Exhibit 4.2
Execution Version
BAKER HUGHES INCORPORATED
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 17, 2011
to the
INDENTURE
Dated as of October 28, 2008
between
BAKER HUGHES INCORPORATED
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
Table of Contents
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Page
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ARTICLE I Definitions
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1
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ARTICLE II Designation and Terms of the Securities
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7
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SECTION 2.01. Title
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7
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SECTION 2.02. Aggregate Principal Amount; Execution and Authentication
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7
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SECTION 2.03. Maturity; Interest Rate; and Denomination of Notes
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8
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SECTION 2.04. Place and Method of Payment
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8
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SECTION 2.05. Optional Redemption
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9
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SECTION 2.06. No Sinking Fund or Holder Redemption Right
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10
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SECTION 2.07. Forms of Notes
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10
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SECTION 2.08. Additional Securities
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11
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SECTION 2.09. Defeasance and Covenant Defeasance
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11
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SECTION 2.10. Depositary
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11
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SECTION 2.11. Other Terms and Form of the Notes
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12
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SECTION 2.12. Applicability
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12
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ARTICLE III Additional Covenants
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12
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SECTION 3.01. Rule 144A Information
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12
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SECTION 3.02. Restriction on Liens; Restriction on Sale and Lease-Back Transactions
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12
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SECTION 3.03. Applicability
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13
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ARTICLE IV Transfer and Exchange
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14
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SECTION 4.01. Transfer and Exchange of Global Securities; Limited Rights of Beneficial
Owners
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14
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SECTION 4.02. Transfer and Exchange of Beneficial Interests in the Global Securities
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16
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SECTION 4.03. No Transfer or Exchange of Beneficial Interests for Definitive Securities
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18
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SECTION 4.04. No Transfer and Exchange of Definitive Securities for Beneficial Interests
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18
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SECTION 4.05. Transfer and Exchange of Definitive Securities for Definitive Securities
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19
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SECTION 4.06. Registered Exchange Offer
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20
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SECTION 4.07. Legends
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21
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SECTION 4.08. Cancellation and/or Adjustment of Global Securities
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25
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SECTION 4.09. General Provisions Relating to Transfers and Exchanges
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26
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SECTION 4.10. Applicability
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27
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ARTICLE V Miscellaneous
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27
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SECTION 5.01. Ratification of Original Indenture; First Supplemental Indenture Part of
Original Indenture
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27
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SECTION 5.02. Concerning the Trustee
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27
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SECTION 5.03. Counterparts
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27
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i
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Page
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SECTION 5.04. Governing Law
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27
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SECTION 5.05. Effect of Headings and Table of Contents
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28
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SECTION 5.06. Benefits under First Supplemental Indenture, etc.
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28
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SECTION 5.07. Successors
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28
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SECTION 5.08. Scope of Supplemental Indenture
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28
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Exhibit A Form of Note
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Exhibit B Form of Certificate of Transfer
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Exhibit C Form of Certificate of Exchange
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ii
FIRST SUPPLEMENTAL INDENTURE, dated as of August 17, 2011 (this
First Supplemental
Indenture
), to the indenture dated as of October 28, 2008 (the
Original Indenture
) between Baker
Hughes Incorporated, a Delaware corporation (the
Company
), and The Bank of New York Mellon Trust
Company, N.A. (the
Trustee
).
WHEREAS, the Company and the Trustee have heretofore executed and delivered the Original
Indenture to provide for the issuance from time to time of Securities (as defined in the Original
Indenture) of the Company, to be issued in one or more series;
WHEREAS, Sections 201, 301, 901(2) and 901(7) of the Original Indenture provide that the
Company and the Trustee may, without the consent of any Holders (as defined in the Original
Indenture) of Securities, enter into indentures supplemental to the Original Indenture for the
purpose of establishing the form and terms of Securities of any series and adding to the covenants
of the Company for the benefit of such series;
WHEREAS, the Company (i) desires the issuance of a series of Securities to be designated as
hereinafter provided and (ii) has requested the Trustee to enter into this First Supplemental
Indenture for the purpose of establishing the form and terms of the Securities of such series and
adding to the covenants of the Company for the benefit of such series; and
WHEREAS, the Company has duly authorized the creation of the Notes (as defined below) of the
tenor and amount hereinafter set forth;
NOW, THEREFORE, for and in consideration of the premises and the covenants and agreements
contained herein, and for other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
(a) Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings ascribed thereto in the Original Indenture.
(b) The rules of interpretation set forth in Section 1.01 of the Original Indenture shall be
applied hereto as if set forth in full herein.
(c) For all purposes of this First Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise requires, the following terms shall have the following
respective meanings (such meanings shall apply equally to both the singular and plural forms of the
respective terms):
Additional Interest
means, with respect to any Notes, the additional or special interest
thereon, if any, required by the Registration Rights Agreement applicable to such Notes. All
references in this First Supplemental Indenture or the Notes to interest shall be deemed to
include Additional Interest unless the context otherwise requires.
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Additional Securities
means any Notes issued from time to time after the Issue Date under
the terms of this First Supplemental Indenture (other than pursuant to Sections 304, 305, 306, 906
or 1107 of the Original Indenture or Article IV of this First Supplemental Indenture and other than
the Initial Securities or the Exchange Securities) in accordance with Section 2.08, as part of the
same series as the Initial Securities and any Exchange Securities then outstanding.
Agent
means any Security Registrar or Paying Agent.
Attributable Debt
means, with respect to any Sale and Leaseback Transaction, as of the time
of determination, the total obligation, discounted to present value at the annual rate equal to the
discount rate which would be applicable to a capital lease obligation with a similar term in
accordance with GAAP, of a lessee for rental payments (other than amounts required to be paid on
account of property taxes, maintenance, repairs, insurance, water rates and other items which do
not constitute payments for property rights) during the remaining portion of the initial term of
the lease with respect to such Sale and Leaseback Transaction.
Clearstream
means Clearstream Banking, société anonyme or any successor securities clearing
agency.
Comparable Treasury Issue
means, with respect to the Notes, the United States Treasury
security selected by an Independent Investment Banker as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes to be redeemed.
Comparable Treasury Price
means with respect to any Redemption Date for any Notes (i) the
average of four Reference Treasury Dealer Quotations for that Redemption Date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Consolidated Net Tangible Assets
means the total amount of assets less applicable reserves
and other properly deductible items after deducting (a) all current liabilities excluding any
thereof which are by their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being computed, and (b)
all goodwill, trade names, trademarks, patents, purchased technology, unamortized debt discount and
other like intangible assets, all as determined on a consolidated basis for the Company and its
consolidated subsidiaries as set forth on the Companys most recent quarterly balance sheet and
computed in accordance with GAAP.
Definitive Security
means a certificated Note registered in the name of the Holder thereof
and issued in accordance with Article IV, substantially in the form of
Exhibit A
hereto,
except that such Note shall not bear the Global Security Legend and shall not have the Schedule of
Exchanges of Interests in the Global Security attached thereto.
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Euroclear
means Euroclear Bank N.V./S.A. or any successor securities clearance agency.
Exchange Offer Registration Statement
means a registration statement of the Company relating
to any offer to exchange Exchange Securities for either Initial Securities or Additional Securities
pursuant to a Registration Rights Agreement.
Exchange Securities
means Notes issued in an exchange offer for Initial Securities or
Additional Securities in accordance with a Registration Rights Agreement.
Exchanging Dealer
means a broker-dealer that exchanges Notes in a Registered Exchange Offer
that it has acquired for its own account as a result of market making activities or other trading
activities.
Global Securities
means, individually and collectively, each of the Restricted Global
Securities and the Unrestricted Global Securities.
Global Security Legend
means the legend set forth in Section 4.07(c) which is required to be
placed on all Global Securities issued under this First Supplemental Indenture.
Indenture
means the Original Indenture as supplemented by this First Supplemental Indenture,
as either may be amended or supplemented from time to time in accordance with the terms thereof or
hereof, including the provisions of the Trust Indenture Act that are deemed to be a part thereof or
hereof.
Independent Investment Banker
means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
Indirect Participant
means a Person who holds a beneficial interest in a Global Security
through a Participant.
Initial Purchasers
means, with respect to the Initial Securities, the initial purchasers
named in the Purchase Agreement, as initial purchasers of the Initial Securities in the Offering.
Initial Securities
has the meaning specified in Section 2.02. The Initial Securities
constitute the Notes issued on the date hereof.
Issue Date
means August 17, 2011, the first date on which the Notes are issued under this
First Supplemental Indenture.
Letter of Transmittal
means the letter of transmittal prepared by the Company and sent to
all Holders of Initial Securities or Additional Securities, as the case may be, for use by such
Holders in connection with a Registered Exchange Offer.
Non-U.S. Person
means a Person who is not a U.S. Person.
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Notes
means the 3.20% Senior Notes due 2021 of the Company issued pursuant to the Indenture
and shall include the Initial Securities and any Exchange Securities or Additional Securities
authenticated and delivered in accordance with Section 2.02.
Offering
means the offering of the Initial Securities pursuant to the Offering Memorandum.
Offering Memorandum
means the final Offering Memorandum of the Company, dated August 10,
2011, relating to the Offering.
144A Global Security
means a Global Security substantially in the form of
Exhibit A
hereto bearing the Global Security Legend and the Private Placement Legend, that has the Schedule
of Exchanges of Interests in the Global Security attached thereto, and that is deposited with or on
behalf of, and registered in the name of, the Depositary or its nominee, issued in a denomination
equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 144A.
Participant
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to
DTC, shall include Euroclear and Clearstream).
Principal Property
means any real property, manufacturing plant, warehouse, office building
or other physical facility, or any item of marine, transportation or construction equipment or
other like depreciable assets of the Company or of any Restricted Subsidiary, whether owned at or
acquired after August 17, 2011, unless, in the opinion of the Board of Directors, such plant or
facility or other assets is not of material importance to the total business conducted by the
Company and its Restricted Subsidiaries taken as a whole.
Private Placement Legend
means the legend set forth in Section 4.07(a) which is required to
be placed on all Notes issued under this Indenture except where otherwise permitted by the
provisions of this First Supplemental Indenture.
Purchase Agreement
means the Purchase Agreement, dated August 10, 2011, among the Company
and the Initial Purchasers.
QIB
means a qualified institutional buyer as defined in Rule 144A.
Reference Treasury Dealer
means each of J.P. Morgan Securities LLC and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and four other primary U.S. Government securities dealers in
the United States (each, a
Primary Treasury Dealer
) appointed by the Trustee in consultation with
the Company; provided, however, that if any of the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
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principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00
p.m. (New York City time) on the third Business Day preceding that Redemption Date.
Registered Exchange Offer
means an offer to exchange Exchange Securities for either Initial
Securities or Additional Securities pursuant to an Exchange Offer Registration Statement as
required by a Registration Rights Agreement.
Registration Rights Agreement
means, with respect to the Initial Securities, the
Registration Rights Agreement, dated as of the Issue Date, among the Company and the Initial
Purchasers, or any similar registration rights agreement with respect to Additional Securities.
Regulation S
means Regulation S promulgated under the Securities Act, as such may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.
Regulation S Global Security
means a permanent Global Security substantially in the form of
Exhibit A
hereto bearing the Global Security Legend and the Private Placement Legend, that
has the Schedule of Exchanges of Interests in the Global Security attached thereto, and that is
deposited with or on behalf of, and registered in the name of, the Depositary or its nominee,
issued in a denomination equal to the outstanding principal amount of the Notes initially sold in
reliance on Rule 903 of Regulation S.
Resale Restriction Termination Date
means with respect to any Notes, (x) in the case of
Notes offered and sold to QIBs in reliance on Rule 144A, the date which is one year (or such other
date when resales of securities by non-affiliates are first permitted under Rule 144(d)) or, in the
case of Notes offered and sold in offshore transactions in reliance on Regulation S, 40 days, in
each case, after the Issue Date or the date of any subsequent reopening of the Notes and the last
date on which the Company or any of its affiliates (as defined in Rule 144) were the owner of such
Notes (or any predecessor thereto) or (y) in any case, such later date, if any, as may be required
by applicable law.
Restricted Definitive Security
means a Definitive Security bearing the Private Placement
Legend.
Restricted Global Security
means a Regulation S Global Security or a 144A Global Security.
Restricted Period
means the distribution compliance period as defined in Regulation S in
respect of the Offering of the Initial Notes.
Restricted Subsidiary
means: (i) any Subsidiary of the Company the principal assets and
business of which are located in the United States or Canada, except Subsidiaries the principal
business of which consists of providing sales and acquisition financing of the products of the
Company or any of its Subsidiaries or owning, leasing, dealing in or developing real estate; (ii)
any Subsidiary of the Company that owns, indirectly through ownership of another Subsidiary of the
Company, a Principal Property located in the United States or Canada; or (iii) any other Subsidiary
of the Company that the Company designates as a Restricted Subsidiary.
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Rule 144
means Rule 144 promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144A) or regulation hereafter adopted by
the SEC providing for offers and sales of securities made in compliance therewith resulting in
offers and sales by subsequent holders that are not affiliates of the issuer of such securities
being free of the registration and prospectus delivery requirements of the Securities Act.
Rule 144A
means Rule 144A promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144) or regulation hereafter adopted by the
SEC.
Rule 903
means Rule 903 promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.
Rule 904
means Rule 904 promulgated under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the SEC.
Sale and Leaseback Transaction
means any arrangement with any Person under which the Company
or any Restricted Subsidiary leases for a term of more than three years any Principal Property that
the Company or any Restricted Subsidiary has sold or transferred or will sell or transfer to that
Person. This term excludes leases of any Principal Property the Company or any Restricted
Subsidiary acquires or places in service within 180 days prior to the arrangement.
SEC
means the U.S. Securities and Exchange Commission.
Securities Custodian
means the Trustee, as custodian on behalf of the Depositary with
respect to the Notes in global form, or any successor entity thereto.
Shelf Registration Statement
means a registration statement of the Company used by a Holder
in connection with its offer and sale of Notes pursuant to a Registration Rights Agreement.
Treasury Rate
means, with respect to any Redemption Date for the Notes, (i) the yield, under
the heading which represents the average for the immediately preceding week, appearing in the most
recently published statistical release designated H.15(519) or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant maturity under the
caption Treasury Constant Maturities, for the maturity corresponding to the Comparable Treasury
Issue with respect to the Notes (if no maturity is within three months before or after the Stated
Maturity for the Notes, yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if
that release (or any successor release) is not published during the week preceding the calculation
date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable
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Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption
Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption
Date.
Unrestricted Definitive Security
means a Definitive Security that does not bear and is not
required to bear the Private Placement Legend.
Unrestricted Global Security
means a permanent Global Security substantially in the form of
Exhibit A
attached hereto that bears the Global Security Legend and that has the Schedule
of Exchanges of Securities attached thereto and that is deposited with or on behalf of and
registered in the name of the Depositary or its nominee, representing Notes that do not bear the
Private Placement Legend.
Unrestricted Security
means an Unrestricted Definitive Security or Unrestricted Global
Security.
U.S. Person
means a U.S. person as defined in Rule 902(k) under the Securities Act.
Other Definitions
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Term
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Defined in Section
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Agent Members
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2.08
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Definitive Securities Issuance Date
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4.01
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(b)
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DTC
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2.10
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Interest Payment Date
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2.03
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(b)
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Principal Officer
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4.07
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(b)(i)
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Regular Record Date
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2.03
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(b)
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ARTICLE II
Designation and Terms of the Securities
SECTION 2.01.
Title
. There is hereby created pursuant to Section 301 of the Indenture a
series of Securities that shall have the title of 3.20% Senior Notes due 2021.
SECTION 2.02.
Aggregate Principal Amount; Execution and Authentication
. (a) The aggregate
principal amount of Notes which may be authenticated and delivered under this First Supplemental
Indenture is not limited. The aggregate principal amount of Notes initially authorized for
authentication and delivery pursuant to this First Supplemental Indenture (the
Initial
Securities
) is limited to $750,000,000 except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
304, 305, 306, 906 or 1107 of the Indenture or Article IV of this First Supplemental Indenture.
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(b) The Company may forthwith execute, and upon a Company Order, the Trustee shall
authenticate and deliver, the Initial Securities for original issue in accordance with the
provisions of Section 303 of the Original Indenture.
(c) In connection with any Registered Exchange Offer, the Company may execute, and upon a
Company Order, the Trustee shall authenticate and deliver, Exchange Securities for issuance solely
in exchange for Initial Securities or Additional Securities of a like aggregate principal amount.
(d) At any time and from time to time after the Issue Date, in accordance with Section 2.08,
the Company may execute, and upon a Company Order, the Trustee shall authenticate and deliver, any
Additional Securities for original issue in accordance with the provisions of Section 303 of the
Original Indenture in an aggregate principal amount determined at the time of issuance and
specified in such Company Order. Such Company Order shall specify the principal amount of the
Additional Securities to be authenticated, the date on which the original issue of such Additional
Securities is to be authenticated and the additional information set forth in Section 2.08(b).
(e) The Initial Securities, any Exchange Securities and any Additional Securities shall be
considered collectively as a single series for all purposes of the Indenture. Holders of the
Initial Securities, any Exchange Securities and any Additional Securities will vote and consent
together on all matters to which such Holders are entitled to vote or consent as one series, and
none of the Holders of the Initial Securities or any Exchange Securities or any Additional
Securities shall have the right to vote or consent as a separate series or class on any matter to
which such Holders are entitled to vote or consent.
SECTION 2.03.
Maturity; Interest Rate; and Denomination of Notes
. (a) The
principal of the Notes shall be payable on August 15, 2021.
(b) The Notes shall bear interest at the rate of 3.20% per annum from August 17, 2011 or the
most recent February 15 or August 15 to which interest has been paid or duly provided for on the
Notes. Each February 15 or August 15 in each year, commencing February 15, 2012, shall be an
Interest Payment Date
for the Notes. The February 1 or August 1 (whether or not a Business Day),
as the case may be, next preceding an Interest Payment Date shall be the
Regular Record Date
for
the interest payable on such Interest Payment Date. Interest shall be calculated on the basis of a
360-day year composed of twelve 30-day months.
(c) The Notes shall be issuable in minimum denominations of $2,000 and multiples of $1,000 in
excess thereof.
SECTION 2.04.
Place and Method of Payment
. The principal of (and premium, if any) and
interest on the Notes shall be payable (x) if the Notes are Global Securities, through the relevant
Depositary or (y) if the Notes are not Global Securities, at the office or agency of the Company
maintained for that purpose in New York, New York, against surrender of such Note in the case of
any payment due at the Maturity of the principal thereof or any payment of interest that becomes
payable on a day other than an Interest Payment Date, and in the case of clause (x) or clause (y),
in such coin or currency of the United States of America as at
8
the time of payment is legal tender for payment of public and private debts;
provided
,
however
, that if the Notes are not Global Securities, (i) payment of interest on an
Interest Payment Date will be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register; and all other payments will be made by check
against surrender of such Notes; (ii) all payments by check will be made in next-day funds (i.e.,
funds that become available on the day after the check is cashed); and (iii) notwithstanding
clauses (i) and (ii) above, with respect to any payment of any amount due on the Notes, if such
Note is in a denomination of at least $1,000,000 and the Holder thereof at the time of surrender
thereof or, in the case of any payment of interest on any Interest Payment Date, the Holder thereof
on the related Regular Record Date delivers a written request to the Paying Agent to make such
payment by wire transfer at least five Business Days before the date such payment becomes due,
together with appropriate wire transfer instructions specifying an account at a bank in New York,
New York, the Company shall make such payment by wire transfer of immediately available funds to
such account at such bank in New York City, any such wire instructions, once properly given by a
Holder as to such Notes, remaining in effect as to such Holder and such Notes unless and until new
instructions are given in the manner described above and
provided
further
, that
notwithstanding anything in the foregoing to the contrary, if the Notes are Global Securities,
payment shall be made pursuant to the Applicable Procedures of the relevant Depositary. In
accordance with Section 1002 of the Indenture, the
Place of Payment
with respect to the Notes
shall be New York, New York.
SECTION 2.05.
Optional Redemption
.
(a) The Notes shall be subject to redemption, as a whole at any time or in part from time to
time, at the option of the Company.
(b) If Notes are redeemed prior to May 15, 2021 (the date three months prior to the Stated
Maturity of the Notes), the Redemption Price will be equal to the greater of (i) 100% of the
principal amount of the Notes to be redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes to be redeemed from the Redemption Date
to the Stated Maturity of the Notes to be redeemed (exclusive of any interest accrued to the
Redemption Date), discounted to the date on which the Notes are to be redeemed on a semi-annual
basis assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 15
basis points, plus any interest accrued but not paid on the Notes to be redeemed to the date on
which the Notes are to be redeemed (subject to the right of Holders on the relevant Regular Record
Date to receive interest due on the relevant Interest Payment Date).
(c) If Notes are redeemed on or after May 15, 2021, the Redemption Price for the Notes will
equal 100% of the principal amount of the Notes to be redeemed, plus any interest accrued but not
paid on the Notes to be redeemed to the date on which the Notes are to be redeemed (subject to the
right of Holders on the relevant Regular Record Date to receive interest due on the relevant
Interest Payment Date).
(d) Unless the Company defaults in payment of the Redemption Price, on and after the
Redemption Date interest will cease to accrue on the Notes or portions thereof called for
redemption.
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(e) If less than all of the Notes are to be redeemed at any time, the Trustee will select
Notes for redemption on a pro rata basis. No Notes of $2,000 or less can be redeemed in part.
(f) Notices of redemption will be delivered at least 30 but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at its registered address, except that
notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in
connection with a Covenant Defeasance or Defeasance with respect to the Notes or a satisfaction and
discharge of the Indenture with respect to the Notes. Notice of any redemption may, at the
Companys discretion, be subject to one or more conditions precedent. A notice of redemption need
not set forth the exact Redemption Price but only the manner of calculation thereof.
SECTION 2.06.
No Sinking Fund or Holder Redemption Right
. The Notes shall not have the
benefit of or be subject to any sinking fund requirement and shall not be subject to redemption at
the option of the Holders.
SECTION 2.07.
Forms of Notes.
(a)
Forms Generally
. Notes issued in global form shall be substantially in the form
of
Exhibit A
attached hereto (including the Global Security Legend thereon and the Schedule
of Exchanges of Interests in the Global Security attached thereto). Notes issued in definitive
form shall be substantially in the form of
Exhibit A
attached hereto (but without the
Global Security Legend thereon and without the Schedule of Exchanges of Interests in the Global
Security attached thereto).
(b)
Initial Securities
. The Initial Securities shall initially be issued and
authenticated solely in the form of Global Securities (as more fully set forth below). The Initial
Securities will be offered and sold by the Company to the Initial Purchasers pursuant to the
Purchase Agreement. The Initial Securities will be resold by the Initial Purchasers under the
Purchase Agreement only to QIBs in reliance on Rule 144A, or to, among others, QIBs and Persons
other than U.S. Persons (as defined in Regulation S) in offshore transactions in reliance on
Regulation S, subject to the restrictions on transfer set forth herein.
(c)
Global Securities
. Each Global Security shall represent such of the outstanding
Notes as shall be specified therein, and each shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. In the event of any increase or
decrease in the aggregate principal amount of outstanding Notes represented by any Global Security,
the Trustee, in accordance with instructions given by the Holder thereof as required by Article IV,
shall endorse such Global Security to reflect such increase or decrease and the Security Registrar
shall also reflect on the Security Register the date and amount of any such increase or decrease.
(d)
Regulation S Global Securities
. Any Notes offered and sold in reliance on
Regulation S shall be issued initially in the form of a Regulation S Global Security, which shall
10
be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee,
and registered in the name of the Depositary or the nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Prior to the expiration of the
Restricted Period, any resale or transfer of beneficial interests in a Regulation S Global Security
to U.S. Persons shall not be permitted unless such resale or transfer is made pursuant to Rule 144A
or Regulation S.
(e)
144A Global Securities
. Any Notes offered and sold in reliance on Rule 144A shall
be issued initially in the form of a 144A Global Security, which shall be deposited on behalf of
the purchasers of the Notes represented thereby with the Trustee, and registered in the name of the
Depositary or the nominee of the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided.
(f)
Definitive Securities
. Notwithstanding any other provision of this Article II,
any issuance of Definitive Securities shall not occur, and owners of beneficial interests in Global
Securities shall not be entitled to receive Definitive Securities in exchange therefor, until a
Definitive Securities Issuance Date shall occur in the specific circumstances set forth in Section
4.01.
SECTION 2.08.
Additional Securities
.
(a) The Company shall be entitled at any time or from time to time to issue Additional
Securities that have identical terms as the Initial Notes except for the issue date, issue price
and the date from which interest shall accrue.
(b) With respect to any Additional Securities, the Company Order referred to in Section
2.02(d) shall specify:
(A) the issue price and the issue date of such Additional Securities, including
the date from which interest shall accrue and the first Interest Payment Date
therefor; and
(B) whether such Additional Securities shall bear the Private Placement Legend.
(c) Additional Securities issued before the Definitive Securities Issuance Date shall be
issued solely in the form of Global Securities; and any Additional Securities issued from and after
the Definitive Securities Issuance Date shall be issued solely in the form of Definitive
Securities.
SECTION 2.09.
Defeasance and Covenant Defeasance
. For the avoidance of doubt, the
provisions of Section 1302 and Section 1303 of the Indenture with respect to Defeasance of the
Securities of a series and Covenant Defeasance of the Securities of a series, respectively, shall
be applicable to the Notes.
SECTION 2.10.
Depositary
. The Company initially appoints The Depository Trust Company
(
DTC
) to act as Depositary with respect to the Global Securities.
11
SECTION 2.11.
Other Terms and Form of the Notes
. The Notes shall have and be subject
to such other terms as provided in the Original Indenture and this First Supplemental Indenture.
The Notes and the Trustees certificate of authentication shall be substantially in the form of
Exhibit A
hereto, which is hereby incorporated in and expressly made a part of this First
Supplemental Indenture.
SECTION 2.12.
Applicability
. The provisions of this Article II shall apply only to
the Notes.
ARTICLE III
Additional Covenants
SECTION 3.01.
Rule 144A Information
. At any time when the Company is not subject to
Section 13 or Section 15(d) of the Exchange Act, so long as any Notes remain outstanding, upon the
request of a holder of the Notes, the Company will promptly furnish or cause to be furnished the
information specified under Rule 144A(d)(4) of the Securities Act to such holder.
SECTION 3.02.
Restriction on Liens; Restriction on Sale and Lease-Back Transactions
.
(a) So long as any of the Notes remain outstanding, subject to Section 3.02(c) below, the
Company will not, and will not permit any Restricted Subsidiary to, issue, assume or guarantee any
debt for money borrowed (debt) if that debt is secured by a mortgage on any Principal Property,
or on any shares of stock or indebtedness of any Restricted Subsidiary (whether the Principal
Property, shares of stock or indebtedness is owned at or acquired after August 17, 2011), without
in any such case effectively providing that the Notes shall be secured equally and ratably with or
prior to such debt until such time as such debt is no longer so secured by such mortgage. This
restriction, however, shall not apply to: (i) mortgages on property of any corporation or other
Person existing at the time such corporation or other Person becomes a Restricted Subsidiary; (ii)
mortgages on property of a corporation or other Person existing at the time that corporation or
other Person is merged into or consolidated with the Company or a Restricted Subsidiary or at the
time of a sale, transfer, conveyance or the disposition of all or substantially all of the
properties or assets of that corporation or other Person to the Company or a Restricted Subsidiary;
(iii) mortgages on any property the Company or any Restricted Subsidiary acquires, constructs or
improves that secure debt issued, assumed or guaranteed (or issued, assumed or guaranteed pursuant
to a commitment entered into) prior to, at the time of or within 12 months after the acquisition or
completion of construction or improvement of the property (or, in the case of property constructed
or improved, if later, the commencement of commercial operation of the property) for the purpose of
financing all or any part of the purchase price of the property or the cost of the construction or
improvement (together with, in the case of construction or improvement, mortgages on property
previously owned by the Company or any Restricted Subsidiary to the extent constituting unimproved
real property on which the property being constructed or the improvement is located); (iv)
mortgages securing debt owing by the Company or any Restricted Subsidiary to the Company or another
Restricted Subsidiary; (v) mortgages on property of the Company or a Restricted Subsidiary in favor
of the United States of
12
America or any State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in favor of any other country,
or any political subdivision thereof, to secure any debt incurred for the purpose of financing all
or any part of the purchase price or the cost of construction or improvement of the property
subject to such mortgages, including mortgages incurred in connection with pollution control,
industrial revenue or similar financings; (vi) mortgages existing at the Issue Date; (vii)
mortgages on inventory to secure current liabilities of debt; and (viii) any extension, renewal or
replacement or successive extensions, renewals or replacements, in whole or in part, of any
mortgage referred to in the clauses immediately above if the amount of debt secured by the
extended, renewed or replacement mortgage does not exceed the amount of the debt refinanced (plus
accrued interest and premiums with respect thereto) plus transaction expenses related thereto and
such mortgage is limited to the property secured by the original mortgage plus improvements
thereon.
(b) So long as any of the Notes remain outstanding, subject to Section 3.02(c) below, the
Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction of any Principal Property unless (i) the Company or such Restricted
Subsidiary would be entitled to issue, assume or guarantee debt secured by a mortgage upon the
Principal Property involved in amount at least equal to the Attributable Debt for that transaction
without equally and ratably securing the Notes, (ii) an amount in cash equal to the Attributable
Debt for that transaction is applied prior to, at the time of or within 12 months after that
transaction to the retirement of Notes or other debt of the Company or a Restricted Subsidiary,
which by its terms matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after its creation and which, in the case of such debt of the Company, is not
subordinate in right of payment to the Notes or (iii) prior to, at the time of or within 12 months
after such transaction, the Company or a Restricted Subsidiary uses an amount equal to the
Attributable Debt for the purchase of any asset or any interest in an asset which would qualify,
after purchase, as Principal Property. This Section 3.02(b) does not apply to any Sale and
Leaseback Transaction (i) entered into in connection with an industrial revenue, pollution control
or similar financing or any Sale and Leaseback Transaction or (ii) in which the only parties
involved are the Company and any Subsidiary or Subsidiaries. When calculating the amount of
Attributable Debt, any Attributable Debt for these Sale and Leaseback Transactions will be
excluded.
(c) In addition to the exceptions set forth under Sections 3.02(a) and 3.02(b) above, the
Company and any Restricted Subsidiary may incur debt secured by mortgages and enter into additional
Sale and Leaseback Transactions otherwise prohibited by (and not permitted under the exceptions to)
Sections 3.02(a) or 3.02(b) as long as the total of such debt secured by mortgages plus the
Attributable Debt in respect of such Sale and Leaseback Transactions does not exceed 15% of the
Companys Consolidated Net Tangible Assets.
SECTION 3.03.
Applicability
. The covenants set forth in Sections 3.01 and 3.02 are
applicable only to the Securities of the series of the Notes and are solely for the benefit of the
Holders of the Notes.
13
ARTICLE IV
Transfer and Exchange
SECTION 4.01.
Transfer and Exchange of Global Securities; Limited Rights of Beneficial
Owners
. (a) The provisions of clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this First Supplemental Indenture shall be
registered in the name of the Depositary designated for such Global Security or a nominee thereof
and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Note for all purposes of the Indenture.
(2) Notwithstanding any other provision in the Original Indenture or this First Supplemental
Indenture, no Global Security may be exchanged in whole or in part for Notes registered, and no
transfer of a Global Security in whole or in part may be registered, in the name of any Person
other than the Depositary for such Global Security or a nominee thereof unless
(A) such Depositary has notified the Company that it (i) is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, or
(B) the Company has executed and delivered to the Trustee a Company Order
stating that such Global Security shall be exchanged in whole for Definitive
Securities.
If the Company receives a notice of the kind specified in clause (A) above, the Company may, in its
sole discretion, designate a successor Depositary for such Global Security within 90 days after
receiving such notice. If the Company designates a successor Depositary as aforesaid, such Global
Security shall promptly be exchanged in whole for one or more other Global Securities registered in
the name of the successor Depositary, whereupon such designated successor shall be the Depositary
for such successor Global Security or Global Securities and the provisions of clauses (1), (2), (3)
and (4) of this provision shall continue to apply thereto.
(3) Subject in all cases to clause (2) above, any exchange of a Global Security for other
Notes may be made in whole or in part, and all Notes issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the Depositary for such Global Security
shall direct.
(4) Every Note authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Security or any portion thereof, whether pursuant to Section 304, 306,
906 or 1107 of the Original Indenture or this Article IV
or
otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security, unless upon a
Definitive Securities Issuance Date such Note is issued as a Definitive Security.
(b) Upon the date 90 days after the Company has received notice from the Depositary pursuant
to Section 4.01(a)(2)(A) and has not appointed a successor Depositary or
14
has delivered a Company Order to the Trustee pursuant to Section 401(a)(2)(B) or, in either
case, such earlier date as the Company elects by written notice to the Trustee (the
Definitive
Securities Issuance Date
), (x) the Company shall promptly make available to the Trustee a
reasonable supply of Definitive Securities in definitive, fully registered form without interest
coupons; (y) the Company shall execute, and upon a Company Order the Trustee shall authenticate and
deliver, Definitive Securities in a like aggregate principal amount as the outstanding Global
Securities registered, Definitive Securities in such names and authorized denominations as the
Depositary shall instruct the Security Registrar in accordance with the Applicable Procedures; and
(2) the Security Registrar shall cause the aggregate principal amount of such outstanding Global
Securities to be reduced to zero pursuant to Section 4.08. The Trustee shall deliver such
Definitive Securities to the Persons in whose names such Definitive Securities are so registered.
Any Definitive Security issued in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 4.01 shall bear the Private Placement Legend and shall be subject
to all restrictions on transfer contained therein. Notwithstanding the foregoing, a beneficial
interest in the Regulation S Global Security may not be exchanged for a Definitive Security prior
to the expiration of the Restricted Period. Neither the Company nor the Security Registrar will be
liable for any delay by the Depositary in identifying the owners of beneficial interests in a
Global Security, and each of the Company and the Security Registrar may conclusively rely on, and
will be protected in relying on, instructions from the Depositary for all purposes of the
Indenture.
(c) The Company, the Trustee and every Person who takes or holds any beneficial interest in a
Global Security agree that:
(1) the Company and the Trustee may deal with the Depositary as sole owner of the Global
Security and as the authorized representative of such Person;
(2) such Persons rights in the Global Security shall be exercised only through the Depositary
and shall be limited to those established by law and agreement between such Person and the
Depositary and/or Participants and Indirect Participants of the Depositary;
(3) the Depositary and its participants make book-entry transfers of beneficial ownership
among, and receive and transmit distributions of principal and interest on the Global Securities
to, such Persons in accordance with the Applicable Procedures of the Depositary;
(4) none of the Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests; and
(5) notwithstanding the foregoing, (x) subject to the provisions of Section 4.01(c)(2), the
Holder of a Global Security shall be entitled to grant proxies and otherwise authorize any Person,
including Participants and Indirect Participants and Persons that may hold interests through
Participants and Indirect Participants, to take any action which a Holder is entitled to take under
the Indenture or the Notes; and (y) nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any
15
written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Participants, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global
Security.
SECTION 4.02.
Transfer and Exchange of Beneficial Interests in the Global Securities
.
The transfer and exchange of beneficial interests in the Global Securities shall be effected
through the Depositary, in accordance with the provisions of this First Supplemental Indenture and
the Applicable Procedures. Beneficial interests in the Restricted Global Securities will be
subject to restrictions on transfer comparable to those set forth herein to the extent required by
the Securities Act. Transfers of beneficial interests in the Global Securities also shall require
compliance with either subparagraph (a) or (b) below, as applicable, as well as one or more of the
other following provisions of this Article IV, as applicable:
(a)
Transfer of Beneficial Interests in the Same Global Security
. Beneficial interests in any
Restricted Global Security may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in accordance with the transfer
restrictions set forth in the Private Placement Legend;
provided
,
however
, that prior to the
expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global
Security may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser), except pursuant to Rule 144A. Beneficial interests in any Unrestricted
Global Security may be transferred to Persons who take delivery thereof in the form of a beneficial
interest in such Unrestricted Global Security. No written orders or instructions shall be required
to be delivered to the Security Registrar to effect the transfers described in the preceding
sentence of this Section 4.02(a).
(b)
All Other Transfers and Exchanges of Beneficial Interests in Global Securities
. In
connection with all transfers and exchanges of beneficial interests that are not subject to Section
4.02(a) above, the transferor of such beneficial interest must deliver to the Security Registrar
either:
(A) (i) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global Security
in an amount equal to the beneficial interest to be transferred or exchanged; and
(ii) instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase; or
(B) upon the Definitive Securities Issuance Date; both
(i) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Security in an amount equal to
the beneficial interest to be transferred or exchanged; and
16
(ii) instructions given by the Depositary to the Security Registrar
containing information regarding the Person in whose name such Definitive
Security shall be registered to effect the transfer or exchange referred to
in Section 4.02(b)(B)(i) above.
Upon consummation of a Registered Exchange Offer by the Company in accordance with Section 4.06,
the requirements of this Section 4.02(b) shall be deemed to have been satisfied upon receipt by the
Security Registrar of the instructions contained in the Letter of Transmittal delivered by the
Holder of such beneficial interests in the Restricted Global Securities (or transmitted to the
Security Registrar via the Depositarys book-entry system). Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Securities contained in the
Indenture, the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the
principal amount of each relevant Global Security pursuant to Section 4.08.
(c)
Transfer of Beneficial Interests to Another Restricted Global Security
. A beneficial
interest in any Restricted Global Security may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Security if the transfer
complies with the requirements of Section 4.02(b) above and the Security Registrar receives the
following:
(i) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Security, then the transferor must deliver a certificate in the
form of
Exhibit B
hereto, including the certifications in item (1) thereof;
and
(ii) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Security, then the transferor must deliver a certificate
in the form of
Exhibit B
hereto, including the certifications in item (2)
thereof.
(d)
Transfer and Exchange of Beneficial Interests in a Restricted Global Security for
Beneficial Interests in the Unrestricted Global Security.
A beneficial interest in any Restricted
Global Security may be exchanged by any holder thereof for a beneficial interest in an Unrestricted
Global Security or transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security if the exchange or transfer complies with the
requirements of Section 4.02(b) above and:
(i) such exchange or transfer is effected pursuant to a Registered Exchange Offer in
accordance with the applicable Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal (or via the Depositarys book-entry
system) that, among other things, it is not (i) a Person participating in the distribution of the
Exchange Securities or (ii) an affiliate (as defined in Rule 144) of the Company and that any
Exchange Securities to be acquired by such holder will be acquired in the ordinary course of its
business;
(ii) such transfer is effected pursuant to a Shelf Registration Statement in accordance with
the applicable Registration Rights Agreement;
17
(iii) such transfer is effected by an Exchanging Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the applicable Registration Rights Agreement; or
(iv) the Security Registrar receives the following:
(A) if the holder of such beneficial interest in a Restricted Global Security proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted Global Security, a
certificate from such holder in the form of
Exhibit C
hereto, including the certifications
in item (1) thereof; or
(B) if the holder of such beneficial interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security, a certificate from such holder in the form
of
Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the Security Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to
the Security Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and state blue sky laws and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain compliance with the
Securities Act. If any such transfer is effected pursuant to subparagraph (ii) or (iv) above at a
time when an Unrestricted Global Security has not yet been issued, the Company shall issue and,
upon receipt of a Company Order in accordance with Section 303 of the Original Indenture, the
Trustee shall authenticate one or more Unrestricted Global Securities in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (ii) or (iv) above.
(e)
Exchange or Transfer Prohibited.
Beneficial interests in an Unrestricted Global Security
cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Security.
SECTION 4.03.
No Transfer or Exchange of Beneficial Interests for Definitive
Securities
. Inasmuch as Definitive Securities will be issued only from and after a Definitive
Securities Issuance Date in the limited circumstances specified in clause (2) of Section 4.01(a)
whereby Notes are no longer to be represented by Global Securities, other than as and to the extent
specified in Section 4.01, any holder of a beneficial interest in a Global Security will not be
entitled to exchange such beneficial interest for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a Definitive Security.
SECTION 4.04.
No Transfer and Exchange of Definitive Securities for Beneficial
Interests.
Inasmuch as Definitive Securities will be issued only from and after a Definitive
Securities Issuance Date in the limited circumstances specified in clause (2) of Section 4.01(a)
whereby Notes are no longer to be represented by Global Securities, the Holder of a Definitive
Security will not be entitled to exchange such Definitive Security for a beneficial interest in a
Global Security.
18
SECTION 4.05.
Transfer and Exchange of Definitive Securities for Definitive
Securities
. From and after any Definitive Securities Issuance Date, upon request by a Holder
of Definitive Securities and such Holders compliance with the provisions of this Section 4.05, the
Security Registrar shall register the transfer of, in the name of the designated transferee or
transferees, one or more new Definitive Securities, or exchange Definitive Securities for other
Definitive Securities, in each case, of any authorized denominations and of like aggregate
principal amount. Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Security Registrar the Definitive Securities to be transferred or
exchanged duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or such Holders
attorney duly authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required pursuant to the
following provisions of this Section 4.05.
(a)
Restricted Definitive Securities to Restricted Definitive Securities
. Any Restricted
Definitive Security may be transferred to and registered in the name of Persons who take delivery
thereof in the form of a Restricted Definitive Security if the Security Registrar receives the
following:
(i) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a
certificate in the form of
Exhibit B
hereto, including the certifications in item (1)
thereof;
(ii) if the transfer will be made pursuant to Rule 904, then the transferor must deliver a
certificate in the form of
Exhibit B
hereto, including the certifications in item (2)
thereof; and
(iii) if the transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a certificate in the form of
Exhibit B
hereto, including the certifications required by item (3) thereof.
(b)
Restricted Definitive Securities to Unrestricted Definitive Securities
. Any Restricted
Definitive Security may be exchanged by the Holder thereof for an Unrestricted Definitive Security
or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Security if:
(i) such exchange or transfer is effected pursuant to a Registered Exchange Offer in
accordance with the applicable Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal (or via the Depositarys book-entry system) that, among other things, it is not (a) a
Person participating in the distribution of the Exchange Securities or (b) a Person who is an
affiliate (as defined in Rule 144) of the Company and that any Exchange Securities to be acquired
by such holder will be acquired in the ordinary course of its business;
(ii) any such transfer is effected pursuant to a Shelf Registration Statement in accordance
with the applicable Registration Rights Agreement;
19
(iii) any such transfer is effected by an Exchanging Dealer pursuant to an Exchange Offer
Registration Statement in accordance with the applicable Registration Rights Agreement; or
(iv) the Security Registrar receives the following:
(A) if the Holder of such Restricted Definitive Securities proposes to exchange such
Securities for an Unrestricted Definitive Security, a certificate from such Holder in the form of
Exhibit C
hereto, including the certifications in item (2) thereof; or
(B) if the Holder of such Restricted Definitive Security proposes to transfer such Securities
to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Security, a
certificate from such Holder in the form of
Exhibit B
hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (iv), if the Security Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Security Registrar to the effect that
such exchange or transfer is in compliance with the Securities Act and state blue sky laws and
that the restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(c)
Unrestricted Definitive Securities to Unrestricted Definitive Securities
. A Holder of
Unrestricted Definitive Securities may transfer such Securities to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Security. Upon receipt of a request to register
such a transfer, the Security Registrar shall register the Unrestricted Definitive Security
pursuant to the instructions from the Holder thereof.
SECTION 4.06.
Registered Exchange Offer
. Upon the occurrence of a Registered Exchange
Offer in accordance with the applicable Registration Rights Agreement, the Company shall issue and,
upon receipt of a Company Order in accordance with Section 2.02, the Trustee shall authenticate:
(a) one or more Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Securities tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal (or via the
Depositarys book-entry system), among other things, that (i) any Exchange Securities to be
acquired by such Persons will be acquired in the ordinary course of business, (ii) they are not
participating in a distribution of the Exchange Securities and (iii) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Registered Exchange Offer;
and
(b) Unrestricted Definitive Securities in an aggregate principal amount equal to the
principal amount of any Restricted Definitive Securities tendered for acceptance by Persons that
certify as specified in clause (a), and accepted for exchange in the Registered Exchange Offer.
Concurrently with the issuance of such Notes, the Security Registrar shall cause the aggregate
principal amount of the applicable Restricted Global Securities beneficial interests in
20
which were so accepted to be reduced accordingly, and the Company shall execute and the
Trustee shall authenticate, and deliver to the Persons designated by the Holders of any Restricted
Definitive Securities so accepted, against surrender of such exchanged Restricted Definitive
Securities so accepted, Unrestricted Definitive Securities in the appropriate principal amount.
Upon the consummation of a Registered Exchange Offer with respect to any Restricted
Securities, (x) all requirements in this Article IV pertaining to Restricted Securities will apply
with respect to Holders of such Restricted Securities that do not exchange their Restricted
Securities for Exchange Securities; and (y) Exchange Securities constituting a Global Security (if
the exchanged Note was a beneficial interest in a Restricted Global Security) or a Definitive
Security (if the exchanged Note was a Restricted Definitive Security) will be available to holders
of such exchanged beneficial interests in the Restricted Global Security or to Holders of the
exchanged Restricted Definitive Securities in such Registered Exchange Offer.
SECTION 4.07.
Legends
. The following legends shall appear on the face of all Global
Securities and Definitive Securities issued under this First Supplemental Indenture unless
specifically stated otherwise in the applicable provisions of this First Supplemental Indenture.
(a)
Private Placement Legend
.
(i) Except as provided in Section 4.07(a)(ii) or 4.07(b) below or as otherwise agreed between
the Company and the Holder, each Global Security and each Definitive Security (and all Securities
issued in exchange therefor or substitution thereof) shall bear a legend in substantially the
following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT (RULE 144A)), OR (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, PURSUANT TO RULE 904 OF REGULATION S, AND (2) AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE
(AS DEFINED IN THE INDENTURE), ONLY (A) TO BAKER HUGHES INCORPORATED OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT
21
WHICH HAS BEEN DECLARED OR BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT
TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, INCLUDING ANY STATE OF THE UNITED STATES, SUBJECT TO THE COMPANYS AND
THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL SATISFACTORY TO EACH OF THEM AND/OR A CERTIFICATE
OF TRANSFER OR EXCHANGE IN THE FORM PRESCRIBED IN THE INDENTURE. THIS LEGEND WILL
BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE
DEEMED TO HAVE REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) IT IS NOT AND WILL
NOT BE FOR SO LONG AS IT HOLDS ANY SECURITY (OR INTEREST IN A SECURITY) AN EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE FIDUCIARY RESPONSIBILITY REQUIREMENT OF
TITLE I OF U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(ERISA), A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE CODE), OR AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE PLAN ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLAN OR PLANS INVESTMENT IN
THE ENTITY, OR A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN WHICH IS SUBJECT TO
ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE
SUBSTANTIALLY SIMILAR TO SUCH PROVISIONS OF ERISA OR THE CODE (SIMILAR LAWS), OR
(II) THE PURCHASE, HOLDING AND DISPOSITION OF THIS SECURITY WILL NOT CONSTITUTE A
NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR, IN THE CASE OF A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN, A SIMILAR
VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
22
(ii) Notwithstanding the foregoing, any Global Security or Definitive Security
issued pursuant to Sections 4.02(d), 4.05(b), 4.05(c) or 4.06 (and all Notes issued
in exchange therefor or substitution thereof) shall not bear the Private Placement
Legend.
(b) (i) The Company, acting in its discretion, may remove (and, at the request of any Holder
in accordance with Sections 4.07(b)(v) or (vi), as applicable, will remove) the Private Placement
Legend from any Restricted Security at any time on or after the Resale Restriction Termination Date
applicable to such Restricted Security. Without limiting the generality of the preceding sentence,
the Company may effect such removal by issuing and delivering, in exchange for any Restricted
Security, an Unrestricted Security without the Private Placement Legend, registered to the same
Holder and in an equal principal amount and constituting a Global Security (if the exchanged
Security was a Restricted Global Security) or a Definitive Security (if the exchanged Security was
a Restricted Definitive Security) or, in lieu of issuance and delivery of a new Unrestricted Global
Security for a Restricted Global Security, causing the Trustee to endorse an increase in aggregate
principal amount of any then outstanding Unrestricted Global Security equal to the aggregate
principal amount of such Restricted Global Security; and upon receipt by the Trustee of a Company
Order stating that the Resale Restriction Termination Date applicable to such Restricted Security
has occurred and requesting the authentication and delivery of an Unrestricted Security (or
endorsement of an increase in aggregate principal amount of any then outstanding Unrestricted
Global Security as aforesaid) in exchange therefor (which Company Order shall not be required to be
accompanied by any Opinion of Counsel or any other document) given at least three Business Days in
advance of the proposed date of exchange specified therein (which shall be no earlier than such
Resale Restriction Termination Date),
(A) if such exchanged Security is a Restricted Global Security, the Trustee shall authenticate
and deliver such Unrestricted Security to the Depositary or pursuant to such Depositarys
instructions or hold such Unrestricted Global Security as Securities Custodian for the Depositary
(or endorse an increase in aggregate principal amount of any then outstanding Unrestricted Global
Security as aforesaid) and shall request the Depositary to, or, if the Trustee is Securities
Custodian of such Restricted Security, shall itself, surrender such Restricted Security in exchange
for such Unrestricted Security without the Private Placement Legend and thereupon cancel such
Restricted Security so surrendered; or
(B) if such exchanged Security is a Restricted Definitive Security, the Trustee shall
authenticate and deliver to the Person exchanging such Restricted Definitive Security such
Unrestricted Definitive Security against surrender of such Restricted Definitive Security,
all as directed in such Company Order. For purposes of determining whether the Resale Restriction
Termination Date has occurred with respect to any Restricted Security or delivering any Company
Order pursuant to this Section 4.07(b) with respect to such Restricted Security, (i) only those
Notes which a Principal Officer of the Company actually knows (after reasonable inquiry) to be or
to have been owned by an Affiliate of the Company shall be deemed to be or to have been,
respectively, owned by an Affiliate of the Company; and (ii)
Principal Officer
means the
principal executive officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company.
23
(ii) For purposes of this Section 4.07(b), all provisions relating to the removal of the
Private Placement Legend above shall relate, if the Resale Restriction Termination Date has
occurred only with respect to a portion of the Notes evidenced by a Restricted Global Security, to
such portion of the Notes so evidenced as to which the Resale Restriction Termination Date has
occurred.
(iii) Each owner of a beneficial interest in any Note evidenced by any Restricted Global
Security, by its acceptance thereof, (A) authorizes and consents to, (B) appoints the Company as
its agent for the sole purpose of delivering such electronic messages, executing and delivering
such instruments and taking such other actions, on such owners behalf, as the Depositary or the
Trustee may require to effect, and (C) upon the request of the Company, agrees to deliver such
electronic messages, execute and deliver such instruments and take such other actions as the
Depositary or the Trustee may require, or as shall otherwise be necessary to effect, the removal of
the Private Placement Legend (including by means of the exchange of all or the portion of such
Restricted Global Security evidencing such Note for a certificate evidencing such Note that does
not bear the Private Placement Legend) at any time after the Resale Restriction Termination Date
with respect to such Note.
(iv) After a transfer of any Restricted Security pursuant to and during the period of the
effectiveness of a Shelf Registration Statement with respect to such Restricted Security, (x) all
requirements pertaining to the Private Placement Legend will cease to apply to such Restricted
Security; and (y) Unrestricted Securities constituting an Unrestricted Global Security (if the
transferred Note was a Restricted Global Security) or an Unrestricted Definitive Security (if the
transferred Note was a Definitive Security), in each case without the Private Placement Legend,
will be available to the transferee of the holder of beneficial interests in the Restricted Global
Security or to the Holder of the transferred Restricted Definitive Security upon directions to
transfer such Holders beneficial interest in the Restricted Global Security or surrender of such
transferring Holders Restricted Definitive Security, as applicable.
(v) On and after the Resale Restriction Termination Date with respect to a Restricted Global
Security, promptly upon request to the Company by the Holder of such Restricted Global Security or
owner of beneficial interests therein, in exchange for such Restricted Global Security, either (x)
the Company shall execute, and the Trustee shall authenticate and deliver, one or more Unrestricted
Global Securities in an aggregate principal amount equal to the aggregate principal amount of such
Restricted Global Security or (y) the Trustee shall endorse an increase in aggregate principal
amount of any then outstanding Unrestricted Global Security equal to the aggregate principal amount
of such Restricted Global Security, and thereupon the Trustee shall cancel such Restricted Global
Security.
(vi) On and after the Resale Restriction Termination Date with respect to a Restricted
Definitive Security, promptly upon request to the Company by the Holder of such Restricted
Definitive Security and upon surrender to the Trustee of such Restricted Definitive Security, in
exchange for such Restricted Definitive Security, the Company shall execute, and the Trustee shall
authenticate and deliver, an Unrestricted Definitive Security in the same aggregate principal
24
amount as such Restricted Definitive Security, and thereupon the Trustee shall cancel such
Restricted Definitive Security.
(c)
Global Security Legend
. Each Global Security shall bear a legend in substantially the
following form:
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE SECURITY REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO ARTICLE IV OF THE FIRST SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL
SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 4.01 OF THE
FIRST SUPPLEMENTAL INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 4.08 OF THE FIRST SUPPLEMENTAL
INDENTURE AND SECTION 309 OF THE ORIGINAL INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC) TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
SECTION 4.08.
Cancellation and/or Adjustment of Global Securities
. At such time as
all beneficial interests in a particular Global Security have been exchanged for Definitive
Securities or a particular Global Security has been redeemed or canceled in whole and not in
25
part, each such Global Security shall be returned to or retained and canceled by the Trustee
in accordance with Section 309 of the Original Indenture. At any time prior to such cancellation,
if any beneficial interest in a Global Security is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another Global Security or for
Definitive Securities:
(x) the Security Registrar shall reflect on the Security Register for the Notes the date and a
corresponding decrease in the principal amount of such Global Security;
(y) the principal amount of Notes represented by such Global Security shall be reduced
accordingly and an endorsement shall be made on such Global Security by the Trustee to reflect such
reduction; and
(z) if the beneficial interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Security, (1) the Security
Registrar shall reflect on the Security Register for the Notes the date and a corresponding
increase in the principal amount of such other Global Security and (2) such other Global Security
shall be increased accordingly and an endorsement shall be made on such Global Security by the
Trustee to reflect such increase.
SECTION 4.09.
General Provisions Relating to Transfers and Exchanges
.
(a) To permit registrations of transfer and exchanges, the Company shall execute and the
Trustee shall authenticate Global Securities and Definitive Securities at the Security Registrars
request in accordance with provisions providing for such registrations of transfer and exchange in
this Article IV and Sections 304, 306, 906 and 1107 of the Original Indenture.
(b) No service charge shall be made for any registration of transfer or exchange of Notes,
but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 304, 306, 906 or 1107 of the Original Indenture or Article
IV of this First Supplemental Indenture not involving any transfer.
(c) All Notes issued upon any registration of transfer or exchange of Notes shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
the Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(d) If the Notes are to be redeemed in whole or in part, the Company shall not be required
(A) to issue, register the transfer of or exchange any Notes during a period beginning at the
opening of business 15 days before the day of selection of any such Notes for redemption in part
under Section 1103 of the Original Indenture and ending at the close of business on the day of such
selection, or (B) to register the transfer of or exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in part.
(e) Prior to due presentment of a Note for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
26
such Note is registered as the owner of such Note for the purpose of receiving payment of
principal of and any premium and (subject to Section 307 of the Original Indenture) any interest on
such Note and for all other purposes whatsoever, whether or not such Note 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.
(f) All certifications, certificates and Opinions of Counsel required to be submitted to the
Security Registrar pursuant to this Article IV to effect a transfer or exchange may be submitted by
facsimile.
(g) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this First Supplemental Indenture or
under applicable law with respect to any transfer of any interest in any Global Security or
Definitive Security other than to require delivery of such certificates and other documentation or
evidence as is expressly required by, and to do so if and when expressly required by the terms of,
this First Supplemental Indenture, and to examine the same to determine substantial compliance as
to conformity with the express requirements hereof.
(h) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or
not taken by the Depositary.
SECTION 4.10.
Applicability
. The provisions of this Article IV shall apply in lieu of
the second through eighth paragraphs of Section 305 of the Original Indenture and shall apply only
to the Notes.
ARTICLE V
Miscellaneous
SECTION 5.01.
Ratification of Original Indenture; First Supplemental Indenture Part of Original
Indenture
. Except as expressly amended hereby, the Original Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full
force and effect. This First Supplemental Indenture shall form a part of the Original Indenture
for all purposes, and every Holder of Notes shall be bound hereby.
SECTION 5.02.
Concerning the Trustee
. The recitals contained herein and in the Notes,
except with respect to the Trustees certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture or of the Notes. At all times the Trustee shall comply with all applicable
requirements of the Trust Indenture Act.
SECTION 5.03.
Counterparts
. This First Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
SECTION 5.04.
Governing Law
. THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE
27
PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
SECTION 5.05.
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 5.06.
Benefits under First Supplemental Indenture, etc
. Nothing in this First
Supplemental Indenture or the Notes, express or implied, shall give to any Person, other than the
parties hereto and thereto and their successors hereunder and thereunder and the Holders of the
Notes, any benefit of any legal or equitable right, remedy or claim under the Original Indenture,
this First Supplemental Indenture or the Notes.
SECTION 5.07.
Successors
. All agreements of the Company in this First Supplemental
Indenture and the Notes shall bind its successor. All agreements of the Trustee in this First
Supplemental Indenture shall bind its successor.
SECTION 5.08.
Scope of Supplemental Indenture
. The changes, modifications and
supplements to the Original Indenture effected by this First Supplemental Indenture shall be
applicable only with respect to, and shall only govern the terms of, and shall be deemed expressly
included in this First Supplemental Indenture solely for the benefit of, the Notes which may be
issued from time to time, and shall not apply to any other Securities that may be issued under the
Original Indenture unless a supplemental indenture with respect to such other Securities
specifically incorporates such changes, modifications and supplements.
[Remainder of page intentionally left blank]
28
IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be duly
executed by their respective officers thereunto duly authorized as of the date first above written.
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BAKER HUGHES INCORPORATED
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By:
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/s/ Peter A. Ragauss
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Name:
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Peter A. Ragauss
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Title:
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Senior Vice President and
Chief Financial Officer
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE
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By:
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/s/ Matt Thorne
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Name:
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Matt Thorne
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Title:
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Senior Associate
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[Signature page to First Supplemental Indenture]
EXHIBIT A
FACE OF SECURITY
GLOBAL SECURITY LEGEND
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE SECURITY REGISTRAR MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO ARTICLE IV OF THE FIRST SUPPLEMENTAL
INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
4.01 OF THE FIRST SUPPLEMENTAL INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 4.08 OF THE FIRST SUPPLEMENTAL INDENTURE AND SECTION
309 OF THE ORIGINAL INDENTURE.*
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (DTC) TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.*
[PRIVATE PLACEMENT LEGEND]**
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
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*
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This paragraph should be included only if the
Security is a Global Security.
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**
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This paragraph should be included only if the
Security is a Restricted Security.
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Exhibit A-1
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (RULE 144A)),
OR (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, AND (2)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE (AS DEFINED IN THE INDENTURE), ONLY (A) TO BAKER HUGHES INCORPORATED OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED OR BECOME EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND THE
SECURITIES LAWS OF ANY OTHER JURISDICTION, INCLUDING ANY STATE OF THE UNITED STATES, SUBJECT TO THE
COMPANYS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL SATISFACTORY TO EACH OF THEM AND/OR A CERTIFICATE OF TRANSFER OR EXCHANGE
IN THE FORM PRESCRIBED IN THE INDENTURE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.**
BY ITS ACQUISITION AND HOLDING OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE
REPRESENTED, WARRANTED AND AGREED THAT EITHER (I) IT IS NOT AND WILL NOT BE FOR SO LONG AS IT HOLDS
ANY SECURITY (OR INTEREST IN A SECURITY) AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
FIDUCIARY RESPONSIBILITY REQUIREMENT OF TITLE I OF U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (ERISA), A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE CODE), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN
ASSETS BY REASON OF SUCH EMPLOYEE BENEFIT PLAN OR PLANS INVESTMENT IN THE ENTITY, OR A
GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN WHICH IS SUBJECT TO ANY FEDERAL, STATE, LOCAL,
NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SUBSTANTIALLY SIMILAR TO SUCH PROVISIONS OF ERISA OR
THE
Exhibit A-2
CODE (SIMILAR LAWS), OR (II) THE PURCHASE, HOLDING AND DISPOSITION OF THIS SECURITY WILL NOT
CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR, IN THE CASE OF A GOVERNMENTAL, NON-U.S., CHURCH OR OTHER PLAN, A SIMILAR VIOLATION UNDER
ANY APPLICABLE SIMILAR LAWS.**
Exhibit A-3
BAKER HUGHES INCORPORATED
3.20% Senior Notes due 2021
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No.
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$[
]
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CUSIP No.
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ISIN No.
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BAKER HUGHES INCORPORATED, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the
Company
, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ___________________ Dollars [or such greater or lesser
amount as is indicated on the Schedule of Exchanges of Interests in the Global Security attached to
this Security]* on August 15, 2021, and to pay interest thereon from August 17, 2011 or
from the most recent Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on February 15 and August 15 in each year, commencing February 15, 2012, and at the
Maturity thereof, at the rate of 3.20% per annum, until the principal hereof is paid or made
available for payment. 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 February 1 or August 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest so
payable, but not 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 in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Security may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made (x) if this Security is a Global Security, through the Depositary or (y) if this Security
is not a Global Security, at the office or agency of the Company maintained for that purpose in New
York, New York, against surrender of this Security in the case of any payment due at the Maturity
of the principal thereof or any payment of interest that becomes payable on a day other than an
Interest Payment Date, and in the case of clause (x) or clause (y), in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts;
provided
,
however
, that if this Security is not a Global Security, (i) payment of
interest on an Interest Payment Date will be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register; and all other payments will
be made by check against surrender of this Security; (ii) all payments by check will be made in
next-day funds (
i.e.
, funds that become available on the day after the check is cashed); and (iii)
notwithstanding clauses (i) and (ii) above, with respect to any payment of any amount due on this
Security, if this Security is in a denomination of at least $1,000,000 and the Holder hereof at the
time of surrender hereof or, in the case of any payment of interest on any
Exhibit A-4
Interest Payment Date, the Holder thereof on the related Regular Record Date delivers a
written request to the Paying Agent to make such payment by wire transfer at least five Business
Days before the date such payment becomes due, together with appropriate wire transfer instructions
specifying an account at a bank in New York, New York, the Company shall make such payment by wire
transfer of immediately available funds to such account at such bank in New York City, any such
wire instructions, once properly given by a Holder as to this Security, remaining in effect as to
such Holder and this Security unless and until new instructions are given in the manner described
above and
provided further
, that notwithstanding anything in the foregoing to the contrary, if this
Security is a Global Security, payment shall be made pursuant to the Applicable Procedures of the
Depositary as permitted in said Indenture.
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 or on behalf of 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.
Exhibit A-5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
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[SEAL]
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BAKER HUGHES INCORPORATED
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By:
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Name:
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Title:
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Attest:
Exhibit A-6
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated herein and referred to in the
within-mentioned Indenture.
Dated:
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
AS TRUSTEE
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By:
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Authorized Signatory
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Exhibit A-7
This Security is one of a duly authorized issue of senior securities of the Company (herein
called the
Securities
), issued and to be issued in one or more series under an Indenture, dated
as of October 28, 2008, as supplemented by the First Supplemental Indenture (herein so called)
thereto, dated as of August 17, 2011 (herein called the
Indenture
, which term shall have the
meaning assigned to it in such First Supplemental Indenture), between the Company and The Bank of
New York Mellon Trust Company, N.A., as Trustee (herein called the
Trustee
, which term includes
any successor trustee under the Indenture), and reference is hereby made to the Indenture 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, the aggregate principal amount of which is not limited. The aggregate principal
amount of Securities of this series authorized for issuance pursuant to the Indenture is limited to
the $750,000,000 in aggregate principal amount of Securities of this series initially authorized
for issuance on the Issue Date plus such additional amounts of Securities of this series as may be
authorized for issuance from time to time thereafter in accordance with the provisions of the
Indenture (except for Securities of this series authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of this series pursuant to the
Indenture).
The Securities of this series are subject to redemption upon prior notice, as provided below,
at any time, as a whole or in part, at the election of the Company. If the Securities of this
series are redeemed prior to May 15, 2021, the Redemption Price will be equal to the greater of (i)
100% of the principal amount of the Securities of this series to be redeemed or (ii) the sum of the
present values of the remaining scheduled payments of principal and interest on the Securities of
this series to be redeemed from the Redemption Date to the Stated Maturity of the Securities of
this series to be redeemed (exclusive of any interest accrued to the Redemption Date), discounted
to the date on which the Securities of this series are to be redeemed on a semi-annual basis
assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 15 basis
points, plus any interest accrued but not paid on the Securities of this series to be redeemed to
the date on which the Securities of this series are to be redeemed (subject to the right of Holders
on the relevant Regular Record Date to receive interest due on the relevant Interest Payment Date).
If the Securities of this series are redeemed on or after May 15, 2021, the Redemption Price will
be equal to 100% of the principal amount of the Securities of this series to be redeemed, plus any
interest accrued but not paid on the Securities of this series to be redeemed to the date on which
the Securities of this series are to be redeemed (subject to the right of Holders on the relevant
Regular Record Date to receive interest due on the relevant Interest Payment Date). Unless the
Company defaults in payment of the Redemption Price, on and after the Redemption Date interest will
cease to accrue on the Securities of this series or portions thereof called for redemption. If
less than all of the Securities of this series are to be redeemed at any time, the Trustee will
select Securities of this series for redemption on a pro rata basis. No Securities of this series
of $2,000 or less can be redeemed in part. Notices of redemption will be delivered at least 30 but
not more than 60 days before the Redemption Date to each Holder of Securities of this series to be
redeemed at its registered address, except that notices may be mailed more than 60 days prior to a
Redemption Date if the notice is
Exhibit A-8
issued in connection with a Covenant Defeasance or Defeasance with respect to the Securities
of this series or a satisfaction and discharge of the Indenture with respect to Securities of this
series. Notice of any redemption, may, at the Companys discretion, be subject to one or more
conditions precedent. A notice of redemption need not set forth the exact Redemption Price but only
the manner of calculation thereof.
Treasury Rate means, with respect to any Redemption Date for the Securities of this series,
(i) the yield, under the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated H.15(519) or any
successor publication which is published weekly by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption Treasury Constant Maturities, for the maturity
corresponding to the Comparable Treasury Issue with respect to Securities of this series (if no
maturity is within three months before or after the Stated Maturity for the Securities of this
series, yields for the two published maturities most closely corresponding to the Comparable
Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month) or (ii) if that release (or
any successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption
Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption
Date.
Comparable Treasury Issue means, with respect to the Securities of this series, the United
States Treasury security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities of this series to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the remaining term of the
Securities of this series to be redeemed. Independent Investment Banker means one of the
Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
Comparable Treasury Price means with respect to any Redemption Date for any Securities of
this series (i) the average of four Reference Treasury Dealer Quotations for that Redemption Date,
after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the
Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such
quotations.
Reference Treasury Dealer means each of J.P. Morgan Securities LLC and Merrill Lynch,
Pierce, Fenner & Smith Incorporated and four other primary U.S. Government securities dealers in
the United States (each, a Primary Treasury Dealer) appointed by the Trustee in consultation with
the Company;
provided
,
however
, that if any of the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute therefor another Primary Treasury Dealer.
Exhibit A-9
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m. (New York City
time) on the third Business Day preceding that Redemption Date.
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 the entire indebtedness of
this Security or 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 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, or shall automatically
become, due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities 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 all series to be affected (considered together as one class for this purpose).
The Indenture also contains provisions (i) permitting the Holders of a majority in principal amount
of the Securities at the time Outstanding of all series to be affected under the Indenture
(considered together as one class for this purpose), on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the Indenture and (ii)
permitting the Holders of a majority in principal amount of the Securities at the time Outstanding
of any series to be affected under the Indenture (with each such series considered separately for
this purpose), on behalf of the Holders of all Securities of such series, to waive certain past
defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture, or for the
appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default
Exhibit A-10
as Trustee and offered the Trustee indemnity reasonably satisfactory to it, and the Trustee
shall not have received from the Holders of a majority in principal amount of Securities of this
series at the time Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for
the enforcement of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
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, 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 registrable 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
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 minimum
denominations of $2,000 and multiples of $1,000 in excess thereof. 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, except as provided in Section 4.09(b) of the First Supplemental
Indenture.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
In addition to the rights provided to Holders of Securities of this series under the
Indenture, Holders of Securities of this series will have the rights set forth in the Registration
Rights Agreement, dated as of August 17, 2011, among the Company and the other parties named on
the signature pages thereof. All references in this Security to interest shall be deemed to
include Additional Interest as defined in and to the extent required by the Registration Rights
Agreement, unless the context otherwise requires.**
Exhibit A-11
Each owner of beneficial interests in this Restricted Global Security, by its acceptance
thereof, (A) authorizes and consents to, (B) appoints the Company as its agent for the sole purpose
of delivering such electronic messages, executing and delivering such instruments and taking such
other actions, on such owners behalf, as the Depository or the Trustee may require to effect, and
(C) upon the request of the Company, agrees to deliver such electronic messages, execute and
deliver such instruments and take such other actions as the Depository or the Trustee may require,
or as shall otherwise be necessary to effect, the removal of the Private Placement Legend hereon
(including by means of the exchange of all or the portion of this Restricted Global Security for a
certificate evidencing the Note evidenced hereby that does not bear the Private Placement Legend)
at any time after the Resale Restriction Termination Date with respect to this
Security.
***
This Security and the Indenture shall be governed by and construed in accordance with the law
of the State of New York.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
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***
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This paragraph should be included only if the Security is a Restricted Global Security.
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Exhibit A-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
****
The following increases or decreases in the principal amount of this Global Security have
been made:
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Principal
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Amount of
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Amount of
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Amount of
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Decrease in
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Increase in
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Global Security
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Principal
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Principal
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Following Such
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Date of
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Amount of
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Amount of
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Decrease (or
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Signature of Authorized
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Transaction
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Global Security
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Global Security
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Increase)
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Signatory
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****
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This Schedule should be included only if the Security is a Global Security.
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Exhibit A-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Baker Hughes Incorporated
2929 Allen Parkway, Suite 2100
Houston, Texas 77019
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, 18
th
Floor
Houston, Texas 77002
Attention: Corporate Trust Administration
Re: 3.20% Senior Notes due 2021
Reference is hereby made to the Indenture, dated as of October 28, 2008, as supplemented by
the First Supplemental Indenture thereto, dated as of August 17, 2011 (the Indenture), between
Baker Hughes Incorporated, as issuer (the Company) and The Bank of New York Mellon Trust Company,
N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
______________ (the Transferor) owns and proposes to transfer the Security[ies] or
beneficial interest in such Security[ies] specified in Annex A hereto, in the principal amount of
$___________ (the Transfer), to __________ (the Transferee), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1.
o
CHECK IF TRANSFEREE IS A QIB IN ACCORDANCE WITH RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the U.S. Securities Act of 1933, as
amended (the Securities Act), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Security is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Security for its own
account, or for one or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a qualified institutional buyer within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global Security or the
Restricted Definitive Security and in the Indenture and the Securities Act.
2.
o
CHECK IF TRANSFEREE WILL TAKE DELIVERY PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was
Exhibit B-1
originated, the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no directed selling
efforts have been made in contravention of the requirements of Rule 904(b) of Regulation S under
the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the Transfer is being made prior to the expiration
of the Restricted Period, the Transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser), except pursuant to Rule 144A. Upon
consummation of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Regulation S Global Security or
the Restricted Definitive Security and in the Indenture and the Securities Act.
3.
o
CHECK IF TRANSFEREE WILL TAKE DELIVERY PURSUANT TO ANY PROVISION OF THE SECURITIES ACT
OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the Securities Act (other
than Rule 144A or Regulation S) and any applicable blue sky securities laws of any state of the
United States.
4.
o
CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF (i) A BENEFICIAL INTEREST IN AN
UNRESTRICTED GLOBAL SECURITY OR (ii) AN UNRESTRICTED DEFINITIVE SECURITY:
(a)
o
CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the Indenture.
(b)
o
CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 904 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Securities or Restricted Definitive Securities and in the Indenture.
Exhibit B-2
(c)
o
CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144 or Rule 904 and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act. Upon consummation
of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Security will not be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Securities or Restricted Definitive
Securities and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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Dated:
,
Exhibit B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1.
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The Transferor owns and proposes to transfer the following:
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[CHECK ONE OF (a) OR (b)]
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(a)
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o
a beneficial interest in a Global Security (CUSIP [ ]), or
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(b)
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a Restricted Definitive Security (CUSIP [ ]).
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2. After the Transfer the Transferee will hold:
[CHECK ONE]
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(a)
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o
a beneficial interest in a Global Security (CUSIP [ ]); or
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(b)
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o
a Restricted Definitive Security (CUSIP [ ]); or
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(c)
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an Unrestricted Definitive Security (CUSIP [ ]), in accordance with the terms of
the Indenture.
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Exhibit B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Baker Hughes Incorporated
2929 Allen Parkway, Suite 2100
Houston, Texas 77019
The Bank of New York Mellon Trust Company, N.A.
601 Travis Street, 18
th
Floor
Houston, Texas 77002
Attention: Corporate Trust Administration
Re:
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3.20% Senior Notes due 2021
CUSIP 057224BA4
1
CUSIP U05722AF7
2
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Reference is hereby made to the Indenture, dated as of October 28, 2008, as supplemented by
the First Supplemental Indenture thereto, dated as of August 17, 2011 (the Indenture), between
Baker Hughes Incorporated, as issuer (the Company) and The Bank of New York Mellon Trust Company,
N.A., as trustee. Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture.
____________ (the Owner) owns and proposes to exchange the Security[ies] or beneficial
interest in such Security[ies] specified herein, in the principal amount of $____________ (the
Exchange). In connection with the Exchange, the Owner hereby certifies that:
1.
o
CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the Exchange of the
Owners beneficial interest in a Restricted Global Security for a beneficial interest in an
Unrestricted Global Security in an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owners own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the Global
Securities and pursuant to and in accordance with the Securities Act of 1933, as amended (the
Securities Act), (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act and (iv)
the beneficial interest in an Unrestricted Global Security is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
2.
o
CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO UNRESTRICTED DEFINITIVE
SECURITY. In connection with the Owners Exchange of
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1
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For Securities sold in reliance on Rule 144A.
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2
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For Securities sold in reliance on Regulation S.
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Exhibit C-1
a Restricted Definitive Security for an Unrestricted Definitive Security, the Owner hereby
certifies (i) the Unrestricted Definitive Security is being acquired for the Owners own account
without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act and (iv)
the Unrestricted Definitive Security is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.
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[Insert Name of Owner]
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By:
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Name:
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Title:
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Dated:
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Exhibit C-2
Exhibit 10.1
Execution Version
BAKER HUGHES INCORPORATED
3.20% Senior Notes due 2021
REGISTRATION RIGHTS AGREEMENT
New York, New York
August 17, 2011
J.P. MORGAN SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
As Representatives of the Initial
Purchasers named in the attached Schedule A
c/o J.P. Morgan Securities LLC
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Baker Hughes Incorporated, a corporation organized under the laws of the State of Delaware
(the
Company
), proposes to issue and sell to the several initial purchasers named in Schedule A
hereto (the
Initial Purchasers
), upon the terms set forth in a purchase agreement, dated August
10, 2011 (the
Purchase Agreement
), $750,000,000 aggregate principal amount of its 3.20% Senior
Notes due 2021 (the
Notes
) relating to the initial placement of the Notes (the
Initial
Placement
). To satisfy a condition to the obligations of the Initial Purchasers under the
Purchase Agreement, the Company hereby agrees with the Initial Purchasers for the benefit of the
holders from time to time of the Notes (including the Initial Purchasers) and the New Notes (as
defined herein) (each a
Holder
and, together, the
Holders
), as follows:
1.
Definitions
. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Registration Rights
Agreement (this
Agreement
), the following capitalized defined terms shall have the following
meanings:
Act
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
Advice
shall have the meaning set forth in the last paragraph of Section 5 hereof.
Affiliate
of any specified Person shall have the same meaning as in Rule 501(b) of
Regulation D of the Act.
Agreement
shall have the meaning set forth in Section 1 hereof.
Blackout Period
shall have the meaning set forth in Section 3(b)(ii) hereof.
Broker-Dealer
shall mean any broker or dealer registered as such under the Exchange Act.
Business Day
shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
Closing Date
shall mean August 17, 2011, the date on which the Notes are initially issued.
Commission
shall mean the Securities and Exchange Commission.
Exchange Act
shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Exchange Offer Registration Period
shall mean the 180-day period following the effective
date of the Exchange Offer Registration Statement, exclusive of any period during which any stop
order shall be in effect suspending the effectiveness of the Exchange Offer Registration Statement,
or such shorter period as will terminate when (i) all New Notes held by Exchanging Dealers or
Initial Purchasers have been sold pursuant thereto or (ii) Exchanging Broker-Dealers are no longer
required to deliver a Prospectus in connection with market-making or other trading activities,
whichever occurs first.
Exchange Offer Registration Statement
shall mean a registration statement of the Company on
an appropriate form under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
Exchanging Dealer
shall mean any Holder (which may include any of the Initial Purchasers)
that is a Broker-Dealer and elects to exchange for New Notes any Notes that it acquired for its own
account as a result of market-making activities or other trading activities (but not directly from
the Company or any Affiliate of the Company).
Free Writing Prospectus
shall mean each free writing prospectus (as defined in Rule 405
under the Act) prepared by or on behalf of the Company (or any of its agents or representatives) or
used or referred to by the Company (or any of its agents or representatives) in connection with the
sale of the Notes or the New Notes.
Holder
shall have the meaning set forth in the preamble hereto.
Indemnified Holder
shall have the meaning set forth in Section 7(a) hereof.
Indemnified Person
shall have the meaning set forth in Section 7(d) hereof.
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Indemnifying Person
shall have the meaning set forth in Section 7(d) hereof.
Indenture
shall mean the Indenture dated as of October 28, 2008, between the Company and The
Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented and amended by the First
Supplemental Indenture dated as of the date hereof, as the same may be further supplemented and
amended from time to time in accordance with the terms thereof.
Initial Placement
shall have the meaning set forth in the preamble hereto.
Initial Purchasers
shall have the meaning set forth in the preamble hereto.
Losses
shall have the meaning set forth in Section 7(a) hereof.
Majority Holders
shall mean the Holders of a majority of the aggregate principal amount of
Notes or New Notes, as applicable, registered under a Registration Statement.
Managing Underwriters
shall mean the investment banker or investment bankers and manager or
managers that shall administer an underwritten offering.
New Notes
or
Exchange Notes
shall mean the promissory notes of the Company that are
identical in all material respects to the Notes (except that the interest rate step-up provisions
and the transfer restrictions shall be eliminated) and to be issued under the Indenture or the New
Notes Indenture.
New Notes Indenture
shall mean an indenture between the Company and the New Notes Trustee,
identical in all material respects to the Indenture (except that the interest rate step-up
provisions and the transfer restrictions shall be eliminated).
New Notes Trustee
shall mean The Bank of New York Mellon Trust Company, N.A. or another bank
or trust company serving as trustee with respect to the New Notes under the New Notes Indenture.
Notes
shall have the meaning set forth in the preamble hereto.
Prospectus
shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Notes or the New Notes covered by such Registration Statement, and all
amendments and supplements thereto and all material incorporated by reference therein.
Purchase Agreement
shall have the meaning set forth in the preamble hereto.
Registration Default
shall have the meaning set forth in Section 4.
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Registered Exchange Offer
shall mean the proposed offer of the Company to issue and deliver
to the Holders of the Notes that are not prohibited by any law or policy of the Commission from
participating in such offer, in exchange for the Notes, a like aggregate principal amount of the
Exchange Notes.
Registration Statement
shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Notes or the New Notes pursuant to the provisions of
this Agreement, any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained therein), all exhibits
thereto and all material incorporated by reference therein.
Shelf Registration
shall mean a registration effected pursuant to Section 3 hereof.
Shelf Registration Period
shall have the meaning set forth in Section 3(b)(ii) hereof.
Shelf Registration Statement
shall mean a shelf registration statement of the Company
pursuant to the provisions of Section 3 hereof which covers some or all of the Notes or New Notes,
as applicable, on an appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
Special Interest
shall have the meaning set forth in Section 4 hereof.
Trust Indenture Act
shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations of the Commission promulgated thereunder and any successor act, rules and
regulations.
Trustee
shall mean the trustee with respect to the Notes and New Notes under the Indenture.
Underwriter
shall mean any underwriter of Notes or New Notes in connection with an offering
thereof under a Registration Statement.
2.
Registered Exchange Offer
.
(a) Except as set forth in Section 3 below, the Company shall prepare, at its cost,
and shall file with the Commission the Exchange Offer Registration Statement. The Company
shall use its reasonable best efforts to cause the Exchange Offer Registration Statement to
become effective under the Act.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company
shall promptly commence the Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Company shall:
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(i) deliver to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
(ii) commence and use its reasonable best efforts to complete the Registered
Exchange Offer no later than August 17, 2012, and hold the Registered Exchange Offer
open for not less than 20 Business Days;
(iii) use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required
under the Act to ensure that it is available for sales of New Notes by Exchanging
Dealers or the Initial Purchasers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer,
which may be the Trustee, the New Notes Trustee or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Notes at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange
Offer is open; and
(vi) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the
Company shall:
(i) accept for exchange all Notes tendered and not validly withdrawn pursuant
to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with Section 5(r)
all Notes so accepted for exchange; and
(iii) cause the Trustee or New Notes Trustee, as the case may be, promptly to
authenticate and deliver to each Holder of Notes a principal amount of New Notes
equal to the principal amount of the Notes of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Registered Exchange Offer to participate in a distribution of the New Notes
(x) could not under Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in
Morgan Stanley and Co., Inc.
(pub. avail. June 5,
1991) and
Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988), as
interpreted in the Commissions letter to Shearman & Sterling dated July 2, 1993 and similar
no-action letters; and (y) must comply with the registration and prospectus delivery
requirements of the Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of Regulation S-K
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under the Act if the resales are of New Notes obtained by such Holder in exchange for Notes
acquired by such Holder directly from the Company or one of its Affiliates. Accordingly,
each Holder participating in the Registered Exchange Offer shall be required to represent to
the Company that, at the time of the consummation of the Registered Exchange Offer:
(i) any New Notes received by such Holder will be acquired in the ordinary
course of business;
(ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Notes or the New Notes within the meaning of
the Act;
(iii) such Holder is not an Affiliate of the Company or if it is an Affiliate,
such Holder will comply with the registration and prospectus delivery requirements
of the Act to the extent applicable;
(iv) if such Holder is not a Broker-Dealer, that it is not engaged in, and does
not intend to engage in, the distribution of the New Notes; and
(v) if such Holder is a Broker-Dealer, that it will receive New Notes for its
own account in exchange for Notes that were acquired as a result of market-making
activities or other trading activities and that it will deliver a prospectus in
connection with any resale of such New Notes.
3.
Shelf Registration
.
(a) If (i) due to any change in law or applicable interpretations thereof by the
Commissions staff, the Company determines that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason the Registered
Exchange Offer is not consummated by August 17, 2012; (iii) the Initial Purchasers determine
upon advice of their counsel that a Shelf Registration Statement must be filed in connection
with any public offering or sale of Notes that are not eligible to be exchanged for New
Notes in the Registered Exchange Offer and that are held by them following consummation of
the Registered Exchange Offer; or (iv) any Holder (other than the Initial Purchasers) is not
eligible to participate in the Registered Exchange Offer or does not receive freely
tradeable New Notes in the Registered Exchange Offer other than by reason of such Holder
being an Affiliate of the Company (it being understood that the requirement that a
participating Broker-Dealer deliver the Prospectus contained in the Exchange Offer
Registration Statement in connection with sales of New Notes shall not result in such New
Notes being not freely tradeable), and, in the case of clause (iii) or (iv), the Company
is notified in writing of such determination, non-eligibility or failure, as the case may
be, no more than 30 days after the consummation of the Registered Exchange Offer, the
Company shall effect a Shelf Registration Statement in accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
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(i) the Company, at its cost, shall as promptly as practicable, but in no event
later than 90 days after such obligation to file arises, file with the Commission
and use its reasonable best efforts to cause to become effective under the Act on or
prior to August 17, 2012, a Shelf Registration Statement relating to the offer and
sale of the Notes or the New Notes, as applicable, by the Holders thereof from time
to time in accordance with the methods of distribution elected by such Holders and
set forth in such Shelf Registration Statement;
provided
,
however
,
that no Holder (other than the Initial Purchasers) shall be entitled to have the
Notes or New Notes held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and
provided
further
, that with respect
to New Notes received by the Initial Purchasers in exchange for Notes constituting
any portion of an unsold allotment, the Company may, if permitted by current
interpretations by the Commissions staff, file a post-effective amendment to the
Exchange Offer Registration Statement containing the information required by Item
507 or 508 of Regulation S-K, as applicable, in satisfaction of their obligations
under this subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement;
(ii) the Company shall use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as required
by the Act, in order to permit the Prospectus forming part thereof to be usable by
Holders until the earliest of (A) the time when all of the Notes or New Notes, as
applicable, covered by the Shelf Registration Statement can be sold pursuant to Rule
144 without limitation by non-affiliates of the Company under clause (d) of Rule
144, (B) the date on which all the Notes or New Notes, as applicable, covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement, and (C) one year from the date the Shelf Registration Statement is
declared effective by the Commission (in any such case, such period being called
the
Shelf Registration Period
); it being understood that the Company shall be
deemed not to have used its reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any action
that would result in Holders of Notes or New Notes covered thereby not being able to
offer and sell such Notes or New Notes during that period, unless (A) such action is
required by applicable law or Commission policy; or (B) such action is taken by the
Company in good faith and for valid business reasons (not including avoidance of the
Companys obligations hereunder), including, but not limited to, the acquisition or
divestiture of assets (the period during which the Shelf Registration Statement is
not available under clause (A) or (B), the
Blackout Period
), so long as the
Company promptly thereafter complies with the requirements of Section 5(k) hereof,
if applicable; and
(iii) the Company shall cause the Shelf Registration Statement and the related
Prospectus and any amendment or supplement thereto, as of the
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effective date of the
Shelf Registration Statement or such amendment or supplement, to comply in all
material respects with the applicable requirements of the Act and the rules and
regulations of the Commission.
4.
Special Interest
. If (a) on or prior to August 17, 2012, (x) the Registered
Exchange Offer has not been consummated and (y) a Shelf Registration Statement is not then
effective under the Securities Act, or (b) after either the Exchange Offer Registration Statement
or the Shelf Registration Statement has been become effective, such Registration Statement
thereafter ceases to be effective or usable in connection with resales of Notes or New Notes in
accordance with and during the periods specified in this Agreement, other than a Shelf Registration
Statement during any Blackout Period to the extent such Blackout Period does not exceed 60 days in
any three-month period or 90 days in any 12-month month period (each such event referred to in
clauses (a) and (b), a
Registration Default
), then, as liquidated damages, interest (
Special
Interest
) will accrue on the principal amount of the affected Notes and the New Notes (in addition
to the stated interest on the Notes and New Notes) from and including the date on which any such
Registration Default shall occur to but excluding the date on which all Registration Defaults have
been cured (such cure to include, for the avoidance of doubt, consummation of the Registered
Exchange Offer or an effective Shelf Registration Statement in the case of (x) and (y) of clause
(a) even if such consummation or effectiveness occurs after August 17, 2012). Special Interest
will accrue at a rate of 0.25% per annum. The Company will pay Special Interest on the regular
interest payment dates specified in the Indenture and in the same manner as other interest. In no
event will Special Interest accrue under more than one of the foregoing clauses (a) or (b) at any
one time or exceed 0.25% per annum in any event.
Any Special Interest that is accrued and unpaid on any Note at the time such Note is exchanged
for a New Note shall be deemed to have accrued on such New Note.
5.
Additional Registration Procedures
. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply.
(a) The Company shall:
(i) furnish to the Representatives of the Initial Purchasers, if so requested,
not less than five Business Days prior to the filing thereof with the Commission, a
draft copy of any Exchange Offer Registration Statement and any Shelf Registration
Statement, and each amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein (including all documents incorporated by reference
in any Shelf Registration Statement) and shall use its reasonable best efforts to
reflect in each such document (excluding any documents incorporated by reference
after such filing), when so filed with the Commission, such comments as the Initial
Purchasers reasonably propose within such five Business Day period;
(ii) include the information to the effect of that set forth in:
8
(A) Annex A and Annex B hereto in the forepart of the Prospectus
contained in the Exchange Offer Registration Statement,
(B) Annex C hereto in the underwriting or plan of distribution section
of the Prospectus contained in the Exchange Offer Registration Statement,
and
(C) Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by the Initial Purchasers, include the information required
by Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in
the Exchange Offer Registration Statement, subject to Section 5(o); and
(iv) in the case of a Shelf Registration Statement, include the names of the
Holders that propose to sell Notes or New Notes, as applicable, pursuant to the
Shelf Registration Statement as selling Note holders, subject to Section 5(o).
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto complies in all
material respects with the Act and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does not, when it
becomes effective (within the meaning of Rule 430B under the Act), contain an untrue
statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Company shall advise the Initial Purchasers in connection with a Shelf
Registration Statement and the Holders of Notes or New Notes covered by any Shelf
Registration Statement and any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Company a telephone or facsimile number and
address for notices, and, if requested by the Initial Purchasers or any such Holder or
Exchanging Dealer, the Company shall confirm such advice in writing (which notice pursuant
to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has been filed with
the Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
9
(ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose;
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes or New Notes included therein for sale
in any jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be stated therein
(in the case of the Registration Statement) or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances under
which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement or the qualification of the
Notes or New Notes therein for sale in any jurisdiction as soon as practicable.
(e) The Company shall furnish to each Holder of Notes or New Notes covered by any
Shelf Registration Statement, without charge, if the Holder so requests, at least one copy
of such Shelf Registration Statement, any post-effective amendment thereto, all material
incorporated therein by reference and all exhibits thereto (including exhibits incorporated
by reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder of
Notes or New Notes covered by any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Notes or New Notes in connection with the offering
and sale of the Notes or New Notes covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement, subject to the last paragraph of
Section 5.
(g) The Company shall furnish to each Exchanging Dealer and to each of the Initial
Purchasers that so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, excluding all material
incorporated by reference therein and all exhibits thereto.
(h) The Company shall promptly deliver to the Initial Purchasers, each Exchanging
Dealer and each other Person required to deliver a Prospectus during the
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Exchange Offer Registration Period, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and any amendment or supplement
thereto as any such Person may reasonably request (excluding documents incorporated by
reference). The Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Initial Purchasers, any Exchanging Dealer and any such other
Person that may be required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the New Notes covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer Registration Statement,
subject to the last paragraph of Section 5.
(i) Prior to the Registered Exchange Offer or any other offering of Notes or New Notes
pursuant to any Registration Statement, the Company shall arrange, if necessary, for the
qualification of the Notes or the New Notes for sale under the laws of such jurisdictions as
any Holder shall reasonably request and will maintain such qualification in effect so long
as required;
provided
that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not then so qualified or to take any action that
would subject it to service of process in suits or taxation, other than as required in
connection with the Registered Exchange Offer, in any such jurisdiction where it is not then
so subject.
(j) The Company shall cooperate with the Holders of Notes and New Notes to facilitate
the timely preparation and delivery of certificates representing New Notes or Notes to be
issued or sold pursuant to any Registration Statement free of any restrictive legends and in
such authorized denominations and registered in such names as Holders may request, to the
extent permitted by the Indenture or New Notes Indenture, as applicable, or otherwise in the
name of Cede & Co., as nominee for the Depositary (as defined in the Purchase Agreement) or
such other nominee.
(k) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v)
above, the Company shall promptly (subject to permitted Blackout Periods in the case of any
Shelf Registration Statement) prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to the Initial Purchasers or
Exchanging Dealers, the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. In such circumstances, the
period of effectiveness of the Exchange Offer Registration Statement provided for in Section
2 and the Shelf Registration Statement provided for in Section 3(b) shall each be extended
by the number of days from and including the date of the giving of a notice of suspension
pursuant to Section 5(c) to and including the date when the Initial Purchasers, the Holders
of the Notes or New Notes and any known Exchanging Dealer shall have received the Advice or
such amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement, the Company shall
provide a CUSIP number for the New Notes.
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(m) The Company shall comply in all material respects with all applicable rules and
regulations of the Commission and shall make generally available to the Holders of Notes or
New Notes as soon as practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the New Notes Indenture, as the case may
be, to be qualified under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of Notes or New Notes to be sold pursuant to
any Shelf Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of such Notes as the Company may from time to time reasonably
require for inclusion in such Registration Statement. The Company may exclude from such
Shelf Registration Statement the Notes or New Notes of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company shall enter into such
customary agreements and take all other appropriate actions reasonably requested (including
if requested an underwriting agreement in customary form) in order to expedite or facilitate
the registration or the disposition of the Notes or New Notes, and in connection therewith,
if an underwriting agreement is entered into, use its reasonable best efforts to cause the
same to contain indemnification provisions and procedures no less favorable than those set
forth in Section 7 with respect to the selling Holders (or such other provisions and
procedures acceptable to a majority in aggregate principal amount of Notes or New Notes, as
applicable, held by Holders selling securities pursuant to such offering and the Managing
Underwriters, if any).
(q) In the case of any Shelf Registration Statement, the Company shall use its
reasonable best efforts to, if requested by a selling Holder or the Managing Underwriters,
if any:
(i) make reasonably available for inspection by the Holders of Notes or New
Notes to be registered thereunder, any Underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries;
provided
,
however
, that any information that is
designated in writing by the Company, in good faith, as confidential at the time
such information is made available for inspection shall be kept confidential by the
Holders or any such Underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality;
(ii) cause the Companys officers, directors and employees to supply all
relevant information reasonably requested by the Holders or any such
12
Underwriter, attorney, accountant or agent in connection with any such
Registration Statement as is customary for similar due diligence examinations;
provided
,
however
, that any information that is designated in
writing by the Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by the Holders or any such Underwriter,
attorney, accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Holders of Notes or New
Notes registered thereunder and the Underwriters, if any, in form, substance and
scope as are customarily made by issuers to Underwriters in primary underwritten
offerings;
(iv) obtain opinions of counsel to the Company and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the Managing Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Holders and Underwriters;
(v) obtain cold comfort letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and financial data
are, or are required to be, included in the Shelf Registration Statement), addressed
to each selling Holder of Notes or New Notes registered thereunder and the
Underwriters, if any, in customary form and covering matters of the type customarily
covered in cold comfort letters in connection with primary underwritten offerings,
provided
that to be an addressee of the comfort letter, if requested by the
applicable accountant, each Underwriter and selling Holder may be required to
confirm that it is in the category of person to whom a comfort letter may be
delivered in accordance with applicable accounting literature; and
(vi) deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Managing Underwriters, if any, including those to
evidence compliance with Section 5(k) and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company .
The actions set forth in clauses (iii), (iv), (v) and (vi) of this clause (q) shall be performed at
(A) the effectiveness of such Shelf Registration Statement and each post-effective amendment
thereto or, if later, at the time of any take-down under such Shelf Registration Statement, to
the extent reasonably requested by a selling Holder or the Managing Underwriters, if any; and (B)
13
each closing under any underwriting or similar agreement as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon delivery of the Notes by
Holders to the Company (or to such other Person as directed by the Company) in exchange for
the New Notes, the Company shall mark, or caused to be marked, on the Notes so exchanged
that such Notes are being canceled in exchange for the New Notes. In no event shall the
Notes be marked as paid or otherwise satisfied.
(s) If any Broker-Dealer shall underwrite any Notes or New Notes or participate as a
member of an underwriting syndicate or selling group or assist in the distribution (within
the meaning of the Rules of Fair Practice and the By-Laws of the Financial Industry
Regulatory Authority, Inc.) thereof, whether as a Holder of such Notes or New Notes or as an
Underwriter, a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, will assist such Broker-Dealer in complying with the requirements of such Rules
and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a qualified
independent underwriter (as defined in such Rules) to participate in the
preparation of the Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Notes or New Notes;
(ii) indemnifying any such qualified independent underwriter to the extent of
the indemnification of Underwriters provided in Section 7 hereof; and
(iii) providing such information to such Broker-Dealer as may be required in
order for such Broker-Dealer to comply with the requirements of such Rules.
(t) The Company shall use its reasonable best efforts to take all other steps necessary
to effect the registration of the Notes or the New Notes, as the case may be, covered by a
Registration Statement.
Each Holder agrees by acquisition of a Note that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section 5(c)(ii)-(v) or any Blackout Period,
such Holder will forthwith discontinue disposition of Notes or New Notes pursuant to the applicable
Registration Statement until such Holders receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5 hereof, or until it is advised in writing (the
Advice
) by
the Company that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Company in writing, each Holder will deliver to the Company (at the Companys
expense) all copies, other than permanent file copies then in such Holders possession, of the
Prospectus covering such Notes or New Notes that was current at the time of receipt of such notice.
14
6.
Registration Expenses
. The Company shall bear all expenses incurred in connection
with the performance of its obligations under Sections 2, 3 and 5 hereof and, in the event of any
Shelf Registration Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith, but excluding fees and expenses of counsel to the Initial Purchasers or the
Holders, all agency fees and commissions, underwriting discounts and commissions and transfer taxes
attributable to the sale or disposition of Notes or New Notes by a Holder.
7.
Indemnification and Contribution
.
(a) The Company agrees to indemnify and hold harmless (i) the Initial Purchasers, (ii)
each Holder of Notes or New Notes, as the case may be, covered by any Registration Statement
(including with respect to any Prospectus delivery as contemplated in Section 5(h) hereof,
each Exchanging Dealer, but subject in all cases to the first sentence of the last paragraph
of Section 5), (iii) each Person, if any, who controls (within the meaning of either Section
15 of the Act or Section 20 of the Exchange Act) any of the foregoing (any of the Persons
referred to in this clause (iii) being hereinafter referred to as a
controlling person
),
and (iv) the respective officers, directors, partners, employees, representatives and agents
of the Initial Purchasers or the Holders (including predecessor Holders) (any person
referred to in clause (i), (ii), (iii) or (iv) may hereinafter be referred to as an
Indemnified Holder
), from and against any and all losses, claims, damages and liabilities,
including, without limitation, reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted (collectively
Losses
), caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary Prospectus, Prospectus, Free Writing
Prospectus or any issuer information (as defined in Rule 433 of the Act) filed or required
to be filed pursuant to Rule 433(d) under the Act, or any amendment or supplement thereto,
or caused by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, except insofar
as such Losses are caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to any
Indemnified Holder furnished to the Company in writing by such Indemnified Holder expressly
for use therein.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, each controlling person and each of the Companys officers and directors to the
same extent as the foregoing indemnity from the Company to each Holder, but only with
reference to such Losses that are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with information
relating to a Holder furnished to the Company in writing by such Holder expressly for use in
any Registration Statement, preliminary Prospectus, Prospectus, Free Writing Prospectus or
any issuer information (as defined in Rule 433 of the Act) filed or required to be filed
pursuant to Rule 433(d) under the Act, or any amendment or supplement thereto. This
indemnity agreement will be in addition to any liability which any such Holder may otherwise
have.
15
(c) Each of the Initial Purchasers, severally and not jointly, agrees to indemnify and
hold harmless the Company, each controlling person and each of the Companys officers and
directors to the same extent as the foregoing indemnity from the Company to the Initial
Purchasers, but only with reference to such Losses that are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in conformity
with information relating to the Initial Purchasers furnished to the Company in writing by
the Initial Purchasers expressly for use in any Registration Statement, preliminary
Prospectus, Prospectus, Free Writing Prospectus or any issuer information (as defined in
Rule 433 of the Act) filed or required to be filed pursuant to Rule 433(d) under the Act, or
any amendment or supplement thereto. This indemnity agreement will be in addition to any
liability which the Initial Purchasers may otherwise have.
(d) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person in respect
of which indemnity may be sought pursuant to either of the three preceding paragraphs, such
Person (the
Indemnified Person
) shall promptly notify the Person or Persons against whom
such indemnity may be sought (each an
Indemnifying Person
) in writing, and such
Indemnifying Person, upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel related to
such proceeding. In any such proceeding, the Indemnifying Person shall be able to
participate in such proceeding and, to the extent that it so elects, jointly with any other
similarly situated Indemnifying Person, to assume the defense thereof, subject to the right
of the Indemnified Person to be separately represented and to direct its own defense if the
named parties to any such proceeding include both the Indemnified Person and the
Indemnifying Person and the Indemnified Person has been advised by counsel that
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) such Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary or (ii) the named parties
in any such proceeding (including any impleaded parties) include an Indemnifying Person and
an Indemnified Person and the Indemnified Person shall have reasonably concluded that
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that an Indemnifying Person
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Persons, and that all such reasonable
fees and expenses shall be reimbursed as they are incurred. Any such separate firm for the
Indemnified Holders shall be designated in writing by the Holders of the majority in
aggregate principal amount of Notes and New Notes offered in the Prospectus to which the
claim relates, and any such separate firm for the Company, its directors, officers and such
control Persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding effected
without its
16
written consent, but if settled with such consent or if there be a final judgment for
the plaintiff, such Indemnifying Person agrees to indemnify any Indemnified Person from and
against any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of such
proceeding.
(e) If the indemnification provided for in the first, second and third paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in respect of any
Losses referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying Person on the one
hand and the Indemnified Person on the other hand pursuant to the Purchase Agreement or from
the offering of the Notes or New Notes pursuant to any Registration Statement that resulted
in such Losses or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Indemnifying
Person on the one hand and the Indemnified Person on the other in connection with the
statements or omissions that resulted in such Losses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the one hand and
any Indemnified Holder on the other shall be deemed to be in the same proportion as the
total net proceeds from the Initial Placement received by the Company bear to the total net
proceeds received by such Indemnified Holder from sales of Notes or New Notes giving rise to
such obligations. The relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or such Indemnified Holder and the parties relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. Each
director, officer, employee and agent of an Initial Purchaser or a Holder and each person,
if any, who controls an Initial Purchaser or a Holder within the meaning of the Securities
Act and the Exchange Act shall have the same rights to contribution as such Indemnified
Holder, and each director of the Company, each officer of the Company, and each person, if
any, who controls the Company within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
(f) Each of the Company and the Initial Purchasers agrees that it would not be just and
equitable if contribution pursuant to this Section 7 were
determined by
pro
rata
allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the Losses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses incurred by such Indemnified
17
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall any Holder of any Notes
or New Notes be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Note pursuant to a Registration
Statement or New Note exceeds the amount of damages which such Holder would have otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(g) The remedies provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any indemnified party at law or in
equity.
(h) The indemnity and contribution agreements contained in this Section 7 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Holder or any Person controlling any
Holder or by or on behalf of the Company, its officers or directors or any other Person
controlling the Company and (iii) acceptance of and payment for any of the Notes or New
Notes.
8.
Underwritten Registrations
.
(a) If any of the Notes or New Notes, as the case may be, covered by any Shelf
Registration Statement is to be sold in an underwritten offering, the Managing Underwriters
shall be selected by the Majority Holders and shall be reasonably satisfactory to the
Company.
(b) No Person may participate in any underwritten offering pursuant to any Shelf
Registration Statement, unless such Person (i) agrees to sell such Persons Notes or New
Notes, as the case may be, on the basis reasonably provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements; and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting arrangements.
9.
No Inconsistent Agreements
. The Company has not, as of the date hereof, entered
into, nor shall it, on or after the date hereof, enter into, any agreement with respect to its
Notes that is inconsistent with the rights granted to the Holders herein or otherwise conflicts
with the provisions hereof.
10.
Amendments and Waivers
. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, qualified, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given, unless the Company has
obtained the consent of the Majority Holders (or, after the consummation of any Registered Exchange
Offer in accordance with Section 2 hereof, of New Notes);
provided
,
however
, that,
with respect to any matter that directly or indirectly affects the rights of the Initial
18
Purchasers hereunder, the Company shall obtain the written consent of the Representatives of
the Initial Purchasers. Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that relates exclusively
to the rights of Holders whose Notes or New Notes, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the rights of other Holders
may be given by the Majority Holders, determined on the basis of Notes or New Notes, as the case
may be, being sold rather than registered under such Registration Statement.
11.
Notices
. All notices and other communications (including without limitation any
notices or other communications to a Holder) provided for or permitted hereunder shall be made in
writing by hand-delivery, registered first-class mail, next-day air courier or facsimile:
(1) if to a Holder, at the most current address of such Holder set forth on the records
of the registrar under the Indenture;
(2) if to the Initial Purchasers:
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representatives of the Initial Purchasers named on Schedule A
attached to the Registration Rights Agreement
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Attention: High Grade Syndicate Desk
Facsimile No.: (212) 834-6081
with copies (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
First City Tower
1001 Fannin Street, Suite 2500
Houston, Texas 77002-6760
Attention: Stephen M. Gill
Facsimile No.: (713) 615-5956; and
(3) if to the Company, at the addresses as follows:
Baker Hughes Incorporated
2929 Allen Parkway, Suite 2100
Houston, Texas 77019
Attention: William D. Marsh
Facsimile No.: (713) 439-8472
with copies (which shall not constitute notice) to:
19
Baker Hughes Incorporated
2929 Allen Parkway, Suite 2100
Houston, Texas 77019
Attention: Will Marsh
Facsimile No.: (713) 439-8472
Akin Gump Strauss Hauer & Feld LLP
1111 Louisiana, 44
th
Floor
Houston, Texas 77002
Attention: Christine B. LaFollette
Facsimile No.: (713) 236-0822
All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; five Business Days after being deposited in the U.S. mail, postage
prepaid, if mailed; one Business Day after being timely delivered to a next-day air courier; and
when the addressor receives facsimile confirmation, if sent by facsimile.
The Initial Purchasers or the Company by notice to the other parties may designate additional
or different addresses for subsequent notices or communications.
12.
Successors
. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including, without the need for an express
assignment or any consent by the Company thereto, subsequent Holders of Notes or New Notes. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of Notes and the New
Notes, and any such Holder may specifically enforce the provisions of this Agreement as if an
original party hereto so long as such Holder complies with its obligations hereunder.
13.
Counterparts
. This Agreement may be executed (including by facsimile) in any
number of counterparts and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.
14.
Headings
. The headings used herein are for convenience only and shall not affect
the construction hereof.
15.
Applicable Law
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN
THE STATE OF NEW YORK.
16.
Severability
. If any one of more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
20
17.
No Fiduciary Duty
. The Company hereby acknowledges that (a) the Initial Purchasers
are acting as principal and not as an agent or fiduciary of the Company and (b) the Companys
engagement of the Initial Purchasers in connection with the offering and the process leading up to
the offering pursuant to the Purchase Agreement is as independent contractors and not in any other
capacity. Furthermore, the Company agrees that it is solely responsible for making its own
judgments in connection with the Initial Placement, the Registered Exchange Offer or a Shelf
Registration (irrespective of whether any of the Initial Purchasers has advised or is currently
advising the Company on related or other matters). The Company agrees that it will not claim that
the Initial Purchasers have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
[Remainder Of This Page Is Intentionally Left Blank]
21
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall
represent a binding agreement among the Company and you.
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Very truly yours,
BAKER HUGHES INCORPORATED
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By:
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/s/ Peter A. Ragauss
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Name:
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Peter A. Ragauss
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Title:
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Senior Vice President and
Chief Financial Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written
J.P. MORGAN SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Acting as Representative of the
Several Initial Purchasers named in
the attached Schedule A.
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By:
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J.P. Morgan Securities LLC
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By:
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/s/ Maria Sramek
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Name:
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Maria Sramek
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Title:
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Executive Director
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By:
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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By:
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/s/ Joseph A. Crowley
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Name:
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Joseph A. Crowley
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Title:
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Director
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Signature Page to Registration Rights Agreement
SCHEDULE A
Initial Purchasers
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
HSBC Securities (USA) Inc.
Wells Fargo Securities, LLC
Barclays Capital Inc.
Citigroup Global Markets
Goldman, Sachs & Co.
Mitsubishi UFJ Securities (USA), Inc.
RBS Securities Inc.
UBS Securities LLC
Banco Bilbao Vizcaya Argentaria, S.A.
Commerz Markets LLC
Credit Agricole Securities (USA) Inc.
Deutsche Bank Securities Inc.
DnB NOR Markets, Inc.
RBC Capital Markets, LLC
Standard Chartered Bank
UniCredit Capital Markets LLC
U.S. Bancorp Investments, Inc.
ANNEX A
Each broker or dealer that receives new notes for its own account in exchange for old notes
that were acquired as a result of market-making or other trading activities must acknowledge that
it will comply with the registration and prospectus delivery requirements of the Act in connection
with any offer, resale, or other transfer of the new notes issued in the exchange offer, including
information with respect to any selling holder required by the Act in connection with any resale of
the new notes.
Furthermore, any broker-dealer that acquired any of its old notes directly from us:
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may not rely on the applicable interpretation of the staff of the Commissions
position contained in Exxon Capital Holdings Corporation (pub. avail. May 13,
1988), Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted in
the Commissions letter to Shearman & Sterling dated July 2, 1993 and similar
no-action letters; and
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must also be named as a selling noteholder in connection with the registration
and prospectus delivery requirements of the Act relating to any resale transaction.
See Plan of Distribution and The Exchange Offer Purpose and Effect of Exchange
Offer Registration Rights.
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ANNEX B
Each broker-dealer that receives new notes for its own account in exchange for old notes,
where such old notes were acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will comply with the registration and prospectus
delivery requirements of the Act in connection with any offer, resale or other transfer of such new
notes, including information with respect to any selling holder required by the Act in connection
with the resale of the new notes. We have agreed that for a period of 180 days after the effective
date of the registration statement of which this prospectus is a part (or for such shorter period
during which broker-dealers are required by law to deliver such prospectus), we will make this
prospectus available to any broker-dealer for use in connection with any such resale. See Plan of
Distribution.
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant to the Exchange Offer
must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes.
This prospectus, as it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of New Notes received in exchange for Notes where such
Notes were acquired as a result of market-making activities or other trading activities. We have
agreed that, starting on the effective date of the registration statement of which this prospectus
is a part and ending on the close of business 180-days after such date or such shorter period as
will terminate when all New Notes held by Exchanging Dealers or Initial Purchasers have been sold
pursuant hereto (or for such shorter period during which broker-dealers are required by law to
deliver such prospectus), we will make this prospectus, as amended or supplemented, available to
any broker-dealer for use in connection with any such resale. In
addition, until
,
20
,
all dealers effecting transactions in the New Notes may be required to deliver a prospectus.
We will not receive any proceeds from any sale of New Notes by brokers-dealers. New Notes
received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of commissions or concessions
from any such broker-dealer or the purchasers of any such New Notes. Any broker-dealer that
resells New Notes that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such New Notes may be deemed to be an
underwriter within the meaning of the Act and any profit of any such resale of New Notes and any
commissions or concessions received by any such Persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Act.
Furthermore, any broker-dealer that acquired any of the old notes directly from us:
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may not rely on the applicable interpretation of the staff of the SECs position
contained in
Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988),
Morgan Stanley and Co., Inc.
(pub. avail. June 5, 1991), ), as interpreted
in the Commissions letter to Shearman & Sterling dated July 2, 1993 and similar
no-action letters; and
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must also be named as a selling noteholder in connection with the registration
and prospectus delivery requirements of the Act relating to any resale transaction.
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For a period of 180-days after the effective date of the registration statement of which this
prospectus is a part or such shorter period as will terminate when all New Notes held by Exchanging
Dealers or Initial Purchasers have been sold pursuant hereto (or for such shorter period during
which broker-dealers are required by law to deliver such prospectus), we will promptly send
additional copies of this prospectus and any amendment or supplement to this prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. We have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel for the holder of
the Notes) other than commissions or concessions of any brokers or dealers and will indemnify the
holders of the Notes (including any broker-dealers) against certain liabilities, including
liabilities under the Act.
[
If applicable, add information required by Regulation S-K Items 507 or 508.
]
ANNEX D
o
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
If the undersigned is not a broker-dealer, the undersigned represents that it acquired the New
Notes in the ordinary course of its business, it is not engaged in, and does not intend to engage
in, a distribution of New Notes and it has no arrangements or understandings with any Person to
participate in a distribution of the New Notes. If the undersigned is a broker-dealer that will
receive New Notes for its own account in exchange for Notes, it represents that the Notes to be
exchanged for New Notes were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus in connection with any resale
of such New Notes; however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an underwriter within the meaning of the Act.