then interest ceases to accrue on such Notes or portions
thereof on and after such Redemption Date, and the Holders thereof shall have no
other rights as such (other than the right to receive the Redemption Price
according to the Indenture upon surrender of such Note, plus accrued and unpaid
interest to but excluding the Redemption Date, subject always to the right of
Holders as of the immediate preceding Regular Record Date to receive such
accrued and unpaid interest if the Redemption Date is an Interest Payment Date).
No interest on redeemed Notes will be payable by the Company on any Interest
Payment Date subsequent to the Redemption Date. Notes in denominations larger
than $1,000 of Principal Amount may be redeemed in part but only in integral
multiples of $1,000 of Principal Amount.
8. Conversion
Subject to the provisions of the Indenture and this paragraph 8 and to
the prior redemption or repurchase of any Note, a Holder of such Note may
convert it into Common Stock, but only before the close of business on May 1,
2033 and only upon the occurrence of one of the events set forth in Section 1501
of the Indenture. A Note in respect of which a Holder has delivered a Change in
Control Purchase Notice or Repurchase Notice exercising the option of such
Holder to require the Company to purchase such Note may be converted only if the
notice of exercise is withdrawn in accordance with the terms of the Indenture.
The number of shares of Common Stock to be delivered upon conversion of
a Note into Common Stock per $1,000 of Principal Amount shall be equal to the
Conversion Rate. The initial Conversion Rate is 38.9045 shares of Common Stock
per $1,000 Principal Amount, subject to adjustment in certain events described
in the Indenture. The Company will pay cash in lieu of any fractional share of
Common Stock. Each Holder's rights to convert Notes into Common Stock are
subject to the Company's right to elect instead to pay each such Holder the
amount of cash determined pursuant to Article Fifteen of the Indenture (or a
combination of cash and Common Stock) in lieu of delivering such Common Stock.
To convert a Note, a Holder must (i) complete and manually sign the
conversion notice on the back of the Note (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent (or
the office or agency referred to in Section 1002 of the Indenture) or, in the
case of a Global Note, deliver a conversion notice according to the procedures
of The Depository Trust Company ("DTC" or the "Depositary," which term includes
any
A-7
successor thereto), (ii) surrender the Note to a Conversion Agent by physical
delivery or, in the case of a Global Note, according to the procedures of the
Depositary, (iii) furnish appropriate endorsements and transfer documents if
required by the Conversion Agent, the Company or the Trustee, (iv) make any
payment required pursuant to the second succeeding paragraph and (v) pay any
transfer or similar tax, if required. Conversion through the Depositary's
book-entry conversion program is available for any Note that is held in an
account maintained at the Depositary by any financial institution that is a
participant in the Depositary.
A Holder may convert a portion of a Note if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. Except as provided in
the next paragraph, no Holder of Notes will be entitled, upon conversion of any
Note, to any actual cash payment or adjustment to the shares of Common Stock
into which such Note is convertible on account of accrued and unpaid interest or
on account of dividends on shares of Common Stock issued in connection with the
conversion the record date for which occurred prior to the Conversion Date. On
conversion of a Note, that portion of accrued and unpaid interest attributable
to the period from (x) the later of the Issue Date and the date on which
interest was last paid to (y) the Conversion Date with respect to the converted
Note 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 Common
Stock and any cash payment for fractional shares (or cash or a combination of
cash and Common Stock in lieu thereof as permitted by the Indenture) in exchange
for the Note being converted pursuant to the terms hereof, and the Fair Market
Value of such Common Stock and any cash payment for fractional shares (or cash
or a combination of cash and Common Stock in lieu thereof as permitted by the
Indenture) shall be treated as issued or paid, to the extent thereof, first in
exchange for the interest accrued through the Conversion Date, and the balance,
if any, of such Fair Market Value shall be treated as issued in exchange for the
Principal Amount of the Note being converted pursuant to the provisions hereof.
Notwithstanding the preceding paragraph, if the Conversion Date occurs
after the close of business on a Regular Record Date but prior to the opening of
business on the next succeeding Interest Payment Date, Holders of Notes at the
close of business on such Regular Record Date will receive the interest payment
on their Notes on the corresponding Interest Payment Date notwithstanding the
conversion. Such Notes, upon surrender for conversion, must be accompanied by
funds equal to the amount of interest payable on the Notes so converted;
provided that no such payment need be made if (1) the Company has specified a
Redemption Date that is after such Regular Record Date and prior to the next
Interest Payment Date, (2) the Company has specified a Change in Control
Purchase Date that is during such period or (3) only to the extent of overdue
interest, any overdue interest exists at the time of conversion with respect to
such Note. In addition, if the Conversion Date occurs on an Interest Payment
Date, the Notes to be converted, upon surrender for conversion, must be
accompanied by funds equal to the
A-8
dividends on the shares of Common Stock issued in connection with the conversion
the record date for which is the Conversion Date.
The Conversion Rate will be adjusted for (i) dividends or distributions
on Common Stock payable in Common Stock or other Capital Stock of the Company,
(ii) subdivisions, combinations or certain reclassifications of Common Stock,
(iii) distributions to all holders of Common Stock of certain rights, warrants
or options to purchase Common Stock or securities convertible into Common Stock
for a period expiring within 60 days after the applicable record date for such
distribution at a price per share less than the Sale Price at the Time of
Determination, (iv) distributions to all holders of Common Stock of assets or
debt securities of the Company or certain rights, warrants or options to
purchase securities of the Company (excluding distributions to which any of the
preceding three clauses apply and certain cash dividends or other cash
distributions), (v) cash distributions to substantially all holders of Common
Stock that, together with all other all-cash distributions and consideration
payable in respect of any tender or exchange offer by the Company or one of its
Subsidiaries for Common Stock made within the preceding twelve months, exceeds
5.0% of the Company' s aggregate Market Capitalization on the date of the
distribution, and (vi) repurchases (including by way of a tender offer) of
Common Stock which involve an aggregate consideration that, together with (a)
any cash and other consideration payable in respect of any tender or exchange
offer by the Company or one of its Subsidiaries for Common Stock concluded
within the preceding twelve months and (b) the amount of any all-cash
distributions to all holders of Common Stock made within the preceding twelve
months, exceeds 5.0% of the Company's aggregate Market Capitalization on the
date of such repurchase. However, no adjustment need be made if Holders may
participate in the transaction or in certain other cases. The Company from time
to time may voluntarily increase the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange of the type specified in the Indenture, or certain transfers of all or
substantially all of its assets to another Person, or in certain other
circumstances described in the Indenture, the right to convert a Note into
Common Stock may be changed into a right to convert it into the kind and amount
of securities, cash or other assets that the Holder would have received if the
Holder had converted such Holder's Notes immediately prior to such transaction.
9. Conversion Arrangement on Call for Redemption
Any Notes called for redemption, unless surrendered for conversion
before the Redemption Date, may be deemed to be purchased from the Holders of
such Notes at an amount not less than the Redemption Price, plus (unless the
Redemption Date is an Interest Payment Date) accrued and unpaid interest to but
excluding the Redemption Date, by one or more investment banks or other
purchasers who may agree with the Company to purchase such Notes from the
A-9
Holders and to make payment for such Notes to the Trustee in trust for such
Holders.
10. Denominations; Transfer; Exchange
The Notes initially issued are in permanent global form. Under certain
circumstances described in the Indenture, Notes may also be issued in the form
of certificated Notes in fully registered form, without coupons, in minimum
denominations of $1,000 Principal Amount or in integral multiples thereof. A
Holder may register a transfer or exchange of Notes in accordance with the
Indenture. The Security Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes or
other governmental changes required by law or permitted by the Indenture. The
Security Registrar need not register the transfer or exchange of any Notes
selected for redemption (except, in the case of a Note to be redeemed in part,
the portion of the Note not to be redeemed) or any Notes in respect of which a
Repurchase Notice or a Change in Control Purchase Notice has been given and not
withdrawn (except, in the case of a Note to be purchased in part, the portion of
the Note not to be purchased) or any Notes for a period of 15 days before a
selection of Notes to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of this
Note for all purposes, except as otherwise provided in Section 203 of the
Indenture.
12. Unclaimed Money for Notes
Any money or other consideration deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of any
amount with respect to the Notes and remaining unclaimed for three years after
such amounts have become due and payable shall be paid to the Company on Company
Request (unless otherwise required by mandatory provisions of the applicable
escheat or abandoned or unclaimed property law), or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that, if any Notes then
Outstanding are in certificated form, the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company
cause to be published once, in an Authorized Newspaper in The Borough of
Manhattan, The City of New York, and in such other Authorized Newspapers as the
Trustee shall deem appropriate, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
A-10
remaining will (unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law) be repaid to the Company.
13. Amendment; Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes at the time
Outstanding and (ii) certain defaults or noncompliance with certain provisions
may be waived with the written consent of the Holders of a majority in aggregate
principal amount of the Notes at the time Outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Company and the Trustee may amend or supplement the Indenture or the Notes in
certain respects set forth in the Indenture.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default in the
payment of interest that continues for a period of 30 days; (ii) default in (a)
the payment (other than payment in shares of Common Stock or cash in lieu of
fractional interests in shares of Common Stock, which is covered by clause (b)
of this sentence) of the Principal Amount, Redemption Price, Purchase Price or
Change in Control Purchase Price with respect to any Note when the same becomes
due and payable or (b) the delivery of shares of Common Stock (or cash in lieu
of fractional interests in shares of Common Stock) in accordance with the terms
of the Indenture when such Common Stock or cash is required to be delivered
following conversion or repurchase of a Note and such default is not remedied
for a period of 10 days; (iii) failure by the Company to comply with the
provisions of Sections 801 and 1110 of the Indenture; (iv) failure by the
Company or any Subsidiary Guarantor for 30 days after notice from the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then
Outstanding to comply with any of its other agreements in the Indenture or the
Notes; (v) any Subsidiary Guarantee shall for any reason cease to be, or be
asserted by the Company or any Subsidiary Guarantor, as applicable, not to be,
in full force and effect (except pursuant to the release of any such Subsidiary
Guarantee in accordance with the Indenture); (vi) failure by the Company or any
of its Subsidiaries to pay Indebtedness (other than Non-Recourse Indebtedness or
Limited Recourse Indebtedness) of the Company or any Subsidiary when due within
the applicable grace period, or the acceleration of such Indebtedness, which
Indebtedness exceeds $10 million in the aggregate; and (vii) certain events of
bankruptcy or insolvency with respect to the Company or any of its Subsidiaries
that constitute a Significant Subsidiary or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary. If an Event of
Default occurs and is continuing, either the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes at the time Outstanding may
declare the Principal Amount of the Notes to be due and payable immediately,
except that, in
A-11
the case of an Event of Default specified in clause (iv) above, if the Event of
Default affects more than one series of Securities, the Trustee, or the Holders
of not less than 25% in principal amount of the Outstanding Securities, of all
series of Securities shall be required to make such declaration Certain events
of bankruptcy or insolvency are Events of Default that will result in the
Principal Amount of the Notes becoming due and payable immediately upon the
occurrence of such Events of Default.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Note shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Indenture, or for the appointment of a receiver
or trustee, or for any other remedy thereunder, unless certain conditions set
forth in the Indenture have been satisfied. The Trustee may refuse to enforce
the Indenture or the Notes unless it receives reasonable indemnity or security.
Subject to certain limitations (including that, in some cases, a majority in
principal amount of all Outstanding Securities is required), Holders of a
majority in aggregate principal amount of the Outstanding Notes shall have the
right to direct the time, method and place of conducting certain proceedings, or
exercising any trust or power conferred on the Trustee.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Trust Indenture Act, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Company with the
same rights it would have if it were not Trustee.
16. Authentication
This Note shall not be valid until an authorized officer of the Trustee
manually signs the Certificate of Authentication on the other side of this Note.
17. Additional Amounts
The Company is not obligated to pay Additional Amounts with respect to
the Notes.
18. Abbreviations
Customary abbreviations may be used in the name of a 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 UNIF TRANS MIN ACT (=Uniform
Transfers to Minors Act).
A-12
19. Governing Law
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[20. Registration Rights Agreement
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated April 28, 2003, between the Company and Xxxxxx Xxxxxxx &
Co. Incorporated.]+
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture which has in it the text of this Note. Requests
may be made to:
Pride International, Inc.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
------------------------------------
+ On Transfer Restricted Notes only.
A-13
CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the box: [ ]
To convert only part of this Note, state the Principal Amount to be converted
(which must be $1,000 or an integral multiple of $1,000):
$_______________________________
If you want the share certificate made out in another Person's name,
fill in the form below:
---------------------------
---------------------------
(Insert other Person's soc. sec. or tax ID no.)
___________________________
___________________________
___________________________
___________________________
(Print or type other Person's name, address and zip code)
________________________________________________________________________________
Date:_____________________ Your Signature:_______________________
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:____________________________________________________________
(Participant in a Recognized Signature
Guarantee Medallion Program)
A-14
TRANSFER NOTICE
This Transfer Notice relates to $______________________ Principal Amount of the
3 1/4% Senior Convertible Notes Due 2033 of Pride International, Inc., a
Delaware corporation, held by ______________________________ (the "Transferor").
(I) or (we) assign and transfer this Note to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
and irrevocably appoint _______________________________ agent to transfer this
Note on the books of the Company. The agent may substitute another to act for
him.
Your Signature: ________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
Date: ___________
Signature Guarantee:____________________________________________________________
(Participant in a Recognized Signature
Guarantee Medallion Program)
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the date that is two years after the later of the
date of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Notes are being transferred:
CHECK ONE BOX BELOW
(1)[ ] to Pride International, Inc.; or
(2)[ ] to a "qualified institutional buyer" pursuant to and in compliance with
Rule 144A under the Securities Act of 1933, as amended, that is
purchasing for its own account or for the account of a "qualified
institutional buyer" to whom notice is given that the resale, pledge or
other transfer is being made in reliance on Rule 144A; or
(3)[ ] pursuant to an exemption from the registration requirements of the
Securities Act of 1933 provided by Rule 144 under the Securities Act;
or
(4)[ ] pursuant to an effective registration statement under the Securities
Act of 1933.
A-15
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however,
that the Trustee may require, prior to registering any such transfer of
the Notes such legal opinions (if box (3) is checked), certifications
and other information as the Company or the Trustee has reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption
provided by Rule 144 under such Act.
Unless the box below is checked, the undersigned confirms that such
Note is not being transferred to an "affiliate" of the Company as
defined in Rule 144 under the Securities Act of 1933, as amended (an
"Affiliate"):
(5)[ ] The transferee is an Affiliate of the Company.
Signature: ___________________________________
Date: ___________
Signature Guarantee:____________________________________________________________
(Participant in a Recognized Signature
Guarantee Medallion Program)
A-16
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned (i) represents and warrants that it is purchasing this Note for
its own account or for an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, (ii) is aware that the sale to it is being made in reliance on Rule 144,
(iii) acknowledges that this Note and the Common Stock issuable upon conversion
thereof have not been registered under the Securities Act and may not be sold
except in compliance with the legend on the face of this Note and that it has
received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and (iv)
is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:_______________
[Signature of executive officer of purchaser]
Name:_______________________________
Title:______________________________
A-17
OPTION OF HOLDER TO ELECT PURCHASE
UPON CHANGE IN CONTROL
If you want to elect to have this Note purchased by the Company
pursuant to Section 1110 of the Indenture, check this box: [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 1110 of the Indenture, state the Principal Amount
you elect to have purchased: $_____________________ (in multiples of $1,000)
Date:_____________ Your Signature: ______________________
(Sign exactly as your name appears on the Note)
Tax Identification No.:_____________________
Signature Guarantee:____________________________________________________________
(Participant in a Recognized Signature
Guarantee Medallion Program)
A-18
[SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges of a part of this Global Note for other Notes
have been made:
Principal Amount Signature of
of this authorized
Amount of Amount of Global Note officer
decrease in increase in following of Trustee or
Date of Principal Amount of Principal Amount of such decrease Security
Exchange this Global Note this Global Note (or increase) Custodian
-------- ---------------- ---------------- ------------- ---------
]*
A-19
EXHIBIT B
FORM OF NOTATION OF SUBSIDIARY GUARANTEE
Each of the Subsidiary Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Company thereunder, that: (a) the principal of and any
premium and interest on the Notes shall be promptly paid in full when due,
whether at Stated Maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on premium and interest on the
Notes, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee thereunder shall be promptly paid in full or performed,
all in accordance with the terms thereof; and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
same shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Subsidiary Guarantors shall
be jointly and severally obligated to pay the same immediately.
The obligations of the Subsidiary Guarantors to the Holders of Notes
and to the Trustee pursuant to this Subsidiary Guarantee are expressly set forth
in Article Fourteen of the Indenture, and reference is hereby made to such
Article for the precise terms of this Subsidiary Guarantee. The terms of Article
Fourteen of the Indenture are incorporated herein by reference.
This is a continuing Subsidiary Guarantee and shall remain in full
force and effect and shall be binding upon each Subsidiary Guarantor and its
respective successors and assigns to the extent set forth in the Indenture until
full and final payment of all of the Company's obligations under the Notes and
the Indenture and shall inure to the benefit of the Trustee and the Holders of
Notes and their successors and assigns and, in the event of any transfer or
assignment of rights by any Holder of Notes or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. Notwithstanding the foregoing, the Subsidiary Guarantees may be
discharged in accordance with Article Four of the Indenture and any Subsidiary
Guarantor that satisfies the provisions of Section 1404 of the Indenture shall
be released of its obligations hereunder. This is a Subsidiary Guarantee of
payment and not a guarantee of collection.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
B-1
For purposes hereof, each Subsidiary Guarantor's liability will be that
amount from time to time equal to the aggregate liability of such Subsidiary
Guarantor hereunder, but shall be limited to the lesser of (i) the aggregate
amount of the obligations of the Company under the Notes and the Indenture and
(ii) the amount, if any, which would not have (A) rendered such Subsidiary
Guarantor "insolvent" (as such term is defined in the Bankruptcy Act and in the
Debtor and Creditor Law of the State of New York) or (B) left it with
unreasonably small capital at the time its Subsidiary Guarantee of the Notes was
entered into, after giving effect to the incurrence of existing Indebtedness
immediately prior to such time; provided that, it shall be a presumption in any
lawsuit or other proceeding in which such Subsidiary Guarantor is a party that
the amount guaranteed pursuant to its Subsidiary Guarantee is the amount set
forth in clause (i) above unless any creditor, or representative of creditors of
such Subsidiary Guarantor, or debtor in possession or trustee in bankruptcy of
such Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of such Subsidiary Guarantor is limited to the amount set forth in
clause (ii). The Indenture provides that, in making any determination as to the
solvency or sufficiency of capital of a Subsidiary Guarantor in accordance with
the previous sentence, the right of such Subsidiary Guarantor to contribution
from other Subsidiary Guarantors and any other rights such Subsidiary Guarantor
may have, contractual or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in that
certain Indenture dated as of May 1, 1997 between Pride International, Inc.
(formerly Pride Petroleum Services, Inc.) and JPMorgan Chase Bank (formerly The
Chase Manhattan Bank), as Trustee, as supplemented by the Sixth Supplemental
Indenture dated as of April 28, 2003 between Pride International, Inc. and
JPMorgan Chase Bank, as Trustee, and as otherwise supplemented with
applicability with respect to the Notes, unless otherwise indicated.
[Name of Subsidiary Guarantor]
By:___________________________
Name:_________________________
Title:________________________
B-2
