<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 1, 1996
REGISTRATION NO. 333-02477
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NABORS INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
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515 West Greens Road, Suite 1200
Houston, Texas 77067
(713) 874-0035
DELAWARE (Address and Telephone Number of 93-0711613
(State or Other Jurisdiction of Registrant's Principal Executive (I.R.S. Employer
Incorporation or Organization) Offices) Identification No.)
</TABLE>
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ANTHONY G. PETRELLO
PRESIDENT AND CHIEF OPERATING OFFICER
NABORS INDUSTRIES, INC.
515 WEST GREENS ROAD, SUITE 1200
HOUSTON, TEXAS 77067
(713) 874-0035
(Name, Address and Telephone Number of Agent For Service)
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With a copy to:
HOWARD M. BERKOWER, ESQ.
BAKER & MCKENZIE
805 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 751-5700
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM AMOUNT MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) UNIT(1)(2) PRICE(3) FEE
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Debt Securities..................................
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Preferred Stock, $.10 par value per share........
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Common Stock, $.10 par value per share...........
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Depositary Shares(4).............................
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Warrants(5)......................................
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Total................................... $250,000,000 100% $250,000,000 $86,206.90(6)
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</TABLE>
(1) Such indeterminate number or amount of Debt Securities, Preferred Stock,
Common Stock, Depositary Shares or Warrants registered hereunder as may from
time to time be issued at indeterminate prices. No separate consideration
will be received for the Debt Securities, Preferred Stock, Common Stock or
Depositary Shares issuable upon conversion of or in exchange for Debt
Securities or Preferred Stock.
(2) Such amount in U.S. dollars or the equivalent thereof in one or more foreign
currencies, currency units or composite currencies as shall result in an
aggregate initial public offering price for all securities of $250,000,000.
The Prospectus herein covers $250,000,000 of securities. In addition, this
Registration Statement includes such presently indeterminate amount or
number of securities as may be issuable from time to time upon conversion or
exchange of the securities being registered hereunder.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(4) Such indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event the Registrant
elects to offer to the public fractional interests in shares of Preferred
Stock registered hereunder, Depositary Receipts will be distributed to those
persons purchasing such fractional interests and shares of Preferred Stock
will be issued to the Depositary under the Deposit Agreement.
(5) Warrants for the Debt Securities, Preferred Stock or Common Stock of the
Registrant may be sold separately or with Debt Securities, Preferred Stock
or Common Stock as the case may be.
(6) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A *
* REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT *
* BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
SUBJECT TO COMPLETION, DATED MAY 1, 1996
PROSPECTUS
$250,000,000
NABORS INDUSTRIES, INC.
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK,
DEPOSITARY SHARES AND WARRANTS
[NABORS INDUSTRIES, INC. LOGO]
Nabors Industries, Inc. (the "Company") may from time to time offer,
together or separately, its (i) debt securities (the "Debt Securities") which
may be either senior debt securities (the "Senior Debt Securities") or
subordinated debt securities (the "Subordinated Debt Securities"), (ii) shares
of its preferred stock, $.10 par value per share (the "Preferred Stock"), which
may be issued in the form of Depositary Shares (as defined herein) evidenced by
Depositary Receipts (as defined herein), (iii) shares of its common stock, $.10
par value per share (the "Common Stock"), and (iv) warrants to purchase Debt
Securities, Preferred Stock or Common Stock of the Company as shall be
designated by the Company at the time of the offering (the "Warrants"), in
amounts, at prices and on terms to be determined at the time of the offering.
(The Debt Securities, Preferred Stock, Depositary Shares, Common Stock and
Warrants are collectively called the "Securities"). Securities may be sold for
U.S. dollars or one or more foreign currencies, currency units or composite
currencies -- in each case, as the Company specifically designates.
The Securities offered pursuant to this Prospectus may be issued in one or
more series or issuances and will be limited to $250,000,000 aggregate initial
public offering price or the equivalent in one or more foreign currencies,
currency units or composite currencies. Certain specific terms of the particular
Securities in respect of which this Prospectus is being delivered will be set
forth in an accompanying Prospectus Supplement (the "Prospectus Supplement"),
including, where applicable, (i) in the case of Debt Securities, the specific
title, aggregate principal amount, the denomination, whether such Debt
Securities are secured or unsecured obligations, maturity, premium, if any, the
interest, if any (which may be fixed, floating or adjustable rate), the time and
method of calculating payment of interest, if any, the place or places where
principal of (and premium, if any) and interest, if any, on such Debt Securities
will be payable, the currency, currency unit or composite currency in which
principal of (and premium, if any) and interest, if any, on such Debt Securities
will be payable, any terms of redemption at the option of the Company or the
holder, any sinking fund provisions, terms for any conversion or exchange into
Securities or other securities of the Company (provided, however, that any
such other securities issuable upon conversion or exchange of Debt Securities
will be subject to registration under the Securities Act or an applicable
exemption therefrom), the initial public offering price, listing (if any) on a
securities exchange and other terms, (ii) in the case of Preferred Stock, the
specific title, the aggregate number of shares offered, any dividend (including
the method of calculating payment of dividends), liquidation, redemption, voting
and other rights, any terms for any conversion or exchange into Securities or
other securities of the Company (provided, however, that any such other
securities issuable upon conversion or exchange of Preferred Stock will be
subject to registration under the Securities Act or an applicable exemption
therefrom), the initial public offering price, listing (if any) on a securities
exchange and other terms, (iii) in the case of Warrants, the duration, purchase
price, exercise price and detachability of such Warrants, any listing of the
Warrants or underlying Securities on a securities exchange, a description of the
securities for which each Warrant is exercisable and other terms, and (iv) in
the case of Depositary Shares, the fractional share of Preferred Stock
represented by each such Depositary Share. If so specified in the applicable
Prospectus Supplement, Debt Securities of a series may be issued in whole or in
part in the form of one or more temporary or permanent global securities
("Global Securities").
The Common Stock is listed on the American Stock Exchange under the trading
symbol "NBR." Any Common Stock sold pursuant to a Prospectus Supplement will be
listed on such exchange, subject to official notice of issuance.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank equally with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities, when issued, will be subordinated in right of payment to all Senior
Debt (as defined herein) of the Company.
The Prospectus Supplement will contain information concerning certain United
States federal income tax considerations, if applicable to the Securities
offered.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement. Any statement contained in this
Prospectus will be deemed to be modified or superseded by any inconsistent
statement contained in an accompanying Prospectus Supplement.
SEE "RISK FACTORS" ON PAGE 3 HEREOF FOR A DESCRIPTION OF CERTAIN FACTORS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SECURITIES.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Securities will be sold directly, through agents, underwriters or
dealers as designated from time to time, or through a combination of such
methods. If agents of the Company or any dealers or underwriters are involved in
the sale of the Securities in respect of which this Prospectus is being
delivered, the names of such agents, dealers or underwriters and any applicable
commissions or discounts are set forth in or may be calculated from the
Prospectus Supplement with respect to such Securities. See "Plan of
Distribution" for possible indemnification arrangements with agents, dealers and
underwriters.
THE DATE OF THIS PROSPECTUS IS MAY , 1996.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files periodic reports and other information with the Securities and
Exchange Commission (the "Commission").
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Securities offered hereby. This
Prospectus, which is a part of the Registration Statement, does not contain all
of the information set forth in the Registration Statement. Certain portions of
the Registration Statement have been omitted as permitted by the rules and
regulations of the Commission. Statements made in this Prospectus as to the
contents of any contract, agreement, instrument or other document are not
necessarily complete, and in each instance reference is made to the copy of such
contract, agreement, instrument or document filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference and the exhibits and schedules thereto.
The Registration Statement, the exhibits and schedules thereto, and the
reports and other information filed by the Company with the Commission may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the regional offices of the Commission located at Seven World
Trade Center, 13th floor, New York, New York 10048; and 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of all or any part of such
materials also may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Such reports, proxy or information statements, Registration Statement and
exhibits and other information concerning the Company should also be available
for inspection at the offices of the American Stock Exchange, Inc., 86 Trinity
Place, New York, New York 10006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission pursuant to the
Exchange Act and are incorporated by reference into this Prospectus and made a
part hereof:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995 (File No. 1-9245);
(2) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1995; and
(3) The description of the Common Stock and the Preferred Stock
contained in Amendment No. 1 to the Registration Statement on Form 8-A
(File No. 1-9245) filed with the Commission on May 20, 1992, and any
subsequent amendment thereto filed for the purposes of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus and made a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other document subsequently
filed with the Commission which also is or is deemed to be incorporated by
reference herein or in any Prospectus Supplement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
THE COMPANY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING
ANY BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL
REQUEST, A COPY OF THE DOCUMENTS THAT HAVE BEEN INCORPORATED BY REFERENCE INTO
THIS PROSPECTUS (NOT INCLUDING EXHIBITS TO SUCH DOCUMENTS OTHER THAN EXHIBITS
SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUESTS FOR SUCH
DOCUMENTS SHOULD BE DIRECTED TO DANIEL MCLACHLIN, CORPORATE SECRETARY, NABORS
INDUSTRIES, INC., 515 WEST GREENS ROAD, SUITE 1200, HOUSTON, TEXAS 77067.
2
<PAGE> 4
RISK FACTORS
In addition to the other information contained or incorporated by reference
in this Prospectus or any Prospectus Supplement, the following factors should be
considered carefully by prospective investors in evaluating the Company before
purchasing any of the securities offered hereby. Except for the historical
information contained or incorporated by reference in this Prospectus or any
Prospectus Supplement, the matters discussed in this Prospectus or any
Prospectus Supplement are forward looking statements (as such term is used in
the Private Securities Litigation Reform Act of 1995) that involve risks and
uncertainties, including industry conditions and the variability of demand for
contract drilling and related oilfield services, intense competition, operating
risks inherent in a hazardous industry, the adequacy and availability of
insurance, risks associated with international operations, regulations
pertaining to environmental matters and the other matters detailed to or
referred to below and from time to time in the Company's other reports filed
with the Commission. The actual results that the Company achieves may vary
materially from those set forth in or implied by any forward looking statements
due to such risks and uncertainties.
Business-Related Risks. The information set forth under the captions
"Industry Conditions, Competition and Seasonality," "Operating Risks and
Insurance," "International Operations" and "Governmental Matters" in Part I of
the Company's Annual Report on Form 10-K for the fiscal year ended September 30,
1995 (the "1995 Form 10-K"), in addition to the other information included in
the 1995 Form 10-K, is hereby specifically incorporated by reference herein.
Dividend Policies; Restrictions on Payment of Dividends. The Company does
not anticipate that it will pay any dividends on the Common Stock in the
foreseeable future. Certain of the Company's debt instruments include covenants
restricting the Company's ability to pay dividends or to make certain other
distributions to stockholders. In connection with the offering of any
dividend-paying Preferred Stock hereby, the applicable Prospectus Supplement
will set forth the amount available for distribution as of the end of the most
recent fiscal period under the Company's debt instruments.
Holding Company Structure. The Company is a holding company, substantially
all of the operations of which are conducted through subsidiaries. Consequently,
the Company will rely principally on dividends or advances from its subsidiaries
for the funds necessary for, among other things, the payment of principal of and
any interest or premium on the Debt Securities and the other indebtedness of the
Company. The ability of such subsidiaries to pay dividends is subject to
applicable state law and certain other restrictions. Any right of the holders of
the Debt Securities to participate in the assets of any of the subsidiaries upon
such subsidiary's liquidation or recapitalization will be effectively
subordinated to the claims of such subsidiary's creditors and preferred
stockholders (if any), except to the extent the Company is itself recognized as
a creditor of such subsidiary.
Absence of Public Market for Certain of the Securities. All Debt
Securities, Preferred Stock, Depositary Shares and Warrants will be a new issue
of securities with no established trading market. Any underwriters to whom Debt
Securities, Preferred Stock, Depositary Shares or Warrants are sold by the
Company for public offering and sale may make a market in such Securities, but
such underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the secondary market for any Debt Securities, Preferred Stock, Depositary
Shares or Warrants.
Market Risk with respect to Common Stock; Certain Investment Limitations.
The Common Stock is listed for trading on the American Stock Exchange. However,
the prices at which shares of Common Stock trade may depend upon many factors,
including prevailing interest rates, markets for similar securities, industry
conditions, and the performance of, and investor expectations for, the Company.
No assurance can be given that a holder of shares of Common Stock will be able
to sell such shares at any particular price. Certain institutional investors may
invest only in dividend-paying equity securities or may operate under other
restrictions that may prohibit or limit their ability to invest in the Common
Stock.
3
<PAGE> 5
THE COMPANY
Nabors Industries, Inc. (collectively with its subsidiaries (unless the
context otherwise requires), the "Company") is the largest land drilling
contractor in the world. The Company, which was incorporated in Delaware in
1978, has principally been engaged in oil, gas and geothermal land drilling
operations in Alaska, the lower 48 states of the United States, and Canada, and
internationally in the Middle East, the Far East, the CIS, North and West Africa
and South and Central America. The Company also provides offshore drilling
services in the North Sea, the Gulf of Mexico, Alaska's Cook Inlet and the
Middle East, as well as drilling and workover barge rigs on the Gulf Coast of
the United States. A subsidiary of the Company, Sundowner Offshore Services,
Inc., provides offshore well servicing and workover services in the Gulf of
Mexico and several international markets. The Company also provides oilfield
management, engineering, transportation, construction, maintenance and other
support services in selected domestic and international markets. A subsidiary of
the Company, Canrig Drilling Technology Ltd., sells top drives for a broad range
of drilling rig applications.
Since the current management group began directing the Company in 1987, the
Company's primary business strategy has been to develop a group of profitable,
synergistic and growth-oriented business units in geographically diversified
areas. The Company has sought to implement this business strategy through
acquisitions and internal growth, by entering into strategic alliances with
customers and by providing integrated drilling and engineering services to its
customers.
Acquisitions and Internal Growth. The Company's primary business strategy
has been implemented through strategic acquisitions and internal growth in
existing and new markets. Since 1988, through acquisition of other drilling
companies, asset purchases and internal expansion, the Company has grown from a
business centered principally in Canada and Alaska to an international company
operating in many of the major oil, gas and geothermal markets in the world. In
1988, the Company's rig fleet consisted of 44 land drilling rigs. As of December
31, 1995, the active Company-owned rig fleet consisted of 258 land drilling rigs
and 32 offshore rigs.
Strategic Alliances. The Company's primary business strategy has also been
advanced by entering into strategic alliances with customers. An increasing
number of customers have been seeking to benefit from exploration and
development drilling programs by establishing continuing relationships or
alliances with a smaller number of preferred drilling contractors. These
alliances can result in long term work and increased profitability for drilling
contractors that are selected as partners in the alliance. The Company has been
selected by operators as alliance partners in Alaska, the lower 48 states of the
United States, Canada, the North Sea and West Africa.
Drilling and Engineering Services. The Company's primary business strategy
has also been advanced by providing additional drilling-related services and
management of drill site activities to its customers. As major oil and gas
companies reduce the number of service contractors at a drill site, they have
been requesting that the contractors provide additional drilling-related
services and management that had previously been provided by the customers
themselves, or by other contractors. The Company also seeks to provide
innovative quality engineering and technical support for its drilling and
oilfield support operations. The Company provides engineering services to all of
its subsidiaries and to its worldwide customers for its Houston-based
engineering groups. The Company also provides platform engineering and other
integrated services to its customers in the North Sea from its Aberdeen,
Scotland-based engineering group.
RECENT DEVELOPMENTS
On March 8, 1996, the Company and Occidental Oil and Gas Corporation
("Occidental") entered into a stock purchase agreement pursuant to which the
Company has agreed to acquire all of the outstanding shares of common stock of
Exeter Drilling Company ("Exeter"), a subsidiary of Occidental. Exeter's
drilling fleet consists of 49 actively marketed rigs. In addition, Exeter has a
substantial inventory of rig components. The majority of its active fleet is
composed of rigs operating in the Rocky Mountains. A subsidiary of Exeter, J.W.
Gibson Well Service Company, currently operates 78 workover and well-servicing
rigs in the Rocky Mountains, the mid-continent region of North America and New
Mexico. The transaction is valued at
4
<PAGE> 6
approximately $22 million plus the amount of Exeter's consolidated working
capital at closing. The transaction was consummated on April 30, 1996.
USE OF PROCEEDS
Except as otherwise set forth in a Prospectus Supplement, the net proceeds
from the sale of the Securities will be used for general corporate purposes,
including working capital, investment in subsidiaries, the repayment of existing
debt, possible future business acquisitions and/or the repurchase of shares of
Common Stock. The precise amounts and timing of the application of such net
proceeds for such corporate purposes will depend upon a variety of factors,
including the Company's funding requirements and the availability of alternative
sources of funding. The Company routinely reviews acquisition opportunities. Any
proposal to use proceeds from any offering of Securities in connection with an
acquisition will be disclosed in the Prospectus Supplement relating to such
offering.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods set forth
below has been computed on a consolidated basis and should be read in
conjunction with the Company's consolidated financial statements (including the
notes thereto) set forth or incorporated by reference in the Company's annual
report on Form 10-K for the fiscal year ended September 30, 1995 and the
Company's quarterly report on Form 10-Q for the fiscal quarter ended December
31, 1995.
<TABLE>
<CAPTION>
THREE MONTHS ENDED FISCAL YEARS ENDED SEPTEMBER 30,
DECEMBER 31, ------------------------------------
1995 1995 1994 1993 1992 1991
------------------ ---- ---- ---- ---- ----
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Ratio of Earnings to Fixed
Charges......................... 7.50 6.90 1.55 4.66 5.95 6.30
</TABLE>
For purposes of computing the ratio of earnings to fixed charges,
"earnings" consist of pretax income from continuing operations plus fixed
charges (excluding capitalized interest). Fixed charges represent interest
incurred (whether expensed or capitalized), amortization of debt expense, and
that portion of rental expense on operating leases deemed to be the equivalent
of interest. No Preferred Stock was outstanding during any of the periods
presented and, as a result, the ratio of earnings to combined fixed charges and
Preferred Stock dividends was the same as the ratio of earnings to fixed
charges.
5
<PAGE> 7
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may not apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Senior Debt Securities are to be issued under an Indenture (the "Senior
Indenture") to be entered into between the Company and Marine Midland Bank (the
"Trustee"), as trustee. The Subordinated Debt Securities are to be issued under
a separate Indenture (the "Subordinated Indenture"), to be entered into between
the Company and the Trustee, as trustee. The Senior Indenture and the
Subordinated Indenture are sometimes referred to collectively herein as the
"Indentures." The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the Indentures do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Indentures applicable to a particular
series of Debt Securities, including the definitions therein of certain terms.
Copies of the forms of the Indentures are filed as exhibits to the Registration
Statement of which this Prospectus is a part, and the following summary is
qualified in its entirety by reference to such exhibits. See "Available
Information." Wherever particular Sections, Articles or defined terms of the
Indentures are referred to, it is intended that such Sections, Articles or
defined terms shall be incorporated herein by reference. Article and Section
references used herein are references to the applicable Indenture. Capitalized
terms not otherwise defined herein shall have the meaning given in the
Indentures.
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and each Indenture provides that Debt
Securities may be issued thereunder from time to time in one or more series.
Unless otherwise specified in the applicable Prospectus Supplement, the Senior
Debt Securities, when issued, will be unsecured and unsubordinated obligations
of the Company and will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company. The Subordinated Debt Securities,
when issued, will be subordinated in right of payment to the prior payment in
full of all Senior Debt (as defined below) of the Company, as described under
"Description of Debt Securities -- Subordination of Subordinated Debt
Securities" and in the Prospectus Supplement applicable to an offering of
Subordinated Debt Securities. The Debt Securities will be payable in currency of
the United States or in such other foreign currency, currency unit or composite
currency as may be specified in the applicable Prospectus Supplement.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities offered thereby (the "Offered Debt Securities"), which shall set
forth whether the Offered Debt Securities shall be Senior Debt Securities or
Subordinated Debt Securities, and shall further set forth (to the extent
applicable) the following terms of the Offered Debt Securities: (1) the title of
the Offered Debt Securities; (2) any limit on the aggregate principal amount of
the Offered Debt Securities; (3) the Person to whom any interest on the Offered
Debt Securities will be payable, if other than the Person in whose name such
Offered Debt Securities are registered on any Regular Record Date; (4) the date
or dates, or the method or methods (and related procedures) by which such date
or dates will be determined or extended, on which the principal of the Offered
Debt Securities will be payable; (5) the rate or rates per annum (which may be
fixed, floating or adjustable) at which the Offered Debt Securities will bear
interest, if any, or the formula pursuant to which such rate or rates shall be
determined, the date or dates from which such interest will accrue and the dates
on which such interest, if any, will be payable and the Regular Record Dates for
such interest payment dates; (6) whether the Offered Debt Securities will be
secured; (7) the place or places where principal of (and premium, if any) and
interest, if any, on the Offered Debt Securities will be payable; (8) if
applicable, the price at which, the periods within which and the terms and
conditions upon which the Offered Debt Securities may be redeemed in whole or in
part at the option of the Company; (9) if applicable, any obligation of the
Company to redeem or purchase Offered Debt Securities pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which and the terms and
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conditions upon which the Offered Debt Securities will be redeemed or purchased,
in whole or in part; (10) if applicable, the terms of any right to convert or
exchange the Offered Debt Securities into Securities or other securities of the
Company (provided, however, that any such other securities issuable upon
conversion or exchange of Debt Securities will be subject to registration under
the Securities Act or an applicable exemption therefrom); (11) if other than
denominations of $1,000 and any integral multiple thereof (or the equivalent
thereof in one or more foreign currencies, currency units or composite
currencies), the denominations in which the Offered Debt Securities will be
issuable; (12) if the amount of payments of principal of (or premium, if any) or
interest, if any, on the Offered Debt Securities may be determined with
reference to one or more indices, the manner in which such amounts will be
determined; (13) if other than currency of the United States, one or more
foreign currencies, currency units or composite currencies in which the Offered
Debt Securities are to be denominated; (14) if other than the coin or currency
in which the Offered Debt Securities are to be denominated, the coin or currency
in which payment of the principal of or interest on the Offered Debt Securities
shall be payable; (15) the portion of the principal amount of the Offered Debt
Securities, if other than the principal amount thereof, payable upon
acceleration of maturity thereof; (16) whether all or any part of the Offered
Debt Securities will be issued in the form of a Global Security or Securities
and, if so, the depositary for, and other terms relating to, such Global
Security or Securities; (17) any event or events of default applicable with
respect to the Offered Debt Securities in addition to those provided in the
Indentures; (18) any other covenant or warranty included for the benefit of the
Offered Debt Securities in addition to (and not inconsistent with) those
included in the Indentures for the benefit of Debt Securities of all series, or
any other covenant or warranty included for the benefit of the Offered Debt
Securities in lieu of any covenant or warranty included in the Indentures for
the benefit of Debt Securities of all series, or any provision that any covenant
or warranty included in the Indentures for the benefit of Debt Securities of all
series shall not be for the benefit of the Offered Debt Securities, or any
combination of such covenants, warranties or provisions; (19) any restriction or
condition on the transferability of the Offered Debt Securities; (20) any
authenticating or paying agents, registrars, conversion agents or any other
agents with respect to the Offered Debt Securities; and (21) any other terms of
the Offered Debt Securities. (Indentures, Section 301.) Debt Securities may also
be issued under the Indentures upon the exercise of Warrants. See "Description
of Warrants."
Debt Securities may be issued at a discount from their stated principal
amount. Certain United States federal income tax considerations applicable to
any Debt Security issued with original issue discount (an "Original Issue
Discount Security") may be described in an applicable Prospectus Supplement.
If the purchase price of any of the Debt Securities is denominated in a
foreign currency, currency unit or composite currency or if the principal of
(and premium, if any) and interest on any series of Debt Securities is payable
in one or more foreign currencies, currency units or composite currencies, the
restrictions, elections, general tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such foreign
currencies, currency units or composite currencies will be set forth in an
applicable Prospectus Supplement.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities are to be issued as registered securities without
coupons in denominations of $1,000 or any integral multiple of $1,000 (or the
equivalent thereof in one or more foreign currencies, currency units or
composite currencies). (Indentures, Section 302.) No service charge will be made
for any transfer or exchange of such Offered Debt Securities, but the Company or
the Trustee may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Indentures, Section 305.)
Since the Company is a holding company, the rights of the Company, and
hence the rights of creditors of the Company (including the Holders of the Debt
Securities), to participate in any distribution of the assets of any subsidiary
upon its liquidation or reorganization or otherwise is necessarily subject to
the prior claims of creditors of such subsidiary, except to the extent that
claims of the Company itself as a creditor of such subsidiary may be recognized.
Generally, the Debt Securities will be effectively subordinated to all existing
and future indebtedness of the Company's operating subsidiaries.
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The Indentures do not contain any provisions that limit the ability of the
Company or any subsidiary to incur indebtedness or that afford Holders of the
Debt Securities protection in the event of a highly leveraged or similar
transaction involving the Company or any subsidiary.
Other Indebtedness. Certain of the Company's existing debt instruments
impose, and future debt instruments may impose, certain restrictions on the
Company, including restrictions on the payment of dividends and certain business
combinations, and require the Company to maintain certain financial ratios. The
Company is a party to note purchase agreements (the "Note Purchase Agreements")
with John Hancock Mutual Life Insurance Company (together with John Hancock
Variable Life Insurance Company, "Hancock") relating to the Company's 9.18%
Senior Secured Notes due July 31, 2006 (the "9.18% Notes") and its 10.25% Senior
Secured Notes due January 31, 1997 (the "10.25% Notes" and, together with the
9.18% Notes, the "Notes"). At March 31, 1996, there were outstanding $40.0
million and $9.0 million of 9.18% and 10.25% Notes, respectively. The Note
Purchase Agreements limit additional borrowings, liens, dividends and other
payments in respect of capital stock, and transactions with affiliates by the
Company. In particular, the Company may not: (1) fail to maintain Hancock's
senior position in all of the assets or property of the Company or any
subsidiary that are subject to the security interest of Hancock (which assets
and property are principally located in the United Kingdom), or (2) pay
dividends, except that the Company may pay dividends if its cumulative dividends
plus certain other payments since March 31, 1989 do not exceed 50% of its
cumulative net income since March 31, 1989 plus the proceeds of any offering of
equity securities that are not redeemable at the option of the holder.
The Note Purchase Agreements require that the Company comply with certain
financial covenants on a consolidated basis, the most restrictive of which
requires that consolidated working capital be in excess of $5.0 million.
Proceeds from the sale of certain assets must be used to prepay the Notes to the
extent that an amount equal to such proceeds are not invested by the Company
during a two-year period. The Notes are collateralized by the pledge of all the
shares and assets of the Company's subsidiaries operating in the North Sea and
of all the shares of one of the Company's subsidiaries operating in the Gulf of
Mexico and are guaranteed by the Company and one of its subsidiaries.
During 1995, a subsidiary of the Company entered into a revolving loan
agreement with a financial institution whereby it can borrow up to $20.0 million
for the construction of certain drilling equipment. The loan is guaranteed by
the Company and bears interest at 90-day LIBOR plus .75%. As of March 31, 1996,
the amount outstanding under this loan was approximately $8.8 million.
During 1993, 1991 and 1990, subsidiaries of the Company entered into three
separate loan agreements with a financial institution, under which it borrowed
$4.9 million, $5.1 million and $8.3 million, respectively, to finance the
construction of three new rigs. The loans bear interest at 90-day LIBOR plus
.75%. As of March 31, 1996, the aggregate amount outstanding under these loans
was approximately $6.1 million.
The Company has available lines of credit with a number of banks that
permit borrowings of up to $65.8 million at interest rates generally not to
exceed, at the option of the Company, each bank's prime rate or LIBOR plus .75%.
Under these lines of credit, there were short-term borrowings of $35.0 million
outstanding and letters of credit outstanding of $14.7 million, in each case as
of March 31, 1996.
The information included in item 8 (entitled "Financial Statements and
Supplementary Data") in Part II of the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1995 is hereby specifically incorporated by
reference herein.
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise specified in the Prospectus Supplement, the following
events are defined in the Indentures as "Events of Default" with respect to Debt
Securities of any series: (a) failure to pay principal (including any sinking
fund payment) of, or premium (if any) on, any Debt Security of that series when
due (in the case of the Subordinated Indenture, whether or not payment is
prohibited by the subordination provisions) and such failure continues for a
period of 10 days; (b) failure to pay interest, if any, on any Debt Security of
that series when due and such failure continues for a period of 30 days; (c)
failure by the Company
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to perform any other covenant in the Indentures (other than a covenant included
in the Indentures solely for the benefit of a series of Debt Securities other
than that series) which continues for a period of 90 days after written notice
to the Company; (d) due acceleration of any indebtedness for borrowed money in a
principal amount in excess of $25.0 million for which the Company or any
Principal Subsidiary is liable, including Debt Securities of another series, or
a default by the Company or any Principal Subsidiary in the payment at final
maturity of outstanding indebtedness for borrowed money in a principal amount in
excess of $25.0 million, and such acceleration and default at maturity shall not
be waived, rescinded or annulled within 30 days after written notice to the
company thereof, unless such acceleration or default at maturity shall be
remedied or cured by the Company or such Principal Subsidiary or rescinded,
annulled or waived by the holders of such indebtedness, in which case such
acceleration or default at maturity shall not constitute an Event of Default
under this provision; and (e) certain events of insolvency, reorganization,
receivership or liquidation of the Company. (Indentures, Section 501.)
No Event of Default with respect to Debt Securities of a particular series
shall necessarily constitute an Event of Default with respect to Debt Securities
of any other series. If an Event of Default with respect to Debt Securities of
any series at the time Outstanding shall occur and be continuing, either the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Debt Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Debt Securities, such portion of
the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series to be due and payable immediately; provided,
however, that under certain circumstances the Holders of a majority in aggregate
principal amount of outstanding Debt Securities of that series may rescind or
annul such declaration and its consequences. (Indentures, Section 502.)
Reference is made to the Prospectus Supplement relating to any series of
Offered Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to the principal amount of such Original Issue
Discount Securities due on acceleration upon the occurrence of an Event of
Default and the continuation thereof.
The Trustee is not charged with knowledge of any Event of Default unless
written notice thereof shall have been given to the Trustee by the Company, the
Paying Agent or Holders of at least 25% in principal amount of the outstanding
Debt Securities of that series. (Indentures, Section 501.) Each Indenture
provides that the Trustee may withhold notice to the Holders of the Debt
Securities of any default (except in payment of principal (or premium, if any)
or interest, if any) if it considers it in the interest of the Holders of the
Debt Securities to do so. (Indentures, Section 602.) The Company will be
required to furnish to the Trustee annually a statement by one of certain
specified officers of the Company as to the compliance with all conditions and
covenants of the Indentures. (Indentures, Section 1004.)
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series will have the right, subject to certain limitations, to
direct 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 with respect to the Debt Securities of such series, and to waive certain
defaults. (Indentures, Sections 512 and 513.)
The Indentures provide that, in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and powers under the
Indentures, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs. (Indentures, Section 601.) Subject to such provisions,
the Trustee will be under no obligation to exercise any of its rights or powers
under the Indentures at the request of any of the Holders of Debt Securities
unless they shall have offered to the Trustee security or indemnity in form and
substance reasonably satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such request.
(Indentures, Section 603.)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indentures or for any remedy thereunder,
unless (a) such Holder shall have previously given to the Trustee written notice
of a continuing Event of Default, (b) the Holders of at least 25% in principal
amount of the outstanding Debt Securities of the same series shall have made
written request, and offered indemnity to the Trustee in form and substance
reasonably satisfactory to such Trustee, to institute such proceeding as
Trustee, (c) the Trustee shall not have received from the Holders of a majority
in principal amount of the
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outstanding Debt Securities of the same series a direction inconsistent with
such request, and (d) the Trustee shall have failed to institute such proceeding
within 60 days of the written request therefor. (Indentures, Section 507.)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for enforcement of payment of the principal of (or premium, if
any) or interest, if any, on such Debt Security on or after the respective due
dates expressed in such Debt Security, or of the right to convert such Debt
Security in accordance with the Indentures (if applicable). (Indentures, Section
508.)
MODIFICATION AND WAIVER
Each Indenture provides that, from time to time, the Company and the
Trustee, without the consent of the Holders of any series of Debt Securities,
may amend the Indenture or such series of Debt Securities for certain specified
purposes, including curing ambiguities or inconsistencies and making any such
change that does not adversely affect the rights of any Holder of such series of
Debt Securities. (Indentures, Section 901.) Modifications and amendments of the
Indentures may also be made by the Company and the Trustee, with the consent of
the Holders of not less than a majority of principal amount of each series of
the outstanding Debt Securities issued under the Indentures which is affected by
the modification or amendment; provided, however, that no such modification or
amendment may, without the consent of each Holder of such Debt Security affected
thereby: (1) change the Stated Maturity of the principal of or any installment
of principal or interest, if any, on any such Debt Security; provided, however,
that with the consent of the Holders of not less than 75% of the outstanding
Debt Securities of any series, the Company may postpone any interest payment in
respect of such series for a period not to exceed three years; (2) reduce the
principal amount of (or premium, if any) or the interest rate, if any, on any
such Debt Security or the principal amount due upon acceleration of any Original
Issue Discount Security; (3) change the place or currency of payment of
principal of (or premium, if any) or the interest, if any, on any such Debt
Security; (4) impair the right to institute suit for the enforcement of any such
payment on or with respect to any such Debt Security; (5) reduce the percentage
in principal amount of Debt Securities necessary to modify or amend the
Indentures; (6) in the case of the Subordinated Indenture, modify the
subordination provisions in a manner adverse to the holders of the Subordinated
Debt Securities; or (7) modify the foregoing requirements or reduce the
percentage of outstanding Debt Securities necessary to waive compliance with
certain provisions of the Indentures or to waive certain defaults. (Indentures,
Section 902.)
The holders of at least a majority of the aggregate principal amount of the
outstanding Debt Securities of any series may, on behalf of all Holders of that
series, waive compliance by the Company with any of the provisions of the
Indentures and waive any past default under the applicable Indenture, except a
default in the payment of principal (and premium, if any), or interest (if any)
or in the performance of certain covenants. (Indentures, Sections 908 and 513.)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to any series of Debt
Securities (including, in the case of Subordinated Debt Securities, the
provisions described under "Description of Debt Securities -- Subordination of
Subordinated Debt Securities" herein and except for the obligations to exchange
or register the transfer of such Debt Securities, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities, to maintain an office or
agency in respect of such Debt Securities, and to hold monies for payments in
trust) ("defeasance"), or (b) to be released from its obligations with respect
to any series of Debt Securities concerning the restrictions described under
"Description of Debt Securities -- Consolidation, Merger or Sale of Assets"
herein and any other covenants applicable to such Debt Securities (including, in
the case of Subordinated Debt Securities, the provisions described under
"Description of Debt Securities -- Subordination of Subordinated Debt
Securities" herein) which are subject to covenant defeasance ("covenant
defeasance"), and the occurrence of an event described and notice thereof in
clauses (c) and (d) under "Description of Debt Securities -- Events of Default
and Notice Thereof" (with respect to covenants subject to covenant defeasance)
shall no longer be an Event of Default, in each case, upon the irrevocable
deposit with the Trustee (or other qualifying trustee), in trust for such
purpose, of money and U.S. Government Obligations which through the payment of
principal
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and interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest, if any,
on such Debt Securities on the scheduled due dates therefor. Such a trust may
only be established if, among other things, (i) the Company has delivered to the
Trustee (A) in the case of defeasance, an Opinion of Counsel stating that (1)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (2) since the date of the Indenture, there has been
a change in the applicable United States federal income tax law, in case of
either (1) or (2) to the effect that the Holders of such Securities will not
recognize gain or loss for United States federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to United States federal income tax on the same
amount, in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur or (B) in the case of
covenant defeasance, an Opinion of Counsel to the effect that the Holders of
such Debt Securities will not recognize gain or loss for United States federal
income tax purposes as a result of such deposit and covenant defeasance and will
be subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit and
covenant defeasance had not occurred, (ii) no Event of Default or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under the applicable Indenture shall have occurred and be continuing on
the date of such deposit and (iii) in the case of Subordinated Debt Securities,
(x) no default in the payment of principal of (or premium, if any) or interest,
if any, on any Senior Debt beyond any applicable grace period shall have
occurred and be continuing, or (y) no other default with respect to any Senior
Debt shall have occurred and be continuing and shall have resulted in the
acceleration of such Senior Debt. The Company may exercise its defeasance option
with respect to such Debt Securities notwithstanding its prior exercise of its
covenant defeasance option. If the Company exercises its defeasance option,
payment of such Debt Securities may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of
such Debt Securities may not be accelerated by reference to the covenants noted
under clause (b) above. In the event the Company omits to comply with its
remaining obligations with respect to such Debt Securities under the applicable
Indenture after exercising its covenant defeasance option and such Debt
Securities are declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations on deposit with
the Trustee may, in certain circumstances, be insufficient to pay amounts due on
the Debt Securities of such series at the time of the acceleration resulting
from such Event of Default; however, the Company will remain liable in respect
of such payments. (Indentures, Article Thirteen.)
CERTAIN COVENANTS
Maintenance of Office or Agency. The Company will be required to maintain
an office or agency in each Place of Payment for each series of Debt Securities
for notice and demand purposes and for the purposes of presenting or
surrendering Debt Securities for payment or registration of transfer or
exchange. (Indentures, Section 1002.)
Paying Agents, Etc. If the Company acts as its own Paying Agent with
respect to any series of Debt Securities, on or before each due date of the
principal of or interest on any Debt Securities of that series, it will be
required to segregate and hold in trust for the benefit of the persons entitled
thereto a sum sufficient to pay such amount due and to notify the Trustee
promptly of its action or failure so to act. If the Company has one or more
Paying Agents for any series of Debt Securities, prior to each due date of the
principal of or interest on any Debt Securities of that series, it will deposit
with a Paying Agent a sum sufficient to pay such amount, and the Company will
promptly notify the Trustee of its action or failure so to act (unless such
Paying Agent is the Trustee). All moneys paid by the Company to a Paying Agent
for the payment of principal of and interest on any Debt Securities that remain
unclaimed for two years after such principal of and interest on any Debt
Securities has become due and payable may be repaid to the Company, and
thereafter the holder of such Debt Securities may look only to the Company for
payment thereof. (Indentures, Section 1003.)
Restrictive Covenants. Any restrictive covenants applicable to any series
of Debt Securities will be described in an applicable Prospectus Supplement.
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CONSOLIDATION, MERGER OR SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or sell
its property and assets as, or substantially as, an entirety to any Person and
may not permit any Person to merge into or consolidate with the Company unless
(i) either the Company will be the resulting or surviving entity or any
successor or purchaser is a corporation, partnership or trust organized under
the law of the United States of America, any State or the District of Columbia,
and any such successor or purchaser expressly assumes the Company's obligations
under the Debt Securities in a supplemental indenture, (ii) immediately after
giving effect to the transaction no Event of Default shall have occurred and be
continuing, and (iii) certain other conditions are met. (Indentures, Section
801.)
CONVERSION RIGHTS
The terms on which Debt Securities of any series may be convertible or
exchangeable into Securities or other securities of the Company will be set
forth in the Prospectus Supplement relating thereto (provided, however, that any
such other securities issuable upon conversion or exchange of Debt Securities
will be subject to registration under the Securities Act or an applicable
exemption therefrom). Such terms shall include provisions as to whether
conversion or exchange is mandatory, at the option of the holder or at the
option of the Company, and may include provisions pursuant to which the number
of Securities or other securities of the Company, as the case may be, to be
received by the holders of Debt Securities would be calculated according to the
market price of such securities as of a time stated in the Prospectus
Supplement. (Indentures, Section 301 and Article Twelve.)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Debt, including the Senior Debt Securities. (Subordinated
Indenture, Section 1501.) Upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, marshaling of assets or
any bankruptcy, insolvency, debt restructuring or similar proceedings in
connection with any insolvency or bankruptcy proceeding of the Company, the
holders of Senior Debt will first be entitled to receive payment in full of
principal of (and premium, if any) and interest, if any, on such Senior Debt
before the holders of the Subordinated Debt Securities will be entitled to
receive or retain any payment in respect of the principal of (and premium, if
any) or interest, if any, on the Subordinated Debt Securities. (Subordinated
Indenture, Section 1502.)
By reason of such subordination, in the event of liquidation or insolvency,
creditors of the Company who are not Holders of Senior Debt may recover less,
ratably, than Holders of Senior Debt and may recover more, ratably, than the
Holders of the Subordinated Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon (including any amounts due upon acceleration) before the Holders of
the Subordinated Debt Securities will be entitled to receive any payment upon
the principal of (or premium, if any) or interest, if any, on the Subordinated
Debt Securities. (Subordinated Indenture, Section 1503.)
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Subordinated Debt Securities may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Debt, or an event of default with respect to any Senior Debt resulting in the
acceleration of the maturity thereof, or if any judicial proceeding shall be
pending with respect to any such default. (Subordinated Indenture, Section
1504.) For purposes of the subordination provisions, the payment, issuance and
delivery of cash, property or securities (other than stock and certain
subordinated securities of the Company) upon conversion of a Subordinated Debt
Security will be deemed to constitute payment on account of the principal of
such Subordinated Debt Security. (Subordinated Indenture, Section 1516.)
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"Debt" means (without duplication and without regard to any portion of
principal amount that has not accrued and to any interest component thereof
(whether accrued or imputed) that is not due and payable) with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed; (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses; (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person; (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business); (v) every
capital lease obligation of such Person; (vi) the maximum fixed redemption or
repurchase price of redeemable stock of such Person at the time of
determination; and (vii) every obligation of the type referred to in clauses (i)
through (vi) of another Person and all dividends of another Person the payment
of which, in either case, such Person has guaranteed or is responsible or
liable, directly or indirectly, as obligor or otherwise.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company to the extent that such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of the Subordinated Indenture or
thereafter incurred, unless, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Subordinated Debt
Securities or to other Debt which is pari passu with, or subordinated to, the
Subordinated Debt Securities; provided, however, that Senior Debt shall not be
deemed to include (i) the Subordinated Debt Securities or (ii) the Debt referred
to in clause (vi) of the definition of Debt.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Debt, which may include indebtedness that is senior to the
Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities, when issued, will constitute Senior Debt.
The indebtedness represented by the Notes, and all borrowings under revolving
credit and other credit facilities maintained by the Company or its
subsidiaries, will also constitute Senior Debt. At March 31, 1996, Senior Debt
outstanding aggregated approximately $122.0 million. See "Description of Debt
Securities -- General -- Other Indebtedness."
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a depositary or its nominee. In
such a case, one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of Outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Unless and until it is exchanged in whole or in part for
Debt Securities in definitive registered form, a Global Security may not be
registered for transfer or exchange except as a whole by the depositary for such
Global Security to a nominee for such depositary and except in the circumstances
described in the applicable Prospectus Supplement. (Indentures, Sections 204 and
305.)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in an applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a depositary will be represented by a Global Security registered
in the name of such depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
depositary for such Global Security, the depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
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of the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such depositary or its nominee
("Participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in such Global Securities will be limited to Participants or Persons
that may hold interests through Participants. Ownership of beneficial interests
by Participants in such Global Security will be shown on, and the transfer of
that ownership interest will be effected only through, records maintained by the
depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through Participants will
be shown on, and the transfer of that ownership interest within such Participant
will be effected only through, records maintained by such Participants. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in a Global Security.
So long as the depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Unless otherwise specified in an applicable Prospectus
Supplement, owners of beneficial interests in such Global Securities will not be
entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in certificated form, and
will not be considered the owners or Holders thereof for any purpose under the
applicable Indenture. Accordingly, each Person owning a beneficial interest in
such Global Security must rely on the procedures of the depositary and, if such
Person is not a Participant, on the procedures of the Participant through which
such Person owns its interest, to exercise any rights of a Holder under the
applicable Indenture. The Company understands that, under existing industry
practices, if the Company requests any action of Holders or an owner of a
beneficial interest in such Global Security desires to give any notice or take
any action a Holder is entitled to give or take under the applicable Indenture,
the depositary would authorize the Participants to give such notice or take such
action, and Participants would authorize beneficial owners owning through such
Participants to give such notice or take such action or would otherwise act upon
the instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in an applicable Prospectus Supplement. Payment
of principal of, and any premium or interest on, Debt Securities registered in
the name of or held by a depository or its nominee will be made to the
depository or its nominee, as the case may be, as the registered owner or the
holder of the Global Security representing such Debt Securities. None of the
Company, the Trustee, any Paying Agent, or the Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security for such Debt Securities or for maintaining,
supervising, or reviewing any records relating to such beneficial ownership
interests.
THE TRUSTEE
Each Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company within three months of, or subsequent
to, a default by the Company to make payment in full of principal of or interest
on any series of Debt Securities when and as the same becomes due and payable,
to obtain payment of claims, or to realize for its own account on property
received in respect of any such claim as security or otherwise, unless and until
such default is cured. (Indentures, Section 613.)
The Trustee or its affiliates may act as depositary for funds of, make
loans to and perform other services for, or may be a customer of, the Company in
the ordinary course of business. The Trustee and Hong Kong and Shanghai Banking
Corporation Limited, an affiliate of the Trustee, are lenders under two
short-term borrowing facilities and two letter of credit agreements. As of March
31, 1996, the amount outstanding thereunder aggregated approximately $25.8
million.
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GOVERNING LAW
The Indentures are governed by and shall be construed in accordance with
the laws of the State of New York, but without regard to principles of conflicts
of laws. (Indenture, Section 112.)
DESCRIPTION OF CAPITAL STOCK AND DEPOSITARY SHARES
AUTHORIZED CAPITAL STOCK
Pursuant to the Company's Restated Certificate of Incorporation (the
"Certificate of Incorporation"), the authorized capital stock of the Company
consists of 200,000,000 shares of Common Stock, par value $.10 per share (the
"Common Stock"), 8,000,000 shares of Class B Stock, par value $.10 per share
(the "Class B Stock"), none of which are outstanding, and 10,000,000 shares of
Preferred Stock, par value $.10 per share (the "Preferred Stock"), none of which
are outstanding.
As of March 31, 1996, there were: (a) 85,049,440 shares of Common Stock
outstanding, (b) 20,549,320 shares of Common Stock reserved for issuance
pursuant to option and employee benefit plans and (c) 2,600,000 shares of Common
Stock reserved for issuance upon exercise of outstanding warrants.
PREFERRED STOCK
The following description sets forth certain general terms and provisions
of the Preferred Stock to which any Prospectus Supplement may relate. Certain
other terms and the particular terms of a specific series of Preferred Stock
will be described in the Prospectus Supplement relating to that series. If so
indicated in the applicable Prospectus Supplement, the terms of any such series
may differ from the terms set forth below. The summary description of certain
provisions of the Preferred Stock set forth below and in any Prospectus
Supplement does not purport to be complete and is subject to and qualified in
its entirety by reference to the Certificate of Incorporation (as it may be
amended from time to time) and the certificate of designation relating to each
such series of Preferred Stock (the "Certificate of Designation"), which will be
filed as an exhibit to or incorporated by reference in the Registration
Statement of which this Prospectus forms a part at or prior to the time of
issuance of such series of the Preferred Stock.
General. Under the Certificate of Incorporation, the Board of Directors of
the Company is authorized without further stockholder action to issue from time
to time up to 10,000,000 shares of Preferred Stock and to fix and determine the
voting powers, designations, preferences and relative, participating, optional
or other special rights and qualifications, limitations or restrictions of any
series of such Preferred Stock, including, without limitation, any voting rights
thereof, the dividends payable in respect of such series and the right of the
shares of such series to convert into or be exchanged for Securities or other
securities of the Company (provided, however, that any such other securities
issuable upon conversion or exchange of Preferred Stock will be subject to
registration under the Securities Act or an applicable exemption therefrom).
Thus, the Board of Directors of the Company, without stockholder approval, could
authorize the issuance of Preferred Stock with voting, conversion and other
rights that could adversely affect the voting power (if any) and other rights of
other series of the Preferred Stock. As of the date of this Prospectus, the
Company has no Preferred Stock outstanding.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in the Prospectus
Supplement relating to a particular series of Preferred Stock offered thereby.
The Prospectus Supplement will set forth with specificity: (1) the designation
and the number of shares offered; (2) the amount of liquidation preference per
share; (3) the price at which such Preferred Stock will be issued; (4) the
dividend rate (or method of calculation), if any, the dates on which such
dividends will be payable, whether such dividends will be cumulative or
noncumulative and, if cumulative, the dates from which dividends will commence
to cumulate; (5) any redemption or sinking fund provisions; (6) the terms of any
rights to convert or exchange the Preferred Stock into Securities or other
securities of the Company; (7) whether the Company has elected to offer
Depositary Shares (as defined below); and (8) any additional voting, dividend,
liquidation, redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
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As indicated elsewhere herein (see "Description of Debt
Securities -- General"), because the Company is a holding company, its rights
and the rights of holders of its securities, including the holders of Preferred
Stock, to participate in the distribution of assets of any subsidiary of the
Company upon the latter's liquidation or recapitalization will be subject to the
prior claims of such subsidiary's creditors and preferred stockholders, except
to the extent the Company may itself be a creditor with recognized claims
against such subsidiary or a holder of preferred stock of such subsidiary. The
Preferred Stock shall, with respect to dividend rights and rights upon winding
up and dissolution of the Company, rank prior to the Common Stock and the Class
B Stock.
The Preferred Stock offered hereby will be issued in one or more series.
The holders of Preferred Stock will have no preemptive rights. Preferred Stock
will be fully paid and nonassessable upon issuance against full payment of the
purchase price therefor. Unless otherwise specified in the Prospectus Supplement
relating to a particular series of Preferred Stock, each series of Preferred
Stock offered hereby will rank on a parity as to dividends and liquidation
rights in all respects with each other series of Preferred Stock. The Prospectus
Supplement will contain, if applicable, a description of material United States
federal income tax consequences relating to the purchase and ownership of the
series of Preferred Stock offered by such Prospectus Supplement.
Dividend Rights. Unless otherwise set forth in an applicable Prospectus
Supplement, holders of the Preferred Stock of each series will be entitled to
receive when, as and if declared by the Board of Directors of the Company, out
of funds legally available therefor, cash dividends at such rates and on such
dates as are set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Different series of the Preferred Stock may be entitled to
dividends at different rates or based upon different methods of determination.
Such rate may be fixed or variable or both. Each such dividend will be payable
to the holders of record as they appear on the stock books of the Company on
such record dates as will be fixed by the Board of Directors of the Company or a
duly authorized committee thereof. Dividends on any series of the Preferred
Stock may be cumulative or noncumulative, as provided in the Prospectus
Supplement relating thereto.
Rights Upon Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to holders of Common Stock or the Class B Stock or any other
class of stock ranking junior to such series of the Preferred Stock upon
liquidation, liquidating distributions in the amount set forth in the Prospectus
Supplement relating to such series of Preferred Stock.
Redemption. One or more series of the Preferred Stock may be redeemable, in
whole or in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to each such series.
Conversion and Exchange. The terms, if any, on which shares of any series
of Preferred Stock are convertible into or exchangeable for Securities or other
securities of the Company will be set forth in the Prospectus Supplement
relating thereto (provided, however, that any such other securities issuable
upon conversion or exchange of Preferred Stock will be subject to registration
under the Securities Act or an applicable exemption therefrom). Such terms may
include provisions for conversion or exchange, either mandatory, at the option
of the holder, or at the option of the Company, in which case the number of
Securities or other securities of the Company to be received by the holders of
Preferred Stock would be calculated as of a time and in the manner stated in the
Prospectus Supplement.
Transfer Agent and Registrar. The transfer agent, registrar and dividend
disbursement agent for the Preferred Stock will be designated in the applicable
Prospectus Supplement. The registrar for shares of Preferred Stock will send
notices to stockholders of any meetings at which holders of the Preferred Stock
have the right to elect directors of the Company or to vote on any other matter.
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Voting Rights. The holders of Preferred Stock of a series offered hereby
will not have any voting rights except as indicated in the Prospectus Supplement
relating to such series of Preferred Stock or as required by applicable law.
DEPOSITARY SHARES
General. The Company may, at its option, elect to offer receipts for
fractional interests ("Depositary Shares") in Preferred Stock, rather than full
shares of Preferred Stock. In such event, receipts ("Depositary Receipts") for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of Preferred Stock) of
a share of a particular series of Preferred Stock, will be issued as described
below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a depositary to be named by the Company in a Prospectus
Supplement (the "Depositary"). Subject to the terms of the Deposit Agreement,
each owner of a Depositary Share will be entitled, in proportion to the
applicable fraction of a share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred Stock represented
thereby (including dividend, voting, redemption, subscription and liquidation
rights). The following summary of certain provisions of the Deposit Agreement
does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, all the provisions of the Deposit Agreement, including
the definitions therein of certain terms. Whenever particular sections of the
Deposit Agreement are referred to, it is intended that such sections shall be
incorporated herein by reference. Copies of the forms of Deposit Agreement and
Depositary Receipt are filed as exhibits to the Registration Statement of which
this Prospectus is a part, and the following summary is qualified in its
entirety by reference to such exhibits.
Dividends and Other Distributions. The Depositary will distribute all cash
dividends or other cash distributions received in respect of the Preferred Stock
to the record holders of Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares in
an equitable manner, unless the Company, after consultation with the Depositary,
determines that it is not feasible to make such distribution, in which case the
Depositary may sell such property and distribute the net proceeds from such sale
to such holders.
Redemption of Depositary Shares. If a series of Preferred Stock represented
by Depositary Shares is subject to redemption, the Depositary Shares will be
redeemed from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock held by the
Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect to
such series of the Preferred Stock. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot, pro rata
or another equitable method.
Withdrawal of Preferred Stock. Any holder of Depositary Shares may, upon
surrender of the Depositary Receipts therefor to the Depositary, receive the
number of whole shares of the related series of Preferred Stock and any money or
other property represented by such Depositary Receipts. Holders of Depositary
Shares making such withdrawals will be entitled to receive whole shares of
Preferred Stock on the basis set forth in the related Prospectus Supplement for
such series of Preferred Stock, but holders of such whole shares of Preferred
Stock will not thereafter be entitled to deposit such Preferred Stock under the
Deposit Agreement or to receive Depositary Receipts therefor. If the Depositary
Shares surrendered by the holder in connection with such withdrawal exceed the
number of Depositary Shares that represent the number of whole shares of
Preferred Stock to be withdrawn, the Depositary will deliver to such holder at
the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
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Voting the Preferred Stock. Upon receipt of notice of any meeting at which
the holders of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of the
Preferred Stock represented by such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all reasonable action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of the Preferred Stock to the extent
it does not receive specific instructions from the holder of Depositary Shares
representing such Preferred Stock.
Amendment and Termination of Deposit Agreement. The form of Depositary
Receipt evidencing the Depositary Shares and any provision of the Deposit
Agreement may at any time be amended by agreement between the Company and the
Depositary. However, any amendment that imposes any fees, taxes or other charges
payable by holders of Depositary Receipts (other than taxes and other
governmental charges, fees and other expenses payable by such holders as stated
under "Charges of Depositary"), or that otherwise prejudices any substantial
existing right of holders of Depositary Receipts, will not take effect as to
outstanding Depositary Receipts until the expiration of 90 days after notice of
such amendment has been mailed to the record holders of outstanding Depositary
Receipts. Every holder of Depositary Receipts at the time any such amendment
becomes effective shall be deemed to consent and agree to such amendment and to
be bound by the Deposit Agreement, as so amended. In no event may any amendment
impair the right of any owner of Depositary Shares, subject to the conditions
specified in the Deposit Agreement, upon surrender of the Depositary Receipts
evidencing such Depositary Shares to receive shares of the Preferred Stock and
any money or other property represented thereby, except in order to comply with
mandatory provisions of applicable law.
Whenever so directed by the Company, the Depositary will terminate the
Deposit Agreement by mailing notice of such termination to the record holders of
all Depositary Receipts then outstanding at least 30 days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
the Deposit Agreement if at any time 45 days shall have expired after the
Depositary shall have delivered to the Company a written notice of its election
to resign and a successor depositary shall not have been appointed and accepted
its appointment. If any Depositary Receipts remain outstanding after the date of
termination, the Depositary thereafter will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the holders
thereof, and will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement except that
the Depositary will continue (i) to collect dividends on the Preferred Stock and
any other distributions with respect thereto and (ii) to deliver the Preferred
Stock together with such dividends and distributions and the net proceeds of any
sales of rights, preferences, privileges or other property, without liability
for interest thereon, in exchange for Depositary Receipts surrendered. At any
time after the expiration of two years from the date of termination, the
Depositary may sell the Preferred Stock then held by it at public or private
sales, at such place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, together with any money and
other property then held by it, without liability for interest thereon, for the
pro rata benefit of the holders of Depositary Receipts which have not been
surrendered.
Resignation and Removal of Depositary. The Depositary may resign at any
time by delivering to the Company notice of its election to do so, and the
Company may at any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment. Such successor Depositary must be appointed within 45 days
after delivery of the notice of resignation or removal and must be a bank or
trust company, or an affiliate thereof, having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
Charges of Depositary. The Company will pay charges of the Depositary in
connection with the initial deposit of the Preferred Stock and issuance of
Depositary Receipts, all withdrawals of shares of Preferred Stock by owners of
Depositary Shares, any redemption of the Preferred Stock and the distribution of
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information to holders of the Depositary Receipts. Holders of Depositary
Receipts will pay other transfer and other taxes and governmental charges and
such other charges as are expressly provided in the Deposit Agreement to be at
their expense.
Miscellaneous. The Depositary will forward all reports and communications
from the Company which are delivered to the Depositary and which the Company is
required or otherwise determines to furnish to the holders of the Preferred
Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Depositary under
the Deposit Agreement are limited to performing its duties thereunder without
negligence or bad faith. The obligations of the Company under the Deposit
Agreement are limited to performing its duties thereunder in good faith. Neither
the Company nor the Depositary will be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. The Company and the Depositary may rely
upon the advice of counsel or accountants, or upon information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Receipts
or other persons believed to be competent and on documents believed to be
genuine.
COMMON STOCK
General. Holders of shares of Common Stock are entitled to participate
equally on a per share basis in such dividends as the Board of Directors of the
Company may from time to time declare out of funds of the Company legally
available for the payment of dividends.
Holders of shares of Common Stock are entitled to one vote per share.
Holders of shares of Common Stock do not have the right to cumulate votes in the
election of directors. A special meeting of stockholders may be called by the
Board of Directors of the Company and shall be called upon the written request
of the holders of not less than 50% of the Company's stock then outstanding and
entitled to vote. Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken without prior notice by written
consent only if such consent is signed by each stockholder entitled to vote on
the matter.
Stockholders of the Company do not have preemptive rights to subscribe for
shares of any class of its capital stock.
Dividends. The Company has neither declared nor paid any cash dividends on
its Common Stock since 1982. Certain debt instruments (see "Description of Debt
Securities -- Other Indebtedness") restrict, and the terms of any series of Debt
Securities issued pursuant to this Prospectus may restrict, the Company's
ability to pay dividends. Under the terms of existing instruments, the Company
may pay dividends to the extent that cumulative dividends plus certain other
payments since March 31, 1989 do not exceed 50% of the Company's cumulative net
income since March 31, 1989 plus the proceeds of any offering of equity
securities of the Company that are not redeemable at the option of the holder of
the securities. As of December 31, 1995 retained earnings available for
dividends totaled approximately $150.0 million. The Company does not intend to
pay any cash dividends on its Common Stock for the foreseeable future.
Transfer Agent and Registrar. The transfer agent and registrar for the
Common Stock is First Chicago Trust Company of New York.
The foregoing descriptions of the Preferred Stock and Common Stock are
summaries, and reference is herein made to the detailed provisions of the
Certificate of Incorporation (including, without limitation, the Certificate of
Designation relating to any series of Preferred Stock, filed hereafter and
incorporated by reference herein) and the Company's Amended and Restated By-Laws
(the "By-Laws"), copies of which are filed as exhibits to the Registration
Statement.
CERTAIN CERTIFICATE OF INCORPORATION AND BY-LAW PROVISIONS
Under Delaware law, a corporation may include provisions in its certificate
of incorporation which relieve its directors of monetary liability for breach of
their fiduciary duty, except under certain circumstances which
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include a breach of a director's duty of loyalty, acts or omissions not in good
faith or involving intentional misconduct and a knowing violation of law, or any
transaction from which the director derived an improper personal benefit. The
Certificate of Incorporation provides that the Company's directors are not
liable to the Company or its stockholders for monetary damages for breach of
their fiduciary duties, subject to the exceptions specified by Delaware law.
Delaware law also provides that when an officer, director, employee or
agent of a corporation is a party to, or its threatened to be made a party to,
any action, the corporation may indemnify such persons against expenses
(including attorneys' fees) and judgments, fines and amounts paid in settlement,
if that person acted in good faith and he or she reasonably believed such
actions were in or not opposed to the best interests of the corporation, and
were not unlawful. Delaware law also provides that a person to be indemnified
has the right to be advanced any expenses incurred in his defense against any
action prior to the final disposition thereof and upon such terms as the board
of directors may determine. The Certificate of Incorporation provides these
rights to the Company's officers, directors, employees or agents. Certain
directors and officers of the Company are also parties to employment agreements
which provide for these and other indemnification rights in accordance with
Delaware law.
Under Delaware law, the power to adopt, amend and repeal by-laws is
conferred solely on the stockholders unless the corporation's certificate of
incorporation also confers this power upon its board of directors. Under the
Certificate of Incorporation the Board of Directors of the Company has been
granted this power. The Certificate of Incorporation and By-laws also provide
that the number of directors shall be fixed by resolution of the Board of
Directors of the Company from time to time, but shall not be less than five nor
more than eleven. These provisions, in addition to the staggered Board of
Directors discussed below and the existence of authorized but unissued capital
stock, may have the effect, either alone or in combination with each other, of
making more difficult or discouraging an acquisition of the Company deemed
undesirable by the Board of Directors of the Company.
Section 203 of the Delaware General Corporation Law ("Section 203")
prohibits Delaware corporations from engaging in a wide range of specified
transactions with any interested stockholder, defined to generally include,
among others, any person or entity who in the last three years obtain 15% or
more of any class or series of stock entitled to vote generally in the election
of directors, unless, among other exceptions, the transaction is approved by (i)
the board of directors prior to the date the interested stockholder obtained
such status or (ii) the holders of two-thirds of the outstanding shares of each
class or series of stock entitled to vote generally in the election of
directors, not including those shares owned by the interested stockholder. In
its By-laws, the Company has chosen to opt out of Section 203's provisions, and
therefore Section 203 does not apply to the Company.
The Certificate of Incorporation provides that the board of directors of
the Company shall be divided into three classes of directors. Each class of
directors serve staggered three-year terms. The classified board may make it
more difficult for any stockholder who is attempting to acquire the Company,
including a stockholder holding a majority of shares, to succeed. Such a
stockholder will be unable to force immediate changes in the composition of a
majority of the Board of Directors of the Company since the terms of
approximately one-third of the incumbent directors would expire each year and it
would require at least two annual meetings for stockholders to change a majority
of the Board of Directors.
DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase Debt Securities, Common Stock or
Preferred Stock. Warrants may be issued independently or together with any such
Securities and may be attached to or separate from such Securities. Warrants
will be issued under warrant agreements (each a "Warrant Agreement") to be
entered into between the Company and a warrant agent ("Warrant Agent") specified
in the applicable Prospectus Supplement. The Warrant Agent will act solely as an
agent of the Company in connection with the Warrants of a particular series and
will not assume any obligation or relationship of agency for or with holders or
beneficial owners of Warrants. The following sets forth certain general terms
and provisions of the Warrants offered hereby. Copies of the forms of Warrant
Agreements are filed as exhibits to
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the Registration Statement of which this Prospectus is a part and the following
summary is qualified in it entirety by reference to such exhibits. Further terms
of the Warrants and the applicable Warrant Agreement will be set forth in the
applicable Prospectus Supplement. If so indicated in the applicable Prospectus
Supplement, the terms of any Warrants may differ from the terms set forth below.
The Warrants will be denominated in U.S. dollars or in such foreign currency,
currency unit or composite currency as may be specified in the applicable
Prospectus Supplement.
Debt Warrant certificates will be exchanged for new Debt Warrant
certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Warrant Agent or any other office indicated in
the Prospectus Supplement. Prior to the exercise of their Debt Warrants, holders
of Debt Warrants exercisable for Debt Securities will not have any of the rights
of holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payments of principal (or premium, if any) or interest, if any, on
the Debt Securities purchasable upon such exercise. Prior to the exercise of
their Warrants to purchase Common Stock or Preferred Stock, holders of such
Warrants will not have any rights of holders of the Common Stock or Preferred
Stock purchasable upon such exercise and will not be entitled to dividend
payments, if any, or to exercise the voting rights of the Common Stock or
Preferred Stock purchasable upon such purchase.
The applicable Prospectus Supplement will describe the terms of any
Warrants in respect of which this Prospectus is being delivered, including,
where applicable, the following: (i) the title of such Warrants; (ii) the
aggregate number of such Warrants; (iii) the price or prices for which such
Warrants will be issued; (iv) the currency, currency unit or composite currency
in which the price for such Warrants will be payable; (v) the designation,
number and terms of the Debt Securities, Common Stock or Preferred Stock
purchasable upon exercise of such Warrants, and procedures pursuant to which
such numbers may be adjusted; (vi) the designation and terms of the Debt
Securities, Common Stock or Preferred Stock, if any, with which such Warrants
are issued and the number of such Warrants issued with each such Security; (vii)
the date, if any, on and after which such Warrants and the related underlying
Security will be separately transferable; (viii) the exercise price or prices at
which the Debt Securities, Common Stock or Preferred Stock purchasable upon
exercise of such Warrants may be purchased, or provisions for determining such
price or prices, procedures pursuant to which such exercise price or prices may
be adjusted, and (if not U.S. dollars) the foreign currency, currency unit or
composite currency in which such exercise price or prices are denominated; (ix)
the date on which the right of exercise such Warrants shall commence and the
date on which such right shall expire; (x) whether such Warrants will be issued
in bearer form; (xi) the minimum or maximum amount of such Warrants which may be
exercised at any one time; (xii) information with respect to book-entry
procedures, if any; (xiii) a discussion of certain United States federal income
tax considerations; and (xiv) any other terms of such Warrants, including terms,
procedures and limitations relating to the transferability, exchange and
exercise of such Warrants.
EXERCISE OF WARRANTS
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Warrants will be issued in registered form. Each Warrant will entitle the
holder thereof to purchase for cash such principal amount or such number of
securities of the Company at such exercise price as shall in each case be set
forth in, or be determinable as set forth in, the Prospectus Supplement relating
to the Warrants offered thereby. Warrants may be exercised as set forth in the
Prospectus Supplement relating to the Warrants offered thereby at any time up to
the close of business on the expiration date set forth in such Prospectus
Supplement. After the close of business on the expiration date (or such later
expiration date as may be extended by the Company), unexercised Warrants will
become void.
Upon receipt of payment and the Warrant Certificate properly completed and
duly executed at the corporate trust office of the Warrant Agent or any other
office indicated in the Prospectus Supplement, the Company will, as soon as
practicable, forward the securities purchasable upon such exercise. If less than
all of the Warrants represented by such Warrant Certificate are exercised, a new
Warrant Certificate will be issued for the remaining Warrants.
21
<PAGE> 23
MODIFICATIONS
The Warrant Agreements and the terms of the Warrants may be amended by the
Company and the Warrant Agent, without the consent of the holders thereof, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective or inconsistent provision contain therein, or in any other manner
which the Company may deem necessary or desirable and which will not materially
and adversely affect the interests of holders of outstanding Warrants.
The Company and the Warrant Agent also may modify or amend certain other
terms of the Warrant Agreements and the Warrants with the consent of the holders
of not less than a majority in number of the then outstanding unexercised
Warrants affected. However, no such modification or amendment may be made
without the consent of the holders affected thereby if such proposed amendment
would (i) shorten the period of time during which the Warrants may be exercised;
(ii) otherwise materially and adversely affect the exercise rights of the
holders of the Warrants; or (iii) reduce the number of outstanding Warrants.
MERGER, CONSOLIDATION OR SALE OF ASSETS
If at any time there shall be a merger, consolidation or sale of
substantially all of the assets of the Company, as a result of which securities
underlying Warrants shall be converted into the right to receive stock,
securities or other property, each outstanding Warrant shall thereafter only be
exercisable for the kind and amount of stock, securities or other property
receivable upon the consummation of such transaction by a holder of that number
of securities underlying the Warrant.
ENFORCEABILITY OF RIGHTS BY HOLDERS
The Warrant Agent will act solely as an agent of the Company in connection
with the issuance and exercise of any Warrants. The Warrant Agent shall have no
duty or responsibility in case of any default by the Company in the performance
of its obligations under the Warrant Agreements or the Warrant Certificates.
Each holder of Warrants may, without the consent of the Warrant Agent, enforce
by appropriate legal action, on its own behalf, its right to exercise such
Warrants.
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters for public
offering and sale by them, and also may sell Securities directly to investors or
to other purchasers or through dealers or agents. Any such underwriter, dealer
or agent involved in the offer and sale of the Securities will be named in an
applicable Prospectus Supplement.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Sales of Common Stock offered
hereby may be effected from time to time in one or more transactions on the
American Stock Exchange or in negotiated transactions or a combination of such
methods of sale.
In connection with distributions of Common Stock or otherwise, the Company
may enter into hedging transactions with broker-dealers in connection with which
such broker-dealers may sell Common Stock registered hereunder in the course of
hedging through short sales the positions they assume with the Company.
In connection with the sale of Securities, underwriters, dealers or agents
may receive compensation from the Company or from purchasers of Securities for
whom they may act as agents in the form of discounts, concessions or
commissions. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers and agents that participate
in the distribution of Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter, dealer
22
<PAGE> 24
or agent will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement. Unless otherwise indicated in a
Prospectus Supplement, an agent will be acting on a best effort basis and a
dealer will purchase Securities as a principal, and may then resell such
Securities at varying prices to be determined by the dealer.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against and contribution toward
certain civil liabilities, including liabilities under the Securities Act, and
to reimbursement by the Company for certain expenses.
If so indicated in a Prospectus Supplement, the Company will authorize
agents and underwriters or dealers to solicit offers by certain purchasers to
purchase Offered Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject to only those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such offers.
Certain of the underwriters, dealers or agents and their associates may
engage in transactions with and perform services for the Company in the ordinary
course of business.
The Securities may or may not be listed on a national securities exchange
or a foreign securities exchange (other than the Common Stock, which is listed
on the American Stock Exchange). Any Common Stock sold pursuant to a Prospectus
Supplement will be listed on the American Stock Exchange, subject to official
notice of issuance. Any underwriters to whom Securities are sold by the Company
for public offering and sale may make a market in such Securities, but such
underwriters will not be obligated to do so and may discontinue any market
making activities at any time without notice. No assurances can be given that
there will be an active trading market for the Securities.
VALIDITY OF SECURITIES
The legal validity of the Securities offered hereby will be passed upon for
the Company by Baker & McKenzie, New York, New York, and for any underwriters or
agents by counsel to be named in the appropriate Prospectus Supplement.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K have been audited by Coopers & Lybrand L.L.P., independent
accountants, as stated in their reports, which are incorporated herein by
reference, and have been so incorporated in reliance upon the reports of such
firm given upon their authority as experts in accounting and auditing.
23
<PAGE> 25
================================================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS, AND, IF GIVEN
OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITERS, AGENTS OR DEALERS. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF ANY OFFER
TO BUY SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY AND ITS SUBSIDIARIES
SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AT ANY
TIME SUBSEQUENT TO THE DATE HEREOF.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................
Incorporation of Certain Documents by
Reference............................
Risk Factors...........................
The Company............................
Use of Proceeds........................
Ratio of Earnings to Fixed Charges.....
Description of Debt Securities.........
Description of Capital Stock and
Depositary Shares....................
Description of Warrants................
Plan of Distribution...................
Validity of Securities.................
Experts................................
</TABLE>
================================================================================
================================================================================
NABORS INDUSTRIES, INC.
[NABORS INDUSTRIES, INC. LOGO]
------------------------
PROSPECTUS
------------------------
MAY , 1996
================================================================================
<PAGE> 26
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered hereunder. Except
for the Securities and Exchange Commission filing fee, all amounts are
estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee........................... $ 86,206.90
Printing and engraving fees and expenses................................ 75,000.00
Legal fees and expenses................................................. 150,000.00
Accounting fees and expenses............................................ 50,000.00
Blue Sky fees and expenses.............................................. 6,000.00
Trustee's, Depositary's and Warrant Agent's fees and expenses........... 20,000.00
Miscellaneous expenses.................................................. 20,000.00
-----------
Total......................................................... $407,206.90
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits the
indemnification of directors, employees and agents of Delaware corporations.
Consistent therewith, Article Seventh of the Restated Certificate of
Incorporation of the Company states as follows:
"Seventh: (a) Each person who was or is made a party or is threatened
to be made a party to or is involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter
collectively referred to as a "proceeding"), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is or
was a director or officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators.
(b) The right to indemnification conferred in this Section shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition;
provided, however, that if the Delaware General Corporation Law requires,
the payment of such expenses incurred by a director or officer in advance
of the final disposition of a proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified
under this Section or otherwise. The Corporation may, by action of its
Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification
of directors and officers.
II-1
<PAGE> 27
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in
this Section shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate
of Incorporation, By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
(e) Any repeal or modification of this Section directly or indirectly,
such as by adoption of an inconsistent provision of this Certificate of
Incorporation, shall not apply to or have any effect on the rights of any
officer and director to indemnification and advancement of expenses with
respect to any acts or omissions occurring prior to such repeal or
modification.
(f) If this Section or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director and officer of the Corporation as to
expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) with respect to any proceeding to the full extent permitted by
any applicable portion of this Section that shall not have been invalidated
and to the full extent permitted by applicable law."
The Company has entered into agreements with each of its directors and
officers indemnifying each of them against expenses, settlements, judgments and
fines in connection with any threatened, pending or completed action, suit,
arbitration or proceeding where the individual's involvement is by reason of the
fact that he is or was a director or officer or served at the Company's request
as a director or officer of another organization, except that indemnification is
not provided against judgments or fines in a derivative suit unless permitted by
Delaware law.
The form(s) of proposed Underwriting Agreement(s) to be filed as (an)
exhibit(s) hereto or incorporated by reference herein may include provisions
relating to indemnification and contribution for the benefit of the Underwriters
for any offering made hereby and may also contain provisions relating to the
indemnification of directors and officers of the Company against certain
liabilities, including liabilities under the Securities Act.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- -------------------- ------------------------------------------------------------------------
<S> <C>
1 -- Proposed form(s) of Underwriting Agreement(s).*
3.1 -- Restated Certificate of Incorporation and By-Laws of the Company
dated May 12, 1988 (Incorporated by reference to the exhibits to Form
10-K (File No. 1-7773) filed with the Commission on December 29,
1988).
3.2 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated March 7, 1989 (Incorporated by reference to the
exhibits to Form 8-K (File No. 1-9245) filed with the Commission on
March 13, 1989).
3.3 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated May 8, 1990 (Incorporated by reference to the
exhibits to Form 10-K (File No. 1-9245) filed with the Commission on
December 24, 1990).
3.4 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated April 12, 1991 (Incorporated by reference to the
exhibits to Form 10-K (File No. 1-9245) filed with the Commission on
December 30, 1991).
</TABLE>
II-2
<PAGE> 28
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- -------------------- ------------------------------------------------------------------------
<S> <C>
3.5 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated March 11, 1994 (Incorporated by reference to the
exhibits to Form 10-K (File No. 1-9245) filed with the Commission on
December 29, 1994).
3.6 -- Amendment to the Restated By-Laws of the Company (Incorporated by
reference to the exhibits to Form 10-K (File No. 1-9245) filed with
the Commission on December 24, 1990).
3.7 -- Certificate of Designation, Preferences and Rights of Preferred Stock
to be offered hereunder.*
4.1 -- Form of Indenture for Senior Debt Securities between the Company and
Marine Midland Bank, as Trustee.
4.2 -- Form of Indenture for Subordinated Debt Securities between the
Company and Marine Midland Bank, as Trustee.
4.3 -- Supplemental Indenture between the Company and Marine Midland Bank,
as Trustee, or Resolutions of the Board of Directors of the Company
setting forth the terms of any series of the Senior or Subordinated
Debt Securities.*
4.4 -- Form of Stock Warrant Agreement, together with form of Preferred
Stock and Common Stock Warrant.+
4.5 -- Form of Debt Warrant Agreement, together with form of Warrant.+
4.6 -- Form of Warrant Agreement for warrants not attached to debt or equity
securities.+
4.7 -- Form of Deposit Agreement, together with form of Depositary Receipt.
5 -- Opinion of Baker & McKenzie.
12 -- Statement of Computation of Ratios of Earnings to Fixed Charges.+
23.1 -- Consent of Baker & McKenzie (Included in Exhibit 5).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24 -- Powers of Attorney (Included on Signature Page).+
25.1 -- Form T-1: Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Marine Midland Bank, as Trustee under the
Indenture for Subordinated Debt Securities.+
25.2 -- Form T-1: Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Marine Midland Bank, as Trustee under the
Indenture for Senior Debt Securities.+
</TABLE>
- ---------------
+ Previously filed.
* To be filed by amendment or by a report on Form 8-K pursuant to Item 601 of
Regulation S-K.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 unless the information required to be included in
such post-effective amendment is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration
II-3
<PAGE> 29
statement unless the information required to be included in such
post-effective amendment is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the
low or high and of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Houston, State of Texas, on May 1, 1996.
NABORS INDUSTRIES, INC.
By: /s/ ANTHONY G. PETRELLO
--------------------------------
Name: Anthony G. Petrello
Title: President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. The undersigned, a Director of Nabors
Industries, Inc., a Delaware corporation (the "Corporation"), does hereby
constitute and appoint Eugene M. Isenberg, Anthony G. Petrello, Michael W. Dundy
and Bruce P. Koch, and each of them, as his true and lawful attorneys-in-fact
and agents, with full power of substitution, to execute and deliver in his name
and on his behalf: (a) one or more Registration Statements of the Corporation on
an appropriate form proposed to be filed with the Securities and Exchange
Commission (the "SEC") for the purpose of registering under the Securities Act
of 1933, as amended (the "Securities Act") (including, without limitation, a
Registration Statement filed pursuant to Rule 462 under the Securities Act), (i)
the Corporation's debt securities (the "Debt Securities") which may take the
form of senior debt securities (the "Senior Debt Securities"), subordinated debt
securities (the "Subordinated Debt Securities") or any combination thereof, (ii)
shares of the Corporation's preferred stock, $.10 par value per share (the
"Preferred Stock"), fractional interests in which may be represented by
depositary shares evidenced by depositary receipts, (iii) shares of the
Corporation's common stock, $.10 par value per share (the "Common Stock"), and
(iv) warrants (the "Warrants") to purchase the Debt Securities, Preferred Stock
(and depositary shares), Common Stock and Warrants (the Debt Securities,
Preferred Stock (and related depositary shares and depositary receipts), Common
Stock and Warrants being herein collectively referred to as the "Securities"),
with an aggregate public offering price not to exceed U.S. $250 million or the
equivalent thereof in one or more foreign currencies, currency units or
composite currencies; and (b) any and all supplements and amendments (including,
without limitation, post-effective amendments and prospectus supplements) to
such Registration Statements; and any and all other documents and instruments in
connection with the issuance of the Securities which such attorneys-in-fact and
agents, or any one of them, deem necessary or advisable to enable the
Corporation to comply with (a) the Securities Act and the other federal
securities laws of the United States of America and the rules, regulations and
requirements of the SEC in respect of any thereof, (b) the securities or Blue
Sky laws of any state or other governmental subdivision of the United States of
America and the securities laws of Canada, Mexico and any other foreign
jurisdiction; and the undersigned does hereby ratify and confirm as his own acts
and deeds all that such attorneys-in-fact and agents, and each of them, shall do
or cause to be done by virtue hereof. Each one of such attorneys-in-fact and
agents shall have, and may exercise, all of the powers hereby conferred.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ EUGENE M. ISENBERG Chairman, Chief Executive May 1, 1996
- --------------------------------------------- Officer and Director
Eugene M. Isenberg (principal executive
officer)
/s/ ANTHONY G. PETRELLO* President, Chief Operating May 1, 1996
- --------------------------------------------- Officer and Director
Anthony G. Petrello
Vice Chairman and Director April , 1996
- ---------------------------------------------
Richard A. Stratton
/s/ BRUCE P. KOCH Vice President of Finance May 1, 1996
- --------------------------------------------- (principal financial and
Bruce P. Koch accounting officer)
/s/ GARY T. HURFORD* Director May 1, 1996
- ---------------------------------------------
Gary T. Hurford
</TABLE>
II-5
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ HANS W. SCHMIDT* Director May 1, 1996
- ---------------------------------------------
Hans W. Schmidt
Director April , 1996
- ---------------------------------------------
Myron M. Sheinfeld
Director April , 1996
- ---------------------------------------------
Jack Wexler
/s/ MARTIN J. WHITMAN* Director May 1, 1996
- ---------------------------------------------
Martin J. Whitman
By: /s/ BRUCE P. KOCH
- ---------------------------------------------
Attorney-In-Fact
</TABLE>
II-6
<PAGE> 32
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<S> <C>
1 -- Proposed form(s) of Underwriting Agreement(s).*
3.1 -- Restated Certificate of Incorporation and By-Laws of the Company
dated May 12, 1988 (Incorporated by reference to the exhibits to Form
10-K (File No. 1-7773) filed with the Commission on December 29,
1988).
3.2 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated March 7, 1989 (Incorporated by reference to the
exhibits to Form 8-K (File No. 1-9245) filed with the Commission on
March 13, 1989).
3.3 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated May 8, 1990 (Incorporated by reference to the
exhibits to Form 10-K (File No. 1-9245) filed with the Commission on
December 24, 1990).
3.4 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated April 12, 1991 (Incorporated by reference to the
exhibits to Form 10-K (File No. 1-9245) filed with the Commission on
December 30, 1991).
3.5 -- Certificate of Amendment of the Restated Certificate of Incorporation
of the Company dated March 11, 1994 (Incorporated by reference to the
exhibits to Form 10-K (File No. 1-9245) filed with the Commission on
December 29, 1994).
3.6 -- Amendment to the Restated By-Laws of the Company (Incorporated by
reference to the exhibits to Form 10-K (File No. 1-9245) filed with
the Commission on December 24, 1990).
3.7 -- Certificate of Designation, Preferences and Rights of Preferred Stock
to be offered hereunder.*
4.1 -- Form of Indenture for Senior Debt Securities between the Company and
Marine Midland Bank, as Trustee.
4.2 -- Form of Indenture for Subordinated Debt Securities between the
Company and Marine Midland Bank, as Trustee.
4.3 -- Supplemental Indenture between the Company and Marine Midland Bank,
as Trustee, or Resolutions of the Board of Directors of the Company
setting forth the terms of any series of the Senior or Subordinated
Debt Securities.*
4.4 -- Form of Stock Warrant Agreement, together with form of Preferred
Stock and Common Stock Warrant.+
4.5 -- Form of Debt Warrant Agreement, together with form of Warrant.+
4.6 -- Form of Warrant Agreement for warrants not attached to debt or equity
securities.+
4.7 -- Form of Deposit Agreement, together with form of Depositary Receipt.
5 -- Opinion of Baker & McKenzie.
12 -- Statement of Computation of Ratios of Earnings to Fixed Charges.+
23.1 -- Consent of Baker & McKenzie (Included in Exhibit 5).
23.2 -- Consent of Coopers & Lybrand L.L.P.
24 -- Powers of Attorney (Included on Signature Page).+
25.1 -- Form T-1: Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Marine Midland Bank, as Trustee under the
Indenture for Subordinated Debt Securities.+
25.2 -- Form T-1: Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Marine Midland Bank, as Trustee under the
Indenture for Senior Debt Securities.+
</TABLE>
- ---------------
+ Previously filed.
* To be filed by amendment or by a report on Form 8-K pursuant to Item 601 of
Regulation S-K.
<PAGE> 1
Exhibit 4.1
================================================================================
NABORS INDUSTRIES, INC.
TO
MARINE MIDLAND BANK,
TRUSTEE
___________________
INDENTURE
Dated as of _____________
___________________
Senior Debt Securities
================================================================================
<PAGE> 2
NABORS INDUSTRIES, INC.
Reconciliation and tie between certain Sections
of this Indenture, dated as of ______________ and
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
<S> <C> <C>
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 608
610
311 (a) . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . 613
312 (a) . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . 702(c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 703(b)
314 (a) . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 102
315 (a) . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . 514
316 (a) . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 502
. . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . 104(c)
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . 1003
318 (a) . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- ------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasible Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Floating or Adjustable Rate Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Floating or Adjustable Rate Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
</TABLE>
- i -
<PAGE> 4
<TABLE>
<S> <C> <C>
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subordinated Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 105. Notices, Etc. to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 114. Personal Immunity from Liability for Incorporators, Stockholders, Etc. . . . . . . . . . . . . . . . . 12
</TABLE>
- ii -
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE TWO
Security Forms
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 204. Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 205. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 206. Form of Conversion Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 207. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 311. Designation as Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 402. Application of Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
- iii -
<PAGE> 6
<TABLE>
<S> <C> <C>
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 38
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . . . 40
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . . 50
Section 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 52
Section 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
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<PAGE> 7
<TABLE>
<S> <C> <C>
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc. Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 905. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 906. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 907. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 908. Waiver of Compliance by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 909. Notice of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1004. Statement by Officers as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
- v -
<PAGE> 8
<TABLE>
<S> <C> <C>
ARTICLE TWELVE
Conversion of Securities
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1202. Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1203. No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1204. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1205. Notice of Certain Corporate Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1206. Reservation of Shares of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1207. Payment of Certain Taxes Upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1208. Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1209. Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . 67
Section 1210. Duties of Trustee Regarding Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1211. Repayment of Certain Funds Upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 69
Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1305. Deposited Money and U.S. Government Obligations to be Held In Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1402. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1403. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE FIFTEEN
Repayment at Option of Holders
Section 1501. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1502. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1503. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1504. When Securities Presented for Repayment Become Due and Payable . . . . . . . . . . . . . . . . . . . .
Section 1505. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
- vi -
<PAGE> 9
INDENTURE, dated as of _______________ between NABORS
INDUSTRIES, INC., a Delaware corporation (herein called the "Company"), having
its principal office at 515 West Greens Road, Suite 1200, Houston Texas 77067,
and MARINE MIDLAND BANK, a banking corporation and trust company, duly
organized and existing under the laws of the State of New York, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with 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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, 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 or the Securities Act of 1933, as amended, either
directly or by reference therein, have the meanings assigned to them
therein;
<PAGE> 10
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(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 unless context
otherwise requires.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either (i) the board of directors
of the Company, the executive committee of such board of directors or any other
duly authorized committee of directors and/or officers appointed by such board
of directors or executive committee, or (ii) one or more duly authorized
officers of the Company to whom the board of directors of the Company or a
committee thereof has delegated the authority to act with respect to the
matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified
by the Corporate Secretary or an Assistant Corporate Secretary of the Company
to have been duly adopted by the board of directors of the Company or a
committee thereof and to be in full force and effect on the date of such
certification or (ii) a certificate signed by the duly authorized officer or
officers of the Company to whom the board of directors of the Company or a duly
authorized committee thereof has delegated its authority (as described in the
definition of Board of Directors), and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"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.
2
<PAGE> 11
"Common Stock" means, with respect to the Company, its common
stock, par value $.10 per share, and with respect to any Principal Subsidiary,
stock of any class, however designated, except stock which is non-participating
beyond fixed dividend and liquidation preferences and the holders of which have
either no voting rights or limited voting rights entitling them, only in the
case of certain contingencies, to elect less than a majority of the directors
(or persons performing similar functions) of such Principal Subsidiary, and
shall include securities of any class, however designated, which are
convertible into such Common Stock.
"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.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by (i) any two of the following
individuals: the Chairman, a Vice Chairman, the President or a Vice President,
or (ii) by one of the foregoing individuals and by any other Vice President,
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Corporate Secretary or an Assistant Corporate Secretary or any other
individual authorized by the Board of Directors for such purpose (as set forth
in a Board Resolution), and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 140 Broadway, 12th
Floor, New York, New York 10005.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"days" mean calendar days.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section 1304.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
depositary for such Securities as contemplated by Section 301.
3
<PAGE> 12
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an indenture
supplemental hereto, providing for the determination, whether pursuant to
objective factors or pursuant to the sole discretion of any Person (including
the Company), and periodic adjustment of the interest rate borne by a Floating
or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security
which provides for interest thereon at a periodic rate that may vary from time
to time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities 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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4) and Section 501(5).
4
<PAGE> 13
"Officers' Certificate" means a certificate signed by (i) any
two of the following individuals: the Chairman, a Vice Chairman, the President
or a Vice President, or (ii) by one of the foregoing individuals and by any
other Vice President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company, or any other individual authorized by the Board of
Directors for such purpose (as specified in a Board Resolution), and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company, or who may be other counsel
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 502.
"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 canceled 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; 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;
(iii) Securities as to which Defeasance has been effected pursuant
to Section 1302; and
(iv) Securities which have been paid pursuant to Section 306 or
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, (A) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof
5
<PAGE> 14
pursuant to Section 502, and (B) Securities owned by (i) the Company or any
other obligor upon the Securities or (ii) any Subsidiary or of such other
obligor upon the Securities shall be disregarded and 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 a Responsible Officer of 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 Subsidiary or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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.
"Principal Subsidiary" means any Subsidiary which at the time
of determination has, (A) assets which, as of the date of the Company's most
recently prepared quarterly consolidated balance sheet, constituted at least
15% of the Company's total assets on a consolidated basis as of such date, or
(B) revenues for the 12-month period ending on the date of the Company's most
recently prepared quarterly consolidated statement of income which constituted
at least 15% of the Company's total revenues on a consolidated basis for such
period or (C) net earnings for the 12-month period ending on the date of the
Company's most recently prepared quarterly consolidated statement of income
which constituted at least 15% of the Company's total net earnings on a
consolidated basis for such period.
"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.
6
<PAGE> 15
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with responsibility for the administration of
this Indenture, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"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 principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subordinated Indenture" means the indenture to be entered
into or previously entered into between the Company and Marine Midland Bank, as
trustee, and relating to certain subordinated debt securities of the Company.
"Subsidiary" means a corporation more than 50% of the voting
power of which is controlled, 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 power" means the
power to vote 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.
"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 or include each Person who is then a Trustee hereunder, if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means,
7
<PAGE> 16
to the extent required by any such amendment, the Trust Indenture Act of 1939
as so amended, and except as provided in Section 906.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"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 such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 1004) shall include
(1) a statement that each Person 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 Person,
such Person has made such examination or investigation as is necessary
to enable such Person 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
Person, 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.
8
<PAGE> 17
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, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which its 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, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate, opinion or representation by an accountant or firm
of accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that
the certificate, opinion or representation with respect to such accounting
matters upon which its certificate, statement or opinion may be based is
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; Record Dates. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted 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 or her the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of
the execution of any such instrument or writing, or the
9
<PAGE> 18
authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Outstanding Securities of such series. If not set
by the Company prior to the first solicitation of a Holder of Securities of
such series made by any Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register or by a certificate of the Security Registrar.
(e) 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.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
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 if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office;
provided, however, that the same shall be made, given, furnished or
filed only when received by a Responsible Officer of the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Department, or
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<PAGE> 19
(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;
provided, however, that the same shall be made, given, furnished or
filed only when received by the Company, Attention: President, or at
any other address previously furnished in writing to the Trustee by
the Company.
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 its
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice; provided, however, that the Company or the Trustee, upon
a good faith determination that mailing is in the circumstances impractical,
may give such notice by any other method which, in the reasonable belief of the
Company or, in the case of the Trustee, of the Company and the Trustee, is
likely to be received by the Holders. 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.
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.
Section 107. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the 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.
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.
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<PAGE> 20
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 and the Holders,
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, BUT WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 113. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security or the last
day on which a Holder has the right to convert a Security at a particular
conversion price shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) or conversion need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. No recourse shall be had for the payment of
the principal of or premium, if any, or interest, if any, on any Security, or
for any claim based thereon, or otherwise in respect of any Security, or based
on or in respect of this Indenture or any indenture supplemental hereto,
against any incorporator, or against any past, present or future stockholder,
director or officer, as such, of the Company or of any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being
expressly waived and released as a condition of, and as consideration for, the
execution of this Indenture and the issue of the Securities.
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<PAGE> 21
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities of each series
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case 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 or Depositary
therefor or as may, consistent herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Corporate Secretary or an Assistant Corporate Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
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<PAGE> 22
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code of
1986, as amended and the regulations thereunder.]
NABORS INDUSTRIES, INC.
No.____ [$]____
NABORS INDUSTRIES, INC., a Delaware corporation (herein called
the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________, or registered assigns, the principal sum of
[$]______________ [__________ Dollars] [if applicable insert one or more
foreign currencies, currency units or composite currencies] [if the Security is
to bear interest prior to Maturity, insert -- and to pay interest thereon from
_________ or from the most recent interest Payment Date to which interest has
been paid or duly provided for, [semi-annually on __________ and __________ in
each year] [if other than semi-annual payments, insert frequency of payments
and payment dates], commencing ________________, at [if the Security is to bear
interest at a fixed rate, insert -- the rate of ______% per annum][if the
Security is a Floating or Adjustable Rate Security, insert -- a rate per annum
[computed-determined] in accordance with the [insert defined name of Floating
or Adjustable Rate Provision] set forth below], [if the Security is to bear
interest at a rate determined with reference to an index, refer to description
of index below] until the principal hereof is paid or made available for
payment [if applicable, insert -- and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of ____% per annum on any
overdue principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such 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 ___________ or ____________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. 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 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 Securities of this series 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
Securities of this
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<PAGE> 23
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture).
[If the Securities are Floating or Adjustable Rate Securities
with respect to which the principal of or any premium or interest may be
determined with reference to an index, insert the text of the Floating or
Adjustable Rate Provision.]
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of __% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ______% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also
be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in ___________, in
such coin or currency of [if applicable, insert -- the United States of
America] [if applicable, insert another currency, currency unit or composite
currency] as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register).
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.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
NABORS INDUSTRIES, INC.
By________________________________
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<PAGE> 24
Attest:
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of _______________ (herein called
the "Indenture"), between the Company and Marine Midland 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 and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
[[$]___________][if applicable, insert -- relevant amount in applicable foreign
currency, currency unit or composite currency]].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' nor more than 60 days' notice
by mail, [if applicable, insert -- (1) on __________ in any year commencing
with the year ____ and ending with the year ____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after ________________], 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 [on or
before _________, ___% and if redeemed] during the 12-month period beginning
of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to __________% of the principal
amount, together in the case of any such redemption [if applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
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.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' nor more than 60 days' notice
by mail, (1) on ________ in any year commencing with the year __________ and
ending with the year __________ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _________], as a whole or in part, at
the election of the
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<PAGE> 25
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning __________ of the years indicated,
Redemption Price For Redemption Price For Redemption
Redemption Through Operation Otherwise
of the Than Through Operation of the
Year Sinking Fund Sinking Fund
- ------ ---------------------------- -------------------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity in 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.]
[The sinking fund for this series provides for the redemption
on __________ in each year beginning with the year _____ and ending with the
year ____ of [not less than [$]__________ ("mandatory sinking fund") and not
more than] [$]__________ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made [in the inverse order in which they become due).]
[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time
of (1) the entire indebtedness of this Security or (2) certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth in the Indenture.
[If the Security is convertible into Common Stock of the
Company, insert -- Subject to the provisions of the Indenture, the Holder of
this Security is entitled, at its option, at any time on or before [insert
date](except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or
portion hereof, as the case may be, so called for redemption at the close of
business on the date fixed for redemption as provided in the Indenture unless
the Company defaults in making the payment due
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<PAGE> 26
upon redemption), to convert the principal amount of this Security (or any
portion hereof which is $1,000 or an integral multiple thereof [if applicable,
insert the equivalent thereof in one or more foreign currencies, currency units
or composite currencies]), into fully paid and non-assessable shares
(calculated as to each conversion to the nearest 1/100th of a share) of the
Common Stock of the Company, as said shares shall be constituted at the date of
conversion, at the conversion price of [$]________ principal amount of
Securities for each share of Common Stock, or at the adjusted conversion price
in effect at the date of conversion determined as provided in the Indenture,
upon surrender of this Security, together with the conversion notice hereon
duly executed, to the Company at the designated office or agency of the Company
in ________, accompanied (if so required by the Company) by instruments of
transfer, in form satisfactory to the Company and to the Trustee, duly executed
by the Holder or by its duly authorized attorney in writing. Such surrendering
shall, if made during any period beginning at the close of business on a
Regular Record Date and ending at the opening of business on the Interest
Payment Date next following such Regular Record Date (unless this Security or
the portion being converted shall have been called for redemption on a
Redemption Date during such period), also be accompanied by payment 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 for payment and, in the case of a conversion after the
Regular Record Date next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture), no
adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of Common Stock issued on conversion. The Company is not
required to issue fractional shares upon any such conversion, but shall make
adjustment therefor in cash on the basis of the current market value of such
fractional interest as provided in the Indenture. The conversion price is
subject to adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the Company
is a party or the sale of substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any Holders of Securities,
so that this Security, if then outstanding, will be convertible thereafter,
during the period this Security shall be convertible as specified above, only
into the kind and amount of securities, cash and other property receivable upon
the consolidation, merger or sale by a holder of the number of shares of Common
Stock into which this Security might have been converted immediately prior to
such consolidation, merger or sale (assuming such holder of Common Stock failed
to exercise any rights of election and received per share the kind and amount
received per share by a plurality of non-electing shares) [, assuming if such
consolidation, merger or sale is prior to [date], that this Security were
convertible at the time of such consolidation, merger or sale at the initial
conversion price specified above as adjusted from to such time pursuant to the
Indenture]. In the event of conversion of this Security in part only, a new
Security or Securities for the unconverted portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other securities or
property, specify the conversion features and the form of conversion notice
pursuant to Section 206 hereof.]
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<PAGE> 27
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [Insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time outstanding of each
series to be affected, with certain exceptions as therein provided with respect
to certain modifications or amendments which may not be made without the
consent of each Holder of such Security affected thereby. The Indenture also
permits certain amendments and modifications thereto from time to time by the
Company and the Trustee without the consent of the Holders of any series of the
Securities to be affected thereby for certain specified purposes, including
curing ambiguities, defects or inconsistencies and making any such change that
does not adversely affect the rights of any Holder of such series of the
Securities, as provided therein.
The Indenture contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, 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
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
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, to pay the principal of and any
premium and Interest on this Security at the times, place and [rate(s)], and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this
19
<PAGE> 28
Security for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof [if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units or composite currencies]. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made 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 is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of
(and premium, if any) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities. Every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form or such other legends as may be required:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may
20
<PAGE> 29
not be transferred to, or registered or exchanged for Securities registered in
the name of, any Person other than the Depositary or a nominee thereof and no
such transfer may be registered, except in the limited circumstances described
in the Indenture. Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, this Security shall be a
Global Security subject to the foregoing, except in such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Marine Midland Bank,
as Trustee
By _______________________________
Authorized Signatory
Section 206. Form of Conversion Notice.
To Nabors Industries, Inc.
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of Common
Stock of the Company in accordance with the terms of the Indenture referred to
in this Security, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If this Notice is being delivered on a date after the close
of business on a Regular Record Date and prior to the opening of business on
the related Interest Payment Date (unless this Security or the portion thereof
being converted has been called for redemption on a Redemption Date within such
period), this Notice is accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date of the principal of this
Security to be converted. 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 hereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Security.
Principal Amount to be Converted
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<PAGE> 30
(in an integral multiple of
$1,000, if less than all [if applicable, insert
the equivalent thereof in one or more foreign
currencies, currency units or composite currencies]):
[$]____________
Dated_____________
___________________________________
Signature
Signature(s) must be guaranteed by
an institution which is a member of
one of the following recognized
signature Guarantee Programs: (i)
The Securities Transfer Agent
Medallion Program (STAMP); (ii) The
New York Stock Exchange Medallion
Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP)
or (iv) another guarantee program
acceptable to the Trustee.
___________________________________
Signature Guarantee
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered holder.
____________________________
(Name)
____________________________
(Address)
Please print Name and Address
(including zip code number)
Social Security or other Taxpayer
Identifying Number_________________
SECTION 207. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (11) of
Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities of such series represented thereby may from time to time
by increased or decreased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security the Holder of
such permanent global Security in registered form.
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ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series. There shall be established in or pursuant to a Board
Resolution or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 304, 305,
306, 907, 1107 or 1202 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than 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;
(4) the date or dates, or the method or methods (and related
procedures) by which such date or dates will be determined or extended,
on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall be determined, the date
or dates from which such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment Date;
(6) whether the Securities of the series would be secured
pursuant to Section 901(7);
(7) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be
payable;
(8) if applicable, the period or periods within which, the
price or prices at which (including premium, if any) and the terms and
conditions upon which Securities of the
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series shall be redeemed, in whole or in part, at the option of the
Company pursuant to a sinking fund or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) if applicable, the terms of any right to convert or
exchange Securities of the series into shares of Common Stock of the
Company or other securities or property of the Company or other
issuers;
(11) if other than denominations of $1,000 and any integral
multiple thereof (or the equivalent thereof in one or more foreign
currencies, currency units or composite currencies), the denominations
in which Securities of the series shall be issuable;
(12) if the amount of payments of principal of (or premium,
if any) or interest, if any, on any Securities of the series may be
determined with reference to one or more indices, the manner in which
such amounts shall be determined;
(13) if other than currency of the United States, one or more
foreign currencies, currency units or composite currencies in which
the Securities of the series are to be denominated;
(14) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency in
which payment of the principal of (and premium, if any) and interest
on the Securities of the series shall be payable;
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable under any applicable federal or
state bankruptcy or similar law pursuant to Section 503;
(16) if applicable, that the Securities of the series shall
be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstance other than
those set forth in Section 305 in which any such Global Security may
be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such
Global Security or a nominee thereof and in which any such transfer
may be registered;
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(17) any other event or events of default applicable with
respect to the Securities of the series in addition to those provided
in Section 501(1) through (7);
(18) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit
of Securities of the series, or any combination of such covenants,
warranties or provisions;
(19) any restriction or condition on the transferability of
the Securities of the series;
(20) any authenticating or paying agents, registrars,
conversion agents or any other agents with respect to the Securities
of the series; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(6)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of such action shall be delivered
to the Trustee.
Section 302. Denominations. The Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof [if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units or composite currencies].
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman, a
Vice Chairman, its President, any Vice President, its Treasurer or Assistant
Treasurer, its Controller or Assistant Controller under its corporate seal
reproduced thereon attested by its Corporate Secretary or one of its Assistant
Corporate Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
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The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Securities bearing the manual or facsimile signatures of
individuals who were at any 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. Minor
typographical and other minor errors in the text of any Security or minor
defects in the seal or facsimile signature on any Security shall not affect the
validity or enforceability of such Security if it has been duly authenticated
and delivered by the Trustee.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
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 the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions or indentures
supplemental hereto as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
generally and to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors, executive committee, or a
trust committee of directors or committee of Responsible Officers of the
Trustee shall determine that such action would expose the Trustee to personal
liability to existing Holders of Securities.
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Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
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. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities. Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers of the Company executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
Section 305. Registration, Registration of Transfer and
Exchange. 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 in a Place of
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Payment being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable procedures as it or the Trustee
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
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 entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) 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.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company or the Trustee 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, 907, 1107 or 1202 not
involving any transfer.
Neither the Company nor the Trustee shall be required (i) to
issue, register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
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Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than the Depositary for
such Global Security or any nominee thereof, and no such transfer may be
registered, unless (1) such Depositary (A) notifies the Company and the Trustee
that it is unwilling or unable to continue as Depositary for such Global
Security or (B) ceases to be a clearing agency registered under the Exchange
Act, (2) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so transferable, registrable and exchangeable,
and such transfers shall be registrable, (3) there shall have occurred and be
continuing an Event of Default with respect to the Securities evidenced by such
Global Security or (4) there shall exist such other circumstances, if any, as
have been specified for this purpose as contemplated by Section 301.
Notwithstanding any other provision in this Indenture, a Global Security to
which the restriction set forth in the preceding sentence shall have ceased to
apply may be transferred only to, and may be registered and exchanged for
Securities registered only in the name or names of, such Person or Persons as
the Depositary for such Global Security shall have directed and no transfer
thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which
the restriction set forth in the first sentence of the preceding paragraph
shall apply, whether pursuant to this Section, Section 304, 306, 907, 1107 or
1202 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities. If there shall be delivered to the Company and the Trustee (i) a
mutilated Security, or (ii) evidence to their satisfaction of the destruction,
loss or theft of any Security and in either case such security or indemnity as
may be required by either of them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such mutilated, destroyed, lost or stolen Security, a new Security of the same
series and 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
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company or the Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of
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the Company, whether or not the 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 of
that series 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.
Except as otherwise provided as contemplated by Section 301 with respect to any
series of Securities, 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 of any series 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 such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(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 of such series 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 reasonably 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 15 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
given to each Holder of Securities of such series, in the manner set
forth in Section 106, 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 given,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the
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close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such 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.
Subject to the provisions of Section 1202, 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 the
principal of (or premium, if any, on)) which shall become due and payable,
whether at a Stated Maturity or by declaration of acceleration, call for
redemption, or otherwise, 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 any one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, 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 principal of and any premium and (subject to Section 307)
any 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, registration of transfer or exchange or for credit against
any sinking fund payment or for conversion shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled 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 may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated
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hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order or, in the absence of such Company Order, in accordance with the Trustee's
customary practices. Acquisition by the Company of any Security shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Security unless and until the same is delivered to the Trustee for cancellation.
Section 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 311. Designation as Senior Debt. The Company hereby
confirms the designation of the Securities as "Senior Debt" for the purposes of
any securities of the Company that may be issued pursuant to the Subordinated
Indenture.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Securities of a series herein expressly provided for) with respect to
Securities of any series, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to a series, when
(1) either
(A) all Securities of such series 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 of such series 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 of such series 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 under
arrangements reasonably 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
deposited or caused to be deposited with the Trustee in trust
irrevocably (A) money (in [United States dollars]) in an amount, or
(B) U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not
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later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge the entire indebtedness on such Securities of such
series not theretofore delivered to the Trustee for cancellation, for
principal of (and premium, if any) and interest to the date of such
deposit (in the case of Securities of such series 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 with respect to such series have been
complied with.
In the event there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of a particular series as to which it is
Trustee and if the other conditions thereto are met. In the event that there
are two or more Trustees hereunder, then the effectiveness of any such
instrument shall be conditioned upon receipt of such instruments from all
Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to a particular series, the obligations of the Company
to the Trustee under Section 607, the obligations of the Company 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 until there are no Securities Outstanding with respect to a
particular series and the obligations of the Company and the Trustee with
respect to all other series of Securities shall survive.
Section 402. Application of Trust Fund. Subject to
provisions of the last paragraph of Section 1003, all amounts 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 any premium and interest for whose
payment such funds have been deposited with the Trustee.
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ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default" whenever
used with respect to Securities of a series means any one of the following
events and such other events as may be established with respect to the
Securities of such series as contemplated by Section 301 hereof:
(1) Default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, 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 of the Securities of such series as and when the same
shall become due and payable either at maturity, upon redemption, by
declaration of acceleration or otherwise and continuance of such
default for a period of ten days; or
(3) Default in the making of any sinking fund payment,
whether mandatory or optional, as and when the same shall become due
and payable by the terms of the Securities of such series and
continuance of such default for a period of ten days; or
(4) Failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in this Indenture (other than those set forth
exclusively in the terms of any other particular series of Securities
established as contemplated by this Indenture for the benefit of such
other series) and written notice of such failure, stating that such
notice is a "Notice of Default" hereunder, and requiring the Company
to remedy the same, shall have been given by registered or certified
mail, return receipt requested, 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 of that
series, and such failure shall have continued unremedied for a period
of 90 days after the date of the Company's receipt of such Notice of
Default; or
(5) (i) An event of default, as defined in any indenture or
instrument evidencing or under which the Company or any Principal
Subsidiary shall have outstanding indebtedness for borrowed money in a
principal amount in excess of $25,000,000, shall happen and be
continuing and such indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which
the same would otherwise have become due and payable or (ii) the
Company or any Principal Subsidiary shall default in the payment at
final maturity of outstanding indebtedness for borrowed money in a
principal amount in excess of $25,000,000, and such acceleration or
default at maturity shall not be waived, rescinded or annulled within
30 days after written notice thereof, stating that such notice is a
"Notice of Default" hereunder, shall have been given
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to the Company by the Trustee (if such event be known to it), or to
the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that
series; provided, however, that if such acceleration under such
indenture or instrument or default at maturity shall be remedied or
cured by the Company or Principal Subsidiary, or waived, rescinded or
annulled by the requisite holders of such indebtedness, then the Event
of Default hereunder by reason thereof shall be deemed likewise to
have been thereupon remedied, cured or waived without further action
upon the part of either the Trustee or any of the Holders; or
(6) A decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of the Company
under any applicable Federal or State bankruptcy or similar law, and
such decree or order shall have continued undischarged and unstayed
for a period of 90 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or of all or substantially all
of its property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or
(7) The Company shall institute proceedings to be adjudicated
a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment or composition under
any applicable Federal or State bankruptcy or similar law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver, liquidator, trustee, assignee, sequestrator
or similar official in bankruptcy or insolvency of the Company or of
all or substantially all of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due and its willingness to
be adjudged a bankrupt, or corporate action shall be taken by the
Company in furtherance of any of the aforesaid purposes; or
(8) Any other Event of Default provided with respect to
Securities of that series.
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The Company shall deliver to the Trustee written notice of any
Event of Default or event which with the giving of notice or lapse of time or
both would become an Event of Default under clauses (4), (5), (6) and (7)
hereof within 30 days of the knowledge thereof by the Company; provided that in
the case of clause (4) no such notice will be required to be given by the
Company if such default shall be cured by the Company within such 30 day
period.
The Trustee shall not be charged with knowledge of any default
(as defined in Section 602) or Event of Default unless written notice thereof
shall have been given to the Trustee by the Company, the Paying Agent of that
series (provided that no such notice shall be required to be given if the
Trustee acts as Paying Agent of such series), or with respect to a default or
an Event of Default under clause (5) of this Section by the holder of any such
indebtedness or an agent of the holder of any such indebtedness or by the
trustee then acting under any such indenture or other instrument under which
such default shall have occurred, or by Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series 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 amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series 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 principal
amount of the Outstanding Securities of that series, 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 of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
607, except such costs and expenses as are a result of
negligence or bad faith on the part of the Trustee; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and interest,
if any, on the Securities of that series 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.
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 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 and
continuance of such default for a period of ten days,
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the Company will, upon written 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 any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate
or rates prescribed therefor in such 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, and other amounts due the
Trustee under Section 607, except such costs and expenses as are a result of
negligence or bad faith on the part of the Trustee. Until such demand is made
by the Trustee, the Company may pay the principal of and premium, if any, and
interest, if any, on the Securities of any series to the registered Holders,
whether or not the Securities of such series are overdue.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee 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
any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized 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, except such costs and expenses
as are a result of negligence or bad faith on the part of the Trustee.
No provision of this Indenture 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; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
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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
except such costs and expenses, as are a result of negligence or bad faith on
the part of the Trustee, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. 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 case of the
distribution of such money on account of principal or any premium or 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 amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium 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 any
premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
Section 507. Limitation on Suits. No Holder of any Security
of any series 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 with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series 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 have offered to the Trustee
indemnity reasonably satisfactory in form and substance to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer 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 principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such 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 of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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, to receive payment of the principal of and
any premium and (subject to Section 307) any interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert such Securities in
accordance with the terms thereof and to institute suit for the enforcement of
any such payment or such right of conversion, 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 Securities 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. Subject to Section 507, every right and remedy given by
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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.
Section 512. Control by Holders. With respect to the
Securities of any series, the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct 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, with respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction, and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
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(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 of such series 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.
Section 514. Undertaking for Costs. 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, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided,
however, that neither this Section 514 nor the Trust Indenture Act will be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or the Trustee.
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.
(a) If an Event of Default with respect to Securities of any
series at the time Outstanding has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, in the absence of bad faith on its part,
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. The
Trustee, however, shall examine such certificates and opinions
to determine whether or not they conform to the
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requirements of this Indenture but need not verify the
accuracy of the contents thereof.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own
wilful misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
512.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee may refuse to perform any duty or exercise
any right or power unless it receives indemnity reasonably
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated
from other funds, except to the extent required by law.
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 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. If a default or an Event of
Default occurs and is continuing hereunder with respect to Securities of any
series, and if such default or Event of Default is known to a Responsible
Officer of the Trustee, the Trustee shall mail the Holders of Securities of
such series notice of such default within 90 days after it occurs; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. Except in
the case of a default in payment on any Security of any series or in
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the payment of any sinking fund installment, the Trustee may withhold notice if
and so long as a trust committee of directors or Responsible Officers of the
Trustee in good faith determines that withholding the notice is in the interest
of Holders of Securities of such series. 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 with respect to Securities of such
series.
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
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory in form and substance 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
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 upon reasonable notice to
the Company be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney at a time and place
acceptable to the Company;
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(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; and
(h) the Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers conferred upon it by this
Indenture.
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 or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent 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 in writing 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 written request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation, and reasonable expenses and disbursements of
its agents and outside counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including the reasonable fees
and expenses of legal counsel) incurred without
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negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts and the
performance of its duties hereunder, including the reasonable 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.
To secure the Company's payment obligations under this
Section, the Trustee shall have a lien prior to the Securities on all money or
property of the Company held or collected by the Trustee in its capacity as
Trustee or as Paying Agent hereunder (but not in any other capacity), except
that held in trust to pay principal of (and 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 with respect to any
series of Securities, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Federal or State
bankruptcy law or similar law.
The Company's obligations under this Section 607 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article Four or Article
Thirteen hereof and the termination of this Indenture.
Section 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire any 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. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
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 and has a combined
capital and surplus of at least $50,000,000 or is a subsidiary of a corporation
which shall be a Person that has a combined capital and surplus of at least
$50,000,000 and which unconditionally and irrevocably guarantees the
obligations of the Trustee hereunder upon terms satisfactory to the Company.
If such 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 Person
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.
Section 610. Resignation and Removal; Appointment of
Successor.
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(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 in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 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
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, 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 Holder, 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 with respect to all Securities, 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 itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or be incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
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successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any Series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed 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 the 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, subject
to its lien, if any, provided for in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supple- mental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer the rights, powers, trust and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of
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the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each 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 with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) 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
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor 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.
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 with the consent of the Company appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer,
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partial conversion or partial redemption thereof 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 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
written notice thereof to the Trustee and to the Company. The Trustee or the
Company may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company
or the Trustee, as the case may be. 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 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 of
Securities of the series with respect to which such Authenticating Agent will
serve, 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.
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The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Marine Midland Bank,
as Trustee
By____________________________
as Authenticating Agent
By____________________________
Authorized Officer
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) semi-annually, not later than 10 days after each Regular
Record Date in each year, a list for each series of Securities, in
such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of the
preceding Regular Record Date, and
(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;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for the Securities of a series, no such list need be furnished with
respect to such series of Securities.
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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 the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges 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 or other applicable law.
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. To the extent that any such
report is required by the Trust Indenture Act with respect to any 12 month
period, such report shall cover the 12 month period ending July 15 and shall be
transmitted by the next succeeding September 15.
(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 any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company. 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. Any information, documents or reports required to be
filed by the Company with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc. Only on Certain
Terms. The Company shall not consolidate with or merge into any other Person
or sell its properties and
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assets as, or substantially as, an entirety to any Person, and the Company
shall not permit any Person to consolidate with or merge into the Company,
unless:
(1) in case the Company shall consolidate with or merge into
another Person or sell its properties and assets as, or substantially
as, an entirety to any Person, the Person formed by such consolidation
or into which the Company is merged or the Person which purchases the
properties and assets of the Company as, or substantially as, an
entirety shall be a corporation, partnership or trust, 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 reasonably satisfactory to the
Trustee, all of the obligations of the Company under the Securities
and the Indenture and the conversion rights, if any, shall be provided
for in accordance with Article Twelve, by supplemental indenture
reasonably satisfactory in form to the Trustee, executed and delivered
to the Trustee, by the Person (if other than the Company) formed by
such consolidation or into which the Company shall have been merged or
by the Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no
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 or sale 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 Substituted. Upon any consolidation
of the Company with, or merger of the Company into, any other Person or any
sale of the properties and assets of the Company as, or 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 sale 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, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
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,
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at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably 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 of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such
additional Events of Default are to be for the benefit of less than
all series of Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of such
series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to or change any of the provisions of this
Indenture to such extent as shall be neccessary to permit or
facilitate the issuance of Securities of any series denominated
in one or more foreign currencies, currency units or composite
currencies;
(6) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities;
provided that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the Holder of any such
Security with respect to such provision or (ii) shall become effective
only when there is no such Security Outstanding; or
(7) to secure the Securities of any series; or
(8) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(10) 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
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respect to matters or questions arising under this Indenture; provided
that such action pursuant to this clause shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect; or
(11) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article Twelve, including
providing for the conversion of the Securities into any security
(other than the Common Stock of the Company) or property of the
Company; or
(12) to conform to any mandatory provisions of law.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, 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 of
Securities of such series 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 principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon
(including any change in the Floating or Adjustable Rate Provision
pursuant to which such rate is determined that would reduce such rate
for any period) or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair
the right to institute 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); provided, however, that with the
consent of the Holders of not less than 75% of the Outstanding
Securities of any series affected, the Company may postpone any
interest payment in respect of such series for a period not to exceed
three years, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, 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
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(3) if applicable, make any change that adversely affects the
right to convert any Security to which the provisions of Article
Twelve are applicable or, except as provided in this Indenture,
decrease the conversion rate or increase the conversion price of any
Security, or
(4) modify any of the provisions of this Section, Section 513
or Section 908, 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; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 908, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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.
Section 903. Execution of Supplemental Indentures. In
executing, or accepting the 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, in addition
to the documents required by Section 102, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and, with respect to supplemental indentures under Section 902
hereof, evidence of the consents of Holders required in connection therewith.
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.
Section 905. Revocation and Effect of Consents. Until an
amendment or supplement under this Article or a waiver under this Article
becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a
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Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver
becomes effective.
After an amendment or supplement becomes effective, it shall
bind every Holder.
Section 906. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 907. Reference in Securities to Supplemental
Indentures. Securities of any series 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 of any series 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 of such series.
Section 908. Waiver of Compliance by Holders. Anything in
this Indenture to the contrary notwithstanding, any of the acts which the
Company is required to do, or is prohibited from doing, by any of the
provisions of this Indenture may, to the extent that such provisions might be
changed or eliminated by a supplemental indenture pursuant to Section 902 upon
consent of Holders of not less than a majority in aggregate principal amount of
the then Outstanding Securities of the series affected, be omitted or done by
the Company, if there is obtained the prior consent or waiver of the Holders of
at least a majority in aggregate principal amount of the then Outstanding
Securities of such series.
Section 909. Notice of Supplemental Indenture. Promptly
after the execution by Company and the Trustees of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice
thereof to the Holders of each Outstanding Security affected, in the manner
provided for in the Section 106, setting forth in general terms the substance
of such supplemental indenture.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually
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pay or cause to be paid the principal of and any premium and interest on the
Securities of that series in accordance with the terms of the Securities and
this Indenture.
Section 1002. Maintenance of Office or Agency. So long as
any Securities are Outstanding, the Company will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange, where
Securities of that series may be surrendered for conversion and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. 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 where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; 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 each Place of Payment for Securities of any
series 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 Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and 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 for
any series of Securities, it will, prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, 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 for any series of
Securities 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 (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities
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of that series) in the making of any payment in respect of the Securities of
that series, and upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
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 or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on 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, 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
request and 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 the Borough of Manhattan, the City of 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. Statement by Officers as to Compliance. The
Company will deliver to the Trustee within 120 days after the end of each
fiscal year of the Company ending after the date hereof, a certificate signed
by the Company's principal executive officer, principal financial officer or
principal accounting officer stating to the best knowledge of the signer
thereof whether or not the Company has complied during such immediately
preceding fiscal year with and is in compliance with all terms, conditions and
covenants of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the signer has obtained
knowledge of any continuing default by the Company in the performance,
observation or fulfillment of any such term, condition or covenant, specifying
each such default and the nature thereof.
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee. In case
of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
reasonably satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed, the
specific provision of the Securities of such series pursuant to which such
Securities being called for redemption are being redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), 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 of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed, 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 of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
If any 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.
The Trustee shall promptly notify the Company 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.
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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 1104. 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 its address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount, if any, of any
accrued and unpaid interest payable on the Redemption Date,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption of any Securities, 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, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) if applicable, the conversion price, and that the date on
which the right to convert the principal of the Securities or the
portions thereof to be redeemed will terminate will be the Redemption
Date and the place or places where such Securities may be surrendered
for conversion,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. 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
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an
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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.
If any Security or portion thereof 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 or portion
thereof shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307) be paid to the Company upon Company Request or, if then held by
the Company, shall be discharged from such trust.
Section 1106. 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, unless otherwise specified as
contemplated by Section 301, 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 any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part. Any Security
which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the 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 the same series and of like tenor, 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
Conversion of Securities
Section 1201. Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
convertible into shares of Common Stock of the Company, and the issuance of
such shares of Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 301 for the Securities of such
series.
Section 1202. Exercise of Conversion Privilege. In order to
exercise a conversion privilege, the Holder of a Security of a series with such
a privilege shall surrender such Security to the Company at the office or
agency maintained for that purpose pursuant to Section 1002, accompanied by
written notice to the Company that the Holder elects to convert such Security
or a specified portion thereof. Such notice shall also state, if different
from the name and address of such Holder, the name or names (with address) in
which the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. Securities surrendered for
conversion shall (if so required by the Company or the Trustee) be duly
endorsed by or accompanied by instruments of transfer in forms satisfactory to
the Company and the Trustee duly executed by the registered Holder or its
attorney duly authorized in writing; and Securities so 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
(excluding Securities or portions thereof called for redemption during such
period) shall also be accompanied by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of such Security
then being converted, and such interest shall be payable to such registered
Holder notwithstanding the conversion of such Security, subject to the
provisions of Section 307 relating to the payment of Defaulted Interest by the
Company. As promptly as practicable after the receipt of such notice and of
any payment required pursuant to a Board Resolution and, subject to Section
303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto
setting forth the terms of such series of Security, and the surrender of such
Security in accordance with such reasonable procedures as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency
at which such Security is surrendered, to such Holder or on its written order,
a certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion thereof),
in accordance with the provisions of such Board Resolution, Officers'
Certificate or supplemental indenture, and cash as provided therein in respect
of any fractional share of such Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such
payment, if required, shall have been received in proper order for conversion
by the Company and such Security shall have been surrendered as aforesaid
(unless such Holder shall have so surrendered such Security and shall have
instructed the Company to effect the conversion on a particular date following
such surrender and such Holder shall be entitled to
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convert such Security on such date, in which case such conversion shall be
deemed to be effected immediately prior to the close of business on such date)
and at such time the rights of the Holder of such Security as such Security
Holder shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock of the Company shall be
issuable upon such conversion shall be deemed to have become the Holder or
Holders of record of the shares represented thereby. Except as set forth above
and subject to the final paragraph of 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
Common Stock of the Company issued upon such conversion.
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 or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the
unconverted portion of such Security.
Section 1203. No Fractional Shares. No fractional share of
Common Stock of the Company shall be issued upon conversions of Securities of
any series. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. If, except for the provisions of this Section 1203,
any Holder of a Security or Securities would be entitled to a fractional share
of Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such Holder
an amount in cash equal to the current market value of such fractional share
computed, (i) if such Common Stock is listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the last reported
sale price regular way on such exchange on the last trading day prior to the
date of conversion upon which such a sale shall have been effected, or (ii) if
such Common Stock is not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the average of
the bid and asked prices of such Common Stock in the over-the-counter market,
on the last trading day prior to the date of conversion, as reported by the
National Quotation Bureau, Incorporated or similar organization if the National
Quotation Bureau, Incorporated is no longer reporting such information, or if
not so available, the fair market price as determined by the Board of
Directors. For purposes of this Section, "trading day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than any day an which the Common
Stock is not traded on the New York Stock Exchange, or if the Common Stock is
not traded on the New York Stock Exchange, on the principal exchange or market
on which the Common Stock is traded or quoted.
Section 1204. Adjustment of Conversion Price. The conversion
price of Securities of any series that is convertible into Common Stock of the
Company shall be adjusted for any stock dividends, stock splits,
reclassification, combinations or similar transactions in
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accordance with the term of the supplemental indenture or Board Resolutions
setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the
applicable Board Resolution or supplemental indenture and shall prepare an
Officers' Certificate setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002 and, if
different, with the Trustee. The Company shall forthwith cause a notice
setting forth the adjusted conversion price to be mailed, first class postage
prepaid, to each Holder of Securities of such series at its address appearing
on the Security Register and to any conversion agent other than the Trustee.
Section 1205. Notice of Certain Corporate Actions. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out
of its retained earnings (other than a dividend for which approval of
any stockholders of the Company is required); or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights (other than any such grant for which approval of any
stockholders of the Company is required); or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
shares of Common Stock, or of any consolidation, merger or share
exchange to which the Company is a party and for which approval of any
stockholders of the Company is required), or of the sale of all or
substantially all of the assets of the Company; 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 shall cause to
be mailed to all Holders at their last addresses as they shall appear in the
Securities Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options 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, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, 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
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securities, cash or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, dissolution, liquidation or
winding up. If at any time the Trustee shall not be the conversion agent, a
copy of such notice shall also forthwith be filed by the Company with the
Trustee.
Section 1206. Reservation of Shares of Common Stock. The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock of the Company then issuable upon the conversion of all outstanding
Securities of any series that has conversion rights.
Section 1207. Payment of Certain Taxes Upon Conversion. The
Company will pay any and all taxes that may be payable in respect of the issue
or delivery of shares of its Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of
shares of its Common Stock in a name other than that of the Holder of the
Security or Securities to be converted, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the Company
the amount of any such tax, or has established, to the satisfaction of the
Company, that such tax has been paid.
Section 1208. Nonassessability. The Company covenants that
all shares of its Common Stock which may be issued upon conversion of
Securities will upon issue in accordance with the terms hereof be duly and
validly issued and fully paid and nonassessable.
Section 1209. Effect of Consolidation or Merger on Conversion
Privilege. In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture in
accordance with Section 801 providing that the Holder of each Security then
outstanding of any series that is convertible into Common Stock of the Company
shall have the right, which right shall be the exclusive conversion right
thereafter available to said Holder (until the expiration of the conversion
right of such Security), to convert such Security into the kind and amount of
shares of stock or other securities or property (including cash) receivable
upon such consolidation, merger or sale 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 consolidation, merger or sale, subject to compliance
with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidations, mergers or sales.
It is expressly agreed and understood that anything in this Indenture to the
contrary notwithstanding, if, pursuant to such merger, consolidation or sale,
holders of outstanding shares
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of Common Stock of the Company do not receive shares of common stock of the
surviving corporation but receive other securities, cash or other property or
any combination thereof, Holders of Securities shall not have the right to
thereafter convert their Securities into common stock of the surviving
corporation or the corporation which shall have acquired such assets, but
rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock of the Company into which the Securities held by such
holder might have been converted immediately prior to such consolidation,
merger or sale, all as more fully provided in the first sentence of this
Section 1209. Anything in this Section 1209 to the contrary notwithstanding,
the provisions of this Section 1209 shall not apply to a merger or
consolidation of another corporation with or into the Company pursuant to which
both of the following conditions are applicable: (i) the Company is the
surviving corporation and (ii) the outstanding shares of Common Stock of the
Company are not changed or converted into any other securities or property
(including cash) or changed in number or character or reclassified pursuant to
the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto;
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
Section 1210. Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent shall at any time be under any
duty or responsibility to any Holder of Securities of any series that is
convertible into Common Stock of the Company to determine whether any facts
exist which may require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, whether herein or in any supplemental indenture, any
resolutions of the Board of Directors or written instrument executed by one or
more officers of the Company 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
of the Company, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Securities and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Subject to the provisions of Section 601, neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of its Common Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or to comply with any of the covenants of the Company contained
in this Article Twelve or in the applicable supplemental indenture, resolutions
of the Board of Directors or written instrument executed by one or more duly
authorized officers of the Company.
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Section 1211. Repayment of Certain Funds Upon Conversion.
Any funds which at any time shall have been deposited by the Company or on its
behalf with the Trustee or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for the sinking fund referred to in
Article Three hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article Twelve shall
after such conversion be repaid to the Company by the Trustee upon the
Company's written request by Company Request.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. The Company may elect, at any time, to have either
Section 1302 or Section 1303 applied to the Outstanding Securities of any
series, upon compliance with the conditions set forth below in this Article
Thirteen.
Section 1302. Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 1301 to have this Section 1302
applied to the Outstanding Securities of any series, the Company shall be
deemed to have been discharged from its obligations, with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all its
other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of Securities of such
series to receive, solely from the trust fund described in Section 1304 and as
more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities of such series when payments
are due, (2) the Company's obligations with respect to the Securities of such
series under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, including, without
limitation, its rights under Section 607 and (4) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option provided in Section 1301 to have this Section 1302 applied to the
Outstanding Securities of any series notwithstanding the prior exercise of its
option provided in Section 1301 to have Section 1303 applied to the Outstanding
Securities of such series.
Section 1303. Covenant Defeasance. Upon the Company's
exercise of the option provided in Section 1301 to have this Section 1303
applied to the Outstanding Securities of any series, (1) the Company shall be
released from its obligations under Section 801 and (2) the
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occurrence of any event specified in Sections 501(3), 501(4) (with respect to
Section 801) and 501(5) shall be deemed not to be or result in an Event of
Default, in each case with respect to the Outstanding Securities of such series
as provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Covenant Defeasance"). For
this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(4)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but
the remainder of this Indenture and the Securities of such series shall be
unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of any series:
(1) The Company shall elect by Board Resolution to effect a
Defeasance pursuant to Section 1302 or a Covenant Defeasance pursuant
to Section 1303 with respect to the Outstanding Securities of any
series specified in such Board Resolution (the "Defeasible Series").
(2) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Outstanding Securities of such series, (i)
money in an amount, or (ii) U.S. Government Obligations that through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (iii) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on the Securities of such series on the
respective Stated Maturities, in accordance with the terms of this
Indenture and the Securities of such series. As used herein, "U.S.
Government Obligation" means (x) any security that is (i) a direct
obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality for the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any specific payment of principal of or
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interest on any such U.S. Government Obligation specified in Clause
(x) and held by such custodian for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation;
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the Holder
of such depositary receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
(3) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service, a ruling or (ii) since the
date hereof, there has been a change in the applicable Federal income
tax law, in case of either (i) or (ii) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to the Securities of such series and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance
and discharge were not to occur.
(4) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holder of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes
as result of the deposit and Covenant Defeasance to be effected with
respect to the Securities of such series and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(5) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such deposit.
(6) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred
and be continuing at the time of such deposit or, with regard to any
Event of Default or any such event specified in Sections 501(6) and
501(7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(7) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
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(8) Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be qualified under such Act or exempt
from regulation thereunder.
Section 1305. Deposited Money and U.S. Government Obligations
to be Held In Trust; Other Miscellaneous Provisions. Subject to the provisions
of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and Section 1306,
the Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1304 in respect of the Securities of any
Defeasible Series shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge that
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1304 with respect to Securities of any Defeasible Series
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with
respect to the Securities of such series.
Section 1306. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money in accordance with this Article Thirteen
with respect to the Securities of any series by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Thirteen with respect
to Securities of such series until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with
respect to Securities of such series in accordance with this Article Thirteen;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any Security of such series following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of Securities of such series to receive such payment from the money so
held in trust.
72
<PAGE> 81
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1211. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1402. Satisfaction of Sinking Fund Payments with
Securities. The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted pursuant to Article Twelve or
Securities of a series which have been acquired or redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities or otherwise, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 1403. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company shall deliver to the Trustee an Officers Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 nor more than 60 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104 and provide a
copy thereof to the Company five (5) days in advance of the mailing thereof.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
73
<PAGE> 82
ARTICLE FIFTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1501. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1502. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will 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 the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) sufficient
to pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1503. Exercise of Option.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places or which the Company shall from time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1504. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Security for repayment in accordance with such
provisions, the principal amount of such Security so to be repaid shall be paid
by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment 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 the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1505. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such security, without service charge and at the expense of the
Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
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.
74
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NABORS INDUSTRIES, INC.
By_______________________
Attest:
___________________
MARINE MIDLAND BANK,
as Trustee
By_______________________
Attest:
_____________________
75
<PAGE> 84
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _________________, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is __________________ of NABORS INDUSTRIES, INC., one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed her/his name
thereto by like authority.
________________________________________
<PAGE> 85
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ___________________, before me personally
came ________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is ___________________ of MARINE MIDLAND BANK, one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed her/his name
thereto by like authority.
________________________________________
<PAGE> 1
EXHIBIT 4.2
================================================================================
NABORS INDUSTRIES, INC.
TO
MARINE MIDLAND BANK,
TRUSTEE
_____________________
INDENTURE
Dated as of ______________
_____________________
Subordinated Debt Securities
================================================================================
<PAGE> 2
NABORS INDUSTRIES, INC.
Reconciliation and tie between certain Sections of
this Indenture, dated as of ______________, and
Sections 310 through 318, inclusive, of
the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
<S> <C> <C> <C>
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
316 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
- ------------------
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
RECITALS OF THE COMPANY
ARTICLE ONE
Definitions and Other Provisionsof General Application
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasible Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Floating or Adjustable Rate Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Floating or Adjustable Rate Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 105. Notices, Etc. to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 114. Personal Immunity from Liability for Incorporators, Stockholders, Etc . . . . . . . . . . . . . . . . . 12
ARTICLE TWO
Security Forms
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 204. Form of Legend for Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 205. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 206. Form of Conversion Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 207. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 402. Application of Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 37
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 505. Trustee May Enforce Claims Without Possession of Securities . . . . . . . . . . . . . . . . . . . . . . 38
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . . 48
Section 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 50
Section 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc. Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 905. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 906. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Section 907. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 908. Waiver of Compliance by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 909. Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 910. Notice of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 1004. Statement by Officers as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE TWELVE
Conversion of Securities
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1202. Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 1203. No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1204. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 1205. Notice of Certain Corporate Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1206. Reservation of Shares of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1207. Payment of Certain Taxes Upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1208. Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 1209. Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . 65
Section 1210. Duties of Trustee Regarding Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 1211. Repayment of Certain Funds Upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 67
Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 1305. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1402. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1403. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE FIFTEEN
Subordination of Securities
Section 1501. Securities Subordinate to Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1502. Payment Over of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 1503. Prior Payment to Senior Debt Upon Acceleration of Securities . . . . . . . . . . . . . . . . . . . . . 73
Section 1504. No Payment When Senior Debt in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1505. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1506. Subrogation to Rights of Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 1507. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1508. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1509. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1510. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1511. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . . . . . . 77
Section 1512. Trustee Not Fiduciary For Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1513. Rights of Trustee as Holder of Senior Debt; Preservation of Trustee's Rights . . . . . . . . . . . . . 77
Section 1514. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1515. Defeasance of This Article Fifteen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 1516. Certain Conversions Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE SIXTEEN
Repayment at Option of Holders
Section 1601. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1602. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Seciton 1603. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1604. When Securities Presented for Repayment Become Due and Payable . . . . . . . . . . . . . . . . . . . .
Section 1605. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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<PAGE> 9
INDENTURE, dated as of ______________, between NABORS
INDUSTRIES, INC., a Delaware corporation (herein called the "Company"), having
its principal office at 515 West Greens Road, Suite 1200, Houston, Texas 77067,
and MARINE MIDLAND BANK, a banking and corporate trust company duly organized
and existing under the laws of the State of New York, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), to be issued in one or more series as provided in
this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be a part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with 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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, 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 or the Securities Act of 1933, as amended, either
directly or by reference therein, 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, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
<PAGE> 10
(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 unless the
context otherwise requires.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either (i) the board of directors
of the Company, the executive committee of such board of directors or any other
duly authorized committee of directors and/or officers appointed by such board
of directors or executive committee, or (ii) one or more duly authorized
officers of the Company to whom the board of directors of the Company or a
committee thereof has delegated the authority to act with respect to the
matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified
by the Corporate Secretary or an Assistant Corporate Secretary of the Company
to have been duly adopted by the board of directors of the Company or a
committee thereof and to be in full force and effect on the date of such
certification or (ii) a certificate signed by the duly authorized officer or
officers of the Company to whom the board of directors of the Company or a duly
authorized committee thereof has delegated its authority (as described in the
definition of Board of Directors), and in each case, delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"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" means, with respect to the Company, its common
stock, par value $.10 per share, and with respect to any Principal Subsidiary,
stock of any class, however designated, except stock which is non-participating
beyond fixed dividend and liquidation preferences and the holders of which have
either no voting rights or limited voting rights entitling them, only in the
case of certain contingencies, to elect less than a majority of the directors
(or persons performing similar functions) of such Principal Subsidiary, and
shall
2
<PAGE> 11
include securities of any class, however designated, which are convertible into
such Common Stock.
"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.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by (i) any two of the following
individuals: the Chairman, a Vice Chairman, the President or a Vice President,
or (ii) by one of the foregoing individuals and by any other Vice President,
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Corporate Secretary or an Assistant Corporate Secretary or any other
individual authorized by the Board of Directors for such purpose (as set forth
in a Board Resolution), and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 140 Broadway, 12th
Floor, New York, New York 10005.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1303.
"days" means calendar days.
"Debt" means (without duplication and without regard to any
portion of principal amount that has not accrued and to any interest component
thereof (whether accrued or imputed) that is not due and payable) with respect
to any Person, whether recourse is to all or a portion of the assets of such
Person and whether or not contingent, (i) every obligation of such Person for
money borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses, (iii)
every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business), (v)
every capital lease obligation of such Person, (vi) the maximum fixed
redemption or repurchase price of redeemable stock of such Person at the time
of determination, and (vii) every obligation of the type referred to in clauses
(i) through (vi) of another Person and all dividends of another Person the
payment of which, in either case, such Person has guaranteed or is responsible
or liable, directly or indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
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"Defeasible Series" has the meaning specified in Section 1304.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute thereto.
"Floating or Adjustable Rate Provision" means a formula or
provision, specified in or pursuant to a Board Resolution or an indenture
supplemental hereto, providing for the determination, whether pursuant to
objective factors or pursuant to the sole discretion of any Person (including
the Company), and periodic adjustment of the interest rate borne by a Floating
or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security
which provides for interest thereon at a periodic rate that may vary from time
to time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities 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,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or
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<PAGE> 13
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind
specified in Section 501(4) and Section 501(5).
"Officers' Certificate" means a certificate signed by (i) any
two of the following individuals: the Chairman, a Vice Chairman, the President
or a Vice President, or (ii) by one of the foregoing individuals and by any
other Vice President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Corporate Secretary or an Assistant Corporate
Secretary, of the Company, or any other individual authorized by the Board of
Directors for such purpose (as specified in a Board Resolution), and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company, or who may be other counsel
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 502.
"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 canceled 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; 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;
(iii) Securities as to which Defeasance has been
effected pursuant to Section 1302; and
(iv) Securities which have been paid pursuant to
Section 306 or 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
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<PAGE> 14
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, (A) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, and (B) Securities owned by (i) the
Company or any other obligor upon the Securities or (ii) any Subsidiary or of
such other obligor upon the Securities shall be disregarded and 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 a Responsible Officer of 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 Subsidiary or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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.
"Principal Subsidiary" means any Subsidiary which at the time
of determination has, (A) assets which, as of the date of the Company's most
recently prepared quarterly consolidated balance sheet, constituted at least
15% of the Company's total assets on a consolidated basis as of such date, or
(B) revenues for the 12-month period ending on the date of the Company's most
recently prepared quarterly consolidated statement of income which constituted
at least 15% of the Company's total revenues on a consolidated basis for such
period or (C) net earnings for the 12-month period ending on the date of the
Company's most recently prepared quarterly consolidated statement of income
which constituted at least 15% of the Company's total net earnings on a
consolidated basis for such period.
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<PAGE> 15
"Proceeding" has the meaning specified in Section 1502.
"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.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer of the Trustee with responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company to the
extent that such claim for post-petition interest is allowed in such
proceeding), on Debt, whether incurred on or prior to the date of the Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities or to other
Debt which is pari passu with, or subordinated to the Securities; provided,
however, that Senior Debt shall not be deemed to include (1) the Securities or
(2) the Debt referred to in clause (vi) of the definition of Debt.
"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 principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the voting
power of which is controlled, 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
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<PAGE> 16
power" means the power to vote 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.
"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 or include each Person who is then a Trustee hereunder, if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this instrument was
executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended, and
except as provided in Section 906.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"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
such certificates and opinions as may be required under the Trust Indenture
Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 1004) shall include
(1) a statement that each Person 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 Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
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<PAGE> 17
(4) a statement as to whether, in the opinion of each such
Person, 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.
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, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which its 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, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate, opinion or representation by an accountant or firm
of accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows, or in the exercise of reasonable care should know, that
the certificate, opinion or representation with respect to such accounting
matters upon which its certificate, statement or opinion may be based is
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; Record Dates. (a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted 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.
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<PAGE> 18
(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 or her the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's 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 Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Outstanding Securities of such series. If not set
by the Company prior to the first solicitation of a Holder of Securities of
such series made by any Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register or by a certificate of the Security Registrar.
(e) 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.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
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 if made, given, furnished or
filed in writing to or with the Trustee at its
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<PAGE> 19
Corporate Trust Office; provided, however, that the same shall be
made, given, furnished or filed only when received by a Responsible
Officer of the Trustee at its Corporate Trust Office, Attention:
Corporate Trust 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;
provided, however, that the same shall be made, given, furnished or
filed only when received by the Company, Attention: President, or at
any other address previously furnished in writing to the Trustee by
the Company.
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 its
address as it appears in the Security Register, not later than the latest date
(if any), and not earlier than the earliest date (if any), prescribed for the
giving of such notice; provided, however, that the Company or the Trustee, upon
a good faith determination that mailing is in the circumstances impractical,
may give such notice by any other method which, in the reasonable belief of the
Company or, in the case of the Trustee, of the Company and the Trustee, is
likely to be received by the Holders. 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.
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.
Section 107. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the 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.
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.
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<PAGE> 20
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 and the Holders,
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, BUT WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 113. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security or
the last day on which a Holder has the right to convert a Security at a
particular conversion price shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) or conversion need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
Section 114. Personal Immunity from Liability for
Incorporators, Stockholders, Etc. No recourse shall be had for the payment of
the principal of or premium, if any, or interest, if any, on any Security, or
for any claim based thereon, or otherwise in respect of any Security, or based
on or in respect of this Indenture or any indenture supplemental hereto,
against any incorporator, or against any past, present or future stockholder,
director or officer, as such, of the Company or of any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being
expressly waived and released as a condition of, and as consideration for, the
execution of this Indenture and the issue of the Securities.
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<PAGE> 21
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities of each
series shall be in substantially the form set forth in this Article, or in such
other form as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case 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 or Depositary
therefor or as may, consistent herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Corporate Secretary or an Assistant Corporate Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
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<PAGE> 22
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code of
1986, as amended and the regulations thereunder.]
NABORS INDUSTRIES, INC.
No. ________ [$]_____
NABORS INDUSTRIES, INC., a Delaware corporation (herein called
the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of [$]
___________[__________ Dollars] [if applicable, insert one or more foreign
currencies, currency units or composite currencies] [if the Security is to bear
interest prior to Maturity, insert -- and to pay interest thereon from or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, [semi-annually on _______ and _________ in each year] [if other
than semi-annual payments, insert frequency of payments and payment dates],
commencing ________________, at [if the Security is to bear interest at a fixed
rate, insert -- the rate of ____% per annum] [if the Security is a Floating or
Adjustable Rate Security, insert -- a rate per annum [computed-determined] in
accordance with the [insert defined name of Floating or Adjustable Rate
Provision] set forth below] [if the Security is to bear interest at a rate
determined with reference to an index, refer to description of index below],
until the principal hereof is paid or made available for payment [if
applicable, insert -- and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of _____% per annum on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such 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 ______ or _______ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
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 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 Securities of this series 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 Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture).
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<PAGE> 23
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
[If the Securities are Floating or Adjustable Rate Securities
with respect to which the principal of or any premium or interest may be
determined with reference to an index, insert the text of the Floating or
Adjustable Rate Provision.]
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ___% per annum (to the extent
that the payment of such interest shall be legally enforceable), which shall
accrue from the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest shall also be
payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in __________, in
such coin or currency of [if applicable, insert -- the United States of
America] [if applicable, insert another currency, currency unit or composite
currency] as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register).
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.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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<PAGE> 24
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
NABORS INDUSTRIES, INC.
By____________________________
Attest:
__________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of ________________ (herein called
the "Indenture"), between the Company and Marine Midland 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 and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to [$]
_________[if applicable, insert -- relevant amount in applicable foreign
currency, currency unit or composite currency]].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' nor more than 60 days' notice
by mail, [if applicable, insert -- (1) on _____________ in any year commencing
with the year ____ and ending with the year _____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after ______________], 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 [on or
before ________, ___% and if redeemed] during the 12-month period beginning
________ of the years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued 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.]
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<PAGE> 25
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' nor more than 60 days' notice
by mail, (1) on _____ in any year commencing with the year _____ and ending
with the year _____ through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ______], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the
12-month period beginning _____ of the years indicated,
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Redemption Price For Redemption Through Redemption Price For Redemption Otherwise Than
Year Operation of the Sinking Fund Through Operation of the Sinking Fund
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity in 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.]
[The sinking fund for this series provides for the redemption
on ____ in each year beginning with the year ____ and ending with the year ____
of [not less than [$] ___________ ("mandatory sinking fund") and not more than]
[$] ___________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due).]
[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time
of (1) the entire indebtedness of this Security or (2) certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth in the Indenture.
[If the Security is convertible into Common Stock of the
Company, insert -- Subject to the provisions of the Indenture, the Holder of
this Security is entitled, at its option, at any time on or before [insert
date] (except that, in case this Security or any portion hereof shall be called
for redemption, such right shall terminate with respect to this Security or
portion hereof, as the case may be, so called for redemption at the close of
business on the date fixed for
17
<PAGE> 26
redemption as provided in the Indenture unless the Company defaults in making
the payment due upon redemption), to convert the principal amount of this
Security (or any portion hereof which is $1,000 or an integral multiple thereof
[if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units or composite currencies]), into fully paid and
non-assessable shares (calculated as to each conversion to the nearest 1/100th
of a share) of the Common Stock of the Company, as said shares shall be
constituted at the date of conversion, at the conversion price of [$]
__________ principal amount of Securities for each share of Common Stock, or at
the adjusted conversion price in effect at the date of conversion determined as
provided in the Indenture, upon surrender of this Security, together with the
conversion notice hereon duly executed, to the Company at the designated office
or agency of the Company in ___________, accompanied (if so required by the
Company) by instruments of transfer, in form satisfactory to the Company and to
the Trustee, duly executed by the Holder or by its duly authorized attorney in
writing. Such surrendering shall, if made during any period beginning at the
close of business on a Regular Record Date and ending at the opening of
business on the Interest Payment Date next following such Regular Record Date
(unless this Security or the portion being converted shall have been called for
redemption on a Redemption Date during such period), also be accompanied by
payment 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 for payment and, in the case of a conversion after
the Regular Record Date next preceding any Interest Payment Date and on or
before such Interest Payment Date, to the right of the Holder of this Security
(or any Predecessor Security) of record at such Regular Record Date to receive
an installment of interest (with certain exceptions provided in the Indenture),
no adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of Common Stock issued on conversion. The Company is not
required to issue fractional shares upon any such conversion, but shall make
adjustment therefor in cash on the basis of the current market value of such
fractional interest as provided in the Indenture. The conversion price is
subject to adjustment as provided in the Indenture. In addition, the Indenture
provides that in case of certain consolidations or mergers to which the Company
is a party or the sale of substantially all of the assets of the Company, the
Indenture shall be amended, without the consent of any Holders of Securities,
so that this Security, if then outstanding, will be convertible thereafter,
during the period this Security shall be convertible as specified above, only
into the kind and amount of securities, cash and other property receivable upon
the consolidation, merger or sale by a holder of the number of shares of Common
Stock into which this Security might have been converted immediately prior to
such consolidation, merger or sale (assuming such holder of Common Stock failed
to exercise any rights of election and received per share the kind and amount
received per share by a plurality of non-electing shares) [, assuming if such
consolidation, merger or sale is prior to [date], that this Security were
convertible at the time of such consolidation, merger or sale at the initial
conversion price specified above as adjusted from to such time pursuant to the
Indenture]. In the event of conversion of this Security in part only, a new
Security or Securities for the unconverted portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other securities or
property, specify the conversion features and the form of conversion notice
pursuant to Section 206 hereof.
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<PAGE> 27
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [Insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time outstanding of each
series to be affected, with certain exceptions as therein provided with respect
to certain modifications or amendments which may not be made without the
consent of each Holder of such Security affected thereby. The Indenture also
permits certain amendments and modifications thereto from time to time by the
Company and the Trustee without the consent of the Holders of any series of the
Securities to be affected thereby for certain specified purposes, including
curing ambiguities, defects or inconsistencies and making any such change that
does not adversely affect the rights of any Holder of such series of the
Securities, as provided therein.
The Indenture contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, 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
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
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, to pay the principal of and any
premium and Interest on this Security at the times, place and [rate(s)], and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or
19
<PAGE> 28
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof [if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units, or composite currencies]. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made 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 is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of
(and premium, if any) or interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities. Every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form or such other legends as may be required:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or
registered or exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and no such
transfer may be registered, except in the limited circumstances
described in the Indenture. Every Security authenticated and
delivered upon registration of transfer of, or in
20
<PAGE> 29
exchange for or in lieu of, this Security shall be a Global Security
subject to the foregoing, except in such limited circumstances.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Marine Midland Bank,
as Trustee
By____________________________
Authorized Signatory
Section 206. Form of Conversion Notice.
To Nabors Industries, Inc.
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
$1,000 or an integral multiple thereof [if applicable, insert the equivalent
thereof in one or more foreign currencies, currency units or composite
currencies]) below designated, into shares of Common Stock of the Company in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon the conversion, together
with any check in payment for fractional shares and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
this Notice is being delivered on a date after the close of business on a
Regular Record Date and prior to the opening of business on the related
Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption on a Redemption Date within such
period), this Notice is accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date of the principal of this
Security to be converted. 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 hereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of
$1,000, if less than all [if applicable,
insert the equivalent thereof in one
or more foreign currencies, currency
units or composite currencies]):
[$]_____________
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<PAGE> 30
Dated______________ ________________________________________
Signature
Signature(s) must be guaranteed by an
institution which is a member of one
of the following recognized signature
Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program
(STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP);
(iii) The Stock Exchange Medallion
Program (SEMP) or (iv) another
guarantee program acceptable to the
Trustee.
________________________________________
Signature Guarantee
Fill in for registration of shares of Common Stock and
Security if to be issued otherwise than to the registered holder.
_______________________________
(Name)
________________________________
(Address)
Please print Name and
Address (including zip code
number)
Social Security or other Taxpayer
Identifying Number_____________
SECTION 207. Securities Issuable in Global Form.
If Securities of or within a series in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (11) of
Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or Section 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security the
Holder of such permanent global Security in registered form.
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities may be issued in
one or more series. There shall be established in or pursuant to a Board
Resolution or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
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<PAGE> 31
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Sections 304, 305,
306, 907, 1107 or 1202 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than 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;
(4) the date or dates, or the method or methods (and related
procedures) by which such date or dates will be determined or extended,
on which the principal of the Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the Floating or Adjustable Rate
Provision pursuant to which such rates shall be determined, the date
or dates from which such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment Date;
(6) whether the Securities of the series would be secured
pursuant to Section 901(7);
(7) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be
payable;
(8) if applicable, the period or periods within which, the
price or prices at which (including premium, if any) and the terms and
conditions upon which Securities of the series shall be redeemed, in
whole or in part, at the option of the Company pursuant to a sinking
fund or otherwise;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(10) if applicable, the terms of any right to convert or
exchange Securities of the series into shares of Common Stock of the
Company or other securities or property of the Company or other
issuers;
23
<PAGE> 32
(11) if other than denominations of $1,000 and any integral
multiple thereof (or the equivalent thereof in one or more foreign
currencies, currency units or composite currencies), the denominations
in which Securities of the series shall be issuable;
(12) if the amount of payments of principal of (or premium,
if any) or interest, if any, on any Securities of the series may be
determined with reference to one or more indices, the manner in which
such amounts shall be determined;
(13) if other than currency of the United States, one or more
foreign currencies, currency units or composite currencies in which
the Securities of the series are to be denominated;
(14) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency in
which payment of the principal of (and premium, if any) and interest
on the Securities of the series shall be payable;
(15) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable under any applicable federal or
state bankruptcy or similar law pursuant to Section 503;
(16) if applicable, that the Securities of the series shall
be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstance other than
those set forth in Section 305 in which any such Global Security may
be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such
Global Security or a nominee thereof and in which any such transfer
may be registered;
(17) any other event or events of default applicable with
respect to the Securities of the series in addition to those provided
in Section 501(1) through (7);
(18) any other covenant or warranty included for the benefit
of Securities of the series in addition to (and not inconsistent with)
those included in this Indenture for the benefit of Securities of all
series, or any other covenant or warranty included for the benefit of
Securities of the series in lieu of any covenant or warranty included
in this Indenture for the benefit of Securities of all series, or any
provision that any covenant or warranty included in this Indenture for
the benefit of Securities of all series shall not be for the benefit
of Securities of the series, or any combination of such covenants,
warranties or provisions;
(19) any restriction or condition on the transferability of
the Securities of the series;
24
<PAGE> 33
(20) any authenticating or paying agents, registrars,
conversion agents or any other agents with respect to the Securities
of the series; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(6)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of such action shall be delivered
to the Trustee.
Section 302. Denominations. The Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof [if applicable, insert the equivalent thereof in one or more foreign
currencies, currency units or composite currencies].
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman, a
Vice Chairman, its President, any Vice President, its Treasurer or Assistant
Treasurer, its Controller or Assistant Controller under its corporate seal
reproduced thereon attested by its Corporate Secretary or one of its Assistant
Corporate Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Securities bearing the manual or facsimile signatures of
individuals who were at any 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. Minor
typographical and other minor errors in the text of any Security or minor
defects in the seal or facsimile signature on any Security shall not affect the
validity or enforceability of such Security if it has been duly authenticated
and delivered by the Trustee.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
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 the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions or indentures
supplemental hereto as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
25
<PAGE> 34
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 201, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolutions or indentures supplemental hereto as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
generally and to general equity principles.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors, executive committee, or a
trust committee of directors or committee of Responsible Officers of the
Trustee shall determine that such action would expose the Trustee to personal
liability to existing Holders of Securities.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
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. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
26
<PAGE> 35
Section 304. Temporary Securities. Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers of the Company executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
Section 305. Registration, Registration of Transfer and
Exchange. 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 in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable procedures as it or the Trustee may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
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 entitled to the same
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benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Trustee) 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.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company or the Trustee 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, 907, 1107 or 1202 not
involving any transfer.
Neither the Company nor the Trustee shall be required (i) to
issue, register the transfer of or exchange Securities of any series during a
period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected for
redemption under Section 1103 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than the Depositary for
such Global Security or any nominee thereof, and no such transfer may be
registered, unless (1) such Depositary (A) notifies the Company and the Trustee
that it is unwilling or unable to continue as Depositary for such Global
Security or (B) ceases to be a clearing agency registered under the Exchange
Act, (2) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so transferable, registrable and exchangeable,
and such transfers shall be registrable, (3) there shall have occurred and be
continuing an Event of Default with respect to the Securities evidenced by such
Global Security or (4) there shall exist such other circumstances, if any, as
have been specified for this purpose as contemplated by Section 301.
Notwithstanding any other provision in this Indenture, a Global Security to
which the restriction set forth in the preceding sentence shall have ceased to
apply may be transferred only to, and may be registered and exchanged for
Securities registered only in the name or names of, such Person or Persons as
the Depositary for such Global Security shall have directed and no transfer
thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security to which
the restriction set forth in the first sentence of the preceding paragraph
shall apply, whether pursuant to this Section, Section 304, 306, 907, 1107 or
1202 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security.
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Section 306. Mutilated, Destroyed, Lost and Stolen
Securities. If there shall be delivered to the Company and the Trustee (i) a
mutilated Security, or (ii) evidence to their satisfaction of the destruction,
loss or theft of any Security and in either case such security or indemnity as
may be required by either of them to save each of them and any agent of either
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such mutilated, destroyed, lost or stolen Security, a new Security of the same
series and 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
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company or the Trustee may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
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 of that series 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.
Except as otherwise provided as contemplated by Section 301 with respect to any
series of Securities, 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 of any series 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 such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(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
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Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series 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 reasonably 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 15 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
given to each Holder of Securities of such series, in the manner set
forth in Section 106, 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 given,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (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 (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such 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.
Subject to the provisions of Section 1202, 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 the
principal of (or premium, if any, on)) which shall become due and payable,
whether at a Stated Maturity or by declaration of acceleration, call for
redemption, or otherwise, 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 any one or more Predecessor Securities)
is registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, 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.
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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 principal of and any premium and (subject to Section 307)
any 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, registration of transfer or exchange or for credit against
any sinking fund payment or for conversion shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee and shall be promptly
canceled 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 may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order or, in the
absence of such Company Order, in accordance with the Trustee's customary
practice. Acquisition by the Company of any Security shall not operate as a
redemption or satisfaction of the indebtedness represented by such Security
unless and until the same is delivered to the Trustee for cancellation.
Section 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Securities of a series herein expressly provided for) with respect to
Securities of any series, and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to a series, when
(1) either
(A) all Securities of such series 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 of such series 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 of such series 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
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(iii) are to be called for redemption within one
year under arrangements reasonably 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
deposited or caused to be deposited with the Trustee in trust
irrevocably (A) money (in United States dollars) in an amount, or (B)
U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge the entire indebtedness on such
Securities of such series not theretofore delivered to the Trustee for
cancellation, for principal of (and premium, if any) and interest to
the date of such deposit (in the case of Securities of such series
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 with respect to such series have been
complied with.
In the event there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of a particular series as to which it is
Trustee and if the other conditions thereto are met. In the event that there
are two or more Trustees hereunder, then the effectiveness of any such
instrument shall be conditioned upon receipt of such instruments from all
Trustees hereunder.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to a particular series, the obligations of the Company
to the Trustee under Section 607, the obligations of the Company 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 until there are no Securities Outstanding with respect to a
particular series and the obligations of the Company and the Trustee with
respect to all other series of Securities shall survive.
Section 402. Application of Trust Fund. Subject to
provisions of the last paragraph of Section 1003, all amounts 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
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the principal and any premium and interest for whose payment such funds have
been deposited with the Trustee. Money deposited pursuant to this section not
in violation of this Indenture shall not be subject to claims of the holders of
Senior Debt under Article Fifteen.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default" whenever used with respect to Securities of
a series means any one of the following events and such other events as may be
established with respect to the Securities of such series as contemplated by
Section 301 hereof (whether or not it shall be occasioned by the provisions of
Article Fifteen):
(1) Default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, 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 of the Securities of such series as and when the same
shall become due and payable either at maturity, upon redemption, by
declaration of acceleration or otherwise and continuance of such
default for a period of ten days; or
(3) Default in the making of any sinking fund payment,
whether mandatory or optional, as and when the same shall become due
and payable by the terms of the Securities of such series and
continuance of such default for a period of ten days; or
(4) Failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company contained in this Indenture (other than those set forth
exclusively in the terms of any other particular series of Securities
established as contemplated by this Indenture for the benefit of such
other series) and written notice of such failure, stating that such
notice is a "Notice of Default" hereunder, and requiring the Company
to remedy the same, shall have been given by registered or certified
mail, return receipt requested, 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 of that
series, and such failure shall have continued unremedied for a period
of 90 days after the date of the Company's receipt of such Notice of
Default; or
(5) (i) An event of default, as defined in any indenture or
instrument evidencing or under which the Company or any Principal
Subsidiary shall have outstanding indebtedness for borrowed money in a
principal amount in excess of $25,000,000, shall happen and be
continuing and such indebtedness shall have been accelerated so that
the
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same shall be or become due and payable prior to the date on which the
same would otherwise have become due and payable or (ii) the Company
or any Principal Subsidiary shall default in the payment at final
maturity of outstanding indebtedness for borrowed money in a principal
amount in excess of $25,000,000, and such acceleration or default at
maturity shall not be waived, rescinded or annulled within 30 days
after written notice thereof, stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee (if such event be known to it), or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Outstanding Securities of that series; provided, however, that
if such acceleration under such indenture or instrument or default at
maturity shall be remedied or cured by the Company or Principal
Subsidiary, or waived, rescinded or annulled by the requisite holders
of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the
Trustee or any of the Holders; or
(6) A decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of the Company
under any applicable Federal or State bankruptcy or similar law, and
such decree or order shall have continued undischarged and unstayed
for a period of 90 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver,
liquidator, trustee, assignee, sequestrator or similar official in
bankruptcy or insolvency of the Company or of all or substantially all
of its property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have continued
undischarged and unstayed for a period of 90 days; or
(7) The Company shall institute proceedings to be adjudicated
a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization, arrangement, adjustment or composition under
any applicable Federal or State bankruptcy or similar law, or shall
consent to the filing of any such petition, or shall consent to the
appointment of a receiver, liquidator, trustee, assignee, sequestrator
or similar official in bankruptcy or insolvency of the Company or of
all or substantially all of its property, or shall make an assignment
for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due and its willingness to
be adjudged a bankrupt, or corporate action shall be taken by the
Company in furtherance of any of the aforesaid purposes; or
(8) Any other Event of Default provided with respect to
Securities of that series.
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The Company shall deliver to the Trustee written notice of any
Event of Default or event which with the giving of notice or lapse of time or
both would become an Event of Default under clauses (4), (5), (6) and (7)
hereof within 30 days of knowledge thereof by the Company, provided that in the
case of clause (4) no such notice will be required to be given by the Company
if such default shall be cured by the Company within such 30 day period.
The Trustee shall not be charged with knowledge of any default
(as defined in Section 602) or Event of Default unless written notice thereof
shall have been given to the Trustee by the Company, the Paying Agent of that
series (provided that no such notice shall be required to be given if the
Trustee acts as Paying Agent of such series), or with respect to a default or
an Event of Default under clause (5) of this Section by the holder of any such
indebtedness or an agent of the holder of any such indebtedness or by the
trustee then acting under any such indenture or other instrument under which
such default shall have occurred, or by Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series 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 amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series 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 principal
amount of the Outstanding Securities of that series, 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 of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
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(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section
607, except such costs and expenses as are a result of
negligence or bad faith on the part of the Trustee; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of and interest,
if any, on the Securities of that series 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.
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 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 and
continuance of such default for a period of ten days,
the Company will, upon written 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 any premium and interest and, to
the extent that payment of such interest shall be legally enforceable,
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interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such 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 and any other
amounts due the Trustee under Section 607, except such costs and expenses, as
are a result of negligence or bad faith on the part of the Trustee. Until such
demand is made by the Trustee, the Company may pay the principal of and
premium, if any, and interest, if any, on the Securities of any series to the
registered Holders, whether or not the Securities of such series are overdue.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee 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
any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized 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, except such costs and expenses
as are a result of negligence or bad faith on the part of the Trustee.
No provision of this Indenture 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; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
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
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Trustee, its agents and counsel except such costs and expenses, as are a result
of negligence or bad faith on the part of the Trustee, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 506. Application of Money Collected. Subject to
Article Fifteen, 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 case of the distribution of such money on account of principal
or any premium or 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 amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium 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 any
premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
Section 507. Limitation on Suits. No Holder of any Security
of any series 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 with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series 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 have offered to the Trustee
indemnity reasonably satisfactory in form and substance 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 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 principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb
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or prejudice the rights of any other of such Holders, or to obtain or to seek
to obtain priority or preference over any other of such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all of such Holders.
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 in absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Section 307) any interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to convert such Securities in
accordance with the terms thereof and to institute suit for the enforcement of
any such payment or such right of conversion, 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 Securities 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. Subject to Section 507, 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.
Section 512. Control by Holders. With respect to the
Securities of any series, the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall have the right to
direct 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, with respect to the Securities of such series; provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
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(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part
in such direction, and
(3) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, 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 of such series 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.
Section 514. Undertaking for Costs. 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, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in
the manner and to the extent provided in the Trust Indenture Act; provided,
however, that neither this
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Section 514 nor the Trust Indenture Act will be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company or the Trustee.
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.
(a) If an Event of Default with respect to Securities of any
series at the time Outstanding has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in its exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, in the absence of bad faith on its part,
upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. The
Trustee, however, shall examine such certificates and opinions
to determine whether or not they conform to the requirements
of this Indenture but need not verify the accuracy of the
contents thereof.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
512.
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(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise
any right or power unless it receives indemnity reasonably satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds,
except to the extent required by law.
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 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. If a default or Event of
Default occurs and is continuing hereunder with respect to Securities of any
series, and if such default or Event of Default is known to a Responsible
Officer of the Trustee, the Trustee shall mail the Holders of Securities of
such series notice of such default within 90 days after it occurs; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. Except in
the case of a default in payment on any Security of any series or in the
payment of any sinking fund installment, the Trustee may withhold notice if and
so long as a trust committee of directors or Responsible Officers of the
Trustee in good faith determines that withholding the notice is in the interest
of Holders of Securities of such series. 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 with respect to Securities of such
series.
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
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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
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory in form and substance 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
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 upon reasonable notice to
the Company be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney at a time and place
acceptable to the Company;
(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; and
(h) the Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers conferred upon it by this
Indenture.
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 or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent 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
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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 in writing 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 written request for all
reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation, and
reasonable expenses and disbursements of its agents and
outside counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense (including
the reasonable fees and expenses of legal counsel) incurred
without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of the
trust or trusts and the performance of its duties hereunder,
including the reasonable 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.
To secure the Company's payment obligations under this
Section, the Trustee shall have a lien prior to the Securities on all money or
property of the Company held or collected by the Trustee in its capacity as
Trustee or as Paying Agent hereunder (but not in any other capacity), except
that held in trust to pay principal of (and 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 with respect to any
series of Securities, the expenses and the compensation for the services are
intended to constitute expenses of administration under any Federal or State
bankruptcy law or similar law.
The Company's obligations under this Section 607 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article Four or Article
Thirteen hereof and the termination of this Indenture.
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Section 608. Disqualification; Conflicting Interests. If the
Trustee has or shall acquire any 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. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to the
Securities of more than one series.
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 and has a combined
capital and surplus of at least $50,000,000 or is a subsidiary of a corporation
which shall be a Person that has a combined capital and surplus of at least
$50,000,000 and which unconditionally and irrevocably guarantees the
obligations of the Trustee hereunder upon terms satisfactory to the Company.
If such 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 Person
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.
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 in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 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
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, 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 thereof 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 Holder, or
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(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 with respect to all Securities, 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 itself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or be incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any Series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed 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 the request of the Company or the
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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, subject to its lien, if any, provided for in
Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of such series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer the rights, powers, trust and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each 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 with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) 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
referred to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor 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
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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.
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 with the consent of the Company appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer,
partial conversion or partial redemption thereof 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 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
written notice thereof to the Trustee and to the Company. The Trustee or the
Company may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent
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and to the Company or the Trustee, as the case may be. 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 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 of
Securities of the series with respect to which such Authenticating Agent will
serve, 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 Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Marine Midland Bank,
as Trustee
By ____________________________________
as Authenticating Agent
By ____________________________________
Authorized Officer
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
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(a) semi-annually, not later than 10 days after each Regular
Record Date in each year, a list for each series of Securities, in
such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of the
preceding Regular Record Date, and
(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;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for the Securities of a series, no such list need be furnished with
respect to such series of Securities.
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 the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges 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 or other applicable law.
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. To the extent that any such report is required by the Trust
Indenture Act with respect to any 12 month period, such report shall cover the
12 month period ending July 15 and shall be transmitted by the next succeeding
September 15.
(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 any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company. 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
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in the manner provided pursuant to such Act. Any information, documents or
reports required to be filed by the Company with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, or Sale of Assets
Section 801. Company May Consolidate, Etc. Only on Certain
Terms. The Company shall not consolidate with or merge into any other Person
or sell its properties and assets as, or substantially as, an entirety to any
Person, and the Company shall not permit any Person to consolidate with or
merge into the Company, unless:
(1) in case the Company shall consolidate with or
merge into another Person or sell its properties and assets
as, or substantially as, an entirety to any Person, the Person
formed by such consolidation or into which the Company is
merged or the Person which purchases the properties and assets
of the Company as, or substantially as, an entirety shall be a
corporation, partnership or trust, 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 reasonably
satisfactory to the Trustee, all of the obligations of the
Company under the Securities and the Indenture and the
conversion rights, if any, shall be provided for in accordance
with Article Twelve, by supplemental indenture reasonably
satisfactory in form to the Trustee, executed and delivered to
the Trustee, by the Person (if other than the Company) formed
by such consolidation or into which the Company shall have
been merged or by the Person which shall have acquired the
Company's assets;
(2) immediately after giving effect to such
transaction, no 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 or sale 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 Substituted. Upon any consolidation
of the Company with, or merger of the Company into, any other Person or any
sale of the properties and assets of the Company as, or 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 sale is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the
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Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
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 reasonably
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 of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such additional Events of Default are to be for the benefit
of less than all series of Securities, stating that such
additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to permit
or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to permit
or facilitate the issuance of Securities of any series
denominated in one or more foreign currencies, currency units
or composite currencies; or
(6) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series
of Securities, including, without limitation, with respect to
any of the provisions set forth in Article Fifteen, provided
that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior
to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (B) modify the rights of
the Holder of any such Security with respect to such provision
or (ii) shall become effective only when there is no such
Security Outstanding; or
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(7) to secure the Securities of any series; or
(8) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(9) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the
requirements of Section 611(b); or
(10) 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
that such action pursuant to this clause shall not adversely
affect the interests of the Holders of Securities of any
series in any material respect; or
(11) to make provision with respect to the
conversion rights of Holders pursuant to the requirements of
Article Twelve, including providing for the conversion of the
Securities into any security (other than the Common Stock of
the Company) or property of the Company; or
(12) to conform to any mandatory provisions of law.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority of principal amount
of the Outstanding Securities of each series affected by such supplemental
indenture, 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 of
Securities of such series 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 principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon
(including any change in the Floating or Adjustable Rate Provision
pursuant to which such rate is determined that would reduce such rate
for any period) or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which,
any Security or any premium or interest thereon is payable, or impair
the right to institute 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); provided, however, that with the
consent of the Holders of not less
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than 75% of the Outstanding Securities of any series affected, the
Company may postpone any interest payment in respect of such series
for a period not to exceed three years, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, 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) if applicable, make any changes that adversely affects
the right to convert any Security to which the provisions of Article
Twelve are applicable or, except as provided in this Indenture,
decrease the conversion rate or increase the conversion price of any
such Security, or
(4) modify any of the provisions of this Section, Section 513
or Section 908, 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, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 908, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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.
Section 903. Execution of Supplemental Indentures. In
executing, or accepting the 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, in addition
to the documents required by Section 102, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and, with respect to supplemental indentures under Section 902
hereof, evidence of the consents of Holders required in connection therewith.
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.
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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.
Section 905. Revocation and Effect of Consents. Until an
amendment or supplement under this Article or a waiver under this Article
becomes effective, a consent to it by a Holder of a Security is a continuing
consent by the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security, even
if notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective.
After an amendment or supplement becomes effective, it shall
bind every Holder.
Section 906. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
Section 907. Reference in Securities to Supplemental
Indentures. Securities of any series 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 of any series 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 of such series.
Section 908. Waiver of Compliance by Holders. Anything in
this Indenture to the contrary notwithstanding, any of the acts which the
Company is required to do, or is prohibited from doing, by any of the
provisions of this Indenture may, to the extent that such provisions might be
changed or eliminated by a supplemental indenture pursuant to Section 902 upon
consent of Holders of not less than a majority in aggregate principal amount of
the then Outstanding Securities of the series affected, be omitted or done by
the Company, if there is obtained the prior consent or waiver of the Holders of
at least a majority in aggregate principal amount of the then Outstanding
Securities of such series.
Section 909. Subordination Unimpaired. No provision in any
supplemental indenture that affects the superior position of the holders of
Senior Debt shall be effective against holders of Senior Debt.
Section 910. Notice of Supplemental Indenture. Promptly
after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of
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Section 902, the Company shall give notice thereof to the Holders of each
Outstanding Security affected, in the manner provided for in Section 106,
setting forth in general terms the substance of the supplemental indenture.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay or cause to be paid the principal of and
any premium and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency. So long as
any Securities are Outstanding, the Company will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange, where
Securities of that series may be surrendered for conversion and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. 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 where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; 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 each Place of Payment for Securities of any
series 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 Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and 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 for
any series of Securities, it will, prior to each due date of the principal of
or any premium or interest on any
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Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, 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 for any series of
Securities 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 (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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 or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on 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, 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
request and 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 the Borough of Manhattan, the City of 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. Statement by Officers as to Compliance. The
Company will deliver to the Trustee within 120 days after the end of each
fiscal year of the Company ending after the date hereof, a certificate signed
by the Company's principal executive officer, principal financial officer or
principal accounting officer stating to the best knowledge of the signer
thereof whether or not the Company has complied during such immediately
preceding fiscal year with and is in compliance with all terms, conditions and
covenants of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the signer has obtained
knowledge of any continuing default by the Company in the performance,
observation
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or fulfillment of any such term, condition or covenant, specifying each such
default and the nature thereof.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee. In case
of any redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
reasonably satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed, the
specific provision of the Securities of such series pursuant to which such
Securities being called for redemption are being redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), 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 of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed, 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 of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
If any 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 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 1104. 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 its address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount, if any, of
any accrued and unpaid interest payable on the Redemption
Date,
(3) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, 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, if applicable, that interest thereon will cease
to accrue on and after said date,
(5) if applicable, the conversion price, and that
the date on which the right to convert the principal of the
Securities or the portions thereof to be redeemed will
terminate will be the Redemption Date and the place or places
where such Securities may be surrendered for conversion,
(6) the place or places where such Securities are to
be surrendered for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. 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
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its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money 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.
If any Security or portion thereof 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 or portion
thereof shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307) be paid to the Company upon Company Request or, if then held by
the Company, shall be discharged from such trust.
Section 1106. 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, unless otherwise specified as
contemplated by Section 301, 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 any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part. Any Security
which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the 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 the same series and of like tenor, 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
Conversion of Securities
Section 1201. Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series which are
convertible into shares of Common Stock of the Company, and the issuance of
such shares of Common Stock upon the conversion of such Securities, except as
otherwise specified as contemplated by Section 301 for the Securities of such
series.
Section 1202. Exercise of Conversion Privilege. In order to
exercise a conversion privilege, the Holder of a Security of a series with such
a privilege shall surrender such Security to the Company at the office or
agency maintained for that purpose pursuant to Section 1002, accompanied by
written notice to the Company that the Holder elects to convert such Security
or a specified portion thereof. Such notice shall also state, if different
from the name and address of such Holder, the name or names (with address) in
which the certificate or certificates for shares of Common Stock which shall be
issuable on such conversion shall be issued. Securities surrendered for
conversion shall (if so required by the Company or the Trustee) be duly
endorsed by or accompanied by instruments of transfer in forms satisfactory to
the Company and the Trustee duly executed by the registered Holder or its
attorney duly authorized in writing; and Securities so 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
(excluding Securities or portions thereof called for redemption during such
period) shall also be accompanied by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of such Security
then being converted, and such interest shall be payable to such registered
Holder notwithstanding the conversion of such Security, subject to the
provisions of Section 307 relating to the payment of Defaulted Interest by the
Company. As promptly as practicable after the receipt of such notice and of
any payment required pursuant to a Board Resolution and, subject to Section
303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto
setting forth the terms of such series of Security, and the surrender of such
Security in accordance with such reasonable procedures as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency
at which such Security is surrendered, to such Holder or on its written order,
a certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Security (or specified portion thereof),
in accordance with the provisions of such Board Resolution, Officers'
Certificate or supplemental indenture, and cash as provided therein in respect
of any fractional share of such Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such
payment, if required, shall have been received in proper order for conversion
by the Company and such Security shall have been surrendered as aforesaid
(unless such Holder shall have so surrendered such Security and shall have
instructed the Company to effect the conversion on a particular date following
such surrender and such Holder shall be entitled to convert such Security on
such date, in which case such conversion shall be deemed to be effected
immediately prior to the close of business on such date) and at such time the
rights of the Holder
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of such Security as such Security Holder shall cease and the person or persons
in whose name or names any certificate or certificates for shares of Common
Stock of the Company shall be issuable upon such conversion shall be deemed to
have become the Holder or Holders of record of the shares represented thereby.
Except as set forth above and subject to the final paragraph of 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 Common Stock of the Company issued upon such conversion.
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 or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the
unconverted portion of such Security.
Section 1203. No Fractional Shares. No fractional share of
Common Stock of the Company shall be issued upon conversions of Securities of
any series. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. If, except for the provisions of this Section 1203,
any Holder of a Security or Securities would be entitled to a fractional share
of Common Stock of the Company upon the conversion of such Security or
Securities, or specified portions thereof, the Company shall pay to such Holder
an amount in cash equal to the current market value of such fractional share
computed, (i) if such Common Stock is listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the last reported
sale price regular way on such exchange on the last trading day prior to the
date of conversion upon which such a sale shall have been effected, or (ii) if
such Common Stock is not at the time so listed or admitted to unlisted trading
privileges on a national securities exchange, on the basis of the average of
the bid and asked prices of such Common Stock in the over-the-counter market,
on the last trading day prior to the date of conversion, as reported by the
National Quotation Bureau, Incorporated or similar organization if the National
Quotation Bureau, Incorporated is no longer reporting such information, or if
not so available, the fair market price as determined by the Board of
Directors. For purposes of this Section, "trading day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday other than any day an which the Common
Stock is not traded on the New York Stock Exchange, or if the Common Stock is
not traded on the New York Stock Exchange, on the principal exchange or market
on which the Common Stock is traded or quoted.
Section 1204. Adjustment of Conversion Price. The conversion
price of Securities of any series that is convertible into Common Stock of the
Company shall be adjusted for any stock dividends, stock splits,
reclassification, combinations or similar transactions in accordance with the
term of the supplemental indenture or Board Resolutions setting forth the terms
of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall
compute the adjusted conversion price in accordance with terms of the
applicable Board Resolution or
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supplemental indenture and shall prepare an Officers' Certificate setting forth
the adjusted conversion price and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall forthwith be filed
at each office or agency maintained for the purpose of conversion of Securities
pursuant to Section 1002 and, if different, with the Trustee. The Company
shall forthwith cause a notice setting forth the adjusted conversion price to
be mailed, first class postage prepaid, to each Holder of Securities of such
series at its address appearing on the Security Register and to any conversion
agent other than the Trustee.
Section 1205. Notice of Certain Corporate Actions. In case:
(a) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than
in cash out of its retained earnings (other than a dividend
for which approval of any stockholders of the Company is
required); or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights (other than any such grant for
which approval of any stockholders of the Company is
required); or
(c) of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its
outstanding shares of Common Stock, or of any consolidation,
merger or share exchange to which the Company is a party and
for which approval of any stockholders of the Company is
required), or of the sale of all or substantially all of the
assets of the Company; 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 shall cause to
be mailed to all Holders at their last addresses as they shall appear in the
Securities Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights, options 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, options or
warrants are to be determined, or (ii) the date on which such reclassification,
consolidation, merger, share exchange, sale, 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, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, sale,
dissolution, liquidation or winding up. If at any time the Trustee shall not
be the conversion agent, a copy of such notice shall also forthwith be filed by
the Company with the Trustee.
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Section 1206. Reservation of Shares of Common Stock. The
Company shall at all times reserve and keep available, free from preemptive
rights, out of its authorized but unissued Common Stock, for the purpose of
effecting the conversion of Securities, the full number of shares of Common
Stock of the Company then issuable upon the conversion of all outstanding
Securities of any series that has conversion rights.
Section 1207. Payment of Certain Taxes Upon Conversion. The
Company will pay any and all taxes that may be payable in respect of the issue
or delivery of shares of its Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue and delivery of
shares of its Common Stock in a name other than that of the Holder of the
Security or Securities to be converted, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the Company
the amount of any such tax, or has established, to the satisfaction of the
Company, that such tax has been paid.
Section 1208. Nonassessability. The Company covenants that
all shares of its Common Stock which may be issued upon conversion of
Securities will upon issue in accordance with the terms hereof be duly and
validly issued and fully paid and nonassessable.
Section 1209. Effect of Consolidation or Merger on Conversion
Privilege. In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the Company shall have
been merged or the Person which shall have acquired such assets, as the case
may be, shall execute and deliver to the Trustee a supplemental indenture in
accordance with Section 801 providing that the Holder of each Security then
outstanding of any series that is convertible into Common Stock of the Company
shall have the right, which right shall be the exclusive conversion right
thereafter available to said Holder (until the expiration of the conversion
right of such Security), to convert such Security into the kind and amount of
shares of stock or other securities or property (including cash) receivable
upon such consolidation, merger or sale 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 consolidation, merger or sale, subject to compliance
with the other provisions of this Indenture, such Security and such
supplemental indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above provisions of this
Section shall similarly apply to successive consolidations, mergers or sales.
It is expressly agreed and understood that anything in this Indenture to the
contrary notwithstanding, if, pursuant to such merger, consolidation or sale,
holders of outstanding shares of Common Stock of the Company do not receive
shares of common stock of the surviving corporation but receive other
securities, cash or other property or any combination thereof, Holders of
Securities shall not have the right to thereafter convert their Securities into
common stock of the surviving corporation or the corporation which shall have
acquired such assets, but rather, shall have the right upon such conversion to
receive the other securities, cash or other property receivable by a holder of
the number of shares of Common Stock of the Company into which the Securities
held by such holder might have been converted immediately prior to such
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consolidation, merger or sale, all as more fully provided in the first sentence
of this Section 1209. Anything in this Section 1209 to the contrary
notwithstanding, the provisions of this Section 1209 shall not apply to a
merger or consolidation of another corporation with or into the Company
pursuant to which both of the following conditions are applicable: (i) the
Company is the surviving corporation and (ii) the outstanding shares of Common
Stock of the Company are not changed or converted into any other securities or
property (including cash) or changed in number or character or reclassified
pursuant to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto;
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
Section 1210. Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent shall at any time be under any
duty or responsibility to any Holder of Securities of any series that is
convertible into Common Stock of the Company to determine whether any facts
exist which may require any adjustment of the conversion price, or with respect
to the nature or extent of any such adjustment when made, or with respect to
the method employed, whether herein or in any supplemental indenture, any
resolutions of the Board of Directors or written instrument executed by one or
more officers of the Company 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
of the Company, or of any securities or property, which may at any time be
issued or delivered upon the conversion of any Securities and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Subject to the provisions of Section 601, neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to issue,
transfer or deliver any shares of its Common Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or to comply with any of the covenants of the Company contained
in this Article Twelve or in the applicable supplemental indenture, resolutions
of the Board of Directors or written instrument executed by one or more duly
authorized officers of the Company.
Section 1211. Repayment of Certain Funds Upon Conversion.
Any funds which at any time shall have been deposited by the Company or on its
behalf with the Trustee or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any, on any of the
Securities (including funds deposited for the sinking fund referred to in
Article Three hereof) and which shall not be required for such purposes because
of the conversion of such Securities as provided in this Article Twelve shall
after such conversion be repaid to the Company by the Trustee upon the
Company's written request by Company Request.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance. The Company may elect, at any time, to have either
Section 1302 or Section 1303 applied to the Outstanding Securities of any
series, upon compliance with the conditions set forth below in this Article
Thirteen.
Section 1302. Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 1301 to have this Section 1302
applied to the Outstanding Securities of any series, the Company shall be
deemed to have been discharged from its obligations, and the provisions of
Article Fifteen shall cease to be effective, with respect to the Outstanding
Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities of such series and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), subject
to the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of Securities of such series to receive,
solely from the trust fund described in Section 1304 and as more fully set
forth in such Section, payments in respect of the principal of and any premium
and interest on such Securities of such series when payments are due, (2) the
Company's obligations with respect to the Securities of such series under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder, including, without limitation, its
rights under Section 607 and (4) this Article Thirteen. Subject to compliance
with this Article Thirteen, the Company may exercise its option provided in
Section 1301 to have this Section 1302 applied to the Outstanding Securities of
any series notwithstanding the prior exercise of its option provided in Section
1301 to have Section 1303 applied to the Outstanding Securities of such series.
Section 1303. Covenant Defeasance. Upon the Company's
exercise of the option provided in Section 1301 to have this Section 1303
applied to the Outstanding Securities of any series, (1) the Company shall be
released from its obligations under Section 801 and (2) the occurrence of any
event specified in Sections 501(3), 501(4) (with respect to Section 801) and
501(5) shall be deemed not to be or result in an Event of Default, and (3) the
provisions of Article Fifteen shall cease to be effective, in each case with
respect to the Outstanding Securities of such series as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such specified Section (to the extent so specified in the case of Section
501(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section
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to any other provision herein or in any other document, but the remainder of
this Indenture and the Securities of such series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of any series:
(1) The Company shall elect by Board Resolution to
effect a Defeasance pursuant to Section 1302 or a Covenant
Defeasance pursuant to Section 1303 with respect to the
Outstanding Securities of any series specified in such Board
Resolution (the "Defeasible Series").
(2) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
that satisfies the requirements contemplated by Section 609
and agrees to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (i) money in
an amount, or (ii) U.S. Government Obligations that through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an
amount, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any
such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on the Securities of
such series on the respective Stated Maturities, in accordance
with the terms of this Indenture and the Securities of such
series. As used herein, "U.S. Government Obligation" means
(x) any security that is (i) a direct obligation of the United
States of America for the payment of which full faith and
credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting
as an agency or instrumentality for the United States of
America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any specific payment of principal of
or interest on any such U.S. Government Obligation specified
in Clause (x) and held by such custodian for the account of
the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any such U.S.
Government Obligation, provided that (except as required by
law) such custodian is not authorized to make any deduction
from the amount payable to the Holder of such depositary
receipt from any amount received by the custodian in respect
of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
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(3) In the case of an election under Section 1302,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service, a
ruling or (ii) since the date hereof, there has been a change
in the applicable Federal income tax law, in case of either
(i) or (ii) to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a
result of such deposit and Defeasance and discharge to be
effected with respect to the Securities of such series and
will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
(4) In the case of an election under Section 1303,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holder of the Outstanding
Securities of such series will not recognize gain or loss for
Federal income tax purposes as result of the deposit and
Covenant Defeasance to be effected with respect to the
Securities of such series and will be subject to Federal
income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(5) The Company shall have delivered to the Trustee
an Officers' Certificate to the effect that the Securities of
such series, if then listed on any securities exchange, will
not be delisted as a result of such deposit.
(6) No Event of Default or event that (after notice
or lapse of time or both) would become an Event of Default
shall have occurred and be continuing at the time of such
deposit or, with regard to any Event of Default or any such
event specified in Sections 501(6) and 501(7), at any time on
or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until after such 90th day).
(7) The Company shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with.
(8) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment
Company Act of 1940, as amended, unless such trust shall be
qualified under such Act or exempt from regulation thereunder.
(9) At the time of such deposit: (A) no default in
the payment of principal of (or premium, if any) or interest
on any Senior Debt shall have occurred and be continuing or
(B) no other event of default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted
in such Senior Debt
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becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, or,
in the case of either Clause (A) or Clause (B) above, each
such default or event of default shall have been cured or
waived or shall have ceased to exist.
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions
of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and Section 1306,
the Trustee and any such other trustee are referred to collectively as the
"Trustee") pursuant to Section 1304 in respect of the Securities of any
Defeasible Series shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law. Money so held in trust shall not be subject to the
provisions of Article Fifteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge that
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1304 with respect to Securities of any Defeasible Series
that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with
respect to the Securities of such series.
Section 1306. Reinstatement. If the Trustee or the Paying
Agent is unable to apply any money in accordance with this Article Thirteen
with respect to the Securities of any series by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Securities of such series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Thirteen with respect
to Securities of such series until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with
respect to Securities of such series in accordance with this Article Thirteen;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any Security of such series following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of Securities of such series to receive such payment from the money so
held in trust.
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ARTICLE FOURTEEN
Sinking Funds
Section 1401. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1211. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1402. Satisfaction of Sinking Fund Payments with
Securities. The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted pursuant to Article Twelve or
Securities of a series which have been acquired or redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities or otherwise, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
Section 1403. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company shall deliver to the Trustee an Officers Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 nor more than 60 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104 and provide a
copy thereof to the Company five (5) days in advance of the mailing thereof.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1105, 1106 and 1107.
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ARTICLE FIFTEEN
Subordination of Securities
Section 1501. Securities Subordinate to Senior Debt. Except
as otherwise specified pursuant to Section 301 for Securities of any series, the
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article
Four and Article Thirteen), 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
amounts then due and payable in respect of all Senior Debt.
Section 1502. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization, debt restructuring or
other similar case or proceeding in connection with any insolvency or
bankruptcy proceeding, relative to the Company 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 specified in (a),
(b) or (c) above (each such event, if any, herein sometimes referred to as a
"Proceeding") the holders of Senior Debt shall be entitled to receive payment
in full of all amounts due or to become due on or in respect of all Senior
Debt, or provision shall be made for such payment in cash or cash equivalents
or otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Securities are entitled to receive any payment or distribution
of any kind or character, whether in cash, property or securities (including
any payment or distribution which may be payable or deliverable by reason of
the payment of any other Debt of the Company subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as
"Junior Subordinated Payment"), 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 by the Company or any Subsidiary and to that end the
holders of Senior Debt 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 Junior Subordinated Payment,
which may be payable or deliverable in respect of the Securities in any such
Proceeding.
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 Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, 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 Debt remaining
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unpaid, to the extent necessary to pay all Senior Debt in full, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Debt. Any taxes that have been withheld or deducted from any payment or
distribution in respect of the Securities, or any taxes that ought to have been
withheld or deducted from any such payment or distribution that have been
remitted to the relevant taxing authority, shall not be considered to be an
amount that the Trustee or the Holder of any Security receives for purposes of
this Section.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in 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 which securities are subordinated
in right of payment to all then outstanding Senior Debt to substantially the
same extent as the Securities are so subordinated as provided in this Article.
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
sale of all or substantially all of its properties and assets as an entirety to
another Person or the liquidation or dissolution of the Company following the
sale of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a Proceeding 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 sale such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article Eight.
Section 1503. Prior Payment to Senior Debt 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 the Senior
Debt outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt, before the Holders of the Securities are entitled to receive any 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) by the Company on account of the principal of (or premium, if any)
or interest on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary; provided, however,
that nothing in this Section shall prevent the satisfaction of any sinking fund
payment in accordance with Article Fourteen by delivering and crediting
pursuant to Section 1402 Securities which have been acquired (upon redemption
or otherwise) prior to such declaration of acceleration or which have been
converted pursuant to Article Twelve.
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, at or
prior to the time of such payment, 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.
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The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1504. No Payment When Senior Debt in Default. (a) In
the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Debt, or in the
event that any event of default with respect to any Senior Debt shall have
occurred and be continuing and shall have resulted in such Senior Debt becoming
or being declared 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 such 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 by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article Fourteen by
delivering and crediting pursuant to Section 1402 Securities which have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default or which have been converted pursuant to Article Twelve.
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, at or
prior to the time of such payment, 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.
The provisions of this Section shall not apply to any payment
with respect to which Section 1502 would be applicable.
Section 1505. Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1502 or under the conditions
described in Sections 1503 and 1504, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
Section 1506. Subrogation to Rights of Holders of Senior
Debt. Subject to the payment in full of all Senior Debt, or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article (equally and
ratably with the holders of all
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indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated to the Senior Debt and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such
Senior Debt) to the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities applicable to the
Senior Debt until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. If the Trustee or the Holders of the
Securities are not for any reason entitled to be subrogated to the rights of
holders of Senior Debt in respect of such payment or distribution, then the
Trustee or the Holders of the Securities may require each holder of Senior Debt
to whom any such payment or distribution is made as a condition to such payment
or distribution to assign its Senior Debt to the extent of such payment or
distribution and all rights with respect thereto to the Trustee on behalf of
the Holders. Such assignment shall not be effective until such time as all
Senior Debt has been paid in full or payment thereof provided for. For
purposes of such subrogation or assignment, no payments or distributions to the
holders of the Senior Debt 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 holders of Senior Debt by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
Section 1507. 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 Debt 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 other than holders of
Senior Debt, and the Holders of the Securities, the obligations of the Company,
which are absolute and unconditional (and which, subject to the rights under
this Article of the holders of Senior Debt, are intended to rank equally with
all other general unsecured 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 Debt; 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 including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
Section 1508. Trustee to Effectuate Subordination. Each
Holder of a Security by his or her acceptance thereof authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
Section 1509. No Waiver of Subordination Provisions. No
right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in
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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 that 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 Debt 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 Debt, 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 or
increase, Senior Debt, or otherwise amend or supplement in any manner Senior
Debt or any instrument evidencing the same or any agreement under which Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (iii) release
any Person liable in any manner for the collection of Senior Debt; and (iv)
exercise or refrain from exercising any rights against the Company and any
other Person.
Section 1510. 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. 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 the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Debt or from any trustee, agent or representative 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 the
notice provided for in this Section at least two Business Days prior to the
date upon which by the terms hereof any 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), 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 affected by any notice to the contrary
which may be received by it within two 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 or herself to be a holder of Senior Debt (or a trustee,
agent or representative therefor) to establish that such notice has been given
by a holder of Senior Debt (or a trustee, agent or representative therefor).
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 Debt 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 Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts
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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 1511. 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
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, 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 the
Senior Debt and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
Section 1512. Trustee Not Fiduciary For Holders of Senior
Debt. The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt 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 Debt shall be
entitled by virtue of this Article or otherwise.
Section 1513. Rights of Trustee as Holder of Senior Debt;
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 Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, 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 under or pursuant to Section 607.
Section 1514. 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.
Section 1515. Defeasance of This Article Fifteen. The
subordination of the Securities provided by this Article Fifteen is expressly
made subject to the provisions for defeasance or covenant defeasance in Article
Thirteen and, anything herein to the contrary notwithstanding, upon the
effectiveness of any such defeasance or covenant defeasance, the Securities
then outstanding shall thereupon cease to be subordinated pursuant to this
Article Fifteen.
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Section 1516. 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 Twelve
shall not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) 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 Debt 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 Debt 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 Twelve.
ARTICLE SIXTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1601. Applicability of Article.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1602. Repayment of Securities.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will 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 the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) sufficient
to pay the principal (or, if so provided by the terms of the Securities of any
series, a percentage of the principal) of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1603. Exercise of Option.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places or which the Company shall from time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1604. When Securities Presented for Repayment Become
Due and Payable.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Security for repayment in accordance with such
provisions, the principal amount of such Security so to be repaid shall be paid
by the Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment 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 the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1605. Securities Repaid in Part.
Upon surrender of any Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such security, without service charge and at the expense of the
Company, a new Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
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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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NABORS INDUSTRIES, INC.
By ______________________________
Attest:
______________________________
MARINE MIDLAND BANK,
as Trustee
By ______________________________
Attest:
______________________________
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of _____________, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that (s)he is __________________ of NABORS INDUSTRIES, INC., one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed her/his name
thereto by like authority.
________________________________________
<PAGE> 89
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the day of ______________, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that (s)he is __________________ of MARINE MIDLAND BANK, one of the
corporations described in and which executed the foregoing instrument; that
(s)he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that (s)he signed her/his name
thereto by like authority.
________________________________________
<PAGE> 1
EXHIBIT 4.7
- --------------------------------------------------------------------------------
NABORS INDUSTRIES, INC.
and
[______________________________],
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
______________
FORM OF DEPOSIT AGREEMENT*
______________
Dated as of [__________]
- --------------------------------------------------------------------------------
* Complete or modify the provisions of this Form as appropriate to reflect the
terms of the Depositary Shares and Depositary Reciepts.
<PAGE> 2
TABLE OF CONTENTS
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Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1.
DEFINITIONS
"Certificate of Incorporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Certificate of Designation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Corporate Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Deposit Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary Share" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Depositary's Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"New York Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Receipt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"record holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Securities Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.02 Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof . . . . . . . . . . . . . . . 4
SECTION 2.03 Redemption and Conversion of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.04 Register of Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.05 Combination and Split-ups of Receipts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.07 Limitations on Execution and Delivery, Transfer, Split-up, Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.08 Lost Receipts, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.09 Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
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ARTICLE 3.
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other Information . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.02 Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.03 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE 4.
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.02 Distributions Other Than Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.03 Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.04 Notice of Dividends, Fixing of Record Date for Holders of Receipts . . . . . . . . . . . . . . . . . 12
SECTION 4.05 Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.06 Changes Affecting Stock and Reclassifications, Recapitalizations, etc . . . . . . . . . . . . . . . 13
SECTION 4.07 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.08 Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 5.
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies, Transfer Books by the Depositary; the Registrar . . . . . . . . . 14
SECTION 5.02 Prevention or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.03 Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company . . . . . . . 15
SECTION 5.04 Resignation and Removal of the Depositary, Appointment of Successor Depositary . . . . . . . . . . . 17
SECTION 5.05 Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.06 Deposit of Stock by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.07 Indemnification by the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.08 Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.02 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.02 Exclusive Benefits of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.03 Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.04 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.05 Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.06 Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.07 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.08 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
</TABLE>
- iii -
<PAGE> 5
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [________], among
Nabors Industries, Inc., a Delaware corporation,
[_________________________________], a [________] banking corporation, as
Depositary, and all holders from time to time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set
forth in this Deposit Agreement, for the deposit of shares of Stock with the
Depositary, as agent for the beneficial owners of the Stock, for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form
annexed as Exhibit A to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises contained
herein, it is agreed by and among the parties hereto as follows:
ARTICLE 1.
DEFINITIONS
The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
"Certificate of Incorporation" shall mean the Restated
Certificate of Incorporation, as amended and restated from time to time, of the
Company.
"Certificate of Designation" shall mean the Certificate of
Designation establishing and setting forth the rights, preferences, privileges
and limitations of the Stock.
"Common Stock" shall mean the Company's Common Stock, par
value $.10 per share.
<PAGE> 6
"Company" shall mean Nabors Industries, Inc., a Delaware
corporation, and its successors.
"Corporate Office" shall mean the office of the Depositary in
[__________], [______________] at which at any particular time its business in
respect of matters governed by this Deposit Agreement shall be administered,
which at the date of this Deposit Agreement is located at
[______________________].
"Deposit Agreement" shall mean this agreement, as the same may
be amended, modified or supplemented from time to time.
"Depositary" shall mean [_____________________], as Depositary
hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the
Receipts executed and delivered hereunder, including the interests in Stock
granted to holders of Receipts pursuant to the terms and conditions of the
Deposit Agreement. Each Depositary Share shall represent an interest in
[fraction] of a share of Stock deposited with the Depositary hereunder and the
same proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder
of a Receipt evidencing a Depositary Share or Shares is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented by such Depositary Share or Shares, including the dividend, voting
and liquidation rights contained in the Certificate of Designation, and to the
benefits of all obligations and duties of the Company in respect of the Stock
under the Certificate of Designation and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
"New York Office" shall mean the facility maintained by the
Depositary in the Borough of Manhattan, The City of New York for accepting,
executing and delivering Receipts and other instruments prior to processing
such instruments at the Corporate Office, which facility at the date of this
Deposit Agreement is located at [___________].
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A hereto, evidencing
a Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books maintained by or
on behalf of the Depositary for such purpose.
- 2 -
<PAGE> 7
"Registrar" shall mean any bank or trust company appointed to
register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's [name of series]
Preferred Stock, $.10 par value per share.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.1 Form and Transfer of Receipts. Receipts shall be
engraved or printed or lithographed and shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Receipts
shall be executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar (other than the Depositary) shall have
countersigned the Receipts by manual signature of a duly authorized signatory
of the Registrar. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding sentence. The Depositary shall
record on its books each Receipt executed as provided above and delivered as
hereinafter provided. Receipts bearing the facsimile signature of anyone who
was at any time a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold such office
prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulation or with the rules and
regulations of any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the Stock or
otherwise.
Title to any Receipt (and to the Depositary Shares evidenced
by such Receipt) that is properly endorsed or accompanied by a properly
executed instrument of transfer shall be transferable by delivery with the same
effect as in the case of a negotiable instrument; provided,
- 3 -
<PAGE> 8
however, that the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distributions of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.2 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company or any holder of Stock may deposit such Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a properly executed instrument of transfer in
form satisfactory to the Depositary, together with (i) all such certifications
as may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company or such holder, as
the case may be, directing the Depositary to execute and deliver to or upon the
written order of the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares representing such deposited Stock.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the other
documents specified above, the Depositary shall, as soon as transfer and
registration can be accomplished, present such certificate or certificates to
the registrar and transfer agent of the Stock for transfer and registration in
the name of the Depositary or its nominee of the Stock being deposited.
Deposited Stock shall be held by the Depositary in an account to be established
by the Depositary at the Corporate Office.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with the other
documents specified above, the Depositary, subject to the terms and conditions
of this Deposit Agreement, shall execute and deliver, to or upon the order of
the person or persons named in the written order delivered to the Depositary
referred to in the first paragraph of this Section 2.02, a Receipt or Receipts
for the number of whole Depositary Shares representing the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the New York Office, except that, at the request, risk and expense of any
person requesting such delivery and for the account of such person, such
delivery may be made at such other place as may be designated by such person.
In each case, delivery will be made only upon payment by such person to the
Depositary of all taxes and other governmental charges and any fees payable in
connection with such deposit and the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time
such quantities of Receipts as the Depositary may request to enable the
Depositary to perform its obligations under this Deposit Agreement.
- 4 -
<PAGE> 9
SECTION 2.3 Redemption and Conversion of Stock.1 Whenever
the Company shall elect to redeem or be required to convert shares of Stock
into shares of Common Stock or other securities in accordance with the
Certificate of Designation, it shall (unless otherwise agreed in writing with
the Depositary) give the Depositary in its capacity as Depositary not less than
5 business days' prior notice of the proposed date of the mailing of a notice
of redemption or conversion of Stock and the simultaneous redemption or
conversion of the Depositary Shares representing the Stock to be redeemed or
converted and of the number of such shares of Stock held by the Depositary to
be redeemed or converted. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the redemption or
conversion of Stock and the proposed simultaneous redemption or conversion of
the Depositary Shares representing the Stock to be redeemed or converted, not
less than 30 and not more than 60 days prior to the date fixed for redemption
or conversion of such Stock and Depositary Shares, to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed or converted, at
the addresses of such holders as the same appear on the records of the
Depositary; provided, that if the effectiveness of a Merger or Consolidation
(as defined in the Certificate of Designation) makes it impracticable to
provide at least 30 days' notice, the Depositary shall provide such notice as
soon as practicable prior to such effectiveness. Any such notice shall also
be published in the same manner as notices of redemption or conversion of Stock
are required to be published pursuant to Section [ ] of the Certificate of
Designation. Notwithstanding the foregoing, neither failure to mail or publish
any such notice to one or more such holders nor any defect in any notice shall
affect the sufficiency of the proceedings for redemption or conversion. The
Company shall provide the Depositary with such notice, and each such notice
shall state: the redemption or conversion date; the number of Depositary Shares
to be redeemed or converted; if fewer than all the Depositary Shares held by
any holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; in the case of a call for redemption, the call
price payable upon redemption and the Current Market Price (as defined in the
Certificate of Designation) to be used to calculate the number of shares of
Common Stock or other securities deliverable upon redemption; whether the
Company is exercising any option to deliver shares of Common Stock or other
securities in lieu of any cash consideration pursuant to Section [ ] of the
Certificate of Designation and the Current Market Price to be used to calculate
the number of such shares or other securities; the place or places where
Receipts evidencing Depositary Shares to be redeemed or converted are to be
surrendered for redemption or conversion; whether the Company is depositing
with a bank or trust company on or before the redemption or conversion date,
the shares of Common Stock or other securities and cash, if any, payable by the
Company and the proposed date of such deposit; the amount of accrued and unpaid
dividends payable per share of Stock to be redeemed or converted to and
including such redemption or conversion date, as the case may be, and that
dividends in respect of the Stock represented by the Depositary Shares to be
redeemed or converted will cease to accrue on such redemption or conversion
date (unless the Company shall default in delivering shares of
__________________________________
1. This section to be modified to discuss specific redemption or
conversion terms of the Stock, if any.
- 5 -
<PAGE> 10
Common Stock or other securities and cash, if any, at the time and place
specified in such notice). On the date of any such redemption or conversion,
the Depositary shall surrender the certificate or certificates held by the
Depositary evidencing the number of shares of Stock to be redeemed or converted
in the manner specified in the notice of redemption or conversion of Stock
provided by the Company pursuant to Section [ ] of the Certificate of
Designation. The Depositary shall, thereafter, redeem or convert the number of
Depositary Shares representing such redeemed or converted Stock upon the
surrender of Receipts evidencing such Depositary Shares in the manner provided
in the notice sent to record holders of Receipts; provided, that the Depositary
shall have received, upon surrendering such certificate or certificates as
aforesaid, a sufficient number of shares of Common Stock or other securities to
convert or redeem such number of Depositary Shares (including, in the event
that the Company elects pursuant to Section [ ] of the Certificate of
Designation to exercise any option to deliver shares of Common Stock or other
securities in lieu of any cash consideration payable on the Effective Date (as
defined in the Certificate of Designation) of any Merger or Consolidation, a
number of shares of Common Stock equal to such cash consideration (as
determined in the manner set forth in the Certificate of Designation)), plus
any accrued and unpaid dividends payable with respect thereto to and including
the date of any such redemption or conversion and any other cash consideration
payable on the Effective Date of a Merger or Consolidation (other than any
dividends or other cash consideration payable on the Effective Date of a Merger
or Consolidation that the Company has elected to pay in shares of Common Stock
pursuant to Section [ ] of the Certificate of Designation) as instructed and
calculated by the Company. In case fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed shall be
selected by the Depositary by lot, on a pro rata basis or such other equitable
method as shall be approved by the Company and the Depositary.
Notice having been mailed by the Depositary as aforesaid, from
and after the redemption or conversion date (unless the Company shall have
failed to redeem or convert the shares of Stock to be redeemed or converted by
it upon the surrender of the certificate or certificates therefor by the
Depositary as described in the preceding paragraph), the Depositary Shares
called for redemption or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the shares of Common Stock or other
securities and cash, if any, payable upon redemption or conversion upon
surrender of such Receipts) shall, to the extent of such Depositary Shares,
cease and terminate. Upon surrender in accordance with said notice of the
Receipts evidencing such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
converted into or redeemed for shares of Common Stock or other securities at a
rate equal to [ ] of the number of shares of Common Stock or
other securities delivered, and the holders thereof shall be entitled to [
] of the cash, if any, payable, in respect of the shares of Stock pursuant to
the Certificate of Designation. The foregoing shall be subject further to the
terms and conditions of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to the holder of
such Receipt upon its surrender to the Depositary, together with the shares of
Common Stock or other securities and all accrued and unpaid dividends to
- 6 -
<PAGE> 11
and including the date fixed for redemption payable in respect of the
Depositary Shares called for redemption, a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for
redemption.
To the extent that Depositary Shares are converted into or
redeemed for shares of Common Stock or other securities and all of such shares
of Common Stock or other securities cannot be distributed to the record holders
of Receipts converted or called for redemption without creating fractional
interests in such shares, the Depositary may, with the consent of the Company,
adopt such method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or private sale) of
such shares of Common Stock or other securities at such place or places and
upon such terms as it may deem proper, and the net proceeds of any such sale
shall, subject to Section 3.02, be distributed or made available for
distribution to such record holders that would otherwise receive fractional
interests in such shares of Common Stock or other securities.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15 days
next preceding any selection of Depositary Shares and Stock to be redeemed and
ending at the close of business on the day of the mailing of notice of
redemption of Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption, in whole or in part, or subject to conversion except as provided in
the second preceding paragraph of this Section 2.03.
SECTION 2.4 Register of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof at the Corporate Office, the New York Office or such other
office as the Depositary may designate for such purpose, by the record holder
in person or by a duly authorized attorney, properly endorsed or accompanied by
a properly executed instrument of transfer, together with evidence of the
payment of any transfer taxes as may be required by law. Upon such surrender,
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.5 Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Corporate Office, the New York Office
or such other office as the Depositary may designate for the purpose of
effecting a split-up or combination of Receipts, subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute and deliver
a new Receipt or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not issue
any Receipt evidencing a fractional Depositary Share.
- 7 -
<PAGE> 12
SECTION 2.6 Surrender of Receipts and Withdrawal of Stock.2
Any holder of a Receipt or Receipts may withdraw any or all of the Stock (but
only in whole shares of Stock) represented by the Depositary Shares evidenced
by such Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office, the New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the whole number of shares
of Stock and all such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal, but holders of such whole shares of Preferred Stock will not
thereafter be entitled to deposit such Preferred Stock hereunder or to receive
Depositary Shares thereafter. If the Receipt or Receipts delivered by the
holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of whole Depositary Shares
representing the whole number of shares of Stock to be withdrawn, the
Depositary shall at the same time, in addition to such whole number of shares
of Stock and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.04) upon his order, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares. Delivery of
the Stock and such money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder
shall execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank and that the signature on such instrument of transfer be guaranteed by
an eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program) pursuant to Rule 17Ad-15 of the Securities
Exchange Act of 1934, as amended.
The Depositary shall deliver the Stock and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal, without unreasonable delay, at the office at which
such Receipts were surrendered, except that, at the request, risk and expense
of the holder surrendering such Receipt or Receipts and for the account of the
holder thereof, such delivery may be made, without unreasonable delay, at such
other place as may be designated by such holder.
__________________________________
2. This Section to be modified to reflect any restrictions on withdrawal
of underlying securities.
- 8 -
<PAGE> 13
SECTION 2.7 Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts and Withdrawal or
Deposit of Stock. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any
Receipt, the delivery of any distribution thereon or the withdrawal or deposit
of Stock, the Depositary, any of the Depositary's Agents or the Company may
require any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have
made such payment, the reimbursement to it) of any tax or other governmental
charge with respect thereto (including any such tax or charge with respect to
the Stock being deposited or withdrawn or with respect to the Common Stock or
other securities or property of the Company being issued upon conversion or
redemption); (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts
against Stock or the registration of transfer, split-up, combination, surrender
or exchange of outstanding Receipts and the withdrawal of deposited Stock may
be suspended (i) during any period when the register of stockholders of the
Company is closed, (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration statement under
the Securities Act is in effect as to such shares of Stock.
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of
such destruction, loss or theft of such Receipt, of the authenticity thereof
and of his ownership thereof, (ii) reasonable indemnification satisfactory to
the Depositary or the payment of any charges incurred by the Depositary in
obtaining insurance in lieu of such indemnification and (iii) payment of any
expense (including fees, charges and expenses of the Depositary) in connection
with such execution and delivery.
SECTION 2.9 Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law
or regulation, the Depositary is authorized to destroy such Receipts so
cancelled.
- 9 -
<PAGE> 14
ARTICLE 3.
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1 Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper. The Depositary or the Company may withhold or delay
the delivery of any Receipt, the registration of transfer, redemption,
conversion or exchange of any Receipt, the withdrawal of the Stock represented
by the Depositary Shares evidenced by any Receipt or the distribution of any
dividend or other distribution until such proof or other information is filed,
such certificates are executed or such representations and warranties are made.
SECTION 3.2 Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on behalf of
the Depositary with respect to (i) any Receipt, (ii) the Depositary Shares
evidenced by such Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the
holder of such Receipt, who shall pay the amount thereof to the Depositary.
Until such payment is made, registration of transfer of any Receipt or any
split-up or combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares evidenced by such
Receipt may be refused, any dividend or other distribution may be withheld and
any part or all of the Stock or other property (including Common Stock or other
securities received in connection with a conversion or redemption of Stock)
represented by the Depositary Shares evidenced by such Receipt may be sold for
the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale). Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of such Receipt remaining
liable for any deficiency.
SECTION 3.3 Withholding. The Depositary shall act as the tax
withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock, Common Stock or
other securities or assets represented thereby (collectively, the
"Securities"). The Depositary shall be responsible with respect to the
Securities for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any information
returns or other documents with federal (and other applicable) taxing
authorities.
SECTION 3.4 Representations and Warranties as to Stock. In
the case of the initial deposit of the Stock, the Company and, in the case of
subsequent deposits thereof, each person so depositing Stock under this Deposit
Agreement shall be deemed thereby to represent
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and warrant that such Stock and each certificate therefor are valid and that
the person making such deposit is duly authorized to do so. Such
representations and warranties shall survive the deposit of the Stock and the
issuance of Receipts therefor.
ARTICLE 4.
THE STOCK, NOTICES
SECTION 4.1 Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
sum as are, as nearly as practicable, in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by law to
withhold and does withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be
reduced accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Depositary Shares a fraction of
one cent and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.2 Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash, rights, preferences
or privileges upon the Stock, the Depositary shall, subject to Section 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the opinion of the Company after consultation with
the Depositary, such distribution cannot be made proportionately among such
record holders, or if for any other reason (including any tax withholding or
securities law requirement), the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company which approval shall not be unreasonably withheld,
adopt such method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or private sale) of
the securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Section 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash.
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SECTION 4.3 Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary
to the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, in each case, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public
or private sale, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall be distributed by the
Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold such securities, the Company shall
promptly file a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such registration
statement shall have become effective or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4 Notice of Dividends, Fixing of Record Date for
Holders of Receipts. Whenever (i) any cash dividend or other cash distribution
shall become payable, or any distribution other than cash shall be made, or any
rights, preferences or privileges shall at any time be offered, with respect to
the Stock, or (ii) the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice or of the mandatory conversion of, or any election on the part of the
Company to call for
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the redemption of, any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or of
such conversion or redemption.
SECTION 4.5 Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, the Certificate of Incorporation or the
Certificate of Designation, to instruct the Depositary as to the exercise of
the voting rights pertaining to the Stock represented by their respective
Depositary Shares and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt
on such record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted the Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. The Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.6 Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it is a
party (other than a Merger or Consolidation) or sale of all or substantially
all of the Company's assets, the Depositary shall treat any shares of stock or
other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Stock as
new deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for or upon
conversion or in respect of such Stock. In any such case the Depositary may,
in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
property.
SECTION 4.7 Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office, the New York Office
and at such other places as it may from time to time deem advisable during
normal business hours any reports and communications received from the Company
that are received by the Depositary as the holder of Stock.
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SECTION 4.8 Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a list, as
of a recent date, of the names, addresses and holdings of Depositary Shares of
all persons in whose names Receipts are registered on the books of the
Depositary. At the expense of the Company, the Company shall have the right to
inspect transfer and registration records of the Depositary, any Depositary's
Agent or the Registrar, take copies thereof and require the Depositary, any
Depositary's Agent or the Registrar to supply copies of such portions of such
records as the Company may request.
ARTICLE 5.
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1 Maintenance of Offices, Agencies, Transfer Books
by the Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the New York
Office facilities for the execution and delivery, registration, registration of
transfer, surrender and exchange, split-up, combination, redemption and
conversion of Receipts and deposit and withdrawal of Stock and (ii) at the
Corporate Office and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration, registration of transfer, surrender
and exchange, split-up, combination, conversion and redemption of Receipts and
deposit and withdrawal of Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the Corporate Office for
the registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts; provided that
any such holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares. The
Depositary shall consult with the Company upon receipt of any request for
inspection. The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or
the Stock represented by such Depositary Shares shall be listed on one or more
stock exchanges, the Depositary shall, with the approval of the Company,
appoint a Registrar for registry of such Receipts or Depositary Shares in
accordance with the requirements of such exchange or exchanges. Such Registrar
(which may be the Depositary if so permitted by the requirements of such
exchange or exchanges) may be removed and a substitute registrar appointed by
the Depositary upon the request or with the approval of the Company. In
addition, if the Receipts, such Depositary Shares or such Stock are listed on
one or more stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration
of transfer, surrender and exchange, split-up, combination, redemption or
conversion
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of such Receipts, such Depositary Shares or such Stock as may be required by
law or applicable stock exchange regulations.
SECTION 5.2 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor the Registrar nor the Company shall
incur any liability to any holder of any Receipt, if by reason of any provision
of any present or future law or regulation thereunder of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any
provision, present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary, the
Registrar or any Depositary's Agent, by reason of any act of God or war or
other circumstances beyond the control of the relevant party, the Depositary,
any Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, the Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of this
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in the case of the Depositary, any Depositary's Agent
or the Registrar, if any such exercise or failure to exercise discretion is
caused by its negligence or bad faith.
SECTION 5.3 Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no obligation and
shall be subject to no liability under this Deposit Agreement or the Receipts
to holders or other persons, except to perform in good faith such obligations
as are specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to Stock,
Depositary Shares, Receipts or Common Stock that in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it against all
expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be liable for any action or any failure to act
by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Stock for deposit, any holder of a Receipt
or any other person believed by it in good faith to be competent to give such
advice or information. The Depositary, any Depositary's Agent, the Registrar
and the Company may
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<PAGE> 20
each rely and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may
own and deal in any class of securities of the Company and its affiliates and
in Receipts or Depositary Shares. The Depositary may also act as transfer
agent or registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent shall be deemed to be an "issuer" of the Stock, the
Depositary Shares, the Receipts or the Common Stock issued upon conversion or
redemption of the Stock under the federal securities laws or applicable state
securities laws, it being expressly understood and agreed that the Depositary
and any Depositary's Agent are acting only in a ministerial capacity as
Depositary for the Stock; provided, however, that the Depositary agrees to
comply with all information reporting and withholding requirements applicable
to it under law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of the Registration Statement pursuant to
which the Depositary Shares are registered under the Securities Act, the Stock,
the Depositary Shares or any instruments referred to therein or herein, or as
to the correctness of any statement made therein or herein; provided, however,
that the Depositary is responsible for its representations in this Deposit
Agreement.
The Depositary assumes no responsibility for the correctness
of the description that appears in the Receipts, which can be taken as a
statement of the Company summarizing certain provisions of this Deposit
Agreement. Notwithstanding any other provision herein or in the Receipts, the
Depositary makes no warranties or representations as to the validity,
genuineness or sufficiency of any Stock at any time deposited with the
Depositary hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the Depositary Shares
or as to any right, title or interest of the record holders of Receipts in and
to the Depositary Shares except that the Depositary hereby represents and
warrants as follows: (i) the Depositary has been duly organized and is validly
existing and in good standing under the laws of the State of [____________],
with full power, authority and legal right under such law to execute, deliver
and carry out the terms of this Deposit Agreement; (ii) this Deposit Agreement
has been duly authorized, executed and delivered by the Depositary; and (iii)
this Deposit Agreement constitutes a valid and binding obligation of the
Depositary, enforceable against the Depositary in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). The
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Depositary shall not be accountable for the use or application by the Company
of the Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.4 Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice via registered mail of its election to
do so delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal delivered to the Depositary, such removal to
take effect upon the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall, within 45 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
depositary, which shall be a bank or trust company, or an affiliate of a bank
or trust company, having its principal office in the United States of America
and having a combined capital and surplus of at least $50,000,000. If a
successor depositary shall not have been appointed in 45 days, the resigning or
removed Depositary may petition a court of competent jurisdiction to appoint a
successor depositary. Every successor depositary shall execute and deliver to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the Stock and any moneys or property held
hereunder to such successor and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor depositary may execute the Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.
SECTION 5.5 Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of Receipts, in
each case at the address recorded in the Depositary's books, copies of all
notices and reports (including financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Certificate of Incorporation and
the Certificate of Designation to be furnished by the Company to holders of
Stock. Such transmission will be at the Company's expense and the
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Company will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.6 Deposit of Stock by the Company. The Company
agrees with the Depositary that neither the Company nor any company controlled
by the Company will at any time deposit any Stock if such Stock is required to
be registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.7 Indemnification by the Company. The Company
agrees to indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any liability, costs and expenses
(including reasonable fees and expenses of counsel) that may arise out of or in
connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons.
SECTION 5.8 Fees, Charges and Expenses. No fees, charges and
expenses of the Depositary or any Depositary's Agent hereunder or of any
Registrar shall be payable by any person other than the Company, except for any
taxes and other governmental charges and except as provided in this Deposit
Agreement. If, at the request of a holder of a Receipt, the Depositary incurs
fees, charges or expenses for which it is not otherwise liable hereunder, such
holder or other person will be liable for such fees, charges and expenses. All
other fees, charges and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon consultation and
agreement between the Depositary and the Company as to the amount and nature of
such fees, charges and expenses.
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable. Any amendment that shall impose or
increase any fees, taxes or charges payable by holders of Receipts (other than
taxes and other governmental charges, fees and other expenses payable by
holders pursuant to the terms hereof or of the Receipts), or that shall
otherwise prejudice any substantial existing right of holders of Receipts,
shall not become effective as to outstanding
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<PAGE> 23
Receipts until the expiration of 90 days after notice of such amendment shall
have been given to the record holders of outstanding Receipts. Every holder of
an outstanding Receipt at the time any such amendment becomes effective shall
be deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby. In no
event shall any amendment impair the right, subject to the provisions of
Sections 2.03, 2.06 and 2.07 and Article 3, of any owner of any Depositary
Shares to surrender the Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the holder the Stock and all money
and other property, if any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.2 Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by mailing notice
of such termination to the record holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate this Deposit Agreement if at any time 45 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in Section 5.04.
If any Receipts shall remain outstanding after the date of
termination of this Deposit Agreement, the Depositary thereafter shall
discontinue the transfer of Receipts, shall suspend the distribution of
dividends to the holders thereof and shall not give any further notices (other
than notice of such termination) or perform any further acts under this Deposit
Agreement, except as provided below and that the Depositary shall continue to
collect dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit Agreement and
shall continue to deliver the Stock and any money and other property
represented by Receipts, without liability for interest thereon, upon surrender
thereof by the holders thereof. At any time after the expiration of two years
from the date of termination, the Depositary may sell Stock then held hereunder
at public or private sale, at such places and upon such terms as it deems
proper and may thereafter hold in a segregated account the net proceeds of any
such sale, together with any money and other property held by it hereunder,
without liability for interest, for the benefit, pro rata in accordance with
their holdings, of the holders of Receipts that have not heretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Deposit Agreement except to account for such net
proceeds and money and other property. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.07 and 5.08. In the
event this Deposit Agreement is terminated, the Company hereby agrees to use
its best efforts to list the underlying Stock on the American Stock Exchange,
Inc.
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<PAGE> 24
ARTICLE 7.
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be
executed by the Company and the Depositary in separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature page to
this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at the Corporate
Office and the New York Office and the respective offices of the Depositary's
Agents, if any, by any holder of a Receipt.
SECTION 7.2 Exclusive Benefits of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
SECTION 7.3 Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Notices. Any notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
telex or telecopier confirmed by letter, addressed to the Company at 515 West
Greens Road, Suite 1200, Houston, Texas 77067, Attention: President, or at any
other place to which the Company may have transferred its principal executive
office.
Any notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to such record holder at the address
of such record holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
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<PAGE> 25
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex or telecopier message received by
it from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.5 Depositary's Agents. The Depositary may, with
the approval of the Company which approval shall not be unreasonably withheld,
from time to time appoint one or more Depositary's Agents to act in any respect
for the Depositary for the purposes of this Deposit Agreement and may vary or
terminate the appointment of such Depositary's Agents.
SECTION 7.6 Holders of Receipts Are Parties. Notwithstanding
that holders of Receipts have not executed and delivered this Deposit Agreement
or any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions, and be entitled to all of the benefits, hereof and of the
Receipts by acceptance of delivery of Receipts.
SECTION 7.7 Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York without giving effect to principles of conflict of laws.
SECTION 7.8 Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
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<PAGE> 26
IN WITNESS WHEREOF, Nabors Industries, Inc. and
[_______________________________] have duly executed this Deposit Agreement as
of the day and year first above set forth and all holders of Receipts shall
become parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
NABORS INDUSTRIES, INC.
Attest:
__________________________ By:_____________________
Authorized Officer
[_______________________]
Attest:
__________________________ By:_____________________
Authorized Signatory
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<PAGE> 27
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING [ ] OF A SHARE OF
[______________________________________________] PREFERRED
STOCK
OF
NABORS INDUSTRIES, INC.
(Incorporated under the Laws of the State of Delaware)
No.
[_________________________________] (the "Depositary") hereby
certifies that ____________ is the registered owner of ___________ Depositary
Shares (the "Depositary Shares"), each Depositary Share representing [
] of a share of [____________________________] Preferred Stock, $.10 par
value (the "Stock"), of Nabors Industries, Inc., a corporation duly organized
and existing under the laws of the State of Delaware (the "Company"), and the
same proportionate interest in any and all other property received by the
Depositary in respect of such shares of Stock and held by the Depositary under
the Deposit Agreement (as defined below). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled, proportionately, to
all the rights, preferences and privileges of the Stock represented thereby,
including the dividend, voting, liquidation and other rights contained in the
Certificate of Designation establishing the rights, preferences, privileges and
limitations of the Stock (the "Certificate of Designation"), copies of which
are on file at the office of the Depositary at which at any particular time its
business in respect of matters governed by the Deposit Agreement shall be
administered, which at the time of the execution of the Deposit Agreement is
located at [____________________________] (the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to
any benefits under the Deposit Agreement or be valid or obligatory for any
purpose unless this Receipt shall have been executed manually or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary by the signature of a duly authorized
signatory and, if executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by the signature of a duly
authorized signatory.
<PAGE> 28
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED STOCK. THE
DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE DESCRIPTION SET
FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET
FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK AT
ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT,
AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST
OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of this Receipt without
charge, upon request addressed to its executive office, a full statement of the
designation, relative rights, preferences and limitations of the shares of each
authorized class, and of each class of preferred stock authorized to be issued,
so far as the same may have been fixed, and a statement of the authority of the
Board of Directors of the Company to designate and fix the relative rights,
preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the same effect
as if set forth at this place.
Dated:
[____________________________],
as Depositary and Registrar
By:___________________________
Authorized Signatory
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<PAGE> 29
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
(1) The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available upon the terms and
conditions set forth in the Deposit Agreement, dated as of [_________] (the
"Deposit Agreement"), among the Company, the Depositary and all holders from
time to time of Receipts. The Deposit Agreement (copies of which are on file at
the Corporate Office, the office maintained by the Depositary in the Borough of
Manhattan, the City of New York which at the time of the execution of the
Deposit Agreement is located at [________________________] (the "New York
Office") and at the office of any agent of the Depositary) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
(2) Definitions. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meanings ascribed
thereto in the Deposit Agreement.
(3) Redemption and Conversion of Stock.* Whenever the
Company shall elect to redeem or be required to convert shares of Stock into
shares of Common Stock in accordance with the Certificate of Designation, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary in its capacity as Depositary not less than 5 business days' prior
notice of the proposed date of the mailing of a notice of redemption or
conversion of Stock and the simultaneous redemption or conversion of the
Depositary Shares representing the Stock to be redeemed or converted and of the
number of such shares of Stock held by the Depositary to be redeemed or
converted. The Depositary shall, as directed by the Company in writing, mail,
first class postage prepaid, notice of the redemption or conversion of Stock
and the proposed simultaneous redemption or conversion of Depositary Shares
representing the Stock to be redeemed or converted, not less than 30 and not
more than 60 days prior to the date fixed for redemption or conversion of such
Stock and Depositary Shares, to the record holders of the Receipts evidencing
the Depositary Shares to be so redeemed or converted, at the addresses of such
holders as the same appear on the records of the Depositary; provided, that if
the effectiveness of a Merger or Consolidation (as defined in the Certificate
of Designation) makes it
__________________________________
* This section to be modified to discuss specific redemption or
conversion terms of the Stock, if any.
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<PAGE> 30
impracticable to provide at least 30 days' notice, the Depositary shall provide
such notice as soon as practicable prior to such effectiveness. Any such
notice shall also be published in the same manner as notices of redemption or
conversion of the Stock are required to be published pursuant to Section [ ]
of the Certificate of Designation. On the date of any such redemption or
conversion, the Depositary shall surrender the certificate or certificates held
by the Depositary evidencing the number of shares of Stock to be redeemed or
converted in the manner specified in the notice of redemption or conversion of
Stock provided by the Company pursuant to Section [ ] of the Certificate of
Designation. The Depositary shall, thereafter, redeem or convert the number of
Depositary Shares representing such redeemed or converted Stock upon the
surrender of Receipts evidencing such Depositary Shares in the manner provided
in the notice sent to record holders of Receipts; provided, that the Depositary
shall have received, upon surrendering such certificate or certificates as
aforesaid, a sufficient number of shares of Common Stock or other securities to
convert or redeem such number of Depositary Shares (including, in the event
that the Company elects pursuant to Section [ ] of the Certificate of
Designation to exercise any option to deliver shares of Common Stock or other
securities in lieu of any cash consideration payable on the Effective Date (as
defined in the Certificate of Designation) of any Merger or Consolidation, a
number of shares of Common Stock or other securities equal to such cash
consideration (as determined in the manner set forth in the Certificate of
Designation)), plus any accrued and unpaid dividends payable with respect
thereto to and including the date of any such redemption or conversion and any
other cash consideration payable on the Effective Date of a Merger or
Consolidation (other than any dividends or other cash consideration payable on
the Effective Date of a Merger or Consolidation that the Company has elected to
pay in shares of Common Stock or other securities pursuant to Section [ ] of
the Certificate of Designation). In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed
shall be selected by the Depositary by lot or on a pro rata basis. Notice
having been mailed and published as aforesaid, from and after the redemption or
conversion date (unless the Company shall have failed to redeem or convert the
shares of Stock to be redeemed or converted by it upon the surrender of the
certificate or certificates therefor by the Depositary as described above), the
Depositary Shares called for redemption or subject to conversion shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the shares of
Common Stock or other securities and cash, if any, payable upon redemption or
conversion upon surrender of such Receipts) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be converted into or redeemed for shares of Common Stock or other
securities at a rate equal to [ ] of the number of shares of Common Stock or
other securities delivered, and the holders thereof shall be entitled to
[________] of the cash, if any, payable, in respect of the shares of Stock
pursuant to the Certificate of Designation. The foregoing is subject further
to the terms and conditions of the Certificate of Designation. If fewer than
all of the Depositary Shares evidenced by this Receipt are called for
redemption, the Depositary will deliver to the holder of this Receipt upon its
surrender to the Depositary, together with shares of Common Stock or other
securities and all accrued and unpaid dividends to and including the date fixed
for redemption payable in respect of the Depositary Shares called for
redemption, a new
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<PAGE> 31
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption.
(4) Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at the Corporate Office, the New
York Office or at such other offices as the Depositary may designate, and
subject to the provisions of the Deposit Agreement, the holder hereof is
entitled to withdraw, and to obtain delivery, without unreasonable delay, to or
upon the order of such holder, any or all of the Stock (but only in whole
shares of Stock) and all money and other property, if any, at the time
represented by the Depositary Shares evidenced by this Receipt; provided,
however, that, in the event this Receipt shall evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the whole
number of shares of Stock to be withdrawn, the Depositary shall, in addition to
such whole number of shares of Stock and such money and other property, if any,
to be withdrawn, deliver, to or upon the order of such holder, a new Receipt or
Receipts evidencing such excess number of whole Depositary Shares.
(5) Transfers, Split-ups, Combinations. Subject to
Paragraphs 6, 7 and 8 below, this Receipt is transferable on the books of the
Depositary upon surrender of this Receipt to the Depositary at the Corporate
Office or the New York Office, or at such other offices as the Depositary may
designate, properly endorsed or accompanied by a properly executed instrument
of transfer, and upon such transfer the Depositary shall sign and deliver a
Receipt or Receipts to or upon the order of the person entitled thereto, all as
provided in and subject to the Deposit Agreement. This Receipt may be split
into other Receipts or combined with other Receipts into one Receipt evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not issue
any Receipt evidencing a fractional Depositary Share.
(6) Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of this Receipt, the delivery of
any distribution hereon or the withdrawal or deposit of Stock, the Depositary,
any of the Depositary's Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to Stock being deposited
or withdrawn or with respect to Common Stock or other securities or property of
the Company being issued upon conversion or redemption); (ii) production of
proof satisfactory to it as to the identity and genuineness of any signature;
and (iii) compliance with such reasonable regulations, if any, as the
Depositary or the Company may establish not inconsistent with the Deposit
Agreement. Any person presenting Stock for deposit, or any holder of this
Receipt, may be required to file such proof of information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold or delay the delivery of this Receipt, the registration of
transfer, redemption, conversion or
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<PAGE> 32
exchange of this Receipt, the withdrawal of the Stock represented by the
Depositary Shares evidenced by this Receipt or the distribution of any dividend
or other distribution until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
(7) Suspension of Delivery, Transfer, etc. The deposit
of Stock may be refused and the delivery of this Receipt against Stock or the
registration of transfer, split-up, combination, surrender or exchange of this
Receipt and the withdrawal of deposited Stock may be suspended (i) during any
period when the register of stockholders of the Company is closed, (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of the Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. The Depositary shall not be required (a) to
issue, transfer or exchange any Receipts for a period beginning at the opening
of business 15 days next preceding any selection of Depositary Shares and Stock
to be redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange for
another Receipt any Receipt evidencing Depositary Shares called or being called
for redemption, in whole or in part, or subject to conversion except as
provided in the last sentence of Paragraph 3.
(8) Payment of Taxes or Other Governmental Charges. If
any tax or other governmental charge shall become payable by or on behalf of
the Depositary with respect to (i) this Receipt, (ii) the Depositary Shares
evidenced by this Receipt, (iii) the Stock (or fractional interest therein) or
other property represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06 of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental charge shall
be payable by the holder of this Receipt, who shall pay the amount thereof to
the Depositary. Until such payment is made, registration of transfer of this
Receipt or any split-up or combination hereof or any withdrawal of the Stock or
money or other property, if any, represented by the Depositary Shares evidenced
by this Receipt may be refused, any dividend or other distribution may be
withheld and any part or all of the Stock or other property (including Common
Stock or other securities received in connection with a conversion or
redemption of Stock) represented by the Depositary Shares evidenced by this
Receipt may be sold for the account of the holder hereof (after attempting by
reasonable means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of this
Receipt remaining liable for any deficiency.
(9) Amendment. The form of the Receipts and any
provision of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable. Any amendment that shall impose or
increase any fees, taxes or charges payable by holders of Receipts (other than
taxes and other governmental charges, fees and other expenses payable by
holders as provided herein or in the Deposit Agreement), or that shall
otherwise prejudice any
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<PAGE> 33
substantial existing right of holders of Receipts, shall not become effective
as to outstanding Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the record holders of outstanding Receipts.
The holder of this Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold this Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right, subject to the provisions of
Paragraphs 3, 4, 6, 7 and 8 hereof and of Sections 2.03, 2.06 and 2.07 and
Article 3 of the Deposit Agreement, of the owner of the Depositary Shares
evidenced by this Receipt to surrender this Receipt with instructions to the
Depositary to deliver to the holder the Stock and all money and other property,
if any, represented thereby, except in order to comply with mandatory
provisions of applicable law.
(10) Fees, Charges and Expenses. The Company will pay
all fees, charges and expenses of the Depositary, except for taxes (including
transfer taxes, if any) and other governmental charges and such charges as are
expressly provided in the Deposit Agreement to be at the expense of persons
depositing Stock, holders of Receipts or other persons.
(11) Title to Receipts. It is a condition of this
Receipt, and every successive holder hereof by accepting or holding the same
consents and agrees, that title to this Receipt (and to the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that the Depositary
may, notwithstanding any notice to the contrary, treat the record holder hereof
at such time as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
(12) Dividends and Distributions. Whenever the
Depositary shall receive any cash dividend or other cash distribution on the
Stock, the Depositary shall, subject to the provisions of the Deposit
Agreement, distribute to record holders of Receipts such amounts of such sums
as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by law to
withhold and does withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be
reduced accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any owner of Depositary Shares a fraction of
one cent and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
(13) Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose name Stock is registered on the
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<PAGE> 34
books of the Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or privileges of any
other nature, such rights, preferences or privileges shall in each such
instance, subject to the provisions of the Deposit Agreement, be made available
by the Depositary to the record holders of Receipts in such manner as the
Company shall instruct.
(14) Notice of Dividends, Fixing of Record Date.
Whenever (i) any cash dividend or other cash distribution shall become payable,
or any distribution other than cash shall be made, or any rights, preferences
or privileges shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which holders of Stock
are entitled to vote or of which holders of Stock are entitled to notice or of
the mandatory conversion of, or any election on the part of the Company to call
for redemption of, any shares of Stock, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or (y) who shall be entitled to give instructions for the exercise of
voting rights at any such meeting or of such meeting or to receive notice of
such conversion or redemption.
(15) Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall contain (i) such information as is contained in
such notice of meeting, (ii) a statement that the holders of Receipts at the
close of business on a specified record date determined as provided in
Paragraph 14 will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designation, to instruct the
Depositary as to the exercise of the voting rights pertaining to the Stock
represented by their respective Depositary Shares, and (iii) a brief statement
as to the manner in which such instructions may be given. Upon the written
request of a holder of this Receipt on such record date the Depositary shall
endeavor insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by this Receipt in accordance
with the instructions set forth in such request. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of this
Receipt, the Depositary will abstain from voting to the extent of the Stock
represented by the Depositary Shares evidenced by this Receipt.
(16) Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of Receipts at the
Corporate Office, the New York Office and at such other places as it may from
time to time deem advisable during normal business hours any reports and
communications received from the Company that are received by the Depositary as
the holder of Stock. The Depositary shall keep books at the Corporate Office
for the registration and transfer of Receipts, which books at all reasonable
times will be open for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise
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<PAGE> 35
such right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
Depositary Shares.
(17) Liability of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company shall incur any liability
to any holder of this Receipt, if by reason of any provision of any present or
future law or regulation thereunder of any governmental authority or, in the
case of the Depositary, the Registrar or any Depositary's Agent, by reason of
any provision present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary, the
Registrar or any Depositary's Agent, by reason of any act of God or war or
other circumstances beyond the control of the relevant party, the Depositary,
any Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of the
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, the Registrar or the Company incur any liability to any
holder of this Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or the
Registrar, if such exercise or failure to exercise discretion is caused by its
negligence or bad faith.
(18) Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no obligation and
shall be subject to no liability under the Deposit Agreement or this Receipt to
the holder hereof or other persons, except to perform in good faith such
obligations as are specifically set forth and undertaken by it to perform in
the Deposit Agreement. Each of the Depositary, the Depositary's Agents and the
Registrar assumes no obligation and shall be subject to no liability under the
Deposit Agreement or this Receipt to the holder hereof or other persons, except
to perform such obligations as are specifically set forth and undertaken by it
to perform in the Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to Stock,
Depositary Shares or Receipts or Common Stock that in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company will be liable for any action or failure to act by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Stock for deposit, any holder of this Receipt or any
other person believed by it in good faith to be competent to give such advice
or information.
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<PAGE> 36
(19) Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the Deposit Agreement by
mailing notice of such termination to the record holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement if
at any time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04 of the Deposit Agreement. Upon the termination of
the Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any Depositary's Agent
and any Registrar under Sections 5.07 and 5.08 of the Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter shall
discontinue all functions and be discharged from all obligations as provided in
the Deposit Agreement, except as specifically provided therein.
(20) Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions thereof and
hereof shall be governed by, and construed in accordance with, the law of the
State of New York without giving effect to principles of conflict of laws.
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the within Receipt and all rights and
interests represented by the Depositary Shares evidenced thereby, and hereby
irrevocably constitutes and appoints his attorney, to transfer
the same on the books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature:__________________________________________
NOTE: The signature to this assignment
must correspond with the name as written
upon the face of the Receipt in every
particular, without alteration or
enlargement, or any change whatever.
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<PAGE> 37
EXHIBIT 5
BAKER & MCKENZIE
805 THIRD AVENUE
NEW YORK, NEW YORK 10022
May 1, 1996
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Re: Registration Statement on Form S-3
(Registration No. 333-2477)
Dear Sirs:
We have acted as counsel to Nabors Industries, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3 (Registration So. 333-2477) (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") on April 10, 1996 and as amended by Amendment No.
1 thereto filed with the Commission on May 1, 1996. The Registration Statement
relates to the issuance and sale from time to time, pursuant to Rule 415 of the
General Rules and Regulations promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), of the following securities of the Company with
an aggregate initial public offering price of up to $250,000,000 (or the
equivalent thereof in one or more foreign currencies, composite currencies or
currency units): (i) debt securities (the "Debt Securities") which may be
either senior debt securities (the "Senior Debt Securities") or subordinated
debt securities (the "Subordinated Debt Securities"); (ii) shares of preferred
stock, $.10 par value per share (the "Preferred Stock"), which may be issued in
the form of depositary shares (the "Depositary Shares") evidenced by depositary
receipts (the "Receipts"); (iii) shares of common stock, $.10 par value per
share (the "Common Stock); (iv) warrants to purchase Debt Securities, Preferred
Stock or Common Stock as shall be designated by the Company at the time of
offering (the "Warrants"); and (v) such indeterminate number of Debt Securities
and shares of Common Stock and Preferred Stock as may be issued upon conversion
or exchange of any Debt Securities or Preferred Stock or upon exercise of
Warrants for such securities, including such shares of Common Stock and
Preferred Stock as may be issued pursuant to anti-dilution adjustments, in
amounts, at prices and on terms to be determined at the time of offering (the
"Indeterminate Securities"). The Debt Securities, Preferred Stock, Depositary
Shares, Common Stock, Warrants and Indeterminate Securities are collectively
referred to herein as the "Securities." The Senior Debt Securities may be
issued under an Indenture (the "Senior Indenture") to be entered into between
the Company and Marine Midland Bank (the "Senior Indenture Trustee"). The
Subordinated Debt Securities may be issued under a
<PAGE> 38
Nabors Industries, Inc.
May 1, 1996
Page 2
separate Indenture (the "Subordinated Indenture") to be entered into between
the Company and Marine Midland Bank (the "Subordinated Indenture Trustee," and,
together with the Senior Indenture Trustee, the "Trustees"). The Senior
Indenture and the Subordinated Indenture are sometimes referred to herein
individually as the "Indenture" and collectively as the "Indentures."
We have examined (i) the form of Registration Statement
relating to the Securities; (ii) the form of Senior Indenture; (iii) the form
of Subordinated Indenture; (iv) the Restated Certificate of Incorporation of
the Company, as amended and currently in effect (the "Certificate of
Incorporation"); (v) the Restated By-Laws of the Company as amended and
currently in effect (the "By-Laws"); and (vi) resolutions adopted by the Board
of Directors of the Company (the "Board") relating to the issuance of the
Securities (the "Board Resolutions"). We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Company and such agreements, certificates of public officials,
certificates of officers or other representatives of the Company and others,
and such other documents, certificates and records as we have deemed necessary
or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to
any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others. We have assumed that the Senior Indenture and the Subordinated
Indenture each will be duly authorized, executed and delivered by the Trustees
respectively, and authorized officers of the applicable Trustee. In addition,
we have assumed that any Deposit Agreement and any Warrant Agreement (each as
herein defined) will be duly authorized, executed and delivered by the
Depositary and the Warrant Agent, respectively, and that the Receipts and the
Warrants have been duly signed by the Depositary and the Warrant Agent,
respectively.
In rendering the following opinion, our examination of matters
of law has been limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware (the "Delaware General Corporation
Law"), and the federal laws of the United States of America. The Securities may
be issued from time to time on a delayed or continuous basis, but this opinion
is limited to the laws, including the rules and regulations thereunder, as in
effect on the date hereof.
<PAGE> 39
Nabors Industries, Inc.
May 1, 1996
Page 3
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Senior Indenture and the Subordinated Indenture
each has been duly authorized by the Company and, when executed and delivered
by the Company, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and (c) public policy considerations which may
limit the rights of parties to obtain further remedies.
2. With respect to any series of Debt Securities (the
"Offered Debt Securities"), when (i) the Registration Statement, as finally
amended (including all necessary post-effective amendments), has become
effective; (ii) an appropriate Prospectus Supplement with respect to the
Offered Debt Securities has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations thereunder;
(iii) if the Offered Debt Securities are to be sold pursuant to a firm
commitment underwritten offering, the Underwriting Agreement with respect to
the Offered Debt Securities in the form filed as an exhibit to the Registration
Statement, or any post-effective amendment thereto, or incorporated by
reference therein, has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board, including any
appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the Offered Debt Securities and related matters; (v) the terms of the
Offered Debt Securities and of their issuance and sale have been duly
established in conformity with the applicable Indenture so as not to violate
any applicable law, the Certificate of Incorporation or By-laws of the Company
or result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company;
(vi) in the case of Subordinated Debt Securities, the Subordinated Indenture,
and in the case of the Senior Debt Securities, the Senior Indenture, has
respectively been qualified under the Trust Indenture Act of 1939, as amended,
and duly executed and delivered by the Company to the Subordinated Indenture
Trustee or the Senior Indenture Trustee, as the case may be; and (vii) the
Offered Debt Securities have been duly executed and authenticated in accordance
with the provisions of the applicable Indenture and delivered to the purchasers
thereof upon payment of the agreed-upon consideration therefor and have been
duly issued and sold in accordance with the applicable Indenture and the
Underwriting Agreement with respect to the Offered Debt Securities in the form
filed as an exhibit to the Registration Statement, or any post-effective
amendment thereto, or incorporated by reference therein, or any other duly
authorized, executed and delivered applicable valid and binding purchase
agreement, or as otherwise contemplated by the Registration Statement, or any
post-effective amendment thereto, and any Prospectus Supplement relating
thereto, (1) the Offered Debt Securities (including any Offered Debt Securities
duly issued upon conversion or exchange of any shares of Preferred Stock
convertible or exchangeable into Offered Debt Securities or upon exercise of
any Warrants exercisable for
<PAGE> 40
Nabors Industries, Inc.
May 1, 1996
Page 4
Offered Debt Securities), will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and (c) public policy
considerations which may limit the rights of parties to obtain further
remedies, and (2) if Common Stock or Preferred Stock is issuable upon
conversion or exchange of any convertible or exchangeable Offered Debt
Securities, the Common Stock or Preferred Stock issuable upon conversion or
exchange of such Offered Debt Securities will be validly issued, fully paid and
nonassessable, assuming conversion or exchange of the Offered Debt Securities
in accordance with the terms of the applicable Indenture relating thereto.
3. With respect to the shares of any series of Preferred
Stock (the "Offered Preferred Stock"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments), has become
effective; (ii) an appropriate Prospectus Supplement with respect to the
Offered Preferred Stock has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations thereunder;
(iii) if the Offered Preferred Stock is to be sold pursuant to a firm
commitment underwritten offering, the Underwriting Agreement with respect to
the Offered Preferred Stock in the form filed as an exhibit to the Registration
Statement, or any post-effective amendment thereto, or incorporated by
reference therein, has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board, including any
appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the shares of the Offered Preferred Stock and related matters,
including the adoption of a Certificate of Designation for the Offered
Preferred Stock in accordance with the applicable provisions of the Delaware
General Corporation Law (the "Certificate of Designation"); (v) the filing of
the Certificate of Designation with the Secretary of State of the State of
Delaware has duly occurred; (vi) the terms of the Offered Preferred Stock and
their issuance and sale have been duly established in conformity with the
Certificate of Incorporation, including the Certificate of Designation relating
to the Offered Preferred Stock, and the By-laws of the Company so as not to
violate any applicable law, the Certificate of Incorporation or By-laws of the
Company or result in default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company; and (vii) certificates representing the shares of the Offered
Preferred Stock are duly executed, countersigned, registered and delivered upon
payment of the agreed-upon consideration therefor and have been duly issued and
sold in accordance with the Underwriting Agreement with respect to the Offered
Preferred Stock in the form filed as an exhibit to the Registration Statement,
or any post-effective amendment thereto, or incorporated by reference therein,
or any other duly authorized, executed and delivered, applicable, valid and
binding purchase agreement, or as otherwise contemplated by the
<PAGE> 41
Nabors Industries, Inc.
May 1, 1996
Page 5
Registration Statement, or any post-effective amendment thereto, and any
Prospectus Supplement relating thereto, (1) the shares of the Offered Preferred
Stock (including any Offered Preferred Stock duly issued upon conversion or
exchange of any Debt Securities convertible or exchangeable into Offered
Preferred Stock or upon exercise of any Warrants exercisable for Offered
Preferenced Stock), will be duly authorized, validly issued, fully paid and
nonassessable, provided that the consideration therefor is not less than the
par value thereof; and (2) if the Offered Preferred Stock is convertible or
exchangeable into Common Stock, the Common Stock issuable upon conversion or
exchange of the Offered Preferred Stock will be duly authorized, validly
issued, fully paid and nonassessable, assuming conversion or exchange of the
Offered Preferred Stock in accordance with the terms of the Certificate of
Designation.
4. With respect to the issuance of any series of
Depositary Shares (the "Offered Depositary Shares"), when (i) the Registration
Statement, as finally amended (including all necessary post-effective
amendments), has become effective; (ii) an appropriate Prospectus Supplement
with respect to the Offered Depositary Shares has been prepared, delivered and
filed in compliance with the Securities Act and the applicable rules and
regulations thereunder; (iii) the deposit agreement relating to the Offered
Depositary Shares (the "Deposit Agreement") in the form filed as an exhibit to
the Registration Statement, or any post-effective amendment thereto, or
incorporated by reference therein, has been duly executed and delivered as
contemplated by the Board Resolutions or other action by the Board or a duly
appointed committee thereof; (iv) if the Offered Depositary Shares are to be
sold pursuant to a firm commitment underwritten offering, the Underwriting
Agreement with respect to the Offered Depositary Shares has been duly
authorized, executed and delivered by the Company and the other parties
thereto; (v) the Board, including any appropriate committee appointed thereby,
and appropriate officers of the Company have taken all necessary corporate
action to approve the issuance and terms of the offered Depositary Shares and
related matters; (vi) the terms of the Offered Depositary Shares and of their
issuance and sale have been duly established in conformity with the Deposit
Agreement so as not to violate any applicable law, the Certificate of
Incorporation or By-laws of the Company or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply
with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; (vii) the Receipts for the Offered
Depositary Shares have been duly executed, delivered and countersigned in
accordance with the Deposit Agreement relating to such Offered Depositary
Shares, and the Offered Depositary Shares have been duly issued and sold in
accordance with the Deposit Agreement in the form filed as an exhibit to the
Registration Statement, or any post-effective amendment thereto, or
incorporated by reference therein, the Underwriting Agreement with respect to
the Offered Depositary Shares, or any other duly authorized, executed and
delivered, applicable, valid and binding purchase agreement, or as otherwise
contemplated by the Registration Statement, or any post-effective amendment
thereto, and any Prospectus Supplement relating thereto; and (viii) the
Preferred Stock which is represented by Depositary Shares is duly authorized,
validly issued and delivered to the Depositary in accordance with the laws of
the State of Delaware, the Offered
<PAGE> 42
Nabors Industries, Inc.
May 1, 1996
Page 6
Depositary Shares will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and (c) public policy
considerations which may limit the rights of parties to obtain further
remedies. When the Receipts evidencing the Depositary Shares are duly issued
against the deposit of the Preferred Stock in accordance with the Deposit
Agreement, such Receipts will be validly issued and will entitle the holders
thereof to the rights specified therein and in the Deposit Agreement.
5. With respect to the issuance of any series of
Warrants (the "Offered Warrants"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments), has become
effective; (ii) an appropriate Prospectus Supplement with respect to the
Offered Warrants has been prepared, delivered and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder; (iii) the
warrant agreement relating to the Offered Warrants (the "Warrant Agreement") in
the form filed as an exhibit to the Registration Statement, or any
post-effective amendment thereto, or incorporated by reference therein, has
been duly executed and delivered as contemplated by the Board Resolutions or
other action by the Board or a duly appointed committee thereof; (iv) if the
Offered Warrants are to be sold pursuant to a firm commitment underwritten
offering, the Underwriting Agreement with respect to the Offered Warrants has
been duly authorized, executed and delivered by the Company and the other
parties thereto; (v) the Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance and terms of the Offered Warrants and
related matters; (vi) the terms of the Offered Warrants and of their issuance
and sale have been duly established in conformity with the Warrant Agreement so
as not to violate any applicable law, the Certificate of Incorporation or By-
laws of the Company or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company; and (vii) the Offered Warrants have been duly executed, delivered
and countersigned and have been duly issued and sold in accordance with the
Warrant Agreement in the form filed as an exhibit to the Registration
Statement, or any post-effective amendment thereto, or incorporated by
reference therein, the Underwriting Agreement with respect to the Offered
Warrants, or any other duly authorized, executed and delivered, applicable,
valid and binding purchase agreement, or as otherwise contemplated by the
Registration Statement, or any post-effective amendment thereto, and any
Prospectus Supplement relating thereto, the Offered Warrants will be valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except to the extent that enforcement
thereof may be limited by (b) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws not or hereafter in
effect relating to creditors' rights generally, (b) general principles of
equity (regardless of
<PAGE> 43
Nabors Industries, Inc.
May 1, 1996
Page 7
whether enforceability is considered in a proceeding at law or in equity), and
(c) public policy considerations which may limit the rights of parties to
obtain further remedies.
6. With respect to any offering of Common Stock, when
(i) the Registration Statement, as finally amended (including all necessary
post-effective amendments) has become effective; (ii) an appropriate Prospectus
Supplement with respect to the Common Stock has been prepared, delivered and
filed in compliance with the Securities Act and the applicable rules and
regulations thereunder; (iii) if the Common Stock is to be sold pursuant to a
firm commitment underwritten offering, the Underwriting Agreement with respect
to the Common Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board, including any
appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance of
the Common Stock and related matters; (v) the terms of the issuance and sale of
the Common Stock have been duly established in conformity with the Certificate
of Incorporation and By-laws so as not to violate any applicable law, the
Certificate of Incorporation or By-laws of the Company or result in a default
under or breach of any agreement or instrument binding upon the Company and so
as to comply with any restriction imposed by any court or governmental body
having jurisdiction over the Company; and (vi) certificates representing the
shares of Common Stock are duly executed, countersigned, registered and
delivered upon payment of the agreed-upon consideration therefor and have been
duly issued and sold in accordance with the Underwriting Agreement with respect
to the Common Stock, or any other duly authorized, executed and delivered,
applicable, valid and binding purchase agreement, or as otherwise contemplated
by the Registration Statement, or any post-effective amendment thereto, and any
Prospectus Supplement relating thereto, the shares of Common Stock (including
any Common Stock duly issued upon conversion or exchange of any Debt Securities
or shares of Preferred Stock convertible or exchangeable into Common Stock or
upon exercise of any Warrants exercisable for Common Stock) will be duly
authorized, validly issued, fully paid and nonassessable.
We understand that prior to offering for sale any Securities
you will advise us in writing of the terms of such offering and of such
Securities, will afford us an opportunity to review the operative documents
(including the applicable Prospectus Supplement) pursuant to which the
Securities are to be offered, sold and issued, and will file as an exhibit to
the Registration Statement such supplement or amendment to this opinion (if
any) as we may reasonably consider necessary or appropriate by reason of the
terms of such Securities or any changes in the Company's capital structure or
other pertinent circumstances.
<PAGE> 44
Nabors Industries, Inc.
May 1, 1996
Page 8
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. We also consent to the
reference to our firm under the heading "Validity of Securities" in the
Registration Statement. In giving this consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ BAKER & MCcKENZIE
<PAGE> 1
EXHIBIT 5
BAKER & MCKENZIE
805 THIRD AVENUE
NEW YORK, NEW YORK 10022
May 1, 1996
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Re: Registration Statement on Form S-3
(Registration No. 333-2477)
Dear Sirs:
We have acted as counsel to Nabors Industries, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3 (Registration So. 333-2477) (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") on April 10, 1996 and as amended by Amendment No.
1 thereto filed with the Commission on May 1, 1996. The Registration Statement
relates to the issuance and sale from time to time, pursuant to Rule 415 of the
General Rules and Regulations promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), of the following securities of the Company with
an aggregate initial public offering price of up to $250,000,000 (or the
equivalent thereof in one or more foreign currencies, composite currencies or
currency units): (i) debt securities (the "Debt Securities") which may be
either senior debt securities (the "Senior Debt Securities") or subordinated
debt securities (the "Subordinated Debt Securities"); (ii) shares of preferred
stock, $.10 par value per share (the "Preferred Stock"), which may be issued in
the form of depositary shares (the "Depositary Shares") evidenced by depositary
receipts (the "Receipts"); (iii) shares of common stock, $.10 par value per
share (the "Common Stock); (iv) warrants to purchase Debt Securities, Preferred
Stock or Common Stock as shall be designated by the Company at the time of
offering (the "Warrants"); and (v) such indeterminate number of Debt Securities
and shares of Common Stock and Preferred Stock as may be issued upon conversion
or exchange of any Debt Securities or Preferred Stock or upon exercise of
Warrants for such securities, including such shares of Common Stock and
Preferred Stock as may be issued pursuant to anti-dilution adjustments, in
amounts, at prices and on terms to be determined at the time of offering (the
"Indeterminate Securities"). The Debt Securities, Preferred Stock, Depositary
Shares, Common Stock, Warrants and Indeterminate Securities are collectively
referred to herein as the "Securities." The Senior Debt Securities may be
issued under an Indenture (the "Senior Indenture") to be entered into between
the Company and Marine Midland Bank (the "Senior Indenture Trustee"). The
Subordinated Debt Securities may be issued under a
<PAGE> 2
Nabors Industries, Inc.
May 1, 1996
Page 2
separate Indenture (the "Subordinated Indenture") to be entered into between
the Company and Marine Midland Bank (the "Subordinated Indenture Trustee," and,
together with the Senior Indenture Trustee, the "Trustees"). The Senior
Indenture and the Subordinated Indenture are sometimes referred to herein
individually as the "Indenture" and collectively as the "Indentures."
We have examined (i) the form of Registration Statement
relating to the Securities; (ii) the form of Senior Indenture; (iii) the form
of Subordinated Indenture; (iv) the Restated Certificate of Incorporation of
the Company, as amended and currently in effect (the "Certificate of
Incorporation"); (v) the Restated By-Laws of the Company as amended and
currently in effect (the "By-Laws"); and (vi) resolutions adopted by the Board
of Directors of the Company (the "Board") relating to the issuance of the
Securities (the "Board Resolutions"). We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such records
of the Company and such agreements, certificates of public officials,
certificates of officers or other representatives of the Company and others,
and such other documents, certificates and records as we have deemed necessary
or appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to
any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and
others. We have assumed that the Senior Indenture and the Subordinated
Indenture each will be duly authorized, executed and delivered by the Trustees
respectively, and authorized officers of the applicable Trustee. In addition,
we have assumed that any Deposit Agreement and any Warrant Agreement (each as
herein defined) will be duly authorized, executed and delivered by the
Depositary and the Warrant Agent, respectively, and that the Receipts and the
Warrants have been duly signed by the Depositary and the Warrant Agent,
respectively.
In rendering the following opinion, our examination of matters
of law has been limited to the laws of the State of New York, the General
Corporation Law of the State of Delaware (the "Delaware General Corporation
Law"), and the federal laws of the United States of America. The Securities may
be issued from time to time on a delayed or continuous basis, but this opinion
is limited to the laws, including the rules and regulations thereunder, as in
effect on the date hereof.
<PAGE> 3
Nabors Industries, Inc.
May 1, 1996
Page 3
Based upon and subject to the foregoing, we are of the opinion
that:
1. The Senior Indenture and the Subordinated Indenture
each has been duly authorized by the Company and, when executed and delivered
by the Company, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, (b) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity), and (c) public policy considerations which may
limit the rights of parties to obtain further remedies.
2. With respect to any series of Debt Securities (the
"Offered Debt Securities"), when (i) the Registration Statement, as finally
amended (including all necessary post-effective amendments), has become
effective; (ii) an appropriate Prospectus Supplement with respect to the
Offered Debt Securities has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations thereunder;
(iii) if the Offered Debt Securities are to be sold pursuant to a firm
commitment underwritten offering, the Underwriting Agreement with respect to
the Offered Debt Securities in the form filed as an exhibit to the Registration
Statement, or any post-effective amendment thereto, or incorporated by
reference therein, has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board, including any
appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the Offered Debt Securities and related matters; (v) the terms of the
Offered Debt Securities and of their issuance and sale have been duly
established in conformity with the applicable Indenture so as not to violate
any applicable law, the Certificate of Incorporation or By-laws of the Company
or result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company;
(vi) in the case of Subordinated Debt Securities, the Subordinated Indenture,
and in the case of the Senior Debt Securities, the Senior Indenture, has
respectively been qualified under the Trust Indenture Act of 1939, as amended,
and duly executed and delivered by the Company to the Subordinated Indenture
Trustee or the Senior Indenture Trustee, as the case may be; and (vii) the
Offered Debt Securities have been duly executed and authenticated in accordance
with the provisions of the applicable Indenture and delivered to the purchasers
thereof upon payment of the agreed-upon consideration therefor and have been
duly issued and sold in accordance with the applicable Indenture and the
Underwriting Agreement with respect to the Offered Debt Securities in the form
filed as an exhibit to the Registration Statement, or any post-effective
amendment thereto, or incorporated by reference therein, or any other duly
authorized, executed and delivered applicable valid and binding purchase
agreement, or as otherwise contemplated by the Registration Statement, or any
post-effective amendment thereto, and any Prospectus Supplement relating
thereto, (1) the Offered Debt Securities (including any Offered Debt Securities
duly issued upon conversion or exchange of any shares of Preferred Stock
convertible or exchangeable into Offered Debt Securities or upon exercise of
any Warrants exercisable for
<PAGE> 4
Nabors Industries, Inc.
May 1, 1996
Page 4
Offered Debt Securities), will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and (c) public policy
considerations which may limit the rights of parties to obtain further
remedies, and (2) if Common Stock or Preferred Stock is issuable upon
conversion or exchange of any convertible or exchangeable Offered Debt
Securities, the Common Stock or Preferred Stock issuable upon conversion or
exchange of such Offered Debt Securities will be validly issued, fully paid and
nonassessable, assuming conversion or exchange of the Offered Debt Securities
in accordance with the terms of the applicable Indenture relating thereto.
3. With respect to the shares of any series of Preferred
Stock (the "Offered Preferred Stock"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments), has become
effective; (ii) an appropriate Prospectus Supplement with respect to the
Offered Preferred Stock has been prepared, delivered and filed in compliance
with the Securities Act and the applicable rules and regulations thereunder;
(iii) if the Offered Preferred Stock is to be sold pursuant to a firm
commitment underwritten offering, the Underwriting Agreement with respect to
the Offered Preferred Stock in the form filed as an exhibit to the Registration
Statement, or any post-effective amendment thereto, or incorporated by
reference therein, has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board, including any
appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the shares of the Offered Preferred Stock and related matters,
including the adoption of a Certificate of Designation for the Offered
Preferred Stock in accordance with the applicable provisions of the Delaware
General Corporation Law (the "Certificate of Designation"); (v) the filing of
the Certificate of Designation with the Secretary of State of the State of
Delaware has duly occurred; (vi) the terms of the Offered Preferred Stock and
their issuance and sale have been duly established in conformity with the
Certificate of Incorporation, including the Certificate of Designation relating
to the Offered Preferred Stock, and the By-laws of the Company so as not to
violate any applicable law, the Certificate of Incorporation or By-laws of the
Company or result in default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company; and (vii) certificates representing the shares of the Offered
Preferred Stock are duly executed, countersigned, registered and delivered upon
payment of the agreed-upon consideration therefor and have been duly issued and
sold in accordance with the Underwriting Agreement with respect to the Offered
Preferred Stock in the form filed as an exhibit to the Registration Statement,
or any post-effective amendment thereto, or incorporated by reference therein,
or any other duly authorized, executed and delivered, applicable, valid and
binding purchase agreement, or as otherwise contemplated by the
<PAGE> 5
Nabors Industries, Inc.
May 1, 1996
Page 5
Registration Statement, or any post-effective amendment thereto, and any
Prospectus Supplement relating thereto, (1) the shares of the Offered Preferred
Stock (including any Offered Preferred Stock duly issued upon conversion or
exchange of any Debt Securities convertible or exchangeable into Offered
Preferred Stock or upon exercise of any Warrants exercisable for Offered
Preferenced Stock), will be duly authorized, validly issued, fully paid and
nonassessable, provided that the consideration therefor is not less than the
par value thereof; and (2) if the Offered Preferred Stock is convertible or
exchangeable into Common Stock, the Common Stock issuable upon conversion or
exchange of the Offered Preferred Stock will be duly authorized, validly
issued, fully paid and nonassessable, assuming conversion or exchange of the
Offered Preferred Stock in accordance with the terms of the Certificate of
Designation.
4. With respect to the issuance of any series of
Depositary Shares (the "Offered Depositary Shares"), when (i) the Registration
Statement, as finally amended (including all necessary post-effective
amendments), has become effective; (ii) an appropriate Prospectus Supplement
with respect to the Offered Depositary Shares has been prepared, delivered and
filed in compliance with the Securities Act and the applicable rules and
regulations thereunder; (iii) the deposit agreement relating to the Offered
Depositary Shares (the "Deposit Agreement") in the form filed as an exhibit to
the Registration Statement, or any post-effective amendment thereto, or
incorporated by reference therein, has been duly executed and delivered as
contemplated by the Board Resolutions or other action by the Board or a duly
appointed committee thereof; (iv) if the Offered Depositary Shares are to be
sold pursuant to a firm commitment underwritten offering, the Underwriting
Agreement with respect to the Offered Depositary Shares has been duly
authorized, executed and delivered by the Company and the other parties
thereto; (v) the Board, including any appropriate committee appointed thereby,
and appropriate officers of the Company have taken all necessary corporate
action to approve the issuance and terms of the offered Depositary Shares and
related matters; (vi) the terms of the Offered Depositary Shares and of their
issuance and sale have been duly established in conformity with the Deposit
Agreement so as not to violate any applicable law, the Certificate of
Incorporation or By-laws of the Company or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply
with any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company; (vii) the Receipts for the Offered
Depositary Shares have been duly executed, delivered and countersigned in
accordance with the Deposit Agreement relating to such Offered Depositary
Shares, and the Offered Depositary Shares have been duly issued and sold in
accordance with the Deposit Agreement in the form filed as an exhibit to the
Registration Statement, or any post-effective amendment thereto, or
incorporated by reference therein, the Underwriting Agreement with respect to
the Offered Depositary Shares, or any other duly authorized, executed and
delivered, applicable, valid and binding purchase agreement, or as otherwise
contemplated by the Registration Statement, or any post-effective amendment
thereto, and any Prospectus Supplement relating thereto; and (viii) the
Preferred Stock which is represented by Depositary Shares is duly authorized,
validly issued and delivered to the Depositary in accordance with the laws of
the State of Delaware, the Offered
<PAGE> 6
Nabors Industries, Inc.
May 1, 1996
Page 6
Depositary Shares will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except to the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and (c) public policy
considerations which may limit the rights of parties to obtain further
remedies. When the Receipts evidencing the Depositary Shares are duly issued
against the deposit of the Preferred Stock in accordance with the Deposit
Agreement, such Receipts will be validly issued and will entitle the holders
thereof to the rights specified therein and in the Deposit Agreement.
5. With respect to the issuance of any series of
Warrants (the "Offered Warrants"), when (i) the Registration Statement, as
finally amended (including all necessary post-effective amendments), has become
effective; (ii) an appropriate Prospectus Supplement with respect to the
Offered Warrants has been prepared, delivered and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder; (iii) the
warrant agreement relating to the Offered Warrants (the "Warrant Agreement") in
the form filed as an exhibit to the Registration Statement, or any
post-effective amendment thereto, or incorporated by reference therein, has
been duly executed and delivered as contemplated by the Board Resolutions or
other action by the Board or a duly appointed committee thereof; (iv) if the
Offered Warrants are to be sold pursuant to a firm commitment underwritten
offering, the Underwriting Agreement with respect to the Offered Warrants has
been duly authorized, executed and delivered by the Company and the other
parties thereto; (v) the Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary
corporate action to approve the issuance and terms of the Offered Warrants and
related matters; (vi) the terms of the Offered Warrants and of their issuance
and sale have been duly established in conformity with the Warrant Agreement so
as not to violate any applicable law, the Certificate of Incorporation or By-
laws of the Company or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company; and (vii) the Offered Warrants have been duly executed, delivered
and countersigned and have been duly issued and sold in accordance with the
Warrant Agreement in the form filed as an exhibit to the Registration
Statement, or any post-effective amendment thereto, or incorporated by
reference therein, the Underwriting Agreement with respect to the Offered
Warrants, or any other duly authorized, executed and delivered, applicable,
valid and binding purchase agreement, or as otherwise contemplated by the
Registration Statement, or any post-effective amendment thereto, and any
Prospectus Supplement relating thereto, the Offered Warrants will be valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except to the extent that enforcement
thereof may be limited by (b) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws not or hereafter in
effect relating to creditors' rights generally, (b) general principles of
equity (regardless of
<PAGE> 7
Nabors Industries, Inc.
May 1, 1996
Page 7
whether enforceability is considered in a proceeding at law or in equity), and
(c) public policy considerations which may limit the rights of parties to
obtain further remedies.
6. With respect to any offering of Common Stock, when
(i) the Registration Statement, as finally amended (including all necessary
post-effective amendments) has become effective; (ii) an appropriate Prospectus
Supplement with respect to the Common Stock has been prepared, delivered and
filed in compliance with the Securities Act and the applicable rules and
regulations thereunder; (iii) if the Common Stock is to be sold pursuant to a
firm commitment underwritten offering, the Underwriting Agreement with respect
to the Common Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto; (iv) the Board, including any
appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance of
the Common Stock and related matters; (v) the terms of the issuance and sale of
the Common Stock have been duly established in conformity with the Certificate
of Incorporation and By-laws so as not to violate any applicable law, the
Certificate of Incorporation or By-laws of the Company or result in a default
under or breach of any agreement or instrument binding upon the Company and so
as to comply with any restriction imposed by any court or governmental body
having jurisdiction over the Company; and (vi) certificates representing the
shares of Common Stock are duly executed, countersigned, registered and
delivered upon payment of the agreed-upon consideration therefor and have been
duly issued and sold in accordance with the Underwriting Agreement with respect
to the Common Stock, or any other duly authorized, executed and delivered,
applicable, valid and binding purchase agreement, or as otherwise contemplated
by the Registration Statement, or any post-effective amendment thereto, and any
Prospectus Supplement relating thereto, the shares of Common Stock (including
any Common Stock duly issued upon conversion or exchange of any Debt Securities
or shares of Preferred Stock convertible or exchangeable into Common Stock or
upon exercise of any Warrants exercisable for Common Stock) will be duly
authorized, validly issued, fully paid and nonassessable.
We understand that prior to offering for sale any Securities
you will advise us in writing of the terms of such offering and of such
Securities, will afford us an opportunity to review the operative documents
(including the applicable Prospectus Supplement) pursuant to which the
Securities are to be offered, sold and issued, and will file as an exhibit to
the Registration Statement such supplement or amendment to this opinion (if
any) as we may reasonably consider necessary or appropriate by reason of the
terms of such Securities or any changes in the Company's capital structure or
other pertinent circumstances.
<PAGE> 8
Nabors Industries, Inc.
May 1, 1996
Page 8
We hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. We also consent to the
reference to our firm under the heading "Validity of Securities" in the
Registration Statement. In giving this consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
/s/ BAKER & MCcKENZIE
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement of Nabors Industries, Inc. on Form S-3 of our reports
dated November 27, 1995 on our audits of the consolidated financial statements
and financial statement schedule of Nabors Industries, Inc. and Subsidiaries in
the Company's 1995 Annual Report on Form 10-K. We also consent to the reference
to our firm under the caption "Experts".
Coopers & Lybrand L.L.P.
Houston, Texas
May 1, 1996
