<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
( X ) Quarterly report pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED June 30, 1996
OR
( ) Transition report pursuant to section 13 or 15[d] of the Securities
Exchange Act of 1934
For the transition period from to
Commission file number 1-7792
Pogo Producing Company
(Exact name of registrant as specified in its charter)
Delaware 74-1659398
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 Greenway Plaza, Suite 2700
Houston, Texas 77046-0504
(Address of principal executive offices) (Zip Code)
(713) 297-5000
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirement for the past 90 days: Yes X No
Registrant's number of common shares outstanding
as of June 30, 1996: 33,197,827
<PAGE>
Part I. Financial Information
Pogo Producing Company and Subsidiaries
Consolidated Statements of Income (Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
--------------------------------- -------------------------------
1996 1995 1996 1995
------------- --------------- ----------- --------------
(Expressed in thousands, except per share amounts)
<S> <C> <C> <C> <C>
Revenues:
Oil and gas $ 51,543 $ 41,738 $ 99,760 $ 83,448
Gains (losses) on sales -- -- (165) 100
------------- --------------- ----------- --------------
Total 51,543 41,738 99,595 83,548
------------- --------------- ----------- --------------
Operating Costs and Expenses:
Lease operating 9,205 8,177 18,080 16,664
General and administrative 4,383 4,335 9,804 8,676
Exploration 3,966 1,117 7,876 2,492
Dry hole and impairment 2,568 943 5,118 2,371
Depreciation, depletion and amortization 15,793 17,939 31,506 36,396
------------- --------------- ----------- --------------
Total 35,915 32,511 72,384 66,599
------------- --------------- ----------- --------------
Operating Income 15,628 9,227 27,211 16,949
Interest:
Charges (3,172) (2,735) (6,184) (5,526)
Income 124 19 139 60
Capitalized 1,004 93 1,830 236
------------- --------------- ----------- --------------
Income Before Income Taxes 13,584 6,604 22,996 11,719
Income Tax Expense (4,647) (2,251) (7,794) (3,935)
------------- --------------- ----------- --------------
Income Before Extraordinary Loss 8,937 4,353 15,202 7,784
Extraordinary Loss on
Early Extinguishment of Debt (821) -- (821) --
------------- --------------- ----------- --------------
Net Income $ 8,116 $ 4,353 $ 14,381 $ 7,784
============= =============== =========== ==============
Primary Earnings Per Share:
Income before extraordinary loss $ 0.26 $ 0.13 $ 0.44 $ 0.23
Extraordinary loss (0.02) -- (0.02) --
------------- --------------- ----------- --------------
Net Income $ 0.24 $ 0.13 $ 0.42 $ 0.23
============= =============== =========== ==============
Fully Diluted Earnings Per Share:
Income before extraordinary loss $ 0.25 $ 0.13 $ 0.44 $ 0.23
Extraordinary loss (0.02) -- (0.02) --
------------- --------------- ----------- --------------
Net Income $ 0.23 $ 0.13 $ 0.42 $ 0.23
============= =============== =========== ==============
Dividends Per Common Share $ 0.03 $ 0.03 $ 0.06 $ 0.06
============= =============== =========== ==============
</TABLE>
See accompanying notes to consolidated financial statements.
- 1 -
<PAGE>
Pogo Producing Company and Subsidiaries
Consolidated Balance Sheets
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
-------------- -------------
(Unaudited)
(Expressed in thousands,
except share amounts)
<S> <C> <C>
Assets
Current Assets:
Cash and cash investments $ 18,835 $ 4,481
Accounts receivable 26,857 21,820
Other receivables 25,367 30,504
Inventories 8,074 6,438
Other 1,465 722
------------- -------------
Total current assets 80,598 63,965
------------- -------------
Property and Equipment:
Oil and gas, on the basis of successful efforts accounting
Proved properties being amortized 977,207 963,330
Unproved properties and properties
under development, not being amortized 77,595 47,431
Other, at cost 7,605 8,811
-------------- -------------
1,062,407 1,019,572
Less--accumulated depreciation, depletion and
amortization, including $4,503 and $5,603,
respectively, applicable to other property 787,674 757,739
-------------- -------------
274,733 261,833
-------------- -------------
Other 17,273 12,379
-------------- -------------
$ 372,604 $ 338,177
============== =============
Liabilities and Shareholders' Equity
Current Liabilities:
Accounts payable $ 9,221 $ 10,007
Other payables 15,623 35,254
Current portion of long-term debt -- 3,000
Accrued interest payable 1,713 1,714
Accrued payroll and related benefits 2,723 1,239
Other 119 103
-------------- -------------
Total current liabilities 29,399 51,317
-------------- -------------
Long-Term Debt 202,550 163,249
Deferred Federal Income Tax 41,942 41,409
Deferred Credits 10,831 10,494
-------------- -------------
Total liabilities 284,722 266,469
-------------- -------------
Shareholders' Equity:
Preferred stock, $1 par; 2,000,000 shares authorized -- --
Common stock, $1 par; 100,000,000 shares
authorized, 33,213,402 and
33,006,972 shares issued, respectively 33,214 33,007
Additional capital 136,428 132,881
Retained earnings (deficit) (81,459) (93,856)
Currency translation adjustment 23 --
Treasury stock, at cost (324) (324)
-------------- -------------
Total shareholders' equity 87,882 71,708
-------------- -------------
$ 372,604 $ 338,177
============== =============
</TABLE>
See accompanying notes to consolidated financial statements.
- 2 -
<PAGE>
Pogo Producing Company and Subsidiaries
Condensed Consolidated Statements of Cash Flows (Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
-----------------------------------
1996 1995
-------------- --------------
(Expressed in thousands)
<S> <C> <C>
Cash Flows from Operating Activities:
Cash received from customers $ 94,723 $ 91,691
Operating, exploration, and general
and administrative expenses paid (36,546) (28,096)
Interest paid (6,185) (5,479)
Federal income taxes paid (6,000) --
Other (1,632) (1,055)
-------------- --------------
Net cash provided by operating activities 44,360 57,061
-------------- --------------
Cash Flows from Investing Activities:
Capital expenditures (64,089) (50,625)
Purchase of proved reserves -- (11,921)
Proceeds from the sales of properties 100 100
-------------- --------------
Net cash used in investing activities (63,989) (62,446)
-------------- --------------
Cash flows from Financing Activities:
Proceeds from issuance of new debt 115,000 --
Net borrowings (payments) under revolving credit agreement (29,000) 8,000
Net borrowings (payments) under uncommitted lines
of credit with banks (9,000) 1,000
Payments of cash dividends on common stock (1,984) (1,969)
Purchase of 8% debentures due 2005 (40,699) (450)
Payment of debt issue expenses (2,875) --
Proceeds from exercise of stock options 2,518 845
-------------- --------------
Net cash provide by financing activities 33,960 7,426
-------------- --------------
Effect of Exchange Rate Changes 23 __
-------------- --------------
Net Increase in Cash and Cash Investments 14,354 2,041
Cash and Cash Investments at the Beginning of the Year 4,481 2,922
-------------- --------------
Cash and Cash Investments at the End of the Period $ 18,835 $ 4,963
============== ==============
Reconciliation of Net Income to Net
Cash Provided by Operating Activities:
Net income $ 14,381 $ 7,784
Adjustments to reconcile net income to
net cash provided by operating activities -
Extraordinary loss on early extinguishment
of debt (net of tax) 821 --
(Gains) losses from the sales of properties 165 (100)
Depreciation, depletion and amortization 31,506 36,396
Dry hole and impairment 5,118 2,371
Interest capitalized (1,830) (236)
Deferred federal income taxes 2,212 4,245
Change in operating assets and liabilities (8,013) 6,601
-------------- --------------
Net Cash Provided by Operating Activities $ 44,360 $ 57,061
============== ==============
</TABLE>
See accompanying notes to consolidated financial statements.
- 3 -
<PAGE>
Pogo Producing Company and Subsidiaries
Consolidated Statements of Shareholders' Equity (Unaudited)
<TABLE>
<CAPTION>
Six Months Ended June 30,
--------------------------------------------------------------
1996 1995
-------------------------- -----------------------------
Shares Amount Shares Amount
---------- ------------ ---------- -------------
(Expressed in thousands, except share amounts)
<S> <C> <C> <C> <C>
Common Stock:
$1.00 par - 100,000,000 shares authorized
Balance at beginning of year 33,006,972 $ 33,007 32,825,836 $ 32,826
Stock options exercised 206,430 207 91,458 91
---------- ------------ ---------- -------------
Issued at end of period 33,213,402 33,214 32,917,294 32,917
---------- ------------ ---------- -------------
Additional Capital:
Balance at beginning of year 132,881 130,675
Stock options exercised 3,547 1,229
-------------- -------------
Balance at end of period 136,428 131,904
-------------- -------------
Retained Earnings (Deficit):
Balance at beginning of year (93,856) (99,140)
Net income 14,381 7,784
Dividends ($0.06 per common share) (1,984) (1,969)
------------ -------------
Balance at end of period (81,459) (93,325)
------------ -------------
Treasury Stock:
Balance at beginning of year (15,575) (324) (15,575) (324)
Activity during period -- -- -- --
---------- ------------ ---------- -------------
Balance at end of period (15,575) (324) (15,575) (324)
---------- ------------ ---------- -------------
Cumulative Foreign
Currency Translation 23 --
------------ -------------
Common Stock Outstanding,
at the End of the Period 33,197,827 32,901,719
========== ==========
Total Shareholders' Equity $ 87,882 $ 71,172
============ =============
</TABLE>
See accompanying notes to consolidated financial statements.
- 4 -
<PAGE>
Pogo Producing Company and Subsidiaries
Notes to Consolidated Financial Statements (Unaudited)
(1) General Information -
The consolidated financial statements included herein have been
prepared by Pogo Producing Company (the "Company") without audit and
include all adjustments (of a normal and recurring nature) which are, in
the opinion of management, necessary for the fair presentation of interim
results which are not necessarily indicative of results for the entire
year. The financial statements should be read in conjunction with the
consolidated financial statements and notes thereto included in the
Company's latest annual report.
(2) Long-Term Debt -
Long-term debt and the amount due within one year at June 30,
1996 and December 31, 1995, consists of the following:
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
-------------- -------------
(Expressed in thousands)
<S> <C> <C>
Senior debt --
Bank revolving credit agreement
LIBO Rate based loan, borrowing at
an interest rate of 6.81% $ -- $ 27,000
Prime rate based loan, borrowing at
an interest rate of 8.5% -- 2,000
Uncommitted credit lines with banks, borrowings at
average interest rates of 6.8% -- 9,000
-------------- -------------
Total senior debt -- 38,000
-------------- -------------
Subordinated debt --
5 1/2% Convertible subordinated notes due 2004 86,250 86,250
5 1/2% Convertible subordinated notes due 2006 115,000 --
8% Convertible subordinated debentures due 2005 1,300 41,999
-------------- -------------
Total subordinated debt 202,550 128,249
-------------- -------------
Total debt 202,550 166,249
Amount due within one year consisting of the sinking fund
requirement on the 2005 Debentures -- (3,000)
-------------- -------------
Long-term debt $ 202,550 $ 163,249
============== =============
</TABLE>
On June 18, 1996, the Company issued $115,000,000 of 5 1/2%
Convertible Subordinated Notes due 2006 (the "2006 Notes"). The 2006
Notes are convertible into common stock of the Company at a price of
$42.185 per share. The proceeds from the issuance of the 2006 Notes
were used to retire all but $1,300,000 of the remaining balance of the
Company's 8% Convertible Subordinated Debentures due 2005 (the "2005
Debentures"), to repay the amount outstanding under the Company's bank
revolving credit agreement and uncommitted lines of credit with banks,
and to purchase short-term cash investments. Holders of $1,300,000 of
the 2005 Debentures elected to convert (in July 1996) their holdings
into common stock of the Company at $39.50 per share. Refer to Note
3 of the Notes to Consolidated Financial
Statements included in the Company's latest annual report for a further
discussion of the bank revolving credit agreement and the 5 1/2%
Convertible Subordinated Notes due 2004 (the "2004 Notes").
- 5 -
<PAGE>
Pogo Producing Company and Subsidiaries
Notes to Consolidated Financial Statements (Unaudited)
(3) Earnings per Share -
Earnings per common and common equivalent share (primary earnings
per share) are based on the weighted average number of shares of common
stock and common equivalent shares outstanding during the periods. The
dilutive effect of stock options was considered in the earnings per share
reported for the periods. The 2005 Debentures (all but $1,300,000 of which
were retired on June 28, 1996) are common stock equivalents and were ant-
dilutive in all periods. Earnings per common and common equivalent share
assuming full dilution (fully diluted earnings per share) considered the
2004 Notes, which were dilutive in the 1996 periods, but anti-dilutive in
the 1995 periods, and the 2006 Notes (issued on June 18, 1996) which were
anti-dilutive in the 1996 periods they were outstanding. Earnings per
share are based on the following:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
--------------------------------- -------------------------------
1996 1995 1996 1995
------------- --------------- ----------- --------------
(Expressed in thousands)
<S> <C> <C> <C> <C>
Earnings applicable to common stock:
Primary --
Income before extraordinary loss $ 8,937 $ 4,353 $ 15,202 $ 7,784
Extraordinary loss (821) -- (821) --
------------- --------------- ----------- --------------
Net Income $ 8,116 $ 4,353 $ 14,381 $ 7,784
============= =============== =========== ==============
Fully diluted --
Income before extraordinary loss $ 9,708 $ 4,353 $ 16,744 $ 7,784
Extraordinary loss (821) -- (821) --
------------- --------------- ----------- --------------
Net Income $ 8,887) $ 4,353 $ 15,923 $ 7,784
============= =============== =========== ==============
Weighted average number of common
stock and common equivalent
shares outstanding:
Primary 33,976 33,495 33,905 33,426
Fully diluted 37,899 37,496 37,821 33,458
</TABLE>
- 6 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
This discussion should be read in conjunction
with Management's Discussion and Analysis of Financial
Condition and Results of Operations included in the
Company's annual report on Form 10-K for the year
ended December 31, 1995.
Results of Operations -
The Company reported net income for the
second quarter of 1996 of $8,116,000 or $0.24 per share
($0.23 on a fully diluted basis) compared to net income
for the second quarter of 1995 of $4,353,000 or $0.13
per share (on both a primary and a fully diluted basis). For the
first six months of 1996, the Company reported net
income of $14,381,000 or $0.42 per share (on both a primary and
fully diluted basis) compared to net income for the first six months
of 1995 of $7,784,000 or $0.23 per share (on both a primary and a
fully diluted basis). The Company recorded an extraordinary loss
during the second quarter of 1996 of $821,000, or $0.02 per share
related to early
retirement of the Company's 2005 Debentures with the proceeds
from the Company's issuance of its 2006 Notes on June 18, 1996.
Earnings per share are based on the
weighted average number of common and common
equivalent shares outstanding for the second quarter and
first six months of 1996 of 33,976,000 and
33,905,000, respectively, compared to 33,495,000 and
33,426,000, respectively, for the second quarter and
first six months of 1995. The increases in the
weighted average number of common and common equivalent
shares outstanding for the 1996 periods, compared to
the 1995 periods,
resulted primarily from the issuance of shares of common stock
upon the exercise of stock options pursuant to the Company's
stock option plans. Earnings per share
computations on a fully diluted basis in the 1996 periods
primarily reflect
additional shares of common stock issuable upon the assumed
conversion of the Company's 2004 Notes (the only
convertible securities of the Company that were
dilutive during any of the periods presented) and the
elimination of related interest requirements, as adjusted for
applicable federal income taxes. The weighted average
number of shares of common and common equivalent shares
outstanding on a fully diluted basis for the second
quarter and first six months of 1996 were 37,899,000 and
37,821,000, respectively, compared to 33,496,000 and
33,458,000, respectively, for the second quarter and
first six months of 1995. Earnings applicable to common stock,
assuming full dilution, for the second quarter and first six months of
1996 were $8,887,000 and $15,923,000, respectively,
compared to $4,353,000 and $7,784,000, respectively, for
the second quarter and first six months of 1995.
The Company's total revenues for the second
quarter of 1996 were $51,543,000, an increase of
approximately 23% compared to total revenues of
$41,738,000 for the second quarter of 1995. The
- 7 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
Company's total revenues for the first six
months of 1996 were $99,595,000, an increase of approximately 19%
compared to total revenues of $83,548,000 for the first six
months of 1995. The increase in the Company's total revenues for
the second quarter and first six months of 1996, compared to the
second quarter and first six months of 1995, resulted primarily
from increases in the prices that the Company received for its
natural gas and liquid hydrocarbon (including crude oil, condensate
and natural gas liquid ("NGL")) production volumes and, to a lesser
extent, the increase in the Company's crude oil and condensate
production volumes, that were only partially offset by decreases in
the Company's natural gas and NGL production volumes. In addition, the
total revenues for the first six months of 1996, compared to the
first six months of 1995, were adversely affected by a $165,000 loss on
the sale of a non-strategic property in the first quarter
of 1996, together with a $100,000 gain on the sale of another
non-strategic property in the first quarter of 1995.
The following table reflects an analysis of
differences in the Company's oil and gas revenues (expressed
in thousands of dollars) between the second quarter and
first six months of 1996 and the same periods in the
preceding year.
<TABLE>
<CAPTION>
2nd Qtr '96 6 mos. '96
Compared to Compared to
2nd Qtr '95 6 mos. '95
----------- ----------
<S> <C> <C>
Increase (decrease) in total revenues
resulting from differences in :
Natural gas --
Price . . . . . . . . . . . . . . . . $ 7,673 $ 18,547
Production . . . . . . . . . . . . . . (3,925) (10,982)
--------- ---------
3,748 7,565
--------- ---------
Crude oil and condensate --
Price . . . . . . . . . . . . . . . . 4,515 6,807
Production . . . . . . . . . . . . . . 861 956
--------- ---------
5,376 7,763
--------- ---------
NGL and other, net . . . . . . . . . . . 681 984
--------- ---------
Increase in oil and gas revenues . . . . $ 9,805 $ 16,312
========= =========
</TABLE>
- 8 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
Prices per thousand cubic feet ("Mcf") that the
Company received for its natural gas production during the second
quarter of 1996 averaged $2.31 per Mcf, an increase of approximately
41% from an average price of
$1.64 per Mcf that the Company received during the
second quarter of 1995. Prices that the Company received
for its natural gas production during
the first six months of 1996 averaged $2.36 per Mcf, an increase
of approximately 47% from an average price of
$1.61 per Mcf that the Company received during the
first six months of 1995.
The Company's natural gas production during the second quarter
of 1996 averaged 106.6 million cubic feet ("MMcf") per day, a decrease
of approximately 15% from an average of 125.3 MMcf
per day that the Company produced during the second
quarter of 1995. The Company's natural gas production
during the first six months of 1996 averaged 108.9 MMcf
per day, a decrease of approximately 19% from an
average of 135.2 MMcf per day that the Company
produced during the first six months of 1995.
The decrease in the Company's natural gas production during
the second quarter and first six months of 1996, compared to
the second quarter and first six months of 1995, was related in large
measure to the lower levels of offshore Gulf of Mexico development drilling
in 1995 (only four wells) resulting from unusually low natural gas prices
in 1995, and from the anticipated decline from certain of the Company's
properties, particularly the shallow reservoir horizontal wells located
at Eugene Island Block 295 and Ship Shoal Block 240 fields, that was not
entirely offset by new and increased production resulting from the Company's
continued offshore drilling and workover program. High 1996 levels of
development drilling activity are expected to result in higher average
daily natural gas production in late 1996 and in 1997. As of August 1, 1996,
the Company was not a party to any future natural gas sales contracts.
Prices received by the Company for its crude
oil and condensate production during the second quarter of 1996
averaged $22.58 per barrel, an increase of approximately 22% from
the average price of $18.51 per barrel that the Company
received during the second quarter of 1995. Prices that the
Company received for its crude oil and condensate production during
the first six months of 1996 averaged $21.14 per barrel, an increase of
approximately 17% from an average price of $18.02 per barrel
that the Company received during the first six months of 1995.
The Company's crude oil and condensate production during the
second quarter of 1996 averaged 12,605 barrels per day, an increase of
approximately 3% from an average of 12,186 barrels per day during
the second quarter of 1995. The Company's crude oil and condensate
production during the first six months of 1996 averaged 12,247
barrels per day, an increase of approximately 2% from an average of
12,065 barrels per day during the first six months of 1995.
The increase in the Company's crude oil and condensate production during
the second quarter and first six months of
- 9 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
1996, compared to the second quarter and first six months of 1995, resulted
primarily from the success of
the Company's ongoing development drilling and workover programs in
the offshore Gulf of Mexico and in Lea and Eddy Counties of
southeastern New Mexico. As of August 1, 1996,
the Company was not a party to any crude oil swap agreements.
The prices that the Company typically receives for its NGL
production is related to the prices that the Company receives for its
crude oil production. However, because NGL is extracted from natural gas,
the Company's NGL production volumes usually parallel the Company's natural
gas production volumes. The Company's oil and gas revenues, and total
liquid hydrocarbon production volumes reflect the production and sale of
NGL by the Company. In addition, the Company's oil and gas revenues for
the second quarter and first six months of 1996 and 1995 also reflect
adjustments for various miscellaneous items of a non-recurring nature.
The Company's NGL and "other" net revenues for the second quarter
and first six months of 1996 increased $681,000 and $984,000,
from the second quarter and first six months of 1995, respectively.
The increase in the Company's NGL and "other" net revenues for the second
quarter and first six months of 1996, compared to the second quarter
and first six months of 1995, was primarily related to an increase in the
average price that the Company received for its NGL production, together
with an increase in various miscellaneous net income items, including
increased revenues resulting from leasing a portion of its interest
in a pipeline located in the Gulf of Mexico, that was partially
offset by decreased NGL production.
The Company's average liquid hydrocarbon (including crude oil,
condensate and NGL) production during the second quarter
of 1996 was 15,077 barrels per day, an increase of
approximately 2% from an average liquid hydrocarbon production
of 14,825 barrels per day during the second quarter of 1995.
The Company's average liquid hydrocarbon production during the first six
months of 1996 was 14,475 barrels per day, a slight decrease
from an average liquid hydrocarbon production
of 14,528 barrels per day during the first six months of 1995.
Lease operating expenses for the second quarter of
1996 were $9,205,000, an increase of approximately 13% from lease
operating expenses of $8,177,000 for the second quarter of 1995.
Lease operating expenses for the first six months of 1996 were
$18,080,000, an increase of approximately 8% from lease operating
expenses of $16,664,000 for the first six months of 1995.
The increases in lease operating expenses for the second quarter
and first six months of 1996, compared to the second quarter
and first six months of 1995, resulted primarily from
increased operating activity by the Company and its industry partners; and,
further, by increased costs to the Company (and the entire offshore oil
industry) because of an increasing shortage of qualified offshore
- 10 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
service contractors, which has permitted such contractors to increase
the costs of their services significantly in the last year, together
with increased severance taxes resulting from increased production
from certain of the Company's properties that have higher severance
tax obligations.
General and administrative expenses for the second
quarter of 1996 were $4,383,000, an increase of approximately 1% from
general and administrative expenses of $4,335,000 for the second
quarter of 1995. The increase in general and administrative expenses
for the second quarter of 1996, compared with the second quarter of 1995,
was related to, among other things, an increase in the size of the Company's
work force resulting from the Company's increased exploration and production
related activities, increased expenses related to changes in the actuarial
assumptions for the Company's salary continuation plan and increased expenses
related to the establishment of a Company office in Bangkok, Thailand, that were
almost entirely offset in the quarter by decreases in miscellaneous general
and administrative expense items. General and administrative expenses for
the first six months of 1996 were $9,804,000, an increase of approximately 13%
from general and administrative expenses of $8,678,000 for the first
six months of 1995. The increase in general and administrative
expenses for the first six months of 1996,
compared to the first six months of 1995, was
related to, among other things, a non-recurring settlement made in
connection with the termination of an employment contract, an increase in
the size of the Company's work force resulting from increased exploration
and production related activities, increased expenses related to the
changes in the actuarial assumptions for the Company's salary continuation
plan and the establishment of
a Company office in Bangkok, Thailand, that were not entirely offset by
decreases in various general and administrative items, primary among
which was a decrease in insurance premiums.
Exploration expenses consist primarily of delay rentals and
geological and geophysical costs which are expensed as incurred.
Exploration expenses for the second quarter of 1996 were $3,966,000, an
increase of approximately 255% from exploration expenses of $1,117,000
for the second quarter of 1995. Exploration expenses for the first
six months of 1996 were $7,876,000, an increase of approximately 216%
from exploration expenses of $2,492,000 for the first six months of 1995.
The increase in exploration expenses for the second quarter and first
six months of 1996, compared to the second quarter and first
six months of 1995,
resulted primarily from increased geophysical activity by the
Company, including principally the costs of conducting and processing certain
proprietary 3-D seismic surveys on Company leases in West Texas, South Louisiana
and East Texas, and to a lesser extent, the cost of participation in, and
acquisition of, certain non-proprietary 3-D seismic surveys in the onshore
and offshore Gulf of Mexico region.
- 11 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
Dry hole and impairment expenses relate to costs of
unsuccessful wells drilled, along with impairments due to decreases in
expected reserves from producing wells. The Company's dry
hole and impairment expenses for the second quarter of 1996 were
$2,568,000, an increase of approximately 172% from dry hole and
impairment expenses of $943,000 for the second quarter of 1995. The
Company's dry hole and impairment expenses for the first six months of
1996 were $5,118,000, an increase of approximately 116% from dry hole and
impairment expenses of $2,371,000 for the first six months of 1995.
The Company accounts for its oil and gas activities using the
successful efforts method of accounting. Under the successful
efforts method, lease acquisition costs and all development costs are
capitalized. Unproved properties are reviewed whenever events or
changes in circumstances indicate that the carrying amount of such asset
may not be recoverable. Unproved properties are reviewed quarterly, with
any such impairment charged to expense in the period. Exploratory drilling
costs are capitalized until the results are determined. If proved
reserves are not discovered, the exploratory drilling costs are
expensed. Other exploratory costs are expensed as incurred.
The provision for depreciation, depletion and amortization
("DD&A") is based on the capitalized costs, as determined in the preceding
paragraph, plus future costs to abandon offshore wells and platforms, and
is determined on a cost center by cost center basis using the units of
production method. The Company's DD&A expense for the second quarter of
1996 was $15,793,000, a decrease of approximately 12% from DD&A
expense of $17,939,000 for the second quarter of 1995. The Company's
DD&A expense for the first six months of 1996 was $31,506,000, a
decrease of approximately 13% from DD&A expense of $36,396,000 for the
first six months of 1995. The decreases in DD&A expense for the second
quarter and first six months of 1996, compared to the second
quarter and first six months of 1995, resulted
primarily from decreased production of oil and gas from the Company's
properties and, to a lesser extent, a decrease in the Company's composite
DD&A rate. The composite DD&A rate for all of the
Company's producing fields for the second quarter of 1996 was $0.87
per equivalent Mcf ($5.22 per equivalent barrel), a decrease of
approximately 4% from a composite DD&A rate of $0.91 per equivalent
Mcf ($5.47 per equivalent barrel) for the second quarter of 1995.
The composite DD&A rate for all of the Company's producing fields for
the first six months of 1996 was $0.87 per equivalent Mcf ($5.24 per equivalent
barrel), a decrease of approximately 3% from a composite DD&A rate of $0.90
per equivalent Mcf ($5.38 per equivalent barrel) for the first six
months of 1995. The decrease in the composite DD&A rate for all of the
Company's producing fields for the second quarter and the first six months
of 1996, compared to the second quarter and
- 12 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
first six months of 1995,
resulted primarily from an increased percentage of the Company's production
coming from certain of the Company's fields that have DD&A rates that are
lower than the Company's recent historical composite rate and a corresponding
decrease in the percentage of the Company's production coming from fields
that have DD&A rates that are higher than the Company's recent historical
composite DD&A rate. The Company produced 17,932,000 equivalent Mcf
(2,989,000 equivalent
barrels) during the second quarter of 1996, a decrease of approximately
8% from the 19,496,000 equivalent Mcf (3,249,000 equivalent barrels)
produced by the Company during the second quarter of 1995.
The Company produced 35,628,000 equivalent Mcf (5,938,000
equivalent barrels) during the first six months of 1996, a decrease of
approximately 11% from the 40,245,000 equivalent Mcf (6,708,000 equivalent
barrels) produced by the Company during the first six months of 1995.
The Company incurred interest charges for the second quarter
of 1996 of $3,172,000, an
increase of approximately 16% from interest charges of
$2,735,000 for the second quarter of 1995. The increase in interest charges
for the second quarter of 1996, compared to the second quarter of 1995,
resulted primarily from an increase in the average amount of the Company's
outsanding debt and, to a lesser extent, the interest rate levels on such
debt, which was only partially offset by a decrease in commitment fees
(attributable, in part, to a voluntary decrease by the Company in its
commitment amount available under the Company's revolving loan facility and,
in part, to a decreased fee structure on such facility that was negotiated
in 1995). Interest charges incurred by the Company for the first six months
of 1996 were $6,184,000,
an increase of approximately 12% from interest charges of $5,526,000 for the
first six months of 1995. The increase in interest charges for the first six
months of 1996, compared to the first six months of 1995, resulted primarily
from an increase in the amount of the Company's outstanding debt, that was
only partially offset by a slight decrease in the average interest rate level
on such debt and a decrease in the commitment fees paid by the Company on its
revolving loan facility (for the reasons previously discussed). Interest
income for the second quarter of 1996 was $124,000, an increase of
approximately 553% from interest income of $19,000 for the second quarter of
1995. Interest income for the first six months of 1996 was $139,000, an
increase of approximately 132% from interest income of $60,000 for the first
six months of 1995. The increase in interest income for the second quarter
and first six months of 1996, compared to the second quarter and first six
months of 1995, resulted primarily from an increase in the Company's
cash invesments related to the placement of the Company's 2006 Notes in June,
1996. Capitalized interest expense for the second quarter of 1996 was
$1,004,000, an increase of approximately 980% from capitalized interest
expense of $93,000 for the first quarter of 1995. Capitalized interest
expense for the first six months of 1996 was $1,830,000, an increase of
approximately 675% from capitalized interest expense of $236,000 for the
first six months of 1995.
- 13 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
The increase in capitalized interest expense for
the second quarter and first six months of 1996, compared to the second
quarter and first six months of 1995, resulted primarily from the
requirement to capitalize interest expense attributable to capital
expenditures on non-producing properties, principally capital expenditures
related to the Company's development of the Tantawan field in the Gulf of
Thailand.
As of August 1, 1996, the Company was a party to an interest rate
swap agreement. The swap agreement, which terminates on March 10, 1998,
effectively changes the interest rate that the Company would pay on
$5,000,000 of debt from a market based variable rate to a fixed rate of 7.2%.
Income tax expense for the second quarter of 1996 was
$4,647,000, an increase of approximately 106% from income tax expense
of $2,251,000 for the second quarter of 1995. Income tax expense
for the first six months of 1996 was $7,794,000, an increase of
approximately 98% from income tax expense of $3,935,000 for the
first six months of 1995. The increase in income tax expense for the
second quarter and first six months of 1996, compared to the second
quarter and first six months of 1995, resulted primarily
from increased pre-tax income.
Liquidity and Capital Resources -
The Company's Condensed Consolidated Statement of Cash Flows for
the six months ended June 30, 1996, reflects net cash provided by operating
activities of $44,360,000. In addition to net cash provided by operating
activities, the Company received net proceeds of $112,125,000 from the
issuance of the 2006 Notes on June 18, 1996, $2,518,000 from the exercise
of stock options and $100,000 from the sale of certain non-strategic
properties.
During the first six months of 1996, the Company invested $64,089,000
of such cash flow in capital projects, redeemed $40,699,000 of its 2005
Debentures, repaid $38,000,000 under its revolving credit facility and
uncommitted bank credit lines and paid $1,984,000 ($0.03 per share for each
of the first two quarters of 1996) in cash dividends to holders of the
Company's common stock. Of the $64,089,000
invested in capital projects, $35,254,000 was applicable to 1995 capital
projects and $28,835,000 was applicable to 1996
capital projects. As of June 30, 1996, the Company's cash and cash
investments were $18,835,000 and its long-term debt stood at $202,550,000.
The Company's capital and exploration budget for 1996, which
does not include any amounts that may be expended for the purchase of
proved reserves or any interest which may be capitalized resulting from
projects in progress, previously announced to be $165,000,000, has been
increased by
- 14 -
<PAGE>
Pogo Producing Company and Subsidiaries
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Continued)
the Company's Board of Directors to $180,000,000. In addition to anticipated
capital and exploration expenses, other material 1996 cash requirements
that the Company currently anticipates include ongoing operating, general
and administrative, income tax, interest expense and the payment of
dividends on its common stock,
including a $.03 per share dividend on its common stock to be paid on
August 23, 1996 to stockholders of record as of August 9, 1996.
The Company currently anticipates that its available cash and cash
investments, cash provided by operating
activities and funds available under its revolving credit facility
and uncommitted lines of credit with banks will be sufficient to fund
the Company's ongoing expenses, its 1996 capital and exploration
budget, any currently anticipated costs associated with the Company's
Thailand projects during 1996 and anticipated future
dividend payments. The declaration of future dividends will depend upon,
among other things, the Company's future earnings and financial condition,
liquidity and capital requirements, the general economic and regulatory
climate and other factors deemed relevant by the Company's Board of
Directors.
On June 18, 1996, the Company issued $115,000,000 principal amount
of its 2006 Notes. The 2006 Notes bear interest at a rate of 5 1/2%,
payable semi-annually in arrears on June 15 and December 15 of each year,
and are convertible into Common Stock at
$42.185 per share, subject to adjustment upon the occurrence of certain
events. The 2006 Notes will be redeemable, at the option of the Company,
in whole or in part, at any time on or after June 15, 1999, at a redemption
price of 103.85% of their principal amount and decreasing percentages
thereafter. No sinking fund payments are required on the 2006 Notes. The
2006 Notes are redeemable at the option of the holder, upon the occurence
of a repurchase event (a change of control as defined in the indenture
governing the 2006 Notes), at 100% of their principal amount.
- 15 -
<PAGE>
Pogo Producing Company and Subsidiaries
Part II. Other Information
Item 4. Submission of Matters to a Vote of Security-Holders
The registrant held it annual meeting of stockholders in
Houston, Texas on April 23, 1996. The following sets forth
the items that were put to a vote of the stockholders and
the results thereof concerning:
(A) the election of four directors, each for a term of
three years. Proxies for the meeting were solicited
pursuant to Regulation 14A under the Securities Exchange
Act of 1934. There were no solicitations in opposition
to management's nominees as listed in the proxy statement
and all such nominees were elected;
(B) the approval of the Company's 1995 Long-Term Incentive Plan
(the "Plan"), with 17,110,067 shares of stock cast for
approval of the Plan, 9,326,566 shares cast against approval
of the Plan either as negative votes or as broker non-votes,
and 372,428 abstentions; and
(C) the appointment of Arthur Andersen LLP, independent
public accountants, to audit the financial statements
of the registrant for the year 1996, with 30,395,829
shares of stock cast for the appointment, 33,691 against
the appointment, and 31,253 abstentions and broker non-votes.
Item 6. Exhibits and Reports on Form 8-K
(A) Exhibits
4(f) --Indenture dated as of June 15, 1996, to Fleet
National Bank, as Trustee.
10(k) --Gas Sales Agreement dated Novemer 7, 1995, among
The Petroleum Authority of Thailand, Thaipo,
Limited, Thai Romo Ltd. and
The Sophonpanich Co., Ltd.
(B) Reports on Form 8-K
A report of Form 8-K was filed on June 12, 1996,
setting forth under Item 5 thereof, certain
information regarding the issuance of new securities
by the registrant and the redemption of certian other
outstanding securities of the registrant.
- 16 -
<PAGE>
Pogo Producing Company and Subsidiaries
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Pogo Producing Company
Registrant
/s/ THOMAS E. HART
Thomas E. Hart
Vice President and Controller
/s/ JOHN W. ELSENHANS
John W. Elsenhans
Vice President and Treasurer
Date: August 1, 1996
- 17 -
<PAGE> 1
POGO PRODUCING COMPANY
TO
FLEET NATIONAL BANK
Trustee
--------------------
INDENTURE
Dated as of June 15, 1996
--------------------
5-1/2% Convertible Subordinated Notes due 2006
------------------------------------------------
<PAGE> 2
Pogo Producing Company
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of June 15, 1996
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . 703
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . 601
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) (last sentence) . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . 107
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agent Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Applicable Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Closing Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request" or "Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar", "$" or "U.S.$ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Effectiveness Period" has the meaning specified in Section 203. . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Initial Purchasers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
Issue Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Liquidated Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Purchase Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Registrable Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Registration Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Registration Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regulation D Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regulation S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regulation S Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regulation S Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regulation S Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regulation S Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Repurchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Repurchase Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Repurchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Securities Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Securities Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rule 144A Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rule 144A Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities Act Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register" and "Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . 8
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Shelf Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
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Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Successor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Surrender Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trading Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Unrestricted Securities Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 114. Rules by Trustee, Paying Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 204. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . 28
Section 205. Form of Election to Convert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 206. Form of Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE THREE THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 301. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . 31
Section 304. Global Securities; Non-Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 305. Registration, Registration of Transfer and Exchange; Restrictions on Transfer . . . . . . 33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 38
Section 307. Payment of Interest; Interest Rights Preserved38
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
</TABLE>
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Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 311. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . 41
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 403. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . 45
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . 45
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . 47
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert . 49
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . 53
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . 55
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . 56
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Section 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . 57
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTSBY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . 58
Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . 58
Section 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . 59
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,TRANSFER OR LEASE . . . . . . . . . . . . . . . 60
Section 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . 60
Section 802. Successor Legal Entity Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . 61
Section 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . 61
Section 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . 62
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 64
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1003. Money for Security Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . 65
Section 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1005. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1006. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1007. Registration Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1008. Resale of Certain Securities: Reporting Issuer . . . . . . . . . . . . . . . . . . . . . . 68
Section 1009. Payment of Certain Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 69
Section 1101. Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1102. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1103. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1104. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . 69
Section 1105. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1106. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1107. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1108. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE . . . . . . . . . . . . . . . . . . . . . 72
Section 1201. Right to Require Repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1202. Notice; Method of Exercising Repurchase Right. . . . . . . . . . . . . . . . . . . . . . . 73
Section 1203. Deposit of Cash Repurchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1204. Securities Not Repurchased on Repurchase Date . . . . . . . . . . . . . . . . . . . . . . 75
Section 1205. Securities Repurchased in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1206. "Change in Control" and "Repurchase Event" Defined . . . . . . . . . . . . . . . . . . . . 76
ARTICLE THIRTEEN
CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 77
Section 1301. Right of Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1302. Issuance of Common Stock; Time of Conversion . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1303. No Adjustments in Respect of Interest or Dividends . . . . . . . . . . . . . . . . . . . . 79
Section 1304. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1305. No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1306. Reclassification, Consolidation, Merger or Sale of Assets . . . . . . . . . . . . . . . . 83
Section 1307. Prior Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 1308. Shares to be Reserved; Accounting Treatment of Consideration . . . . . . . . . . . . . . . 85
Section 1309. Listing of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 1310. Taxes and Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 1311. Trustee and Conversion Agents Not Liable . . . . . . . . . . . . . . . . . . . . . . . . . 86
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . 87
Section 1401. Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 87
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc87
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of Securities . . . . . . . . . . . 88
Section 1404. No Payment When Senior Indebtedness in Default . . . . . . . . . . . . . . . . . . . . . . 89
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Section 1405. Acknowledgment of Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . 90
Section 1407. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . 90
Section 1408. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 1409. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1410. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1411. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . 92
Section 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . 92
Section 1413. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights . . . 92
Section 1414. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 1415. Certain Conversions Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
</TABLE>
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INDENTURE, dated as of June 15, 1996, between POGO
PRODUCING COMPANY, a corporation duly organized and validly existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at 5 Greenway Plaza, Suite 2700, Houston, Texas 77046, and
FLEET NATIONAL BANK, a national banking association, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 5 1/2% Convertible Subordinated Notes due 2006 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or
defined by Commission rule under the Trust Indenture Act, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally
accepted accounting principles;
<PAGE> 12
(4) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Twelve, are
defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer
or transaction involving a Global Security or beneficial interest therein, the
rules and procedures of Euroclear and CEDEL, and of the Depositary for such
Security, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in New
York, New York, Hartford, Connecticut or Houston, Texas are authorized or
obligated by law or executive order to close.
"CEDEL" means Cedel Bank, S.A. (or any successor securities
clearing agency).
"Change in Control" has the meaning specified in Section
1206.
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"Closing Price" for any Trading Day means the last reported
sale price (or, if none on any day, the mean between the bid and asked
quotations on such day) of the securities in question for such date, in either
case on the New York Stock Exchange or, if the securities are not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which such securities are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the
National Association of Securities Dealers Automated Quotations National Market
System, or if the securities are not listed or admitted to trading on any
national securities exchange or quoted on such National Market System, the
average of the closing bid and asked prices in the over-the- counter market as
furnished by any New York Stock Exchange member firm selected by the Company
for such purpose.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Common Stock" initially means the class designated as
Common Stock, par value $1.00 per share, of the Company as of the date hereof
and includes any other class of capital stock of the Company into which such
Common Stock may be reclassified.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and in each case shall include any
other obligor upon the Securities.
"Company Notice" has the meaning specified in Section 1202.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the total of all
assets included in a consolidated balance sheet of the Company and its
Subsidiaries, prepared in accordance with generally accepted accounting
principles (and as of a date not more than 90 days prior to the date as of
which Consolidated Net Tangible Assets are to be determined), less the sum of
the following items each as included in such balance sheet:
(i) all current liabilities;
(ii) all depreciation, depletion, valuation and other
reserves;
(iii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles; and
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(iv) minority interests in the equity of Subsidiaries.
"Corporate Trust Office" means the principal office of the
Trustee at 777 Main Street, Hartford, Connecticut 06115, at which its
corporate trust business shall be administered.
"Corporation" means a corporation, partnership, association,
company, joint-stock company, limited liability company or
business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Registered
Securities, a clearing agency that is registered as such under the Exchange Act
and is designated by the Company to act as Depositary for such Registered
Securities (or any successor securities clearing agency so registered). The
initial Depositary for Registered Securities shall be DTC.
"Dollar", "$" or "U.S.$" means a dollar or other equivalent
unit in such coin or currency of the United States as at the time shall be
legal tender for the payment of public and private debts.
"DTC" means The Depository Trust Company, a New York
corporation.
"Effectiveness Period" has the meaning specified in Section
203.
"Euroclear" means the Euroclear Clearance System (or any
successor securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Global Security" means a Registered Security that is
registered in the Security Register in the name of a Depositary or a nominee
thereof.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Initial Purchasers" mean Goldman, Sachs & Co., Goldman Sachs
International, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Merrill
Lynch International Limited, as initial purchasers in the offering of
the Securities.
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"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means the date on which the Securities are
originally issued under this Indenture.
"Liquidated Damages" has the meaning specified in
Section 1007.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security becomes due and payable
as therein or herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, exercise of the repurchase right set
forth in Article Twelve or otherwise.
"Officers' Certificate" means a certificate signed by the
principal executive officer and the principal financial officer or principal
accounting officer of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the
Trustee.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities in accordance with the
terms of this Indenture; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and
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<PAGE> 16
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, Corporation or government or
any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Purchase Agreement" has the meaning specified in Section 301.
"Record Date" means any Regular Record Date or Special Record
Date.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security issued in
substantially the form set forth in Sections 202 and 203 and registered in the
Security Register. A Global Security is a Registered Security.
"Registrable Securities" has the meaning specified in Section
1007.
"Registration Default" has the meaning specified in Section
1007.
"Registration Rights Agreement" has the meaning specified in
Section 1007.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the 1st of June or 1st of December (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
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"Regulation D Securities" means the Securities sold by the
Initial Purchasers in the initial offering contemplated by the Purchase
Agreement in reliance on an exemption from the registration requirements of the
Securities Act other than Rule 144A and Regulation S.
"Regulation S" means Regulation S under the Securities Act
(or any successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially
in the form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in
Section 201.
"Regulation S Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section 202
to be placed upon a Regulation S Global Security.
"Regulation S Securities" means all Securities required
pursuant to Section 305(c) to bear a Regulation S Legend. Such term includes
the Regulation S Global Security.
"Repurchase Date" has the meaning specified in Section 1201.
"Repurchase Event" has the meaning specified in Section 1206.
"Repurchase Price" has the meaning specified in Section 1201.
"Responsible Officer", when used with respect to the Trustee,
means any person in the Corporate Trust Administration Department of the
Trustee familiar with corporate trust matters.
"Restricted Global Security" has the meaning specified in
Section 201.
"Restricted Period" means the period of 41 consecutive days
beginning on and including the later of (i) the day on which Securities are
first offered to persons other than distributors (as defined in Regulation S)
in reliance on Regulation S and (ii) the last original issuance date of the
Securities.
"Restricted Securities" means all Securities required
pursuant to Section 305(c) to bear any Restricted Securities Legend. Such term
includes the Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the
legends substantially in the forms of the legends required in the form of
Security set forth in Section 202 to be placed upon each Restricted Security.
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"Rule 144A" means Rule 144A under the Securities Act (or any
successor provisions), as it may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section
704.
"Rule 144A Securities" means the Securities purchased by the
Initial Purchasers from the Company pursuant to the Purchase Agreement
and resold by the Initial Purchasers, other than the Regulation D Securities
and the Regulation S Securities.
"Securities" has the meaning set forth in the recitals of
this indenture.
"Securities Act" means the Securities Act of 1933, as
amended, and any successor statute.
"Securities Act Legend" means a Restricted Securities Legend
or a Regulation S Legend.
"Security" means any of the Securities.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305(a).
"Senior Indebtedness" means the principal of, premium, if
any, and unpaid interest (including, without limitation, any interest
accruing subsequent to the commencement of a case or other proceeding under any
bankruptcy or other similar law with respect to the Company) on, and other
obligations in respect of, the following, whether outstanding at the date
hereof or thereafter incurred or created: (a) indebtedness of the Company for
money borrowed (including purchase-money obligations) evidenced by notes or
other written obligations, (b) indebtedness of the Company evidenced by notes,
debentures, bonds or other securities issued under the provisions of an
indenture or similar instrument, (c) indebtedness secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held
by the Company subject to such mortgage, pledge or encumbrance, whether or not
indebtedness secured thereby shall have been assumed by the Company, (d)
obligations of the Company as lessee under capitalized leases and under leases
of property made as part of any sale and leaseback transactions, (e)
obligations of the Company in respect of letters of credit issued for its
account and "swaps" of interest rates, commodity prices or foreign currencies
(and other interest rate, commodity price or foreign currency hedging
agreements) to which the Company is a party, (f) indebtedness of others of any
of the kinds described in the preceding clauses (a) through (e) assumed or
guaranteed by the Company and (g) renewals, extensions and refundings of, and
indebtedness and obligations of a successor Person issued in exchange for or in
replacement of, indebtedness or obligations of the kinds described in the
preceding clauses (a) through (f); provided, however, that the following shall
not constitute Senior Indebtedness: (i) any indebtedness or obligation which
by its terms refers explicitly to the Securities and states that such
indebtedness or obligation shall not be senior in right of payment thereto,
(ii) any
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<PAGE> 19
indebtedness or obligation of the Company in respect of the Securities and
(iii) any indebtedness or obligation of the Company to any Subsidiary.
Notwithstanding the foregoing, all indebtedness and obligations of the Company
in respect of each of the following shall rank equally with the Securities and
shall not constitute "Senior Indebtedness" hereunder: (x) the 8% Convertible
Subordinated Debentures due 2005 and (y) the 5 1/2% Convertible Subordinated
Notes due 2004.
"Shelf Registration Statement" has the meaning specified in
Section 1007.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment
of interest is due and payable.
"Subsidiary" means a Corporation more than 50% of the
outstanding voting stock or other voting or managing ownership interest of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Successor Security" of any particular Security means
every Security issued after, and evidencing all or a portion of the same debt
as that evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Surrender Certificate" means a certificate substantially in
the form set forth in Annex D.
"Trading Day", with respect to any stock exchange or
securities market, means any Monday, Tuesday, Wednesday, Thursday or Friday on
which such stock exchange or securities market is open for business.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed, except as
provided in Section 905; provided, however, that in the event the Trust
Indenture Act is amended after such date, Trust Indenture Act means, to the
extent required by any such amendment, the Trust Indenture Act as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
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"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex C.
"Vice President", when used with respect to the Company
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
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<PAGE> 21
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
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Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver. If the Company mails a notice or communication to the Holders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent or
co-registrar. If a notice or communication is mailed in the manner provided
above, it is duly given on the date of such mailing, whether or not received by
the addressee.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
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Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be. Until such time as this Indenture shall be
qualified under the Trust Indenture Act, this Indenture, the Company and the
Trustee shall be deemed for all purposes hereof to be subject to and governed
by the Trust Indenture Act to the same extent as would be the case if this
Indenture were so qualified on the date hereof.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last date on which a
Holder has the right to convert his
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<PAGE> 24
Securities shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) or payment of the Repurchase Price (whether the
same is payable in cash or in shares of Common Stock) with respect to, or
delivery for conversion of, the Securities need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, Redemption Date or Repurchase Date, or
at the Stated Maturity, or on such last day for conversion, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date , Repurchase Date or Stated Maturity, as the case may be.
Section 114. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a
meeting of Holders. The Registrar and Paying Agent may make reasonable rules
for their functions.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities shall be in substantially the form set forth
in this Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Internal Revenue Code of 1986, as amended, and
regulations thereunder (the "Code"), or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. All Securities shall be Registered Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in Section 204.
Conversion notices shall be in substantially the form set
forth in Section 205.
Repurchase notices shall be substantially in the form set
forth in Section 203.
Assignments of Securities shall be made in substantially
the form set forth in Section 206.
The Securities shall be printed, lithographed, typewritten
or engraved or produced by any combination of these methods on steel engraved
borders if so required by any securities exchange upon which the Securities may
be listed, or may be produced in any other manner permitted by the rules of any
such securities exchange, or, if the Securities are not listed on a
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<PAGE> 25
securities exchange, in any other manner approved by the Company all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
Upon their original issuance, Rule 144A Securities shall be
issued in the form of one or more Global Securities without interest coupons
and shall be registered in the name of DTC, as Depositary, or its nominee and
deposited with the Trustee, as custodian for DTC, for credit by DTC to the
respective accounts of beneficial owners of the Securities represented thereby
(or such other accounts as they may direct). Such Global Securities, together
with their Successor Securities which are Global Securities other than the
Regulation S Global Security, are collectively herein called the "Restricted
Global Security".
Upon their original issuance, Regulation S Securities shall
be issued in the form of one or more Global Securities without interest coupons
and shall be registered in the name of DTC, as Depositary, or its nominee and
deposited with the Trustee, as custodian for DTC for credit to the respective
accounts at DTC of the depositaries for Morgan Guaranty Trust Company of New
York, Brussels office, as operator of Euroclear, or CEDEL. Such Global
Security, together with its Successor Securities which are Global Securities
other than the Restricted Global Security, are collectively herein called the
"Regulation S Global Security".
Upon their original issuance, Regulation D Securities shall
be issued as Registered Securities but not in the form of a Global Security or
in any other form intended to facilitate book-entry trading in beneficial
interests in such Securities.
Section 202. Form of Face of Security.
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY
OTHER THAN ANY GLOBAL SECURITY:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND ANY SHARES OF
COMMON STOCK ISSUABLE UPON ITS CONVERSION MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THIS SECURITY MAY ONLY BE SOLD IN ACCORDANCE WITH THE INDENTURE,
COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF
THE TRUSTEE. EACH PURCHASER OF THIS SECURITY WHICH IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IS
HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF POGO
PRODUCING COMPANY (THE "COMPANY") THAT (A) THIS SECURITY AND ANY
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<PAGE> 26
SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (I) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) IN
AN OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (III) IN THE CASE OF ANY PURCHASER, OTHER THAN A
PURCHASER WHO HAS OTHERWISE AGREED WITH THE COMPANY IN WRITING, TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (IV) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES, AND (B) SUCH HOLDER WILL, AND EACH
SUBSEQUENT HOLDER OF THIS SECURITY OR ANY SHARES OF COMMON STOCK ISSUABLE UPON
ITS CONVERSION IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY AND ANY
COMMON STOCK ISSUABLE UPON ITS CONVERSION FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER
TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE
HOLDER OF THIS SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE
OF THIS SECURITY AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED GLOBAL
SECURITY:
THE SECURITIES EVIDENCED BY THIS GLOBAL SECURITY (OR ITS
PREDECESSOR) WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND SUCH SECURITIES AND ANY SHARES OF COMMON STOCK ISSUABLE UPON THEIR
CONVERSION MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM, SUCH SECURITIES MAY ONLY BE
SOLD IN ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR
- 16 -
<PAGE> 27
INSPECTION AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE. EACH PURCHASER OF ANY
BENEFICIAL INTEREST IN THE SECURITIES WHICH IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IS HEREBY NOTIFIED THAT THE
SELLER OF SUCH BENEFICIAL INTEREST IN THE SECURITIES MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
EACH BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE
SECURITIES EVIDENCED BY THIS GLOBAL SECURITY (INCLUDING ANY PARTICIPANT IN THE
DEPOSITARY HOLDING THE GLOBAL SECURITY THAT IS SHOWN AS HOLDING SUCH AN
INTEREST ON THE RECORDS OF SUCH DEPOSITARY AND EACH BENEFICIAL OWNER THAT HOLDS
THROUGH ANY SUCH PARTICIPANT) AGREES FOR THE BENEFIT OF POGO PRODUCING COMPANY
(THE "COMPANY") THAT (A) ANY BENEFICIAL INTEREST IN THE SECURITIES AND ANY
SHARES OF COMMON STOCK ISSUABLE UPON THEIR CONVERSION MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (I) TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) IN
AN OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (III) IN THE CASE OF ANY PURCHASER, OTHER THAN A
PURCHASER WHO HAS OTHERWISE AGREED WITH THE COMPANY IN WRITING, TO AN
INSTITUTION THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (IV) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND IN EACH OF CASES (I) THROUGH (V) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES, AND (B) SUCH BENEFICIAL OWNER WILL, AND
EACH SUBSEQUENT BENEFICIAL OWNER OF THIS SECURITY OR ANY SHARES OF COMMON STOCK
ISSUABLE UPON ITS CONVERSION IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY
BENEFICIAL INTEREST IN THE SECURITIES AND ANY COMMON STOCK ISSUABLE UPON ITS
CONVERSION FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND PROCEDURES FOR RESALES AND
OTHER TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES
RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE
HOLDER AND
- 17 -
<PAGE> 28
BENEFICIAL OWNERS OF AN INTEREST IN ANY OF THE SECURITIES EVIDENCED BY THIS
GLOBAL SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS
GLOBAL SECURITY AND THE BENEFICIAL INTERESTS THEREIN AND ANY SUCH SHARES TO
HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY,
THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL
PURPOSES.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY FOR
WHICH THE DEPOSITORY TRUST COMPANY IS TO BE THE DEPOSITARY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
REGISTERED SECURITIES IN DEFINITIVE REGISTERED FORM IN THE LIMITED
CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH REGULATION S GLOBAL
SECURITY:
- 18 -
<PAGE> 29
THE SECURITIES EVIDENCED BY THIS GLOBAL SECURITY (OR ITS
PREDECESSOR) WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE
THE MEANINGS GIVEN THEM IN REGULATION S UNDER THE SECURITIES ACT.]
POGO PRODUCING COMPANY
5 1/2% Convertible Subordinated
Note due 2006
No. _________________ $______________
[IF RESTRICTED GLOBAL SECURITY - CUSIP NO. 730 448 AC1]
[IF REGULATION S GLOBAL SECURITY - CUSIP NO. U72 645 AA9]
[IF REGULATION D SECURITY -CUSIP NO. 730 448 AD9]
POGO PRODUCING COMPANY, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to _______________,
or registered assigns, the principal sum of ____________________ Dollars [IF
THIS SECURITY IS A GLOBAL SECURITY, THEN INSERT -(which principal amount may
from time to time be increased or decreased to such other principal amounts
(which, taken together with the principal amounts of all other Outstanding
Securities, shall not exceed $115,000,000 in the aggregate at any time) by
adjustments made on the records of the Trustee hereinafter referred to in
accordance with the Indenture)] on June 15, 2006 and to pay interest thereon,
from June 18, 1996, or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for, semi-annually on
June 15 and December 15 in each year (each , an "Interest Payment Date"),
commencing December 15, 1996, at the rate of 5 1/2% per annum, until the
principal hereof is due, and at the rate of 5 1/2% per annum on any overdue
principal and premium, if any, and, to the extent permitted by law, on any
overdue interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the June 1st or December 1st (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either
- 19 -
<PAGE> 30
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Registered Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Registered Securities may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Indenture.
Payments of principal shall be made upon the surrender of this Security to the
Company at the designated office or agency of the Company in New York, New York
or any other office or agency designated by the Company for such purpose
pursuant to the terms of the Indenture in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts, by United States Dollar check drawn on, or
transfer to, a United States Dollar account (such a transfer to be made only to
a Holder of an aggregate principal amount of Registered Securities in excess of
U.S. $2,000,000, and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date) maintained by the payee with a bank in New York, New
York. Payment of interest on this Security may be made by United States Dollar
check drawn on a bank in New York, New York mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, or,
upon written application by the Holder to the Security Registrar setting forth
wire instructions not later than the relevant Record Date, by transfer to a
United States Dollar account (such a transfer to be made only to a Holder of an
aggregate principal amount of Registered Securities in excess of U.S.
$2,000,000 and only if such Holder shall have furnished wire instructions in
writing to the Trustee no later than 15 days prior to the relevant payment
date) maintained by the payee with a bank in New York, New York.
Except as specifically provided herein and in the Indenture,
the Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place. The Indenture
includes limitations on the right of the Holder to institute a proceeding,
judicial or otherwise, with respect to the Indenture, for the appointment of a
receiver or trustee, or for any other remedy under the Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof or an Authenticating
Agent by the manual signature of one of their respective authorized
signatories, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
- 20 -
<PAGE> 31
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
POGO PRODUCING COMPANY
By:
-------------------
Attest:
- ------------------------------
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
securities of the Company designated as its 5 1/2% Convertible Subordinated
Notes due 2006 (herein called the "Securities"), limited in aggregate principal
amount to $100,000,000 (subject to increase to up to $115,000,000 aggregate
principal amount), issued and to be issued under an Indenture, dated as of June
15, 1996 (herein called the "Indenture"), between the Company and Fleet
National Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Subject to the provisions of the Indenture, the Holder
hereof has the right, at his option, at any time on or after the 90th day
following the last original issue date of the Securities and prior to the close
of business on the maturity date, to convert the principal amount of this
Security (or any portion of the principal amount hereof which is an integral
multiple of $1,000) into fully paid and nonassessable shares of Common Stock of
the Company at the conversion price of $42.185 of principal amount of this
Security per share of Common Stock, subject to such adjustment, if any, of the
conversion price and the securities or other property issuable upon conversion
as may be required by the provisions of the Indenture (except that, in case
this Security (or any portion hereof) shall be called for redemption before
maturity, such right shall terminate at the close of business on the Business
Day immediately preceding the Redemption Date for this Security (or such
portion hereof), unless in any such case the Company shall default in payment
due upon such redemption), but only upon surrender of this Security for the
purpose of such conversion to the Company at the designated office or agency of
the Company in New York, New York or any other office or agency designated by
the Company for such purpose pursuant to the provisions of the Indenture,
accompanied by written notice that the Holder elects to convert this Security
or any portion hereof and specifying the name or names (with address or
addresses) in which a certificate or certificates for shares of Common Stock
are to be issued
- 21 -
<PAGE> 32
and (if so required by the Company or the Trustee) by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee
duly executed by the registered Holder or his duly authorized legal
representative and transfer tax stamps or funds therefor, if required pursuant
to the provisions of the Indenture and, in case such surrender shall be made
during the period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date (unless this
Security or the portion thereof being converted has been called for
redemption), also accompanied by payment in funds acceptable to the Company of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the
aforesaid requirement with respect to payment in the event of conversion after
the close of business on a Regular Record Date, no adjustment is to be made on
conversion for interest accrued hereon or for dividends on shares of Common
Stock issued on conversion; provided, however, that upon a call for redemption
by the Company, accrued and unpaid interest to the Redemption Date shall be
payable with respect to Notes converted after the redemption call and prior to
the Redemption Date. No fractional shares are issuable upon any conversion,
but in lieu thereof the Company shall pay therefor in cash as provided in the
Indenture.
The Securities are subject to redemption upon not less than 30
nor more than 60 days' notice by first-class mail, postage prepaid, at any time
on or after June 15, 1999, as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount), if redeemed during the 12-month period beginning June 15 of
the years indicated,
<TABLE>
<CAPTION>
Year Redemption PriceYear Redemption Price
---- -------------------- ----------------
<S> <C> <C>
1999 103.850 2003101.650
2000 103.300 2004101.100
2001 102.750 2005100.550
2002 102.200
</TABLE>
together with, in each case, accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
Subject to certain limitations in the Indenture, at any time
when the Company is not subject to Section 13 or 15(d) of the United States
Securities Exchange Act of 1934, as amended, upon the request of a Holder of a
Restricted Security or the holder of shares of Common Stock issued upon
conversion thereof, the Company will promptly furnish or cause to be furnished
Rule 144A Information (as defined below) to such Holder of Restricted
Securities or such holder of shares of Common Stock issued upon conversion of
Restricted Securities, or to a prospective purchaser of any security designated
by any such Holder or holder, as the case may be, to the extent required to
permit compliance by such Holder or holder with Rule 144A
- 22 -
<PAGE> 33
under the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the resale of any such security. "Rule 144A Information" shall
be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
If this Security is a Registrable Security, then the Holder of
this Security [IF THIS SECURITY IS A GLOBAL SECURITY, THEN INSERT - (including
any Person that has a beneficial interest in this Security)] and the Common
Stock issuable upon conversion hereof is entitled to the benefits of a
Registration Rights Agreement, dated as of June 18, 1996 (the "Registration
Rights Agreement"), executed by the Company. Pursuant to the Registration
Rights Agreement, the Company has agreed for the benefit of the Holders from
time to time of Registered Securities and the Common Stock issuable upon
conversion thereof, in each case, that are Registrable Securities, to file a
shelf registration statement (the "Shelf Registration Statement") with the
Commission with respect to resales of the Registrable Securities.
If (i) on or prior to 90 days following the date of original
issuance of the Registered Securities, a Shelf Registration Statement has not
been filed with the Commission, or (ii) on or prior to the 180th day following
the date of original issuance of the Registered Securities, such Shelf
Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on this
Security from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured.
Liquidated Damages will be paid semi-annually in arrears, with the first semi-
annual payment due on the first Interest Payment Date in respect of the
Registered Securities following the date on which such Liquidated Damages begin
to accrue, and will accrue at a rate per annum equal to an additional
one-quarter of one percent (.25%) of the principal amount hereof to and
including the 90th day following such Registration Default and at a rate per
annum equal to one-half of one percent (.50%) thereof from and after the 91st
day following such Registration Default. In the event that the Shelf
Registration Statement ceases to be effective during the period (the
"Effectiveness Period") beginning on the initial effective date of the Shelf
Registration Statement and ending on the earliest of, (i) three years after
such effective date, (ii) when there are no outstanding Registrable Securities,
or (iii) when all outstanding Registrable Securities, subject to certain
limited exceptions, may be resold without registration under the Securities Act
pursuant to Rule 144(k) (or any successor provision to such Rule), or the
Company suspends the use of the prospectus which is a part thereof for a period
in excess of 60 days, whether or not consecutive, during any 12-month period,
then the interest rate borne by this Security shall increase by an additional
one-half of one percent (.50%) per annum from the 61st day of the applicable
12-month period such Shelf Registration Statement ceases to be effective or the
Company suspends the use of the prospectus which is a part thereof, as the case
may be, to but excluding the day on which (i) the Shelf Registration Statement
again becomes effective, (ii) the use of the related prospectus ceases to be
suspended or (iii) the Effectiveness Period expires.
Whenever in this Security there is a reference, in any
context, to the payment of the principal of, premium, if any, or interest on,
or in respect of, this Security such mention shall be deemed to include mention
of the payment of Liquidated Damages payable as described in the
- 23 -
<PAGE> 34
preceding paragraph to the extent that, in such context, Liquidated Damages
are, were or would be payable in respect of this Security pursuant to such
paragraph, and an express mention of the payment of Liquidated Damages (if
applicable) in any provisions of this Security shall not be construed as
excluding Liquidated Damages in those provisions of this Security where such
express mention is not made.
[If this Security is a Registrable Security and the Holder of
this Security [IF THIS SECURITY IS A GLOBAL SECURITY, THEN INSERT - (including
any Person that has a beneficial interest in this Security)] elects to sell
this Security pursuant to the Shelf Registration Statement then, by his
acceptance hereof, such Holder of this Security agrees to be bound by the terms
of the Registration Rights Agreement relating to the Registrable Securities
which are the subject of such election.]
Under certain circumstances involving a Change in Control (as
defined in the Indenture), the Company may be required to offer to purchase the
Securities at a purchase price equal to 100% of the principal amount of such
Securities, together with accrued and unpaid interest to the Repurchase Date.
At the option of the Company, the Repurchase Price may be paid in cash or,
subject to the conditions provided in the Indenture, by delivery of shares of
Common Stock having a fair market value equal to the Repurchase Price. For
purposes of this paragraph, the fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the average of
the Closing Prices per share for the five consecutive Trading Days immediately
preceding the second Trading Day prior to the Repurchase Date. Whenever in
this Security there is a reference, in any context, to the principal of any
Security as of any time, such reference shall be deemed to include reference to
the Repurchase Price payable in respect of such Security to the extent that
such Repurchase Price is, was or would be so payable at such date, and express
mention of the Repurchase Price in any provision of this Security shall not be
construed as excluding the Repurchase Price so payable in those provisions of
this Security when such express mention is not made; provided, however, that,
for the purposes of the second succeeding paragraph, such reference shall be
deemed to include reference to the Repurchase Price only to the extent the
Repurchase Price is payable in cash.
[THE FOLLOWING PARAGRAPH SHALL APPEAR IN EACH REGISTERED
SECURITY THAT IS NOT A GLOBAL SECURITY:
In the event of redemption, repurchase or conversion of this
Security in part only, a new Registered Security or Registered Securities for
the unredeemed, unrepurchased or unconverted portion hereof will be issued in
the name of the Holder hereof.]
[THE FOLLOWING PARAGRAPH SHALL APPEAR IN EACH GLOBAL SECURITY:
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, redemption, repurchase or conversion
of this Security in part only, the Trustee, as custodian of the Depositary,
shall make an adjustment on its records to reflect such deposit or withdrawal
in accordance with the Applicable Procedures.]
- 24 -
<PAGE> 35
The indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, expressly subordinate and subject
in right of payment to the prior payment in full of any Senior Indebtedness of
the Company or provision for such payment, whether outstanding at the date of
the Indenture or thereafter incurred, and this Security is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by his acceptance hereof, agrees to and shall be bound by such
provisions of the Indenture and authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
such subordination and appoints the Trustee his attorney-in-fact for any and
all such purposes.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of all the Securities may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of at least a majority in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
The Indenture provides that no Holder of any Security may
enforce any remedy under the Indenture except in the case of failure of the
Trustee to act after notice of default and after request by the Holders of 25%
in aggregate principal amount of the Outstanding Securities and the offer and,
if requested, provision to the Trustee of reasonable indemnity satisfactory to
the Trustee; provided, however, that such provision shall not prevent the
Holder hereof from enforcing payment of the principal of (and premium, if any)
or interest on this Security after the same shall have become due.
Initially, the Trustee will act as Paying Agent, Security
Registrar and as the agent where notices and demands to or upon the Company in
respect of the Securities may be served. The Company may appoint and change
any Paying Agent, Security Registrar or agent for notices without notice, other
than notice to the Trustee. The Company or one of its subsidiaries may act as
Paying Agent, Security Registrar or agent for notices.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, subject to the subordination
provisions, to pay the principal of (and premium, if
- 25 -
<PAGE> 36
any) and interest on (including Liquidated Damages and additional
interest) this Security at the times, place and rate, and in the coin
or currency, herein prescribed or to convert this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar and duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
POGO PRODUCING COMPANY
GREENWAY; SUITE 2700
HOUSTON, TEXAS 77046-0504
ATTENTION: GENERAL COUNSEL
This Security and the rights of the Holder hereof shall be
governed by and construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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<PAGE> 37
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Article Twelve of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Article Twelve of the Indenture, state the
amount (in integral multiples of $1,000): $___________
You hereby direct the Trustee or the Company to pay you,
unless a different name has been indicated in the assignment below, an amount
in cash or, at the Company's election, Common Stock valued as set forth in the
Indenture, equal to 100% of the principal amount to be repurchased (as set forth
above), plus interest accrued to the Repurchase Date, as provided in the
Indenture.
Date: Your Signature:
----------------------- ---------------------------------
(Sign exactly as your name
appears on the other side of
this Security)
Your Social Security or
Tax Identification Number:
------------------------------------------------------
Signature Guarantee:
------------------------------------------------------------
Note: Signature(s) must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature
Guarantee Programs: (1) The Securities Transfer Agents Medallion
Program (STAMP); (2) The New York Stock Exchange Medallion Signature
Program (MSP); or (3) The Stock Exchange Medallion Program (SEMP).
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<PAGE> 38
Section 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-
mentioned Indenture.
FLEET NATIONAL BANK,
as Trustee
By
-----------------------------------
Authorized Signatory
Section 205. Form of Election to Convert.
To Pogo Producing Company:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion below designated,
into shares of Common Stock of Pogo Producing Company in accordance with the
terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Date:
Portion of Security to be converted
($1,000 or an integral multiple thereof):
$
------------------------ ----------------------------------------
Signature (for conversion only)
Please Print or Type Name and Address,
Including Zip Code, and Social Security
or Other Identifying Number:
----------------------------------------
----------------------------------------
----------------------------------------
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<PAGE> 39
Section 206. Form of Assignment.
ASSIGNMENT
For value received _______________________________________________ hereby
sell(s), assign(s) and transfer(s) unto _______________________________________,
_______________________________________ [Please insert social security or other
identifying number of assignee], the within Security, hereby irrevocably
constituting and appointing ______________________________ attorney to transfer
the said Security on the books of the Company, with full power of substitution
in the premises.
Date:
--------------------- -----------------------------------------------
Signature(s)
Note: The signature(s) to this assignment
must correspond with the name as it
appears upon the face of the within
Security in every particular, without
alteration, or enlargement or any change
whatever.
- -----------------------------
Signature Guarantee
Note: Signature(s) must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature
Guarantee Programs: (1) The Securities Transfer Agents Medallion
Program (STAMP); (2) The New York Stock Exchange Medallion Signature
Program (MSP); or (3) The Stock Exchange Medallion Program (SEMP).
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<PAGE> 40
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to the sum of (a)
$100,000,000 and (b) such aggregate principal amount (which may not exceed
$15,000,000 aggregate principal amount) of Securities, if any, as shall be
purchased by the Initial Purchasers at the "Second Closing Time" (as defined in
the Purchase Agreement) pursuant to and in accordance with the terms and
provisions of the Purchase Agreement, dated June 11, 1996 (the "Purchase
Agreement"), between the Company and Goldman, Sachs & Co., Goldman Sachs
International, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Merrill
Lynch International, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 304, 305, 306, 906, 1108, 1205 or 1301.
The Securities shall be known and designated as the "5 1/2%
Convertible Subordinated Notes due 2006" of the Company. Their Stated Maturity
shall be June 15, 2006 and they shall bear interest at the rate of 5 1/2% per
annum, from June 18, 1996 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semiannually in arrears on June 15 and December 15, commencing December 15,
1996, until the principal thereof is due, and at the rate of 5 1/2% per annum
on any overdue principal and premium, if any, and, to the extent permitted by
law, on any overdue interest.
The principal of (and premium, if any) and interest on the
Securities shall be payable in the manner provided in the form of Securities
set forth in Section 202 and at the office or agency of the Company in New
York, New York, maintained for such purpose and at any other office or agency
maintained by the Company for such purpose.
The Registrable Securities are entitled to the benefits of a
Registration Rights Agreement as provided by Sections 203 and 1007. The
Securities are entitled to the payment of Liquidated Damages as provided by
Section 1007.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall be subject to repurchase at the option of
the Holders as provided in Article Twelve.
The Securities shall be convertible as provided in Article
Thirteen.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Fourteen.
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<PAGE> 41
Section 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Global Securities; Non-Global Securities.
(A) Global Securities
(a) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary designated by the
Company for such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture,
no Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (i) such Depositary (A) has
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<PAGE> 42
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) has ceased to be a clearing agency registered
as such under the Exchange Act or announces an intention permanently to cease
business or does in fact do so or (ii) there shall have occurred and be
continuing an Event of Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on behalf of
the Depositary or its nominee to the Trustee, as Security Registrar, for
exchange or cancellation, as provided in this Article Three. If any Global
Security is to be exchanged for other Securities or cancelled in part, or if
another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, in each case, as provided in Section 305, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation, as provided in this Article Three, or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or cancelled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee,
as Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to Section 305(c)
and as otherwise provided in this Article Three, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Three if such order, direction or request is
given or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Article Three or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
registered Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee thereof,
in which case such Registered Security shall be authenticated and delivered in
definitive, fully registered form, without interest coupons.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture and the Registered Securities, and owners of beneficial
interests in a Global Security shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner's beneficial interest in a
Global Security will be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee
or its Agent Members and
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<PAGE> 43
such owners of beneficial interests in a Global Security will not be
considered the owners or holders thereof.
(B) Non-Global Securities
Regulation D Securities shall be initially issued as
Registered Securities in definitive, fully registered form, without interest
coupons, shall initially be registered in such names and be in such authorized
denominations as Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated shall designate and shall bear the legends required hereunder. The
Company will make available to the Trustee a reasonable supply of Registered
Securities in definitive form.
Pending the preparation of definitive Registered Securities,
the Company may execute, and upon Company Order the Trustee shall authenticate
and make available for delivery, temporary Registered Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Registered Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Registered Securities may determine, as evidenced by
their execution of such Securities.
If temporary Registered Securities are issued, the Company
will cause definitive Registered Securities to be prepared without unreasonable
delay. After the preparation of the definitive Registered Securities, the
temporary Registered Securities shall be exchangeable for definitive Registered
Securities upon surrender of the temporary Registered Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Registered Securities the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Registered Securities of authorized
denominations. Until so exchanged the temporary Registered Securities shall in
all respects be entitled to the same benefits under this Indenture as
definitive Registered Securities.
Section 305. Registration, Registration of Transfer and Exchange;
Restrictions on Transfer.
(a) The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such office
and in any other office or agency of the Company designated pursuant to Section
1002 being herein sometimes collectively referred to as the "Security
Register') in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers and exchanges of Registered Securities as herein
provided.
Upon surrender for registration of transfer of any Security
at an office or agency of the Company designated pursuant to Section 1002 for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee
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<PAGE> 44
or transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount and bearing such restrictive legends as
may be required by this Indenture.
At the option of the Holder, and subject to the other
provisions of this Section 305, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, and subject to
the other provisions of this Section 305, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. Every Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the
Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly
authorized in writing.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and subject to the other provisions of this Section
305, entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
No service charge shall be made for any registration of
transfer or exchange of Securities except as provided in Section 306, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 906, 1108, 1205, or 1301 not involving any transfer and other than any
stamp and other duties, if any, which may be imposed in connection with any
such transfer or exchange by the United States or United Kingdom any political
subdivision thereof or therein, which shall be paid by the Company.
In the event of a redemption of the Securities, the Company
will not be required (a) to register the transfer of or exchange Securities for
a period of 15 days immediately preceding the date notice is given identifying
the serial numbers of the Securities called for such redemption or (b) to
register the transfer of or exchange any Security, or portion thereof, called
for redemption.
(b) Certain Transfers and Exchanges. Notwithstanding any
other provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 305(b) shall be made only in accordance with this Section
305(b).
(i) Restricted Global Security to Regulation S Global
Security. If the owner of a beneficial interest in the Restricted
Global Security wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a beneficial
interest in the Regulation S Global Security, such transfer may be
effected only in
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<PAGE> 45
accordance with the provisions of this Clause (b)(i) and Clause (b)(v)
below and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) an order given by the Depositary
or its authorized representative directing that a beneficial interest
in the Regulation S Global Security in a specified principal amount be
credited to a specified Agent Member's account and that a beneficial
interest in the Restricted Global Security in an equal principal amount
be debited from another specified Agent Member's account and (B) a
Regulation S Certificate, satisfactory to the Trustee and duly executed
by the owner of such beneficial interest in the Restricted Global
Security or his attorney duly authorized in writing, then the Trustee,
as Security Registrar but subject to Clause (b)(v) below, shall reduce
the principal amount of the Restricted Global Security and increase the
principal amount of the Regulation S Global Security by such specified
principal amount as provided in Section 304(A)(c).
(ii) Regulation S Global Security to Restricted Global
Security. If the owner of a beneficial interest in the Regulation S
Global Security wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a beneficial
interest in the Restricted Global Security, such transfer may be
effected only in accordance with this Clause (b)(ii) and subject to the
Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Restricted
Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be debited
from another specified Agent Member's account and (B) if such transfer
is to occur during the Restricted Period, a Restricted Securities
Certificate, satisfactory to the Trustee and duly executed by the owner
of such beneficial interest in the Regulation S Global Security or his
attorney duly authorized in writing, then the Trustee, as Security
Registrar, shall reduce the principal amount of the Regulation S Global
Security and increase the principal amount of the Restricted Global
Security by such specified principal amount as provided in Section
304(A)(c).
(iii) Restricted Non-Global Security to Restricted Global
Security or Regulation S Global Security. If the Holder of a
Restricted Security (other than a Global Security) wishes at any time
to transfer all or any portion of such Restricted Security to a Person
who wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Security or the Regulation S Global
Security, such transfer may be effected only in accordance with the
provisions of this Clause (b)(iii) and Clause (b)(v) below and subject
to the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (A) such Restricted Security as provided in Section
305(a) and instructions satisfactory to the Trustee directing that a
beneficial interest in the Restricted Global Security or Regulation S
Global Security in a specified principal amount not greater than the
principal amount of such Security be credited to a specified Agent
Member's account and (B) a Restricted Securities Certificate, if the
specified account is to be credited with a beneficial interest in the
Restricted Global Security, or a Regulation S Certificate, if the
specified account is to be credited with a beneficial interest in the
Regulation S Global
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<PAGE> 46
Security, in either case satisfactory to the Trustee and duly executed
by such Holder or his attorney duly authorized in writing, then the
Trustee, as Security Registrar but subject to Clause (b)(v) below,
shall cancel such Restricted Security (and issue a new Restricted
Security in respect of any untransferred portion thereof) as provided
in Section 305(a) and increase the principal amount of the Restricted
Global Security or the Regulation S Global Security, as the case may
be, by the specified principal amount as provided in Section 304(A)(c).
(iv) Exchanges between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged
for a Security that is not a Global Security as provided in Section
304, provided that, if such interest is a beneficial interest in the
Restricted Global Security, or if such interest is a beneficial
interest in the Regulation S Global Security and such exchange is to
occur during the Restricted Period, then such interest shall be
exchanged for a Restricted Security (subject in each case to Section
305(c)). A Security that is not a Global Security may be exchanged for
a beneficial interest in a Global Security only if such exchange occurs
in connection with a transfer effected in accordance with Clause
(b)(iii) above.
(v) Regulation S Global Security to be Held Through
Euroclear or CEDEL during Restricted Period. The Company shall use
its reasonable best efforts to cause the Depositary to ensure that,
until the expiration of the Restricted Period, beneficial interests in
the Regulation S Global Security may be held only in or through
accounts maintained at the Depositary by Euroclear or CEDEL (or by
Agent Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any
such interest being held otherwise than in or through such an account;
provided that this Clause (b)(v) shall not prohibit any transfer or
exchange of suchan interest in accordance with Clause (b)(ii)
or (iv) above.
(c) Securities Act Legends. Rule 144A Securities,
Regulation D Securities and their respective Successor Securities shall
bear the applicable Restricted Securities Legend, and the Regulation S
Securities and their Successor Securities shall bear a Regulation S
Legend, subject to the following:
(i) subject to the following clauses of this Section
305(c), a Security or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Security or any portion thereof
shall bear the Securities Act Legend borne by such Global Security
while represented thereby;
(ii) subject to the following clauses of this Section
305(c), a new Security which is not a Global Security and is issued in
exchange for another Security (including a Global Security) or any
portion thereof, upon transfer or otherwise, shall bear the Securities
Act Legend borne by such other Security, provided that, if such new
Security is required pursuant to Section 305(b)(iv) to be issued in the
form of a Restricted Security, it shall bear a Restricted Securities
Legend and, if such new Security is so
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<PAGE> 47
required to be issued in the form of a Regulation S Security, it shall
bear a Regulation S Legend;
(iii) any Securities which are sold or otherwise disposed of
pursuant to an effective registration statement under the Securities
Act (including the Shelf Registration Statement), together with their
Successor Securities shall not bear a Securities Act Legend; the
Company shall inform the Trustee in writing of the effective date of
any such registration statement registering the Securities under the
Securities Act and shall notify the Trustee at any time when
prospectuses may not be delivered with respect to Securities to be sold
pursuant to such registration statement. The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith
pursuant to instructions from the Company contemplated by the
aforementioned registration statement;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without
being subject to transfer restrictions pursuant to the Securities Act,
a new Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate,
satisfactory to the Trustee and duly executed by the Holder of such
legended Security or his attorney duly authorized in writing, and after
such date and receipt of such certificate, the Trustee shall
authenticate and deliver such a new Security in exchange for or in lieu
of such other Security as provided in this Article Three;
(v) a new Security which does not bear a Securities Act
Legend may be issued in exchange for or in lieu of a Security (other
than a Global Security) or any portion thereof which bears such a
legend if, in the Company's judgment, placing such a legend upon such
new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at
the direction of the Company, shall authenticate and deliver such a new
Security as provided in this Article Three; and
(vi) notwithstanding the foregoing provisions of this
Section 305(c), a Successor Security of a Security that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning of
Rule 144, in which case the Trustee, at the direction of the Company,
shall authenticate and deliver a new Security bearing a Restricted
Securities Legend in exchange for such Successor Security as provided
in this Article Three.
(d) Neither the Trustee, the Paying Agent nor any of
their agents shall (1) have any duty to monitor compliance with or with respect
to any federal or state or other securities or tax laws or (2) have any duty to
obtain documentation on any transfers or exchanges other than as
specifically required hereunder.
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<PAGE> 48
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
actual notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon a Company
Request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion, but subject to any conversion rights, may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been
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<PAGE> 49
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Security whose Maturity is prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of
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business on such Regular Record Date. Upon a call for redemption by the
Company, accrued and unpaid interest to the Redemption Date shall be payable
with respect to Securities converted after the notice of redemption has been
mailed and prior to the Redemption Date. Except as otherwise expressly
provided in this paragraph, in the case of any Security which is converted,
interest whose Stated Maturity is after the date of conversion of such Security
shall not be payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of and principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
repurchase, registration of transfer or exchange or conversion shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order. The Company shall, within
120 days of a request therefor by the Trustee, deliver a Company Order
directing the destruction of cancelled Securities. If the Company fails to
respond to such a request within such 120-day period, the Trustee may destroy
any or all cancelled Securities, in which case the Trustee shall deliver a
certificate as to such destruction to the Company.
Section 310. Computation of Interest.
Interest on the Securities (including any Liquidated Damages
and additional interest) shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing Securities may use "CUSIP" numbers (if
then generally in use) in addition to serial numbers, and, if so, the Trustee
shall use such CUSIP numbers in addition to serial numbers in notices of
redemption and repurchase as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of
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such CUSIP numbers either as printed on the Securities or as contained in any
notice of a redemption or repurchase and that reliance may be placed only on
the serial or other identification numbers printed on the Securities, and any
such redemption or repurchase shall not be affected by any defect in or
omission of such CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer, exchange or
replacement of Securities herein expressly provided for and any right to
receive Liquidated Damages as provided in the form of Securities herein), and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for
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principal (and premium, if any) and interest (including any
Liquidated Damages) to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee. All moneys deposited with the Trustee pursuant to Section
401 (and held by it or any Paying Agent) for the payment of Securities
subsequently converted shall be returned to the Company upon Company
Request.
Section 403. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
deposited with respect to the Securities in accordance with Section 401 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 401 until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 401; provided,
however, that if the Company has made any payment of principal of (or premium,
if any) or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
Paying Agent.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Fourteen or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest (including any
Liquidated Damages) upon any Security when it becomes due and payable,
whether or not such payment is prohibited by the provisions of Article
Fourteen, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity, other than a default
referred to in clause (3) of this Section, whether or not such payment is
prohibited by the provisions of Article Fourteen; or
(3) default in the payment of the Repurchase Price in
respect of any Security on the Repurchase Date and continuance of such
default for more than 10 days thereafter, whether or not such payment is
prohibited by the provisions of Article Fourteen; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty, a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed or under any mortgage,
indenture or other instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by
the Company or under any guarantee of payment by the Company of
indebtedness for money borrowed, whether such indebtedness or guarantee
now exists or shall hereafter be created, which default extends beyond any
period of grace provided with respect thereto and which default relates to
(a) the obligation to pay the principal of or interest on any such
indebtedness or guarantee or (b) an obligation other than the obligation
to pay the principal of or interest on any such indebtedness, if the
effect of such event of default is to cause the acceleration of a
principal amount of such
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indebtedness and such other indebtedness or guarantee shall not have been
paid within ten days after there has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Outstanding Securities a written
notice specifying such event of default and stating that such notice is a
"Notice of Default" hereunder; provided, however, that no default under
this Section 501(5) shall exist if all such defaults do not relate to such
indebtedness or such guarantees with an aggregate principal amount in
excess of 5% of Consolidated Net Tangible Assets; and provided further,
that if any such event of default has been cured or waived and any
acceleration with respect thereto rescinded, or if such other indebtedness
has been repaid or otherwise discharged, the Event of Default arising
under this Section 501(5) by virtue thereof shall not be deemed to have
occurred and any acceleration under this Section 501(5) pursuant to
Section 502 hereof shall ipso facto be rescinded so long as such
rescission does not conflict with any judgment or decree;
(6) the entry by a court having jurisdiction in the
premises of (a) a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (b) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days;
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(8) the failure by the Company to give the Company Notice
in accordance with Section 1202.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the principal of all
the Securities and the interest accrued thereon to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders) and upon any such declaration such principal and interest shall
become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in aggregate principal amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Securities, and
(D) all sums paid or advanced or liabilities
incurred by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest
(including any Liquidated Damages) on any Security when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest (including
any Liquidated Damages), on any overdue principal (and premium, if any) and on
any overdue interest (including any Liquidated Damages), at the rate borne by
the Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue
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principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect
of the Securities, subject to the provisions of Article Fourteen, and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, subject to the provisions of Article Fourteen, and
(ii) subject to the provisions of Article Fourteen, to
collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered. In any such proceeding brought by the
Trustee, the Trustee shall be deemed to represent all Holders without the
necessity of joining any Holders as parties.
Section 506. Application of Money Collected.
Subject to Article Fourteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in the case of the distribution of
such money on account of principal (or premium, if any) or
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interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all costs and expenses in connection
with the collection of such money and to the payment of all amounts due
the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
Section 507. Limitation on Suits.
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for
the appointment of a receiver or trustee or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer and, if requested, provision of indemnity has
failed to institute any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of
a majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
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Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, subject to the subordination provisions in Article Fourteen, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or repurchase, on the
Redemption Date or Repurchase Date, as the case may be) and to institute suit
for the enforcement of any such payment and the right to convert, and such
rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
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Section 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct in writing the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, provided
that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall determine that the action so directed would
involve the Trustee in personal liability or would be unduly prejudicial
to Holders not joining in such direction.
This Section 512 shall be in lieu of Section 316(a)(1)(A) of
the Trust Indenture Act and said Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon. This
Section 513 shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act
and said Section 316(a)(1)(B) is hereby expressly excluded from this Indenture,
as permitted by the Trust Indenture Act.
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Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding more than 10% in
aggregate principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on or after the Redemption Date or Repurchase Date, as the case may
be) or for the enforcement of the right to convert any Security in accordance
with Article Thirteen. This Section 514 shall be in lieu of Section 315(e) of
the Trust Indenture Act and said Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so
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provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness
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or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, or of any supplemental indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made
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by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee, its agents, employees,
officers, directors and shareholders for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest on particular Securities.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 501(6) or (7) occurs, the expenses
(including the reasonable charges and expenses of its agents, attorneys and
counsel) and the compensation for services shall be preferred over the status
of the Holders in any reorganization or similar proceeding and are intended to
constitute expenses of administration under any reorganization, bankruptcy or
similar law.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as
such, has an office or agency in New York, New York, and has a combined capital
and surplus of at least $50,000,000 (or is a member or subsidiary of a bank
holding system with aggregate combined capital and surplus of at least
$50,000,000). If such corporation or other Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article. No
obligor upon any Securities issued under this Indenture or Person directly or
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indirectly controlling, controlled by or under common control with such obligor
shall serve as Trustee under this Indenture.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities specifying such removal, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such bona fide Holder
described in (d)(1) above, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall,
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forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage prepaid, to
all Holders as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer, partial conversion or partial redemption or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 (or being a member or subsidiary of a bank holding system with
aggregate combined capital and surplus of at least $50,000,000) and subject to
supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving 30
days' written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving 30
days' written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
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accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first- class mail, postage
prepaid, to all Holders as their names and addresses appear in the Security
Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities described in the within-
mentioned Indenture.
FLEET NATIONAL BANK,
As Trustee
By
-----------------------------------
As Authenticating Agent
By
-----------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
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(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than May 15 of each year,
commencing with the May 15 first following the issuance of the Securities.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange and of any delisting thereof.
Section 704. Reports by Company.
(a) The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the
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Trustee within 15 days after the same is so required to be filed with the
Commission. In the event the Company is not subject to the requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the
Trustee (a) within 60 days after the end of each of the Company's first three
fiscal quarters in each fiscal year, a report containing unaudited financial
statements with respect to such fiscal quarter and (b) within 105 days after
the end of the Company's fiscal year, a report containing audited financial
statements with respect to such fiscal year.
(b) At any time when the Company is not subject to Section
13 or 15(d) of the Exchange Act, upon the request of a Holder of a Restricted
Security or the holder of shares of Common Stock issued upon conversion
thereof, the Company will promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder of Restricted Securities or such
holder of shares of Common Stock issued upon conversion of Restricted
Securities, or to a prospective purchaser of any security designated by any
such Holder or holder, as the case may be, to the extent required to permit
compliance by such Holder or holder with Rule 144A under the Securities Act in
connection with the resale of any such security. "Rule 144A Information" shall
be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any Person, and the Company shall not
permit any Person to consolidate with or merge into the Company or convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer, lease or otherwise
dispose of its properties and assets substantially as an entirety to
any Person, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer or otherwise, or which leases, the properties and assets of
the Company substantially as an entirety shall be a Corporation or
other legal entity, shall be organized and validly existing under the
laws of the United States of America, any state thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including Liquidated
Damages, if any, payable pursuant to Section 1007) on all the
Securities and the performance of every
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covenant of this Indenture on the part of the Company to be performed
or observed and shall have provided for conversion rights in
accordance with Section 1306;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or other
disposition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 802. Successor Legal Entity Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer, lease or other
disposition of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer, lease or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and may liquidate and dissolve.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred
upon the Company; or
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(3) to secure the Securities; or
(4) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Section 1306; or
(5) to make any changes or modifications to this Indenture
necessary in connection with the registration of any Registrable
Securities under the Securities Act as contemplated by Section 1007,
provided, such action pursuant to this clause (5) shall not adversely
affect the interests of the Holders of Securities; or
(6) to comply with the requirements of the Trust Indenture
Act or the rules and regulations of the Commission thereunder in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by this Indenture or otherwise;
or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee; or
(8) to make any change in Article Fourteen that would
limit or terminate the benefits available to any holder of Senior
Indebtedness under such Article; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action pursuant
to this clause (9) shall not adversely affect the interests of the
Holders in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the obligation of the Company
to pay Liquidated Damages pursuant to Section 1007 in a manner adverse
to the Holders, or change the place of payment where, or the coin or
currency in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute
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suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or adversely affect the right to convert any
Security as provided in Article Thirteen (except as permitted by
Section 901(3)), or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1006, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental Indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
indenture supplemental hereto. If a record date is fixed, then those persons
who were Holders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to consent to such supplemental Indenture
or to revoke any consent previously given, whether or not such persons continue
to be Holders after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting any additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange, where
Securities may be surrendered for conversion and where notices and demands to
or upon the Company in respect of the Securities and this Indenture may be
served. The Company initially designates the office of the Trustee at Fleet
National Bank, c/o First Chicago, 14 Wall Street, 8th Floor -- Window No. 2,
New York, New York 10005, as its office or agency for these purposes. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside New York, New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations;
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provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in New
York, New York for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (and premium, if any)
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Securities, deposit in immediately available funds with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent; and
(2) at any time during the continuance of any default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years (or such shorter period as required by applicable abandonment law with
respect to the Holder entitled to payment thereof) after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on
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Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, unless an
applicable abandonment statute designates another Person, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if a transaction that would result in the termination of the Company's
existence or any such right or franchise is permissible under Article Eight or
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, in each case ending after the date
hereof, an Officers' Certificate, stating that a review of the activities of
the Company during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such officer signing such
certificate, that to the best of his knowledge the Company is not in default in
the performance or observance of any of the terms, provisions and conditions
hereof or, if a default or Event of Default shall have occurred, describing all
such defaults or Events of Default of which he may have knowledge and that to
the best of his knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Securities are prohibited or if such event has occurred, a description of
the event.
Section 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 1004, if before the time for
such compliance the Holders of at least a majority in aggregate principal
amount of the Outstanding Securities shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
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covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
Section 1007. Registration Rights.
The Company agrees that the Holders from time to time of
Registrable Securities (as defined below) are entitled to the benefits of a
Registration Rights Agreement, dated as of June 11, 1996 (the "Registration
Rights Agreement"), executed by the Company. Pursuant to the Registration
Rights Agreement, the Company has agreed for the benefit of the Holders from
time to time of Registrable Securities to file a shelf registration statement
(the "Shelf Registration Statement") with the Commission with respect to
resales of the Registrable Securities.
If (i) on or prior to 90 days following the date of original
issuance of the Registered Securities, a Shelf Registration Statement has not
been filed with the Commission, or (ii) on or prior to the 180th day following
the date of original issuance of the Registered Securities, such Shelf
Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on the
Registered Securities from and including the day following such Registration
Default to but excluding the day on which such Registration Default has been
cured. Liquidated Damages will be paid semi-annually in arrears, with the
first semi-annual payment due on the first Interest Payment Date in respect of
the Registered Securities following the date on which such Liquidated Damages
begin to accrue, and will accrue at a rate per annum equal to an additional
one-quarter of one percent (.25%) of the principal amount of the Registered
Securities to and including the 90th day following such Registration Default
and at a rate per annum equal to one-half of one percent (.50%) thereof from
and after the 91st day following such Registration Default. In the event that
the Shelf Registration Statement ceases to be effective during the
Effectiveness Period or the Company suspends the use of the prospectus which is
a part thereof for a period in excess of 60 days, whether or not consecutive,
during any 12-month period, then the interest rate borne by the Registered
Securities shall increase by an additional one-half of one percent (.50%) per
annum on the 61st day of the applicable 12-month period such Shelf Registration
Statement ceases to be effective or the Company suspends the use of the
prospectus which is a part thereof, as the case may be, to but excluding the
day on which (i) the Shelf Registration Statement again becomes effective, (ii)
the use of the related prospectus ceases to be suspended or (iii) the
Effectiveness Period expires.
Whenever in this Indenture there is mentioned, in any context,
the payment of the principal of, premium, if any, or interest on, or in respect
of, any Registered Security, such mention shall be deemed to include mention of
the payment of Liquidated Damages provided for in this Section to the extent
that, in such context, Liquidated Damages are, were or would be payable in
respect thereof pursuant to the provisions of this Section, and express mention
of the payment of Liquidated Damages (if applicable) in any provisions hereof
shall not be construed
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as excluding Liquidated Damages in those provisions hereof where such express
mention is not made.
For the purposes of the Registration Rights Agreement,
"Registrable Securities" means all or any portion of the Registered Securities
issued from time to time under this Indenture and the shares of Common Stock
issuable upon conversion of such Securities; provided, however, that a Security
or the shares of Common Stock issuable upon conversion of a Security ceases to
be a Registrable Security when it (i) has been effectively registered under the
Securities Act and sold in a manner contemplated by the Shelf Registration
Statement, (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provisions thereto) or (iii) otherwise has
been transferred and a new Security or share of Common Stock not subject to
transfer restrictions under the Securities Act has been delivered by or on
behalf of the Company in accordance with Section 305.
If a Security, or the shares of Common Stock issuable upon
conversion of a Security, is a Registrable Security, and the Holder thereof
elects to sell such Registrable Security pursuant to the Shelf Registration
Statement then, by its acceptance thereof, the Holder of such Registrable
Security will have agreed to be bound by the terms of the Registration Rights
Agreement relating to the Registrable Securities which are the subject of such
election.
For the purposes of the Registration Rights Agreement, the
term "Holder" includes any Person that has a beneficial interest in any Global
Security or any beneficial interest in a global security representing shares of
Common Stock issuable upon conversion of a Security.
Section 1008. Resale of Certain Securities: Reporting Issuer.
During the period beginning on the last date of original
issuance of the Securities and ending on the date that is three years from such
date, the Company will not, and will not permit any of its subsidiaries or
other "affiliates" (as defined under Rule 144 under the Securities Act or any
successor provision thereto) controlled by the Company to, resell (x) any
Securities which constitute "restricted securities" under Rule 144 or (y) any
securities into which the Securities have been converted under this Indenture
which constitute "restricted securities" under Rule 144, that in either case
have been reacquired by any of them. The Trustee shall have no responsibility
in respect of the Company's performance of its agreement in the preceding
sentence.
Section 1009. Payment of Certain Duties.
Subject to Sections 305 and 306 hereof, the Company will pay
or discharge, or cause to be paid or discharged, before the same may become
delinquent, all stamps and other duties, if any, which may be imposed by the
United States or United Kingdom or any political subdivision thereof or therein
in connection with the issuance, transfer, exchange or conversion of any
Securities or with respect to this Indenture.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption.
The Securities may be redeemed at the election of the
Company, as a whole or from time to time in part, at any time on or after June
15, 1999, at the Redemption Prices specified in the form of Security
hereinbefore set forth, together with accrued interest to the Redemption Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed and whether the Trustee is to give the notice of redemption.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed pursuant to
Section 1101, the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, by such method
(including pro rata or by lot) as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
$1,000 or any integral multiple thereof) of the principal amount of Securities
of a denomination larger than $1,000.
If any Registered Security selected for partial redemption is
converted in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of Securities to be
redeemed shall be treated by the Trustee as Outstanding for the purpose of such
selection.
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The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date;
(5) the conversion price, the date on which the right to
convert the principal of the Securities to be redeemed will terminate
and the place or places where such Securities may be surrendered for
conversion; and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at Company Request,
by the Trustee in the name and at the expense of the Company.
Section 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold
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in trust as provided in Section 1003) an amount of money in immediately
available funds sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date other than any Securities
called for redemption on that date which have been converted prior to the date
of such deposit, in which case only accrued interest payable on such Securities
pursuant to Sections 307 or 1303 need be so deposited.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to the right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307 or in Section 1303) be paid to
the Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any) and,
to the extent permitted by applicable law, any overdue interest thereon shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security, and such Security shall remain convertible until the principal
thereof shall have been paid or duly provided for.
Section 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE
Section 1201. Right to Require Repurchase.
(a) In the event that there shall occur a Change in
Control (as defined in Section 1206) which constitutes a Repurchase Event (as
defined in Section 1206), then each Holder shall have the right, at such
Holder's option to require the Company to purchase, and upon the exercise of
such right, the Company shall, subject to the provisions of Article Fourteen,
purchase all or any part of such Holder's Securities on a date (the "Repurchase
Date") selected by the Company that is not more than 75 days after the date the
Company gives notice of the Repurchase Event as contemplated in Section 1202(a)
at a price (the "Repurchase Price") equal to 100% of the principal amount
thereof, together with accrued and unpaid interest to the Repurchase Date. At
the option of the Company, the Repurchase Price may be paid in cash or, subject
to the fulfillment by the Company of the conditions set forth in clause (b) of
this Section 1201, by delivery of shares of Common Stock having a fair market
value equal to the Repurchase Price.
(b) The Company may elect to pay the Repurchase Price by
delivery of shares of Common Stock pursuant to clause (a) of this Section 1201
if and only if the following conditions shall have been satisfied:
(1) The shares of Common Stock deliverable in payment
of the Repurchase Price shall have a fair market value as of the
Repurchase Date of not less than the Repurchase Price. For purposes
of this Section 1201, the fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the
average of the Closing Prices per share for the five consecutive
Trading Days immediately preceding the second Trading Day prior to the
Repurchase Date;
(2) The Repurchase Price shall be paid only in cash in
the event any shares of Common Stock to be issued upon repurchase of
Securities hereunder (i) require registration under any federal
securities law before such shares may be freely transferable without
being subject to any transfer restrictions under the Securities Act
upon repurchase and if such registration is not completed or does not
become effective prior to the Repurchase Date, and/or (ii) require
registration with or approval of any governmental authority under any
state law or any other federal law before such shares may be validly
issued or delivered upon repurchase and if such registration is not
completed or does not become effective or such approval is not
obtained prior to the Repurchase Date;
(3) Payment of the Repurchase Price may not be made in
Common Stock unless such stock is, or shall have been, approved for
listing on the New York
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Stock Exchange or listed on another national securities exchange or
quoted on the Nasdaq National Market System, in either case, prior to
the Repurchase Date; and
(4) All shares of Common Stock which may be issued upon
repurchase of Securities will be issued out of the Company's
authorized but unissued Common Stock and, will upon issue, be duly and
validly issued and fully paid and non-assessable and free of any
preemptive rights.
(c) If all of the conditions set forth in Section 1201(b)
are not satisfied in accordance with the terms thereof, the Repurchase Price
shall be paid by the Company only in cash.
Section 1202. Notice; Method of Exercising Repurchase Right.
(a) On or before the 15th day after the Repurchase Event,
the Company, or at Company Request, the Trustee (in the name and at the expense
of the Company), shall give notice (the "Company Notice") of the occurrence of
the Repurchase Event and of the repurchase right set forth herein arising as a
result thereof by first- class mail, postage prepaid, to each Holder of the
Securities at such Holder's address appearing in the Security Register. The
Company shall also deliver a copy of such notice of a repurchase right to the
Trustee.
Each notice of a repurchase right shall state:
(1) the event constituting the Repurchase Event and
the date thereof,
(2) the Repurchase Date,
(3) the date by which the repurchase right must be
exercised,
(4) the Repurchase Price, and whether the Repurchase
Price shall be paid by the Company in cash or by
delivery of shares of Common Stock,
(5) the instructions a Holder must follow to exercise
a repurchase right.
No failure of the Company to give the foregoing notice shall
limit any Holder's right to exercise a repurchase right. The Trustee shall
have no affirmative obligation to determine if there shall have occurred a
Repurchase Event.
(b) To exercise a repurchase right, a Holder shall deliver
to the Company (or an agent designated by the Company for such purpose in the
notice referred to in (a) above) and to the Trustee on or before the close of
business on the Business Day immediately preceding the Repurchase Date (i)
written notice of the Holder's exercise of such right, which notice shall set
forth the name of the Holder, the principal amount of the Security or
Securities (or portion of
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a Security) to be repurchased, and a statement that an election to exercise the
repurchase right is being made thereby, and (ii) the Security or Securities
with respect to which the repurchase right is being exercised. Such written
notice shall be irrevocable. If the Repurchase Date falls between any Regular
Record Date and the next succeeding Interest Payment Date, Securities to be
repurchased must be accompanied by payment from the Holder of an amount equal
to the interest thereon which the registered Holder thereof is to receive on
such Interest Payment Date.
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, then subject to Article Fourteen, the Company
shall pay or cause to be paid to the Trustee the Repurchase Price in cash or
shares of Common Stock, as provided above, for payment to the Holder on the
Repurchase Date or, if shares of Common Stock are to be paid, as promptly after
the Repurchase Date as practicable, together with accrued and unpaid interest
to the Repurchase Date payable with respect to the Securities as to which the
purchase right has been exercised; provided, however, that installments of
interest that mature on or prior to the Repurchase Date shall be payable in
cash to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Date. In the event that a repurchase right is exercised with respect to less
than the entire principal amount of a surrendered Security, the Company shall
execute and deliver to the Trustee and the Trustee shall authenticate for
issuance in the name of the Holder a new Security or Securities in the
aggregate principal amount of the unrepurchased portion of such surrendered
Security.
(d) Any issuance of shares of Common Stock in respect of
the Repurchase Price shall be deemed to have been effected immediately prior to
the close of business on the Repurchase Date and the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock shall
be issuable upon such repurchase shall be deemed to have become on the
Repurchase Date the holder or holders of record of the shares represented
thereby; provided, however, that any surrender for repurchase on a date when
the stock transfer books of the Company shall be closed shall constitute the
Person or Persons in whose name or names the certificate or certificates for
such share are to be issued as the record holder or holders thereof for all
purposes at the opening of business on the next succeeding day on which such
stock transfer books are open. No payment or adjustment shall be made for
dividends or distributions on any Common Stock issued upon repurchase of any
Security declared prior to the Repurchase Date.
(e) No fractions of shares shall be issued upon
repurchase of Securities. If more than one Security shall be repurchased from
the same Holder and the Repurchase Price shall be payable in shares of Common
Stock, the number of full shares which shall be issuable upon such repurchase
shall be computed on the basis of the aggregate principal amount of the
Securities so repurchased. Instead of any fractional share of Common Stock
which would otherwise be issuable on the repurchase of any Security or
Securities, the Company will deliver to the applicable Holder its check for the
current market value of such fractional share. The current market value of a
fraction of a share is determined by multiplying the current market price of a
full share by the fraction, and rounding the result to the nearest cent. For
purposes of
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this Section, the current market price of a share of Common Stock is the
Closing Price per share of the Common Stock on the Trading Day immediately
preceding the Repurchase Date.
(f) Any issuance and delivery of certificates of shares of
Common Stock on repurchase of Securities shall be made without charge to the
Holder of Securities being repurchased for such certificates or for any tax or
duty in respect of the issuance or delivery of such certificates or the
securities represented thereby; provided, however, that the Company shall not
be required to pay any tax or duty which may be payable in respect of (i)
income of the Holder or (ii) any transfer involved in the issuance or delivery
of certificates for shares of Common Stock in a name other than that of the
Holder of the Securities being repurchased, and no such issuance or delivery
shall be made unless and until the Person requesting such issuance or delivery
has paid to the Company the amount of any such tax or duty or has established,
to the satisfaction of the Company, that such tax or duty has been paid.
(g) If shares of Common Stock to be delivered upon
repurchase of a Restricted Security are to be registered in a name other than
that of the beneficial owner of such Security, then such Holder must deliver to
the Trustee a Surrender Certificate, dated the date of surrender of such
Restricted Security and signed by such beneficial owner, as to compliance with
the restrictions on transfer applicable to such Restricted Security. Neither
the Trustee nor any Registrar or Transfer Agent or other agents shall be
required to register in a name other than that of the beneficial owner shares
of Common Stock issued upon repurchase of any such Restricted Security not so
accompanied by a properly completed Surrender Certificate.
Section 1203. Deposit of Cash Repurchase Price.
If all or part of the Repurchase Price is to be paid in cash,
on or prior to the Repurchase Date and subject to Article Fourteen, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money, in immediately available funds, sufficient to
pay the cash portion of the Repurchase Price of the Securities which are
payable on the Repurchase Date, plus accrued interest thereon.
Section 1204. Securities Not Repurchased on Repurchase Date.
If any Security surrendered for repurchase shall not be paid
on the Repurchase Date, the principal and any overdue interest thereon shall,
until paid, bear interest to the extent permitted by applicable law from the
Repurchase Date at a rate per annum borne by such Security, and such Security
shall remain convertible until the principal thereof shall have been paid or
duly provided for.
Section 1205. Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if
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the Company or the Trustee so requires, due endorsement by, or written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the repurchased portion
of the principal of the Security so surrendered.
Section 1206. "Change in Control" and "Repurchase Event" Defined.
(a) For purposes of this Article, "Change in Control"
means any of the following events that occurs after the Issue Date of the
Securities and so long as any Securities are Outstanding:
(1) the Company's assets are sold or otherwise
disposed of substantially as an entirety to any Person or related
group of Persons in any one transaction or a series of related
transactions;
(2) there shall be consummated any consolidation or
merger of the Company (A) in which the Company is not the continuing
or surviving corporation (other than a consolidation or merger with a
wholly-owned Subsidiary of the Company in which all shares of Common
Stock outstanding immediately prior to the effectiveness thereof are
changed into or exchanged for the same number of shares of common
stock of such Subsidiary) or (B) pursuant to which the Common Stock is
converted into cash, securities or other property, in each case other
than a consolidation or merger of the Company in which the holders of
the Common Stock immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common stock
of the continuing or surviving Corporation immediately after such
consolidation or merger; or
(3) any Person, or any Persons acting together which
would constitute a "group" for purposes of Section 13(d) of the
Exchange Act (a "Group") (other than the Company, any Subsidiary, any
employee stock purchase plan, stock option plan or other stock
incentive plan or program, retirement plan or automatic dividend
reinvestment plan or any substantially similar plan of the Company or
any Subsidiary or any Person holding securities of the Company for or
pursuant to the terms of any such employee benefit plan, which may
file or become obligated to file a report under or in response to
Schedule 13D or Schedule 14D-1 (or any successor schedule, form or
report) under the Exchange Act), together with any Affiliates thereof,
shall acquire beneficial ownership (as defined in Rule 13d-3 of the
Exchange Act) of at least 50% of the total voting power of all classes
of capital stock of the Company entitled to vote generally in the
election of directors of the Company.
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(b) A Change in Control as described in Section 1206(a)
shall constitute a "Repurchase Event" giving rise to a repurchase right on the
part of each Holder of a Security unless:
(1) the Current Market Price of the Common Stock on
the date the Change in Control shall have occurred is at least equal to
105% of the conversion price in effect immediately preceding the time
of such Change in Control, or
(2) all of the consideration (excluding cash payments
for fractional shares) in the transaction giving rise to such Change
in Control to the holders of Common Stock consists of shares of common
stock that are, or immediately upon issuance will be, listed on a
national securities exchange or quoted in the NASDAQ National Market
System, and as a result of such transaction the Securities become
convertible solely into such shares of common stock, or
(3) the consideration in the transaction giving rise
to such Change in Control to the holders of Common Stock consists of
cash, securities that are, or immediately upon issuance will be,
listed on a national securities exchange or quoted in the NASDAQ
National Market System, or a combination of cash and such securities
and the aggregate fair market value of such consideration (which, in
the case of each such security, shall be equal to the average of the
daily Closing Prices of each such security during the 10 consecutive
Trading Days commencing with the sixth Trading Day following
consummation of such transaction) to be received by a holder of Common
Stock with respect to one share of Common Stock is at least 105% of
the conversion price in effect on the date immediately preceding the
closing date of such transaction.
For purposes of this definition, "Current Market Price" on any
date means the average daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 10 Trading Days before, and
ending not later than, the date in question.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 1301. Right of Conversion.
The Holder of any Security or Securities shall have the right
at any time on or after 90 days from the last original issuance date of the
Securities and prior to the close of business on the maturity date, subject, in
the case of conversion of any Global Security, to any Applicable Procedures, at
his option, to convert, subject to the terms and provisions of this Article
Thirteen, the principal of any such Security or Securities (or any portion of
the principal thereof which is $1,000 or an integral multiple of $1,000) into
fully paid and nonassessable shares
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of Common Stock of the Company at the conversion price of $42.185 of principal
amount of Securities per share of Common Stock or, in case an adjustment
therein has taken place pursuant to the provisions of Section 1304, then at the
price as so adjusted (except that with respect to any Security or Securities,
or any such portion, which shall be called for redemption, such right shall
terminate, except as provided in the last paragraph of Section 1302, at the
close of business on the Business Day immediately preceding the Redemption Date
for such Security or Securities or portion unless the Company shall default in
payment due upon redemption thereof). Such right shall be exercised by the
surrender of the Security or Securities, the principal of which is so to be
converted, to the Company at any time during usual business hours at any office
or agency to be maintained by it in accordance with the provisions of Section
1002, accompanied by written notice that the Holder elects to convert such
Security or Securities or any portion thereof and specifying the name or names
(with address) in which a certificate or certificates for Common Stock are to
be issued and (if so required by the Company or the Trustee) by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee, duly executed by the Holder or his attorney, duly authorized in
writing and transfer tax stamps or funds therefor, if required pursuant to
Section 1310. For convenience, the conversion of all or a portion, as the case
may be, of the principal of any Security into the Common Stock of the Company
is hereinafter sometimes referred to as the conversion of such Security. All
Securities surrendered for conversion shall, if surrendered to the Company or
any conversion agent, be delivered to the Trustee for cancellation and
cancelled by it or, if surrendered to the Trustee, shall be cancelled by it;
and, subject to the next succeeding sentence, no Securities shall be issued in
lieu thereof. In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company,
a new Security or Securities of authorized denominations in an aggregate
principal amount equal to the unconverted portion of the principal amount of
such Security.
Section 1302. Issuance of Common Stock; Time of Conversion.
As promptly as practicable after the surrender, as herein
provided, of any Security or Securities for conversion, the Company shall
deliver or cause to be delivered at any office or agency to be maintained by it
in accordance with the provisions of Section 1002 to or upon the written order
of the Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of fully paid and nonassessable shares of
Common Stock of the Company into which such Security or Securities (or portion
thereof) may be converted in accordance with the provisions of this Article
Thirteen. Subject to the following provisions of this paragraph and of Section
1304, such conversion shall be deemed to have been made immediately prior to
the close of business on the date that such Security or Securities shall have
been surrendered in satisfactory form for conversion, so that the rights of the
Holder as a Holder shall cease with respect to such Security or Securities (or
the portion thereof being converted) at such time, and the Person or Persons
entitled to receive the shares of Common Stock deliverable upon conversion of
such Security or Securities shall be treated for all purposes as having become
the record holder or holders of such shares of Common Stock at such time, and
such conversion shall be at the conversion price in effect at such time;
provided, however, that no such surrender on any date when the stock transfer
books of the Company shall be closed shall
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be effective to constitute the Person or Persons entitled to receive the shares
of Common Stock deliverable upon such conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall
be effective to constitute the Person or Persons entitled to receive such
shares of Common Stock as the record holder or holders thereof for all purposes
immediately prior to the close of business on the next succeeding day on which
such stock transfer books are open, and such conversion shall be deemed to have
been made at, and shall be made at the conversion rate in effect at, such time
on such next succeeding day.
All shares of Common Stock delivered upon conversion of
Restricted Securities shall bear restrictive legends substantially in the form
of the legends required to be set forth on the Restricted Securities pursuant
to Section 305(c) and shall be subject to the restrictions on transfer provided
in such legends. Neither the Trustee nor any agent maintained for the purpose
of such conversion shall have any responsibility for the inclusion or content
of any such restrictive legends on such Common Stock; provided, however, that
the Trustee or any agent maintained for the purpose of such conversion shall
provided, to the Company or to the Company's transfer agent for such Common
Stock, prior to or concurrently with a request to the Company to deliver such
Common Stock, written notice that the Securities delivered for conversion are
Restricted Securities.
If shares of Common Stock to be issued upon conversion of a
Restricted Security, or Registered Securities to be issued upon conversion of a
Restricted Security in part only, are to be registered in a name other than
that of the beneficial owner of such Restricted Security, then such Holder must
deliver to the conversion agent designated by the Company a Surrender
Certificate, dated the date of surrender of such Restricted Security and signed
by such beneficial owner, as to compliance with the restrictions on transfer
applicable to such Restricted Security. Neither the Trustee nor any conversion
agent designated by the Company, Registrar or Transfer Agent shall be required
to register in a name other than that of the beneficial owner, shares of Common
Stock or Securities issued upon conversion of any such Restricted Security not
so accompanied by a properly completed Surrender Certificate.
If the last day for the exercise of the conversion right shall
not be a Business Day, then such conversion right may be exercised on the next
succeeding Business Day.
Section 1303. No Adjustments in Respect of Interest or Dividends.
Securities surrendered for conversion during the period from
the close of business on any Regular Record Date to the opening of business on
the next succeeding Interest Payment Date shall (except in the case of
Securities or portions thereof which have been called for redemption) be
accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Securities being surrendered
for conversion. Upon a call for redemption by the Company, accrued and unpaid
interest to the Redemption Date shall be payable with respect to Securities
converted after the redemption notice has been mailed and prior to the
Redemption Date. Except as provided in this Section 1303 and subject to the
last paragraph of
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Section 307, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or
on account of any dividends on the shares of Common Stock issued upon
conversion.
Section 1304. Adjustment of Conversion Price.
The conversion price, and consequently the number of shares of
Common Stock into which a Security is convertible, shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall (i) pay a dividend on
Common Stock or make a distribution on its Common Stock that is paid
or made (1) in shares of any class of capital stock of the Company or
(2) in rights to purchase any stock or other securities if such rights
are not separable from the Common Stock except upon the occurrence of
a contingency, (ii) subdivide its outstanding shares of Common Stock
into a greater number of shares or (iii) combine its outstanding
shares of Common Stock into a smaller number of shares, then in each
such case the conversion price in effect immediately prior thereto
shall be adjusted retroactively as provided below so that the Holder
of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock and other
shares and rights to purchase stock or other securities (or, in the
event of the redemption of any such shares or rights, any cash,
property or securities paid in respect of such redemption) which such
Holder would have owned or have been entitled to receive after the
happening of any of the events described above had such Security been
converted immediately prior to the happening of such event. An
adjustment made pursuant to this Subsection (a) shall become effective
immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants
to all holders of its Common Stock entitling them (for a period
expiring within 45 days after the date fixed for determination
mentioned below) to subscribe for or purchase shares of Common Stock
at a price per share less than the current market price per share
(determined as provided in paragraph (d) of this Section) of the
Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights or warrants, then the conversion price
in effect at the opening of business on the day following the date
fixed for such determination shall be decreased by multiplying such
conversion price by a fraction of which the denominator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase, and the
numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus
the number of shares of Common Stock which the aggregate of the
offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such current
market price, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination; provided, however, in the event that all
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the shares of Common Stock offered for subscription or purchase are
not delivered upon the exercise of such rights or warrants, upon the
expiration of such rights or warrants the conversion price shall be
readjusted to the conversion price which would have been in effect had
the numerator and the denominator of the foregoing fraction and the
resulting adjustment been made based upon the number of shares of
Common Stock actually delivered upon the exercise of such rights or
warrants rather than upon the number of shares of Common Stock offered
for subscription or purchase. For the purposes of this paragraph (b),
the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company.
(c) In case the Company shall, by dividend or
otherwise, distribute to substantially all holders of its Common
Stock evidences of its indebtedness, cash (excluding quarterly cash
dividends paid or to be paid on a regular basis), other assets or
rights or warrants to subscribe for or purchase any securities
(excluding those referred to in paragraphs (a) and (b) above), then in
each such case, the conversion price shall be adjusted retroactively
so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the close of business
on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the denominator shall
be the current market price per share (determined as provided in
paragraph (d) of this Section) of the Common Stock on the date fixed
for such determination and the numerator shall be such current market
price per share of the Common Stock less the amount of cash and the
then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution
filed with the Trustee) of the portion of the assets, rights, warrants
or evidences of indebtedness so distributed applicable to one share of
Common Stock, such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
(d) For the purpose of any computation under
paragraphs (b) and (c) of this Section, the current market price per
share of Common Stock on any date shall be deemed to be the average
of the daily closing prices for the 30 consecutive trading days
commencing with the 45th trading day before the day in question. The
closing price for each day shall be the last reported sales price
regular way or, in case no such reported sale takes place on such day,
the average of the reported closing bid and asked prices regular way,
in either case on the composite tape of the principal national
securities exchange upon which the Common Stock is listed or on the
NASDAQ National Market System (based on the aggregate dollar value of
all securities listed or admitted to trading) or, if the Common Stock
is not listed or admitted to trading on any national securities
exchange or quoted on the NASDAQ National Market System, the average
of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from
time to time by the Company for that purpose, or, if such prices are
not available, the fair market value set by, or in a manner
established by, the Board of Directors of the Company in good faith.
"Trading day" shall mean a
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day on which the national securities exchange or the NASDAQ National
Market System used to determine the closing price is open for the
transaction of business or the reporting of trades or, if the closing
price is not so determined, a day on which the New York Stock
Exchange is open for the transaction of business.
(e) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or decrease
of at least 1% in such price; provided, however, that the Company may
make any such adjustment at its election; and provided, further, that
any adjustments which by reason of this paragraph (e) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article Thirteen
shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(f) Whenever the conversion price is adjusted as
provided in any provision of this Article Thirteen:
(i) the Company shall compute the adjusted
conversion price in accordance with paragraph (d) and
shall prepare a certificate signed by the principal
financial officer of the Company setting forth the
adjusted conversion price and showing in reasonable
detail the facts and calculations upon which such
adjustment is based, and such certificate shall forthwith
be filed with the Trustee and at each office or agency
maintained for the purpose of conversion of Securities;
and
(ii) a notice stating that the conversion price
has been adjusted and setting forth the adjusted
conversion price shall forthwith be required, and as soon
as practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last
addresses as they shall appear in the Security Register.
(g) In the event that at any time, as a result of any
adjustment made pursuant to this Article Thirteen, the Holder of any
Security thereafter surrendered for conversion shall become entitled to
receive any shares of the Company other than shares of Common Stock or
to receive any other securities, the number of such other shares or
securities so receivable upon conversion of any Security shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions contained in this
Article Thirteen with respect to the Common Stock.
(h) The Company from time to time may, by Board
Resolution delivered to the Trustee, decrease the conversion price by
any amount for any period of time if the period is at least 20 days
and if the decrease is irrevocable during the period. Whenever the
conversion price is so decreased, the Company shall mail to the
Holders a notice of the decrease at least 15 days before the date the
decreased conversion price takes effect, and such notice shall state
the decreased conversion price and the period it will be in effect.
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(i) The Company may make such decreases in the
conversion price, in addition to those required or allowed by this
Article Thirteen, as shall be determined by it, as evidenced by a
Board Resolution delivered to the Trustee, to be advisable in order to
avoid or diminish any income tax to holders of Common Stock resulting
from any dividend or distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from any event treated
as such for income tax purposes.
(j) In any case in which this Section 1304 provides
that an adjustment shall become effective immediately after a record
date for an event, the Company may defer until the occurrence of
such event (i) issuing to the holder of any Security converted after
such record date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the
Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such holder any amount in cash in
lieu of any fraction pursuant to Section 1305.
Section 1305. No Fractional Shares.
No fractional shares or scrip representing fractional shares
of Common Stock shall be issued upon conversion of Securities. If more than one
Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the closing price
per share of Common Stock as quoted on the composite tape of the principal
national securities exchange upon which the Common Stock is listed or the NASDAQ
National Market System or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular way, in
either case on the NASDAQ National Market System or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted on
the NASDAQ National Market System, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Company for that purpose,
or, if such prices are not available, the fair market value set by, or in a
manner established by, the Board of Directors of the Company in good faith, all
of the above to be determined as of the close of business on the day of
conversion.
Section 1306. Reclassification, Consolidation, Merger or Sale of
Assets.
In case of any reclassification of the Common Stock, any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company), any sale or
other disposition of the assets of the Company substantially as an entirety or
any compulsory
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share exchange pursuant to which share exchange the Common Stock is converted
into other securities, cash or other property, then the Holder of each Security
then outstanding shall have the right thereafter, during the period such
Security shall be convertible, pursuant to Section 1301, to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such reclassification, consolidation, merger, sale, other
disposition or share exchange by a holder of the number of shares of Common
Stock of the Company into which such Security might have been converted
immediately prior to such reclassification, consolidation, merger, sale, other
disposition or share exchange assuming such holder of Common Stock (i) is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company, to which such sale or other disposition was made
or a party to such share exchange, as the case may be ("constituent Person"),
or an Affiliate of a constituent Person and (ii) failed to exercise his rights
of election, if any, as to the kind or amount of securities, cash and other
property receivable upon such reclassification, consolidation, merger, sale,
other disposition or share exchange (provided that if the kind or amount of
securities, cash and other property receivable upon such reclassification,
consolidation, merger, sale, other disposition or share exchange is not the
same for each share of Common Stock held immediately prior to such
reclassification, consolidation, merger, sale, other disposition or share
exchange by others than a constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Article the kind and
amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, sale, other disposition or share
exchange by each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). The
Company or the Person formed by such consolidation or resulting from such
merger or which acquires such assets or which acquires the Company's shares, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture to establish such right. Such supplemental indenture shall provide
for adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article. The above provisions of this
Section shall similarly apply to successive reclassifications, consolidations,
mergers, sales, other dispositions or share exchanges.
Notice of the execution of such a supplemental indenture
shall be given by the Company to each Holder by mailing such notice to his last
address appearing on the Security Register.
Neither the Trustee nor any conversion agent shall be under
any responsibility to determine the correctness of any provisions contained in
any such supplemental indenture relating either to the kind or amount of shares
of stock or securities or cash or property receivable by Holders of Securities
upon the conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or other disposition or to any such adjustment, but,
subject to the provisions of Section 601, may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying upon,
an Opinion of Counsel with respect thereto, which the Company shall cause to be
furnished to the Trustee upon request.
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Section 1307. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any
other distribution) on its Common Stock other than (1) a
dividend payable in shares of Common Stock or (2) a quarterly cash
dividend paid or to be paid on a regular basis or (ii) declare or
authorize a redemption or repurchase of in excess of 10% of the then
outstanding shares of Common Stock; or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or
purchase any shares of stock of any class or of any other rights or
warrants; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or
merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the sale or other
disposition of the assets of the Company substantially as an entirety
or of any compulsory share exchange whereby the Common Stock is
converted into other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed to
each Holder of Securities at his last address appearing on the Security
Register, as promptly as possible but in any event at least 15 days prior to
the applicable date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution or
granting of rights or warrants or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, other disposition, share
exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, other disposition, share exchange, dissolution,
liquidation or winding up.
Section 1308. Shares to be Reserved; Accounting Treatment of Consideration.
The Company covenants that it will at all times reserve and
keep available out of its authorized but unissued Common Stock, free from
preemptive rights solely for the purpose of issue upon conversion of Securities
as herein provided, such number of shares of Common Stock as shall then be
issuable upon the conversion of all outstanding Securities. The Company
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covenants that all shares of Common Stock which shall be so issuable shall,
when issued, be duly and validly issued and fully paid and nonassessable.
The Company covenants that, upon conversion of Securities as
herein provided, there will be credited to the Common Stock capital account
from the consideration for which the shares of Common Stock issuable upon such
conversion are issued an amount per share of Common Stock so issued as
determined by the Board of Directors, which amount shall not be less than the
amount required by law and by the Company's certificate of incorporation, as
amended, as in effect on the date of such conversion. For the purposes of this
covenant the principal amount of the Securities converted, less any cash paid
in respect of fractional share interests upon such conversion, shall be deemed
to be the amount of consideration for which the shares of Common Stock issuable
upon such conversion are issued.
Section 1309. Listing of Shares.
The Company covenants that so long as the Common Stock of the
Company is listed on any national securities exchange or on the NASDAQ National
Market System, the Company will, if permitted by the rules thereof, list and
keep listed thereon, upon official notice of issuance, all shares of Common
Stock issuable upon conversion of Securities.
Section 1310. Taxes and Charges.
The issuance of certificates for shares of Common Stock upon
the conversion of Securities shall be made without charge to the converting
Holder of Securities for such certificates or for any tax in respect of the
issuance of such certificates or the securities represented thereby, and such
certificates shall be issued in the respective names of, or in such names as may
be directed by, the Holders of the Securities converted; provided, however, that
the Company shall not be required to pay any tax which may be payable in respect
of any transfer involved in the issuance and delivery of any such certificate in
a name other than that of the Holder of the Security converted, and the Company
shall not be required to issue or deliver such certificates unless or until the
Person or Persons requesting the issuance thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
Section 1311. Trustee and Conversion Agents Not Liable.
Neither the Trustee nor any conversion agent shall at any
time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
conversion rate, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock or of
any securities or cash or other property which may at any time be issued or
delivered upon the conversion of any Security, or makes any representation with
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respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to make any cash payment or to
issue, transfer or deliver any shares of Common Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion, or, subject to Section 601, with any of the covenants of the
Company contained in this Article Thirteen.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness.
The Companyh covenants and agrees, and each Holder of a
Security by his acceptance thereof likewise covenants and agrees that, to the
extent and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company, then and in any such event
the holders of Senior Indebtedness shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of all Senior
Indebtedness, or provision shall be made for such payment in money or money's
worth, before the Holders of the Securities are entitled to receive any payment
on account of principal of (or premium, if any) or interest (including any
Liquidated Damages) on the Securities, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of
the Company being subordinated to the payment of the Securities, which may be
payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event. In
furtherance of the foregoing, but not by way of limitation thereof, in the
event of any case or proceeding described in clause (a) above with the result
that the Company is excused from the obligation to pay all or any part of the
interest otherwise payable in respect of any Senior Indebtedness during the
period subsequent to the commencement of any such case or proceeding, all or
such part, as the case
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<PAGE> 98
may be, of such interest shall be payable out of, and to that extent shall
diminish and be at the expense of, reorganization dividends or other
distributions in respect of the Notes.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Indebtedness is paid in full or payment thereof
provided for, and if such fact shall then have been made known to the Trustee,
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinated at least to the extent provided in this
Article with respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided, however, that (i)
such Senior Indebtedness is assumed by the new corporation, if any, resulting
from any such reorganization or readjustment, and (ii) the rights of the
holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or other
disposition of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshaling of assets and liabilities
of the Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or other disposition such properties and assets substantially as
an entirety, as the case may be, shall, as a part of such consolidation,
merger, conveyance or other disposition, comply with the conditions set forth
in Article Eight.
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of Senior
Indebtedness outstanding at the time such Securities so become due and payable
shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all such Senior Indebtedness, or provision shall be
made for such payment in money or money's worth, before the Holders of the
Securities are entitled to receive any payment (including any payment which may
be payable by reason of the payment
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<PAGE> 99
of any other indebtedness of the Company being subordinated to the payment of
the Securities) by the Company on account of the principal of (or premium, if
any) or interest (including any Liquidated Damages) on the Securities or on
account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Securities
prohibited by the foregoing provisions of this Section, and if such facts shall
then have been made known to the Trustee or, as the case may be, such Holder,
then and in such event such payment shall be paid over and delivered forthwith
to the Company for the benefit of the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment
with respect to which Section 1402 would be applicable.
Section 1404. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in
the payment of principal (or premium, if any) or interest on any Senior
Indebtedness, or in the payment of any commitment or other fees in respect
thereof, or in the event that any event of default with respect to any Senior
Indebtedness shall have occurred and be continuing permitting the holders of
such Senior Indebtedness (or a trustee on behalf of the holders thereof) to
declare such Senior Indebtedness due and payable prior to the date on which it
would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment or event of default; then no payment (including any payment which may
be payable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities) shall be made by the
Company on account of principal of (or premium, if any) or interest on the
Securities or on account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall then have
been made known to the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company for the benefit of the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment
with respect to which Section 1402 would be applicable.
Section 1405. Acknowledgment of Reliance.
Each Holder of Notes by his acceptance thereof acknowledges
and agrees that the subordination provisions included herein are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was
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<PAGE> 100
created or acquired before or after the issuance of Notes, to acquire and/or
continue to hold such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and/or continuing to hold such Senior Indebtedness.
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the Company or to the holders of Senior Indebtedness by Holders
of the Securities or the Trustee shall, as between the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Securities.
Section 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities,
on the one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, and which, subject to the rights under
this Article of the holders of Senior Indebtedness, is intended to rank equally
with all other general obligations of the Company, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms, or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Indebtedness, or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to the Trustee or such Holder.
Section 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the
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subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act in good faith by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Failure to give such notice
shall not affect the subordination of the Securities to Senior Indebtedness.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any trustee therefor; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of Section
601, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including without limitation, the payment
of the principal of, and premium, if any, or interest on any Security), the
notice with respect to such money provided for in this Section, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be
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<PAGE> 102
affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee on behalf of any such holder). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 1411. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pursuant thereto or to this Article.
Section 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
Section 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to
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<PAGE> 103
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee or any predecessor Trustee under or pursuant to Section 607.
Section 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1413 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1415. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance with
Article Thirteen shall not be deemed to constitute a payment or distribution on
account of the principal of or premium or interest on Securities or on account
of the purchase or other acquisition of Securities, and (2) the payment,
issuance or delivery of cash, property or securities (other than junior
securities) upon conversion of a Security shall be deemed to constitute payment
on account of the principal of such Security. For the purposes of this
Section, the term "junior securities" means (a) shares of any stock of any
class of the Company and (b) securities of the Company which are subordinated
in right of payment to all Senior Indebtedness which may be outstanding at the
time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among
the Company, its creditors, other than holders of Senior Indebtedness and the
Holders of the Securities, the right, which is absolute and unconditional, of
the Holder of any Security to convert such Security in accordance with Article
Thirteen.
* * * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 104
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
POGO PRODUCING COMPANY
By /s/ John W. Elsenhans
------------------------------------
John W. Elsenhans, Vice President
and Treasurer
FLEET NATIONAL BANK,
as Trustee
By /s/ Philip G. Kane, Jr.
------------------------------------
Philip G. Kane, Jr.Vice President
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<PAGE> 105
ANNEX A -- Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to Section 305(b)(i), (iii) and (v)
of the Indenture)
Fleet National Bank
as Trustee
777 Main Street
Hartford, Connecticut 06115
Re: 5 1/2% Convertible Subordinated Notes due
June 15, 2006 of Pogo Producing Company (the "Securities")
Reference is made to the Indenture, dated as of June 15, 1996 (the
"Indenture"), from Pogo Producing Company (the "Company") to Fleet National
Bank, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S. $____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).
----------------------
CERTIFICATE No(s).
----------------------
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security,
they are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Regulation S
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with
Rule 904 or Rule 144 under the Securities Act and with all applicable
securities laws of the
A-1
<PAGE> 106
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any
person acting on its behalf reasonably believed that the
Transferee was outside the United States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another designated
offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period,
then the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after a holding period of at
least two years (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the date the Specified Securities were acquired from the
Company or from an affiliate (as such term is defined in Rule 144) of the
Company, whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of paragraphs
(e), (f) and (h) of Rule 144; or
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<PAGE> 107
(B) the transfer is occurring after a period of at least three
years has elapsed since the date the Specified Securities were acquired
from the Company or from an affiliate (as such term is defined in Rule
144) of the Company, whichever is later, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------
(Print the name of the Undersigned, as such term is defined in
the second paragraph of this certificate.)
By:
--------------------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary,
the title of the person signing on behalf of the Undersigned must
be stated.)
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<PAGE> 108
ANNEX B -- Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 305(b)(ii), (iii), (iv) and (v)
of the Indenture)
Fleet National Bank
as Trustee
777 Main Street
Hartford, Connecticut 06115
Re: 5 1/2% Convertible Subordinated Notes due
June 15, 2006 of Pogo Producing Company (the "Securities")
Reference is made to the Indenture, dated as of June 15, 1996 (the
"Indenture"), from Pogo Producing Company (the "Company") to Fleet National
Bank, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S. $_________________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).
--------------------
CERTIFICATE No(s).
--------------------
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security,
they are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with
B-1
<PAGE> 109
Rule 144A or Rule 144 under the Securities Act and all applicable securities
laws of the states of the United States and other jurisdictions. Accordingly,
the Owner hereby further certifies as:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected pursuant
to Rule 144:
(A) the transfer is occurring after a holding period of at least
two years (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the date the Specified Securities were acquired from the
Company or from an affiliate (as such term is defined in Rule 144) of the
Company, whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of paragraphs
(e), (f) and (h) of Rule 144; or
(B) the transfer is occurring after a period of at least three
years has elapsed since the date the Specified Securities were acquired
from the Company or from an affiliate (as such term is defined in Rule
144) of the Company, whichever is later, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company.
B-2
<PAGE> 110
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------
(Print the name of the Undersigned, as such term is defined in the
second paragraph of this certificate.)
By:
----------------------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary,
the title of the person signing on behalf of the Undersigned
must be stated.)
B-3
<PAGE> 111
ANNEX C -- Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 305(c))
Fleet National Bank
as Trustee
777 Main Street
Hartford, Connecticut 06115
Re: 5 1/2% Convertible Subordinated Notes due
June 15, 2006 of Pogo Producing Company (the "Securities")
Reference is made to the Indenture, dated as of June 15, 1996 (the
"Indenture"), from Pogo Producing Company (the "Company") to Fleet National
Bank, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S. $__________________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).
------------------
CERTIFICATE No(s).
------------------
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security,
they are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 305(c) of the
Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a period of at least three years has elapsed
since the date the Specified Securities were acquired from the Company or from
an affiliate (as such term is defined in Rule 144) of the Company, whichever is
later, and the Owner is not, and during the preceding three months has not
been, an affiliate of the
C-1
<PAGE> 112
Company. The Owner also acknowledges that any future transfers of the
Specified Securities must comply with all applicable securities laws of the
states of the United States and other jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------------------
(Print the name of the Undersigned, as such term is defined in the
second paragraph of this certificate.)
By:
---------------------------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary,
the title of the person signing on behalf of the Undersigned must
be stated.)
C-2
<PAGE> 113
ANNEX D -- Form of
Surrender Certificate
In connection with the certification contemplated by Section 1302 or
1202(g) relating to compliance with certain restrictions relating to transfers
of Restricted Securities, such certification shall be provided substantially in
the form of the following certificate, with only such changes thereto as shall
be approved by the Company, and Goldman, Sachs & Co. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated:
CERTIFICATE
POGO PRODUCING COMPANY
5 1/2% CONVERTIBLE NOTES DUE JUNE 15, 2006
This is to certify that as of the date hereof with respect to U.S.
$_____________ principal amount (as defined in the Indenture) of the
above-captioned securities surrendered on the date hereof (the "Surrendered
Securities") for registration of transfer, or for conversion or repurchase
where the securities issuable upon such conversion or repurchase are to be
registered in a name other than that of the undersigned Holder (each such
transaction being a "transfer"), the undersigned Holder (as defined in the
Indenture) certifies that the transfer of Surrendered Securities associated
with such transfer complies with the restrictive legend set forth on the face
of the Surrendered Securities for the reason checked below:
The transfer of the Surrendered Securities
------------- complies with Rule 144 under the United
States Securities Act of 1933, as amended
(the "Securities Act"); or
The transfer of the Surrendered Securities
------------- complies with Rule 144A under the
Securities Act; or
The transfer of the Surrendered Securities
------------- complies with Rule 904 under the Securities
Act.
The transfer of the Surrendered Securities
------------- has been made to an institution that is an
"accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the
Securities Act in a transaction exempt from
the registration requirements of the
Securities Act.
[Name of Holder]
----------------------------
Dated *
---------------
*To be dated the date
of surrender
D-1
<PAGE> 1
GAS SALES AGREEMENT
between
PETROLEUM AUTHORITY OF THAILAND
and
THAIPO LIMITED
THAI ROMO LIMITED
THE SOPHONPANICH CO., LTD.
NOVEMBER 7th, 1995
<PAGE> 2
TABLE OF CONTENTS
ARTICLE PAGE
I DEFINITIONS.................................................... 4
II SALE, PURCHASE AND RELATED MATTERS............................. 8
III INITIAL FIELD RESERVES......................................... 9
IV QUALITY........................................................ 10
V DELIVERY PRESSURE.............................................. 12
VI QUANTITIES..................................................... 14
VII CONCESSIONAIRE'S RESERVATIONS.................................. 20
VIII PTT FACILITIES................................................. 21
IX EXCHANGE OF INFORMATION........................................ 22
X DETERMINATION OF RESERVES...................................... 23
XI PRICE AND PRICE ADJUSTMENT..................................... 24
XII BILLING AND PAYMENT............................................ 28
XIII MEASUREMENTS................................................... 31
XIV POINT OF DELIVERY, PROPERTY AND RISK........................... 34
XV DEFAULT........................................................ 35
XVI FORCE MAJEURE.................................................. 37
XVII PERIOD OF CONTRACT............................................. 39
XVIII TERMINATION.................................................... 40
XIX ASSIGNMENT..................................................... 42
XX EXPERTS........................................................ 43
XXI ARBITRATION.................................................... 46
XXII APPLICABLE LAW................................................. 48
XXIII SUCCESSORS AND ASSIGNS......................................... 49
XXIV CONCESSIONAIRE'S REPRESENTATIVE................................ 50
XXV NOTICES........................................................ 51
XXVI WAIVER......................................................... 53
XXVII MARGINAL HEADINGS.............................................. 54
XXVIII ROYALTY IN KIND................................................ 55
XXIX ATTACHMENTS.................................................... 56
XXX RELATIONSHIP................................................... 57
XXXI ENTIRE CONTRACT................................................ 58
FIRST SCHEDULE PART I THE CONCESSION AREA..................... 60
PART II G.S.A. AREA............................. 61
PART III MAP OF CONCESSION AREA.................. 62
SECOND SCHEDULE QUALITY SPECIFICATIONS............................. 63
THIRD SCHEDULE MEASUREMENT OF SALES GAS DELIVERED................. 64
FOURTH SCHEDULE DELIVERY POINT..................................... 66
FIFTH SCHEDULE PARENTAL GUARANTEES................................ 67
2
<PAGE> 3
AN AGREEMENT made in Bangkok Metropolis in the Kingdom of Thailand this seventh
day of November, B.E. 2538 (1995) between the PETROLEUM AUTHORITY OF THAILAND
having its principal office at 555, Vibhavadi Rangsit Road, Bangkok 10900
(hereinafter called "PTT") represented by Mr. Pala Sookawesh of the first part,
and Thaipo Limited, (hereinafter called THAIPO), a company duly incorporated
and existing under the laws of Thailand and having its registered office at
19th Floor, B.B. Building, 54 Asoke Road, Sukhumvit 21, Bangkok 10110,
represented by Mr. Radford Phillip Laney and Thai Romo Limited, (hereafter
called THAI ROMO), a company duly incorporated and existing under the laws of
Thailand and having its registered office at 19th Floor, B.B. Building, 54
Asoke Road, Sukhumvit 21, Bangkok 10110, represented by Mr. Patrick R.
Rutherford, and The Sophonpanich Co., Ltd., (hereafter called SOPHONPANICH) a
company duly incorporated and existing under the laws of Thailand and having
its registered office at 61 Soi Watana, Nineteen, Sukhumvit Road, Bangkok
10110, represented by Mr. Chote Sophonpanich, (hereinafter all collectively
called "Concessionaire") of the second part.
WHEREAS
(A) On the first (1st) day of August, 1991, the Minister of Industry awarded
Petroleum Concession No. 1/2534/36, and on the sixth (6th) day of March,
1992 the Supplementary Petroleum Concession No. 1 to Petroleum Concession
No. 1/2534/36;
(B) There has been established the Petroleum Authority of Thailand, a
Government Authority, to operate petroleum business;
(C) At the date of this Agreement thirteen (13) wells have been drilled within
the G.S.A. Area described in the First Schedule Part II and Natural Gas
has been discovered as a result of such drilling activities; and
(D) The Concessionaire is willing to sell and PTT is willing to buy the said
Natural Gas from the G.S.A. Area and subject to the terms and conditions
hereinafter appearing;
NOW IT IS HEREBY AGREED as follows:
3
<PAGE> 4
ARTICLE I DEFINITIONS
In this Agreement, reference to Articles and Clauses shall be reference to
Articles and Clauses of this Agreement and words indicating the singular may
also include the plural and vice versa as the context requires and unless
otherwise indicated the following words and expressions in this Agreement,
including the foregoing recitals, shall have the meanings set forth below:
1.1 "Annual Contract Quantity" (ACQ) shall have the meaning set forth
in Article VI.
1.2 "BTU" means one (1) British Thermal Unit which is further defined
as the amount of heat required to raise the temperature of one
(1) avoirdupois pound of pure water from fifty-eight and one-half
(58.5) degrees Fahrenheit to fifty-nine and one-half (59.5)
degrees Fahrenheit at a standard pressure of fourteen decimal
seven three (14.73) pounds per square inch absolute.
1.3 "Bank of Thailand Average Loan Rate" means, on any day, the rate
per annum of interest at which the Bank of Thailand on that day
lends (or is prepared to lend) Baht to the commercial banks in
Thailand (announced by the Bank of Thailand as the Loan Window
Rate) or, if a second tier rate is also announced, the unweighted
arithmetic average interest rate calculated by adding together
the first and second tier rates and then dividing the sum of the
rates by two.
1.4 "Carry-Forward Gas" shall have the meaning set forth in
Article VI.
1.5 "Concession Agreement" means, collectively, the Petroleum
Concession Agreement No. 1/2534/36, dated August 1, 1991,
covering block B8/32 offshore Thailand, awarded by the Ministry
of Industry to Maersk Oil (Thailand) Ltd., Thaipo, Limited and
Thai Romo, Limited, and Supplementary Petroleum Concession No. 1
to Petroleum Concession No. 1/2534/36, dated March 6, 1992,
whereby The Sophonpanich Co., Ltd. entered into Petroleum
Concession No. 1/2534/36.
1.6 "Concession Area" means the area which is described by its
co-ordinates in the First Schedule, Part I and which, for
illustrative purposes, is shown by a map in the First Schedule,
Part III, as may exist from time to time after required
relinquishments.
1.7 "Concessionaire" shall have the meaning set forth in the
recitals.
1.8 "Concessionaire's Equipment" shall have the meaning set forth in
Article XIII.
1.9 "Contract Delivery Pressure" shall have the meaning set forth in
Article V.
1.10 "Contract Period" means the period from the Contractual Delivery
Date to the date on which this Agreement shall be terminated by
any of the means herein provided
1.11 "Contract Year" means a period beginning at six (6) o'clock a.m.
on the first day of October in any year after the First Contract
Year during the continuance of this Agreement and
4
<PAGE> 5
ending at six (6) o'clock a.m. on the first day of October in the
following year or at termination according to Article XVIII.
1.12 "Contractual Delivery Capacity" shall have the meaning set forth
in Article VI.
1.13 "Contractual Delivery Date" (CDD) and "Date of Commencement of
Delivery" (DCD) shall have the meanings set forth in Article VI.
1.14 "Cubic Foot" when applied to Sales Gas means the volume of Sales
Gas being saturated with water vapour which occupies one (1)
cubic foot of space measured at fourteen decimal seven three
(14.73) pounds per square inch absolute pressure at a temperature
of sixty (60) degrees Fahrenheit.
1.15 "Current Price" shall have the meaning set forth in Article XI.
1.16 "Daily Contract Quantity" (DCQ) shall have the meaning set forth
in Article VI.
1.17 "Day" means a period of twenty four (24) hours beginning at six
(6) o'clock a.m. on each day and ending at six (6) o'clock a.m.
on the following day.
1.18 "Debit Year" shall have the meaning set forth in Article VI.
1.19 "Delivery Point" shall have the meaning set forth in Article XIV.
1.20 "Effective Date" shall be the date of execution of this Agreement
by the parties.
1.21 "Facilities" shall mean only those facilities installed by PTT
necessary to receive Sales Gas at the Delivery Point and to
transport such gas to PTT's second main pipeline connecting
Erawan to Rayong, together with any communication equipment
installed by PTT on Concessionaire's Floating Petroleum Storage
and Offloading System (FPSO). PTT shall inform Concessionaire
of the cost of such Facilities at the CDD.
1.22 "Field Reserves" means at any time the estimated total quantity
of Proved and Probable Natural Gas in the Reservoir on the date
of the last determination of reserves made in accordance with
Article III or Article X which may be economically and reasonably
recovered by prudent oil and gas industry practices plus the
total quantity of Natural Gas therefore taken from the Reservoir.
1.23 "First Contract Year" means the period immediately following the
end of the Run In Period and ending at six (6) o'clock a.m. on
the following first day of October.
1.24 "Foot" means zero decimal three zero four eight (0.3048) metres
as defined by the eleventh Conference Generale des Poids et
Mesures at Paris, France in 1960.
1.25 "G.S.A. Area" means that part of the Concession Area described by
its co-ordinates in the First Schedule, Part II and dedicated to
the service of this Gas Sales Agreement.
5
<PAGE> 6
1.26 "Gross Calorific Value" means that number of BTUs produced by the
complete combustion at a constant pressure of thirty (30) inches
of mercury at thirty two (32) degrees Fahrenheit and under
standard gravitational force (acceleration thirty two decimal one
seven four (32.174) feet per second per second) of one (1) cubic
foot of the Sales Gas at sixty (60) degrees Fahrenheit with
excess air at the same temperature and pressure as the Sales
Gas when the products of combustion are cooled to sixty (60)
degrees Fahrenheit and when the water formed by combustion is
condensed to the liquid state and the products of combustion
contain the same total mass of water vapour as the Sales Gas and
air before combustion.
1.27 "Inch Water Gauge" means that differential pressure equal to zero
decimal zero three six one two seven three (0.0361273) pounds
force per square inch.
1.28 "Minister" means the Minister of Industry who takes charge and
control for the execution of the Petroleum Act or any Minister as
may be designed from time to time under the law of Thailand.
1.29 "Month" means a period beginning at six (6) o'clock a.m. on the
first day of any calendar month and ending at six (6) o'clock
a.m. on the first day of the following calendar month.
1.30 "Natural Gas" shall have the meaning as defined at the Effective
Date in the Petroleum Act B.E. 2514 but shall also include
"By-products" as defined at the Effective Date in the said Act.
1.31 "Net Annual Contract Quantity" (Net ACQ) shall have the meaning
set forth in Article VI.
1.32 "Operator" shall have the meaning set forth in Article XXIV.
1.33 "PSIA" means pounds per square inch absolute.
1.34 "PSIG" means pounds per square inch gauge.
1.35 "Probable Natural Gas reserves" means the estimated additional
quantities of Natural Gas in the Reservoir, beyond those defined
as Proved Natural Gas reserves, which from time to time
geological and engineering data indicate to have a fair to good
probability of being recovered in future years from already
discovered deposits with price movements consistent with Article
XI and forecast investment and operating costs. For the purpose
of this definition there is a fifty (50) per cent chance that the
actual quantity will be more than the amount estimated as Proved
Natural Gas plus Probable Natural Gas reserves and a fifty (50)
per cent chance that it will be less.
1.36 "Proved Natural Gas reserves" means the estimated quantities of
Natural Gas which from time to time geological and engineering
data demonstrate with reasonable certainty to be recoverable in
future years from the Reservoir under existing economic and
operating conditions, that is prices and costs as of the date the
estimate is made. Prices include consideration of changes in
existing prices provided only by this Agreement. For the purpose
of this definition there is a ninety (90) per cent chance that
the actual quantity will
6
<PAGE> 7
be more than the amount estimated as Proved reserves and a ten
(10) per cent chance that it will be less.
1.37 "Reasonable and Prudent Operator" when used to describe the
standard of care to be exercised by a party in performing its
obligations hereunder means the degree of diligence and prudence
and foresight reasonably and ordinarily exercised by experienced
operators engaged in the same line of business under the same or
similar circumstances and conditions and when used to determine
the action that would be required of a party to this Agreement
means the action an experienced commercial operator engaged in
the same line of business under the same or similar circumstances
and conditions would take in the exercise of such due diligence,
prudence and foresight.
1.38 "Reservoir" means the stratigraphic interval or intervals
underlying the areas described in the First Schedule Part 11
hereto in which Natural Gas was encountered or which forecasts
predict Natural Gas to be contained herein, including all other
parts of the same stratigraphic interval associated with the
geological feature, be it stratigraphic or structural and located
within the G.S.A. Area, in which there is estimated to be Natural
Gas, whether or not in communication with the Natural Gas
encountered in a test well or wells on that geological feature.
1.39 "Run-In Period" shall have the meaning set forth in Article VI.
1.40 "Sales Gas" means Natural Gas delivered to PTT in accordance with
the provisions of this Agreement.
1.41 "Shortfall" shall have the meaning set forth in Article XV.
1.42 "Specific Gravity" means the weight of a volume of dry Sales Gas
divided by the weight expressed in the same units of an equal
volume of dry carbon dioxide free air both gases being at sixty
(60) degrees Fahrenheit and an absolute pressure of thirty (30)
inches of mercury at thirty-two (32) degrees Fahrenheit and under
standard gravitational force (acceleration thirty-two decimal one
seven four (32.174) feet per second per second).
1.43 "Time and "Calendar": any reference to time shall be construed as
whatever time shall be in force in Bangkok, Thailand and any
reference to calendar shall be construed as the Gregorian
Calendar.
1.44 "Week" means a period of seven (7) days beginning at six (6)
o'clock a.m. on Sunday and ending at six (6) o'clock a.m. on the
following Sunday.
1.45 "Year" means a period of twelve (1 2) months beginning at six (6)
o'clock a.m. on any day of any calendar year and ending at six
(6) o'clock a.m. on the same day in the following calendar year.
7
<PAGE> 8
ARTICLE 11 SALE, PURCHASE AND RELATED MATTERS
2.1 Subject to the provisions of Clauses 7.2 and 7.3 and unless
excused under other provisions of this Agreement the
Concessionaire shall deliver and sell and PTT shall accept and
purchase all of the Sales Gas within the Field Reserves in the
manner and on the terms and conditions hereinafter set out in
this Agreement.
2.2 The Concessionaire agrees to indemnify PTT and save it harmless
from all suits, actions, debts, accounts, damages, costs, losses,
liabilities and expenses arising from or out of claims of any or
all persons to Sales Gas delivered to PTT hereunder or to
royalties, taxes or other charges thereon, which attach before
the title passes to PTT or which adverse claim of any character
whatsoever being asserted in respect of any Sales Gas, including
a material defect in the Concessionaire's title, PTT may retain,
as security for the performance of the Concessionaire's
obligations with respect to such claim under this Clause, the
purchase price thereof up to the amount of such claim until such
claim has been finally determined or until the Concessionaire
shall have furnished a bond or other form of security acceptable
to PTT, conditioned for the protection of PTT with respect to
such claim. PTT shall invest, as trustees, any monies withheld
as security at the best terms available to PTT at a commercial
bank in Bangkok, and interest earned thereon shall follow the
determination of who is entitled to the monies withheld less any
costs and expenses incurred by PTT in connection therewith.
2.3 Except as otherwise provided in this Agreement the parties shall,
so long as this Agreement remains in force, maintain any permit,
agreement or other authorization, or cause to be maintained any
permit or other authorization, which is or are necessary to
enable each to fulfil all of its obligations under this
Agreement.
2.4 The Concessionaire shall be jointly and severally liable under the
Agreement.
8
<PAGE> 9
ARTICLE III INITIAL FIELD RESERVES
The Field Reserves are initially agreed to be three hundred (300) billion
Cubic Feet of Natural Gas.
9
<PAGE> 10
ARTICLE IV QUALITY
4.1 Sales Gas delivered under this Agreement shall, at the Delivery
Point, be in accordance with the specifications set out in the
Second Schedule to this Agreement.
4.2 If at any time or from time to time during the Contract Period,
the Sales Gas offered for delivery hereunder shall fail to
conform to the relevant specification set out in the Second
Schedule:
(i) PTT may accept delivery of the Sales Gas in whole or in
part (notwithstanding the failure to conform to the
specifications set out in the Second Schedule) and, in
the event that PTT accepts delivery, the Concessionaire
shall compensate PTT for all reasonable and justifiable
expenses of a temporary nature which PTT has incurred
incidental to the acceptance of such Sales Gas and all
reasonable and justifiable costs incurred by PTT in the
course of any temporary measures which PTT may take to
restore the Sales Gas to the specifications set out in
the Second Schedule or such lesser standard as PTT may
determine. The Concessionaire's liability under this
Clause 4.2 (i) in any Month shall not exceed the value
of a volume of Sales Gas equal to ten (10) times the DCO
then in force at the Current Price, payable for the
Month in which the deficiency occurs. Sales Gas taken
under this Clause 4.2 (i) shall be paid for at the
Current Price, or
(ii) PTT may refuse to accept delivery of the Sales Gas in
whole or in part until the deficiency has been remedied
and to the extent of such refusal, PTT's rights and
remedies in respect of such quality deficient gas
so refused shall be as set forth in Article XV.
4.3 The Concessionaire shall, as soon as possible after any such
failure in quality, inform PTT of the cause of the failure and
give an estimate of the probable duration of the failure.
4.4 Within thirty (30) days after any failure in quality pursuant to
Clause 4.2 the Concessionaire may propose to carry out the
operations necessary to remedy the deficiency in quality within a
period of not more than one hundred and eighty (180) days, or
such longer period as may be required for a Reasonable and
Prudent Operator, and, in such event, during the period mentioned
in such notice for as long as the Concessionaire is actively and
diligently carrying out the said operations during such period,
PTT shall not itself be entitled to carry out any remedial
operations of a permanent nature but may either refuse or accept
delivery of Sales Gas as a provided in Clause 4.2.
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<PAGE> 11
4.5 If the Concessionaire shall not have served a notice within the
period stated in Clause 4.4 or (having served a notice) shall
have ceased to carry out the operations actively and diligently,
then PTT may itself carry out such operations as may reasonably
be required to remedy the deficiency in quality. After
completion of the operations PTT may recover from the
Concessionaire the reasonable cost of such operations, with
interest thereon at the rate set forth in Clause 12.7, by
reducing the price to be paid for Sales Gas to be delivered
thereafter by twenty five (25) per cent until the reduction has
permitted recovery of such cost and interest but such recovery
(net of interest) shall not exceed the value of an amount of
Sales Gas equal to thirty (30) times the DCO in force at the
Current Price, for the Month in which PTT commenced such
operations.
4.6 During any period in which PTT is carrying out any remedial
operations in accordance with Clause 4.5, it may either refuse or
accept delivery of Sales Gas as provided in Clause 4.2.
4.7 Should the parties fail to reach an agreement within a period of
thirty (30) days, any difference between the parties which may
arise in respect of the quality of the Sales Gas or the cost
incurred to remedy any deficiency therein or in connection with
the execution of any remedial operations or otherwise under this
Article shall (at the request of either party) be referred to an
expert to be appointed pursuant to Article XX.
11
<PAGE> 12
ARTICLE V DELIVERY PRESSURE
5.1 Sales Gas to be delivered under this Agreement shall be delivered
at the Delivery Point at such pressure (hereinafter called the
"Contract Delivery Pressure") necessary to meet PTT`s
notification pursuant to this Agreement, taking into account the
PTT back pressure at the Delivery Point at the time of delivery.
The Contract Delivery Pressure shall be not greater than 1,750
PSIG unless the total throughput in the PTT's parallel pipeline
including the Sales Gas exceed 900 million Cubic Feet per Day,
then the Contract Delivery Pressure shall be increased
accordingly at the sole risk and expense of the Concessionaire,
but shall not exceed 1,870 PSIG, except as otherwise agreed by
both parties.
5.2 If at any time or from time to time the Sales Gas offered for
delivery hereunder is not at the Contract Delivery Pressure:
(i) PTT may accept delivery of the Sales Gas in whole or in
part (notwithstanding it was not at Contract Delivery
Pressure) and, in the event that PTT in its sole
judgement accepts delivery, the Concessionaire shall
compensate PTT for all reasonable and justifiable costs
incurred incidental to the acceptance of such Sales Gas
and all reasonable and justifiable costs incurred by PTT
in the course of any temporary measures which PTT may
take to restore the Sales Gas to the required pressure.
The Concessionaire's liability under this Clause 5.2 in
any Month shall not exceed the value of a volume of
Sales Gas equal to ten (10) times the DCQ in force at
the Current Price. Sales Gas taken under this Clause
5.2 shall be paid for at the Current Price, or
(ii) PTT may refuse to accept delivery of the Sales Gas in
whole or in part and to the extent of such refusal,
PTT's rights and remedie in respect of such pressure
deficient gas shall be as set forth in Article XV.
5.3 The Concessionaire shall as soon as possible after any such
failure in Contract Delivery Pressure inform PTT of the cause of
the failure and give an estimate of the time needed to remedy the
failure.
5.4 Within thirty (30) Days after any failure in Contract Delivery
Pressure, the Concessionaire may give notice to PTT that the
Concessionaire proposes to carry out the operations necessary to
remedy such failure within a period of not more than one hundred
and eighty (180) Days, or such longer period as may be essential
for a Reasonable and Prudent Operator, and in such event, during
the period mentioned in such notice, or for so long as the
Concessionaire is actively and diligently carrying out the
said operations, PTT shall not itself be entitled to carry out
any remedial operations of a permanent nature but may either
refuse or accept delivery of Sales Gas in the manner set out in
Clause 5.2.
5.5 If the Concessionaire shall not have served a notice within the
period stated in Clause 5.4 or (having served a notice) shall
have ceased to carry out the operations actively and diligently,
PTT may itself carry out such operations as may reasonably be
required to remedy the deficiency in 'Contract Delivery Pressure.
After completion of the operations PTT may
12
<PAGE> 13
recover from the Concessionaire the reasonable cost of such
operations, with interest thereon at the rate set forth in Clause
12.7, by reducing the price to be paid for Sales Gas to be
delivered thereafter by twenty five (25) per cent until the
reduction has permitted recovery of such cost and interest but
such recovery (net of interest) shall not exceed the value of an
amount of Sales Gas equal to twenty five (25) times the DCQ in
force at the Current Price when PTT commenced such operations.
5.6 During any period in which PTT is carrying out any remedial
operations in accordance with Clause 5.5, it may either refuse or
accept delivery of Sales Gas in the manner set out in Clause 5.2.
5.7 Should the parties fail to reach agreement within a period of
thirty (30) Days, any difference between the parties which may
arise in respect of the Contract Delivery Pressure of the Sales
Gas or the cost incurred to remedy any deficiency therein or in
connection with the execution of any remedial operations or
otherwise under this Article shall (at the request of either
party) be referred to an expert to be appointed pursuant to
Article XX
13
<PAGE> 14
ARTICLE VI QUANTITIES
6.1 The Concessionaire shall after the Effective Date, at its own
expense, diligently proceed to provide and maintain facilities to
enable it, on and after the Contractual Delivery Date, to produce
and deliver a peak capacity (hereinafter called "the Contractual
Delivery Capacity") at the rate or rates calculated as
hereinafter provided.
6.2 Subject always to Article XVI the Date of Commencement of
Delivery (DCD) shall be on January 1, 1997. The Parties will
however inform, at regular intervals, each other of the progress
and status of the construction of their respective facilities.
If it is agreed that the DCD can take place before the above
referred date the parties shall undertake to bring forward the
DCD to a date which is mutually acceptable and in that case the
other provisions of the Agreement will apply mutatis mutandis.
Any deferment of the DCD due to an event constituting Force
Majeure in accordance with Article XVI shall be limited to
the number of Days and part Days actually lost in consequence of
the occurrence of such event.
6.3 A Run-in Period shall follow the Date of Commencement of Delivery
(DCD) and such Run-In Period shall terminate at the earlier of the
completion of the seventy two (72) hour test or three (3) Months.
The first Day following the Run-In Period shall be referred to as
the Contractual Delivery Date (CDD). The Run-In Period shall be
for the purpose of proving the facilities required for the
performance of the initial obligations of both the Concessionaire
and PTT and during such Run-in Period both the Concessionaire and
PTT shall use reasonable endeavours respectively to deliver and
take Sales Gas.
(i) The Concessionaire shall, during the Run-In Period,
complete a test of seventy-two (72) consecutive
hours during which PTT shall nominate the rate of
delivery in accordance with Clause 6.12 and the
Concessionaire shall offer continuously to PTT
Sales Gas of a quality and at a pressure consistent with
the PTT nomination. If the Concessionaire is unable,
for whatever reason other than PTT's inability to take,
to complete the continuous seventy-two (72) hour period,
the test shall be restarted.
If within the seventy-two (72) hour test period PTT, for
whatever reason, is unable to take Sales Gas, the test
shall be re-started at the end of the interruption,
but only for the number of hours necessary to make up
the total period of seventy-two (72) hours.
During the Run-In Period, Sales Gas shall be paid for at
a price of seventy five (75) per cent of Current
Price as calculated.
(ii) If by the Day preceding the end of the Run-in Period
the seventy two (72) hour test has not been completed,
for any reason other than Force Majeure, then:
a) if such non-completion is due to the
Concessionaire's inability to deliver, PTT shall
have the right to notify the Concessionaire
that the test is deemed completed for all
purposes of this Agreement, and that from the
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<PAGE> 15
Day following the receipt of such notice, the
provisions of this Agreement following the
Contractual Delivery Date shall apply; or
b) if such non-completion is due to PTT's inability
to take, the Concessionaire shall have the right
to notify PTT that the test is deemed completed
for all purposes of this Agreement, and that
from the Day following the receipt of such
notice the provisions of this Agreement
following the Contractual Delivery Date shall
apply.
6.4 For the First Contract Year and for each Contract Year, there
shall be determined, in the manner herein provided, a daily rate
for delivery of Sales Gas in that Year, which shall be expressed
as a quantity of Sales Gas in Cubic Feet and shall hereinafter be
called the "Daily Contract Quantity" (DCQ).
6.5 That amount of Sales Gas equivalent to the sum of the DCOs in
effect on each Day for the First Contract Year and for each
Contract Year shall hereinafter be called the "Annual Contract
Quantity" (ACQ).
6.6 (i) The DCQ for the First Contract Year shall be seventy five
(75) million Cubic Feet, and for the Second Contract
Year following the Contractual Delivery Date the DCQ
shall be eighty five (85) million Cubic Feet.
(ii) The DCO for the third Contract Year and subsequent
Contract Years shall be determined by dividing the Field
Reserves as determined or last redetermined by six
thousand (6000).
(iii) If under Clause 6.6 (ii) above, the resulting DCO should
increase to a level greater than one hundred twenty five
(125) million Cubic Feet, the parties shall meet together
in an effort to reach agreement on an increase in the DCQ.
(iv) In the event the DCQ as determined under Clause 6.6 (ii)
or Clause 6.6 (iii) above result in an increase in the
DCQ, such increase shall become effective on the date of
commencement of the following Contract Year, provided
that, if an investment on the part of the Concessionaire
is required in order to meet the increased DCQ, the
increase DCQ shall become effect upon the date of
commencement of the following Contract Year, or upon the
date of the completion of the work enabling the
Concessionaire to meet the increased DCQ, whichever is
later.
(v) In the event new fields or areas in the Concession Area
are determined to contain additional Natural Gas reserves
the Parties shall review the information and seek to
agree on the inclusion of such Natural Gas reserves
under this Agreement.
6.7 During the First Contract Year and in each Contract Year, PTT
shall purchase not less than the net Annual Contract Quantity
(Net ACQ), which quantity shall be the ACO reduced by:
(i) Any Sales Gas properly notified for delivery on any Day
which the Concessionaire has for any reason, other than
the failure of PTT to accept, not delivered; and
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(ii) Any Sales Gas properly notified for delivery on any Day
which PTT has been prevented by Force Majeure from
accepting.
6.8 If in each Contract Year PTT has not taken at least the Net ACO,
PTT shall pay (in the manner set forth in Article X11) the
arithmetic average of the Current Price applicable in the
relevant Contract Year for a quantity equal to the difference
between the Net ACO and the quantity actually taken, provided
that:
(i) If in the First Contract Year or in any Contract Year
PTT has taken and paid for Sales Gas (other than Sales
Gas taken in accordance with Clause 6.14) in excess of
the Net ACO for that Contract Year (such excess gas
hereinafter being called "Carry-Forward Gas"), then such
Carry-Forward Gas shall be offset against the obligation
of PTT in any subsequent Contract Year, under this Clause
6.8, to pay for Sales Gas not taken; and
(ii) The application of such offset by Carry-Forward Gas
shall in any Contract Year be limited to twenty (20) per
cent of the Net ACQ for that Contract Year; and
(iii) The balance (if any) of Carry-Forward Gas not so used
shall be carried forward for offset in subsequent
Contract Years, provided, however, that Carry-Forward Gas
shall only be used to offset PTT's obligations in the
five (5) Contract years following the First Contract Year
or the Contract Year in which the offset was earned.
6.9 When in accordance with Clause 6.8 PTT has paid for a quantity of
Sales Gas not taken in the First Contract Year or in any Contract
Year (hereinafter called "the Debit Year"), PTT shall, after PTT
has taken the Net ACQ for that Contract Year, in any or all of
the subsequent Contract Years take free of charge, a quantity of
Sales Gas equal to that paid for but not taken in respect of the
Debit Year of Years adjusted to reflect any differences in the
BTU content of the Sales Gas paid for in the Debit Year (based on
the average Gross Calorific Value for the said Debit Year) and
the Sales Gas actually taken.
Provided that this Clause shall not oblige the Concessionaire to
deliver Sale Gas on any Day in excess of the Contractual
Delivery Capacity.
6.10 Throughout the Contract Period the Concessionaire shall maintain
a Contractual Delivery Capacity of one hundred and fifteen (115)
per cent of the DCQ, and PTT may require delivery up to that
maximum rate at any time, notwithstanding that the aggregate of
such daily requirements in the First Contract Year or any one
Contract year may exceed the ACQ.
6.11 If at any time, or from time to time, during the Contract Period,
but not before sixty five (65) per cent of the Field Reserves as
last determined or redetermined has been produced (but excluding
gas, if any, which has been reinjected into the Reservoir) under
this Agreement, the Concessionaire expects that in order to
maintain the DCO (with the associated Contractual Delivery
Capacity) last established in accordance with Clause 6.6 it would
be necessary for the Concessionaire to incur additional
expenditure for facilities required to maintain such DCQ and
associated Contractual Delivery Capacity in excess of that which
a
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<PAGE> 17
Reasonable and Prudent Operator would make, then the
Concessionaire may serve upon PTT notice of a decrease in DCQ, to
be effective after the expiration of twelve (12) months from
the date of the service of the said notice.
The Concessionaire's notice shall specify the decreased DCQ which
shall not be less than that which a Reasonable and Prudent
Operator could maintain without making such additional
expenditure, and shall be supported by adequate information and
raw data (if any) not previously given to PTT.
If within sixty (60) days following the receipt of a notice under
this Clause 6.11 PTT has informed the Concessionaire that it
considers the DCO which a Reasonable and Prudent Operator could
maintain without making such additional expenditure as aforesaid
is greater than the DCO specified in the notice, or that a
Reasonable and Prudent Operator would make such additional
expenditure, then PTT and the Concessionaire shall meet to
discuss the matter and shall endeavour, in good faith, to reach a
solution within sixty (60) Days. If, at the end of such sixty
(60) Days, the parties have not agreed on the issue, then either
party may require the matter to be submitted for determination to
an expert to be appointed in accordance with Article XX. The
expert shall be given access to all material data including raw
data available to the Concessionaire. In determining such issue,
the expert shall use the Field Reserves decided upon in
accordance with Article X. The award of the expert shall be
effective twelve (12) Months from the date of the
Concessionaire's notice, provided that, if the award of the
expert requires the Concessionaire to make a substantial
investment in additional platforms and/or facilities, the award
shall be effective on the completion of the work necessary to
meet the award or twelve (12) Months from the date of the
Concessionaire's notice, whichever is the later.
6.12 Not later than ten (10) a.m. each Friday, PTT shall notify the
Concessionaire of the rate of delivery required at the Delivery
Point for each Day of the following Week, being a rate which, if
sustained throughout the Day, will provide no more than the
applicable Contractual Delivery Capacity and no less than fifty
(50) per cent of the applicable DCQ and, so far as is reasonably
practicable, the Concessionaire shall deliver and PTT shall
receive at a rate as consistent as possible throughout the Day,
with due consideration for the normal fluctuations caused by
demand variations and operational control of facilities. PTT may
at any time before or during any Day call for the rate of
delivery previously notified to be varied to any extent within
the limits set out in Clause 6.10 and this Clause 6.12, and the
Concessionaire shall use reasonable endeavours to comply with
such request, provided that:
(i) Any request for a change of less than ten (10) per cent
shall be complied with within two (2) hours.
(ii) Any request for a change of ten (10) per cent or greater,
but less than twenty-five (25) per cent, shall be
complied with within six (6) hours.
(iii) Any request for a change of twenty-five (25) per cent or
greater shall be complied with within twelve (12) hours.
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6.13 If for any reason other than PTT's failure to accept, the
Concessionaire curtails deliveries below the quantities properly
notified for delivery by PTT within the prevailing Contractual
Delivery Capacity, PTT shall be deemed, until such curtailment
ceases, to have nominated as hereinafter provided:
(a) According to the weekly programme in force, from the
start of the curtailment until the end of the programme
for the Week in which the said curtailment started, and
(b) At the level of the prevailing DCO in respect of the
period of curtailment, if any, which extends beyond the
weekly programme referenced in Clause 6.12,
Provided that, if at the end of the referenced weekly programme
the total volume of Sales Gas taken by PTT during that Contract
Year is less than that which PTT should on average have taken at
that date, then PTT may continue, until such deficiency has been
made good to notify up to the maximum level permitted in
accordance with Clause 6.12 and, once made good, at a level of
the current DCO until the end of the period of curtailment.
6.14 At the request of PTT, the Concessionaire shall deliver Sales Gas
at a rate exceeding the limits in Clause 6.10 if it is
reasonably able so to do, provided that the Concessionaire in no
event shall be required to install additional facilities nor to
upgrade existing facilities to enable it to deliver Sales Gas at
such a rate.
6.15 For the purpose of this Agreement the quantity properly notified
for delivery on any Day shall be that quantity which would be
tendered for delivery if the delivery rate or rates required by
PTT had been sustained throughout the number of hours for which
it was or they were required to be effective.
Provided that if PTT, in accordance with Clause 6.14, has in fact
called for a rate exceeding the applicable Contractual Delivery
Capacity the quantity properly notified shall be calculated
as if the rate called for had been that of the applicable
Contractual Delivery Capacity.
6.16 After any event which causes a cessation of deliveries of Sales
Gas, then for a period of twelve (12) hours following the
start-up of deliveries, the Concessionaire, while using
reasonable endeavours to meet nominations, shall be relieved
solely from the consequences of shortfall for any failure to
deliver the nominated amounts in full.
6.17 If at any time or from time to time after the fifth anniversary
of the Contractual Delivery Date the Concessionaire establishes
in accordance with Article X the Field Reserves are inadequate to
meet a DCQ of eighty five (85) million Cubic Feet at a depletion
rate of one to six thousand (1:6000), or that he may be in
default due to lack of Contractual Delivery Capacity then the
Concessionaire may supply at the Delivery Point (or some other
agreed point of delivery) Sales Gas available from the Concession
Area ("Supplementary Gas") to the extent of any such deficiency
Provided that the Sales Gas so supplied
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(i) is delivered in accordance with the terms and
conditions of this Agreement; and
(ii) Concessionaire's interest in such Natural Gas is not
already committed under a separate agreement for the
sale of Natural Gas.
In the event that the Concessionaire invokes this right to supply
Supplementary Gas it shall serve upon PTT a notice to be
effective after the expiration of six (6) Months from the receipt
by PTT of the notice. The notice shall give details of an
area to be dedicated to this Agreement, which shall be so
determined that when added to the area described in the First
Schedule, Part II, the depletion rate of the Field Reserves in
the combined area is not greater than one to six thousand
(1:6000). The said area shall be added to the First Schedule,
Part II, to become part of the G.S.A. Area.
6.18 For the purpose of managed maintenance, the Concessionaire shall
be entitled to give notice to PTT and PTT shall be entitled to
give notice to the Concessionaire to reduce, for limited periods,
the DCQ to less than the DCQ prevailing prior to the maintenance
period, subject to the following conditions:
(i) This entitlement is solely in respect of preventative
maintenance.
(ii) The frequency shall be not more than three times in any
calendar year and the aggregate period shall not exceed
ten (10) Days.
(iii) The notification period shall be twelve (12) Months, or
such lesser period as may be agreed between the
Concessionaire and PTT, on each occasion.
(iv) Each notice shall give the proposed period of
maintenance and the level of DCQ which is to prevail
during the period of maintenance. Such level of DCO
shall be not less than fifty percent (50%) of the DCQ
prevailing prior to the maintenance period for that
period of that Contract Year.
(v) Up to not later than six (6) Months prior to the
notified date of commencement of such maintenance, either
party may require the other to make such timing
adjustments to the maintenance period as may be
reasonably requested but such right shall not be
used to the detriment of preventative maintenance which
is in accordance with good oil and gas industry practice.
(vi) The reduced DCQ modified under this Clause 6.18 shall
apply for all purposes of this Contract for each Day or
part Day during which maintenance is taking place.
The Concessionaire and PTT shall exercise their best
efforts in order to have their respective maintenance
periods coincide.
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ARTICLE VII CONCESSIONAIRE'S RESERVATIONS
The following rights are reserved to the Concessionaire:
7.1 Without prejudice to the nature and extent of the obligations of
the Concessionaire under this Agreement the right to decide the
manner in which it shall conduct its physical operations. The
Concessionaire shall give preference to domestic goods, works and
services, always provided that the goods, works and services are
of appropriate specifications from a technical and safety point
of view and equivalent in price, quantity and availability.
7.2 The right to use Natural Gas produced by the Concessionaire from
the Reservoir for any of the following purposes:
(i) For the operation of the Concessionaire's field
facilities, process facilities and other miscellaneous
uses relating to production from the Reservoir and the
delivery of Sales Gas;
(ii) For gas lift operation, repressuring, pressure
maintenance or cycling operations within the Reservoir;
(iii) For the use in satisfying any of the Concessionaire's
obligations under the terms and conditions of the
Concession Agreement and this Agreement.
7.3 The right to process the Natural Gas recovered before delivery to
PTT for the removal of any constituents other than methane,
ethane, propane and butane (except such minimum amounts as would
necessarily be removed in the recovery of such constituents).
Such removed constituents shall not be a part of this Agreement.
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ARTICLE VIll PTT FACILITIES
PTT shall, within the timed programme for the sale and delivery of Sales
Gas in accordance with this Agreement, diligently proceed to provide,
install and maintain at its own expense such facilities as may be
necessary to enable PTT to transmit and dispose of the Sales Gas from the
commencement of the Run-In Period provided in Clause 6.3 and on and after
the Contractual Delivery Date at the rate or rates determined, and
continuing until such time as this Agreement is terminated under the
provisions of Article XVIII.
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ARTICLE IX EXCHANGE OF INFORMATION
9.1 The Concessionaire and PTT shall at all times make available to
each other all such information as may reasonably be required to
enable each party to carry out its obligations under this
Agreement and in particular (but without prejudice to the
generality of the foregoing) will meet together approximately
three (3) months before each new Contract Year to exchange and
discuss written forecasts which indicate future programmes of
operations and expectations for succeeding Years.
9.2 The Concessionaire shall make available to PTT all basic data
which assists in determining the Field Reserves whether or not
notice of a redetermination of Field Reserves has been given in
accordance with Clause 10.2. This basic data shall be supplied to
PTT within thirty (30) days after the end of each quarter of the
First Contract Year and each Contract Year.
9.3 Recognizing that Sales Gas from more than one Natural Gas
reservoir may, during the Contract Period, be delivered to PTT
pursuant to this Agreement and also that the quality of the
resultant Sales Gas so delivered, while supplied within the
specifications of the Second Schedule, may vary depending on the
reservoir from which it is produced, the Concessionaire agrees to
attempt to give PTT not less than twelve (12) months notice of
such variations in quality.
9.4 All information made available under this Article shall be
supplied at the expense of the party providing the same and shall
not be disclosed to any person not in the service or employment
or professionally retained by the party receiving the same or in
the service or employment of the Government of Thailand and
entitled to receive the same or required by law or in any
arbitration or legal proceedings and any information disclosed
hereunder shall be so disclosed only on condition that the
recipient shall make no further disclosure thereof.
Each recipient shall treat as confidential all data and
information properly designated as confidential as long as the
same does not become public knowledge and shall take or cause to
be taken such precautions as are necessary to prevent
disclosure thereof to others.
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ARTICLE X DETERMINATION OF RESERVES
10.1 Until such time as a new quantity is agreed, or determined as
provided in this Article X, the Field Reserves shall be the
quantity set forth in Article III.
10.2 At any time or from time to time but not more frequently than
every second year, unless mutually agreed, PTT or the
Concessionaire may require a determination or redetermination of
the Field Reserves.
10.3 If the parties agree upon the result of such redetermination, the
Field Reserves as so redetermined shall become effective for all
purposes of this Agreement, as of October 1 for the Contract Year
the request for redetermination is made, but if the parties do
not so agree within ninety (90) Days of the notice requiring
redetermination, either PTT or the Concessionaire may require
that the redetermination be carried out by an expert appointed
pursuant to Article XX, who shall be given access to all basic
geological, geophysical, engineering and pertinent economic and
price forecast data available to both the Concessionaire and PTT.
The Field Reserves so determined by the expert shall become
effective as of the first Day of the Month following completion
date of such determination for all purposes of this Agreement.
Provided that, if the Field Reserves are increased to the extent
that additional platforms and facilities are essential to deliver
the higher DCQ (and provide the associated Contractual Delivery
Capacity) then the revised DCO shall become effective immediately
after such platforms and facilities are commissioned or two (2)
Years after the Field Reserves determination completion date,
whichever is the earlier.
10.4 In any redetermination the calculation of Field Reserves shall
limit the allowable element of Probable Natural Gas to twenty
(20) per cent of the total.
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ARTICLE XI PRICE AND PRICE ADJUSTMENT
11.1 Sales Gas delivered under this Agreement and in each Contract
Year (or to be paid for whether delivered or not) shall be paid
for in the manner and at the prices following.
11.2 The Current Price shall be the Initial Base Price (P) as adjusted
in accordance with this Article XI. The Initial Base Price shall
be US$ 1.90 times 1 for each one million (1,000,000) BTU Gross
Calorific Value.
11.3 There shall be one (1) pricing period which shall be from the
commencement of deliveries for the term of the Agreement.
11.4 In the month of March or September which ever is immediately
preceding the Run-In Period established under Clause 6.3 and in
the months of March and September every year thereafter for the
duration of this Agreement the Initial Base Price shall be
adjusted in the following manner and the Current Price so
obtained shall become effective on the first Day of April and
first Day of October respectively immediately following and
remain effective until the thirtieth Day of September and
thirty-first Day of March respectively next following.
11.5 There shall be a Normal Price and absolute Ceiling and Floor
Prices and a Special Floor Price, each of which shall be
calculated according to the following formulae:
(i) Ceiling Price (BAHT/MMBTU)
Ay = 0.82*((Fy*ly)/6.15)
(ii) Normal Price (BAHT/MMBTU)
By = P*((0.30*Wy/W)+ly/l((0.25*OMy/OM)+(0.3*Fy/F))+0.15)
(iii) Floor Price (BAHT/MMBTU)
Cy = 1.65*l*((0.25*Wy/W)+ly/l((0.20*OMy/OM)+(0.25*Fy/F))+0.30)
(iv) Special Floor Price (BAHT/MMBTU)
Dy = (Ay+Cy)/2
Where,
F = the arithmetic average of the figures published for each month of
the six month period from October 1994 to March 1995 inclusive
for the medium fuel oil 3.5% Sulfur. The agreed value is
15.65972.
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<PAGE> 25
Fy = the arithmetic average of the figures last published for each
month of the six month period ending in March and September
respectively in which the prices have to be adjusted, in United
States Dollars per barrel of medium fuel oil ex Singapore
(3.5% Sulfur) from Shell Eastern Petroleum PTE Ltd., Esso
Singapore PTE Ltd., Mobil Sales and Supply Corporation, Caltex
Petroleum Corporation, BP Oil International and Singapore
Petroleum Corporation PTE Ltd. as published in "Platts Oilgrarn
Price Service".
W = the arithmetic average of the figures published for each month of
the six month period from October 1994 to March 1995 inclusive
for the index of Wholesale Prices in Thailand based on 100 for
the calendar year 1990 as published by the International Monetary
Fund in "International Financial Statistics". The agreed value
is 114.02160.
Wy = the arithmetic average of the figures published as for W above in
respect of the six month period ending in the March and September
respectively in which the prices have to be adjusted.
l = the exchange rate, which shall be the arithmetic average for the
month of March 1995 of the daily Exchange Equalization Fund (EEF)
Baht/US Dollar buying and EEF selling rates to commercial banks
published by the Bank of Thailand and shall be calculated by
first averaging the two daily rates and then the resultant
averages for each day within the month. This rate is agreed to
be 24.75826.
ly = the exchange rate calculated as for l above for the calendar
month in which the price adjustment is calculated.
OM = the arithmetic average of the figures published for each month of
the six month period from October 1994 to March 1995 inclusive
for the Producer Price Index for Oil Field Machinery and Tools,
Commodity Code No. 1191, based on 100 for the calendar year 1982
as published by the United States Department of Labor, Bureau
of Labor Statistics. The agreed value is 112.13333.
OMy = the arithmetic average of the figures published as for OM above in
respect of the six month period ending in the March and September
respectively in which the prices have to be adjusted.
11.6 The Current Prices shall be
(I) "By" if "Ay" is greater than "By" and "By" is greater than
"Cy"
(II) "Ay" if "By" is greater than "Ay" and "Ay" is greater than
"Cy"
(III) "Cy" if "Ay" is greater than "Cy" and "Cy" is greater than
"By"
(IV) "Dy" if "Cy" is greater than "Ay"
11.7 The value of ly shall be calculated each Month. If the value so
calculated differs by more than five (5) per cent from the value
of ly last used in calculating the Current Price, then a new
Current Price shall be calculated using this latest ly value and
become effective the first value and become effective the first
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<PAGE> 26
Day of the following Month, all other figures remaining
unchanged except as provided in Clause 11.9.
11.8 If in the opinion of either party any of the indices or set of
statistics used in this Article at any time or from time to time
are discontinued or are so changed in nature or become so out of
date that it ceases to serve the original purpose for which it
was intended by the parties, as evidenced by the context in which
it was used in this Agreement, then the party may so notify the
other and request that a replacement be found. The parties shall
endeavour to agree to such replacement as is considered
necessary.
If within sixty (60) days of the notification the parties have
failed to agree, then at the request of either party the matter
shall be referred for resolution to an expert appointed in
accordance with Article XX. The award of the expert shall be
effective from the date of said notification.
11.9 If for any reason, when it becomes necessary to calculate the
Current Price, any of the components of the necessary data are
not published or made available as required by this Article XI,
then such calculation shall be provisionally made using the
latest six (6) months published data and the final adjustment
shall be made within thirty (30) days of all of the components of
the necessary data being first published. Such final adjustments
shall have retroactive effect.
Provided that if, when calculating the value of "Fy" at least
three (3) of the six (6) Company values are published, then the
calculation made shall be binding and subsequent publication of
the missing values shall not be taken into account.
11.10 All figures in calculations performed under this Article shall at
each stage in the calculation be rounded to five (5) decimal
places by rounding off the sixth decimal place, a five (5) in
the sixth decimal place being rounded upwards.
The final figures used for the prices payable in accordance with
this Article XI shall be rounded to four (4) decimal places by
rounding off the fifth decimal place, a five (5) in the fifth
decimal place being rounded upwards. All monies shall be to the
nearest Thai Satang.
11.11 PTT shall pay the Concessionaire (in the manner set forth in
Article XII) for an amount of Sales Gas delivered in accordance
with Article VI and in the following priority:
(i) Firstly, for such volumes of gas to which the reduced
prices under Article IV, V and XV apply at such reduced
prices.
(ii) Secondly, for the remaining balance of the Net ACO, at the
Current Price.
Any Sales Gas additional to the Net ACO taken, where
applicable, in the First Contract Year and in each
Contract Year shall be paid for as follows:
(iii) Firstly, such volumes of Sales Gas as PTT has paid for
but not taken in Debit Years, and taken in accordance
with Article VI shall be free of charge.
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(iv) Secondly, for the remaining balance, if any, of the
volumes of gas to which a reduced price applies under
either Article IV, V or XV at such reduced price.
(v) Thirdly, for the remaining balance at the Current Price.
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ARTICLE XII BILLING AND PAYMENT
12.1 On or before the tenth day of each month following the date of
the first physical deliveries of Sales Gas hereunder, the
Concessionaire shall render to PTT a statement showing for the
preceding Month:
(i) the quantity of Sales Gas properly notified by PTT for
delivery on each Day and the amount of Sales Gas offered
for delivery by the Concessionaire hereunder on each Day
expressed in Cubic Feet and millions of BTU;
(ii) the DCQ in force on each Day;
(iii) the quantity of Sales Gas actually taken by PTT each Day
expressed in Cubic Feet and millions of BTU;
(iv) the reduction (if any) in the ACQ to be made in respect
of that Month pursuant to the provisions of Clause 6.7;
(v) the Gross Calorific Value of the Sales Gas delivered in
each Day expressed in BTU per Cubic Foot;
(vi) the sum due and owing to the Concessionaire under
Article XI for Sales Gas delivered during the Month and
any prior Month showing the quantities at the different
prices if applicable;
(vii) any sum due and owing to PTT; and
(viii) the net sum payable to the Concessionaire.
12.2 On or before the thirty-first day of each October following the
First Contract Year and each Contract Year, the Concessionaire
shall render or cause to be rendered to PTT a statement showing:
(i) the total quantity of Sales Gas delivered hereunder in
the First Contract Year or the preceding Contract Year,
as the case may be, expressed in Cubic Feet and BTUs and
the price or prices applicable;
(ii) the Net ACO for such period;
(iii) the quantity (if any) of undelivered Sales Gas
(expressed in Cubic Feet and BTUs computed from the
Average Gross Calorific Value of the Sales Gas delivered
during that period) for which PTT must pay in
accordance with Clause 6.8. In the event no Sales Gas was
delivered in that period, the last Average Gross
Calorific value determined for the last effective period
shall be used;
(iv) the quantity, (if any) of Sales Gas delivered which is
free of charge to PTT in accordance with Clause 6.9;
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<PAGE> 29
(v) the quantity (if any) of Carry Forward Gas earned during
the period, the quantity (if any) of Carry Forward Gas
taken during the period and the balance of Carry Forward
Gas remaining at the end of the period;
(vi) the sum (if any) due to PTT in accordance with Clause
15.2; and
(vii) the net sum or sums (if any) payable by one party to
another in respect of such transactions.
12.3 On or before the thirtieth day after each Month or the twentieth
day following receipt of the statement for that Month, whichever
is the later, PTT shall pay each of the companies defined as
Concessionaire, that part of the net sum set forth in an invoice
submitted by the Operator in accordance with Clause 12.1 (viii).
12.4 On or before the thirtieth day of each November or the thirtieth
day following the receipt of the statement in accordance with
Clause 12.2 (whichever is the later) PTT or the Concessionaire
(as the case may be) shall pay the net sum or sums (if any)
referred to in Clause 12.2 (vii).
Provided that, if by the thirtieth day of any November the
Concessionaire shall not have rendered such statement, then
PTT may itself prepare the same and render it to the
Concessionaire.
12.5 Where any sum is in dispute the undisputed portion shall promptly
be paid and after settlement of the dispute any amount agreed or
otherwise determined to be due shall be paid within fourteen (14)
days after such agreement or determination with interest thereon
in accordance with Clause 12.7.
12.6 Payment under this Article shall be made in Thai Baht to the
credit of each of the companies defined as Concessionaire or PTT
(as the case may be) at such place in Bangkok as such company or
PTT may request or at such other place as may be agreed.
12.7 Should any party fail to make payment to another of any sum due
hereunder, interest thereon shall accrue, at the London Inter
Bank offered rate (LIBOR) for US dollars for one Month as
published in the Financial Times of London, England, each day
such payment is due plus one (1) per cent, except to the extent
that the failure to make payment arose from an error on the part
of the party to whom payment was due to be made.
12.8 PTT and the Concessionaire shall have the right at reasonable
hours to examine the books and other records of the other party
relative to this Agreement to the extent necessary to verify the
accuracy of any statement or computation made pursuant to any of
the provisions of this Agreement,
Provided that, for the purposes of this Agreement,
(i) such books and other records need not be preserved longer
than a period of four (4) years; and
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(ii) if any such examination reveals any inaccuracy in any
billing therefore made, the necessary adjustment shall be
made promptly.
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ARTICLE XIII MEASUREMENTS
13.1 Sales Gas delivered under this Agreement shall be measured in
Cubic Feet and BTUs according to the procedure set out in the
Third Schedule hereto.
In the event that Sales Gas is delivered to more than one (1)
Delivery Point concurrently, the BTU content and other
characteristics of the total Sales Gas shall be computed by
weighting the gas composition and throughput values at each
Delivery Point and aggregating such data for total measurement.
13.2 All measuring and testing equipment, housings, devices and
materials shall, with all related equipment, appliances and
buildings (herein called the "Concessionaire's Equipment") be
procured, installed, maintained and operated by the
Concessionaire at the Concessionaire's expense except as provided
hereafter.
PTT may, at its own expense, have procured and installed by the
Concessionaire, and supervise operation of, check measuring and
testing equipment which shall not interfere with the use of
the Concessionaire's facilities including its measuring and
testing equipment. The parties shall enter into an agreement to
cover such procurement, installation and operation.
13.3 The Concessionaire shall ensure that withdrawal for maintenance
or adjustment of any individual component part of the
Concessionaire's Equipment does not affect the delivery of Sales
Gas.
13.4 PTT shall have the right from time to time and at all times upon
giving reasonable notice to the Concessionaire to inspect or
cause to be inspected the Concessionaire's Equipment and other
measurements or test data of the Concessionaire but the reading
calibration and adjustment of the Concessionaire who shall
preserve all original test data and other similar records for a
period of four (4) years and shall make a copy thereof available
to PTT at any time upon request,
Provided that, PTT or its employees, agents or representatives
may, with reasonable notice, enter upon any facilities owned or
installed by the Concessionaire pursuant to this Article at the
sole risk and cost of PTT,
Provided further that, PTT shall afford to the Concessionaire the
same rights of inspection and verification at the sole risk of
the Concessionaire in respect of all check measuring and
testing equipment installed at the Delivery Point by PTT in
respect of the Sales Gas delivered hereunder.
13.5 Each component of the measuring and testing equipment shall be
adjusted to operate accurately within a limit prescribed by the
manufacturer but which shall not in any case exceed a limit of
two (2) per cent.
The accuracy of the Concessionaire's Equipment shall be verified
by the Concessionaire once in every month during the Contract
Period or at such other frequency as may be
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agreed (and at other times if so required by either party) and
the Concessionaire shall give to PTT sufficient previous notice
of the date, time and nature of every verification to enable a
representative of PTT to be present therat. The results of any
verification shall be binding on both parties unless PTT shall
within seven (7) days after such verification give notice to the
Concessionaire that it disputes the accuracy of such
verification.
Verification shall be made at the expense of the Concessionaire
but PTT shall bear the cost of the attendance of its
representatives at any verification and shall bear the whole
expense of any verification made at its request if the accuracy
of the equipment concerned is found to be within the limits
mentioned in this Clause 13.5.
13.6 If at any time or from time to time during the continuance of
this Agreement any component of the Concessionaire's Equipment
is found to be out of service or registered outside the limits of
accuracy agreed under Clause 13.5 the Concessionaire shall
forthwith adjust it to read accurately within the limits
mentioned in Clause 13.5 or (if that is not possible) replace it
with a servicable component and (unless the Concessionaire and
PTT shall otherwise agree) the following provisions shall apply
with regard to earlier readings affected by the defective
component.
(i) no correction shall be made in respect to readings made
during the period before the immediately preceding
verification of the defective component;
(ii) if the time at which the component became defective can
be established the readings affected thereby shall be
corrected with effect from that time in a manner provided
by paragraphs (a)(b) and (c) of Clause (iii) of this
Clause 13.6;
(iii) if the time at which the component became defective cannot
be established, then the time has elapsed since the
immediately preceding verification shall be divided into
two (2) equal parts and estimated readings shall be
established in respect to the first such part by
assuming that the defective component has operated
accurately throughout such part and in respect of the
second such part;
a) by using the readings recorded by any check
measuring or testing equipment, if such equipment
is registered accurately within the limits
mentioned in Clause 13.5;
or if such equipment is not registered accurately
or if no such equipment has been installed; or
b) by correcting the error, if the percentage of
error is ascertainable to the satisfaction of
both parties, by calibration test or mathematical
calculation;
or it the percentage of error is not so
ascertainable, then
c) by estimating the quantity and/or quality of Sales
Gas delivered by reference to deliveries under
similar conditions when the defective component
was registering accurately;
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13.7 The parties shall meet to discuss and to endeavour to settle any
dispute which may arise with regard to the application of the
provisions of this Article or the measurement of the quantity of
Sales Gas delivered and if within thirty (30) days after the
commencement of such meeting, or, if no such meeting takes place,
within forty (40) days of one party notifying the other that a
point of dispute exists, they shall have been unable to agree,
the matter may be referred to an expert to be appointed in
accordance with the provisions of Article XX.
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ARTICLE XIV POINT OF DELIVERY, PROPERTY AND RISK
14.1 Sales Gas to be delivered under the terms of this Agreement shall
be delivered by the Concessionaire to PTT at the Delivery Point
specified in the Fourth Schedule hereto.
14.2 The property and risk in the Sales Gas tendered for delivery by
the Concessionaire shall pass to PTT at the Delivery Point,
Provided that, if any Sales Gas so tendered is deficient in
quality but is, at the moment of its passage through the Delivery
Point, not known by PTT to be so deficient, such Sales Gas shall
for the purposes of this Agreement be deemed to have been
delivered and the Concessionaire shall compensate PTT for any
damages suffered by PTT and which PTT can properly claim in
consequence of such deficiency up to an amount equal to the value
of a quantity of Sales Gas ten (10) times the DCQ then in force
at the Current Price.
14.3 Immediately upon notification by PTT of the occurrence of a
failure of pipeline facilities installed by PTT pursuant to
Article VIII causing an escape of Sales Gas, the Concessionaire
shall stop delivering Sales Gas and PTT shall not be required to
pay for any Sales Gas passing the Delivery Point after such
failure has been notified and prior to the failure being
remedied, but PTT shall remain obligated in accordance with
Clause 6.8.
14.4 In the event of the Government of Thailand taking Royalty in kind
under the Concession Agreement from the Development Area and
directing that such Royalty Sales Gas be delivered to PTT, PTT
shall, if the Government so requests, take delivery of such Sales
Gas at the Delivery Point and the liability and risk of the
Concessionaire shall cease at that point.
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ARTICLE XV DEFAULT
15.1 Except as otherwise provided in this Article XV and Clauses 4.2
and 5.2, each party shall be liable to the other in the event of
such party's default or breach of an obligation hereunder only
for actual costs, expenses and damages incurred by such other
party as the direct result of such default or breach.
15.2 Except as otherwise provided in this Article XV, PTT's sole
remedy for the Concessionaire's failure to deliver Sales Gas,
during any day, in quantities required by the provisions of this
Agreement (such deficient quantity being referred to as
"Shortfall") shall be the right to take an amount of Sales Gas
equal to the Shortfall as part of the Net ACO at a price
twenty-five (25) per cent below the Current Price at the time
of the occurrence of the Shortfall. The Shortfall shall be
cumulated at the end of the Month of its occurrence and Sales Gas
to compensate for Shortfall ("Shortfall Gas") shall be taken from
the first day of the next month.
If for a period of not less than thirty (30) Days, in
circumstances in which this Clause 15.2 applies, the
Concessionaire does not make available Sales Gas and, as a result
by the end of the First Contract Year or the Contract Year, as
the case may be, PTT has not been able to exercise all or part of
its right to require delivery of Shortfall Gas in respect of
that period, then the Concessionaire shall pay to PTT, in
accordance with Article XII, a sum in cash equal to the Shortfall
not so delivered times twenty-five (25) per cent of the Current
Price prevailing during the occurrence of the Shortfall.
If any period of not less than thirty (30 ) Days, which the
Concessionaire does not make available Sales Gas as mentioned
above, occurs over two accounting years then the sum to be paid
shall not become due before the end of the second of such years.
15.3 The Concessionaire, as a Reasonable and Prudent Operator, shall
incur no liability to PTT for failure to deliver Sales Gas in
quantities required by this Agreement if such failure was in any
way caused, in whole or in part, by an event where:
(i) the Concessionaire has been prevented by Force Majeure
as defined in Article XVI, or
(ii) subject to PTT's rights under Clause 4.2 and 5.2, PTT
failed to take Sales Gas properly tendered in accordance
with this Agreement.
15.4 Subject to the provisions of this Agreement and in particular
Clauses 6.9 and 18.4, PTT's liability to the Concessionaire, for
failure in its obligation to accept delivery of Sales Gas
hereunder, shall be limited to the payment to the Concessionaire
for Sales Gas not taken, at the price provided in this Agreement.
15.5 In no event shall either the Concessionaire or PTT be liable to
the other for indirect or special damages of any kind nor shall
either be liable to the other for damages asserted or claimed to
have suffered by any third party not a party to this Agreement.
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15.6 For the avoidance of doubt, the parties agree that if the
Concessionaire's default under the provisions of this Agreement
is limited to Shortfall, then PTT's remedy is pursuant to Clause
15.2 and not 15.1.
15.7 If the ACQ as the result of any determination or redetermination
of the Field Reserves drops below thirty one billion Cubic Feet,
the Concessionaire shall pay PTT a sum of money equivalent to the
capital cost of the Facilities installed by PTT for the service
of this agreement times zero decimal one nine nine two (0.1992)
multiplied by the amount the ACQ is less than thirty one (31)
billion Cubic Feet divided by thirty one (31) billion Cubic Feet.
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ARTICLE XVI FORCE MAJEURE
16.1 In this Agreement "Force Majeure" shall denote any event the
happening which could not be prevented even though a person
against whom it happened or threatened to happen were to take
such appropriate care as might be expected of a Reasonable and
Prudent Operator. Force Majeure shall not include a failure to
give a notice or to pay money due under the Agreement.
16.2 Events which may, subject to Clause 16.1, be considered Force
Majeure events shall include but not be limited to acts of
government, strikes, lock-outs, acts of public enemy, wars
whether declared or undeclared, blockades, insurrection, riots,
epidemics, landslides, lightning, earthquakes, fires, storms,
floods, washouts, civil disturbances, explosions, breakage or
accident to machinery or lines of pipe, freezing of wells or
lines of pipe, partial or entire failure of wells, inability to
obtain necessary materials or supplies due to changes in laws and
regulations, material changes in the obligations of the
Concessionaire under the Concession Agreement imposed
unilaterally by the Government of Thailand, inability of PTT to
accept delivery of Sales Gas by reason of inability of any power
generation or industrial customer of PTT to take Sales Gas which
it or they would have taken if such inability is caused by a
happening which would have constituted Force Majeure in
accordance with Clause 16.1 as if the customer concerned had been
a party to this Agreement;
Provided that PTT shall have no right to Force Majeure relief
hereunder by reason of the inability of any power generation or
industrial customer to take Sales Gas unless PTT shall
pro-rate the amount from which it requires relief among all of
its relevant suppliers. The deemed amount of Sales Gas which
would have been delivered to the customer concerned shall be
calculated by reference to the average delivery to that customer
over the immediately preceding thirty (30) Days and PTT supply
pattern by the average take of Sales Gas over the same thirty
(30) Days.
16.3 A party claiming relief on account of Force Majeure shall:
(i) as soon as practicable give notice to the other party
of the happening said to constitute Force Majeure,
such notice to include full information about the
circumstances and a statement of the steps and time
believed necessary to remedy the failure but neither
party shall be obliged to settle or prevent any strike
or other industrial action except on terms which, in
its sole judgement, are acceptable to it.
(ii) proceed as a Reasonable and Prudent Operator at its own
expense to remedy the failure as rapidly as possible.
16.4 A party failing to fulfil its obligations (other than the
obligations to give notice or to pay money excepted under Clause
16.1) by reason of Force Majeure and fulfilling the requirements
of Clause 16.3 shall be relieved of liability as follows:
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(i) in case of the Concessionaire, to the extent that Force
Majeure has prevented it from fulfilling its
obligations under this Agreement and in particular
delivering Sales Gas that it should have delivered.
(ii) in the case of PTT to the extent that Force Majeure has
prevented it from fulfilling its obligations under this
Agreement and in particular accepting Sales Gas which
it should have accepted or from disposing of the same.
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ARTICLE XVII PERIOD OF CONTRACT
This Agreement shall come into force on the Effective Date and shall so
continue in force until terminated as provided in Article XVIII. Right and
obligations accrued to and incurred by each party prior to termination of
this Agreement shall survive such termination.
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ARTICLE XVIII TERMINATION
18.1 This Agreement shall terminate
(i) upon termination of the petroleum production periods as
provided in the Concession Agreement and Petroleum Act
BE 2514 (1971), as amended, and Ministerial Regulations
promulgated pursuant thereto, or
(ii) when there are no Field Reserves remaining in the
Reservoir, or
(iii) after a period of thirty (30) years from the
Contractual Delivery Date, such period to be extended
by each event of Force Majeure which is of not less
than thirty (30) Days duration,
whichever shall first occur.
18.2 The Concessionaire shall in good faith endeavour to give to PTT
not less than two (2) years notice of the date upon which an
event set forth in Clause 18.1 (ii) is expected to occur, but
this Agreement shall terminate when such event occurs whether
before or after the date notified by the Concessionaire.
18.3 If this Agreement terminates then the Concessionaire shall
reimburse PTT the net amount which PTT has paid for Sales Gas
pursuant to Clause 6.8 but not taken pursuant to Clause 6.9.
Reimbursement shall be made within thirty (30) days of
termination and all other amounts due from one party to the other
shall be settled within sixty (60) days after termination, after
which interest shall be paid in accordance with Clause 12.7 until
payment is made.
The Concessionaire shall have the right to substitute for such
payment, quantities of natural gas delivered from outside the
G.S.A. area and delivered at the Delivery Point or some other
point of delivery acceptable to PTT. The natural gas substituted
shall be supplied in accordance with the terms and conditions of
this Agreement, the duration of which shall be extended as
necessary for this purpose.
Detailed arrangements for the substitution shall be submitted by
the Concessionaire together with the notice given in accordance
with Clause 18.2. If within ninety (90) days the parties have
failed to agree the detailed arrangements, either party may refer
the matter for arbitration in accordance with Article XXI.
18.4 If at any time after the Concessionaire has served a notice of a
decrease in DCQ in accordance with Clause 6.11 the pipeline
connecting the Delivery Point with the market, or any other part
of PTT's facilities necessary for the transmission, compression
treatment, or distribution of the Sales Gas which is the subject
of this Agreement, is damaged by a happening beyond the
control PTT acting in accordance with the standards of a
Reasonable and Prudent Operator and it would be necessary for PTT
to incur additional expenditure to repair the damage in excess of
that which a Reasonable and Prudent Operator would make, then PTT
may, by written notice given to the Concessionaire, reduce the
DCQ or terminate this Agreement, as appropriate to the extent of
the damage, with
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immediate effect and if this Agreement is so terminated then PTT
and the Concessionaire shall be excused from all obligations
thereafter.
If within sixty (60) days following the receipt of a notice given
by PTT in accordance with this Clause 18.4, the Concessionaire
informs PTT that the Concessionaire considers that a Reasonable
and Prudent Operator would make such additional expenditure and
the parties are unable to agree, then either party may require
the matter to be submitted to an expert to be appointed in
accordance with the provisions of Article XX and the expert shall
be given access to all material data.
18.5 In the event the Concessionaire should cease to deliver Sales Gas
from the GSA Area, then in the event the Concessionaire has not
delivered at least five hundred (500) billion Cubic Feet of Sales
Gas pursuant to this Agreement, the Concessionaire shall pay PTT
a sum of money equivalent to the "undelivered quantity" in
billion Cubic Feet, divided by five hundred (500) billion Cubic
Feet times the capital cost of the Facilities installed by PTT
for the service of this agreement times one decimal one to the
"n"th power (1.10 x n) where n is the number of Calendar years
which the Concessionaire has delivered Sales Gas to PTT. The
"undelivered quantity" being five hundred (500) billion Cubic Feet
less actual deliveries.
18.6 Notwithstanding any other provision of this Agreement, this
Agreement shall terminate if the Concession Agreement is
terminated in a manner beyond the control of the Concessionaire.
In the event of such termination and subject to the provisions of
Clause 18.6, each party shall be relieved of all liability
hereunder.
18.7 Termination in any circumstances shall not relieve any party of
an obligation to pay amounts due and payable to another at the
time of termination.
18.8 If any provision of part of this Agreement is void, then this
Agreement as a whole shall not be affected thereby and if
practicable the remainder of the provisions hereof shall remain
valid and enforceable, provided, however, that if such void
provision is considered as essential by any Party, the Parties
shall meet and endeavour in good faith to set out a legal
replacement provision.
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ARTICLE XIX ASSIGNMENT
19.1 No party shall be entitled without the consent in writing of the
other (which consent shall not be unreasonably withheld) to
assign any of its rights or obligations created by this
Agreement, except assignment of the rights and/or obligations
hereunder as security for obtaining financial facilities needed
to put the Concession Area into operation and production.
production.
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ARTICLE XX EXPERTS
20.1 Whenever in this Agreement it is provided that any person is to
be appointed an expert or any matter is to be referred to an
expert or the parties agree that a point of difference between
them shall be resolved by an expert the provisions of this
Article XX shall apply.
20.2 Other than in the appointment of an expert to redetermine Field
Reserves pursuant to Article X, the procedure for the appointment
of an expert shall be the following:
(i) The party wishing the appointment of an expert to be made
shall give notice in writing to that effect to the other
and in such notice shall give details of the matter which
it is proposed shall be resolved by the expert.
(ii) The parties shall meet in an endeavour to agree upon a
single expert to whom the matter in dispute shall be
referred for determination.
(iii) If within twenty-one (21) days from the service of the said
notice the parties have failed to agree upon an expert
then the matter shall forthwith be referred by the party
wishing the appointment to be made to the President of
the International Gas Union who shall be requested to
make the appointment of the said expert within thirty
(30) days and may in so doing take such independent
advice as he thinks fit.
(iv) Upon an expert being agreed or selected under the foregoing
provisions of this Article the parties shall forthwith
notify such expert of his selection and shall request him
to state within fourteen(l4) days whether or not he is
willing and able to accept the appointment.
(v) If such expert shall be either unwilling or unable to
accept such appointment or shall not have accepted such
appointment within the said fourteen (14) days then
unless the parties are able to agree on the appointmet
of another expert who is willing and able to act,
the matter shall again be referred to the President of
the International Gas Union who shall be requested to
make a further appointment and the procedures shall be
repeated until an expert is found who accepts the
appointment.
20.3 For the appointment of an expert to redetermine Field Reserves
pursuant to Article X, the procedure for the appointment of an
expert shall be the following.
(i) The party wishing the appointment of an expert to be made
shall give notice in writing to that effect to the other
party and in such notice shall give details of the matter
which it is proposed shall be resolved by the expert.
(ii) The Concessionaire shall within fifteen (15) days of the
giving by it or the receipt by it of such notice, submit
to PTT the names of five (5) companies, (at least two (2)
of which must be registered outside of the United States or
Thailand and must not be a subsidiary of an US or Thai
company), each of which in the opinion of the
Concessionaire has the capacity and integrity to act as
an independent expert.
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(iii) The parties jointly shall within fifteen (15) days request
written confirmation within thirty (30) days from each such
expert that the expert is willing to accept the
determination assignment.
(iv) If less than three (3) of the experts furnish their written
confirmation as provided above, the Concessionaire,
maintaining the requirements of Clause 20.3 (ii), shall
add within a further fifteen (15) days a number of
experts to the remaining list to increase the number of
three (3) or more experts on the list who are willing to
accept the assignment.
(v) From the list determined as above by the Concessionaire,
PTT will select one (1) within seven (7) Days. This
expert shall be given the determination assignment.
20.4 Once the expert has accepted his appointment pursuant to Clause
20.2 (v) or has been selected pursuant to Clause 20.3 (v) a
notice shall be sent within five (5) days of such date to appoint
an expert by either party (with copy of such appointment to the
other party) or both parties and shall instruct the expert that
the appointment is made on behalf of both parties and will set
forth the points of difference to be resolved and will fairly
represent the position of each.
20.5 Not later than thirty (30) days after the acceptance by an expert
of his appointment each partly shall submit to the expert and to
the other party all data, information and other submissions which
each party considers relevant to the matter for which the expert
has been appointed. Within fifteen (1 5) days after the said
thirty (30) day period each party may rebut the data, information
and submission of the other party. The expert shall make his
decision on such data, information and submissions and shall
ignore data, information and submissions made after such
forty-five (45) days unless the same are furnished in response to
a specific request from him. The expert may examine physical
evidence onsite provided both parties are accorded the
opportunity to attend and participate in such examination.
20.6 Within a reasonable period, which shall not in the case of a
determination under Article X exceed one hundred and eighty (180)
days after his appointment, or in any other case ninety (90) days
after his appointment, the expert shall render a decision. If
the expert does not so decide the matter within such time or
within such extensions of time agreed upon by the parties hereto,
the matter shall, at the request of either party, be referred to
a new expert who shall be appointed under the provisions of this
Article XX and upon the acceptance of appointment by such new
expert the appointment of the previous expert shall cease,
Provided that if the previous expert shall have rendered a
decision prior to the date upon which the new expert accepts his
appointment then such decision shall be binding upon the parties
and the instructions to the new expert shall be withdrawn.
20.7 The report of the expert shall be in writing and shall set forth
his decision and reasons therefore.
20.8 No person shall be appointed to act as the expert under this
Article XX:
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(i) unless he shall be qualified by education, experience and
training to determine the matter in dispute.
(ii) who at the time of appointment is an employee of or
engaged by either party.
20.9 The decision of the expert shall be final and binding upon the
parties on the matter under determination and may be entered
thereon by any court of competent jurisdiction (provided that if
a court in Thailand is selected by either party, it shall be the
Civil Court of Bangkok) save in the event of:
(i) fraud;
(ii) an evident material miscalculation of figures or an
evident material mistake in the description of any
person, thing or property referred to in the award;
(iii) failure of expert to disclose any relevant interest
likely to give rise to justifiable doubts as to his
impartiality or independence;
(iv) where an expert has awarded upon a matter not submitted
to him, unless it is a matter not affecting the merits
of the decision upon the matter submitted.
Each party shall continue fully to perform all of its
obligations under this Agreement during the pendency of the
determination.
20.10 Each party shall bear the costs and expenses of all counsel,
witnesses and employees retained by it but the cost and expenses
of the expert shall be apportioned equally between the
Concessionaire and PTT.
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ARTICLE XXI ARBITRATION
21.1 Any and all disputes, controversies or claims between the parties
arising out of or relating to this Agreement or the performance,
breach, termination or invalidity thereof which are not by this
Agreement referred for determination to an expert appointed in
accordance with the provisions of Article XX shall be finally
settled under the Arbitration Rules of the Arbitration Institute
of the Thai Ministry of Justice.
21.2 Within sixty (60) Days of a party having given notice of a
dispute, controversy or claim to the other party, the parties
shall appoint an arbitrator, and thereafter the arbitrators so
appointed shall within sixty (60) days appoint a third arbitrator
who shall act as chairman of the arbitrators.
21.3 If any party including the arbitrators appointed in accordance
with Clause 21.2 fails to nominate an arbitrator within the time
specified in Clause 21.2, the Chief Justice of the Supreme Court
of Thailand shall be requested to appoint such arbitrator.
21.4 The language of any arbitration shall be English.
21.5 The parties agree that the arbitration proceedings and any
findings by and awards rendered by the arbitrators appointed
shall be kept confidential for the term of the Agreement.
21.6 The place of arbitration shall ordinarily be Bangkok but, if any
one of the parties so requests, shall take place at such other
place as may be agreed by the parties.
21.7 In rendering an award, the arbitrators shall take account of the
law of the Kingdom of Thailand and of practice and usage in the
international oil and gas industry.
21.8 The arbitral award shall be final and binding on both parties on
the matter under arbitration, and judgement thereon may be
entered in any court of competent jurisdiction (provided that if
a court in Thailand is selected by either party, it shall be the
Civil Court of Bangkok) save in the event of:
(i) Fraud;
(ii) An evident material miscalculation of figures or an
evident material mistake in the description of any
person, thing or property referred to in the award;
(iii) Failure of any arbitrator to disclose any relevant
interest likely to give rise to justifiable doubts as
to his impartiality or independence;
(iv) Where the arbitrators have awarded upon a matter not
submitted to them, unless it is a matter not affecting
the merits of the decision upon the matter submitted.
In which case the matter shall be resolved using the Arbitration
Rules noted above.
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Each party shall continue fully to perform all of its
obligations under this Agreement during the pendency of the
determination.
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ARTICLE XXII APPLICABLE LAW
This Agreement shall be construed and interpreted in accordance with and
governed by the law of Thailand.
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ARTICLE XXIII SUCCESSORS AND ASSIGNS
This Agreement shall bind and enure to the benefit of the companies
defined as the Concessionaire and PTT and their respective successors and
permitted assigns.
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ARTICLE XXIV CONCESSIONAIRE'S REPRESENTATIVE
24.1 The Operator appointed from time to time by the Concessionaire
shall be the authorized representative of the Concessionaire for
the provision of information and data, for the giving and
receiving of all notices and invoices to and from PTT and for all
other purposes of this Agreement other than the receiving from
PTT payments in accordance with Article XII, and PTT shall be
fully protected in acting in reliance upon anything done or
performed or agreement made by the Operator as though the
Concessionaire had done or performed the same.
24.2 The original Operator appointed by the Concessionaire under this
agreement is Thaipo Limited.
In the case of appointment of a new Operator, the Concessionaire
shall so notify PTT at least fifteen (15) days before such
appointment becomes effective.
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ARTICLE XXV NOTICES
25.1 Whether or not so stipulated herein, all notices, communications
and statements (hereinafter called "notices") required or
permitted hereunder shall be in writing. Notices may be served.
(i) by hand delivering them to, and receiving a receipt
from, the party on whom they are to be served at that
party's address hereinafter given and received, provided
that such delivery shall be during normal business hours.
Such notices shall be deemed received by the addresses
when actually delivered as aforesaid; or
(ii) by telex when given (or by any other like method by which
a written and recorded message may be sent) directed to
the party on whom they are to be served at that party's
address hereinafter given. Notices so served shall be
deemed received by the addresses thereof;
(a) when actually received by them within the
normal working hours of a business day; or, if
not so received
(b) at the commencement of the next ensuing
business day following transmission thereof
provided, however, that an answer back has been
received; or
(iii) by mailing them first class registered post, to the
party on whom they are to be served. Notices so served
shall be deemed received by the addressees when a signed
receipt has been given.
25.2 The initial address for service of notice hereunder of each of
the respective parties shall be as follows:
In the case of PTT:
555 Vibhavadi-Rangsit Road
Bangkok 10900 Thailand
Telex: 72054 PTT TH
In the case of the Concessionaire:
Thaipo Limited
19th Floor, B.B. Building
54 Asoke Road, Sukhumvit 21
Bangkok 10110, Thailand
Fax No.: (66-2) 260-7150
Tel No.: (66-2) 260-7151
25.3 Each party will promptly inform the other in writing of any
change.
51
<PAGE> 52
25.4 For information purposes only, and without limiting in any way
the scope of Article XXIV, the initial nominated addresses of
each of the companies defined as Concessionaire shall be:
The Sophonpanich Co., Ltd.
61 Soi Watana, Nineteen,
Sukhumvit Road, Bangkok 10110
Thailand
Fax No.: (66-2) 236-8988
Tel No.: (66-2) 230-1881
Thai Romo Limited
19th Floor, B.B. Building
54 Asoke Road, Sukhumvit 21
Bangkok 10110, Thailand
Fax No.: (66-2) 260-7274
Tel No.: (66-2) 260-7242
Each such company shall promptly inform the other and Thaipo
Limited, and PTT in writing, of any change.
52
<PAGE> 53
ARTICLE XXVI WAIVER
No waiver by either party of any default or defaults by the other in the
performance of any of the provisions of this Agreement shall operate or be
construed as a waiver of any other or further default whether of a like or
different character.
53
<PAGE> 54
ARTICLE XXVII MARGINAL HEADINGS
The marginal headings in this Agreement are inserted for convenience only
and shall not affect the construction of this Agreement.
54
<PAGE> 55
ARTICLE XXVIII ROYALTY IN KIND
The Concessionaire shall pay royalty for any Sales Gas sold under this
Agreement as set out in Clauses 10 (2) (a) and (b) of the Concession
Agreement. If the Government of Thailand elects to take royalty gas in
kind, the Concessionaire's obligation to deliver Sales Gas shall be
reduced accordingly and in particular the DCQ shall be reduced by that
percentage of Sales Gas produced from the Concession Area which is so
taken by the Government.
55
<PAGE> 56
ARTICLE XXIX ATTACHMENTS
There are attached to this Agreement five (5) Schedules numbered from the
First to the Fifth and such Schedules are hereby made part of this
Agreement for all the purposes thereof.
In the event that any provision set forth in any of the five (5) Schedules
attached hereto conflict with the provisions set forth in this Agreement,
the provisions of this Agreement shall prevail.
56
<PAGE> 57
ARTICLE XXX RELATIONSHIP
It is expressly agreed that it is not the purpose or intention of this
Agreement to create, nor is the same to be construed as creating, any form
of legal partnership between companies defined as the Concessionaire.
57
<PAGE> 58
ARTICLE XXXI ENTIRE CONTRACT
This Agreement and the terms hereof shall constitute the entire agreement
between the parties hereto with respect to all matters herein and its
execution has not been induced by nor do either of the parties rely upon
or regard as material any representations or writings whatsoever not
incorporated herein. This Agreement may be modified or supplemented
only by amendment in writing executed on behalf of the parties hereto.
58
<PAGE> 59
IN WITNESS WHEREOF each party hereto has caused this Agreement to be executed
by its duly authorised representative as of the date first written above.
THAIPO LIMITED PETROLEUM AUTHORITY OF THAILAND
Radford Phillip Laney Pala Sookawesh
- ------------------------------------ ---------------------------------------
Mr. Radford Phillip Laney Mr. Pala Sookawesh
President and Managing Director Governor
- ------------------------------------ ---------------------------------------
Steven R. Samuel, Witness [Illegible], Witness
THAI ROMO LIMITED
Patrick R. Rutherord
- ------------------------------------
Mr. Patrick R. Rutherford
Chairman of the Board
Rutherford/Moran Oil Corporation
- ------------------------------------
Ronald B. Manning, Witness
THE SOPHONPANICH CO., LTD.
Mr. Chote Sophonpanich
- ------------------------------------
Chote Sophonpanich
Director
- ------------------------------------
[Illegible], Witness
59
<PAGE> 60
FIRST SCHEDULE PART I
THE CONCESSION AREA
<TABLE>
<CAPTION>
North Latitude East Longitude
------------------------ ------------------------
(Degree/ Minute/ Second) (Degree/ Minute/ Second)
<S> <C> <C> <C> <C> <C> <C>
Point No.
1 11 0 0 100 45 0
2 11 0 0 101 13 15
3 10 59 0 101 13 0
4 10 16 50 101 29 0
5 10 9 0 101 30 0
6 10 9 0 101 27 0
7 10 0 0 101 28 20
8 10 0 0 101 19 0
9 9 50 0 101 19 0
10 9 50 0 101 16 0
11 9 42 0 101 16 0
12 9 42 0 101 10 0
13 9 48 0 101 10 0
14 9 48 0 101 8 0
15 9 52 0 101 8 0
16 9 52 0 101 6 0
17 9 40 0 101 6 0
18 9 40 0 101 16 0
19 9 33 0 101 16 0
20 9 33 0 101 15 0
21 9 31 0 101 15 0
22 9 31 0 101 10 0
23 9 32 0 101 10 0
24 9 32 0 101 9 0
25 9 34 0 101 9 0
26 9 34 0 101 7 0
27 9 30 0 101 7 0
28 9 30 0 100 45 0
</TABLE>
60
<PAGE> 61
FIRST SCHEDULE PART II
G.S.A AREA
<TABLE>
<CAPTION>
POINT LATITUDE LONGTITUDE
CODE DEG MINS SEC DEG MINS SEC
- ---- --- ---- --- --- ---- ---
<S> <C> <C> <C> <C> <C> <C> <C>
A 10 18 00.00"N 101 24 00.0"E
B 10 18 00.00"N Intersecting with the Declared Cambodian
Continental Shelf (1972)
C 10 16 50.00"N 101 29 30.0"E
D 10 09 00.00"N 101 30 00.0"E
E 10 09 00.00"N 101 27 00.0"E
F 10 00 00.00"N 101 28 20.0"E
G 10 00 00.00"N 101 24 00.0"E
</TABLE>
61
<PAGE> 62
FIRST SCHEDULE PART III
MAP OF CONCESSION AREA
[GRAPH]
62
<PAGE> 63
.
SECOND SCHEDULE
QUALITY SPECIFICATIONS
Sales Gas delivered under this Agreement shall at the Delivery Point.
1. GENERAL : be commercially free from materials and dusts or other
solid matter, liquid matter, waxes, gums and gumforming
constituents which might cause injury to or interference with
proper operations of the lines, meters, regulators or other
appliances through which Sales Gas flows. The Sellers shall
furnish, install, maintain and operate such filters, separators and
other devices as are necessary to comply with this specification.
2. WATER CONTENT : contain not more than seven (7) pounds of water
vapor per one million (1,000,000) Cubic Feet of Sales Gas.
3. SULPHUR : contain not more than seventy five(75) parts per
million (ppm) by weight of total sulphur in the Sales Gas.
4. HYDROGEN SULPHIDE : contain not more than fifty (50) parts per
million (ppm) by weight of hydrogen sulphide in the Sales Gas.
5. CARBON DIOXIDE : contain not more than seventeen (17) mole per
cent of carbon dioxide.
6. OXYGEN : contain not more than zero decimal one (0.1) mole
percent of oxygen.
7. MERCURY: NIL
8. HEATING VALUE : have a Gross Calorific Value not less than nine
hundred and fifty (950) BTU per Cubic Foot and not more than one
thousand one hundred and fifty (1,150) BTU per Cubic Foot.
9. TEMPERATURE : have a temperature which is not less than sixty
(60) degrees Fahrenheit and not more than one hundred and twenty
(120) degrees Fahrenheit.
Suitable standard test methods and measuring instruments of standard
manufacture acceptable to both parties, together with procedures for
checking and/or verification of the instruments, shall be agreed between
the parties or be determined by an expert.
63
<PAGE> 64
THIRD SCHEDULE
MEASUREMENT OF SALES GAS DELIVERED
1. METERING
The Sales Gas delivered under this Agreement shall be measured
with meters constructed and installed, and whose computations of
volume are made, in accordance with the provisions of Gas
Measurement Committee Report No. 3 of the American Gas
Association (AGA) as reprinted and revised September, 1985, with
any subsequent amendments or revisions which may be mutually
acceptable to both parties.
2. ADJUSTMENT FOR SUPERCOMPRESSIBILITY
Adjustment for the effect of supercompressibility shall be made
according to the provisions of AGA Report No. 3 for the average
conditions of pressure, flowing temperature and specific gravity
at which the Sales Gas was measured during the period under
consideration and with the proportionate values of all components
including carbon dioxide and nitrogen, in the gas delivered
included in the computation of the applicable
supercompressibility factors. The Concessionaire agrees to
exercise due diligence in measuring the initial fraction values
of carbon dioxide, nitrogen, and all other components and to
measure subsequent values of all components as may be required
and agreed by the parties. Unless another method is agreed by
the parties, supercompressibility factors shall be calculated in
accordance with Clause 5.6.1 in the Transmission Measurement
Committee Report No. 8, "Compressibility and Supercompressibility
of Natural Gas and Other Hydrocarbon Gases", December 1985 of the
AGA.
3. TEMPERATURE
The temperature of the Sales Gas shall be determined by a
recording thermometer so installed that it will record the
temperature of such gas flowing through the meters. The
recording thermometer shall be installed and maintained by the
Concessionaire in accordance with the specifications set forth in
said AGA Gas Measurement Committee Report No. 3. The arithmetical
average of readings each day shall be deemed the Sales Gas
temperature and used in computing the volume of gas metered
during such day.
4. SPECIFIC GRAVITY
The Specific Gravity of the Sales Gas being metered shall be
calculated in accordance with the provisions of the said AGA
Measurement Committee Report No. 3.
Tests to determine the Specific Gravity of the Sales Gas being
metered shall be made in accordance with American Society for
Testing and Materials (ASTM) Standard D 1070-73 "Standard Methods
for Specific Gravity of Gaseous Fuels", or any subsequent
revision thereof acceptable to both parties.
64
<PAGE> 65
the Specific Gravity of the Sales Gas shall be determined from
samples taken with a continuous gas sampler. Samples will be
taken at reasonable intervals by the Concessionaire who also
agrees to take additional samples if requested to do so by
PTT.
In lieu of continuous sampling the parties may agree to spot
sampling which shall be representative of the Sales Gas
delivered at the time such samples are taken.
The Specific Gravity so determined by any calculation shall apply
to the Sales Gas metered from the commencement date of the sample
used for compositional analysis until the next sample is taken
for analysis.
5. HEATING VALUE DETERMINATION
The Gross Calorific Value of the Sales Gas in BTUs per Cubic Foot
shall be determined from samples taken with a continuous sampler.
Tests to determine the calorific value of Sales Gas delivered may
be made utilizing a recording calorimeter operated and maintained
in accordance with ASTM Standard D-182677 "Calorific Value
of Gases in Natural Gas Range by Continuous Recording
Calorimeter", or any subsequent revision thereof acceptable to
the parties.
If gas chromatograph measurements are taken, calculations of
Gross Calorific Value shall be made utilizing the method set
forth in AGA Measurement Committee Report No. 3.
The Gross Calorific Value determined by any test shall apply to
the Sales Gas metered from the commencement date of the sample
until the next sample is taken for test.
In lieu of continuous sampling, the parties may agree to spot
sampling which shall be representative of the Sales Gas delivered
at the time such samples are taken.
6. Notwithstanding anything contained herein the measurement of
Sales Gas delivered may be carried out by alternative methods if
the parties hereto agree.
65
<PAGE> 66
FOURTH SCHEDULE
DELIVERY POINT
The Delivery Point shall be the flange located on the pipeline end
manifold (PLEM), or other agreed point, connecting the Concessionaire's
Floating Petroleum Storage and Offloading System (FPSO) to PTT's Facilities
for the reception and transmission of the Sales Gas which is the subject
of this Agreement. Delivery Point is to be agreed in detail but in
principle is based on a single Delivery Point.
Concessionaire shall advise PTT of the location of the Delivery Point as
soon as possible but not later than 120 days after the effective date of
this Agreement.
If an additional period is required beyond the 120 day period to conform
an acceptable location and if the completion of PTT's pipeline and related
facilities will be delayed as a result then, the First Contractual
Delivery Date may, by notice from PTT to Concessionaire given within
fifteen days after notification of the location, be extended by a period
of time to be expressed in PTT's notice but not exceeding such additional
period beyond the aforesaid 120 day period.
Concessionaire shall consult with PTT regarding any such change.
66
<PAGE> 67
FIFTH SCHEDULE
PARENTAL GUARANTEE
October 25, 1995
TO PETROLEUM AUTHORITY OF THAILAND
Dear Sirs:
In consideration of your entering into an Agreement with Thaipo Limited and
others for the purchase from them of natural gas on the terms and conditions
therein mentioned, we, Pogo Producing Company, guarantee the due performance by
Thaipo Limited of all its obligations under the said Agreement.
Yours faithfully,
Pogo Producing Company
By: /s/ RADFORD PHILLIP LANEY
-----------------------------
Radford Phillip Laney
Vice President
67
<PAGE> 68
PARENTAL GUARANTEE
October 25, 1995
TO PETROLEUM AUTHORITY OF THAILAND
Dear Sirs:
In consideration of your entering into an Agreement with Thai Romo Limited and
others for the purchase from them of natural gas on the terms and conditions
therein mentioned, we, Rutherford/Moran Oil Corporation guarantee the due
performance by Thai Romo Limited of all its obligations under the said
Agreement.
Yours faithfully,
Rutherford/Moran Oil Corporation
/s/ MICHAEL D. McCOY
------------------------------
by: Michael D. McCoy [SEAL]
Vice President
68
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Financial Data Schedule contains summary financial information extracted
from the Consolidated Financial Statements (Unaudited) of Pogo Producing
Company, including the Consolidated Balance Sheets as of June 30, 1996
and the Consolidated Statements of Income for the three months
ended June 30, 1996, and is qualified in its entirety by reference
to such Consolidated Financial Statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> JUN-30-1996
<CASH> 18,835
<SECURITIES> 0
<RECEIVABLES> 52,224
<ALLOWANCES> 0<F1>
<INVENTORY> 8,074
<CURRENT-ASSETS> 80,598
<PP&E> 1,062,407
<DEPRECIATION> 787,674
<TOTAL-ASSETS> 372,604
<CURRENT-LIABILITIES> 29,399
<BONDS> 202,550
<COMMON> 33,214
0
0
<OTHER-SE> 54,668
<TOTAL-LIABILITY-AND-EQUITY> 372,604
<SALES> 99,760<F2>
<TOTAL-REVENUES> 99,595
<CGS> 18,080<F3>
<TOTAL-COSTS> 18,080<F3>
<OTHER-EXPENSES> 54,304<F4>
<LOSS-PROVISION> 0<F5>
<INTEREST-EXPENSE> 6,184
<INCOME-PRETAX> 22,996
<INCOME-TAX> 7,794
<INCOME-CONTINUING> 15,202
<DISCONTINUED> 0
<EXTRAORDINARY> (821)
<CHANGES> 0
<NET-INCOME> 14,381
<EPS-PRIMARY> .42
<EPS-DILUTED> .42
<FN>
<F1>This amount is not disclosed on the face of the Consolidated
Financial Statements due to lack of materiality, but is included as
a contra-asset in Accounts Receivable.
<F2>Does not include Gains (or Losses) on Property Sales.
<F3>Includes Lease Operating Expense, but excludes General and
Administrative, Exploration, Dry Hole and Impairment and Depreciation,
Depletion and Amortization Expenses.
<F4>Includes General and Administrative, Exploration, Dry Hole and
Impairment and Depreciation, Depletion and Amortization Expenses.
<F5>This amount is not disclosed on the face of the Consolidated Financial
Statements due to lack of materiality, but is included in Oil and Gas
Revenues.
</FN>
</TABLE>
