EXHIBIT 4.6
R&B FALCON CORPORATION
Form of Warrant Agreement
[for warrants sold attached to debt securities]*
THIS WARRANT AGREEMENT is dated as of ________________,
between R&B Falcon Corporation, a Delaware corporation
(hereinafter called "R&B Falcon", which term includes any
successor corporation under the Indenture hereinafter referred
to), and _________________, as Warrant Agent (herein called the
"Warrant Agent").
WHEREAS, R&B Falcon has entered into an Indenture dated as
of _____________, (the "Indenture"), with ____________, as
trustee (the "Trustee"), providing for the issuance from time to
time of its unsecured [senior] [subordinated] debentures, notes
or other evidences of indebtedness (the "Debt Securities"), to be
issued in one or more series, as provided in the Indenture; and
WHEREAS, R&B Falcon proposes to sell [title of Debt
Securities being offered] (the "Offered Securities") with warrant
certificates evidencing one or more warrants (the "Warrants" or,
individually a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through exercise of
Warrants] (the "Warrant Securities"), such warrant certificates
and other warrant certificates issued pursuant to this Agreement
being herein called the "Warrant Certificates"; and
WHEREAS, R&B Falcon desires the Warrant Agent to act on
behalf of R&B Falcon in connection with the issuance, exchange,
exercise and replacement of the Warrant Certificates, and in this
Agreement wishes to set forth, among other things, the form and
provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and
replaced:
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as
follows:
ARTICLE I
Issuance of Warrants and Execution and
Delivery of Warrant Certificates
Section 1.1. Issuance of Warrants. Warrants shall be
initially issued in connection with the issuance of the Offered
Securities [but shall be separately transferable on and after
_________, ____ (the "Detachable Date")] [and shall not be
separately transferable] and each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained
herein and therein, to purchase a Warrant Security in the
principal amount of [$]_______. Warrant Certificates shall be
initially issued in units with the Offered Securities and each
Warrant Certificate included in such a unit shall evidence ___
Warrants for each [$]____ principal amount of Offered Securities
included in such unit.
Section 1.2. Execution and Delivery of Warrant Certificates.
Each Warrant Certificate, whenever issued, shall be in
registered* form substantially in the form set forth in Exhibit A
hereto, shall be dated the date of its issuance and may have such
letters, numbers or other marks of identification or designation
and such legends or endorsements printed, lithographed or
engraved thereon as the officers of R&B Falcon executing the same
may approve (execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with
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* Complete or modify the provisions of this Form as appropriate
to reflect the terms of the Warrants and Warrant Securities.
any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Warrants may be
listed, or to conform to usage. The Warrant Certificates shall be
signed on behalf of R&B Falcon by its Chief Executive Officer,
its President, one of its Vice Presidents, its Treasurer or one
of its Assistant Treasurers under its corporate seal and attested
by its Secretary or one of its Assistant Secretaries. Such
signatures may be manual or facsimile signatures of such
authorized officers and may be imprinted or otherwise reproduced
on the Warrant Certificates. The seal of R&B Falcon may be in the
form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and
no Warrant evidenced thereby shall be exercisable, until such
Warrant Certificate has been countersigned by the manual
signature of the Warrant Agent. Such signature by the Warrant
Agent upon any Warrant Certificate executed by R&B Falcon shall
be conclusive evidence that the Warrant Certificate so
countersigned has been duly issued hereunder.
In case any officer of R&B Falcon who shall have signed any
of the Warrant Certificates either manually or by facsimile
signature shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned and
delivered by the Warrant Agent, such Warrant Certificates may be
countersigned and delivered notwithstanding that the person who
signed such Warrant Certificates ceased to be such officer of R&B
Falcon; and any Warrant Certificate may be signed on behalf of
R&B Falcon by such persons as, at the actual date of the
execution of such Warrant Certificate, shall be the proper
officers of R&B Falcon, although at the date of the execution of
this Agreement any such person was not such officer.
The term "holder" or "holder of a Warrant Certificate" as
used herein shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be
maintained by the Warrant Agent for that purpose. [If Offered
Securities with Warrants which are not immediately detachable -
or upon the register of the Offered Securities prior to the
Detachable Date. R&B Falcon will or will cause the registrar of
the Offered Securities to make available at all times to the
Warrant Agent such information as to holders of the Offered
Securities with Warrants as may be necessary to keep the Warrant
Agent's records up to date.]
Section 1.3. Issuance of Warrant Certificates. Warrant
Certificates evidencing the right to purchase an aggregate
principal amount not exceeding [$]______ of Warrant Securities
(except as provided in Sections 2.3(c), 3.2 and 4.1) may be
executed by R&B Falcon and delivered to the Warrant Agent upon
the execution of this Warrant Agreement or from time to time
thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of R&B Falcon, countersign
Warrant Certificates evidencing Warrants representing the right
to purchase up to [$]______ aggregate principal amount of Warrant
Securities and shall deliver such Warrant Certificates to or upon
the order of R&B Falcon. Subsequent to such original issuance of
the Warrant Certificates, the Warrant Agent shall countersign a
Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for one or more previously countersigned
Warrant Certificates or in connection with their transfer, as
hereinafter provided or as provided in Section 2.3(c).
ARTICLE II
Warrant Price, Duration and Exercise of Warrants
Section 2.1. Warrant Price. [On _______, _____, the] [The
Warrant] exercise price of each Warrant is [$] ______. [During
the period from _________, ____, through and including _________,
____, the exercise price of each Warrant will be [$]___________],
plus [accrued amortization of the original issue discount]
[accrued interest] from _________, ____. [On ___________, ____,
the exercise price of each Warrant will be [$]________. [if
applicable -- insert relevant amounts in applicable foreign
currency, currency unit or composite currency] During the period
from _________, ____, through and including _________, ____, the
exercise price of each Warrant will be [$]___________, plus
[accrued amortization of the original issue discount] [accrued
interest] from _________, ____.] [In each case, the original
issue discount will be amortized at a ___% annual rate, computed
on an annual basis using a 360-day year consisting of twelve 30-
day months]. Such purchase price of Warrant Securities is
referred to in this Agreement as the "Warrant Price." [The
original issue discount for each $1,000 principal amount of
Warrant Securities is [$]_____.]
Section 2.2. Duration of Warrants. Each Warrant may be
exercised in whole at any time, as specified herein, on or after
[the date thereof] [_________, ____,] and at or before 5 p.m. New
York time on __________________ (the "Expiration Date"). Each
Warrant not exercised at or before 5 p.m. New York time on the
Expiration Date shall become void, and all rights of the holder
of the Warrant Certificate evidencing such Warrant under this
Agreement shall cease.
Section 2.3. Exercise of Warrants.
(a) During the period specified in Section 2.2, any
whole number of Warrants may be exercised by providing
certain information set forth on the reverse side of the
Warrant Certificate and by paying in full, [in lawful money
of the United States of America] [if applicable -- insert
relevant amounts in applicable foreign currency, currency
unit or composite currency] [in cash or by certified check
or official bank check or by bank wire transfer, in each
case] [by bank wire transfer], in immediately available
funds, the Warrant Price for each Warrant exercised, to the
Warrant Agent at its corporate trust office [or at
________], provided that such exercise is subject to
receipt, within five business days of such [payment] [wire
transfer] by the Warrant Agent of the Warrant Certificate
with the form of election to purchase Warrant Securities set
forth on the reverse side of the Warrant Certificate
properly completed and duly executed. The date on which
payment in full of the Warrant Price is received by the
Warrant Agent shall, subject to receipt of the Warrant
Certificate as aforesaid, be deemed to be the date on which
the Warrant is exercised. The Warrant Agent shall deposit
all funds received by it in payment of the Warrant Price in
an account of R&B Falcon maintained with it and shall advise
R&B Falcon by telephone at the end of each day on which a
[payment] [wire transfer] for the exercise of Warrants is
received of the amount so deposited to its account. The
Warrant Agent shall promptly confirm such telephone advice
to R&B Falcon in writing.
(b) The Warrant Agent shall, from time to time, as
promptly as practicable, advise R&B Falcon and the Trustee
under the Indenture (if such Trustee is not the Warrant
Agent) of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the
Warrant Securities to which such holder is entitled upon
such exercise, (iii) delivery of Warrant Certificates
evidencing the balance, if any, of the Warrants remaining
after such exercise, and (iv) such other information as R&B
Falcon shall reasonably require.
(c) As soon as practicable after the exercise of any
Warrant, R&B Falcon shall issue, pursuant to the Indenture,
in authorized denominations to or upon the order of the
holder of the Warrant Certificate evidencing such Warrant,
the Warrant Securities to which such holder is entitled in
fully registered form, registered in such name or names as
may be directed by such holder.** If fewer than all of the
Warrants evidenced by such Warrant Certificate are
exercised, R&B Falcon shall execute, and an authorized
officer of the Warrant Agent shall manually countersign and
deliver, a new Warrant Certificate evidencing the number of
such Warrants remaining unexercised.
(d) R&B Falcon shall not be required to pay any stamp
or other tax or other governmental charge required to be
paid in connection with any transfer involved in the issue
of the Warrant Securities; and in the event that any such
transfer is involved, R&B Falcon shall not be required to
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** Subject to change in accordance with changes in tax laws and
regulations.
issue or deliver any Warrant Security until such tax or
other charge shall have been paid or it has been established
to R&B Falcon's satisfaction that no such tax or other
charge is due.
ARTICLE III
Other Provisions Relating to Rights of
Holders of Warrant Certificates
Section 3.1. No Rights as Warrant Securityholder Conferred
by Warrants or Warrant Certificates. No Warrant Certificate or
Warrant evidenced thereby shall entitle the holder thereof to any
of the rights of a holder of Warrant Securities, including,
without limitation, the right to receive the payment of principal
of, premium, if any, or interest on Warrant Securities or to
enforce any of the covenants in the Indenture.
Section 3.2. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Warrant Agent of evidence
reasonably satisfactory to it of the ownership of and the loss,
theft, destruction or mutilation of any Warrant Certificate and
of indemnity reasonably satisfactory to it, and, in the case of
mutilation, upon surrender thereof to the Warrant Agent for
cancellation, then, in the absence of notice to R&B Falcon or the
Warrant Agent that such Warrant Certificate has been acquired by
a bona fide purchaser, R&B Falcon shall execute, and an
authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and evidencing a like number of
Warrants. Upon the issuance of any new Warrant Certificate under
this Section, R&B Falcon may require the payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including
the fees and expenses of the Warrant Agent) in connection
therewith. Every substitute Warrant Certificate executed and
delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall represent an additional
contractual obligation of R&B Falcon, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of
this Agreement equally and proportionately with any and all other
Warrant Certificates duly executed and delivered hereunder. The
provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to
the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
Section 3.3. Holder of Warrant Certificate May Enforce
Rights. Notwithstanding any of the provisions of this Agreement,
any holder of a Warrant Certificate, without the consent of the
Warrant Agent, the holder of any Warrant Securities or the holder
of any other Warrant Certificate, may in his own behalf and for
his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against R&B Falcon suitable to enforce
or otherwise in respect of, his right to exercise the Warrants
evidenced by his Warrant Certificate in the manner provided in
his Warrant Certificate and in this Agreement.
ARTICLE IV
Exchange and Transfer of Warrant Certificates
Section 4.1. Exchange and Transfer of Warrant Certificates.
[If Offered Securities with Warrants which are immediately
detachable - Upon] [If Offered Securities with Warrants which are
not immediately detachable -Prior to the Detachable Date, a
Warrant Certificate may be exchanged or transferred only together
with the Offered Securities to which the Warrant Certificate was
initially attached and only for the purpose of effecting or in
conjunction with an exchange or transfer of such Offered
Securities. Prior to the Detachable Date, each transfer of the
Offered Securities [on the register of the Offered Securities]
shall operate also to transfer the related Warrant Certificates.
After the Detachable Date upon] surrender at the corporate trust
office of the Warrant Agent [or ________], Warrant Certificates
evidencing Warrants may be exchanged for Warrant Certificates in
other denominations evidencing such Warrants or the transfer
thereof may be registered in whole or in part; provided that such
other Warrant Certificates evidence the same aggregate number of
Warrants as the Warrant Certificates so surrendered. The Warrant
Agent shall keep, at its corporate trust office [and at _______
__] books in which, subject to such reasonable regulations as it
may prescribe, it shall register Warrant Certificates and
exchanges and transfers of outstanding Warrant Certificates, upon
surrender of the Warrant Certificates to the Warrant Agent at its
corporate trust office [or ____________] for exchange or
registration of transfer, properly endorsed or accompanied by
appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to R&B Falcon
and the Warrant Agent. No service charge shall be made for any
exchange [or registration of transfer] of Warrant Certificates
but R&B Falcon may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be
imposed in connection with any such exchange or registration of
transfer. Whenever any Warrant Certificates are so surrendered
for exchange or registration of transfer an authorized officer of
the Warrant Agent shall manually countersign and deliver to the
person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by R&B Falcon,
as so requested. The Warrant Agent shall not be required to
effect any exchange or registration of transfer which will result
in the issuance of a Warrant Certificate evidencing a fraction of
a Warrant or a number of full Warrants and a fraction of a
Warrant. All Warrant Certificates issued upon any exchange [or
registration of transfer] of Warrant Certificates shall be the
valid obligations of R&B Falcon, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange or
registration of transfer.
Section 4.2. Treatment of Holders of Warrant Certificates.
[If Warrants which are not immediately detachable - Every holder
of a Warrant Certificate, by accepting the same, consents and
agrees with R&B Falcon, the Warrant Agent and with every
subsequent holder of such Warrant Certificate that until the
transfer of the Warrant Certificate is registered on the books of
the Warrant Agent [or the registrar of the Offered Securities
prior to the Detachable Date], R&B Falcon and the Warrant Agent
[or the registrar of the Offered Securities prior to the
Detachable Date] may treat the registered holder as the absolute
owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.]
Section 4.3. Cancellation of Warrant Certificates. Any
Warrant Certificate surrendered for exchange, registration of
transfer or exercise of the Warrants evidenced thereby shall, if
surrendered to R&B Falcon, be delivered to the Warrant Agent and
all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly cancelled by the Warrant Agent
and shall not be reissued and, except as expressly permitted by
this Agreement, no Warrant Certificate shall be issued hereunder
in exchange or in lieu thereof. The Warrant Agent shall deliver
to R&B Falcon from time to time or otherwise dispose of cancelled
Warrant Certificates in a manner satisfactory to R&B Falcon.
ARTICLE V
Concerning the Warrant Agent
Section 5.1. Warrant Agent. R&B Falcon hereby appoints
__________, as Warrant Agent of R&B Falcon in respect of the
Warrants and the Warrant Certificates upon the terms and subject
to the conditions herein set forth; and __________ hereby accepts
such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant
Certificates and hereby and such further powers and authority to
act on behalf of R&B Falcon as R&B Falcon may hereafter grant to
or confer upon it. All of the terms and provisions with respect
to such powers and authority contained in the Warrant
Certificates are subject to and governed by the terms and
provisions hereof.
Section 5.2. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the
terms and conditions hereof, including the following, to all of
which R&B Falcon agrees and to all of which the rights hereunder
of the holders from time to time of the Warrant Certificates
shall be subject:
(a) Compensation and Indemnification. R&B Falcon
agrees promptly to pay the Warrant Agent the compensation to
be agreed upon with R&B Falcon for all services rendered by
the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in connection with the
services rendered hereunder by the Warrant Agent. R&B Falcon
also agrees to indemnify the Warrant Agent for, and to hold
it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Warrant
Agent, arising out of or in connection with its acting as
Warrant Agent hereunder, as well as the costs and expenses
of defending against any claim of such liability.
(b) Agent for R&B Falcon. In acting under this Warrant
Agreement and in connection with the Warrant Certificates,
the Warrant Agent is acting solely as agent of R&B Falcon
and does not assume any obligation or relationship of agency
or trust for or with any of the holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The Warrant Agent may consult with
counsel satisfactory to it, and the advice of such counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the advice of
such counsel.
(d) Documents. The Warrant Agent shall be protected
and shall incur no liability for or in respect of any action
taken or thing suffered by it in reliance upon any Warrant
Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its
officers, directors and employees, may become the owner of,
or acquire any interest in, Warrants, with the same rights
that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law,
it or they may engage or be interested in any financial or
other transaction with R&B Falcon and may act on, or as
depositary, trustee or agent for, any committee or body of
holders of Warrant Securities or other obligations of R&B
Falcon as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be deemed
to prevent the Warrant Agent from acting as trustee for any
series of Debt Securities under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall
have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) No Liability for Invalidity. The Warrant Agent
shall have no liability with respect to any invalidity of
this Agreement or any of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or
representations herein or in the Warrant Certificates
(except as to the Warrant Agent's countersignature thereon),
all of which are made solely by R&B Falcon.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform only such duties as are herein and in
the Warrant Certificates specifically set forth and no
implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant
Agent. The Warrant Agent shall not be under any obligation
to take any action hereunder which may tend to involve it in
any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured
to it. The Warrant Agent shall not be accountable or under
any duty or responsibility for the use by R&B Falcon of any
of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to R&B Falcon pursuant to this
Agreement or for the application by R&B Falcon of the
proceeds of the Warrant Certificates. The Warrant Agent
shall have no duty or responsibility in case of any default
by R&B Falcon in the performance of its covenants or
agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a
holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the
foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law or otherwise or, except
as provided in Section 6.2, to make any demand upon R&B
Falcon.
Section 5.3. Resignation and Appointment of Successor.
(a) R&B Falcon agrees, for the benefit of the holders
of the Warrant Certificates, that there shall at all times
be a Warrant Agent hereunder until all the Warrant
Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to R&B Falcon of such
intention on its part, specifying the date on which its
desired resignation shall become effective; provided that
such date shall not be less than three months after the date
on which such notice is given unless R&B Falcon otherwise
agrees. The Warrant Agent hereunder may be removed at any
time by the filing with it of an instrument in writing
signed by or on behalf of R&B Falcon and specifying such
removal and the date when it shall become effective. Such
resignation or removal shall take effect upon the
appointment by R&B Falcon, as hereinafter provided, of a
successor Warrant Agent (which shall be a bank or trust
company authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant
Agent. The obligation of R&B Falcon under Section 5.2(a)
shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant
Agent.
(c) In case at any time the Warrant Agent shall
resign, or shall be removed, or shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or
shall file a petition seeking relief under the Federal
Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable Federal or State bankruptcy law
or similar law or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its
debts as they mature, or if a receiver or custodian of it or
of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for
relief against it under the provisions of the Federal
Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable Federal or State bankruptcy or
similar law, or if any public officer shall have taken
charge or control of the Warrant Agent or of its property or
affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified as
aforesaid, shall be appointed by R&B Falcon by an instrument
in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and
acceptance by the successor Warrant Agent of such
appointment, the Warrant Agent shall cease to be Warrant
Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor
and to R&B Falcon an instrument accepting such appointment
hereunder, and thereupon such successor Warrant Agent,
without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with
like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges
and disbursements then unpaid, shall thereupon become
obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or
held by such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with
which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party,
or any corporation to which the Warrant Agent shall sell or
otherwise transfer all or substantially all the assets and
business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent
under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto.
ARTICLE VI
Miscellaneous
Section 6.1. Amendment. This Agreement may be amended by the
parties hereto, without the consent of the holder of any Warrant
Certificate, for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective or inconsistent
provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement as
R&B Falcon and the Warrant Agent may deem necessary or desirable;
provided, that such action shall not materially and adversely
affect the interests of the holders of the Warrant Certificates
and, provided further, that R&B Falcon and the Warrant Agent may
amend this Agreement in any manner prior to the issuance of any
Warrants hereunder. With the consent of the holders of not less
than a majority in number of the then outstanding unexercised
Warrants affected, R&B Falcon and the Warrant Agent may modify or
amend any other term of this Agreement; provided, however, that
no such modification or amendment may be made without the consent
of the holders affected thereby if such proposed amendment would
(i) shorten the period of time during which the Warrants may be
exercised; (ii) otherwise materially and adversely affect the
exercise rights of the holders of the Warrants; or (iii) reduce
the number of outstanding Warrants.
Section 6.2. Notices and Demands to R&B Falcon and Warrant
Agent. If the Warrant Agent shall receive any notice or demand
addressed to R&B Falcon by the holder of a Warrant Certificate
pursuant to the provisions of the Warrant Certificates, the
Warrant Agent shall promptly forward such notice or demand to R&B
Falcon.
Section 6.3. Addresses. Any communication from R&B Falcon to
the Warrant Agent with respect to this Agreement shall be
addressed to ____________________, and any communication from the
Warrant Agent to R&B Falcon with respect to this Agreement shall
be addressed to R&B Falcon Corporation, 901 Threadneedle,
Houston, Texas 77079, Attention: _______________ (or such other
address as shall be specified in writing by the Warrant Agent or
by R&B Falcon).
Section 6.4. Applicable Law. The validity, interpretation
and performance of this Agreement and each Warrant Certificate
issued hereunder and of the respective terms and provisions
thereof shall be governed by and construed in accordance with,
the laws of the State of [New York], without giving effect to the
conflict of laws principles thereof.
Section 6.5. Delivery of Prospectus. R&B Falcon will furnish
to the Warrant Agent sufficient copies of a prospectus relating
to the Warrant Securities deliverable upon exercise of Warrants
(the "Prospectus"), and the Warrant Agent agrees that upon the
exercise of any Warrant, the Warrant Agent will deliver to the
holder of the Warrant Certificate evidencing such Warrant, prior
to or concurrently with, the delivery of the Warrant Securities
issued upon such exercise, a Prospectus.
Section 6.6. Obtaining of Governmental Approvals. R&B Falcon
will from time to time take all action which may be necessary to
obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and securities
acts filings under United States Federal and State laws
(including, without limitation, a registration statement in
respect of the Warrants and Warrant Securities under the
Securities Act of 1933, as amended), which may be or become
requisite in connection with the issuance, sale, transfer, and
delivery of the Warrant Certificates, the exercise of the
Warrants, the issuance, sale, transfer, and delivery of the
Warrant Securities issued upon exercise of the Warrants or upon
the expiration of the period during which the Warrants are
exercisable.
Section 6.7. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement shall give to any person other than R&B
Falcon, the Warrant Agent and the holders of the Warrant
Certificates any right, remedy or claim under or by reason of
this Agreement.
Section 6.8. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 6.9. Counterparts. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be
deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
Section 6.10. Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the
principal corporate trust office of the Warrant Agent for
inspection by the holder of any Warrant Certificate. The Warrant
Agent may require such holder to submit his Warrant Certificates
for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be affixed hereunto, and the same to be attested, all as
of the day and year first above written.
R&B FALCON CORPORATION
By: ______________________________
Name:______________________________
Title:_____________________________
Attest:
______________________________
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ______________________________
Name:______________________________
Title:_____________________________
Attest:
______________________________
Exhibit A
(FORM OF WARRANT CERTIFICATE)
[Face of Warrant Certificate]
[Form of Legend of Warrants which are not immediately
detachable: Prior to ___________, this Warrant Certificate cannot
be transferred or exchanged unless attached to a [Title of
Offered Securities].] Exercisable Only if Countersigned by the
Warrant Agent as Provided Herein
R&B FALCON CORPORATION
WARRANTS TO PURCHASE
[Title of Warrant Securities]
Void After 5:00 P.M. New York Time on ___________
[No.] Warrants
This certifies that ________ or registered assigns is the
registered owner of the above indicated number of Warrants, each
Warrant entitling such owner to purchase, at any time [after 5
p.m. New York time on, [date], and] on or before 5 p.m. New York
time on [date] [$] _____________ principal amount of [Title of
Warrant Securities] (the "Warrant Securities"), of R&B Falcon
Corporation ("R&B Falcon") issued and to be issued under the
Indenture (as hereinafter defined), on the following basis: [on
[date] the exercise price of each Warrant is [$] ; during the
period from , [date] through and including [date], the exercise
price of each Warrant will be [$], plus [accrued amortization of
the original issue discount] [accrued interest] from [date]; on
[date] the exercise price of each Warrant will be [$] ; during
the period from [date] through and including [date] , the
exercise price of each Warrant will be [$] , plus [accrued
amortization of the original issue discount] [accrued interest]
from [date]; [in each case, the original issue discount will be
amortized at __% annual rate, computed on an annual basis using
a 360-day year consisting of twelve 30-day months] (the "Warrant
Price"). [The original issue discount for each $1,000 principal
amount [if applicable, insert relevant amount of foreign
currency, currency units or composite currency] of Warrant
Securities is $____________.] The holder may exercise the
Warrants evidenced hereby by providing certain information set
forth on the back hereof and by paying in full, [in lawful money
of the United States of America] [if applicable, express Warrant
exercise price in applicable foreign currency, currency unit or
composite currency] [in cash or by certified check or official
bank check or by bank wire transfer, in each case] [by bank wire
transfer], in immediately available funds, the Warrant Price for
each Warrant exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the
purchase form on the back hereof duly executed, at the corporate
trust office of [name of Warrant Agent], or its successors as
warrant agent (the "Warrant Agent"), [or ________________]
currently at the address specified on the reverse hereof, and
upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter defined
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in
registered form in denominations of $______________ and any
integral multiples thereof. Upon any exercise of fewer than all
of the Warrants evidenced by this Warrant Certificate, there
shall be issued to the holder hereof a new Warrant Certificate
evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ___________, ____, (the
"Warrant Agreement") between R&B Falcon and the Warrant Agent and
is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the holder of
this Warrant Certificate consents by acceptance hereof. Copies of
the Warrant Agreement are on file at the above-mentioned office
of the Warrant Agent [and at ______________].
The Warrant Securities to be issued and delivered upon the
exercise of the Warrants evidenced by this Warrant Certificate
will be issued under and in accordance with an Indenture dated as
of ___________, ____, (the "Indenture") between R&B Falcon and
________________, as trustee, and will be subject to the terms
and provisions contained in the Indenture. Copies of the
Indenture and the form of Warrant Securities are on file at the
corporate trust office of the trustee [and at ________________].
[If Offered Securities with Warrants which are not
immediately detachable - Prior to, 199__, this Warrant
Certificate may be exchanged or transferred only together with
the [Title of Offered Securities] ("Offered Securities") to which
this Warrant Certificate was initially attached, and only for the
purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Securities. After such date, this [If
Offered Securities with Warrants which are immediately detachable
- Transfer of this] Warrant Certificate may be registered when
this Warrant Certificate is surrendered at the corporate trust
office of the Warrant Agent [or _____] by the registered owner or
his assigns, in person or by an attorney duly authorized in
writing, in the manner and subject to the limitations provided in
the Warrant Agreement.]
[If Offered Securities with Warrants which are not
immediately detachable - Except as provided in the immediately
preceding paragraph, after] [If Offered Securities with Warrants
which are immediately detachable - After] countersignature by the
Warrant Agent and prior to the expiration of this Warrant
Certificate, this Warrant Certificate may be exchanged at the
corporate trust office of the Warrant Agent for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the holder hereof
to any of the rights of a holder of Warrant Securities,
including, without limitation, the right to receive payments of
principal of, premium, if any, or interest, if any, on the
Warrant Securities or to enforce any of the covenants of the
Indenture.
This Warrant Certificate shall not be valid or obligatory
for any purpose until countersigned by the Warrant Agent.
Dated as of ____________ R&B FALCON CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
________________________
Countersigned
___________________________________
As Warrant Agent
By:________________________________
Name:______________________________
Title:_____________________________
[Reverse of Warrant Certificate]
Instructions for Exercise of Warrant
To exercise the Warrants evidenced hereby, the holder must
pay [in cash or by certified check or official bank check or by
bank wire transfer] [by bank wire transfer], in immediately
available funds, the Warrant Price in full for Warrants exercised
to [insert name of Warrant Agent] Corporate Trust Department
[insert address of Warrant Agent], Attn: [or ], which [payment]
[wire transfer] must specify the name of the holder and the
number of Warrants exercised by such holder. In addition, the
holder must complete the information required below and present
this Warrant Certificate in person or by mail (registered mail is
recommended) to the Warrant Agent at the addresses set forth
below. This Warrant Certificate, completed and duly executed,
must be received by the Warrant Agent within five business days
of the [payment] [wire transfer].
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise
Warrants evidenced by this Warrant Certificate, to purchase
[$]_____________ principal amount of the [Title of Warrant
Securities] (the "Warrant Securities") of R&B Falcon Corporation
and represents that he has tendered payment for such Warrant
Securities [in cash or by certified check or official bank check
or by bank wire transfer, in each case] [by bank wire transfer],
in immediately available funds, to the order of R&B Falcon
Corporation, c/o [insert name and address of Warrant Agent], in
the amount of [$]_____________ in accordance with the terms
hereof. The undersigned requests that said principal amount of
Warrant Securities be in fully registered form and in the
authorized denominations, registered in such names and delivered,
all as specified in accordance with the instructions set forth
below. If the number of Warrants exercised is less than all of
the Warrants evidenced hereby, the undersigned requests that a
new Warrant Certificate representing he remaining Warrants
evidenced hereby be issued and delivered to the undersigned
unless otherwise specified in the instructions below.
Dated __________________________
Name__________________________
(Please Print)
_______________________________
Address
_______________________________
Social Security Number of Holder
_______________________________
Signature
The Warrants evidenced hereby may be exercised at the following
addresses:
By hand at _____________________________________________
_____________________________________________
By mail at _____________________________________________
_____________________________________________
[Instructions as to form and delivery of Warrant Securities
and, if applicable, Warrant Certificates evidencing unexercised
Warrants--complete as appropriate.]
Assignment
(Form of Assignment to be Executed if Holder Desires
to Transfer Warrants Evidenced Hereby)
For value received ____________________________ hereby
sells, assigns and transfers unto
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
__________ (Please print name and address, including zip code of
assignee, and Social Security Number or other identifying number)
the Warrants represented by the within Warrant Certificate and
does hereby irrevocably constitute and appoint Attorney, to
transfer said Warrant Certificate on the books of the Warrant
Agent with full power of substitution in the premises.
Dated_____________________________
______________________________
Signature
(Signature must conform in all
respect to name of holder as
specified on the face of this
Warrant Certificate and must
bear a signature guarantee of
a commercial bank, trust
company, or member broker of
the New York, American,
Midwest or Pacific Stock
Exchange.) Signature
Guaranteed:
Signature Guaranteed:
__________________________________
