EXHIBIT 4.8
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R&B FALCON CORPORATION
and
__________________________________,
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
________________________________
DEPOSIT AGREEMENT
Dated as of ______________, _______
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 1
ARTICLE 2 FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER, REDEMPTION AND CONVERSION
OF RECEIPTS 3
SECTION 2.1 Form and Transfer of Receipts 3
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof 3
SECTION 2.3 Redemption and Conversion of Stock 4
SECTION 2.4 Register of Transfer of Receipts 7
SECTION 2.5 Combination and Split-ups of Receipts 7
SECTION 2.6 Surrender of Receipts and Withdrawal of Stock 7
SECTION 2.7 Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender
and Exchange of Receipts and Withdrawal or
Deposit of Stock 8
SECTION 2.8 Lost Receipts, etc 8
SECTION 2.9 Cancellation and Destruction of Surrendered
Receipts 9
ARTICLE 3 CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND
R&B FALCON 9
SECTION 3.1 Filing Proofs, Certificates and Other
Information 9
SECTION 3.2 Payment of Taxes or Other Governmental
Charges 9
SECTION 3.3 Withholding 10
SECTION 3.4 Representations and Warranties as to Stock 10
ARTICLE 4 THE STOCK, NOTICES 10
SECTION 4.1 Cash Distributions 10
SECTION 4.2 Distributions Other Than Cash 10
SECTION 4.3 Subscription Rights, Preferences or
Privileges 11
SECTION 4.4 Notice of Dividends, Fixing of Record Date
for Holders of Receipts 11
SECTION 4.5 Voting Rights 12
SECTION 4.6 Changes Affecting Stock and
Reclassifications, Recapitalizations, etc 12
SECTION 4.7 Reports 12
SECTION 4.8 Lists of Receipt Holders 13
ARTICLE 5 THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
AND R&B FALCON 13
SECTION 5.1 Maintenance of Offices, Agencies, Transfer
Books by the Depositary; the Registrar 13
SECTION 5.2 Prevention or Delay in Performance by the
Depositary, the Depositary=s Agents, the
Registrar or R&B Falcon 13
SECTION 5.3 Obligations of the Depositary, the Depositary's
Agents, the Registrar and R&B Falcon 14
SECTION 5.4 Resignation and Removal of the Depositary,
Appointment of Successor Depositary 15
SECTION 5.5 Corporate Notices and Reports 16
SECTION 5.6 Deposit of Stock by R&B Falcon 16
SECTION 5.7 Indemnification by R&B Falcon 16
SECTION 5.8 Fees, Charges and Expenses 16
ARTICLE 6 AMENDMENT AND TERMINATION 17
SECTION 6.1 Amendment 17
SECTION 6.2 Termination 17
ARTICLE 7 MISCELLANEOUS 18
SECTION 7.1 Counterparts 18
SECTION 7.2 Exclusive Benefits of Parties 18
SECTION 7.3 Invalidity of Provisions 18
SECTION 7.4 Notices 18
SECTION 7.5 Depositary's Agents 19
SECTION 7.6 Holders of Receipts Are Parties 19
SECTION 7.7 Law 19
SECTION 7.8 Headings 19
EXHIBIT A A - 1
DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT, dated as of ____________, ______,
among R&B Falcon Corporation, a Delaware corporation ("R&B
Falcon"), __________________________, a ________ banking
corporation, as Depositary, and all holders from time to time of
Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, R&B Falcon desires to provide as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of
Stock with the Depositary, as agent for the beneficial owners of
the Stock, for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form
annexed as Exhibit A to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided
in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in
this Deposit Agreement and the Receipts:
"Certificate of Incorporation" shall mean the Amended and
Restated Certificate of Incorporation, as amended and restated
from time to time, of R&B Falcon.
"Certificate of Designation" shall mean the Certificate of
Designations establishing and setting forth the rights,
preferences, privileges and limitations of the Stock.
"Common Stock" shall mean R&B Falcon's Common Stock, par
value $.01 per share.
"Corporate Office" shall mean the office of the Depositary
in ______________________ at which at any particular time its
business in respect of matters governed by this Deposit Agreement
shall be administered, which at the date of this Deposit
Agreement is located at ______________________.
"Deposit Agreement" shall mean this agreement, as the same
may be amended, modified or supplemented from time to time.
"Depositary" shall mean _____________________, as Depositary
hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the
interests in Stock granted to holders of Receipts pursuant to the
terms and conditions of the Deposit Agreement. Each Depositary
Share shall represent an interest in one-__________th of a share
of Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by
the Depositary in respect of such share of Stock and held under
this Deposit Agreement. Subject to the terms of this Deposit
Agreement, each record holder of a Receipt evidencing a
Depositary Share or Shares is entitled, proportionately, to all
the rights, preferences and privileges of the Stock represented
by such Depositary Share or Shares, including the dividend,
voting and liquidation rights contained in the Certificate of
Designation, and to the benefits of all obligations and duties of
R&B Falcon in respect of the Stock under the Certificate of
Designation and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in
Section 7.5.
"New York Office" shall mean the facility maintained by the
Depositary in the Borough of Manhattan, The City of New York for
accepting, executing and delivering Receipts and other
instruments prior to processing such instruments at the Corporate
Office, which facility at the date of this Deposit Agreement is
located at ____________.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A
hereto, evidencing a Depositary Share or Shares, as the same may
be amended from time to time in accordance with the provisions
hereof.
"Record holder" or "holder" as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the
books maintained by or on behalf of the Depositary for such
purpose.
"Registrar" shall mean any bank or trust company appointed
to register ownership and transfers of Receipts as herein
provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of R&B Falcon's _______________
Preferred Stock, $.01 par value per share.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION
AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts. Receipts shall
be engraved or printed or lithographed and shall be substantially
in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. Receipts shall be executed by
the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar (other than the
Depositary) shall have countersigned the Receipts by manual
signature of a duly authorized signatory of the Registrar. No
Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it
shall have been executed as provided in the preceding sentence.
The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided. Receipts
bearing the facsimile signature of anyone who was at any time a
duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold
such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of
whole Depositary Shares. All Receipts shall be dated the date of
their execution.
Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent
with the provisions of this Deposit Agreement as may be required
by the Depositary or required to comply with any applicable law
or regulation or with the rules and regulations of any securities
exchange upon which the Stock or the Depositary Shares may be
listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance
of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares evidenced
by such Receipt) that is properly endorsed or accompanied by a
properly executed instrument of transfer shall be transferable by
delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distributions of
dividends or other distributions or to any notice provided for in
this Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions
of this Deposit Agreement, R&B Falcon or any holder of Stock may
deposit such Stock under this Deposit Agreement by delivery to
the Depositary of a certificate or certificates for the Stock to
be deposited, properly endorsed or accompanied, if required by
the Depositary, by a properly executed instrument of transfer in
form satisfactory to the Depositary, together with (i) all such
certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) a written
order of R&B Falcon or such holder, as the case may be, directing
the Depositary to execute and deliver to or upon the written
order of the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such
deposited Stock.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary shall, as
soon as transfer and registration can be accomplished, present
such certificate or certificates to the registrar and transfer
agent of the Stock for transfer and registration in the name of
the Depositary or its nominee of the Stock being deposited.
Deposited Stock shall be held by the Depositary in an
account to be established by the Depositary at the Corporate
Office.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary, subject to
the terms and conditions of this Deposit Agreement, shall execute
and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.2, a Receipt or Receipts
for the number of whole Depositary Shares representing the Stock
so deposited and registered in such name or names as may be
requested by such person or persons. The Depositary shall execute
and deliver such Receipt or Receipts at the New York Office,
except that, at the request, risk and expense of any person
requesting such delivery and for the account of such person, such
delivery may be made at such other place as may be designated by
such person. In each case, delivery will be made only upon
payment by such person to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such
deposit and the transfer of the deposited Stock.
R&B Falcon shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to
enable the Depositary to perform its obligations under this
Deposit Agreement.
SECTION 2.3 Redemption and Conversion of Stock. Whenever
R&B Falcon shall elect to redeem or be required to convert shares
of Stock into shares of Common Stock or other securities in
accordance with the Certificate of Designation, it shall (unless
otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary not less than five
business days' prior notice of the proposed date of the mailing
of a notice of redemption or conversion of Stock and the
simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted and of the
number of such shares of Stock held by the Depositary to be
redeemed or converted. The Depositary shall, as directed by R&B
Falcon in writing, mail, first class postage prepaid, notice of
the redemption or conversion of Stock and the proposed
simultaneous redemption or conversion of the Depositary Shares
representing the Stock to be redeemed or converted, not less than
30 and not more than 60 days prior to the date fixed for
redemption or conversion of such Stock and Depositary Shares, to
the recordholders of the Receipts evidencing the Depositary
Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary;
provided, that if the effectiveness of a Merger or Consolidation
(as defined in the Certificate of Designation) makes it
impracticable to provide at least 30 days' notice, the Depositary
shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the
same manner as notices of redemption or conversion of Stock are
required to be published pursuant to Section _____ of the
Certificate of Designation. Notwithstanding the foregoing,
neither failure to mail or publish any such notice to one or more
such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption or conversion. R&B
Falcon shall provide the Depositary with such notice, and each
such notice shall state: the redemption or conversion date; the
number of Depositary Shares to be redeemed or converted; if fewer
than all the Depositary Shares held by any holder are to be
redeemed, the number of such Depositary Shares held by such
holder to be so redeemed; in the case of a call for redemption,
the call price payable upon redemption and, if applicable, the
___________ (as defined in the Certificate of Designation) to be
used to calculate the number of shares of Common Stock or other
securities deliverable upon redemption; whether R&B Falcon is
exercising any option to deliver shares of Common Stock or other
securities in lieu of any cash consideration pursuant to Section
____ of the Certificate of Designation and the __________________
to be used to calculate the number of such shares or other
securities; the place or places where Receipts evidencing
Depositary Shares to be redeemed or converted are to be
surrendered for redemption or conversion; whether R&B Falcon is
depositing with a bank or trust company on or before the
redemption or conversion date, the shares of Common Stock or
other securities and cash, if any, payable by R&B Falcon and the
proposed date of such deposit; the amount of accrued and unpaid
dividends payable per share of Stock to be redeemed or converted
to and including such redemption or conversion date, as the case
may be, and that dividends in respect of the Stock represented by
the Depositary Shares to be redeemed or converted will cease to
accrue on such redemption or conversion date (unless R&B Falcon
shall default in delivering shares of Common Stock or other
securities and cash, if any, at the time and place specified in
such notice). On the date of any such redemption or conversion,
the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock
to be redeemed or converted in the manner specified in the notice
of redemption or conversion of Stock provided by R&B Falcon
pursuant to Section ___ of the Certificate of Designation. The
Depositary shall, thereafter, redeem or convert the number of
Depositary Shares representing such redeemed or converted Stock
upon the surrender of Receipts evidencing such Depositary Shares
in the manner provided in the notice sent to record holders of
Receipts; provided, that the Depositary shall have received, upon
surrendering such certificate or certificates as aforesaid, a
sufficient number of shares of Common Stock or other securities
to convert or redeem such number of Depositary Shares (including,
in the event that R&B Falcon elects pursuant to Section ____ of
the Certificate of Designation to exercise any option to deliver
shares of Common Stock or other securities in lieu of any cash
consideration payable on the Effective Date (as defined in the
Certificate of Designation) of any Merger or Consolidation, a
number of shares of Common Stock equal to such cash consideration
(as determined in the manner set forth in the Certificate of
Designation)), plus any accrued and unpaid dividends payable
with respect thereto to and including the date of any such
redemption or conversion and any other cash consideration payable
on the Effective Date of a Merger or Consolidation (other than
any dividends or other cash consideration payable on the
Effective Date of a Merger or Consolidation that R&B Falcon has
elected to pay in shares of Common Stock pursuant to Section_____
of the Certificate of Designation) as instructed and calculated
by R&B Falcon. In case fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed
shall be selected by the Depositary by lot, on a pro rata basis
or such other equitable method as shall be approved by R&B Falcon
and the Depositary.
Notice having been mailed by the Depositary as aforesaid,
from and after the redemption or conversion date (unless R&B
Falcon shall have failed to redeem or convert the shares of Stock
to be redeemed or converted by it upon the surrender of the
certificate or certificates therefor by the Depositary as
described in the preceding paragraph), the Depositary Shares
called for redemption or subject to conversion shall be deemed no
longer to be outstanding and all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to
receive the shares of Common Stock or other securities and cash,
if any, payable upon redemption or conversion upon surrender of
such Receipts) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be converted into
or redeemed for shares of Common Stock or other securities at a
rate equal to one-_______th of the number of shares of Common
Stock or other securities delivered, and the holders thereof
shall be entitled to one-________th of the cash, if any, payable,
in respect of the shares of Stock pursuant to the Certificate of
Designation. The foregoing shall be subject further to the terms
and conditions of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary,
together with the shares of Common Stock or other securities and
all accrued and unpaid dividends to and including the date fixed
for redemption payable in respect of the Depositary Shares called
for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
To the extent that Depositary Shares are converted into or
redeemed for shares of Common Stock or other securities and all
of such shares of Common Stock or other securities cannot be
distributed to the record holders of Receipts converted or called
for redemption without creating fractional interests in such
shares, the Depositary may, with the consent of R&B Falcon, adopt
such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or
private sale) of such shares of Common Stock or other securities
at such place or places and upon such terms as it may deem
proper, and the net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution to
such record holders that would otherwise receive fractional
interests in such shares of Common Stock or other securities.
The Depositary shall not be required (a) to issue, transfer
or exchange any Receipts for a period beginning at the opening of
business 15 days next preceding any selection of Depositary
Shares and Stock to be redeemed and ending at the close of
business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part, or subject to
conversion except as provided in the second preceding paragraph
of this Section 2.3.
SECTION 2.4 Register of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time
transfers of Receipts upon any surrender thereof at the Corporate
Office, the New York Office or such other office as the
Depositary may designate for such purpose, by the record holder
in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer,
together with evidence of the payment of any transfer taxes as
may be required by law. Upon such surrender, the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon
the order of the person entitled thereto evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
SECTION 2.5 Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office, the
New York Office or such other office as the Depositary may
designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
SECTION 2.6 Surrender of Receipts and Withdrawal of
Stock. Any holder of a Receipt or Receipts may withdraw any or
all of the Stock (but only in whole shares of Stock) represented
by the Depositary Shares evidenced by such Receipts and all money
and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office,
the New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder,
or to the person or persons designated by such holder as
hereinafter provided, the whole number of shares of Stock and all
such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole shares of
Preferred Stock will not thereafter be entitled to deposit such
Preferred Stock hereunder or to receive Depositary Shares
thereafter. If the Receipt or Receipts delivered by the holder to
the Depositary in connection with such withdrawal shall evidence
a number of Depositary Shares in excess of the number of whole
Depositary Shares representing the whole number of shares of
Stock to be withdrawn, the Depositary shall at the same time, in
addition to such whole number of shares of Stock and such money
and other property, if any, to be withdrawn, deliver to such
holder, or (subject to Section 2.4) upon his order, a new Receipt
or Receipts evidencing such excess number of whole Depositary
Shares. Delivery of the Stock and such money and other property
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may
deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of
transfer. If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered
for withdrawal of Stock, such holder shall execute and deliver to
the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock
be properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank and that the signature
on such instrument of transfer be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved
signature guarantee medallion program) pursuant to Rule 17Ad-15
of the Securities Exchange Act of 1934, as amended. The
Depositary shall deliver the Stock and the money and other
property, if any, represented by the Depositary Shares evidenced
by Receipts surrendered for withdrawal, without unreasonable
delay, at the office at which such Receipts were surrendered,
except that, at the request, risk and expense of the holder
surrendering such Receipt or Receipts and for the account of the
holder thereof, such delivery maybe made, without unreasonable
delay, at such other place as may be designated by such holder.
SECTION 2.7 Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock. As a condition
precedent to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of any
Receipt, the delivery of any distribution thereon or the
withdrawal or deposit of Stock, the Depositary, any of the
Depositary=s Agents or R&B Falcon may require any or all of the
following: (i) payment to it of a sum sufficient for the payment
(or, in the event that the Depositary or R&B Falcon shall have
made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax
or charge with respect to the Stock being deposited or withdrawn
or with respect to the Common Stock or other securities or
property of R&B Falcon being issued upon conversion or
redemption); (ii) production of proof satisfactory to it as to
the identity and genuineness of any signature; and (iii)
compliance with such reasonable regulations, if any, as the
Depositary or R&B Falcon may establish not inconsistent with the
provisions of this Deposit Agreement. The deposit of Stock may be
refused, the delivery of Receipts against Stock or the
registration of transfer, split-up, combination, surrender or
exchange of outstanding Receipts and the withdrawal of deposited
Stock may be suspended (i) during any period when the register of
stockholders of R&B Falcon is closed, (ii) if any such action is
deemed necessary or advisable by the Depositary, any of the
Depositary=s Agents or R&B Falcon at any time or from time to
time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this
Deposit Agreement, or (iii) with the approval of R&B Falcon, for
any other reason. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this
Deposit Agreement any shares of Stock that are required to be
registered under the Securities Act unless a registration
statement under the Securities Act is in effect as to such shares
of Stock.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall
be mutilated or destroyed or lost or stolen, the Depositary shall
execute and deliver a Receipt of like form and tenor in exchange
and substitution for such mutilated Receipt or in lieu of and in
substitution for such destroyed, lost or stolen Receipt unless
the Depositary has notice that such Receipt has been acquired by
a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of
the authenticity thereof and of his ownership thereof, (ii)
reasonable indemnification satisfactory to the Depositary or the
payment of any charges incurred by the Depositary in obtaining
insurance in lieu of such indemnification, and (iii) payment of
any expense (including fees, charges and expenses of the
Depositary) in connection with such execution and delivery.
SECTION 2.9 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any
Depositary=s Agent shall be canceled by the Depositary. Except as
prohibited by applicable law or regulation, the Depositary is
authorized to destroy such Receipts so canceled.
ARTICLE 3
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND R&B FALCON
SECTION 3.1 Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any
holder of a Receipt may be required from time to time to file
such proof of residence or other information, to execute such
certificates and to make such representations and warranties as
the Depositary or R&B Falcon may reasonably deem necessary or
proper. The Depositary or R&B Falcon may withhold or delay the
delivery of any Receipt, the registration of transfer,
redemption, conversion or exchange of any Receipt, the withdrawal
of the Stock represented by the Depositary Shares evidenced by
any Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such
certificates are executed or such representations and warranties
are made.
SECTION 3.2 Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become
payable by or on behalf of the Depositary with respect to (i) any
Receipt, (ii) the Depositary Shares evidenced by such Receipt,
(iii) the Stock (or fractional interest therein) or other
property represented by such Depositary Shares, or (iv) any
transaction referred to in Section 4.6, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of such Receipt, who shall
pay the amount thereof to the Depositary. Until such payment is
made, registration of transfer of any Receipt or any split-up or
combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property (including Common Stock or other securities
received in connection with a conversion or redemption of Stock)
represented by the Depositary Shares evidenced by such Receipt
may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to
such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of such Receipt
remaining liable for any deficiency.
SECTION 3.3 Withholding. The Depositary shall act as the
tax withholding agent for any payments, distributions and
exchanges made with respect to the Depositary Shares and
Receipts, and the Stock, Common Stock or other securities or
assets represented thereby (collectively, the "Securities"). The
Depositary shall be responsible with respect to the Securities
for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any
information returns or other documents with federal (and other
applicable) taxing authorities.
SECTION 3.4 Representations and Warranties as to Stock.
In the case of the initial deposit of the Stock, R&B Falcon and,
in the case of subsequent deposits thereof, each person so
depositing Stock under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of the Stock and the
issuance of Receipts therefor.
ARTICLE 4
THE STOCK, NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the
Stock, the Depositary shall, subject to Section 3.2, distribute
to record holders of Receipts on the record date fixed pursuant
to Section 4.4 such amounts of such sum as are, as nearly as
practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case R&B Falcon or the Depositary
shall be required by law to withhold and does withhold from any
cash dividend or other cash distribution in respect of the Stock
an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner
of Depositary Shares a fraction of one cent and any balance not
so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.2 Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash,
rights, preferences or privileges upon the Stock, the Depositary
shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such
amounts of the securities or property received by it as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders,
in any manner that the Depositary and R&B Falcon may deem
equitable and practicable for accomplishing such distribution.
If, in the opinion of R&B Falcon after consultation with the
Depositary, such distribution cannot be made proportionately
among such recordholders, or if for any other reason (including
any tax withholding or securities law requirement), the
Depositary deems, after consultation with R&B Falcon, such
distribution not to be feasible, the Depositary may, with the
approval of R&B Falcon, which approval shall not be unreasonably
withheld, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and
upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to Section 3.2, be distributed or made
available for distribution, as the case may be, by the Depositary
to record holders of Receipts as provided by Section 4.1 in the
case of a distribution received in cash.
SECTION 4.3 Subscription Rights, Preferences or
Privileges. If R&B Falcon shall at any time offer or cause to be
offered to the persons in whose names Stock is registered on the
books of R&B Falcon any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in
such manner as R&B Falcon shall instruct (including by the issue
to such record holders of warrants representing such rights,
preferences or privileges); provided, however, that (a) if at the
time of issue or offer of any such rights, preferences or
privileges R&B Falcon determines and instructs the Depositary
that it is not lawful or feasible to make such rights,
preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to
the extent instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary
shall then, in each case, and if applicable laws or the terms of
such rights, preferences or privileges so permit, sell such
rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall be
distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. If registration under the
Securities Act of the securities to which any rights, preferences
or privileges relate is required in order for holders of Receipts
to be offered or sold such securities, R&B Falcon shall promptly
file a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities
and use its best efforts and take all steps available to it to
cause such registration statement to become effective
sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall
have become effective or unless the offering and sale of such
securities to such holders are exempt from registration under the
provisions of the Securities Act. If any other action under the
law of any jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders
of Receipts, R&B Falcon agrees with the Depositary that R&B
Falcon will use its reasonable best efforts to take such action
or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights,
preferences or privileges.
SECTION 4.4 Notice of Dividends, Fixing of Record Date
for Holders of Receipts. Whenever (i) any cash dividend or other
cash distribution shall become payable, or any distribution other
than cash shall be made, or any rights, preferences or privileges
shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice or of the mandatory conversion of,
or any election on the part of R&B Falcon to call for the
redemption of, any shares of Stock, the Depositary shall in each
such instance fix a record date (which shall be the same date as
the record date fixed by R&B Falcon with respect to the Stock)
for the determination of the holders of Receipts (x) who shall be
entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for
the exercise of voting rights at any such meeting or to receive
notice of such meeting or of such conversion or redemption.
SECTION 4.5 Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice, which shall be provided by
R&B Falcon and which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.4 will be entitled,
subject to any applicable provision of law, the Certificate of
Incorporation or the Certificate of Designation, to instruct the
Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares and
(iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. R&B
Falcon hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares evidenced by such
Receipt.
SECTION 4.6 Changes Affecting Stock and
Reclassifications, Recapitalizations, etc. Upon any split-up,
consolidation or any other reclassification of Stock, or upon any
recapitalization, reorganization, merger, amalgamation or
consolidation affecting R&B Falcon or to which it is a party
(other than a Merger or Consolidation) or sale of all or
substantially all of R&B Falcon's assets, the Depositary shall
treat any shares of stock or other securities or property
(including cash) that shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Stock as
new deposited property under this Deposit Agreement, and Receipts
then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited property so
received in exchange for or upon conversion or in respect of such
Stock. In any such case the Depositary may, in its discretion,
with the approval of R&B Falcon, execute and deliver additional
Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing
such new deposited property.
SECTION 4.7 Reports. The Depositary shall make available
for inspection by holders of Receipts at the Corporate Office,
the New York Office and at such other places as it may from time
to time deem advisable during normal business hours any reports
and communications received from R&B Falcon that are received by
the Depositary as the holder of Stock.
SECTION 4.8 Lists of Receipt Holders. Promptly upon
request from time to time by R&B Falcon, the Depositary shall
furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares of all persons in
whose names Receipts are registered on the books of the
Depositary. At the expense of R&B Falcon, R&B Falcon shall have
the right to inspect transfer and registration records of the
Depositary, any Depositary's Agent or the Registrar, take copies
thereof and require the Depositary, any Depositary's Agent or the
Registrar to supply copies of such portions of such records as
R&B Falcon may request.
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND R&B FALCON
SECTION 5.1 Maintenance of Offices, Agencies, Transfer
Books by the Depositary; the Registrar. Upon execution of this
Deposit Agreement in accordance with its terms, the Depositary
shall maintain (i) at the New York Office facilities for the
execution and delivery, registration, registration of transfer,
surrender and exchange, split-up, combination, redemption and
conversion of Receipts and deposit and withdrawal of Stock and
(ii) at the Corporate Office and at the offices of the
Depositary's Agents, if any, facilities for the delivery,
registration, registration of transfer, surrender and exchange,
split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the
provisions of this Deposit Agreement. The Depositary shall keep
books at the Corporate Office for the registration and transfer
of Receipts, which books at all reasonable times shall be open
for inspection by the record holders of Receipts; provided that
any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person=s interest as an owner
of Depositary Shares. The Depositary shall consult with R&B
Falcon upon receipt of any request for inspection. The Depositary
may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its
duties hereunder. If the Receipts or the Depositary Shares
evidenced thereby or the Stock represented by such Depositary
Shares shall be listed on one or more stock exchanges, the
Depositary shall, with the approval of R&B Falcon, appoint a
Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of such exchange or exchanges.
Such Registrar (which may be the Depositary if so permitted by
the requirements of such exchange or exchanges) may be removed
and a substitute registrar appointed by the Depositary upon the
request or with the approval of R&B Falcon. In addition, if the
Receipts, such Depositary Shares or such Stock are listed on one
or more stock exchanges, the Depositary will, at the request of
R&B Falcon, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange,
split-up, combination, redemption or conversion of such Receipts,
such Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulations.
SECTION 5.2 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or R&B Falcon.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor R&B Falcon shall incur any liability to any holder
of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of
America or of any other governmental authority or, in the case of
the Depositary, the Registrar or any Depositary's Agent, by
reason of any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designation or, in the case
of R&B Falcon, the Depositary, the Registrar or any Depositary's
Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or R&B Falcon shall be
prevented or forbidden from doing or performing any act or thing
that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, the
Registrar or R&B Falcon incur any liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms
of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or
the Registrar, if any such exercise or failure to exercise
discretion is caused by its negligence or bad faith.
SECTION 5.3 Obligations of the Depositary, the
Depositary's Agents, the Registrar and R&B Falcon. R&B Falcon
assumes no obligation and shall be subject to no liability under
this Deposit Agreement or the Receipts to holders or other
persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in this
Deposit Agreement. Each of the Depositary, the Depositary=s
Agents and the Registrar assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the
Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to
perform in this Deposit Agreement without negligence or bad
faith. Neither the Depositary nor any Depositary's Agent nor the
Registrar nor R&B Falcon shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with
respect to Stock, Depositary Shares, Receipts or Common Stock
that in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required. Neither the
Depositary nor any Depositary's Agent nor the Registrar nor R&B
Falcon shall be liable for any action or any failure to act by it
in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Stock for deposit, any holder
of a Receipt or any other person believed by it in good faith to
be competent to give such advice or information. The Depositary,
any Depositary's Agent, the Registrar and R&B Falcon may each
rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party
or parties. The Depositary, the Registrar and any Depositary=s
Agent may own and deal in any class of securities of R&B Falcon
and its affiliates and in Receipts or Depositary Shares. The
Depositary may also act as transfer agent or registrar of any of
the securities of R&B Falcon and its affiliates. It is intended
that neither the Depositary nor any Depositary's Agent shall be
deemed to be an "issuer" of the Stock, the Depositary Shares, the
Receipts or the Common Stock issued upon conversion or redemption
of the Stock under the federal securities laws or applicable
state securities laws, it being expressly understood and agreed
that the Depositary and any Depositary's Agent are acting only in
a ministerial capacity as Depositary for the Stock; provided,
however, that the Depositary agrees to comply with all
information reporting and withholding requirements applicable to
it under law or this Deposit Agreement in its capacity as
Depositary. Neither the Depositary (or its officers, directors,
employees or agents) nor any Depositary's Agent makes any
representation or has any responsibility as to the validity of
the Registration Statement pursuant to which the Depositary
Shares are registered under the Securities Act, the Stock, the
Depositary Shares or any instruments referred to therein or
herein, or as to the correctness of any statement made therein or
herein; provided, however, that the Depositary is responsible for
its representations in this Deposit Agreement. The Depositary
assumes no responsibility for the correctness of the description
that appears in the Receipts, which can be taken as a statement
of R&B Falcon summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein or in the
Receipts, the Depositary makes no warranties or representations
as to the validity, genuineness or sufficiency of any Stock at
any time deposited with the Depositary hereunder or of the
Depositary Shares, as to the validity or sufficiency of this
Deposit Agreement, as to the value of the Depositary Shares or as
to any right, title or interest of the record holders of Receipts
in and to the Depositary Shares except that the Depositary hereby
represents and warrants as follows: (i) the Depositary has been
duly organized and is validly existing and in good standing under
the laws of the State of ____________, with full power, authority
and legal right under such law to execute, deliver and carry out
the terms of this Deposit Agreement; (ii) this Deposit Agreement
has been duly authorized, executed and delivered by the
Depositary; and (iii) this Deposit Agreement constitutes a valid
and binding obligation of the Depositary, enforceable against the
Depositary in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered ina proceeding in equity or at law). The Depositary
shall not be accountable for the use or application by R&B Falcon
of the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.4 Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by written notice via
registered mail of its election to do so delivered to R&B Falcon,
such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as
hereinafter provided. The Depositary may at any time be removed
by R&B Falcon by written notice of such removal delivered to the
Depositary, such removal to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as
hereinafter provided. In case at any time the Depositary acting
hereunder shall resign or be removed, R&B Falcon shall, within 60
days after the delivery of the notice of resignation or removal,
as the case may be, appoint a successor depositary, which shall
be a bank or trust company, or an affiliate of a bank or trust
company, having its principal office in the United States of
America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been
appointed in 60 days, the resigning or removed Depositary may
petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver
to its predecessor and to R&B Falcon an instrument in writing
accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under
this Deposit Agreement, and such predecessor, upon payment of all
sums due it and on the written request of R&B Falcon, shall
promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all rights, title and
interest in the Stock and any moneys or property held hereunder
to such successor and shall deliver to such successor a list of
the record holders of all outstanding Receipts. Any successor
Depositary shall promptly mail notice of its appointment to the
record holders of Receipts. Any corporation into or with which
the Depositary may be merged, consolidated or converted shall be
the successor of such Depositary without the execution or filing
of any document or any further act. Such successor Depositary may
execute the Receipts either in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.5 Corporate Notices and Reports. R&B Falcon
agrees that it will deliver to the Depositary, and the Depositary
will, promptly after receipt thereof, transmit to the record
holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including
financial statements) required by law, by the rules of any
national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Certificate of
Incorporation and the Certificate of Designation to be furnished
by R&B Falcon to holders of Stock. Such transmission will be at
R&B Falcon's expense and R&B Falcon will provide the Depositary
with such number of copies of such documents as the Depositary
may reasonably request. In addition, the Depositary will transmit
to the record holders of Receipts at R&B Falcon's expense such
other documents as may be requested by R&B Falcon.
SECTION 5.6 Deposit of Stock by R&B Falcon. R&B Falcon
agrees with the Depositary that neither R&B Falcon nor any
company controlled by R&B Falcon will at any time deposit any
Stock if such Stock is required to be registered under the
provisions of the Securities Act and no registration statement is
at such time in effect as to such Stock.
SECTION 5.7 Indemnification by R&B Falcon. R&B Falcon
agrees to indemnify the Depositary, any Depositary's Agent and
any Registrar against, and hold each of them harmless from, any
liability, costs and expenses (including reasonable fees and
expenses of counsel) that may arise out of or in connection with
its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts,
except for any liability arising out of negligence, bad faith or
willful misconduct on the part of any such person or persons.
SECTION 5.8 Fees, Charges and Expenses. No fees, charges
and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person
other than R&B Falcon, except for any taxes and other
governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the
Depositary incurs fees, charges or expenses for which it is not
otherwise liable hereunder, such holder or other person will be
liable for such fees, charges and expenses. All other fees,
charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be
paid from time to time upon consultation and agreement between
the Depositary and R&B Falcon as to the amount and nature of such
fees, charges and expenses.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time
to time be amended by agreement between R&B Falcon and the
Depositary in any respect that they may deem necessary or
desirable. Any amendment that shall impose or increase any fees,
taxes or charges payable by holders of Receipts (other than taxes
and other governmental charges, fees and other expenses payable
by holders pursuant to the terms hereof or of the Receipts), or
that shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the record holders of
outstanding Receipts. Every holder of an outstanding Receipt at
the time any such amendment becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Sections 2.3, 2.6 and 2.7 and
Article 3, of any owner of any Depositary Shares to surrender the
Receipt evidencing such Depositary Shares with instructions to
the Depositary to deliver to the holder the Stock and all money
and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination. Whenever so directed by R&B
Falcon, the Depositary will terminate this Deposit Agreement by
mailing notice of such termination to the record holders of all
Receipts then outstanding at least 30 days prior to the date
fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement if at any time 60 days
shall have expired after the Depositary shall have delivered to
R&B Falcon a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted
its appointment as provided in Section 5.4. If any Receipts shall
remain outstanding after the date of termination of this Deposit
Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, shall suspend the distribution of dividends
to the holders thereof and shall not give any further notices
(other than notice of such termination) or perform any further
acts under this Deposit Agreement, except as provided below and
that the Depositary shall continue to collect dividends and other
distributions pertaining to Stock, shall sell rights, preferences
or privileges as provided in this Deposit Agreement and shall
continue to deliver the Stock and any money and other property
represented by Receipts, without liability for interest thereon,
upon surrender thereof by the holders thereof. At any time after
the expiration of two years from the date of termination, the
Depositary may sell Stock then held hereunder at public or
private sale, at such places and upon such terms as it deems
proper and may thereafter hold in a segregated account the net
proceeds of any such sale, together with any money and other
property held by it hereunder, without liability for interest,
for the benefit, pro rata in accordance with their holdings, of
the holders of Receipts that have not theretofore been
surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement
except to account for such net proceeds and money and other
property. Upon the termination of this Deposit Agreement, R&B
Falcon shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary,
any Depositary's Agent and any Registrar under Sections 5.7 and
5.8. In the event this Deposit Agreement is terminated, R&B
Falcon hereby agrees to use its best efforts to list the
underlying Stock on the New York Stock Exchange.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be
executed by R&B Falcon and the Depositary in separate
counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and
the Depositary's Agents and shall be open to inspection during
business hours at the Corporate Office and the New York Office
and the respective offices of the Depositary's Agents, if any, by
any holder of a Receipt.
SECTION 7.2 Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and
their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other
person whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in
the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.4 Notices. Any notices to be given to R&B
Falcon hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered
or sent by mail, or by telegram or telex or telecopier confirmed
by letter, addressed to R&B Falcon at 901 Threadneedle, Suite
200, Houston, Texas 77079, Attention: Chief Executive Officer, or
at any other place to which R&B Falcon may have transferred its
principal executive office. Any notices to be given to the
Depositary hereunder or under the Receipts shall be in writing
and shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate
Office. Any notices given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by
mail, or by telegram or telex or telecopier confirmed by letter,
addressed to such record holder at the address of such record
holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary a written request
that notices intended for such holder be mailed to some other
address, at the address designated in such request. Delivery of a
notice sent by mail, or by telegram or telex or telecopier shall
be deemed to be effected at the time when a duly addressed letter
containing the same (or a duly addressed letter confirming an
earlier notice in the case of a telegram or telex or telecopier
message) is deposited, postage prepaid, in a post office letter
box. The Depositary or R&B Falcon may, however, act upon any
telegram or telex or telecopier message received by it from the
other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be
confirmed by letter as aforesaid.
SECTION 7.5 Depositary's Agents. The Depositary may, with
the approval of R&B Falcon which approval shall not be
unreasonably withheld, from time to time appoint one or more
Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
SECTION 7.6 Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and
delivered this Deposit Agreement or any counterpart thereof, the
holders of Receipts from time to time shall be deemed to be
parties to this Deposit Agreement and shall be bound by all of
the terms and conditions, and be entitled to all of the benefits,
hereof and of the Receipts by acceptance of delivery of Receipts.
SECTION 7.7 Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with,
the law of the State of New York without giving effect to
principles of conflict of laws.
SECTION 7.8 Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as apart of this Deposit
Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, R&B Falcon Corporation and
_______________________ have duly executed this Deposit Agreement
as of the day and year first above set forth and all holders of
Receipts shall become parties hereto by and upon acceptance by
them of delivery of Receipts issued in accordance with the terms
hereof.
R&B FALCON CORPORATION
By:_____________________________
Name:
Title:
________________________________________
By:_____________________________
Name:
Title:
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING __________ OF A SHARE OF
[ ]
PREFERRED STOCK
OF
R&B FALCON CORPORATION
(Incorporated under the Laws of the State of Delaware)
No. __________
_________________________________________ (the "Depositary")
hereby certifies that ____________ is the registered owner of
___________ Depositary Shares (the "Depositary Shares"), each
Depositary Share representing one-___________th of a share of
_________________ Preferred Stock, $.01 par value (the "Stock"),
of R&B Falcon Corporation, a corporation duly organized and
existing under the laws of the State of Delaware ("R&B Falcon"),
and the same proportionate interest in any and all other property
received by the Depositary in respect of such shares of Stock and
held by the Depositary under the Deposit Agreement (as defined
below). Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share is entitled, proportionately, to all the
rights, preferences and privileges of the Stock represented
thereby, including the dividend, voting, liquidation and other
rights contained in the Certificate of Designation establishing
the rights, preferences, privileges and limitations of the Stock
(the "Certificate of Designation"), copies of which are on file
at the office of the Depositary at which at any particular time
its business in respect of matters governed by the Deposit
Agreement shall be administered, which at the time of the
execution of the Deposit Agreement is located at ________________
(the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to
any benefits under the Deposit Agreement or be valid or
obligatory for any purpose unless this Receipt shall have been
executed manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile by the
Depositary by the signature of a duly authorized signatory and,
if executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by the signature of
a duly authorized signatory.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY
DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE
CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH
CAN BE TAKEN AS A STATEMENT OF R&B FALCON SUMMARIZING CERTAIN
PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET FORTH
IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF
ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE
DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY
OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE
RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE
DEPOSITARY SHARES.
R&B Falcon will furnish to any holder of this Receipt
without charge, upon request addressed to its executive office, a
full statement of the designation, relative rights, preferences
and limitations of the shares of each authorized class, and of
each class of preferred stock authorized to be issued, so far as
the same may have been fixed, and a statement of the authority of
the Board of Directors of R&B Falcon to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the
same effect as if set forth at this place.
Dated: ___________,
as Depositary and Registrar
By:______________
Authorized Signatory
[FORM OF REVERSE OF DEPOSITARY RECEIPT]
(1) The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available
upon the terms and conditions set forth in the Deposit Agreement,
dated as of _______________ (the "Deposit Agreement"), among R&B
Falcon, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the Corporate Office, the office maintained by the Depositary in
the Borough of Manhattan, the City of New York which at the time
of the execution of the Deposit Agreement is located at
________________________ (the "New York Office") and at the
office of any agent of the Depositary) sets forth the rights of
holders of Receipts and the rights and duties of the Depositary.
The statements made on the face and the reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict between
the provisions of this Receipt and the provisions of the Deposit
Agreement, the provisions of the Deposit Agreement will govern.
(2) Definitions. Unless otherwise expressly herein provided,
all defined terms used herein shall have the meanings ascribed
thereto in the Deposit Agreement.
(3) Redemption and Conversion of Stock. Whenever R&B Falcon
shall elect to redeem or be required to convert shares of Stock
into shares of Common Stock in accordance with the Certificate of
Designation, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary
not less than 5 business days' prior notice of the proposed date
of the mailing of a notice of redemption or conversion of Stock
and the simultaneous redemption or conversion of the Depositary
Shares representing the Stock to be redeemed or converted and of
the number of such shares of Stock held by the Depositary to be
redeemed or converted. The Depositary shall, as directed by R&B
Falcon in writing, mail, first class postage prepaid, notice of
the redemption or conversion of Stock and the proposed
simultaneous redemption or conversion of Depositary Shares
representing the Stock to be redeemed or converted, not less than
30 and not more than 60 days prior to the date fixed for
redemption or conversion of such Stock and Depositary Shares, to
the record holders of the Receipts evidencing the Depositary
Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary;
provided, that if the effectiveness of a Merger or Consolidation
(as defined in the Certificate of Designation) makes it
impracticable to provide at least 30 days' notice, the Depositary
shall provide such notice as soon as practicable prior to such
effectiveness. Any such notice shall also be published in the
same manner as notices of redemption or conversion of the Stock
are required to be published pursuant to Section _____ of the
Certificate of Designation. On the date of any such redemption or
conversion, the Depositary shall surrender the certificate or
certificates held by the Depositary evidencing the number of
shares of Stock to be redeemed or converted in the manner
specified in the notice of redemption or conversion of Stock
provided by R&B Falcon pursuant to Section ____ of the
Certificate of Designation. The Depositary shall, thereafter,
redeem or convert the number of Depositary Shares representing
such redeemed or converted Stock upon the surrender of Receipts
evidencing such Depositary Shares in the manner provided in the
notice sent to record holders of Receipts; provided, that the
Depositary shall have received, upon surrendering such
certificate or certificates as aforesaid, a sufficient number of
shares of Common Stock or other securities to convert or redeem
such number of Depositary Shares (including, in the event that
R&B Falcon elects pursuant to Section ____ of the Certificate of
Designation to exercise any option to deliver shares of Common
Stock or other securities in lieu of any cash consideration
payable on the Effective Date (as defined in the Certificate of
Designation) of any Merger or Consolidation, a number of shares
of Common Stock or other securities equal to such cash
consideration (as determined in the manner set forth in the
Certificate of Designation)), plus any accrued and unpaid
dividends payable with respect thereto to and including the date
of any such redemption or conversion and any other cash
consideration payable on the Effective Date of a Merger or
Consolidation (other than any dividends or other cash
consideration payable on the Effective Date of a Merger or
Consolidation that R&B Falcon has elected to pay in shares of
Common Stock or other securities pursuant to Section ____ of the
Certificate of Designation). If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by the Depositary by lot or on a pro
rata basis. Notice having been mailed and published as aforesaid,
from and after the redemption or conversion date (unless R&B
Falcon shall have failed to redeem or convert the shares of Stock
to be redeemed or converted by it upon the surrender of the
certificate or certificates therefor by the Depositary as
described above), the Depositary Shares called for redemption or
subject to conversion shall be deemed no longer to be outstanding
and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of
Common Stock or other securities and cash, if any, payable upon
redemption or conversion upon surrender of such Receipts) shall,
to the extent of such Depositary Shares, cease and terminate.
Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such
Depositary Shares shall be converted into or redeemed for shares
of Common Stock or other securities at a rate equal to ________
of the number of shares of Common Stock or other securities
delivered, and the holders thereof shall be entitled to ________
of the cash, if any, payable, in respect of the shares of Stock
pursuant to the Certificate of Designation. The foregoing is
subject further to the terms and conditions of the Certificate of
Designation. If fewer than all of the Depositary Shares evidenced
by this Receipt are called for redemption, the Depositary will
deliver to the holder of this Receipt upon its surrender to the
Depositary, together with shares of Common Stock or other
securities and all accrued and unpaid dividends to and including
the date fixed for redemption payable in respect of the
Depositary Shares called for redemption, a new Receipt evidencing
the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
(4) Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at the Corporate
Office, the New York Office or at such other offices as the
Depositary may designate, and subject to the provisions of the
Deposit Agreement, the holder hereof is entitled to withdraw, and
to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole
shares of Stock) and all money and other property, if any, at the
time represented by the Depositary Shares evidenced by this
Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of
Stock to be withdrawn, the Depositary shall, in addition to such
whole number of shares of Stock and such money and other
property, if any, to be withdrawn, deliver, to or upon the order
of such holder, a new Receipt or Receipts evidencing such excess
number of whole Depositary Shares.
(5) Transfers, Split-ups, Combinations. Subject to
Paragraphs 6, 7 and 8 below, this Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the
Depositary at the Corporate Office or the New York Office, or at
such other offices as the Depositary may designate, properly
endorsed or accompanied by a properly executed instrument of
transfer, and upon such transfer the Depositary shall sign and
deliver a Receipt or Receipts to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit
Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary
shall not issue any Receipt evidencing a fractional Depositary
Share.
(6) Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of this
Receipt, the delivery of any distribution hereon or the
withdrawal or deposit of Stock, the Depositary, any of the
Depositary's Agents or R&B Falcon may require any or all of the
following: (i) payment to it of a sum sufficient for the payment
(or, in the event that the Depositary or R&B Falcon shall have
made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax
or charge with respect to Stock being deposited or withdrawn or
with respect to Common Stock or other securities or property of
R&B Falcon being issued upon conversion or redemption); (ii)
production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such
reasonable regulations, if any, as the Depositary or R&B Falcon
may establish not inconsistent with the Deposit Agreement. Any
person presenting Stock for deposit, or any holder of this
Receipt, may be required to file such proof of information, to
execute such certificates and to make such representations and
warranties as the Depositary or R&B Falcon may reasonably deem
necessary or proper. The Depositary or R&B Falcon may withhold or
delay the delivery of this Receipt, the registration of transfer,
redemption, conversion or exchange of this Receipt, the
withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or
other distribution until such proof or other information is
filed, such certificates are executed or such representations and
warranties are made.
(7) Suspension of Delivery, Transfer, etc. The deposit of
Stock may be refused and the delivery of this Receipt against
Stock or the registration of transfer, split-up, combination,
surrender or exchange of this Receipt and the withdrawal of
deposited Stock may be suspended (i) during any period when the
register of stockholders of R&B Falcon is closed, (ii) if any
such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or R&B Falcon at any time or from
time to time because of any requirement of law or of any
government or governmental body or commission, or under any
provision of the Deposit Agreement, or (iii) with the approval of
R&B Falcon, for any other reason. The Depositary shall not be
required (a) to issue, transfer or exchange any Receipts for a
period beginning at the opening of business 15 days next
preceding any selection of Depositary Shares and Stock to be
redeemed and ending at the close of business on the day of the
mailing of notice of redemption of Depositary Shares or (b) to
transfer or exchange for another Receipt any Receipt evidencing
Depositary Shares called or being called for redemption, in whole
or in part, or subject to conversion except as provided in the
last sentence of Paragraph 3.
(8) Payment of Taxes or Other Governmental Charges. If any
tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) this Receipt, (ii)
the Depositary Shares evidenced by this Receipt, (iii) the Stock
(or fractional interest therein) or other property represented by
such Depositary Shares, or (iv) any transaction referred to in
Section 4.6 of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of this Receipt, who shall
pay the amount thereof to the Depositary. Until such payment is
made, registration of transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property (including Common Stock or other securities
received in connection with a conversion or redemption of Stock)
represented by the Depositary Shares evidenced by this Receipt
may be sold for the account of the holder hereof (after
attempting by reasonable means to notify such holder prior to
such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt
remaining liable for any deficiency.
(9) Amendment. The form of the Receipts and any provision of
the Deposit Agreement may at any time and from time to time be
amended by agreement between R&B Falcon and the Depositary in any
respect that they may deem necessary or desirable. Any amendment
that shall impose or increase any fees, taxes or charges payable
by holders of Receipts (other than taxes and other governmental
charges, fees and other expenses payable by holders as provided
herein or in the Deposit Agreement), or that shall otherwise
prejudice any substantial existing right of holders of Receipts,
shall not become effective as to outstanding Receipts until the
expiration of 90 days after notice of such amendment shall have
been given to the record holders of outstanding Receipts. The
holder of this Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold this Receipt, to
consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of
Paragraphs 3, 4, 6, 7 and 8 hereof and of Sections 2.3, 2.6 and
2.7 and Article 3 of the Deposit Agreement, of the owner of the
Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the
holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory
provisions of applicable law.
(10) Fees, Charges and Expenses. R&B Falcon will pay all
fees, charges and expenses of the Depositary, except for taxes
(including transfer taxes, if any) and other governmental charges
and such charges as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Stock,
holders of Receipts or other persons.
(11) Title to Receipts. It is a condition of this Receipt,
and every successive holder hereof by accepting or holding the
same consents and agrees, that title to this Receipt (and to the
Depositary Shares evidenced hereby), when properly endorsed or
accompanied by a properly executed instrument of transfer, is
transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary
may, notwithstanding any notice to the contrary, treat the record
holder hereof at such time as the absolute owner hereof for the
purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in
the Deposit Agreement and for all other purposes.
(12) Dividends and Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the
Stock, the Depositary shall, subject to the provisions of the
Deposit Agreement, distribute to record holders of Receipts such
amounts of such sums as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided,
however, that in case R&B Falcon or the Depositary shall be
required by law to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner
of Depositary Shares a fraction of one cent and any balance not
so distributable shall be held by the Depositary (without
liability for interest thereon) and shall be added to and be
treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
(13) Subscription Rights, Preferences or Privileges. If R&B
Falcon shall at any time offer or cause to be offered to the
persons in whose name Stock is registered on the books of R&B
Falcon any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions
of the Deposit Agreement, be made available by the Depositary to
the record holders of Receipts in such manner as R&B Falcon shall
instruct.
(14) Notice of Dividends, Fixing of Record Date. Whenever
(i) any cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be made, or
any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or (ii) the Depositary shall
receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice or of the mandatory conversion of, or any election on the
part of R&B Falcon to call for redemption of, any shares of
Stock, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by
R&B Falcon with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to
give instructions for the exercise of voting rights at any such
meeting or of such meeting or to receive notice of such
conversion or redemption.
(15) Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record
holders of Receipts a notice, which shall contain (i) such
information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business
on a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designation,
to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective
Depositary Shares, and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request
of a holder of this Receipt on such record date the Depositary
shall endeavor insofar as practicable to vote or cause to be
voted the Stock represented by the Depositary Shares evidenced by
this Receipt in accordance with the instructions set forth in
such request. R&B Falcon hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Stock or cause such Stock to
be voted. In the absence of specific instructions from the holder
of this Receipt, the Depositary will abstain from voting to the
extent of the Stock represented by the Depositary Shares
evidenced by this Receipt.
(16) Reports, Inspection of Transfer Books. The Depositary
shall make available for inspection by holders of Receipts at the
Corporate Office, the New York Office and at such other places as
it may from time to time deem advisable during normal business
hours any reports and communications received from R&B Falcon
that are received by the Depositary as the holder of Stock. The
Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all
reasonable times will be open for inspection by the record
holders of Receipts; provided that any such holder requesting to
exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to
such person's interest as an owner of Depositary Shares.
(17) Liability of the Depositary, the Depositary's Agents,
the Registrar and R&B Falcon. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor R&B Falcon shall incur
any liability to any holder of this Receipt, if by reason of any
provision of any present or future law or regulation thereunder
of any governmental authority or, in the case of the Depositary,
the Registrar or any Depositary's Agent, by reason of any
provision present or future, of the Certificate of Incorporation
or the Certificate of Designation or, in the case of R&B Falcon,
the Depositary, the Registrar or any Depositary's Agent, by
reason of any act of God or war or other circumstances beyond the
control of the relevant party, the Depositary, any Depositary's
Agent, the Registrar or R&B Falcon shall be prevented or
forbidden from doing or performing any act or thing that the
terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, the
Registrar or R&B Falcon incur any liability to any holder of this
Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms
of the Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or
the Registrar, if such exercise or failure to exercise discretion
is caused by its negligence or bad faith.
(18) Obligations of the Depositary, the Depositary's Agents,
the Registrar and R&B Falcon. R&B Falcon assumes no obligation
and shall be subject to no liability under the Deposit Agreement
or this Receipt to the holder hereof or other persons, except to
perform in good faith such obligations as are specifically set
forth and undertaken by it to perform in the Deposit Agreement.
Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under
the Deposit Agreement or this Receipt to the holder hereof or
other persons, except to perform such obligations as are
specifically set forth and undertaken by it to perform in the
Deposit Agreement without negligence or bad faith. Neither the
Depositary nor any Depositary's Agent nor the Registrar nor R&B
Falcon shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts or Common Stock that in its
opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished
as often as may be required. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor R&B Falcon will be
liable for any action or failure to act by it in reliance upon
the advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of this Receipt
or any other person believed by it in good faith to be competent
to give such advice or information.
(19) Termination of Deposit Agreement. Whenever so directed
by R&B Falcon, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the record
holders of all Receipts then outstanding at least 30 days prior
to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 60 days shall have expired after the Depositary shall have
delivered to R&B Falcon a written notice of its election to
resign and a successor depositary shall not have been appointed
and accepted its appointment as provided in Section 5.4 of the
Deposit Agreement. Upon the termination of the Deposit Agreement,
R&B Falcon shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.7 and 5.8 of the Deposit
Agreement. If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter
shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as
specifically provided therein.
(20) Governing Law. The Deposit Agreement and this Receipt
and all rights thereunder and hereunder and provisions thereof
and hereof shall be governed by, and construed in accordance
with, the law of the State of New York without giving effect to
principles of conflict of laws.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ___________________ the within Receipt and all
rights and interests represented by the Depositary Shares
evidenced thereby, and hereby irrevocably constitutes and
appoints ________________ his attorney, to transfer the same on
the books of the within-named Depositary, with full power of
substitution in the premises.
Dated:____________ Signature: ______________
NOTE: The signature to assignment
must correspond with name as
written upon the face of the
Receipt in every particular,
without alteration or enlargement,
or any change whatever.
