AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 11, 2002
NABORS INDUSTRIES LTD.
(Exact name of registrant as specified in its charter)
NABORS INDUSTRIES, INC. NABORS INDUSTRIES LTD.
DELAWARE BERMUDA
(State or other jurisdiction of organization of (State or other jurisdiction of organization of
incorporation) incorporation)
1381 1381
(Primary Standard Industrial Classification Code (Primary Standard Industrial Classification Code
Number) Number)
93-0711613 98-0363970
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
|
515 WEST GREENS ROAD, SUITE 1200 2ND FL. INTERNATIONAL CENTRE
HOUSTON, TEXAS 77067 WARRENS
TELEPHONE: (281) 874-0035 ST. MICHAEL, BARBADOS
(Address, Including Zip Code, and TELEPHONE: (246) 421-9471
Telephone Number, Including Area Code, (Address, Including Zip Code, and
of Registrant's Principal Executive Offices) Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
|
MICHAEL P. ROGAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 NEW YORK AVENUE, N.W.
WASHINGTON, D.C. 20005-2111
(202) 371-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this registration statement becomes effective.
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________
If this form is post-effective amendment is filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SECURITY PRICE(1) FEE
----------------------------------------------------------------------------------------------------------------------------
5.375% Senior Notes due 2012........... $275,000,000 100% $275,000,000 $25,300(2)
----------------------------------------------------------------------------------------------------------------------------
Guarantees related to 5.375% Senior
Notes due 2012....................... N/A N/A N/A N/A(3)
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
|
(1) Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457(f) promulgated under the Securities Act of 1933, as amended.
(2) Calculated by multiplying 0.000092 by the proposed maximum aggregate offering price.
(3) No separate consideration is received for the guarantees, and therefore, no additional fee is required.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION RELATING TO THESE SECURITIES IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED OCTOBER 10, 2002
PROSPECTUS
(NABORS LOGO)
OFFER TO EXCHANGE $275,000,000 5.375% SENIOR NOTES DUE 2012
FOR $275,000,000 5.375% SENIOR NOTES DUE 2012 WHICH HAVE BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED,
FULLY AND UNCONDITIONALLY GUARANTEED BY NABORS INDUSTRIES LTD.
THE EXCHANGE OFFER WILL EXPIRE AT 5 P.M., NEW YORK CITY TIME, ON
, 2002 (THE 21ST BUSINESS DAY FOLLOWING THE DATE OF THIS
PROSPECTUS), UNLESS WE EXTEND THE EXCHANGE OFFER IN OUR SOLE AND ABSOLUTE
DISCRETION.
The principal terms of the exchange offer are as follows:
- We will exchange the new notes for all outstanding old notes that are validly tendered and not withdrawn pursuant to the exchange offer.
- You may withdraw tenders of old notes at any time prior to the expiration of the exchange offer.
- The terms of the new notes are substantially identical to those of the outstanding old notes, except that the transfer restrictions and registration rights relating to the old notes will not apply to the new notes.
- The exchange of old notes for new notes will not be a taxable transaction for U.S. federal income tax purposes, but you should see the discussion under the caption "Material Tax Considerations" beginning on page 37 for more information.
- We will not receive any cash proceeds from the exchange offer.
- We issued the old notes in a transaction not requiring registration under the Securities Act, and as a result, transfer of the old notes is restricted. We are making the exchange offer to satisfy your registration rights, as a holder of the old notes.
There is no established trading market for the new notes or the old notes.
SEE "RISK FACTORS" BEGINNING ON PAGE 12 FOR A DISCUSSION OF RISKS YOU
SHOULD CONSIDER PRIOR TO TENDERING YOUR OUTSTANDING OLD NOTES FOR EXCHANGE.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2002
TABLE OF CONTENTS
PAGE
----
Summary Information......................................... 1
Forward-Looking Statements.................................. 11
Risk Factors................................................ 12
Use of Proceeds............................................. 16
Ratio of Earnings to Fixed Charges.......................... 16
Selected Historical Consolidated Financial Data............. 17
The Exchange Offer.......................................... 18
Description of the New Notes................................ 25
Book-Entry System........................................... 34
Material Tax Considerations................................. 37
Plan of Distribution........................................ 38
Where You Can Find More Information......................... 39
Incorporation of Certain Documents by Reference............. 40
Legal Matters............................................... 41
Independent Accountants..................................... 41
|
References in this prospectus to "Nabors Delaware," "we," "us," and "our" refer to Nabors Industries, Inc. and references to "Nabors" refer to Nabors Industries Ltd.
The "old notes" consisting of the 5.375% Senior Notes due 2012 which were issued on August 22, 2002 and the "new notes" consisting of the 5.375% Senior Notes due 2012 offered pursuant to this prospectus are sometimes collectively referred to in this prospectus as the "notes."
Rather than restate certain information in this prospectus that we and Nabors have already included in reports filed with the Securities and Exchange Commission, we are incorporating this information by reference, which means that we can disclose important business, financial and other information to you by referring to those publicly filed documents that contain the information. The information incorporated by reference is not included in or delivered with this prospectus.
We will provide without charge to each person to whom this prospectus is delivered, including each beneficial owner of old notes, upon request of such person, a copy of any or all documents that are incorporated into this prospectus by reference, other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into the documents that this prospectus incorporates. You should direct such requests to: Nabors Corporate Services, Inc., 515 West Greens Road, Suite 1200, Houston, Texas 77067, Attention: Investor Relations, phone number (281) 874-0035.
IN ORDER TO OBTAIN TIMELY DELIVERY, YOU MUST REQUEST THIS INFORMATION NO LATER THAN FIVE BUSINESS DAYS BEFORE YOU MUST MAKE YOUR INVESTMENT DECISION. ACCORDINGLY, YOU MUST REQUEST THIS INFORMATION NO LATER THAN , 2002.
SUMMARY INFORMATION
This summary highlights the information contained elsewhere in or incorporated by reference into this prospectus. Because this is only a summary, it does not contain all of the information that may be important to you. For a complete understanding of this offering, we encourage you to read this entire prospectus and the documents to which we refer you. You should read the following summary together with the more detailed information and consolidated financial statements and the notes to those statements included elsewhere in or incorporated by reference into this prospectus.
NABORS INDUSTRIES, INC.
We are a Delaware corporation and an indirect, wholly-owned subsidiary of Nabors. Prior to the corporate reorganization described below in the section entitled "Recent Developments," Nabors Delaware was a publicly-traded corporation. Nabors Delaware was incorporated in Delaware on May 3, 1978. Our principal executive offices are located at 515 West Greens Road, Suite 1200, Houston, Texas 77067 and our telephone number at that address is (281) 874-0035.
NABORS INDUSTRIES LTD.
Nabors became the publicly-traded parent company of the Nabors group of companies, effective June 24, 2002, pursuant to the corporate reorganization described below in the section entitled "Recent Developments." Nabors' common shares are traded on the American Stock Exchange under the symbol "NBR."
Nabors, together with its subsidiaries, is the largest land drilling contractor in the world, with almost 600 land drilling rigs as of August 31, 2002. Nabors conducts oil, gas and geothermal land drilling operations in the U.S. lower 48 states, Alaska and Canada, and elsewhere, primarily in South and Central America, the Middle East and Africa. Nabors is also one of the largest land well-servicing and workover contractors in the United States and in Canada. Nabors owns approximately 745 land well-servicing and workover rigs in the southwestern and western United States, and approximately 233 land well-servicing and workover rigs in certain other markets, including approximately 193 rigs in Canada. Nabors also is a leading provider of offshore platform workover and drilling rigs. Nabors markets 44 platform, 17 jackup and three barge rigs in the Gulf of Mexico and other markets. These rigs provide well-servicing, workover and drilling services.
To further supplement its primary business, Nabors offers a number of ancillary well-site services, including oilfield management, engineering, transportation, construction, maintenance, well logging and other support services, in selected domestic and international markets. Nabors' land transportation and hauling fleet includes approximately 240 rig and oilfield equipment hauling tractor-trailers and a number of cranes, loaders and light-duty vehicles. Nabors also maintains over 290 fluid hauling trucks, approximately 700 fluid storage tanks, eight salt water disposal wells and other auxiliary equipment used in domestic drilling and well-servicing operations. In addition, Nabors markets a fleet of 30 marine transportation and support vessels, primarily in the Gulf of Mexico, that provides transportation of drilling materials, supplies and crews for offshore rig operations and support for other offshore operations. And Nabors manufactures and leases or sells top drives for a broad range of drilling rig applications, rig instrumentation and data collection equipment, and rig reporting software.
Nabors was formed as a Bermuda exempted company on December 11, 2001. Nabors' principal executive offices are located at 2nd Fl. International Trading Centre, Warrens, St. Michael, Barbados. Its phone number at its principal executive offices is (246) 421-9471.
RECENT DEVELOPMENTS
RYAN ACQUISITION
On August 12, 2002, Nabors entered into an arrangement agreement to acquire
Ryan Energy Technologies Inc., a corporation incorporated under the laws of
Alberta, Canada (which we refer to as
Ryan in this prospectus). Nabors' acquisition of Ryan was completed on October 9, 2002, and became effective pursuant to a plan of arrangement approved by the securityholders of Ryan and the Court of Queen's Bench of Alberta. Nabors agreed to pay Cdn$1.85 per Ryan common share. The purchase price is payable, at the election of each individual Ryan shareholder, in cash, in exchangeable shares of Nabors Exchangeco (Canada) Inc., a Canadian corporation and indirect subsidiary of Nabors (which we refer to as Exchangeco in this prospectus), or in a combination of cash and such exchangeable shares. The exchangeable shares will be exchangeable for Nabors common shares on a 1:1 basis, plus the aggregate amount of dividends payable and unpaid, if any, on each such exchangeable share.
Under the terms of the arrangement each holder of Ryan common shares who so elected will receive 0.0362 of an exchangeable share for each Ryan common share. Each registered shareholder will receive only a whole number of exchangeable shares, and will be paid a cash amount by Exchangeco in lieu of any fractional entitlement. Each exchangeable share will have economic and voting rights effectively equivalent to one Nabors common share and will be exchangeable at any time for one Nabors common share. Pursuant to the arrangement, Exchangeco acquired all of the issued and outstanding common shares of Ryan in exchange for approximately Cdn$22.6 million in cash and 380,264 exchangeable shares of Exchangeco, of which 219,493 exchangeable shares were immediately exchanged for common shares of Nabors in accordance with the instructions of the holders of those shares.
As a result of the arrangement, all options to acquire Ryan common shares that have not previously been exercised or surrendered for termination were terminated and each holder of such options will be paid in cash, in respect of each such option, the greater of: (i) the positive difference, if any, between Cdn$1.85 and the exercise price of such option for each Ryan common share issuable on exercise of such option, and (ii) Cdn$0.10 per common share issuable on exercise of such option, subject to required withholdings.
CORPORATE REORGANIZATION
Effective June 24, 2002, Nabors became the successor to Nabors Delaware following a corporate reorganization, which effectively changed the jurisdiction of incorporation of Nabors from Delaware to Bermuda. The reorganization was accomplished through a merger of an indirect, newly formed Delaware subsidiary of Nabors with and into Nabors Delaware. Nabors Delaware was the surviving company in the merger. As a result of the merger, Nabors Delaware became a wholly-owned, indirect subsidiary of Nabors. Upon consummation of the merger, all outstanding shares of Nabors Delaware common stock automatically converted into the right to receive Nabors common shares, with the result that the shareholders of Nabors Delaware on the date of the merger became the shareholders of Nabors. Nabors and its subsidiaries continue to conduct the businesses previously conducted by Nabors Delaware and its subsidiaries. The reorganization has been accounted for as a reorganization of entities under common control and accordingly, it did not result in any changes to the consolidated amounts of assets, liabilities and stockholders' equity.
The Board of Nabors Delaware approved the expatriation transaction because international activities are an important part of Nabors' current business and they believe that international operations will continue to grow in the future. Expansion of Nabors' international business is an important part of its current business strategy and significant growth opportunities exist in the international marketplace. Nabors believes that reorganizing as a Bermuda company will allow Nabors to implement its business strategy more effectively. In addition, Nabors believes that the reorganization should increase its access to international capital markets and acquisition opportunities, increase its attractiveness to non-U.S. investors, improve global cash management, improve its global tax position and result in a more favorable corporate structure for expansion of its current business.
Several members of the United States Congress have introduced legislation that, if enacted, would have the effect of eliminating the tax benefits of the reorganization. In particular, on June 18, 2002, the Senate Finance Committee approved legislation introduced by Senator Charles Grassley, the Ranking Minority Member of the Senate Finance Committee, along with Senator Max Baucus, the Chairman of the Senate Finance Committee, (S. 2119) that, for United States federal tax purposes, would treat a
foreign corporation, such as Nabors, that undertakes a corporate expatriation
transaction, such as the reorganization, as a domestic corporation and, thus,
such foreign corporation would be subject to United States federal income tax.
S. 2119 is proposed to be effective for corporate expatriation transactions
completed after March 20, 2002. In addition, on July 11, 2002, Representative
Bill Thomas, Chairman of the House Committee on Ways and Means, introduced
legislation (H.R. 5095) that is substantially similar to S. 2119 with respect to
its treatment of corporations that undertake a corporate expatriation
transaction such as the reorganization, except that (i) it is proposed to apply
to transactions completed after March 20, 2002 and before March 21, 2005 and
(ii) it would not permit shareholders to qualify for tax-free treatment with
respect to a corporate expatriation transaction such as the reorganization. If
any of the proposed legislation, including S. 2119 or H.R. 5095, were enacted
with their proposed effective dates, the tax savings would not be realized from
the reorganization.
In addition, there has been significant, increased negative publicity and criticism of corporate expatriation transactions from public pension funds and other investors since the time Nabors completed its reorganization.
In light of such events and if and when any such legislation is enacted, Nabors will consider the effects of such legislation and will evaluate all strategic alternatives that may be necessary or prudent in response to such legislation.
CONCURRENT EXCHANGE OFFER BY AFFILIATED ENTITY
On August 22, 2002, Nabors Holdings 1, ULC, an indirect wholly owned subsidiary of Nabors, issued U.S.$225 million aggregate principal amount of 4.875% Senior Notes due 2009, fully and unconditionally guaranteed by Nabors and Nabors Delaware, to qualified institutional buyers under Rule 144A of the Securities Act. Concurrent with this exchange offer, Nabors Holdings 1, ULC is offering to exchange its 4.875% Senior Notes due 2009 for 4.875% Senior Notes due 2009 which have been registered under the Securities Act, and which are fully and unconditionally guaranteed by each of Nabors Delaware and Nabors.
THE NABORS INDUSTRIES, INC. EXCHANGE OFFER
Old Notes..................... 5.375% Senior Notes due 2012, which we issued
on August 22, 2002.
New Notes..................... 5.375% Senior Notes due 2012, the issuance of
which has been registered under the Securities
Act of 1933, as amended. The form and terms of
the new notes are identical in all material
respects to those of the old notes, except that
the transfer restrictions and registration
rights relating to the old notes do not apply
to the new notes.
Exchange Offer................ We are offering to issue up to $275,000,000
aggregate principal amount of the new notes in
exchange for a like principal amount of the old
notes to satisfy our obligations under the
registration rights agreement that we entered
into when the old notes were issued in
transactions in reliance upon the exemption
from registration provided by Rule 144A under
the Securities Act.
Expiration Date Tenders....... The exchange offer will expire at 5 p.m., New
York City time, on , 2002, unless
extended in our sole and absolute discretion.
By tendering your old notes, you represent to
us that:
- you are not our "affiliate," as defined in
Rule 405 under the Securities Act;
- any new notes you receive in the exchange
offer are being acquired by you in the
ordinary course of your business;
- at the time of commencement of the exchange
offer, neither you nor, to your knowledge,
anyone receiving new notes from you, has any
arrangement or understanding with any person
to participate in the distribution, as
defined in the Securities Act, of the new
notes in violation of the Securities Act;
- if you are not a participating broker-dealer,
you are not engaged in, and do not intend to
engage in, the distribution of the new notes,
as defined in the Securities Act; and
- if you are a broker-dealer, you will receive
the new notes for your own account in
exchange for old notes that were acquired by
you as a result of your market making or
other trading activities and that you will
deliver a prospectus in connection with any
resale of the new notes you receive. For
further information regarding resales of the
new notes by participating broker-dealers,
see the discussion under the caption "Plan of
Distribution" beginning on page 38.
Withdrawal; Non-Acceptance.... You may withdraw any old notes tendered in the
exchange offer at any time prior to 5 p.m., New
York City time, on , 2002, the 21st
business day following the date of this
prospectus. If we decide for any reason not to
accept any old notes tendered for exchange, the
old notes will be returned to the registered
holder at our expense promptly after the
expiration or termination of the exchange
offer. In the case of old notes tendered by
book-entry transfer into the exchange agents
account at The Depository Trust Company (which
|
we refer to as DTC in this prospectus), any withdrawn or unaccepted old notes will be
credited to the tendering holder's account at
DTC. For further information regarding the
withdrawal of tendered old notes, see "The
Exchange Offer -- Terms of the Exchange Offer;
Period for Tendering Old Notes" on page 18 and
the "The Exchange Offer -- Withdrawal Rights"
on page 21.
Conditions to the Exchange
Offer......................... We are not required to accept for exchange, or
to issue new notes in exchange for any old
notes and we may terminate or amend the
exchange offer if any of the following events
occur prior to our acceptance of the old notes:
- the exchange offer violates any applicable
law or applicable interpretation of the staff
of the SEC;
- an action or proceeding shall have been
instituted or threatened in any court or by
any governmental agency that might materially
impair our or Nabors' ability to proceed with
the exchange offer;
- we shall not have received all governmental
approvals that we deem necessary to
consummate the exchange offer; or
- there has been proposed, adopted, or enacted
any law, statute, rule or regulation that, in
our reasonable judgment, would materially
impair our ability to consummate the exchange
offer.
We may waive any of the above conditions in our
reasonable discretion. See the discussion below
under the caption "The Exchange
Offer -- Conditions to the Exchange Offer"
beginning on page 22 for more information
regarding the conditions to the exchange offer.
Procedures for Tendering Old
Notes......................... Unless you comply with the procedures described
below under the caption "The Exchange
Offer -- Guaranteed Delivery Procedures," (on
page 21) you must do one of the following on or
prior to the expiration or termination of the
exchange offer to participate in the exchange
offer:
- tender your old notes by sending the
certificates for your old notes, in proper
form for transfer, a properly completed and
duly executed letter of transmittal, with any
required signature guarantees, and all other
documents required by the letter of
transmittal, to Bank One, N.A., as exchange
agent, at the address listed below under the
caption "The Exchange Offer -- Exchange
Agent" beginning on page 23; or
- tender your old notes by using the book-entry
transfer procedures described below and
transmitting a properly completed and duly
executed letter of transmittal, with any
required signature guarantees, or an agent's
message instead of the letter of transmittal,
to the exchange agent. In order for a
book-entry transfer to constitute a valid
tender of your old notes in the exchange
offer, Bank One, N.A., as exchange agent,
must receive a confirmation of book-entry
transfer of your old notes into the exchange
agent's account at DTC prior to the
expiration or termination of the exchange
offer. For more information regarding the use
of book-entry transfer
5
|
procedures, including a description of the
required agent's message, see the discussion
below under the caption "The Exchange
Offer -- Book-Entry Transfers" beginning on
page 20.
Guaranteed Delivery
Procedures.................... If you are a registered holder of old notes and
wish to tender your old notes in the exchange
offer, but
- the old notes are not immediately available;
- time will not permit your old notes or other
required documents to reach the exchange
agent before the expiration or termination of
the exchange offer; or
- the procedure for book-entry transfer cannot
be completed prior to the expiration or
termination of the exchange offer,
then you may tender old notes by following the
procedures described below under the caption
"The Exchange Offer -- Guaranteed Delivery
Procedures" beginning on page 21.
Special Procedures for
Beneficial Owners.............
If you are a beneficial owner whose old notes
are registered in the name of the broker,
dealer, commercial bank, trust company or other
nominee and you wish to tender your old notes
in the exchange offer, you should promptly
contact the person in whose name the old notes
are registered and instruct that person to
tender on your behalf. If you wish to tender in
the exchange offer on your behalf, prior to
completing and executing the letter of
transmittal and delivering your old notes, you
must either make appropriate arrangements to
register ownership of the old notes in your
name, or obtain a properly completed bond power
from the person in whose name the old notes are
registered.
Material Tax Considerations... The exchange of the old notes for new notes in
the exchange offer will not be a taxable
transaction for United States federal income
tax purposes. See the discussion below under
the caption "Material Tax Considerations"
beginning on page 37 for more information
regarding the tax consequences to you of the
exchange offer.
Use of Proceeds............... We will not receive any cash proceeds from the
exchange offer.
Exchange Agent and Trustee.... Bank One, N.A. is the exchange agent for the
exchange offer. You can find the address and
telephone number of Bank One, N.A. below under
the caption "The Exchange Offer -- Exchange
Agent" beginning on page 23.
Resales....................... Based on interpretations by the staff of the
SEC, as set forth in no-action letters issued
to third parties, we believe that the new notes
issued in the exchange offer may be offered for
resale, resold or otherwise transferred by you
without compliance with the registration and
prospectus delivery requirements of the
Securities Act as long as:
- you are acquiring the new notes in the
ordinary course of your business;
6
|
- you are not participating, do not intend to
participate and have no arrangement or
understanding with any person to participate,
in a distribution of the new notes; and
- you are not our affiliate.
If you are an affiliate of ours, are engaged in
or intend to engage in or have any arrangement
or understanding with any person to participate
in the distribution of the new notes:
- you cannot rely on the applicable
interpretations of the staff of the SEC; and
- you must comply with the registration
requirements of the Securities Act in
connection with any resale transaction.
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 Securities 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
Securities Act in connection with any resale of
the new notes.
Furthermore, any broker-dealer that acquired
any of its old notes directly from us:
- may not rely on the applicable interpretation
of the staff of the SEC's position contained
in Exxon Capital Holdings Corp., SEC
no-action letter (April 13, 1988), Morgan,
Stanley & Co. Inc., SEC no-action letter
(June 5, 1991) and Shearman & Sterling, SEC
no-action letter (July 2, 1983); and
- must also be named as a selling noteholder in
connection with the registration and
prospectus delivery requirements of the
Securities Act relating to any resale
transaction.
Registration Rights
Agreement..................... When we issued the old notes in August 2002, we
entered into a registration rights agreement
with the initial purchaser of the old notes.
Under the terms of the registration rights
agreement, we agreed to use our reasonable best
efforts to file with the SEC and cause to
become effective, a registration statement
relating to an offer to exchange the old notes
for the new notes.
If we do not complete the exchange offer by
December 31, 2002, the interest rate borne by
the old notes will be increased 0.25% per annum
until the exchange offer is completed, or until
the old notes are freely transferable under
Rule 144 of the Securities Act. In addition, if
the exchange offer registration statement
ceases to be effective or usable in connection
with resales of the new notes during periods
specified in the registration rights agreement,
the interest rate borne by the old notes and
the new notes will be increased 0.25% per annum
until the registration defects are cured.
7
|
Under some circumstances set forth in the
registration rights agreement, holders of old
notes, including holders who are not permitted
to participate in the exchange offer or who may
not freely sell new notes received in the
exchange offer, may require us to file and
cause to become effective, a shelf registration
statement covering resales of the old notes by
these holders. If such shelf registration
statement ceases to be effective or usable in
connection with resales of the new notes during
periods specified in the registration rights
agreement, the interest rate borne by the old
notes and the new notes will be increased 0.25%
per annum until the registration defects are
cured.
A copy of the registration rights agreement is
included as an exhibit to the registration
statement of which this prospectus is a part.
Broker-Dealers................ 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 new
notes. The letter of transmittal states that by
so acknowledging and delivering a prospectus, a
broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of
the Securities Act. 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 old notes which were received by such
broker-dealer as a result of market making
activities or other trading activities. We have
agreed that for a period of up to 180 days
after the Expiration Date (as defined in this
prospectus) we will make this prospectus
available to any broker-dealer for use in
connection with any such resale. See "Plan of
Distribution" beginning on page 38 for more
information.
|
CONSEQUENCES OF NOT EXCHANGING YOUR OLD NOTES
If you do not exchange your old notes in the exchange offer, you will continue to be subject to the restrictions on transfer described in the legend on the certificate for your old notes. In general, you may offer or sell your old notes only:
- if they are registered under the Securities Act and applicable state securities laws;
- if they are offered or sold under an exemption from registration under the Securities Act and applicable state securities laws; or
- if they are offered or sold in a transaction not subject to the Securities Act and applicable state securities laws.
We do not currently intend to register the old notes under the Securities Act. Under some circumstances, however, holders of the old notes, including holders who are not permitted to participate in the exchange offer or who may not freely sell new notes received in the exchange offer, may require us to file, and to cause to become effective, a shelf registration statement covering resales of the old notes by these holders. For more information regarding the consequences of not tendering your old notes and our obligations to file a shelf registration statement, see "The Exchange Offer -- Consequences of Exchanging or Failing to Exchange Old Notes" beginning on page 23 and "Summary Information -- Registration Rights Agreement" beginning on page 7.
SUMMARY DESCRIPTION OF THE NEW NOTES
Issuer........................ Nabors Industries, Inc.
Guarantor..................... Nabors Industries Ltd.
Securities.................... $275,000,000 aggregate principal amount of
5.375% Senior Notes due 2012.
Maturity...................... August 15, 2012.
Interest Payment Dates........ February 15 and August 15 of each year,
commencing on February 15, 2003.
Interest Rate................. 5.375% per annum from August 22, 2002.
Guarantee..................... Nabors will fully and unconditionally guarantee
the due and punctual payment of the principal
of, premium, if any, interest on the new notes
and any other obligations of ours under the new
notes when and as they become due and payable,
whether at maturity, upon redemption, by
acceleration or otherwise if we are unable to
satisfy these obligations. The guarantee
provides that, in the event of a default on the
new notes, the holders of the new notes may
institute legal proceedings directly against
Nabors to enforce the guarantee without first
proceeding against us. See "Description of the
New Notes -- Guarantee" beginning on page 26.
Ranking....................... The new notes will:
- be unsecured,
- be effectively junior in right of payment to
any of our future secured debt,
- rank equally in right of payment with any of
our existing and future unsubordinated debt,
and
- be senior in right of payment to any of our
existing and future senior subordinated or
subordinated debt.
Nabors' guarantee of our obligations under the
new notes will be a direct, unsecured and
unsubordinated obligation of the guarantor and
will have the same ranking with respect to
indebtedness of Nabors as the new notes will
have with respect to our indebtedness. See
"Description of the New Notes -- Guarantee"
beginning on page 26.
Optional Redemption........... We may, at our option, redeem some or all of
the new notes, in whole or in part, at any
time, at "make-whole" prices described in this
prospectus, plus accrued and unpaid interest to
the redemption date. See "Description of the
New Notes -- Optional Redemption" beginning on
page 26.
Use of Proceeds............... We will not receive any cash proceeds from the
exchange offer. See "Use of Proceeds" beginning
on page 16.
Covenants..................... We will issue the new notes under the
indenture, dated August 22, 2002, among us, as
issuer, Nabors, as guarantor, and Bank One,
N.A., as trustee. The indenture limits the
ability of Nabors and its subsidiaries to incur
liens and to enter into sale and lease-back
transactions. In addition, the indenture limits
9
|
both our and Nabors' ability to enter into
mergers, consolidations, or transfers of all or
substantially all of our or its assets unless
the successor company assumes our or Nabors'
obligations under the indenture. These
covenants are subject to a number of important
qualifications and limitations. See
"Description of the New Notes -- Covenants"
beginning on page 27.
No Prior Market............... The new notes generally will be freely
transferable, but the new notes are a new issue
of securities and there is currently no
established trading market for the new notes.
Accordingly, there can be no assurance as to
the development or liquidity of any market for
the new notes. Lehman Brothers Inc., the
initial purchaser of the old notes, has advised
us that it currently intends to make a market
in the new notes. However, it is not obligated
to do so, and any market making with respect to
the new notes may be discontinued without
notice. We do not intend to apply for a listing
of the new notes on any securities exchange or
an automated dealer quotation system.
|
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated in this prospectus by reference contain forward-looking statements. We typically use words such as "anticipate," "believe," "plan," "expect," "intend," "estimate," "project," "will," "should," "could," "may," "predict" and similar expressions to identify forward-looking statements. You are cautioned that actual results could differ materially from those anticipated in forward-looking statements. Any forward-looking statements, including statements regarding the intent, belief or current expectations of us or our management, are not guarantees of future performance and involve risks, uncertainties and assumptions about us and the industry in which we and Nabors operate, including, among other things:
- fluctuations in worldwide prices and demand for oil and natural gas;
- fluctuations to levels of oil and natural gas exploration and development activities;
- fluctuations in the demand for contract drilling and workover services;
- the existence of competitors, technological changes and developments in the oilfield services industry;
- the existence of operating risks inherent in the oilfield services industry;
- the existence of regulatory and legislative uncertainties;
- outcomes of pending and future litigation;
- the possibility of political instability, war or acts of terrorism in any of the countries in which we, Nabors or Nabors' subsidiaries do or will do business;
- changes in capital needs;
- an inability to execute our business strategy; and
- general economic conditions.
All forward-looking statements in this prospectus are based on information available to us on the date of this prospectus. We do not intend to update or revise any forward-looking statements that we may make in this prospectus or other documents, reports, filings or press releases, whether as a result of new information, future events or otherwise.
RISK FACTORS
You should consider carefully the following factors, as well as the other information contained in or incorporated by reference into this prospectus, before tendering your old notes in the exchange offer. The risks and uncertainties described below and incorporated by reference are not the only risks we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may impair our future business operations.
HOLDERS WHO FAIL TO EXCHANGE THEIR OLD NOTES WILL CONTINUE TO BE SUBJECT TO RESTRICTIONS ON TRANSFER.
If you do not exchange your old notes for new notes in the exchange offer, you will continue to be subject to the restrictions on transfer of your old notes described in the legend on the certificates for your old notes. The restrictions on transfer of your old notes arise because we issued the old notes under exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, you may only offer or sell the old notes if they are registered under the Securities Act and applicable state securities laws, or are offered and sold under an exemption from these requirements. We do not plan to register the old notes under the Securities Act. For further information regarding the consequences of tendering your old notes in the exchange offer, see the discussions below under the captions "The Exchange Offer -- Consequences of Exchanging or Failing to Exchange Old Notes" beginning on page 23 and "Material Tax Considerations" beginning on page 37.
YOU MUST COMPLY WITH THE EXCHANGE OFFER PROCEDURES IN ORDER TO RECEIVE NEW, FREELY TRADABLE NOTES.
Delivery of new notes in exchange for old notes tendered and accepted for exchange pursuant to the exchange offer will be made only after timely receipt by the exchange agent of the following:
- certificates for old notes or a book-entry confirmation of a book-entry transfer of old notes into the exchange agent's account at DTC, New York, New York as a depository, including an agent's message (as defined below) if the tendering holder does not deliver a letter of transmittal;
- a completed and signed letter of transmittal (or facsimile thereof), with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message in lieu of the letter of transmittal; and
- any other documents required by the letter of transmittal.
Therefore, holders of old notes who would like to tender old notes in exchange for new notes should be sure to allow enough time for the old notes to be delivered on time. We are not required to notify you of defects or irregularities in tenders of old notes for exchange. Old notes that are not tendered or that are tendered but we do not accept for exchange will, following consummation of the exchange offer, continue to be subject to the existing transfer restrictions under the Securities Act and, upon consummation of the exchange offer, certain registration and other rights under the registration rights agreement will terminate. See "The Exchange Offer -- Procedures for Tendering Old Notes" beginning on page 18 and "The Exchange Offer -- Consequences of Exchanging or Failing to Exchange Old Notes" beginning on page 23.
As used in this prospectus, the term "agent's message" means a message, transmitted by DTC to and received by the exchange agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the tendering participant stating that such participant has received and agrees to be bound by the letter of transmittal and that we may enforce such letter of transmittal against such participant.
SOME HOLDERS WHO EXCHANGE THEIR OLD NOTES MAY BE DEEMED TO BE UNDERWRITERS AND THESE HOLDERS WILL BE REQUIRED TO COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS IN CONNECTION WITH ANY RESALE TRANSACTION.
If you exchange your old notes in the exchange offer for the purpose of participating in a distribution of the new notes, you may be deemed to have received restricted securities and, if so, will be required to
comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
ALTHOUGH THE NEW NOTES ARE REFERRED TO AS "SENIOR NOTES," YOUR RIGHT TO RECEIVE PAYMENT ON THE NEW NOTES AND THE GUARANTEES IS UNSECURED AND WILL BE EFFECTIVELY SUBORDINATED TO ANY EXISTING AND FUTURE SECURED DEBT TO THE EXTENT OF THE VALUE OF THE COLLATERAL THEREFORE.
The new notes are general senior unsecured obligations and therefore will be effectively subordinated in right of payment to our existing or future secured indebtedness and Nabors' guarantee is effectively subordinated in right of payment to the claims of existing and future secured creditors of Nabors, in each case, to the extent of the collateral therefor. If we default on the new notes, become bankrupt, liquidate or reorganize, any secured creditors could use their collateral to satisfy their secured indebtedness before you would receive any payment on the new notes. If the value of such collateral is not sufficient to pay any secured indebtedness in full, our secured creditors would share the value of our other assets, if any, with you and the holders of other claims against us which rank equally with the new notes.
The guarantee of the new notes will have a similar ranking as they relate to secured indebtedness of Nabors as the new notes do with respect to our secured indebtedness.
THERE IS NO ESTABLISHED TRADING MARKET FOR THE NEW NOTES AND YOU MAY FIND IT DIFFICULT TO SELL YOUR NEW NOTES.
There is currently no established trading market for the new notes. We have no plans to list the new notes on any securities exchange or an automated dealer quotation system. Lehman Brothers Inc. advised us that it presently intends, but it is not obligated, to make a market in the new notes. Any market making activity, if initiated, may be discontinued at any time, for any reason, without notice. If Lehman Brothers Inc. ceases to act as a market maker for the new notes for any reason, we cannot assure you that another firm or person will make a market in the new notes. The liquidity of any market for the new notes will depend upon the number of holders of the new notes, our results of operations and financial condition, the market for similar securities, the interest of securities dealers in making a market in the new notes and other factors. An active or liquid trading market may not develop for the new notes.
NABORS AND NABORS DELAWARE, AS HOLDING COMPANIES, DEPEND ON THEIR RESPECTIVE SUBSIDIARIES TO MEET THEIR FINANCIAL OBLIGATIONS.
Nabors Delaware and Nabors are each holding companies and depend on the business of and distributions from their subsidiaries to satisfy their obligations under the notes and the guarantee. Nabors Delaware and Nabors are each holding companies with no significant assets other than the stock of their subsidiaries and intercompany loans to their subsidiaries. In order to satisfy their obligations under the notes and the guarantee, respectively, Nabors Delaware and Nabors each rely exclusively on repayments of interest and principal on intercompany loans made by Nabors Delaware and Nabors to their operating subsidiaries and income from dividends and other cash flows from such subsidiaries. There can be no assurance that these operating subsidiaries will generate sufficient net income to pay upstream dividends or cash flows to make payments of interest and principal to Nabors Delaware and Nabors in respect of these intercompany loans. In addition, from time to time, these operating subsidiaries may enter into financing arrangements which may contractually restrict or prohibit such upstream payments and interest and principal to Nabors Delaware or Nabors.
NABORS' SIGNIFICANT LEVEL OF DEBT COULD ADVERSELY AFFECT ITS FINANCIAL CONDITION AND PREVENT IT FROM FULFILLING ITS OBLIGATIONS UNDER THE GUARANTEE.
As of August 31, 2002, Nabors' consolidated total indebtedness was approximately $2.086 billion, its funded debt to capital ratio was 49.2%, and its net funded debt to capital ratio was 26.6%, after giving effect to the exchange offer contemplated by this prospectus and the concurrent exchange offer (which we refer to as the concurrent exchange offer in this prospectus) in which Nabors Holdings 1, ULC, an
indirect, wholly-owned subsidiary of Nabors, is offering to exchange its 4.875% senior notes due 2009 for 4.875% senior notes due 2009 which have been registered under the Securities Act, and which are fully and unconditionally guaranteed by each of Nabors Delaware and Nabors.
Funded debt to capital ratio is calculated by dividing funded debt by funded debt plus capital. Funded debt is defined as the sum of (1) short-term borrowings, (2) current portion of long-term obligations and (3) long-term obligations. Capital is defined as stockholders' equity. The net funded debt to capital ratio nets cash and cash equivalents, short-term marketable securities and long-term marketable securities against funded debt. This ratio is calculated by dividing net funded debt by net funded debt plus capital. Both of these ratios are a method for calculating the amount of leverage a company has in relation to its capital. Nabors' level of indebtedness could adversely affect its financial condition and prevent it from fulfilling its obligations under its guarantee.
Nabors and its subsidiaries may still be able to incur substantially more debt. The terms of the indenture governing the new notes and the agreement governing Nabors' other indebtedness (including the indenture governing the notes offered by Nabors Holdings 1, ULC in the concurrent exchange offer) permit additional borrowings and any such borrowings may be senior in right of payment to the new notes and the related guarantee. Nabors' incurrence of additional debt could further exacerbate the risks described in this prospectus.
NABORS' GUARANTEE COULD BE VOIDED OR SUBORDINATED BY FEDERAL BANKRUPTCY LAW OR COMPARABLE FOREIGN AND STATE LAW PROVISIONS.
Our obligations under the new notes are guaranteed by Nabors. Under the federal bankruptcy law or comparable provisions of foreign and state fraudulent transfer laws, Nabors' guarantee could be voided, or claims in respect of such guarantee could be subordinated to all other debts of Nabors if, among other things, Nabors, at the time it incurred the indebtedness evidenced by its guarantee, received less than reasonably equivalent value or fair consideration for the incurrence of such guarantee and:
- was insolvent or rendered insolvent by reason of such incurrence;
- was engaged in a business or transaction for which the guarantor's remaining assets constituted unreasonably small capital; or
- intended to incur, or believed that it would incur, debts beyond its ability to pay such debts as they mature.
In addition, any payment by Nabors pursuant to its guarantee could be voided and required to be returned to Nabors or to a fund for the benefit of the creditors of Nabors.
The measure of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a guarantor would be considered insolvent if:
- the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all of its assets;
- the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or
- it could not pay its debts as they become due.
We cannot be sure as to the standards that a court would use to determine whether or not Nabors were solvent at the relevant time, or, regardless of the standard that the court uses, that the issuance of the guarantee of the new notes would not be voided or the guarantee of the new notes would not be subordinated to Nabors' other debt.
If the guarantee were legally challenged, such guarantee could also be subject to the claim that, since the guarantee was incurred for our benefit, and only indirectly for the benefit of Nabors, the obligations of Nabors were incurred for less than fair consideration.
A court could thus void the obligations under the guarantee or subordinate the guarantee to Nabors' other debt or take other action detrimental to holders of the new notes.
USE OF PROCEEDS
We will not receive any cash proceeds from the exchange offer. Any old notes that are properly tendered and exchanged pursuant to the exchange offer will be retired and cancelled.
RATIO OF EARNINGS TO FIXED CHARGES
Nabors Delaware, prior to June 24, 2002, the effective date of the reorganization, and Nabors, after June 24, 2002, have calculated their ratio of earnings to fixed charges by dividing earnings by fixed charges. For purposes of computing the ratio of earnings to fixed charges, earnings consist of pretax income from continuing operations less undistributed earnings from unconsolidated affiliates (net of dividends) plus amortization of capitalized interest and fixed charges (excluding capitalized interest). Fixed charges consist of interest incurred (whether expensed or capitalized), amortization of debt expense, and that portion of rental expense on operating leases deemed to be the equivalent of interest.
THREE
SIX MONTHS FISCAL YEAR ENDED FISCAL YEAR MONTHS
ENDED ---------------------------------------------------------- ENDED ENDED
JUNE 30, DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, SEPTEMBER 30, DECEMBER 31,
2002 2001 2000 1999 1998 1997 1997
---------- ------------ ------------ ------------ ------------- ------------- ------------
3.43x 9.11x 6.21x 2.48x 11.60x 10.97x 15.18x
|
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The selected historical consolidated financial data of Nabors in the table below were derived from Nabors' audited consolidated financial statements as of December 31, 2001 and 2000 and for the three years ended December 31, 2001, which appears in Nabors' Current Report on Form 8-K dated as of October 10, 2002, and from Nabors Delaware's Annual Reports on Form 10-K as of and for the years ended December 31, 1999, 1998 and September 30, 1997, respectively, and a transition period for the three months ended December 31, 1997 and Nabors' unaudited interim condensed consolidated financial statements as of and for the six months ended June 30, 2002 and 2001. Nabors changed its fiscal year end from September 30 to December 31, effective for the fiscal year beginning January 1, 1998. A three-month transition period from October 1, 1997 through December 31, 1997 preceded the start of Nabors' new fiscal year. Nabors has recast its financial data to conform to the presentation of the twelve months ended December 31, 1997 by adjusting its audited results for the year ended September 30, 1997 to exclude the unaudited results for the quarter ended December 31, 1996 and to include the audited results for the quarter ended December 31, 1997. In Nabors management's opinion, the unaudited interim condensed consolidated financial statements have been prepared on the same basis as the audited consolidated financial statements and include all adjustments, consisting only of normal recurring adjustments, necessary to present fairly the results of operations and financial position of Nabors for the periods presented. This data should be read in conjunction with the audited and unaudited interim consolidated financial statements of Nabors, including the notes to the financial statements, incorporated by reference into this prospectus.
As previously reported in Nabors Delaware's Form 10-K for the year ended December 31, 2001, as reclassified in Nabors' Form 8-K dated as of October 10, 2002, and the Forms 10-Q for the first and second quarters ended March 31, 2002 and June 30, 2002, as amended by Form 10-Q/A dated as of October 10, 2002, respectively, Nabors adopted the following new accounting pronouncements during the first six months of 2002. Effective April 1, 2002, Nabors adopted Statement of Financial Accounting Standards (SFAS) No. 145, "Rescission of FASB Statements No. 4, 44, and 64, Amendment of FASB Statement No. 13, and Technical Corrections". As a result, Nabors no longer classifies gains and losses from extinguishment of debt that are usual and frequent as extraordinary items and, as required by SFAS No. 145, Nabors reclassified to other income any similar debt extinguishment items that had been reported as extraordinary items in comparative prior periods. Additionally, Nabors adopted Emerging Issues Task Force (EITF) No. 01-14, "Income Statement Characterization of Reimbursements Received for Out-of-Pocket Expenses Incurred", in the second quarter of 2002. Previously, Nabors recognized reimbursements received as a reduction to the related direct costs. EITF 01-14 requires that reimbursements received from its customers be recorded in operating revenues and "out-of-pocket" expenses be recorded in direct costs. The transition provisions of these accounting pronouncements require comparative prior periods to reflect reclassifications consistent with the pronouncements not later than the time of its next audited financial statements. Nabors has elected to reflect these reclassifications in its Form 8-K dated as of October 10, 2002 for its consolidated financial statements for each of the three years in the period ended December 31, 2001.
In addition, as of January 1, 2002, Nabors adopted SFAS No. 142, "Goodwill and Other Intangible Assets", and therefore no longer amortizes goodwill. The effect of eliminating goodwill amortization is reflected for the six months ended June 30, 2002 but for no other period presented in this prospectus. The effect of eliminating goodwill amortization on the three years in the period ended December 31, 2001 is disclosed in Note 1 of Nabors' Current Report on Form 8-K dated as of October 10, 2002, as required by SFAS No. 142.
NABORS INDUSTRIES LTD.
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
SIX MONTHS ENDED TWELVE MONTHS THREE
JUNE 30, YEAR ENDED DECEMBER 31, ENDED MONTHS ENDED
----------------------- ------------------------------------------------- DECEMBER 31, DECEMBER 31,
2002 2001 2001 2000 1999 1998 1997 1997
(IN THOUSANDS, EXCEPT ---------- ---------- ---------- ---------- ---------- ---------- ------------- ------------
PER SHARE AMOUNTS) (UNAUDITED) (UNAUDITED)
Operating revenues... $ 721,959 $1,132,404 $2,191,183 $1,377,453 $ 666,429 $ 968,462 $1,114,758 $302,831
Net income........... 67,362 187,153 357,450 137,356 27,704 124,988 136,020 41,327
Net income per
diluted share...... $ .45 $ 1.14 $ 2.24 $ .90 $ .23 $ 1.16 $ 1.24 $ .37
Dividends per common
share.............. -- -- -- -- -- -- -- --
Total assets......... 4,432,778 4,180,581 4,151,915 3,136,868 2,398,003 1,465,907 1,281,306
Long-term
obligations........ 1,099,096 1,707,390 1,567,616 854,777 482,600 217,034 226,299
Stockholders'
equity............. $2,163,843 $1,864,912 $1,857,866 $1,806,468 $1,470,074 $ 867,469 $ 767,340
YEAR ENDED
SEPTEMBER 30,
1997
(IN THOUSANDS, EXCEPT -------------
PER SHARE AMOUNTS)
Operating revenues... $1,028,853
Net income........... 114,808
Net income per
diluted share...... $ 1.08
Dividends per common
share.............. --
Total assets......... 1,234,232
Long-term
obligations........ 229,507
Stockholders'
equity............. $ 727,843
|
THE EXCHANGE OFFER
TERMS OF THE EXCHANGE OFFER; PERIOD FOR TENDERING OLD NOTES
Subject to terms and conditions, we will accept for exchange old notes which are properly tendered on or prior to the Expiration Date and not withdrawn as permitted below. As used herein, the term "Expiration Date" means the later of 5 p.m., New York City time, , 2002, the 21st business day following the date of this prospectus, and the latest time and date by which we, in our sole and absolute discretion, extend the exchange offer.
As of the date of this prospectus, $275 million principal amount of old notes are outstanding. This prospectus, together with the letter of transmittal, is being sent to all holders of old notes known to us. Our obligation to accept old notes for exchange pursuant to the exchange offer is subject to certain obligations as set forth under "-- Conditions to the Exchange Offer."
We expressly reserve the right, at any time, to extend the period of time during which the exchange offer is open, and delay acceptance for exchange of any old notes, by giving oral or written notice of such extension to the holders thereof as described below. During any such extension, all old notes previously tendered will remain subject to the exchange offer and may be accepted for exchange by us. Any old notes not accepted for exchange for any reason will be returned without expense to the tendering holder as promptly as practicable after the expiration or termination of the exchange offer.
Old notes tendered in the exchange offer must be in denominations of principal amount of $1,000 and any integral multiple thereof.
We expressly reserve the right to amend or terminate the exchange offer, and not to accept for exchange any old notes, upon the occurrence of any of the conditions of the exchange offer specified under "-- Conditions to the Exchange Offer." We will give oral or written notice of any extension, amendment, non-acceptance or termination to the holders of the old notes as promptly as practicable. Such notice, in the case of any extension, will be issued by means of a press release or other public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date.
PROCEDURES FOR TENDERING OLD NOTES
The tender to us of old notes by you as set forth below and our acceptance of the old notes will constitute a binding agreement between us and you upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal. Except as set forth below, to tender old notes for exchange pursuant to the exchange offer, you must transmit a properly completed and duly executed letter of transmittal, including all other documents required by such letter of transmittal or, in the case of a book-entry transfer, an agent's message in lieu of such letter of transmittal, to Bank One, N.A., as exchange agent, at the address set forth below under "-- Exchange Agent" on or prior to the Expiration Date. In addition, either:
- certificates for such old notes must be received by the exchange agent along with the letter of transmittal, or
- a timely confirmation of a book-entry transfer (a "book-entry confirmation") of such old notes, if such procedure is available, into the exchange agent's account at DTC pursuant to the procedure for book-entry transfer described beginning on page 20 must be received by the exchange agent, prior to the Expiration Date, with the letter of transmittal or an agent's message in lieu of such letter of transmittal, or the holder must comply with the guaranteed delivery procedures described below.
As used in this prospectus, the term "agent's message" means a message, transmitted by DTC to and received by the exchange agent and forming a part of a book-entry confirmation, which states that DTC has received an express acknowledgment from the tendering participant stating that such participant has
received and agrees to be bound by the letter of transmittal and that we may enforce such letter of transmittal against such participant.
The method of delivery of old notes, letters of transmittal and all other required documents is at your election and risk. If such delivery is by mail, it is recommended that you use registered mail, properly insured, with return receipt requested. In all cases, you should allow sufficient time to assure timely delivery. No letter of transmittal or old notes should be sent to us.
Signatures on a letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed unless the old notes surrendered for exchange are tendered:
- by a holder of the old notes who has not completed the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" on the letter of transmittal, or
- for the account of an Eligible Institution (as defined below).
In the event that signatures on a letter of transmittal or a notice of withdrawal are required to be guaranteed, such guarantees must be by a firm which is a member of the Securities Transfer Agent Medallion Program, the Stock Exchanges Medallion Program or the New York Stock Exchange Medallion Program (we refer to each such entity as an Eligible Institution in this prospectus). If old notes are registered in the name of a person other than the signer of the letter of transmittal, the old notes surrendered for exchange must be endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange, in satisfactory form as we or the exchange agent determine in our sole discretion, duly executed by the registered holders with the signature thereon guaranteed by an Eligible Institution.
We or the exchange agent in our sole discretion will make a final and binding determination on all questions as to the validity, form, eligibility (including time of receipt) and acceptance of old notes tendered for exchange. We reserve the absolute right to reject any and all tenders of any particular old note not properly tendered or to not accept any particular old note which acceptance might, in our judgment or our counsel's, be unlawful. We also reserve the absolute right to waive any defects or irregularities or conditions of the exchange offer as to any particular old note either before or after the Expiration Date (including the right to waive the ineligibility of any holder who seeks to tender old notes in the exchange offer). Our or the exchange agent's interpretation of the terms and conditions of the exchange offer as to any particular old note either before or after the Expiration Date (including the letter of transmittal and the instructions thereto) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of old notes for exchange must be cured within a reasonable period of time, as we determine. We are not, nor is the exchange agent or any other person, under any duty to notify you of any defect or irregularity with respect to your tender of old notes for exchange, and no one will be liable for failing to provide such notification.
If the letter of transmittal is signed by a person or persons other than the registered holder or holders of old notes, such old notes must be endorsed or accompanied by powers of attorney signed exactly as the name(s) of the registered holder(s) that appear on the old notes.
If the letter of transmittal or any old notes or powers of attorneys are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing. Unless waived by us or the exchange agent, proper evidence satisfactory to us of their authority to so act must be submitted with the letter of transmittal.
By tendering old notes, you represent to us that, among other things:
- the new notes acquired pursuant to the exchange offer are being obtained in the ordinary course of business of the person receiving such new notes, whether or not such person is the holder; and
- neither the holder nor such other person has any arrangement or understanding with any person, to participate in the distribution of the new notes.
In the case of a holder that is not a broker-dealer, that holder, by tendering, will also represent to us that the holder is not engaged in or does not intend to engage in a distribution of the new notes.
If you are our "affiliate," as defined under Rule 405 under the Securities Act, and engage in or intend to engage in or have an arrangement or understanding with any person to participate in a distribution of such new notes to be acquired pursuant to the exchange offer, you or any such other person:
- could not rely on the applicable interpretations of the staff of the SEC; and
- must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
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 deliver a prospectus in connection with any resale of such new notes. See "Plan of Distribution" beginning on page 38. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
Upon satisfaction or waiver of all of the conditions to the exchange offer, we will accept, promptly after the Expiration Date, all old notes properly tendered and will issue the new notes promptly after acceptance of the old notes. See "-- Conditions to the Exchange Offer." For purposes of the exchange offer, we will be deemed to have accepted properly tendered old notes for exchange if and when we give oral (confirmed in writing) or written notice to the exchange agent.
The holder of each old note accepted for exchange will receive a new note in the amount equal to the surrendered old note. Accordingly, registered holders of new notes on the relevant record date for the first interest payment date following the consummation of the exchange offer will receive interest accruing from the most recent date to which interest has been paid on the old notes. Holders of new notes will not receive any payment in respect of accrued interest on old notes otherwise payable on any interest payment date, the record date for which occurs on or after the consummation of the exchange offer.
In all cases, issuance of new notes for old notes that are accepted for exchange will be made only after timely receipt by the exchange agent of:
- certificates for such old notes or a timely book-entry confirmation of such old notes into the exchange agent's account at DTC,
- a properly completed and duly executed letter of transmittal or an agent's message in lieu thereof, and
- all other required documents.
If any tendered old notes are not accepted for any reason set forth in the terms and conditions of the exchange offer or if old notes are submitted for a greater principal amount than the holder desires to exchange, such unaccepted or non-exchanged old notes will be returned without expense to the tendering holder (or, in the case of old notes tendered by book-entry transfer into the exchange agent's account at DTC pursuant to the book-entry procedures described below, such non-exchanged old notes will be credited to an account maintained with DTC) as promptly as practicable after the expiration or termination of the exchange offer.
BOOK-ENTRY TRANSFERS
For purposes of the exchange offer, the exchange agent will request that an account be established with respect to the old notes at DTC within two business days after the date of this prospectus, unless the exchange agent already has established an account with DTC suitable for the exchange offer. Any financial institution that is a participant in DTC may make book-entry delivery of old notes by causing DTC to
transfer such old notes into the exchange agent's account at DTC in accordance with DTC's procedures for transfer. Although delivery of old notes may be effected through book-entry transfer at DTC, the letter of transmittal or facsimile thereof or an agent's message in lieu thereof, with any required signature guarantees and any other required documents, must, in any case, be transmitted to and received by the exchange agent at the address set forth under "-- Exchange Agent" on or prior to the Expiration Date or the guaranteed delivery procedures described below must be complied with.
GUARANTEED DELIVERY PROCEDURES
If you desire to tender your old notes and your old notes are not immediately available, or time will not permit your old notes or other required documents to reach the exchange agent before the Expiration Date, a tender may be effected if:
- prior to the Expiration Date, the exchange agent received from such Eligible Institution a notice of guaranteed delivery, substantially in the form we provide (by telegram, telex, facsimile transmission, mail or hand delivery), setting forth your name and address, the amount of old notes tendered, stating that the tender is being made thereby and guaranteeing that within three American Stock Exchange (which we refer to as the AMEX in this prospectus) trading days after the date of execution of the notice of guaranteed delivery, the certificates for all physically tendered old notes, in proper form for transfer, or a book-entry confirmation, as the case may be, together with a properly completed and duly executed appropriate letter of transmittal or facsimile thereof or agent's message in lieu thereof, with any required signature guarantees and any other documents required by the letter of transmittal will be deposited by such Eligible Institution with the exchange agent, and
- the certificates for all physically tendered old notes, in proper form for transfer, or a book-entry confirmation, as the case may be, together with a properly completed and duly executed appropriate letter of transmittal or facsimile thereof or agent's message in lieu thereof, with any required signature guarantees and all other documents required by the letter of transmittal, are received by the exchange agent within three AMEX trading days after the date of execution of the notice of guaranteed delivery.
WITHDRAWAL RIGHTS
You may withdraw your tender of old notes at any time prior to the Expiration Date. To be effective, a written notice of withdrawal must be received by the exchange agent at one of the addresses set forth under "-- Exchange Agent." This notice must specify:
- the name of the person having tendered the old notes to be withdrawn,
- the old notes to be withdrawn (including the principal amount of such old notes), and
- where certificates for old notes have been transmitted, the name in which such old notes are registered, if different from that of the withdrawing holder.
If certificates for old notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of such certificates, the withdrawing holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an Eligible Institution, unless such holder is an Eligible Institution. If old notes have been tendered pursuant to the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn old notes and otherwise comply with the procedures of DTC.
We or the exchange agent will make a final and binding determination on all questions as to the validity, form and eligibility (including time of receipt) of such notices. Any old notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any old notes tendered for exchange but not exchanged for any reason will be returned to the holder without cost
to such holder (or, in the case of old notes tendered by book-entry transfer into the exchange agent's account at DTC pursuant to the book-entry transfer procedures described above, such old notes will be credited to an account maintained with DTC for the old notes) as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn old notes may be re-tendered by following one of the procedures described under "-- Procedures for Tendering Old Notes" above at any time on or prior to the Expiration Date.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provision of the exchange offer, we are not required to accept for exchange, or to issue new notes in exchange for, any old notes and may terminate or amend the exchange offer, if any of the following events occur prior to acceptance of such old notes:
- the exchange offer violates any applicable law or applicable interpretation of the staff of the SEC;
- an action or proceeding shall have been instituted or threatened in any court or by any governmental agency that might materially impair our or Nabors' ability to proceed with the exchange offer;
- we shall not have received all governmental approvals that we deem necessary to consummate the exchange offer; or
- there has been proposed, adopted, or enacted any law, statute, rule or regulation that, in our reasonable judgment, would materially impair our ability to consummate the exchange offer.
The conditions stated above are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to any condition or may be waived by us in whole or in part at any time in our reasonable discretion. Our failure at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time.
In addition, we will not accept for exchange any old notes tendered, and no new notes will be issued in exchange for any such old notes, if at such time any stop order by the Securities and Exchange Commission is threatened or in effect with respect to the Registration Statement, of which this prospectus constitutes a part, or the qualification of the indenture under the Trust Indenture Act.
EXCHANGE AGENT
Bank One, N.A. has been appointed as the exchange agent for the exchange offer. All executed letters of transmittal should be directed to the exchange agent at the address set forth below. Questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of guaranteed delivery should be directed to the exchange agent addressed as follows:
BANK ONE, N.A., EXCHANGE AGENT
By Hand, Overnight Delivery or by Mail:
1111 Polaris Parkway, Suite N1-OH1-0184
Columbus, Ohio 43240
Attention: Exchanges
By Facsimile Transmission
(for Eligible Institutions only):
(614) 248-9987
Confirm by Telephone:
(800) 346-5153
DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF SUCH LETTER OF TRANSMITTAL VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF THE LETTER OF TRANSMITTAL.
FEES AND EXPENSES
The principal solicitation is being made by mail by Bank One, N.A., as exchange agent. We will pay the exchange agent customary fees for its services, reimburse the exchange agent for its reasonable out-of-pocket expenses incurred in connection with the provision of these services and pay other registration expenses, including fees and expenses of the trustee under the indenture relating to the new notes, filing fees, blue sky fees and printing and distribution expenses. We estimate these expenses in the aggregate to be approximately $145,000. We will not make any payment to brokers, dealers or others soliciting acceptances of the exchange offer.
Additional solicitation may be made by telephone, facsimile or in person by our and our affiliates' officers and regular employees and by persons so engaged by the exchange agent.
ACCOUNTING TREATMENT
We will record the new notes at the same carrying value as the old notes, as reflected in our accounting records on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes. The expenses of the exchange offer will be amortized over the term of the new notes.
TRANSFER TAXES
You will not be obligated to pay any transfer taxes in connection with the tender of old notes in the exchange offer unless you instruct us to register new notes in the name of, or request that old notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder. In those cases, you will be responsible for the payment of any potentially applicable transfer tax.
CONSEQUENCES OF EXCHANGING OR FAILING TO EXCHANGE OLD NOTES
If you do not exchange your old notes for new notes in the exchange offer, your old notes will continue to be subject to the provisions of the indenture relating to the notes regarding transfer and exchange of the old notes and the restrictions on transfer of the old notes described in the legend on your
certificates. These transfer restrictions are required because the old notes were issued under an exemption from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, the old notes may not be offered or sold unless registered under the Securities Act, except under an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not plan to register the old notes under the Securities Act.
Under existing interpretations of the Securities Act by the SEC's staff contained in several no-action letters to third parties, and subject to the immediately following sentence, we believe that the new notes would generally be freely transferable by holders after the exchange offer without further registration under the Securities Act, subject to certain representations required to be made by each holder of new notes, as set forth below. However, any purchaser of new notes who is one of our "affiliates" (as defined in Rule 405 under the Securities Act) or who intends to participate in the exchange offer for the purpose of distributing the new notes:
- will not be able to rely on the interpretation of the SEC's staff;
- will not be able to tender its old notes in the exchange offer; and
- must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the new notes unless such sale or transfer is made pursuant to an exemption from such requirements. See "Plan of Distribution" beginning on page 38.
We do not intend to seek our own interpretation regarding the exchange offer and there can be no assurance that the SEC's staff would make a similar determination with respect to the new notes as it has in other interpretations to other parties, although we have no reason to believe otherwise.
Each broker-dealer that receives new notes for its own account in exchange for old notes, where the old notes were acquired by it as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus that meets the requirements of the Securities Act in connection with any resale of the new notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
DESCRIPTION OF THE NEW NOTES
The form and terms of the new notes and the old notes are identical in all material respects, except that transfer restrictions and registration rights applicable to the old notes do not apply to the new notes. The new notes will be issued under the indenture, dated as of August 22, 2002, among us, Nabors and Bank One, N.A., as trustee (which we refer to as the indenture in this prospectus). This is the same indenture under which the old notes were issued.
The terms of the new notes include those expressly set forth in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as amended (which we refer to as the Trust Indenture Act in this prospectus). The indenture is unlimited in aggregate principal amount, although the issuance of new notes in this prospectus will be limited to $275 million and will mature on August 15, 2012. We may issue an unlimited principal amount of additional notes having identical terms and conditions as the new notes (which we refer to as the additional notes in this prospectus). Any additional notes will be part of the same issue as the new notes that we are currently offering and will vote on all matters with the holders of the new notes.
This description of the new notes is intended to be a useful overview of the material provisions of the new notes, the guarantee and the indenture. Since this description is only a summary, you should refer to the indenture for a complete description of our obligations, the obligations of the guarantor and your rights.
The new notes will:
- be unsecured,
- be effectively junior in right of payment to any of our future secured debt,
- rank equally in right of payment with all of our existing and future unsubordinated debt and
- be senior in right of payment to any of our existing and future senior subordinated or subordinated debt.
Our obligations under the new notes will be fully and unconditionally guaranteed by Nabors. The indenture does not contain any restrictions on the amount of additional indebtedness that either we or Nabors may issue or guarantee in the future.
INTEREST
Interest on each new note will accrue from the last interest payment date on which interest was paid on the old note surrendered in exchange for the new note or, if no interest has been paid on such old note, from the date of the old note's original issue, August 22, 2002, at a rate of 5.375% per annum.
Interest will be payable semiannually on February 15 and August 15 of each year, beginning February 15, 2003, to the persons in whose names the new notes are registered at the close of business on the preceding February 1 and August 1, respectively. Interest on the new notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
PAYMENTS ON THE NEW NOTES; PAYING AGENT AND REGISTRAR
We will pay principal of, premium, if any, additional amounts (as defined below), if any, and interest on the new notes at the office or agency we designate in the Borough of Manhattan, The City of New York, except that we may, at our option, pay interest on any new notes in physical, certificated form either at the corporate trust office of the trustee or by check mailed to holders of the new notes at their registered addresses as they appear in the registrar's books. We have initially designated the corporate trust office of Bank One, N.A. in New York, New York to act as our paying agent and registrar. We may, however, change the paying agent or registrar without prior notice to the holders of the new notes, and Nabors or any of its subsidiaries may act as paying agent or registrar.
We will pay principal of, premium, if any, additional amounts, if any, and interest on any new note in global form registered in the name of or held by The Depository Trust Company or its nominee in immediately available funds to The Depository Trust Company or its nominee, as the case may be, as the registered holder of such global note.
TRANSFER AND EXCHANGE
A holder of new notes may transfer or exchange the new notes at the office of the registrar in accordance with the indenture. The registrar and the trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge will be imposed by us, the trustee or the registrar for any registration of transfer or exchange of new notes, but we may require a holder to pay a sum sufficient to cover any transfer tax or other similar governmental charge required by law or permitted by the indenture. We are not required to transfer or exchange any new note selected for redemption. Also, we are not required to transfer or exchange any note for a period of 15 days before a mailing of notice of redemption.
The registered holder of a new note will be treated as the owner of it for all purposes.
GUARANTEE
Nabors will fully and unconditionally guarantee the due and punctual payment of the principal of, premium, if any, and interest on the new notes and any other obligations of ours under the new notes when and as they become due and payable, whether at maturity, upon redemption, by acceleration or otherwise, if we are unable to satisfy these obligations. Nabors' guarantee of our obligations under the new notes will be its unsecured and unsubordinated obligation and will have the same ranking with respect to Nabors' indebtedness as the new notes will have with respect to our indebtedness. The guarantee will provide that, in the event of a default in payment by us on the new notes, the holders of the new notes may institute legal proceedings directly against Nabors to enforce its guarantee without first proceeding against us.
In the event that Nabors is required to withhold or deduct on account of any Bermudan taxes due from any payment made under or with respect to its guarantee, Nabors will pay additional amounts so that the net amount received by each holder of new notes will equal the amount that the holder would have received if the Bermudan taxes had not been required to be withheld or deducted. The amounts that Nabors is required to pay to preserve the net amount receivable by the holders of the new notes are referred to as "additional amounts."
OPTIONAL REDEMPTION
The new notes will be subject to redemption by us, in whole or in part, at any time at a redemption price equal to the greater of:
- 100% of the principal amount of the new notes then outstanding to be redeemed; or
- the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of the interest accrued to the date of redemption) computed by discounting such payments to the redemption date on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at a rate equal to the sum of 30 basis points plus the adjusted treasury rate, as that term is generally used in the industry, on the third business day prior to the redemption date, as calculated by an independent investment banker.
We will mail notice of redemption at least 20 days but not more than 75 days before the applicable redemption date to each holder of the new notes to be redeemed. If we elect to redeem the new notes in part, the trustee will select the new notes to be redeemed in a fair and appropriate manner.
Upon the payment of the redemption price, premium, if any, additional amounts, if any, plus accrued and unpaid interest, if any, to the date of redemption, interest will cease to accrue on and after the applicable redemption date on the new notes or portions thereof called for redemption.
COVENANTS
LIMITATIONS ON LIENS
So long as any new notes are outstanding, Nabors will not, nor will it permit any Nabors subsidiary (as defined below) to, issue, assume, guarantee or suffer to exist any debt for money borrowed (which we refer to as debt in this prospectus) if such debt is secured by a mortgage, pledge, security interest or lien (which we refer to as a mortgage or mortgages in this prospectus) upon any properties of Nabors or any Nabors subsidiary or upon any securities or indebtedness of any Nabors subsidiary (whether such properties, securities or indebtedness is now owned or hereafter acquired) without in any such case effectively providing that the new notes shall be secured equally and ratably with (or prior to) such debt, except that the foregoing restrictions shall not apply to:
(a) mortgages on any property acquired, constructed or improved by Nabors or any Nabors subsidiary (or mortgages on the securities of a special purpose Nabors subsidiary which holds no material assets other than the property being acquired, constructed or improved) after the date of the indenture which are created within 180 days after such acquisition (or in the case of property constructed or improved, after the completion and commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of the purchase price or cost thereof; provided that in the case of such construction or improvement the mortgages shall not apply to any property owned by Nabors or any Nabors subsidiary before such construction or improvement other than (1) unimproved real property on which the property so constructed, or the improvement, is located or (2) personal property which is so improved;
(b) mortgages existing on the date of issuance of the old notes, existing mortgages on property acquired (including mortgages on any property acquired from a person which is consolidated with or merged with or into Nabors or a Nabors subsidiary) or mortgages outstanding at the time any corporation, partnership or other entity becomes a Nabors subsidiary; provided that such mortgages shall only apply to property owned by such corporation, partnership or other entity at the time it becomes a Nabors subsidiary or that is acquired thereafter other than from Nabors or another Nabors subsidiary;
(c) mortgages in favor of Nabors or any Nabors subsidiary;
(d) mortgages in favor of domestic or foreign governmental bodies to secure advances or other payments pursuant to any contract or statute or to secure indebtedness incurred to finance the purchase price or cost of constructing or improving the property subject to such mortgages, including mortgages to secure debt of the pollution control or industrial revenue bond type;
(e) mortgages consisting of pledges or deposits by Nabors or any Nabors subsidiary under worker's compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of debt) or leases to which Nabors or any Nabors subsidiary is a party, or deposits to secure public or statutory obligations of Nabors or any Nabors subsidiary or deposits or cash or United States government bonds to secure surety or appeal bonds to which it is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred in the ordinary course of business;
(f) mortgages imposed by law, including carriers', warehousemen's, repairman's, landlords' and mechanics' liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings if a reserve or other appropriate provisions, if any, as shall be required by generally accepted accounting principles shall have been made in respect thereof;
(g) mortgages for taxes, assessments or other governmental charges that are not yet delinquent or which are being contested in good faith by appropriate proceedings provided appropriate reserves required pursuant to generally accepted accounting principles have been made in respect thereof;
(h) mortgages in favor of issuers of surety or performance bonds or letters of credit or bankers' acceptances issued pursuant to the request of and for the account of Nabors or any Nabors subsidiary in the ordinary course of its business;
(i) mortgages consisting of encumbrances, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or mortgages consisting of zoning or other restrictions as to the use of real properties or mortgages incidental to the conduct of the business of Nabors or a Nabors subsidiary or to the ownership of its properties which do not materially adversely affect the value of said properties or materially impair their use in the operation of the business of Nabors or a Nabors subsidiary;
(j) mortgages arising by virtue of any statutory or common law provisions relating to bankers' liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution; provided that:
(x) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by us in excess of those set forth by regulations promulgated by the Federal Reserve Board; and
(y) such deposit account is not intended by Nabors or any Nabors subsidiary to provide collateral to the depository institution;
(k) mortgages arising from Uniform Commercial Code financing statement filings regarding operating leases Nabors and its Nabors subsidiaries enter into in the ordinary course of business;
(l) any mortgage over goods (or any documents relating thereto) arising either in favor of a bank issuing a form of documentary credit in connection with the purchase of such goods or by way of retention of title by the supplier of such goods where such goods are supplied on credit, subject to such retention of title, and in both cases where such goods are acquired in the ordinary course of business;
(m) any mortgage pursuant to any order of attachment, execution, enforcement, distraint or similar legal process arising in connection with court proceedings; provided that such process is effectively stayed, discharged or otherwise set aside within 30 days;
(n) any lease, sublease and sublicense granted to any third party constituting a mortgage and any mortgage pursuant to farm-in and farm-out agreements, operating agreements, development agreements and any other similar arrangements, which are customary in the oil and gas industry or in the ordinary course of business of Nabors or any Nabors subsidiary; or
(o) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage referred to in the foregoing clauses (a) through (n), inclusive; provided that the principal amount of debt secured thereby shall not exceed the principal amount of debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the mortgage so extended, renewed or replaced (plus improvements in such property).
As used in this prospectus "Nabors subsidiary" means a corporation, partnership or other entity more than 50% of the outstanding voting securities of which is owned, directly or indirectly, by Nabors or one or more other subsidiaries, or by Nabors and one or more other subsidiaries. For purposes of this definition, "voting securities" means securities which ordinarily have voting power for the election of a governing board, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.
In addition to the foregoing, Nabors and any Nabors subsidiary may, without securing the new notes, issue, assume or guarantee secured debt that, with certain other debt described in the following sentence, does not exceed 15% of the amount of total stockholders' equity shown in the most recent consolidated statement of financial position of Nabors, as filed with the SEC (which we refer to as consolidated net worth in this prospectus), as shown on a consolidated balance sheet of Nabors as of a date not more than 90 days prior to the proposed transaction, prepared by Nabors in accordance with generally accepted accounting principles in the United States. The other debt to be aggregated for purpose of this exception is all attributable debt (as used in this prospectus, attributable debt means, with respect to any sale and lease-back transaction as of any particular time, the present value discounted at the rate of interest implicit in the terms of the lease of the obligations of the lessee under such lease for net rental payments during the remaining term of the lease) in respect of sale and lease-back transactions of Nabors and any Nabors subsidiary under the exception in clause (e)(2) below existing at such time. Sale and lease-back transaction as used in this prospectus means any arrangement with any person providing for the leasing by Nabors or any Nabors subsidiary of any property, whereby such property had been sold or transferred by Nabors or any Nabors subsidiary to such person.
LIMITATIONS ON SALE AND LEASE-BACK TRANSACTIONS
So long as any new notes are outstanding, Nabors will not, nor will it permit any Nabors subsidiary to, enter into any sale and lease-back transaction, other than any sale and lease-back transaction:
(a) entered into within 180 days of the later of the acquisition or placing into service of the property subject thereto by Nabors or the Nabors subsidiary;
(b) involving a lease of less than five years;
(c) entered into in connection with an industrial revenue bond or pollution control financing;
(d) between Nabors and/or one or more Nabors subsidiaries;
(e) as to which Nabors or such Nabors subsidiary would be entitled to incur debt secured by a mortgage on the property to be leased in an amount equal to the attributable debt with respect to such sale and lease-back transaction without equally and ratably securing the new notes (1) under clauses (a) through (o) in "-- Limitations on Liens" above or (2) under the last paragraph of that covenant; or
(f) as to which Nabors will apply an amount equal to the net proceeds from the sale of the property so leased to (1) the retirement (other than any mandatory retirement), within 180 days of the effective date of any such sale and lease-back transaction, of new notes or of funded debt (defined below) of Nabors or a Nabors subsidiary or (2) the purchase or construction of other property, provided that such property is owned by Nabors or a Nabors subsidiary free and clear of all mortgages.
As used in this prospectus, funded debt means indebtedness for money borrowed which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date more than twelve months after the date of the creation of such indebtedness.
CONSOLIDATION, MERGER, CONVEYANCE OF ASSETS
The indenture provides, in general, that neither we nor Nabors will consolidate with or merge into any other entity or convey, transfer or lease our or its assets substantially as an entirety to any person, unless:
- the entity formed by the consolidation or into which we are or Nabors is merged, or the person who acquires the assets, shall be organized, in our case, under the laws of the United States, any state thereof, or the District of Columbia, and in either case expressly assumes our or Nabors' obligations under the indenture, the new notes and the guarantee; and
- immediately after giving effect to that type of transaction, no event of default, and no event that, after notice or lapse of time or both, would become an event of default, shall have happened and be continuing.
EVENT RISK
Except for the limitations described above under the subsections "-- Limitations on Liens" and "-- Limitations on Sale and Lease-Back Transactions," neither the indenture, the guarantee nor the new notes will afford holders of the new notes protection in the event of a highly leveraged transaction involving us or either guarantor or will contain any restrictions on the amount of additional indebtedness that we or either guarantor may incur.
MANDATORY REDEMPTION; SINKING FUND
We are not required to make either mandatory redemption or sinking fund payments with respect to the new notes.
BOOK-ENTRY; DELIVERY AND FORM
The new notes will initially be issued only in registered, book-entry form, in denominations of $1,000 and any integral multiples of $1,000 as described under "-- Book-Entry System." We will issue one or more global notes in denominations that together equal the total principal amount of the outstanding new notes.
MODIFICATION OF THE INDENTURE
Amendments of the indenture may be made by us, Nabors and Bank One, N.A. with the consent of the holders of a majority in principal amount of the outstanding new notes; provided, however, that no such amendment may, without the consent of the holder of each outstanding new note affected thereby:
- extend the final maturity of the principal of any of the new notes;
- reduce the principal amount of any of the new notes;
- reduce the rate or extend the time of payment of interest or additional amounts, if any, on any of the new notes;
- reduce any amount payable on redemption of any of the new notes;
- change the currency in which the principal of or interest or additional amounts, if any, on any of the new notes is payable;
- impair the right to institute suit for the enforcement of any payment on any of the new notes when due; or
- make any change in the percentage in principal amount of the new notes, the consent of the holders of which is required for any such amendment.
Without the consent of any holder of outstanding new notes, we may amend the indenture and the new notes to:
- cure any ambiguity or inconsistency;
- provide for the assumption by a successor to the obligations of Nabors or ourselves under the indenture;
- provide for uncertificated new notes in addition to or in place of
certificated new notes (provided that the uncertificated new notes are
issued in registered form for purposes of Section 163(f) of the Code, or
in a manner such that the uncertificated new notes are described in
Section 163(f)(2)(B) of the Code);
- secure all or any of the new notes;
- add to the covenants of Nabors or ourselves or events of default for the benefit of the holders or surrender any right or power conferred upon us or Nabors;
- comply with any requirement of the SEC in connection with the qualification of the indenture under the Trust Indenture Act; or
- make other provisions that do not adversely affect the rights of any holder of outstanding new notes.
The holders of a majority in principal amount of the outstanding notes may, on behalf of the holders of all notes, waive any past default under the indenture, except a default in the payment of the principal of, premium, if any, additional amounts, if any, or interest on any new note or in respect of a provision which under the indenture cannot be amended without the consent of the holder of each outstanding new note affected.
It is not necessary for the consent of the holders under the indenture to approve the particular form of any proposed amendment or waiver. It is sufficient if such consent approves the substance of the proposed amendment or waiver. A consent to any amendment or waiver under the indenture by any holder of new notes given in connection with a tender of such holder's new notes will not be rendered invalid by such tender. After an amendment or waiver under the indenture becomes effective, we are required to mail to the holders a notice briefly describing such amendment or waiver. However, the failure to mail such notice, or any defect in the notice, will not impair or affect the validity of the amendment or waiver.
EVENTS OF DEFAULT
In general, the indenture defines an event of default as being:
- a default for 10 days in payment of any principal or premium, if any, on the new notes, either at maturity, upon any redemption, by declaration or otherwise;
- a default for 30 days in payment of any interest or additional amounts, if any, on the new notes;
- a default for 90 days after written notice from the trustee or holders of at least 25% in principal amount of the outstanding new notes in the observance or performance of any covenant in the new notes or the indenture;
- an event of our or Nabors' bankruptcy, insolvency or reorganization; or
- the failure to keep Nabors' full and unconditional guarantee in place.
If an event of default shall occur and be continuing, either Bank One, N.A. or the holders of at least 25% in principal amount of the outstanding new notes may declare the principal amount of all new notes to be due and payable immediately. However, any time after a declaration of acceleration with respect to the new notes has been made, but before a judgment or decree based on such acceleration has been obtained, the holders of a majority in principal amount of outstanding new notes may, under some circumstances, rescind and annul such acceleration. The majority holders, however, may not annul or waive a continuing default in payment of principal of, premium, if any, additional amounts, if any, or interest on the new notes.
The indenture provides that the holders of the new notes will indemnify Bank One, N.A. before Bank One, N.A. exercises any of its rights or powers under the indenture. This indemnification is subject to the Bank One, N.A.'s duty, as trustee, to act with the required standard of care during a default.
The holders of a majority in principal amount of the outstanding new notes may direct the time, method and place of:
- the conduct of any proceeding for any remedy available to the trustee; or
- the exercise of any trust or power conferred on the trustee.
This right of the holders of the new notes is, however, subject to the provisions in the indenture providing for the indemnification of the trustee and other specified limitations.
In general, the indenture provides that holders of new notes may institute an action against us, Nabors or any other obligor under the new notes only if the following four conditions are fulfilled:
- the holder previously has given to the trustee written notice of default and the default continues;
- the holders of at least 25% in principal amount of the new notes then outstanding have both requested the trustee to institute such action and offered the trustee reasonable indemnity;
- the trustee has not instituted this action within 60 days of receipt of such request; and
- the trustee has not received a direction inconsistent with such written request by the holders of a majority in principal amount of the new notes then outstanding.
The above four conditions do not apply to actions by holders of the new notes against us, Nabors or any other obligor under the new notes for payment of principal of, premium, if any, additional amounts, if any, or interest on or after the due date.
The indenture contains a covenant that we, Nabors and any other obligor under the new notes will file annually with the trustee a certificate of no default or a certificate specifying any default that exists.
DISCHARGE, LEGAL DEFEASANCE AND COVENANT DEFEASANCE
We may discharge or defease our obligations under the indenture as set forth below.
Under terms satisfactory to the trustee, we may discharge certain obligations to holders of the new notes that have not already been delivered to the trustee for cancellation. The new notes must also:
- have become due and payable;
- be due and payable by their terms within one year; or
- be scheduled for redemption by their terms within one year.
We may discharge the new notes by irrevocably depositing an amount certified to be sufficient to pay at maturity, or upon redemption, the principal, premium, if any, additional amounts, if any, and interest on the new notes. We may make the deposit in cash or U.S. Government Obligations, as defined in the indenture.
We may terminate all our obligations under the new notes and the indenture at any time, except for certain obligations, including those respecting the defeasance trust and obligations to register the transfer or exchange of the new notes, to replace mutilated, destroyed, lost or stolen new notes and to maintain a registrar and paying agent in respect of the new notes. This is referred to as "legal defeasance." If we exercise our legal defeasance option, the guarantee in effect at such time will terminate.
Under terms satisfactory to the trustee, we and Nabors may be released with respect to any outstanding new notes from the obligations imposed by the sections of the indenture that contain the covenants described above limiting liens, sale and lease-back transactions and consolidations, mergers and conveyances of assets. Also under terms satisfactory to the trustee, we may no longer be required to comply with these sections without the creation of an event of default. This is typically referred to as "covenant defeasance." If we exercise our covenant defeasance option, the guarantee in effect at such time will terminate. We may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option.
Legal defeasance or covenant defeasance may be effected by us only if, among other things:
- we irrevocably deposit with the trustee cash or U.S. Government Obligations as trust funds in an amount certified to be sufficient to pay at maturity or upon redemption the principal of, premium, if any, additional amounts, if any, and interest on all outstanding new notes; and
- we deliver to the trustee an opinion of counsel to the effect that the holders of the new notes will not recognize income, gain or loss for United States federal income tax purposes as a result of our legal defeasance or covenant defeasance. This opinion must further state that these holders will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if our legal defeasance or covenant defeasance had not occurred. In the case of a legal defeasance, this opinion must be based on a ruling of the Internal Revenue Service or a change in United States federal income tax law occurring after the date of the indenture, since this result would not occur under current tax law.
CONCERNING THE TRUSTEE
The trustee, Bank One, N.A., is one of a number of banks with which Nabors and its subsidiaries maintain ordinary banking relationships and is the trustee with respect to Nabors Delaware's Zero Coupon Convertible Senior Debentures due 2021 and Zero Coupon Convertible Senior Debentures due 2020. We have appointed the trustee as registrar and paying agent under the indenture.
GOVERNING LAW
The indenture, the new notes and the guarantee will be governed by, and construed in accordance with, the laws of the State of New York.
BOOK-ENTRY SYSTEM
GENERAL
The old notes are, and the new notes will be, issued in the form of one or more global certificates, know as "global notes." Except as described below, the new notes will be initially represented by one or more global notes in fully registered form without interest coupons. The global notes will be deposited with, or on behalf of DTC, and registered in the name of Cede & Co., as nominee of DTC, or will remain in the custody of the trustee pursuant to the FAST Balance Certificate Agreement between DTC and the trustee.
Ownership of beneficial interests in each global note will be limited to persons who have accounts with DTC ("DTC participants") or persons who hold interests through DTC participants. We expect that under procedures established by DTC, ownership of beneficial interests in each global note will be shown on, and transfer of ownership of those interests will be effected only through, records maintained by DTC (with respect to interests of DTC participants) and the records of DTC participants (with respect to other owners of beneficial interests in the global note).
DEPOSITARY PROCEDURES
The descriptions of the operations and procedures of DTC set forth below are controlled by that settlement system and may be changed at any time. We undertake no obligation to update you regarding changes in these operations and procedures and urge investors to contact DTC or its participants directly to discuss these matters.
DTC has advised us that it is a:
- limited purpose trust company organized under the laws of the State of New York;
- banking organization within the meaning of the laws of the State of New York;
- member of the Federal Reserve System;
- clearing corporation within the meaning of the New York Uniform Commercial Code; and
- clearing agency registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC was created to hold securities of its participants and to facilitate the clearance and settlement of securities transactions among its participants through electronic book-entry changes in their accounts, thereby eliminating the need for physical movement of securities represented by physical certificates. DTC's participants include securities brokers and dealers, banks, trust companies, clearing corporations and other organizations. Banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a participant, referred to as "indirect participants," also have access to DTC's book-entry system. Investors who are not DTC participants may beneficially own notes held by or on behalf of DTC only through DTC participants or indirect participants in DTC.
Upon deposit of the global notes with DTC, it will credit, on its book-entry registration and transfer system, the accounts of those participants designated by the initial purchaser with the principal amounts of the global notes held by or through the participants. The records of DTC will show ownership and effect the transfer of ownership of the global notes by its participants. The records of the participants will show ownership and effect the transfer of ownership of the global notes by persons holding beneficial interests in the global notes through them.
So long as DTC or its nominee is the registered owner of the global notes, DTC or such nominee will be considered the sole owner and holder of the notes for all purposes under the indenture. Except as set forth below, if you own a beneficial interest in the global notes, you will not:
- be entitled to have the notes registered in your name;
- receive or be entitled to receive physical delivery of a certificate in definitive form representing the notes; or
- be considered the owner or holder of the notes under the indenture for any purpose, including with respect to the giving of any directions, approvals or instructions to the trustee.
Therefore, if you are required by state law to take physical delivery of the new notes in definitive form, you may not be able to own, transfer or pledge beneficial interests in the global notes. In addition, the lack of a physical certificate evidencing your beneficial interests in the global notes may limit your ability to pledge the interests to a person that is not a participant in DTC.
If you own beneficial interests in a global note, you will have to rely on the procedures of DTC and, if you are not a participant in DTC, the procedures of the participant through which you hold your beneficial interests, to exercise your rights as a holder of new notes under the indenture. DTC has advised us that it will take any action permitted to be taken by a holder of beneficial interests in the global notes only at the direction of one or more of the participants to whose accounts the interests are credited. We understand that, under existing industry practice, when a beneficial owner of a global note wants to give any notice or take any action that a registered holder is entitled to take, at our request or under the indenture, DTC will authorize the participant to give the notice or take the action, and the participant will authorize its beneficial owners to give the notice or take the action. Accordingly, we, the guarantors, the trustee and the paying agent will treat as a holder of beneficial interests in the global notes anyone designated as such in writing by DTC for purposes of obtaining any consents or directions required under the indenture.
We will make all payments on the notes through the trustee or paying agent to DTC or its nominee, as the registered holder of the global notes, in immediately available funds. We expect DTC or its nominee, upon receipt of any payments, to immediately credit each participant's account with payments in amounts proportionate to that participant's beneficial interest as shown on the records of DTC or its nominee. We also expect each participant to pay each owner of beneficial interests in the global notes held through that participant in accordance with standing customer instructions and customary practices. These payments will be the sole responsibility of the participants.
Neither we, Nabors, the trustee nor the paying agent will assume any responsibility or liability for any aspect of the records relating to, payments made on account of or actions taken with respect to the beneficial ownership interests in the global notes, or for any other aspect of the relationship between DTC and its participants, or between the participants and the owners of beneficial interests. We, Nabors, the trustee and the paying agent may conclusively rely on instructions from DTC for all purposes.
We have obtained the above information about DTC and its book-entry system from sources we believe are reliable, but we take no responsibility for the accuracy of the information.
SETTLEMENT PROCEDURES
Initial settlement of the notes will be made in immediately available funds. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC's rules and procedures and will be settled in immediately available funds.
EXCHANGE OF GLOBAL NOTES FOR CERTIFICATED NOTES
We will exchange beneficial interests in global notes for certificated notes only if:
- DTC notifies the trustee that it is unwilling or unable to continue as a depositary for the global notes or DTC ceases to be a clearing agency registered under the Exchange Act, and, in either case, we fail to appoint a successor depositary within 90 days; or
- we decide at any time not to have the securities represented by global notes and so notify the trustee.
If there is an exchange, upon the surrender by DTC of the global notes, we will issue certificated notes in authorized denominations and registered in the names that DTC directs.
Neither we, Nabors nor the trustee shall be liable for any delay by DTC or any participant or indirect participant in identifying the beneficial owners of the related notes and each such person may conclusively rely on, and shall be protected in relying on, instructions from DTC for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the notes to be issued.
MATERIAL TAX CONSIDERATIONS
CERTAIN UNITED STATES FEDERAL TAX CONSIDERATIONS
The following is a general discussion of certain United States federal income tax consequences associated with the exchange of the old notes by an investor who exchanges the old notes for the new notes pursuant to the exchange offer. This discussion does not purport to discuss all aspects of United States federal taxation that may be important to a particular holder in light of his, her or its particular investment or tax circumstances, or to certain types of holders subject to special tax rules including, insurance companies, tax exempt organizations, financial institutions, broker-dealers, certain expatriates, holders whose functional currency is not the United States dollar, or holders who hold the old notes as a hedge against currency risks or as part of a straddle or a synthetic security. In addition, this discussion does not discuss any foreign, state, local or other taxing jurisdiction tax considerations. If a partnership, or other entity treated as a partnership for United States federal income tax purposes, holds old notes, the tax treatment of a partner generally will depend upon the status of the partner and the activities of the partnership. A holder that is a partnership and partners in such partnership are urged to consult their tax advisors about the United States federal tax consequences associated with the exchange of the old notes for the new notes pursuant to the exchange offer. This discussion is based upon the Internal Revenue Code of 1986, as amended, United States Treasury regulations promulgated thereunder, published rulings and court decisions, all as in effect on the date hereof, which are subject to change, possibly retroactively. Prospective investors are urged to consult their tax advisors regarding the United States federal tax consequences associated with the exchange of the old notes for the new notes pursuant to the exchange offer, as well as any tax consequences that may arise under the laws of any relevant foreign, state, local or other taxing jurisdiction.
The exchange of the old notes for the new notes issued in the exchange offer should not be treated as an "exchange" for United States federal income tax purposes because the new notes issued in the exchange offer should not be considered to differ materially in kind or extent from the old notes. Rather, the new notes issued in the exchange offer received by a holder should be treated as a continuation of the old notes in the hands of such holder. As a result there should be no United States federal income tax consequences to holders exchanging the outstanding old notes for the new notes issued in the exchange offer, and any exchanging holder of old notes should have the same tax basis and holding period in the new notes issued in the exchange offer as such holder had in the old notes immediately prior to the exchange.
Prospective holders of the new notes issued in the exchange offer are urged to consult their tax advisors concerning the particular tax consequences of exchanging such holders' old notes for the new notes issued in the exchange offer, including the applicability and effect of any state, local or foreign income and other tax laws.
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 these 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 old notes where such old notes were acquired as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the expiration of the exchange offer, 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 , 2002, 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 broker-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 at negotiated prices. Any 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 new notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit of any such resale of new notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. Any broker-dealer that resells new notes that were received by it for its own account in the exchange offer and any broker-dealer that participates in a distribution of those new notes may be deemed to be an underwriter within the meaning of the Securities Act and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction, including the delivery of a prospectus that contains information with respect to any selling holder required by the Securities Act in connection with any resale of the new notes. 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 Securities Act.
Furthermore, any broker-dealer that acquired any of the old notes directly from us:
- may not rely on the applicable interpretation of the staff of the SEC's position contained in Exxon Capital Holdings Corp., SEC no-action letter (April 13, 1988), Morgan, Stanley & Co. Inc., SEC no-action letter (June 5, 1991) and Shearman & Sterling, SEC no-action letter (July 2, 1983); and
- must also be named as a selling noteholder in connection with the registration and prospectus delivery requirements of the Securities Act relating to any resale transaction.
For a period of 180 days after the expiration of the exchange offer, 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 other than commissions or concessions of any broker-dealer and will indemnify the holders of the old notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
WHERE YOU CAN FIND MORE INFORMATION
Nabors files annual, quarterly and current reports, proxy and information
statements and other information with the Securities and Exchange Commission. We
previously filed such reports and materials but are no longer required to do so
following the corporate reorganization on June 24, 2002 described above in the
section entitled "Summary Information -- Recent Developments" beginning on page
1. You may inspect and copy such reports, proxy and information statements, and
other information filed with the Commission at the SEC's Public Reference Room
at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the SEC's regional
offices at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and at 233 Broadway, New York, New York 10279. You may also
obtain copies of such material from the Securities and Exchange Commission at
prescribed rates by writing to the Public Reference Section of the Securities
and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. In
addition, reports, proxy and information statements and other information
concerning Nabors can be inspected at the American Stock Exchange, 86 Trinity
Place, New York, New York 10006, where Nabors' common shares are listed.
You may obtain information on the operation of the Public Reference Room by calling the Securities and Exchange Commission at 1-800-SEC-0330. Copies of reports, proxy and information statements and other information regarding registrants that file electronically (including Nabors and prior to July 23, 2002, us) are available on the Commission's website at http://www.sec.gov. Nabors' website address is http://www.nabors.com. Nabors' website materials are not part of this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Rather than restate certain information in this prospectus that we and Nabors have already included in reports filed with the Securities and Exchange Commission, we are incorporating this information by reference, which means that we can disclose important business, financial and other information to you by referring to those publicly filed documents that contain the information. The information incorporated by reference is not included in or delivered with this prospectus. The information incorporated by reference is considered to be part of this prospectus, and information that Nabors files later with the Securities and Exchange Commission will automatically update and supersede the information in this prospectus. Accordingly, we incorporate by reference the following documents filed by us and Nabors:
- Nabors Delaware's Annual Report on Form 10-K for the fiscal year ended December 31, 2001 (File No. 001-09245), as amended by Form 10-K/A filed by Nabors on June 26, 2002 (File No. 000-49887);
- Nabors Delaware's Quarterly Report on Form 10-Q for the quarter ended March 31, 2002 (File No. 001-09245);
- Nabors Delaware's Current Reports on Form 8-K filed on January 3, 2002, January 25, 2002, April 18, 2002, June 14, 2002, and June 25, 2002 (File No. 001-09245);
- Nabors' Quarterly Report on Form 10-Q for the quarter ended June 30, 2002, as amended by Form 10-Q/A filed by Nabors on October 11, 2002 (File No. 000-49887);
- Nabors' Current Reports on Form 8-K filed on June 25, 2002 (File No.
333-76198), June 26, 2002, July 18, 2002, August 14, 2002, August 16,
2002, August 21, 2002, October 1, 2002, and October 11, 2002 (File No.
000-49887); and
- Nabors' Registration Statement on Form S-4 (Registration No. 333-76198).
In addition, all reports and other documents Nabors subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (which we refer to in this prospectus as the Exchange Act) after the date of this prospectus and before the termination of this offering shall be deemed to be incorporated by reference in this prospectus and to be part of this prospectus from the date of the filing of such reports and documents. Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for the purposes of this prospectus to the extent that a statement contained in any subsequently filed document which is or is deemed to be incorporated by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
We will provide without charge to each person to whom this prospectus is delivered, including each beneficial owner of old notes, upon request of such person, a copy of any or all documents that are incorporated into this prospectus by reference, other than exhibits to such documents, unless such exhibits are specifically incorporated by reference into the documents that this prospectus incorporates. You should direct such requests to: Nabors Corporate Services, Inc., 515 West Greens Road, Suite 1200, Houston, Texas 77067, Attention: Investor Relations, phone number (281) 874-0035.
IN ORDER TO OBTAIN TIMELY DELIVERY, YOU MUST REQUEST THIS INFORMATION NO LATER THAN FIVE BUSINESS DAYS BEFORE YOU MUST MAKE YOUR INVESTMENT DECISION. ACCORDINGLY, YOU MUST REQUEST THIS INFORMATION NO LATER THAN , 2002.
LEGAL MATTERS
The validity and enforceability of the new notes offered by this prospectus will be passed on for us by Skadden, Arps, Slate, Meagher & Flom LLP, New York, New York. The validity and enforceability of the guarantees of the new notes will be passed upon for us by Appleby Spurling & Kempe, Hamilton, Bermuda.
INDEPENDENT ACCOUNTANTS
The historical financial statements of Nabors as of December 31, 2001 and 2000 and for each of the three years in the period ended December 31, 2001 incorporated in this prospectus by reference to the Current Report on Form 8-K of Nabors dated as of October 10, 2002 and the financial statement schedule incorporated in this prospectus by reference to the Annual Report on Form 10-K of Nabors Delaware for the year ended December 31, 2001 have been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.
With respect to the unaudited financial information of Nabors Delaware for the three-month periods ended March 31, 2002 and 2001 and of Nabors for the six-month periods ended June 30, 2002 and 2001, incorporated by reference in this prospectus, PricewaterhouseCoopers LLP reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports dated April 17, 2002, except for Notes 1 and 2, as to which the date is April 29, 2002, and July 17, 2002, except for Note 11, as to which the date is August 13, 2002, and Notes 4 and 10, as to which the date is October 10, 2002, incorporated by reference herein, state that they did not audit and they do not express an opinion on that unaudited financial information. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. PricewaterhouseCoopers LLP is not subject to the liability provisions of Section 11 of the Securities Act of 1933 for their report on the unaudited financial information because that report is not a "report" or a "part" of the registration statement prepared or certified by PricewaterhouseCoopers LLP within the meaning of Sections 7 and 11 of the Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
NABORS INDUSTRIES LTD.
Under Bermuda law, a company is permitted to indemnify its directors and officers subject to certain restrictions. Section One (1) and Section Seventy-Five (75) of Nabors' Amended and Restated Bye-Laws, states:
"Officer" means a Director, Secretary, or other officer of the Company appointed pursuant to these Bye-laws, but does not include any person holding the office of auditor in relation to the Company;
"75. Exemption and Indemnification of Officers. Subject always to these Bye-laws, no Officer shall be liable for the acts, receipts, neglects or defaults of any other Officer nor shall any Officer be liable in respect of any negligence, default or breach of duty on his or her own part in relation to the Company or any Subsidiary, or for any loss, misfortune or damage which may happen, in or arising out of the actual or purported execution or discharge of his or her duties or the exercise or purported exercise of his or her powers or otherwise in relation to or in connection with his or her duties, powers or office.
75.1. Subject always to these Bye-laws, every Officer shall be indemnified and held harmless out of the funds of the Company against all liabilities, losses, damages or expenses (including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all legal and other costs and expenses properly payable) incurred or suffered by the Officer arising out of the actual or purported execution or discharge of the Officer's duties (including, without limitation, in respect of his or her service at the request of the Company as a director, officer, partner, trustee, employee, agent or similar functionary of another person) or the exercise or purported exercise of the Officer's powers or otherwise, in relation to or in connection with the Officer's duties, powers or office (including but not limited to liabilities attaching to the Officer and losses arising by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust of which such Officer may be guilty in relation to the Company or any Subsidiary of the Company).
75.2. Every Officer shall be indemnified out of the funds of the Company against all liabilities arising out of the actual or purported execution or discharge of the Officer's duties or the exercise or purported exercise of the Officer's powers or otherwise, in relation to or in connection with the Officer's duties, powers or office, incurred by such Officer in defending any proceedings, whether civil or criminal, in which judgement is given in the Officer's favour, or in which the Officer is acquitted, or in connection with any application under the Companies Acts in which relief from liability is granted to the Officer by the court.
75.3. In this Bye-law 75 (i) the term "Officer" includes, in addition to the persons specified in the definition of that term in Bye-law 1, the Resident Representative, a member of a committee constituted under these Bye-laws, any person acting as an Officer or committee member in the reasonable belief that the Officer has been so appointed or elected, notwithstanding any defect in such appointment or election, and any person who formerly was an Officer or acted in any of the other capacities described in this clause (i) and (ii) where the context so admits, references to an Officer include the estate and personal representatives of a deceased Officer or any such other person.
75.4. The provisions for exemption from liability and indemnity contained in this Bye-law shall have effect to the fullest extent permitted by Applicable Law, but shall not extend to any matter which would render any of them void pursuant to the Companies Acts.
75.5. To the extent that any person is entitled to claim an indemnity pursuant to these Bye-laws in respect of an amount paid or discharged by him or her, the relevant indemnity shall take effect as
II-1
an obligation of the Company to reimburse the person making such payment (including advance payments of fees or other costs) or effecting such discharge.
75.6. The rights to indemnification and reimbursement of expenses provided by these Bye-laws shall not be deemed to be exclusive of, and are in addition to, any other rights to which a person may be entitled. Any repeal or amendment of this Bye-law 75 shall be prospective only and shall not limit the rights of any Officer or the obligation of the Company with respect to any claim arising prior to any such repeal or amendment.
75.7. In so far as it is permissible under Applicable Law, each Shareholder and the Company agree to waive any claim or right of action the Shareholder or it may at any time have, whether individually or by or in the right of the Company, against any Officer on account of any action taken by such Officer or the failure of such Officer to take any action in the performance of his duties with or for the Company, provided however, that such waiver shall not apply to any claims or rights of action arising out of the fraud or dishonesty of such Officer or to recover any gain, personal profit or advantage to which such Officer is not legally entitled.
75.8. Subject to the Companies Acts, expenses incurred in defending any civil or criminal action or proceeding for which indemnification is required pursuant to this Bye-law 75 shall be paid by the Company in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay such amount if it shall ultimately be determined that the indemnified party is not entitled to be indemnified pursuant to this Bye-law 75.
75.9 Each Shareholder of the Company, by virtue of its acquisition and continued holding of a Share, shall be deemed to have acknowledged and agreed that the advances of funds may be made by the Company as aforesaid, and when made by the Company under this Bye-law 75 are made to meet expenditures incurred for the purpose of enabling such Officer to properly perform his or her duties as an Officer."
Nabors has entered into agreements with certain of its directors and officers indemnifying them against expenses, settlements, judgments and fines in connection with any threatened, pending or completed action, suit, arbitration or proceeding where the individual's involvement is by reason of the fact that he is or was a director or officer or served at Nabors' request as a director or officer of another organization, except where such indemnification is not permitted under applicable law.
The officers and directors of Nabors are covered by directors and officers insurance aggregating $100,000,000.
NABORS INDUSTRIES, INC.
Section 145 of the Delaware General Corporation Law permits the indemnification of directors, employees and agents of Delaware corporations.
Consistent therewith, Section 10 of the Nabors Delaware's Restated Certificate of Incorporation states as follows:
"All persons who the corporation is empowered to indemnify pursuant to the provisions of Section 145 of the General Corporation Law of the State of Delaware (or any similar provision or provisions of applicable law at the time in effect) shall be indemnified by the corporation to the fullest extent permitted thereby. The foregoing right of indemnification shall not be deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of shareholders or disinterested directors, or otherwise. No repeal or amendment of this Section 10 shall adversely affect any rights of any person pursuant to this Section 10 which existed at the time of such repeal or amendment with respect to acts or omissions occurring prior to such repeal or amendment."
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling Nabors or Nabors Delaware pursuant to the foregoing provisions,
II-2
Nabors and Nabors Delaware have been informed that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
+2.1 Agreement and Plan of Merger among Nabors Industries, Inc.,
Nabors Acquisition Corp. VIII, Nabors Industries Ltd. and
Nabors US Holdings Inc. (incorporated by reference to Annex
I to proxy statement/prospectus included in Nabors
Industries Ltd.'s Registration Statement on Form S-4
(Registration No. 333-76198) filed with the SEC on May 10,
2002, as amended).
+3.1 Memorandum of Association of Nabors Industries Ltd.
(incorporated by reference to Annex II to the proxy
statement/prospectus included in Nabors Industries Ltd.'s
Registration Statement on Form S-4 (Registration No.
333-76198) filed with the SEC on May 10, 2002, as amended).
+3.2 Amended and Restated Bye-Laws of Nabors Industries Ltd.
(incorporated by reference to Annex III to the proxy
statement/prospectus included in Nabors Industries Ltd.'s
Registration Statement on Form S-4 (Registration No.
333-76198) filed with the SEC on May 10, 2002, as amended).
3.3 Restated Certificate of Incorporation of Nabors Industries,
Inc.
3.4 Restated By-laws of Nabors Industries, Inc.
4.1 Indenture, dated August 22, 2002, among Nabors Industries,
Inc., Nabors Industries Ltd. and Bank One, N.A.
4.2 Registration Rights Agreement, dated August 22, 2002, among
Nabors Industries, Inc., Nabors Industries Ltd. and Lehman
Brothers Inc.
4.3 Form of 5.375% Senior Exchange Note due 2012 (included in
Exhibit 4.1).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP with
respect to the new notes.
5.2 Opinion of Appleby Spurling & Kempe with respect to the new
notes.
12.1 Computation of ratio of earnings to fixed charges.
15.1 Awareness Letter of PricewaterhouseCoopers LLP to the
Securities and Exchange Commission.
21.1 Significant Subsidiaries of Nabors Industries, Inc. and
Nabors Industries Ltd.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
23.3 Consent of Appleby Spurling & Kempe (included in Exhibit
5.2).
24.1 Powers of Attorney (included in signature page hereto).
25.1 Statement of Eligibility and Qualification on Form T-1 of
Bank One, N.A., as trustee under the Indenture for the
5.375% Senior Notes due 2012.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Letter to Clients.
99.4 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
|
+ Incorporated by reference as indicated.
II-3
ITEM 22. UNDERTAKINGS
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by these paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities and Exchange Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) If the registrant is a foreign private issuer, to file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference to the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
II-4
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
The undersigned registrants hereby undertake (i) to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means; and (ii) to arrange or provide for a facility in the U.S. for the purpose of responding to such requests. The undertaking in subparagraph (i) above includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
The undersigned registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in St. Michael, Barbados, on October 10, 2002.
NABORS INDUSTRIES LTD.
By: /s/ DANIEL MCLACHLIN
------------------------------------
Daniel McLachlin
Vice President -- Administration
and Corporate Secretary
|
Each person whose signature to this registration statement appears below hereby severally constitutes and appoints Daniel McLachlin, Anthony G. Petrello and Bruce P. Koch, and each of them singly, as his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution for him and in his name, place and stead, and in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. In accordance with the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates stated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ EUGENE M. ISENBERG Chairman and Chief October 10, 2002
------------------------------------------------ Executive Officer
Eugene M. Isenberg
/s/ ANTHONY G. PETRELLO President, Chief Operating October 10, 2002
------------------------------------------------ Officer and Director
Anthony G. Petrello
/s/ RICHARD A. STRATTON Vice Chairman and Director October 10, 2002
------------------------------------------------
Richard A. Stratton
/s/ BRUCE P. KOCH Vice President -- Finance October 10, 2002
------------------------------------------------ (Principal Financial and
Bruce P. Koch Accounting Officer)
/s/ JAMES L. PAYNE Director October 10, 2002
------------------------------------------------
James L. Payne
/s/ HANS SCHMIDT Director October 10, 2002
------------------------------------------------
Hans Schmidt
/s/ MYRON M. SHEINFELD Director October 10, 2002
------------------------------------------------
Myron M. Sheinfeld
/s/ JACK WEXLER Director October 10, 2002
------------------------------------------------
Jack Wexler
/s/ MARTIN J. WHITMAN Director October 10, 2002
------------------------------------------------
Martin J. Whitman
|
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, on October 10, 2002.
NABORS INDUSTRIES, INC.
By: /s/ ANTHONY G. PETRELLO
------------------------------------
Anthony G. Petrello
President and Chief Operating
Officer
|
Each person whose signature to this registration statement appears below hereby severally constitutes and appoints Christopher P. Papouras and Anthony G. Petrello, and each of them singly, as his true and lawful attorney-in-fact and agent with full power of substitution and resubstitution for him and in his name, place and stead, and in any and all capacities to sign any and all amendments (including pre-effective and post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. In accordance with the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates stated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ANTHONY G. PETRELLO President, Chief Operating October 10, 2002
------------------------------------------------ Officer and Director
Anthony G. Petrello (Principal Executive Officer)
/s/ BRUCE P. KOCH Vice President-Finance October 10, 2002
------------------------------------------------ (Principal Financial and
Bruce P. Koch Accounting Officer)
/s/ MALCOLM CALKINS Director October 10, 2002
------------------------------------------------
Malcolm Calkins
/s/ CHRISTOPHER P. PAPOURAS Director October 10, 2002
------------------------------------------------
Christopher P. Papouras
|
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
+2.1 Agreement and Plan of Merger among Nabors Industries, Inc.,
Nabors Acquisition Corp. VIII, Nabors Industries Ltd. and
Nabors US Holdings Inc. (incorporated by reference to Annex
I to proxy statement/prospectus included in Nabors
Industries Ltd.'s Registration Statement on Form S-4
(Registration No. 333-76198) filed with the SEC on May 10,
2002, as amended).
+3.1 Memorandum of Association of Nabors Industries Ltd.
(incorporated by reference to Annex II to the proxy
statement/prospectus included in Nabors Industries Ltd.'s
Registration Statement on Form S-4 (Registration No.
333-76198) filed with the SEC on May 10, 2002, as amended).
+3.2 Amended and Restated Bye-Laws of Nabors Industries Ltd.
(incorporated by reference to Annex III to the proxy
statement/prospectus included in Nabors Industries Ltd.'s
Registration Statement on Form S-4 (Registration No.
333-76198) filed with the SEC on May 10, 2002, as amended).
3.3 Restated Certificate of Incorporation of Nabors Industries,
Inc.
3.4 Restated By-laws of Nabors Industries, Inc.
4.1 Indenture, dated August 22, 2002, among Nabors Industries,
Inc., Nabors Industries Ltd. and Bank One, N.A.
4.2 Registration Rights Agreement, dated August 22, 2002, among
Nabors Industries, Inc., Nabors Industries Ltd. and Lehman
Brothers Inc.
4.3 Form of 5.375% Senior Exchange Note due 2012 (included in
Exhibit 4.1).
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP with
respect to the new notes.
5.2 Opinion of Appleby Spurling & Kempe with respect to the new
notes.
12.1 Computation of ratio of earnings to fixed charges.
15.1 Awareness Letter of PricewaterhouseCoopers LLP to the
Securities and Exchange Commission.
21.1 Significant Subsidiaries of Nabors Industries, Inc. and
Nabors Industries Ltd.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
23.3 Consent of Appleby Spurling & Kempe (included in Exhibit
5.2).
24.1 Powers of Attorney (included in signature page hereto).
25.1 Statement of Eligibility and Qualification on Form T-1 of
Bank One, N.A., as trustee under the Indenture for the
5.375% Senior Notes due 2012.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Letter to Clients.
99.4 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
|
+ Incorporated by reference as indicated.
EXHIBIT 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
NABORS INDUSTRIES, INC.
1. The name of the corporation is Nabors Industries, Inc.
2. The address of its registered office in the State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
4. The total number of shares of stock which the corporation shall have authority to issue is 1,000 shares of common stock, par value $.01 per share.
5. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, alter or repeal the by-laws of the corporation.
6. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide.
7. Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation.
8. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
9. No director of this corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. No repeal or amendment of this Section 9 which existed at the time of such repeal or amendment with respect to acts or omissions occurring prior to such repeal or amendment.
10. All persons who the corporation is empowered to indemnify pursuant to the provisions of Section 145 of the General Corporation Law of the State of Delaware (or any similar provision or provisions of applicable law at the time in effect), shall be indemnified by the corporation to the fullest extent permitted thereby. The foregoing right of indemnification shall not be deemed to be exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of shareholders or disinterested directors, or otherwise. No repeal or amendment of this Section 10 shall adversely affect any rights of any person pursuant to this Section 10 which existed at the time of such repeal or amendment with respect to acts or omissions occurring prior to such repeal or amendment.
EXHIBIT 3.4
BY-LAWS
OF
OFFICES
SECTION 1. Principal Office.
The principal office of the Corporation shall be at such place as the Board of Directors may from time to time determine, but until a change is effected, such principal office shall be at 515 West Greens Road, Suite 1200, Houston, Texas 77067.
SECTION 2. Other Offices.
The Corporation may also have other offices at such places, within or without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Time and Place of Meetings.
A meeting of stockholders for any purpose may be held at such time and place, within or without the State of Delaware, as shall be stated on the notice thereof or in a duly executed waiver of notice thereof.
SECTION 2. Annual Meeting.
The annual meeting of the stockholders of the Corporation shall be held on the first Tuesday of June in each year if not a legal holiday, and if a legal holiday, then on the next succeeding day which is not a legal holiday at such place, either within or without the State of Delaware, and at such time and as set forth in the notice of the meeting or in a duly executed waiver of notice thereof, for the election of the Board of Directors and for the transaction of such other business as may properly be brought before the meeting. In the event the annual meeting is not held on the date above provided, the Board of Directors shall cause the meeting to be held as soon thereafter as may be convenient. Such subsequent meeting shall be called in the same manner as hereinafter provided for special meetings of stockholders.
SECTION 3. Special Meetings.
Special meetings of the stockholders, unless otherwise prescribed by statute, may be called at any time for any purpose or purposes by the Board and shall be held at such place, either within or without the State of Delaware, and at such hour as may be designated by the Board in the notice of the meeting; provided, however, that the time so fixed shall permit the giving of notice as provided in Section 4 of this Article II, unless such notice is waived as provided by law or by these Restated By-Laws. At a special meeting only such matters as may be specified in the notice thereof shall be considered. Special meetings shall also be called and held in such cases and in such manner as may be specifically required by law or by the Certificate of Incorporation.
SECTION 4. Notice of Meetings.
Written notice of each meeting of the stockholders, which shall state the place, date and hour of the meeting and, in the case of a special meeting or where otherwise required by law, the purpose or purposes
for which it is called, shall be given, unless a different period is required by law, not less than 10 nor more than 60 days before the date of such meeting, by or at the direction of the person calling the meeting, to each stockholder entitled to vote at such meeting. If mailed, the notice of a meeting of stockholders shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat. Any such notice for any meeting other than the annual meeting shall, if issued at the direction of the Board, so indicate. When a meeting is adjourned to another time or place, notice need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than 30 days after the date of the original meeting, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
SECTION 5. Quorum.
Except as otherwise required by law, the Certificate of Incorporation or these By-Laws, at all meetings of the stockholders, the holders of a majority of the shares issued and outstanding and entitled to vote shall be present in person or represented by proxy in order to constitute a quorum for the transaction of any business. The holders of a plurality of the shares present in person or represented by proxy and entitled to vote thereat, whether or not a quorum shall be present, may adjourn the meeting from time to time, to a specified date or place. At any such adjourned meeting at which a quorum may be present, the Corporation may transact any business which might have been transacted at the original meeting.
As to any matter with respect to which a separate class vote is required by the Certificate of Incorporation, the holders of one-third of the shares of such class which are then outstanding and entitled to vote shall be present in person or represented by proxy in order to constitute a quorum for the purpose of any separate vote required by such class.
The absence from any meeting of the number of shares required by law, the Certificate of Incorporation or these By-Laws for action upon one matter shall not prevent action at such meeting upon any other matter or matters which may properly come before the meeting, if the number of shares required in respect of such other matters shall be present.
SECTION 6. Organization.
At each meeting of the stockholders, the President or, in his absence or inability to act, the most senior Vice President or, in his absence or inability to act, any person as may be designated by the Board of Directors or, in the absence of such designation, a chairman to be chosen at the meeting by the majority of those stockholders present in person or represented by proxy shall act as chairman of the meeting. The Secretary or, in his absence or inability to act, an Assistant Secretary, or in his absence or inability to act, any person as may be designated from time to time by the Board of Directors shall act as secretary of each meeting of stockholders and keep the minutes thereof; if no such person is present or has been chosen, the holders of record of a majority of shares of stock present in person or represented by proxy and entitled to vote at the meeting shall choose any person present to act as secretary of the meeting.
SECTION 7. Order of Business.
The order of business at all meetings of the stockholders shall be as determined by the chairman of the meeting.
SECTION 8. Voting and Required Vote.
At each meeting of stockholders, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder except as otherwise provided in the Certificate of Incorporation. Except as otherwise provided in the Certificate of Incorporation, and subject to statute, at each meeting of stockholders if there shall be a quorum, the affirmative vote of the holders of a majority of shares present
in person or represented by proxy and entitled to vote thereat, shall decide all matters brought before such meeting.
SECTION 9. Proxies.
Each stockholder entitled to vote at any meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy. Any such proxy shall be delivered to the secretary of such meeting at or prior to the time designated in the order of business for so delivering such proxies. Each such proxy shall be in writing and executed by the stockholder or his duly authorized attorney-in-fact, but no such proxy shall be voted after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
SECTION 10. List of Stockholders.
A complete list of the stockholders entitled to vote at any meeting, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be prepared, or shall be caused to be prepared, by the Secretary and shall be open to examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city in which the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to the stockholders entitled to examine the stock ledger, the list required by these By-Laws or the books of the Corporation, or to vote in person or by proxy at any meeting of the stockholders.
SECTION 11. Voting by Fiduciaries, Pledgors and Joint Owners.
Persons holding stock in a fiduciary capacity shall be entitled to vote the shares so held. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the Corporation he has expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock and vote thereon.
If shares or other securities having voting power stand of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants-in-common, tenants by the entirety or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting binds all;
(c) if more than one votes, but the vote is evenly split on any particular matter, each faction may vote the securities in question proportionally, or any person voting the shares, or a beneficiary, if any, may apply to the Court of Chancery or such other court as may have jurisdiction to appoint an additional person to act with the persons so voting the shares, which shall then be voted as determined by a majority of such persons and the person appointed by the Court. If the instrument so filed shows that any such tenancy is held in unequal interest, a majority or even-split for the purpose of this paragraph shall be a majority or even-split in interest.
SECTION 12. Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by all of the holders of outstanding stock.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers.
The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors, which may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by statute, by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders or such other persons as provided therein.
SECTION 2. Number of Directors.
The number of Directors shall be determined from time to time by resolution of the stockholders or the Board of Directors.
SECTION 3. Resignations.
Any Director may resign at any time upon written notice to the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt thereof by the Board of Directors or by any such officer.
SECTION 4. Annual Meetings.
The annual meeting of the Board of Directors for the purpose of organizing the Board, appointing officers and members of committees and transacting other business, shall be held immediately following the annual meeting of the stockholders at the same place where such meeting of stockholders shall be held. No notice shall be required for any such meeting if held immediately after the adjournment, and at the site, of the meeting of the stockholders. If not so held, notice shall be given in the same manner as required for special meetings of the Board of Directors.
SECTION 5. Regular Meetings.
Additional regular meetings of the Board may be held without notice at such time and place (within or without the State of Delaware) as shall from time to time be determined by the Board of Directors.
SECTION 6. Special Meetings.
Special meetings of the Board may be called at any time by the Chairman of the Board, the Vice Chairman, the President or any Vice President or by two or more Directors and shall be held at such time and place (within or without the State of Delaware) as may be fixed by the person or persons calling the meeting; provided, however, that the time so fixed shall permit the giving of notice as provided in Section 7 of this Article III.
SECTION 7. Notice of Special Meetings.
Notice of the time and place of each special meeting of the Board of Directors shall be mailed, postage prepaid to each director, addressed to him at his address as it appears on the records of the Corporation, by first-class mail, at least three days before the day on which such meeting is to be held, or shall be sent addressed to him at such place by telegraph, telex, cable or wireless, or be delivered to him personally or by telephone, no later than the day before the day on which the meeting is to be held, and the method used for notice of such special meeting need not be the same for each Director being notified. Except as otherwise required by law, the Certificate of Incorporation or these By-Laws, such notice need not state the purpose or purposes of such meeting thereof.
SECTION 8. Organization.
The Board of Directors shall select a chairman of the meeting from among the Directors present to preside over the meeting. The Secretary or, in his absence or inability to act, an Assistant Secretary, or in his absence or inability to act, another Director selected by the Board shall act as secretary of the meeting and keep the minutes thereof; if no such person is present or has been chosen, the holders of record of a majority of shares of stock present in person or represented by proxy and entitled to vote at the meeting shall choose any person present to act as secretary of the meeting.
SECTION 9. Quorum.
At all meetings of the Board of Directors the presence in person of one-third of the total number of Directors constituting the entire Board of Directors, whether then in office or not, shall be necessary and sufficient to constitute a quorum for the transaction of any business by the Board of Directors at such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-Laws. At any meeting of the Board of Directors, no action shall be taken (except adjournment, in the manner provided below) until after a quorum has been established, except as otherwise provided by law, the Certificate of Incorporation or these By-Laws.
Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, the act of a majority of Directors who are present at a meeting at which a quorum previously has been established (or at any adjournment of such meeting, provided that a quorum shall have previously been established at such adjourned meeting) shall be the act of the Board of Directors, regardless of whether or not a quorum is present at the time such action is taken. In determining the number of directors who are present at the time any such action is taken, any Director who is in attendance at such meeting but who, for just cause, is disqualified to vote on such matter, shall not be considered as being present at the time of such action for the purpose of establishing the number of votes required to take action on any matter submitted to the Board of Directors, but shall be considered as being present for purposes of determining the existence of a quorum.
In the event a quorum cannot be established at the beginning of a meeting, a majority of the Directors present at the meeting, or the Secretary of the Corporation, if there be no Director present, may adjourn the meeting from time to time until a quorum be present. Only such notice of such adjournment need be given as the Board of Directors may from time to time prescribe.
SECTION 10. Regulations.
The Board of Directors may adopt such rules and regulations for the conduct of its meetings and for the management of the business and affairs of the Corporation as it may deem proper and not inconsistent with law, the Certificate of Incorporation and these By-Laws.
SECTION 11. Written Consent in Lieu of Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board then in office consent thereto in writing, provided that the number of such members is sufficient to constitute a quorum for such action, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.
SECTION 12. Telephonic Participation.
Any and all members of the Board of Directors may participate in a meeting of the Board by means of a conference telephone or similar communications equipment by means of which all persons participating in such meeting shall hear each other; participation in a meeting pursuant to this Section shall constitute presence in person at such meeting.
SECTION 13. Compensation.
Directors shall be entitled to such compensation for their services as Directors and to such reimbursement for any reasonable expense incurred in attending meetings of the Board of Directors as may
from time to time be fixed by the Board of Directors. The compensation of Directors may be on such basis as is determined by the Board of Directors. Any Director may waive compensation for any meeting. Any Director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving compensation and reimbursement for reasonable expenses for such other services.
ARTICLE IV
COMMITTEES
SECTION 1. Committees.
The Board of Directors may appoint such committees as it shall deem advisable and with such rights, powers, and authority as it shall prescribe. Each such committee shall consist of one or more Directors. Unless otherwise provided by the Board of Directors, a majority of the members of each such other committee shall constitute a quorum, and the acts of a majority of the members present at a meeting at which a quorum is present shall be the act of such committee.
SECTION 2. Vacancies; Committee Changes.
In the absence or disqualification of a member of any committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
The Board of Directors shall have the power at any time to fill vacancies in, to change the membership of, and to discharge, any committee or any member of any committee.
SECTION 3. Compensation.
Members of any committee shall be entitled to such compensation for their services as members of the committee and to such reimbursement for any reasonable expenses incurred in attending committee meetings as may from time to time be fixed by the Board of Directors. Any committee member may waive compensation for any meeting. Any committee member receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and from receiving compensation and reimbursement of reasonable expenses for such other services.
SECTION 4. Telephonic Participation.
Any and all members of any committee designated by the Board of Directors may participate in a meeting of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in such meeting can hear each other, and participation in such a meeting pursuant to this Section shall constitute presence in person at such meeting.
SECTION 5. Action by Consent.
Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if a written consent thereto shall be signed by all members of the committee then in office, provided that the number of such members is sufficient to constitute a quorum for such action, if any, and such written consent is filed with the minutes of its proceedings.
ARTICLE V
NOTICES
SECTION 1. Waiver of Notice.
Whenever any notice is required to be given by law, the Certificate of Incorporation or these By-Laws, a written waiver thereof; signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to such notice. Neither the business to be transacted at, nor the purpose of any regular or special meeting of stockholders, any meeting of other securityholders, the Board of Directors, or any committee of the Board of Directors need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation or these By-Laws.
SECTION 2. Attendance at Meeting.
Attendance of a person at any meeting, whether of stockholders or other securityholders (in person or by proxy), or the Board of Directors or any committee of the Board of Directors, shall constitute a waiver of notice of such meeting, except when such person attends such meeting for the express purpose of objecting, and objects, at the beginning of the meeting, to the transaction of any business on the ground that the meeting is not legally called or convened.
ARTICLE VI
OFFICERS
SECTION 1. Number and Qualifications.
The officers of the Corporation shall include the President and a Secretary, and may include one or more Vice Presidents, a Treasurer, and such other officers as may be elected or appointed in accordance with the provisions of Section 2 of this Article VI. Any number of offices, except the offices of President and Secretary, may be held by the same person.
SECTION 2. Selection, Term of Office and Qualification.
The officers shall be elected from time to time by the Board of Directors at its first regular meeting after each annual meeting of stockholders. Each officer shall hold his office until his successor is elected and qualified or until he shall resign in the manner provided in Section 3 of this Article VI, or until he shall have been removed in the manner provided in Section 4 of this Article VI, or until his death. Other officers, including without limitation one or more Assistant Treasurers and one or more Assistant Secretaries shall be chosen in such manner, hold office for such period, have such authority, perform such duties and be subject to removal as may be prescribed by the Board of Directors.
SECTION 3. Resignations.
Any officer may resign at any time upon written notice to the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be specified therein, immediately upon its receipt thereof by the Board of Directors or any such officer.
SECTION 4. Removal.
Any officer may be removed at any time, either with or without cause, by the Board of Directors; and any officer not elected by the Board of Directors may be removed in such manner as may be determined by the Board of Directors. Removal from office however, shall not prejudice the contract rights, if any, of the person removed except as provided in such contract.
SECTION 5. Vacancies.
Any vacancy occurring in any office of the Corporation which is required by
Section 2 of this Article VI to be elected by the Board of Directors, whether by
death, resignation, removal or otherwise,
shall be filled for the unexpired portion of the term by the Board of Directors. A vacancy in any other office shall be filled in such manner as may be determined by the Board of Directors.
SECTION 6. The President.
The President shall be chief executive officer of the Corporation and shall have, subject to the control of the Board of Directors, general and active management of the business of the Corporation and the general and active supervision and direction over the business operations and affairs of the Corporation and over its several officers, agents and employees. He shall, unless also a Director, be an ex officio member of all committees of the Board. In general, he shall have such other powers and shall perform such other duties as usually pertain to the office of President or as from time to time may be assigned to him by the Board or these By-Laws.
SECTION 7. Vice President.
The Vice President or, in the event there be more than one, the Vice Presidents in the order designated, or in the absence of any designation, in the order of their seniority, shall have such powers and perform such duties as from time to time may be assigned to him by the Board.
SECTION 8. The Treasurer and Assistant Treasurers.
The Treasurer shall:
(a) have charge and custody of, and be responsible for, all the funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation;
(c) cause all moneys and other valuables to be deposited to the credit of the Corporation in such depositories as may be designated by the Board of Directors;
(d) receive, and give receipts for moneys due and payable to the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investment of its funds as ordered or authorized by the Board of Directors, taking proper vouchers therefor;
(f) render to the President and the Board of Directors at the regular meetings of the Board, or whenever they may request it, an account of all his transactions as Treasurer and of the financial condition of the Corporation; and
(g) in general, have all the powers and perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him by the Board of Directors or the President.
The Assistant Treasurer or Assistant Treasurers, if any, shall in the absence or disability of the Treasurer or at his request, perform his duties and exercise his powers and authority as may be assigned to him by the Board of Directors or the President.
SECTION 9. The Secretary and Assistant Secretaries.
The Secretary shall:
(a) attend all meetings of the Board of Directors, any committee of the Board of Directors, stockholders and other securityholders and record all votes and the proceedings of such meetings in minute books to be kept by him for that purpose;
(b) see that all notices are duly given in accordance with the provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed; and
(e) in general, have all the powers and perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the Board of Directors or the President.
The Assistant Secretary or Assistant Secretaries, if any, shall, in the absence or disability of the Secretary or at his request, perform his duties and exercise his powers and authority as may be assigned to him by the Board of Directors or the President.
SECTION 10. Compensation.
The compensation of all officers of the Corporation shall be fixed from time to time by the Board of Directors; no officer of the Corporation shall be prevented from receiving compensation because he is also a Director of the Corporation.
ARTICLE VII
CAPITAL STOCK AND DIVIDENDS
SECTION 1. Stock Certificates for Shares.
Certificates for shares of the capital stock of the Corporation shall be in such form, not inconsistent with the Certificate of Incorporation, as shall be approved by the Board of Directors and shall be signed by or in the name of the corporation by the Chairman or by the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, provided that the signatures of any such officers thereon may be facsimiles. The seal of the Corporation, if there is one, shall be impressed, by original or by facsimile, printed or engraved, on all such certificates. A certificate may also be signed by the transfer agent and a registrar as the Board of Directors may determine, and in such case the signature of the transfer agent or the registrar may also be facsimile, engraved or printed. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may nevertheless be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
SECTION 2. Stock Records.
The Corporation shall keep at such place or places, within or without the State of Delaware, as the Board of Directors may from time to time determine, the stock record books in which shall be recorded the number of shares issued, the names of the owners of the shares, the number owned by them respectively, and the transfer of such shares with the date of transfer. Blank stock certificate books shall be kept by the Secretary or by any officer or agent designated by the Board.
SECTION 3. Registration of Transfers.
Registration of transfer of certificates representing shares of stock of the Corporation shall be effected only on the books of the Corporation only upon authorization by the registered holder thereof, or by his attorney authorized by power of attorney duly executed and filed with the Secretary or with a designated transfer agent or transfer clerk, and upon surrender to the Corporation or any transfer agent of the Corporation of the certificate or certificates being transferred, which certificate shall be properly endorsed or accompanied by a duly executed stock transfer power and the payment of all taxes thereon. Whenever a certificate is endorsed by or accompanied by a stock power executed by someone other than the person or
persons named in the certificate, evidence of authority to transfer shall also be submitted with the certificate. Whenever any transfers of shares shall be made for collateral security and not absolutely, and both the transferor and transferee request the Corporation to do so, such fact shall be stated in the entry of the transfer.
SECTION 4. Determination of Stockholders.
Except as otherwise provided by law, the Corporation shall be entitled to recognize the exclusive right of a person in whose name any share or shares stand on the record of stockholders as the owner of such share or shares for all purposes, including, without limitation, the rights to receive dividends or other distributions, and to vote as such owner, the Corporation may hold any such stockholder of record liable for calls and assessments and the Corporation shall not be bound to recognize any equitable or legal claim to or interest in any such share or shares on the part of any other person whether or not it shall have express or other notice thereof.
SECTION 5. Regulations Governing Issuance and Transfers of Shares.
The Board of Directors shall have the power and authority to make all such rules and regulations, not inconsistent with these By-Laws, as it may deem expedient concerning the issue, transfer and registration of certificates for shares of stock of the Corporation. It may appoint, or authorize any officer or officers to appoint, one or more transfer agents or one or more transfer clerks and one or more registrars and may require all certificates for shares of stock to bear the signature or signatures of any of them.
SECTION 6. Fixing of Record Date.
In order that the Corporation may determine the stockholders of record entitled to notice of, or to vote at, any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Except as otherwise provided by law, the Certificate of Incorporation, these By-Laws or by resolution of the Board of Directors:
(1) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held;
(2) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed; and
(3) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
SECTION 7. Lost, Stolen or Destroyed Stock Certificates.
The holder of any certificates representing shares of stock of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation of such certificate, and the Board of Directors may authorize the issuance of a new certificate of stock in lieu thereof upon satisfactory proof of such loss, theft or destruction upon the giving of an open penalty bond with surety satisfactory to the Treasurer and the Corporation's counsel, to protect the Corporation or any person injured on account of the alleged loss, theft or destruction of any such certificate or the issuance of a new certificate from any liability or expense
which it or they may incur by reason of the original certificates remaining outstanding and upon payment of the Corporation's reasonable costs incident thereto.
SECTION 8. Dividends and Reserves.
Subject to the provisions of law or of the Certificate of Incorporation, the Board of Directors may, out of funds available therefor at any regular or special meeting, declare dividends upon the capital stock of the Corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the Corporation available for dividends, such sum or sums as the Board may from time to time in their discretion deem proper as a reserve fund for working capital, to meet contingencies, or for equalizing dividends, or for the purpose of repairing, maintaining or increasing the property or business of the Corporation, or for such other purposes as the Board shall deem to be in the best interests of the Corporation. The Board may, in its discretion, modify or abolish any such reserve at any time.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 1. Execution of Contracts, Papers and Documents.
Except as otherwise required by law, the Certificate of Incorporation or these By-Laws, any contract or other instrument may be executed and delivered in the name and on behalf of the Corporation by such officers or employees of the Corporation as the Board may from time to time determine, or in the absence of such determination, by the President. Such authority may be general or confined to specific instances as the Board may determine. Unless authorized by the Board or expressly permitted by these By-Laws, no officer or agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to incur a pecuniary liability for any purpose.
SECTION 2. Voting Shares in Other Corporations.
The Corporation may vote any and all shares of stock and other securities having voting rights which may at any time and from time to time be held by it in any other corporation or corporations and such vote may be cast either in person or by proxy by such officer of the Corporation as the Board of Directors may appoint or, in the absence of such appointment, by the President or the Secretary.
SECTION 3. Checks, Drafts, etc.
All checks, drafts, bills of exchange or other orders for the payment of money out of the funds of the Corporation, and all notes or other evidences of indebtedness of the Corporation, shall be signed in the name and on behalf of the Corporation by such persons and in such manner as shall from time to time be authorized by the Board.
SECTION 4. Books, Accounts and Other Records.
Except as otherwise provided by law, the books, accounts and other records of the Corporation shall be kept at such place or places, within or without the State of Delaware, as the Board of Directors may from time to time designate.
SECTION 5. Corporate Seal.
The Board of Directors may provide a suitable seal which shall bear the name of the Corporation, the year of incorporation and shall include the words "Corporate Seal, Delaware." Said seal shall be in the custody of the Secretary of the Corporation, and may provide for one or more duplicates thereof to be kept in the custody of such other officer or officers of the Corporation as the Board may prescribe.
SECTION 6. Fiscal Year.
The fiscal year of the Corporation shall be a period of twelve (12) calendar months beginning January 1 and ending on December 31 of each year.
ARTICLE IX
TRANSACTIONS WITH DIRECTORS AND OFFICERS
SECTION 1. Affiliated Transactions.
No contract or transaction between the Corporation and one or more of its directors or officers. or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its Directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the Board of Directors or committee thereof that authorizes the contract or transaction or solely because his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by the vote of the stockholders; or
(c) The contract or transaction is fair to the Corporation as of the time it is authorized, approved, or ratified by the Board of Directors, a committee thereof, or the stockholders.
SECTION 2. Determining Quorum.
Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee thereof which authorized the contract or transaction.
ARTICLE X
AMENDMENT
The power to adopt, amend or repeal these By-Laws shall be in the stockholders entitled to vote and may be exercised by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed amendment or repeal be contained in the notice of such special meeting. Such power shall also be conferred upon the directors and may be exercised by the affirmative vote of a majority of the Board at any regular meeting of the Board or at any special meeting of the Board if notice of the proposed amendment or repeal be contained in the notice of such special meeting, but the fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal these By-Laws.
EXHIBIT 4.1
NABORS INDUSTRIES, INC.
AS ISSUER
AND
NABORS INDUSTRIES LTD.,
AS GUARANTOR
AND
BANK ONE, N.A.,
AS TRUSTEE
INDENTURE
DATED AS OF
AUGUST 22, 2002
SERIES A AND SERIES B
5.375% SENIOR NOTES DUE 2012
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions................................................. SECTION 1.02. Other Definitions........................................... SECTION 1.03. Incorporation by Reference of Trust Indenture Act........... SECTION 1.04. Rules of Construction....................................... ARTICLE II THE SECURITIES SECTION 2.01. Form and Dating............................................. SECTION 2.02. Execution and Authentication................................ SECTION 2.03. Registrar and Paying Agent.................................. SECTION 2.04. Paying Agent to Hold Money in Trust......................... SECTION 2.05. Holder Lists................................................ SECTION 2.06. Transfer and Exchange....................................... SECTION 2.07. Replacement Securities...................................... SECTION 2.08. Outstanding Securities...................................... SECTION 2.09. [Reserved.]................................................. SECTION 2.10. Temporary Securities........................................ SECTION 2.11. Cancellation................................................ SECTION 2.12. Defaulted Interest.......................................... SECTION 2.13. Persons Deemed Owners....................................... SECTION 2.14. CUSIP Numbers............................................... ARTICLE III COVENANTS SECTION 3.01. Payment of Securities....................................... SECTION 3.02. Maintenance of Office or Agency............................. SECTION 3.03. SEC Reports; Financial Statements........................... SECTION 3.04. Compliance Certificate...................................... SECTION 3.05. Corporate Existence......................................... SECTION 3.06. Waiver of Stay, Extension or Usury Laws..................... SECTION 3.07. Limitation on Liens......................................... SECTION 3.08. Payment of Additional Amounts............................... SECTION 3.09. Limitations on Sale and Lease-Back Transactions............. ARTICLE IV CONSOLIDATION, MERGER AND SALE SECTION 4.01. Limitation on Mergers and Consolidations.................... SECTION 4.02. Successors Substituted...................................... ARTICLE V DEFAULTS AND REMEDIES SECTION 5.01. Events of Default........................................... SECTION 5.02. Acceleration................................................ |
SECTION 5.03. Other Remedies.............................................. SECTION 5.04. Waiver of Existing Defaults................................. SECTION 5.05. Control by Majority......................................... SECTION 5.06. Limitations on Suits........................................ SECTION 5.07. Rights of Holders to Receive Payment........................ SECTION 5.08. Collection Suit by Trustee.................................. SECTION 5.09. Trustee May File Proofs of Claim............................ SECTION 5.10. Priorities.................................................. SECTION 5.11. Undertaking for Costs....................................... ARTICLE VI TRUSTEE SECTION 6.01. Duties of Trustee........................................... SECTION 6.02. Rights of Trustee........................................... SECTION 6.03. Individual Rights of Trustee................................ SECTION 6.04. Trustee's Disclaimer........................................ SECTION 6.05. Notice of Defaults.......................................... SECTION 6.06. Reports by Trustee to Holders............................... SECTION 6.07. Compensation and Indemnity.................................. SECTION 6.08. Replacement of Trustee...................................... SECTION 6.09. Successor Trustee by Merger, etc. .......................... SECTION 6.10. Eligibility; Disqualification............................... SECTION 6.11. Preferential Collection of Claims Against Company........... ARTICLE VII DISCHARGE OF INDENTURE SECTION 7.01. Termination of Company's and Guarantor's Obligations........ SECTION 7.02. Application of Trust Money.................................. SECTION 7.03. Repayment to Company........................................ SECTION 7.04. Reinstatement............................................... ARTICLE VIII AMENDMENTS SECTION 8.01. Without Consent of Holders.................................. SECTION 8.02. With Consent of Holders..................................... SECTION 8.03. Compliance with Trust Indenture Act......................... SECTION 8.04. Revocation and Effect of Consents........................... SECTION 8.05. Notation on or Exchange of Securities....................... SECTION 8.06. Trustee to Sign Amendments, etc. ........................... ARTICLE IX GUARANTEES OF SECURITIES SECTION 9.01. Unconditional Guarantees.................................... SECTION 9.02. Execution and Delivery of Notation of Guarantees............ ARTICLE X REDEMPTION SECTION Notices to Trustee.......................................... 10.01. SECTION Selection of Securities to be Redeemed...................... 10.02. |
SECTION Notices to Holders.......................................... 10.03. SECTION Effect of Notices of Redemption............................. 10.04. SECTION Deposit of Redemption Price................................. 10.05. SECTION Securities Redeemed in Part................................. 10.06. SECTION Optional Redemption......................................... 10.07. ARTICLE XI MISCELLANEOUS SECTION Trust Indenture Act Controls................................ 11.01. SECTION Notices..................................................... 11.02. SECTION Communication by Holders with Other Holders................. 11.03. SECTION Certificate and Opinion as to Conditions Precedent.......... 11.04. SECTION Statements Required in Certificate or Opinion............... 11.05. SECTION Rules by Trustee and Agents................................. 11.06. SECTION Legal Holidays.............................................. 11.07. SECTION No Recourse Against Others.................................. 11.08. SECTION Governing Law............................................... 11.09. SECTION Consent to Jurisdiction and Service of Process.............. 11.10. SECTION Waiver of Immunity.......................................... 11.11. SECTION Judgment Currency........................................... 11.12. SECTION No Adverse Interpretation of Other Agreements............... 11.13. SECTION Successors.................................................. 11.14. SECTION Severability................................................ 11.15. SECTION Counterpart Originals....................................... 11.16. SECTION Table of Contents, Headings, etc. .......................... 11.17. EXHIBITS EXHIBIT A -- Form of 10-Year Security...................................... EXHIBIT B -- [Reserved].................................................... EXHIBIT C -- Form of Certificate of Transfer............................... EXHIBIT D -- Form of Certificate of Exchange............................... |
THIS INDENTURE dated as of August 22, 2002, is among Nabors Industries, Inc., a Delaware corporation (the "Company"), Nabors Industries Ltd., a Bermuda exempted company (the "Guarantor"), and Bank One, N.A., as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Company's 5.375% Series A Senior Notes due 2012 (the "Series A Securities") and 5.375% Series B Senior Notes due 2012 (the "Series B Securities" and together with the Series A Securities, the "Securities").
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For purposes of this definition, "control" of a Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" shall have meanings correlative to the foregoing. The Trustee may request and may conclusively rely upon an Officers' Certificate to determine whether any Person is an Affiliate of any specified Person.
"Agent" means any Registrar or Paying Agent.
"Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Security, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.
"Attributable Debt" means, with respect to any Sale and Lease-Back Transaction as of any particular time, the present value discounted at the rate of interest implicit in the terms of the lease of the obligations of the lessee under such lease for net rental payments during the remaining term of the lease.
"Bankruptcy Law" means Title 11, U.S. Code or any similar U.S. or State law or any similar foreign law for the relief of debtors.
"Board of Directors" of any Person means the board of directors, board of managers (or other comparable governing body) of such Person or any committee thereof duly authorized, with respect to any particular matter, to act by or on behalf of the board of directors of such Person.
"Business Day" means any day that is not a Legal Holiday.
"Clearstream" means Clearstream Banking, S.A.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor statute.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person.
"Consolidated Net Worth" means the amount of total stockholders' equity shown in the most recent consolidated statement of financial position of the Guarantor as filed with the SEC.
"Corporate Trust Office of the Trustee" means the office of the Trustee at which this Indenture shall be principally administered, which office shall initially be located at the address of the Trustee specified in Section 11.02 and may be located at such other address as the Trustee may give notice to the Company and the Holders or such other address as a successor Trustee may designate from time to time by notice to the Company and the Holders.
"Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
"Definitive Security" means a certificated Security registered in the name of the Holder thereof and issued in accordance with Section 2.06, substantially in the form of Exhibit A, except that such Security shall not bear the Global Security Legend and shall not have the "Schedule of Exchanges of Securities" attached thereto.
"Depositary" means The Depository Trust Company, its nominees and their respective successors.
"Distribution Compliance Period" means the "distribution compliance period" as defined in Regulation S.
"Euroclear" means Euroclear Bank, S.A.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and any successor statute.
"Exchange Offer" means the offer that may be made by the Company pursuant to the Registration Rights Agreement to exchange Series B Securities for the Series A Securities.
"Exchange Offer Registration Statement" means a registration statement under the Securities Act relating to an Exchange Offer, including the related prospectus.
"Funded Debt" means indebtedness for money borrowed which by its terms matures at, or is extendible or renewable at the option of the obligor to, a date more than twelve months after the date of creation of such indebtedness.
"GAAP" means generally accepted accounting principles in the United States, as in effect from time to time.
"Global Securities" means, individually and collectively, each of the Restricted Global Securities and the Unrestricted Global Securities, substantially in the form of Exhibit A, issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or 2.06(f).
"Global Security Legend" means the legend set forth in Section 2.06(g)(ii) which is required to be placed on all Global Securities issued under this Indenture.
"Guarantor" means the Person named as a "Guarantor" in the first paragraph of this instrument until a successor Person shall have assumed the obligations of such Person pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person(s).
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means any indebtedness for money borrowed or representing the deferred purchase price of property or assets purchased.
"Indenture" means this Indenture as amended or supplemented from time to time.
"Indirect Participant" means a Person who holds a beneficial interest in a Global Security through a Participant.
"Initial Purchaser" means the initial purchaser named in the Purchase Agreement, as initial purchaser of the Series A Securities in the Offering.
"Interest Payment Date" has the meaning assigned to such term in the Securities.
"Issue Date" means the first date on which the Series A Securities are issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking institutions in any of New York, New York, Houston, Texas or a place of payment are authorized or obligated by law, regulation or executive order to remain closed.
"Letter of Transmittal" means the letter of transmittal to be prepared by the Company and sent to all Holders of the Securities for use by such Holders in connection with the Exchange Offer.
"Liquidated Damages" has the same meaning as that given to the term "Special Interest" in the Registration Rights Agreement.
"Maturity," when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Offering" means the offering of the Original Securities pursuant to the Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum of the Company, dated August 15, 2002, relating to the Offering.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the President, any Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a Person, one of whom must be the Person's Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer or its Vice President.
"144A Global Security" means a global Security substantially in the form of Exhibit A hereto bearing the Global Security Legend, the Private Placement Legend and the 144A Security Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Securities sold in reliance on Rule 144A.
"144A Security Legend" means the legend set forth in Section 2.06(g)(iv) which is required to be placed on all Series A Securities that are 144A Global Securities or Definitive Securities sold to QIBs pursuant to Rule 144A.
"Opinion of Counsel" means a written opinion from legal counsel who is acceptable to the Trustee. Such counsel may be an employee of or counsel to the Company, the Guarantor or the Trustee.
"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).
"Participating Broker-Dealer" means any broker-dealer that is the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of Series B Securities received by such broker-dealer in the Exchange Offer.
"Person" means any individual, corporation, partnership, limited liability company, limited or general partnership, joint venture, incorporated or unincorporated association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof or other entity of any kind.
"Private Placement Legend" means the legend set forth in Section 2.06(g)(i) which is required to be placed on all Series A Securities issued under this Indenture except where otherwise permitted by the provisions of this Indenture.
"Purchase Agreement" means the Purchase Agreement, dated August 15, 2002, among the Company, the Guarantor and the Initial Purchaser.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date," when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means the price at which the Securities may be redeemed, as set forth in paragraphs 4 and 5 of the form of Securities, as applicable.
"Registration Rights Agreement" means that certain Registration Rights Agreement, dated August 22, 2002, among the Company, the Guarantor and the Initial Purchaser relating to the Original 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 Regulation S Temporary Global Security or Regulation S Permanent Global Security, as appropriate.
"Regulation S Permanent 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 and 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 Regulation S Temporary Global Security upon expiration of the Distribution Compliance Period.
"Regulation S Temporary Global Security" means a temporary global Security substantially in the form of Exhibit A hereto bearing the Global Security Legend, the Private Placement Legend and the Regulation S Temporary Global Security Legend and 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 Securities initially sold in reliance on Rule 903 of Regulation S.
"Regulation S Temporary Global Security Legend" means the legend set forth in Section 2.06(g)(iii) which is required to be placed on all Regulation S Temporary Global Securities issued under this Indenture.
"Responsible Officer" means, when used with respect to the Trustee, any officer assigned by the Trustee to administer corporate trust matters or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
"Restricted Definitive Security" means a Definitive Security bearing the Private Placement Legend.
"Restricted Global Security" means a Global Security bearing the Private Placement Legend.
"Restricted Securities" means "restricted securities" as defined in Rule 144(a)(3) under the Securities Act; provided that the Trustee shall be entitled to request and conclusively rely upon an Opinion of Counsel with respect to whether any Security is a Restricted Security.
"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 Lease-Back Transaction" means any arrangement with any Person providing for the leasing by the Guarantor or any Subsidiary of any property, whereby such property had been sold or transferred by the Guarantor or any Subsidiary to such Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B Securities.
"Securities Act" means the Securities Act of 1933, as amended, and any successor statute.
"Securities Custodian" means the Trustee, as custodian on behalf of the Depositary with respect to the Securities in global form, or any successor entity thereto.
"Series A Securities" has the meaning set forth in the second paragraph of this instrument.
"Series B Securities" has the meaning set forth in the second paragraph of this instrument.
"Shelf Registration" means the shelf registration pursuant to a Shelf Registration Statement.
"Shelf Registration Statement" means the Shelf Registration Statement as defined in the Registration Rights Agreement.
"Stated Maturity" means, with respect to any Security, the date specified in such Security as the fixed date on which the principal of such Security is due and payable.
"Subsidiary" means a corporation, partnership or other entity more than 50% of the outstanding voting securities of which is owned, directly or indirectly, by the Guarantor or one or more other Subsidiaries, or by the Guarantor and one or more other Subsidiaries. For purposes of this definition, "voting securities" means securities which ordinarily have voting power for the election of a Board of Directors, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.
"Taxes" means any tax, duty, levy, impost, assessment or other governmental charge of whatever nature imposed or levied by or on behalf of the Government of Bermuda or by an authority or agency therein or thereof having the power to tax, including any interest, penalties or other charges in respect thereof.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. Sections 77aaa-77bbbb), as in effect on the Issue Date.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean the successor serving hereunder.
"U.S. Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America for the payment of which the full faith and credit of the United States of America is pledged.
"U.S. Person" means a "U.S. person" as defined in Rule 902(k) under the Securities Act.
"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, representing Securities that do not bear the Private Placement Legend.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
---- ----------
"Additional Amounts"........................................ 3.08
"Agent Members"............................................. 2.01(b)
"Authorized Agent".......................................... 11.19
"Covenant Defeasance"....................................... 7.01(c)
"Debt"...................................................... 3.07
"DTC"....................................................... 2.03
"Event of Default".......................................... 5.01
"Excluded Holder"........................................... 3.08
"Guarantees"................................................ 9.01(a)
"Indenture Obligations"..................................... 9.01(a)
"Judgment Currency"......................................... 11.12
"mortgage" or "mortgages"................................... 3.07
"Original Securities"....................................... 2.02
"Paying Agent".............................................. 2.03
"Registrar"................................................. 2.03
"Territory"................................................. 3.08
|
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
"commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and the Guarantor.
All other terms used in this Indenture, and not otherwise defined herein, that are defined by the TIA, defined by a TIA reference to another statute or defined by an SEC rule under the TIA have the meanings so assigned to them.
SECTION 1.04. Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (3) "or" is not exclusive; (4) words in the singular include the plural, and in the plural include the singular; (5) words implying any gender shall apply to all genders; (6) the term "merger" includes a statutory compulsory share exchange and a conversion of a corporation into a limited liability company, a partnership or other entity and vice versa and (7) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating.
(a) General. The Securities, any notations thereon relating to the Guarantees and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A to this Indenture, the terms of which are hereby incorporated into this Indenture. The Securities may have notations, legends or endorsements required by law, securities exchange rule, the Company's certificate of incorporation, memorandum of association, articles of association, other organizational documents, agreements to which the Company is subject, if any, or usage, provided that any such notation, legend or endorsement is in a form acceptable to the Company. Each Security shall be dated the date of its authentication. The Securities shall be in registered form without coupons and only in denominations of $1,000 and any integral multiples thereof. The terms and provisions contained in the Securities shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company, the Guarantor and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
(b) Global Securities. Original Securities offered and sold to QIBs in reliance on Rule 144A as provided in the Purchase Agreement shall be issued initially in the form of one or more Global Securities in definitive, fully registered form without interest coupons and bearing the Global Security Legend and Private Placement Legend, which shall be deposited on behalf of the purchasers of the Original Securities represented thereby with the Trustee, as custodian for the Depositary (or with such other custodian as the Depositary may direct), and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee as hereinafter provided. Any endorsement of a Global Security to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Securities represented thereby shall be made by the Trustee or the Securities Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06. Members of, or Participants in, the Depositary ("Agent Members") shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, 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.
(c) Temporary Global Securities. Securities offered and sold in reliance on Regulation S, if any, shall be issued initially in the form of the Regulation S Temporary Global Security and bearing the Regulation S Temporary Global Security Legend, which shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Distribution Compliance Period shall be terminated upon the receipt by the Trustee of (i) a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-U.S. beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Security (except to the extent of any beneficial owners thereof who acquired an interest therein during the Distribution Compliance Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a 144A Global Security bearing a Private Placement Legend, all as contemplated by Section 2.06(g)(i)), and (ii) an Officers' Certificate from the Company. Following the
termination of the Distribution Compliance Period, beneficial interests in the Regulation S Temporary Global Security shall be exchanged for beneficial interests in Regulation S Permanent Global Securities pursuant to the Applicable Procedures. Simultaneously with the authentication of Regulation S Permanent Global Securities, the Trustee shall cancel the Regulation S Temporary Global Security. The aggregate principal amount of the Regulation S Temporary Global Security and the Regulation S Permanent Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The provisions of the "Operating Procedures of the Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream" and "Customer Handbook" of Cedel Bank (as adopted by Clearstream) and any successor, alternative or additional procedures from time to time adopted by Euroclear or Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Security and the Regulation S Permanent Global Securities that are held by Participants through Euroclear or Clearstream.
(e) Certificated Securities. Except as provided in this Section 2.01 or
Section 2.06, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of Definitive Securities.
SECTION 2.02. Execution and Authentication. One Officer of the Company shall sign the Securities on behalf of the Company by manual or facsimile signature. The Company's seal may be (but shall not be required to be) impressed, affixed, imprinted or reproduced on the Securities and may be in facsimile form.
If an Officer of the Company whose signature is on this Indenture or a Security no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate (i) for original issue on the Issue Date Series A Securities in the aggregate principal amount of $275,000,000 (the "Original Securities"), (ii) the Series B Securities for original issue, pursuant to the Exchange Offer, for a like principal amount of Series A Securities and (iii) any amount of additional Securities specified by the Company after the Issue Date, in each case, upon a written order of the Company signed by one Officer of the Company; provided, however, that no additional Securities may be issued or guaranteed if a Default or Event of Default shall have occurred and be continuing. Such order shall specify (a) the amount of the Securities to be authenticated and the date of original issue thereof, and (b) whether the Securities are Series A Securities or Series B Securities. In authenticating such Securities, the Trustee shall be entitled to receive, and shall be entitled to rely upon, an Opinion of Counsel substantially to the effect that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
The aggregate principal amount of Securities outstanding at any time may not exceed the aggregate principal amount of Securities authorized for issuance by the Company pursuant to one or more written orders of the Company, except as provided in Section 2.07. Subject to the foregoing, the aggregate principal amount of Securities that may be issued under this Indenture shall not be limited.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company, the Guarantor or any of their respective Affiliates.
The Original Securities, the Series B Securities and any such additional Securities shall each be a single series for all purposes of this Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an office or agency where Securities may be presented for registration of transfer or exchange ("Registrar") and an office or agency where Securities may be presented for payment ("Paying Agent"). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar without notice to any Holder. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Guarantor or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
The Company initially appoints The Depository Trust Company ("DTC") to act as Depositary with respect to each Global Security.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on the Securities, whether such money shall have been paid to it by the Company or the Guarantor, and will notify the Trustee of any default by the Company or the Guarantor in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each Interest Payment Date, and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. A Global Security may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Securities will be exchanged by the Company for Definitive Securities if (i) the Trustee receives notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered
under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 90 days after the date of such notice from the Depositary or (ii) the Company in its sole discretion determines that the Global Securities (in whole but not in part) should be exchanged for Definitive Securities and delivers a written notice to such effect to the Trustee; provided that in no event shall the Regulation S Temporary Global Security be exchanged by the Company for Definitive Securities prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the preceding events in (i) or (ii) above, Definitive Securities shall be issued in such names as the Depositary shall instruct the Trustee. Global Securities also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Except as provided in this Section 2.06(a) and in Section 2.06(b)(ii) and Section 2.06(c) for the exchange or transfer of Global Securities for Definitive Securities, every Security authenticated and delivered in exchange for, or in lieu of, a Global Security or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Security. A Global Security may not be exchanged for another Security other than as provided in this Section 2.06(a); however, beneficial interests in a Global Security may be transferred and exchanged as provided in Section 2.06(b), (c) or (f).
(b) 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 Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Securities shall 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 (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i) 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 Distribution
Compliance Period, transfers of beneficial interests in the Temporary
Regulation S Global Security may not be made to a U.S. Person or for the
account or benefit of a U.S. Person. Beneficial interests in any
Unrestricted Global Security may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Security. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) 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 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Depositary
either (A) (1) 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 (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) 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 (2)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Security
shall be registered to effect the transfer or exchange referred to in (1)
above; provided that in no event shall Definitive Securities be issued upon
the transfer or exchange of beneficial interests in the Regulation S
Temporary Global Security prior to (x) the expiration of the Distribution
Compliance Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon consummation
of the Exchange Offer by the Company in accordance with Section 2.06(f),
the requirements of this
Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Securities. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Securities contained in this Indenture and the Securities or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Security(s) pursuant to Section 2.06(h).
(iii) 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 2.06(b)(ii) above and the Registrar receives the following:
(A) 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 C hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Temporary Global Security or the Regulation S Permanent Global Security, then the transferor must deliver a certificate in the form of Exhibit C hereto, including the certifications in item (2) thereof.
(iv) 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 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications required by the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to the Shelf Registration in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) 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 D, including the certifications in item (1)(a) thereof; or
(2) 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 C, including the certifications in item
(4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act 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 (B) or (D) above at a time when an Unrestricted Global Security has not yet been issued, the Company shall issue and, upon receipt of a
written authentication order in accordance with Section 2.02, 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 (B) or (D) above.
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.
(c) Transfer or Exchange of Beneficial Interests for Definitive Securities.
(i) Beneficial Interests in Restricted Global Securities to Restricted Definitive Securities. If any holder of a beneficial interest in a Restricted Global Security proposes to exchange such beneficial interest for a Restricted Definitive Security or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Security, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Security proposes to exchange such beneficial interest for a Restricted Definitive Security, a certificate from such holder in the form of Exhibit D, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit C, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit C, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit C, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to the Guarantor or any of its Subsidiaries, a certificate to the effect set forth in Exhibit C, including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit C, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Security to be reduced accordingly pursuant to Section 2.06(h), and
the Company shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Security in the
appropriate principal amount. Any Definitive Security issued in exchange
for a beneficial interest in a Restricted Global Security pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Securities to the Persons in whose names such
Securities are so registered. Any Definitive Security issued in exchange
for a beneficial interest in a Restricted Global Security pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C), a beneficial interest in the Regulation S Temporary Global Security may not be exchanged for a Definitive Security or transferred to a Person who takes delivery thereof in the form of a Definitive Security prior to (x) the expiration of the Distribution Compliance Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, except in the case of a transfer pursuant
to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Securities to Unrestricted Definitive Securities. A holder of a beneficial interest in a Restricted Global Security may exchange such beneficial interest for an Unrestricted Definitive Security or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Security only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications required by the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to the Shelf Registration in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Security proposes to exchange such beneficial interest for a Definitive Security that does not bear the Private Placement Legend, a certificate from such holder in the form of Exhibit D, including the certifications in item (1)(b) thereof; or
(2) 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 Definitive Security that does not bear the Private Placement Legend, a certificate from such holder in the form of Exhibit C, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act 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.
(iv) Beneficial Interests in Unrestricted Global Securities to Unrestricted Definitive Securities. If any holder of a beneficial interest in an Unrestricted Global Security proposes 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, then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the aggregate principal amount of the applicable Global Security to be reduced accordingly pursuant to Section 2.06(h), and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Security in the appropriate principal amount. Any Definitive Security issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Securities to the Persons in whose names such Securities are so registered. Any Definitive Security issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for Beneficial Interests.
(i) Restricted Definitive Securities to Beneficial Interests in Restricted Global Securities. If any Holder of a Restricted Definitive Security proposes to exchange such Security for a beneficial interest in a Restricted Global Security or to transfer such Restricted Definitive Securities to a Person who
takes delivery thereof in the form of a beneficial interest in a Restricted Global Security, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Security proposes to exchange such Security for a beneficial interest in a Restricted Global Security, a certificate from such Holder in the form of Exhibit D, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Security is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit C, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Security is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit C, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Security is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit C, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Security is being transferred to the Parent or any of its Subsidiaries, a certificate to the effect set forth in Exhibit C, including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Security is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit C, including the certifications in item (3)(c) thereof, the Trustee shall cancel the Restricted Definitive Security, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Security, in the case of clause (B) above, the 144A Global Security, and in the case of clause (C) above, the Regulation S Global Security.
(ii) Restricted Definitive Securities to Beneficial Interests in Unrestricted Global Securities. A Holder of a Restricted Definitive Security may exchange such Security for a beneficial interest in an Unrestricted Global Security or transfer such Restricted Definitive Security to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications required by the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to the Shelf Registration in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Security proposes to exchange such Security for a beneficial interest in the Unrestricted Global Security, a certificate from such Holder in the form of Exhibit D, including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Security proposes to transfer such Security to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Security, a certificate from such Holder in the form of Exhibit C, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act 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.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Security and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Security.
(iii) Unrestricted Definitive Securities to Beneficial Interests in
Unrestricted Global Securities. A Holder of an Unrestricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Unrestricted Definitive
Security to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security at any time. Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the
applicable Unrestricted Definitive Security and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Securities. If any such exchange or transfer from a Definitive Security to
a beneficial interest is effected pursuant to subparagraphs (ii)(B),
(ii)(D) or (iii) above at a time when an Unrestricted Global Security has
not yet been issued, the Company shall issue and, upon receipt of a written
authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of Definitive Securities so
transferred.
(e) Transfer and Exchange of Definitive Securities for Definitive Securities. Upon request by a Holder of Definitive Securities and such Holder's compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Securities. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Securities duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by his 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 2.06(e).
(i) 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 Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a certificate in the form of Exhibit C, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit C, including the certifications in item (2) thereof; and
(C) 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 C, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
(ii) 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:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, makes the certifications required by the applicable Letter of Transmittal;
(B) such transfer is effected pursuant to the Shelf Registration in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Security proposes to exchange such Security for an Unrestricted Definitive Security, a certificate from such Holder in the form of Exhibit D, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Security proposes to transfer such Security 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 C, including the certifications in item (4) thereof; and, in each such case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act 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.
(iii) 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 Registrar shall register the Unrestricted Definitive Securities pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Company shall issue and, upon receipt of an authentication order in accordance with Section 2.02, the Trustee shall authenticate (i) 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 make the certifications required by the applicable Letters of Transmittal, and accepted for exchange in the Exchange Offer. Concurrently with the issuance of such Securities, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Securities to be reduced accordingly, and the Company shall execute and the Trustee shall authenticate and deliver to the Persons designated by the Holders of Definitive Securities so accepted Definitive Securities in the appropriate principal amounts.
(g) Legends. The following legends shall appear on the face of all Global Securities and Definitive Securities issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Security and each Definitive Security (and all Securities issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. 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, SUCH REGIS-
TRATION. BY ITS ACQUISITION OF THIS SECURITY OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
1. AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, THAT IT WILL OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH EITHER THE COMPANY OR ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO NABORS INDUSTRIES LTD. OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED 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 THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH OF THE CASES ABOVE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
2. AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS THIS SECURITY, THE COMPANY AND THE REGISTRAR MAY REQUIRE THE HOLDER OF THIS SECURITY TO DELIVER A WRITTEN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION THAT THEY REASONABLY REQUIRE TO CONFIRM THAT SUCH PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED IN THIS SECURITY, THE TERMS "OFFSHORE TRANSACTION," "U.S. PERSON" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM WITHIN REGULATION S.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OF PLANS, INDIVIDUAL RETIREMENT ACCOUNTS OR OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OR ERISA OR THE CODE ("SIMILAR LAWS"), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE "PLAN ASSETS" OF SUCH PLANS, ACCOUNTS OR ARRANGEMENTS, OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
(B) Notwithstanding the foregoing, any Global Security or
Definitive Security issued pursuant to subparagraph (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section
2.06 (and all Securities issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Security Legend. Each Global Security shall bear a legend in substantially the following form:
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. THE DEPOSITORY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. 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.
(iii) Regulation S Temporary Global Security Legend. The Regulation S Temporary Global Security shall bear a legend in substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
(iv) 144A Security Legend. Any Series A Security that is a 144A Global Security or a Definitive Security sold to QIBs pursuant to Rule 144A shall bear a legend in substantially the following form:
EACH PURCHASER OF THE SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
(h) 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,
repurchased or canceled in whole and not in part, each such Global Security
shall be returned to or retained and canceled by the Trustee in accordance with
Section 2.11. 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, the principal amount of Securities represented by
such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and 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, such other Global Security shall be increased accordingly and an endorsement shall be made on such Global Security by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(ii) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Securities and Definitive Securities upon the Company's order or at the Registrar's request.
(iii) No service charge shall be made to a holder of a beneficial interest in a Global Security or to a Holder of a Definitive Security for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 8.05 and 10.06).
(iv) The Registrar shall not be required (A) to register the transfer of or to exchange any Securities during a period beginning at the opening of business 15 days before the day of the mailing of notice of redemption under Section 10.03 and ending at the close of business on such day, or (B) to register the transfer of or exchange any Security selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(v) All Global Securities and Definitive Securities issued upon any registration of transfer or exchange of Global Securities or Definitive Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Securities or Definitive Securities surrendered upon such registration of transfer or exchange.
(vi) The Company shall not be required (A) to issue, to register the transfer of or to exchange any Securities during a period beginning at the opening of business 15 days before the day of the mailing of notice of redemption under Section 10.03 and ending at the close of business on such day, or (B) to register the transfer of or to exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(vii) The Trustee shall authenticate Global Securities and Definitive Securities in accordance with the provisions of Section 2.02.
(viii) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the
Securityholder (a) satisfies the Company or the Trustee within a reasonable time
after such Securityholder has notice of such loss, destruction or wrongful
taking and the Registrar does not register a transfer prior to receiving such
notification, (b) makes such request to the Company or Trustee prior to the
Security being acquired by a protected purchaser as defined in Section 8-303 of
the Uniform Commercial Code (a "protected purchaser") and (c) satisfies any
other reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder must furnish an indemnity bond that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, any
Agent or any authenticating agent from any loss which any of them may suffer if
a Security is replaced. The Company and the Trustee may charge for their
expenses in replacing a Security. If, after the delivery of such replacement
Security, a bona fide purchaser of the original Security in lieu of which such
replacement Security was issued presents
for payment or registration such original Security, the Trustee shall be entitled to recover such replacement Security from the Person to whom it was delivered or any Person taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Trustee or the Company in connection therewith. Every replacement Security is a contractual obligation of the Company.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee hereunder and those described in this Section 2.08 as not outstanding; provided, however, that in determining whether the Holders of the requisite principal amount of outstanding Securities are present at a meeting of Holders of Securities for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, Securities held for the account of the Company or any of its Affiliates shall be disregarded and deemed not to be outstanding, except that in determining whether the Trustee shall be protected in making such a determination or relying upon any such quorum, consent or vote, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
If a Security is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under Section 3.01, it ceases to be outstanding and interest on it ceases to accrue.
SECTION 2.09. [Reserved.]
SECTION 2.10. Temporary Securities. Until Definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of Definitive Securities, but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Securities in exchange for temporary Securities. Until so exchanged, temporary Securities shall in all respects be entitled to the same benefits under this Indenture as Definitive Securities.
SECTION 2.11. Cancellation. The Company or the Guarantor at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation. All canceled Securities held by the Trustee shall be disposed of in accordance with the usual disposal procedures of the Trustee. The Company may not issue new Securities to replace Securities that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of
interest on the Securities, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest on the defaulted interest, in each
case at the rate provided in the Securities and in the manner provided in
Section 3.01. The Company may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. At least 15 days before any special
record date, the Company (or the Trustee, in the name of and at the expense of
the Company) shall mail to Holders a notice that states the special record date,
the related payment date and the amount of such interest to be paid.
SECTION 2.13. Persons Deemed Owners. The Company, the Guarantor, the Trustee, any Agent and any authenticating agent may treat the Person in whose name any Security is registered as the owner of
such Security for the purpose of receiving payments of principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on such Security and for all other purposes. None of the Company, the Guarantor, the Trustee, any Agent or any authenticating agent shall be affected by any notice to the contrary.
SECTION 2.14. CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
COVENANTS
SECTION 3.01. Payment of Securities. The Company shall pay the principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest on the Securities on the dates and in the manner provided in the Securities and in this Indenture. Principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest shall be considered paid on the date due if the Paying Agent, other than the Company or a Subsidiary of the Company, holds by 11:00 a.m., Eastern time, on that date money deposited by or on behalf of the Company designated for and sufficient to pay all principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest then due.
To the extent lawful, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest (without regard to any applicable grace period) at a rate equal to the then applicable interest rate on the Securities.
Solely for purposes of disclosure pursuant to the Interest Act (Canada) (and for no other purpose), the annual interest rate applicable to the Securities, for any portion of any period of less than one year, will be the percentage interest rate per annum stipulated in the Securities as to which the calculation must be made, multiplied by the number of days in the calendar year in which the applicable interest is paid, divided by 360.
SECTION 3.02. Maintenance of Office or Agency. The Company will maintain, in the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities may be presented for registration of transfer or exchange, where Securities may be presented for payment and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03.
SECTION 3.03. SEC Reports; Financial Statements.
(a) The Guarantor covenants and agrees to file with the Trustee copies, within 15 days after the Guarantor is required to file the same with the SEC, of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Guarantor may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Guarantor is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports, if any, which may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations.
(b) The Guarantor covenants and agrees to file with the Trustee and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional information, documents and reports, if any, with respect to compliance by the Guarantor with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations.
(c) [Reserved.]
(d) At any time when neither the Guarantor nor the Company is subject to
Section 13 or 15(d) of the Exchange Act and the Securities are not freely
transferrable under the Securities Act as contemplated by the Registration
Rights Agreement, upon the request of a Holder, the Guarantor and 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, or to a prospective
purchaser of a Security designed by such Holder, in order to permit compliance
with Rule 144A under the Securities Act.
SECTION 3.04. Compliance Certificate. The Company and the Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a statement signed by two Officers of the Company (one of whom shall be the Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer of the Company) and two Officers of the Guarantor (one of whom shall be the Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer of the Guarantor), which statement need not constitute an Officers' Certificate, complying with TIA Section 314(a)(4) and stating that in the course of performance by the signing Officers of the Company and Officers of the Guarantor of their duties as such Officers, they would normally obtain knowledge of the keeping, observing, performing and fulfilling by the Company and the Guarantor, respectively, of their obligations under this Indenture, and further stating, as to each such Officer signing such statement, that to the best of his knowledge, each of the Company and the Guarantor has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which such Officer may have knowledge and what action the Company or the Guarantor, as the case may be, are taking or proposes to take with respect thereto).
SECTION 3.05. Corporate Existence. Subject to Article IV, each of the Company and the Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, under the laws of its respective jurisdiction of incorporation or formation.
SECTION 3.06. Waiver of Stay, Extension or Usury Laws. Each of the Company and the Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law, which would prohibit or forgive the Company or the Guarantor from paying all or any portion of the principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that they may lawfully do so) each of the Company and the Guarantor hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 3.07. Limitation on Liens. So long as any Securities are outstanding, the Guarantor will not, nor will it permit any Subsidiary to, issue, assume, guarantee or suffer to exist any debt for money borrowed ("Debt") if such Debt is secured by a mortgage, pledge, security interest or lien (a "mortgage" or "mortgages") upon any properties of the Guarantor or any Subsidiary or upon any securities or indebtedness of any Subsidiary (whether such properties, securities or indebtedness is now owned or hereafter acquired) without in any such case effectively providing that the Securities shall be secured equally and ratably with (or prior to) such Debt, except that the foregoing restrictions shall not apply to:
(a) mortgages on any property acquired, constructed or improved by the Guarantor or any Subsidiary (or mortgages on the securities of a special purpose Subsidiary which holds no material assets other than the property being acquired, constructed or improved) after the date of this Indenture which are created within 180 days after such acquisition (or in the case of property constructed or improved, after the completion and commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of the purchase price or cost thereof; provided that in the case of such construction or improvement the mortgages shall not apply to any property owned by the Guarantor or any Subsidiary before such construction or improvement other than (1) unimproved real property on which the property so constructed, or the improvement, is located or (2) personal property which is so improved;
(b) mortgages existing on the Issue Date, existing mortgages on property acquired (including mortgages on any property acquired from a Person which is consolidated with or merged with or into the Guarantor or a Subsidiary) or mortgages outstanding at the time any corporation, partnership or other entity becomes a Subsidiary; provided that such mortgages shall only apply to property owned by such corporation, partnership or other entity at the time it becomes a Subsidiary or that is acquired thereafter other than from the Guarantor or another Subsidiary;
(c) mortgages in favor of the Guarantor or any Subsidiary;
(d) mortgages in favor of domestic or foreign governmental bodies to secure advances or other payments pursuant to any contract or statute or to secure indebtedness incurred to finance the purchase price or cost of constructing or improving the property subject to such mortgages, including mortgages to secure Debt of the pollution control or industrial revenue bond type;
(e) mortgages consisting of pledges or deposits by the Guarantor or any Subsidiary under workers' compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which the Guarantor or any Subsidiary is a party, or deposits to secure public or statutory obligations of the Guarantor or any Subsidiary or deposits of cash or United States government bonds to secure surety or appeal bonds to which it is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred in the ordinary course of business;
(f) mortgages imposed by law, including carriers', warehousemen's, repairman's, landlords' and mechanics' liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings if a reserve or other appropriate provisions, if any, as shall be required by GAAP shall have been made in respect thereof;
(g) mortgages for taxes, assessments or other governmental charges that are not yet delinquent or which are being contested in good faith by appropriate proceedings provided appropriate reserves required pursuant to GAAP have been made in respect thereof;
(h) mortgages in favor of issuers of surety or performance bonds or letters of credit or bankers' acceptances issued pursuant to the request of and for the account of the Guarantor or any Subsidiary in the ordinary course of its business;
(i) mortgages consisting of encumbrances, easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or mortgages consisting of zoning or other restrictions as to the use of real properties or mortgages incidental to the conduct of the business of the Guarantor or a Subsidiary or to the ownership of its properties which do not materially adversely affect the value of said properties or materially impair their use in the operation of the business of the Guarantor or a Subsidiary;
(j) mortgages arising by virtue of any statutory or common law provisions relating to bankers' liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution; provided that:
(1) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by us in excess of those set forth by regulations promulgated by the Federal Reserve Board; and
(2) such deposit account is not intended by the Guarantor or any Subsidiary to provide collateral to the depository institution;
(k) mortgages arising from Uniform Commercial Code financing statement filings regarding operating leases the Guarantor and its Subsidiaries enter into in the ordinary course of business;
(l) any mortgage over goods (or any documents relating thereto) arising either in favor of a bank issuing a form of documentary credit in connection with the purchase of such goods or by way of retention of title by the supplier of such goods where such goods are supplied on credit, subject to such retention of title, and in both cases where such goods are acquired in the ordinary course of business;
(m) any mortgage pursuant to any order of attachment, execution, enforcement, distraint or similar legal process arising in connection with court proceedings; provided that such process is effectively stayed, discharged or otherwise set aside within 30 days;
(n) any lease, sublease and sublicense granted to any third party constituting a mortgage and any mortgage pursuant to farm-in and farm-out agreements, operating agreements, development agreements and any other similar arrangements, which are customary in the oil and gas industry or in the ordinary course of business of the Guarantor or any Subsidiary; or
(o) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any mortgage referred to in the foregoing clauses (a) through (n), inclusive; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the mortgage so extended, renewed or replaced (plus improvements in such property).
In addition to the foregoing, the Guarantor and any Subsidiary may, without securing the Securities, issue, assume or guarantee secured Debt that, with certain other Debt described in the following sentence, does not exceed 15% of Consolidated Net Worth, as shown on a consolidated balance sheet of the Guarantor as of a date not more than 90 days prior to the proposed transaction, prepared by the Guarantor in accordance with GAAP. The other Debt to be aggregated for purposes of this exception is all Attributable Debt in respect of Sale and Lease-Back Transactions of the Guarantor and its Subsidiaries under the exception in clause (e)(2) of Section 3.09 existing at such time.
SECTION 3.08. Payment of Additional Amounts. Unless otherwise required by Bermudan law, neither the Company nor the Guarantor will deduct or withhold from payments made with respect to the Securities and the Guarantees on account of any present or future Taxes. In the event that either the Company or the Guarantor is required to withhold or deduct on account of any Taxes due from any payment made under or with respect to the Securities or the Guarantees, as the case may be, the Company or the Guarantor, as the case may be, will pay such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by each Holder of Securities will equal
the amount that the Holder would have received if the Taxes had not been required to be withheld or deducted; provided that no Additional Amounts will be payable with respect to a payment made to a Holder (an "Excluded Holder") to the extent: (i) that any Taxes would not have been so imposed but for the existence of any present or former connection between the Holder and Bermuda, other than the mere receipt of the payment, acquisition, ownership or disposition of such Securities or the exercise or enforcement of rights under the Securities, the Guarantees or this Indenture; (ii) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities, except as described below or as otherwise provided in this Indenture; (iii) that any such Taxes would not have been imposed but for the presentation of the Securities, where presentation is required, for payment on a date more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or Holder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period; or (iv) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (a) the making of the declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the relevant taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes; and (b) at least 60 days prior to the first payment with respect to which the Company or the Guarantor shall apply this clause (iv), the Company or the Guarantor shall have notified all Holders of the Securities in writing that they shall be required to provide this declaration or claim. The Company and the Guarantor shall also (i) withhold or deduct such Taxes as required; (ii) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in accordance with all applicable laws; (iii) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (iv) upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the Guarantor and, notwithstanding the Company's or the Guarantor's efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments.
In addition, the Company or the Guarantor will pay any stamp, issue, registration, documentary or other similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any political subdivision or taxing authority of or in the foregoing with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees.
At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company or the Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company (or in respect of the Guarantees, the Guarantor) shall deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest (including defaulted interest) or any other amount payable on or with respect to any of the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.08 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.08 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
If payments with respect of the Securities or the Guarantees become subject generally to the taxing jurisdiction of any Territory or any political subdivision or taxing authority thereof or therein having power to tax, other than or in addition to Bermuda or any political subdivision or taxing authority therein or thereof having power to tax, immediately upon becoming aware thereof the Company shall notify the
Trustee of such event, and thereupon the Company or the Guarantor, as the case may be, shall be obligated to pay Additional Amounts in respect thereof on terms corresponding to the terms of the foregoing provisions of this Section 3.08 with the substitution for (or, as the case may be, in addition to) the references herein to Bermuda or any political subdivision or authority therein or thereof having power to tax of references to that other or additional Territory or any political subdivision or authority therein or thereof having power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid. The term "Territory" means for this purpose any jurisdiction in which the Company or the Guarantor, as the case may be, is incorporated or in which the we or it has its place of central management or central control.
The obligations of the Company and the Guarantor under this Section 3.08 shall survive the termination of this Indenture and the payment of all amounts under or with respect to this Indenture and the Securities.
Section 3.09. Limitations on Sale and Lease-Back Transactions. So long as any Securities are outstanding, the Guarantor will not, nor will it permit any Subsidiary to, enter into any Sale and Lease-Back Transaction, other than any Sale and Lease-Back Transaction:
(a) entered into within 180 days of the later of the acquisition or placing into service of the property subject thereto by the Guarantor or such Subsidiary;
(b) involving a lease of less than five years;
(c) entered into in connection with an industrial revenue bond or pollution control financing;
(d) between the Guarantor and/or one or more Subsidiaries;
(e) as to which the Guarantor or such Subsidiary would be entitled to
incur Debt secured by a mortgage on the property to be leased in an amount
equal to the Attributable Debt with respect to such Sale and Lease-Back
Transaction without equally and ratably securing the Securities (1) under
clauses (a) through (o) of Section 3.07 or (2) under the last paragraph of
Section 3.07; or
(f) as to which the Guarantor will apply an amount equal to the net proceeds from the sale of the property so leased to (1) the retirement (other than any mandatory retirement), within 180 days of the effective date of any such Sale and Lease-Back Transaction, of Securities or of Funded Debt of the Guarantor or a Subsidiary or (2) the purchase or construction of other property, provided that such property is owned by the Guarantor or a Subsidiary free and clear of all mortgages.
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.01. Limitation on Mergers and Consolidations. The Company shall not consolidate or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:
(1) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed;
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article IV and that all conditions precedent herein provided for relating to such transaction have been complied with.
The Guarantor shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:
(1)(A) the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Guarantor substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of all obligations in respect of the Guarantees and the performance of every covenant of this Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(3) the Guarantor has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article IV and that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 4.02. Successors Substituted. Upon any consolidation of the Company or the Guarantor with, or merger of the Company or the Guarantor into, any other Person, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety in accordance with Section 4.01, the successor Person formed by such consolidation or into which the Company or the Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein, and thereafter, except in the case of a lease to another Person, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default. "Event of Default" means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of the principal of or premium, if any, on any Security at its Maturity, and continuance of such default for a period of 10 days; or
(2) default in the payment of interest, Liquidated Damages, if any, or Additional Amounts, if any, upon any Security when it becomes due and payable, and continuance of such default for a period of 30 days; or
(3) default in the observance or performance, or breach, of any covenant of the Company or the Guarantor in any Security or this Indenture (other than a covenant a default in whose performance or whose breach is elsewhere in this Section 5.01 specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable Bankruptcy Law or (B) a decree or order adjudging the Company or the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor under any applicable Bankruptcy Law, or appointing a custodian, receiver, receiver and manager, interim receiver, administrator, monitor, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or of any substantial part of the property of the Company or the Guarantor, or ordering the winding up or liquidation of the affairs of the Company or the Guarantor, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days;
(5) the commencement by the Company or the Guarantor of a voluntary case or proceeding under any applicable Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by either of them to the entry of a decree or order for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against any of them, or the filing by any of them of a petition or answer or consent seeking reorganization or relief under any applicable Bankruptcy Law, or the consent by any of them to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, receiver and manager, interim receiver, administrator, monitor, liquidator, assignee, trustee, sequestrator or similar official of the Company or the Guarantor or of any substantial part of the property of the Company or the Guarantor, or the making by either of them of an assignment for the benefit of creditors, or the admission by either of them in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or the Guarantor in furtherance of any such action; or
(6) the Guarantees cease to be in full force and effect or become unenforceable or invalid or are declared null and void (other than in accordance with the terms of such Guarantees) or the Guarantor denies or disaffirms its obligations under such Guarantees.
The Trustee shall not be deemed to know of a Default or Event of Default unless a Responsible Officer at the Corporate Trust Office of the Trustee has actual knowledge of such Default or Event of Default or the Trustee receives written notice at the Corporate Trust Office of the Trustee of such Default or Event of Default with specific reference to such Default.
When a Default is cured, or when an Event of Default is deemed cured pursuant to Section 5.04, such Default, or Event of Default, as the case may be, ceases.
SECTION 5.02. Acceleration. If an Event of Default (other than an Event
of Default specified in clause (4) or (5) of Section 5.01) occurs and is
continuing, the Trustee by notice to the Company and the Guarantor, or by the
Holders of at least 25% in aggregate principal amount of the then outstanding
Securities by written notice to the Company, the Guarantor and the Trustee, may
declare the principal of and Liquidated Damages, if any, Additional Amounts, if
any, and interest on all then outstanding Securities to be due and payable
immediately. Upon any such declaration the amounts due and payable on the
Securities, as determined in accordance with the next succeeding paragraph,
shall be due and payable immediately. If an Event of Default specified in clause
(4) or (5) of Section 5.01 occurs, the principal of Liquidated Damages, if any,
Additional Amounts, if any, and interest on all Securities then outstanding
shall ipso facto become and be immediately due and payable without any
declaration, notice or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and before a judgment for payment of the money due has been obtained by the Trustee as hereinafter in this Article V provided, the
Holders of a majority in aggregate principal amount of the outstanding Securities, by written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay:
(A) the principal of and premium, if any, on any Securities which have become due otherwise than by such declaration of acceleration and Liquidated Damages, if any, and Additional Amounts, if any, and any interest thereon at the rate or rates prescribed therefor in such Securities or in this Indenture,
(B) all overdue interest, Liquidated Damages, if any, and Additional Amounts, if any, on all Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest and overdue Liquidated Damages, if any, and overdue Additional Amounts, if any, at the rate or rates prescribed therefor in such Securities or in this Indenture, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of the principal of Securities which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.04.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
If the maturity of the Securities is accelerated pursuant to this Section 5.02, 100% of the principal amount thereof shall become due and payable plus Liquidated Damages, if any, Additional Amounts, if any, and interest to the date of payment.
SECTION 5.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and Liquidated Damages, if any, Additional Amounts, if any, and interest on the Securities or to enforce the performance of any provision of the Securities, the Guarantees, or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 5.04. Waiver of Existing Defaults. Subject to Sections 5.07 and 8.02, the Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may waive an existing Default or Event of Default and its consequences (including waivers obtained in connection with a tender offer or exchange offer for the Securities or a solicitation of consents in respect of the Securities, provided that in each case such offer or solicitation is made to all Holders of the Securities then outstanding on equal terms), except (1) a continuing Default or Event of Default in the payment of the principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on the Securities or (2) a continuing Default in respect of a provision that under Section 8.02 cannot be amended without the consent of each Holder affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
SECTION 5.05. Control by Majority. The Holders of a majority in aggregate principal amount of the Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on it hereunder. The Trustee, however, may refuse to follow any direction that conflicts with applicable law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of other Holders, or that may involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to receive reasonable indemnification satisfactory to it against all losses and expenses caused by taking or not taking such action subject to the Trustee's duty to act with the required standard of care during a default.
SECTION 5.06. Limitations on Suits. Subject to Section 5.07, a Holder may pursue a remedy with respect to this Indenture (including the Guarantees) or the Securities only if:
(1) such Holder gives to the Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the Securities then outstanding make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders furnish to the Trustee reasonable indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the request and the furnishing of indemnity; and
(5) during such 60-day period the Holders of a majority in principal amount of the Securities do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
SECTION 5.07. Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest on the Security, on or after the respective due dates expressed in the Security, or to bring suit against the Company and/or the Guarantor for the enforcement of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of such Holder.
SECTION 5.08. Collection Suit by Trustee. If an Event of Default specified in clause (1) or (2) of Section 5.01 occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company and the Guarantor (i) for the amount of principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest remaining unpaid on any Securities and (ii) interest on overdue principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and, to the extent lawful, interest on overdue interest, and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 5.09. Trustee May File Proofs of Claim. The Trustee is authorized
to file such proofs of claim and other papers or documents and to take such
actions, including participating as a member, voting or otherwise, of any
committee of creditors, as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company and the
Guarantor or their respective creditors or properties and shall be entitled and
empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders of the Securities may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.10. Priorities. If the Trustee collects any money pursuant to this Article V, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for amounts due and unpaid on the Securities for principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest, respectively; and
Third: to the Company and the Guarantor.
The Trustee, upon prior written notice to the Company and the Guarantor, may fix a record date and payment date for any payment to Holders pursuant to this Article V.
SECTION 5.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 5.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.07, or a suit by a Holder or Holders of more than 10% in principal amount of the Securities then outstanding.
ARTICLE VI
TRUSTEE
SECTION 6.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in such exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine such certificates and opinions to determine whether or not, on their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 6.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.05.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section 6.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. All money received by the Trustee shall, until applied as herein provided, be held in trust for the payment of the principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest on the Securities.
SECTION 6.02. Rights of Trustee.
(a) The Trustee may rely conclusively on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate and/or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or the Guarantor shall be sufficient if signed by an Officer of the Company or the Guarantor, as the case may be.
(f) The Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture.
(g) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of Holders of Securities, each representing less than a majority in aggregate principal amount of the outstanding Securities, pursuant to the provisions of this Indenture, the Trustee may determine what action, if any, shall be taken.
(h) The Trustee's immunities and protections from liability and its right to indemnification in connection with the performance of its duties under this Indenture shall extend and be enforceable by the Trustee in each of its capacities hereunder and shall extend to the Trustee's officers, directors, agents, attorneys and employees. Such immunities and protections and right to indemnity, together with the
Trustee's right to compensation, shall survive the Trustee's resignation or removal, the discharge of this Indenture and final payment of the Securities.
(i) The permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
(j) Except for information provided by the Trustee concerning the Trustee, the Trustee shall have no responsibility for any information in the Offering Memorandum or other disclosure material distributed with respect to the Securities, and the Trustee shall have no responsibility for compliance with any U.S. or Canadian Federal or State or provincial securities or employee benefit plan laws in connection with the Securities.
(k) The Trustee may request that the Company or the Guarantor, as the case may be, deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
SECTION 6.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company, the Guarantor or any of their Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Sections 6.10 and 6.11.
SECTION 6.04. Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture, the Securities or the Guarantees, it shall not be accountable for the Company's use of the proceeds from the Securities or any money paid to the Company or upon the Company's direction under any provision hereof, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee and it shall not be responsible for any statement or recital herein or any statement in the Securities other than its certificate of authentication.
SECTION 6.05. Notice of Defaults. If a Default or Event of Default occurs and is continuing and it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on any Security, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders.
SECTION 6.06. Reports by Trustee to Holders. Within 60 days after May 15
of each year, beginning with May 15, 2003, the Trustee shall mail to Holders a
brief report dated as of May 15 of such year that complies with TIA Section
313(a); provided, however, that if no event described in TIA Section 313(a) has
occurred within the 12 months preceding the reporting date, no report need be
transmitted. The Trustee also shall comply with TIA Section 313(b). The Trustee
shall also transmit by mail all reports as required by TIA Sections 313(c) and
313(d).
A copy of each report at the time of its mailing to Holders shall be filed with the SEC and each securities exchange, if any, on which the Securities are listed. The Company shall notify the Trustee if and when the Securities are listed on any securities exchange.
SECTION 6.07. Compensation and Indemnity. The Company and the Guarantor jointly and severally agree to pay to the Trustee from time to time such compensation as agreed to by the Company, the Guarantor and the Trustee, for its acceptance of this Indenture and its services hereunder. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company and the Guarantor jointly and severally agree to reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantor jointly and severally agree to indemnify the Trustee or any predecessor Trustee and their agents for and to hold them harmless against any and all loss, liability,
damage, claim, or expense (including taxes, other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of defending itself against any claim (whether asserted by the Company, the Guarantor, any Holder or any other Person), except as set forth in the next paragraph. The Trustee shall notify the Company and the Guarantor promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel, and the Company and the Guarantor shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent.
Neither the Company nor the Guarantor shall be obligated to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through negligence or bad faith.
To secure the payment obligations of the Company and the Guarantor in this
Section 6.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal of and premium, if any, Liquidated Damages, if any, and Additional
Amounts, if any, and interest on the Securities. Such lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.01(4) or (5) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 6.08. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 6.08.
The Trustee may resign and be discharged from the trust hereby created by so notifying the Company and the Guarantor. The Holders of a majority in principal amount of the then outstanding Securities may remove the Trustee by so notifying the Trustee and the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company and the Guarantor shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the Securities then outstanding may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the Securities then outstanding may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company and the Guarantor. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the
lien provided for in Section 6.07. Notwithstanding replacement of the Trustee pursuant to this Section 6.08, the obligations of the Company and the Guarantor under Section 6.07 shall continue for the benefit of the retiring Trustee.
SECTION 6.09. Successor Trustee by Merger, etc. Subject to Section 6.10, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided, however, that in the case of a transfer of all or substantially all of its corporate trust business to another corporation, the transferee corporation expressly assumes all of the Trustee's liabilities hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 6.10. Eligibility; Disqualification. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust power, shall be subject to supervision or examination by Federal or State (or the District of Columbia) authority and shall have, or be a Subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee that satisfies the requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA Section 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA Section 310(b).
SECTION 6.11. Preferential Collection of Claims Against Company. The
Trustee is subject to and shall comply with the provisions of TIA Section
311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated therein.
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01. Termination of Company's and Guarantor's Obligations.
(a) This Indenture shall cease to be of further effect (except that the Company's and the Guarantor's obligations under Section 6.07 and the Trustee's and Paying Agent's obligations under Section 7.03 shall survive), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging the satisfaction and discharge of this Indenture, when:
(1) either
(A) all outstanding Securities theretofore authenticated and issued (other than destroyed, lost or stolen Securities that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities not theretofore delivered to the Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) will be scheduled for redemption by their terms within one
year, and the Company, in the case of clause (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of clause
(i)) in trust for such purpose an amount of cash or, in the case of
clause (ii) or (iii), U.S. Government Obligations or a combination
thereof which, together with earnings thereon, will be sufficient, in
the case of clause (ii) or (iii), in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge the entire indebtedness on such Securities for principal,
premium, if any, Liquidated Damages, if any, Additional Amounts, if
any, and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity, as the case may be;
(2) the Company has paid all other sums payable by it hereunder; and
(3) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture have been complied with, together with an Opinion of Counsel to the same effect.
(b) The Company and the Guarantor may, subject as provided herein, terminate all of their obligations under this Indenture if:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments dedicated solely to the benefit of the Holders (i) cash in an amount, or (ii) U.S. Government Obligations or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay, without consideration of the reinvestment of any such amounts and after payment of all taxes or other charges or assessments in respect thereof payable by the Trustee, the principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any and interest on all Securities on each date that such principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest is due and payable and to pay all other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such U.S. Government Obligations to the payment of said principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest with respect to the Securities as the same shall become due;
(2) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as clauses (4) and (5) of Section 5.01 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from nationally recognized counsel acceptable to the Trustee to the effect that, based on a ruling of the Internal Revenue Service or a change in U.S. Federal income tax law occurring after the date of this Indenture, the Holders of Securities will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of the Company's exercise of its option under this Section 7.01(b) and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such option had not been exercised;
(5) such deposit and discharge will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company or the Guarantor is a party or by which it is bound;
(6) such deposit and discharge shall not cause the Trustee to have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the passage of 91 days following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally.
In such event, payment of the Securities may not be accelerated because of an Event of Default, Article IX and the other provisions of this Indenture shall cease to be of further effect (except as provided in the next succeeding paragraph), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging satisfaction and discharge under this Indenture.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 3.01, 3.02, 3.08, 6.08 and 7.01 the Company's and the Guarantor's
obligations in Sections 4.01, 6.07, 7.04 and 9.01 and the Trustee's and Paying
Agent's obligations in Section 7.03 shall survive until the Securities are no
longer outstanding. Thereafter, only the Company's and the Guarantor's
obligations in Section 6.07 and the Trustee's and Paying Agent's obligations in
Section 7.03 shall survive.
After such irrevocable deposit made pursuant to this Section 7.01(b) and satisfaction of the other conditions set forth herein, the Trustee, on demand of the Company, shall execute proper instruments acknowledging satisfaction and discharge under this Indenture.
(c) The Company and the Guarantor may, subject as provided herein, be released from their respective obligations to comply with, and shall have no liability in respect of any term, condition or limitation, set forth in Sections 3.07, 3.09 and 4.01 and in Article IX, and such omission to comply with Sections 3.07, 3.09 and 4.01 and Article IX shall not constitute an Event of Default under Section 5.01 ("Covenant Defeasance"), with the remainder of this Indenture and such Securities unaffected thereby if:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments dedicated solely to the benefit of the Holders (i) cash in an amount, or (ii) U.S. Government Obligations or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay, without consideration of the reinvestment of any such amounts and after payment of all taxes or other charges or assessments in respect thereof payable by the Trustee, the principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any and interest on all Securities on each date that such principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest is due and payable and to pay all other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such U.S. Government Obligations to the payment of said principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest with respect to the Securities as the same shall become due;
(2) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent to the Covenant Defeasance contemplated by this provision have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or, insofar as clauses (4) and (5) of Section 5.01 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period);
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from nationally recognized counsel acceptable to the Trustee to the effect that the Holders of Securities will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of the Company's exercise of its option under this Section 7.01(c) and will be subject to U.S. Federal income tax on
the same amounts, in the same manner and at the same times as would have been the case if such option had not been exercised;
(5) such Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company or the Guarantor is a party or by which it is bound;
(6) such Covenant Defeasance shall not cause the Trustee to have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the passage of 91 days following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally.
(d) In order to have money available on a payment date to pay principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on the Securities, the U.S. Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. U.S. Government Obligations shall not be callable at the issuer's option.
(e) The Company may exercise its option under Section 7.01(b)
notwithstanding its prior exercise of its Covenant Defeasance option under
Section 7.01(c).
SECTION 7.02. Application of Trust Money. The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 7.01. It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest on Securities of the series with respect to which the deposit was made.
SECTION 7.03. Repayment to Company. The Trustee and the Paying Agent shall promptly pay to the Company upon written request any excess money or securities held by them at any time. Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest that remains unclaimed for two years after the date upon which such payment shall have become due; provided, however, that the Company shall have either caused notice of such payment to be mailed to each Holder entitled thereto no less than 30 days prior to such repayment or within such period shall have published such notice in a financial newspaper of widespread circulation published in The City of New York. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
SECTION 7.04. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 7.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company and the Guarantor under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.01 until such time as the Trustee or the Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 7.01; provided, however, that if the Company or the Guarantor has made any payment of principal of or interest on any Securities because of the reinstatement of its obligations, the Company or the Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or the Paying Agent.
ARTICLE VIII
AMENDMENTS
SECTION 8.01. Without Consent of Holders. The Company, the Guarantor and the Trustee may amend or supplement this Indenture or any of the Securities or waive any provision hereof or thereof without the consent of any Holder:
(1) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities any property or assets;
(2) to evidence the succession of another Person to the Company or the Guarantor, or successive successions, and the assumption by the successor Person of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Section 4.01 or 4.02;
(3) to add to the covenants of the Company or the Guarantor such further covenants, restrictions, conditions or provisions as the Company or the Guarantor and the Trustee shall consider to be for the protection of the Holders of Securities, to surrender any right or power herein conferred upon the Company or the Guarantor, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions of an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth, provided that in respect of any such additional covenant, restriction, condition or provision such amendment or supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities to waive such an Event of Default;
(4) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, provided that no such action shall adversely affect the interests of the Holders of the Securities;
(5) to provide for uncertificated Securities in addition to or in
place of certificated Securities, provided that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that uncertificated notes are described in
Section 163(f)(2)(B) of the Code;
(6) to comply with any requirements, including the requirement of the SEC, in order to effect or maintain the qualification of this Indenture under the TIA; and
(7) to provide for any additional guarantees of the Securities or to make any other change that does not adversely affect the rights of any Holder.
Upon the request of the Company and the Guarantor accompanied by a resolution of the Board of Directors of each of the Company and the Guarantor authorizing the execution of any such supplemental indenture, and upon receipt by the Trustee of the documents described in Section 8.06, the Trustee shall join with the Company and the Guarantor in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and make any further appropriate agreements and stipulations that may be therein contained. After an amendment, supplement or waiver under this Section 8.01 becomes effective, the Company shall mail to the Holders of each Security affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
SECTION 8.02. With Consent of Holders. Except as provided below in this
Section 8.02, the Company, the Guarantor and the Trustee may amend or supplement
this Indenture with the written consent (including consents obtained in
connection with a tender offer or exchange offer for the Securities
or a solicitation of consents in respect of the Securities, provided that in each case such offer or solicitation is made to all Holders of the Securities then outstanding on equal terms) of the Holders of at least a majority in aggregate principal amount of the Securities then outstanding affected thereby.
Upon the request of the Company and the Guarantor accompanied by a resolution of the Board of Directors of each of the Company and the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 8.06, the Trustee shall join with the Company and the Guarantor in the execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section 8.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in aggregate principal amount of the Securities then outstanding may waive compliance in a particular instance by the Company or the Guarantor with any provision of this Indenture or the Securities (including waivers obtained in connection with a tender offer or exchange offer for the Securities or a solicitation of consents in respect of the Securities, provided that in each case such offer or solicitation is made to all Holders of the Securities then outstanding on equal terms).
Without the consent of each Holder affected, an amendment, supplement or waiver under this Section 8.02 may not:
(1) extend the final maturity of the principal of any of the Securities;
(2) reduce the principal amount of any of the Securities;
(3) reduce the rate or extend the time of payment of interest, including default interest, or Additional Amounts, if any, on any of the Securities;
(4) reduce any amount payable on redemption of any of the Securities;
(5) change the currency in which the principal of or premium, if any, Additional Amounts, if any, or interest on any of the Securities is payable;
(6) impair the right to institute suit for the enforcement of any payment of principal of or premium, if any, Additional Amounts, if any, or interest on any Security pursuant to Sections 5.07 and 5.08, except as limited by Section 5.06;
(7) make any change in the percentage of principal amount of the Securities necessary to waive compliance with or to modify certain provisions of this Indenture pursuant to Section 5.04 or 5.07 or this clause of this Section 8.02; or
(8) waive a continuing Default or Event of Default in the payment of principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest, including default interest, on the Securities.
The right of any Holder to participate in any consent required or sought pursuant to any provision of this Indenture (and the obligation of the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of the Securities as of a date identified by the Trustee in a notice furnished to Holders in accordance with the terms of this Indenture.
SECTION 8.03. Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities shall comply in form and substance with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents. A consent to an amendment (which includes a supplement) or waiver by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder
may revoke the consent as to its Security or portion of a Security if the Trustee receives written notice of revocation at any time prior to (but not after) the date the Trustee receives an Officers' Certificate certifying that the Holders of the requisite principal amount of Securities have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder, and a consent thereto given in connection with a tender of a Holder's Securities shall not be rendered invalid by such tender.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment or waiver or to take any other action with respect to the Securities under this Indenture. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of the Securities required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind
every Holder, unless it is of the type described in any of clauses (1) through
(8) of Section 8.02. In such case, the amendment, supplement or waiver shall
bind each Holder who has consented to it and every subsequent Holder that
evidences the same debt as the consenting Holder's Security.
SECTION 8.05. Notation on or Exchange of Securities. If an amendment changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment.
SECTION 8.06. Trustee to Sign Amendments, etc. The Trustee shall sign any amendment, waiver or supplemental indenture authorized pursuant to this Article VIII if the amendment, waiver or supplemental indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment, waiver or supplemental indenture, the Trustee shall receive, and subject to Section 6.01, shall be fully protected in relying upon, an Opinion of Counsel and an Officers' Certificate, as conclusive evidence that all conditions precedent to such amendment, waiver or supplemental indenture have been complied with, that such amendment, waiver or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Company and the Guarantor in accordance with its terms.
ARTICLE IX
GUARANTEES OF SECURITIES
SECTION 9.01. Unconditional Guarantees.
(a) For value received, the Guarantor hereby fully, irrevocably, unconditionally and absolutely guarantees to the Holders and to the Trustee the due and punctual payment of the principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Company (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the Trustee or the Holders in connection with the enforcement of this Indenture, the Securities and the Guarantees) (collectively, the "Indenture Obligations"), when and as such principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest and such other amounts shall become due and payable, whether at the Stated Maturity, upon redemption or by
declaration of acceleration or otherwise, according to the terms of the Securities and this Indenture. The guarantees by the Guarantor set forth in this Article IX are referred to herein as the "Guarantees." Without limiting the generality of the foregoing, the Guarantor's liability shall extend to all amounts that constitute part of the Indenture Obligations and would be owed by the Company under this Indenture and the Securities but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company.
(b) Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, the Guarantor will be obligated to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). The Guarantees are intended to be general, unsecured, senior obligations of the Guarantor and will rank pari passu in right of payment with all indebtedness of the Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantees of the Guarantor. The Guarantor hereby agrees that its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the obligations and liabilities of any other obligor with respect to the Securities, the Guarantees or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof with respect to the same, the recovery of any judgment against the Company, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor.
The Guarantor hereby agrees that in the event of a default in payment of the principal of or premium, if any, Liquidated Damages, if any, Additional Amounts, if any, or interest on the Securities or any other amounts payable under this Indenture and the Securities by the Company, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 5.06, by the Holders, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company.
(c) To the fullest extent permitted by applicable law, the obligations of the Guarantor under this Article IX shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of any other obligor with respect to the Securities contained in any of the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of the Company, the Guarantor or any of their respective estates in bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the decision of any court, (iii) the assertion or exercise by the Company, the Guarantor or the Trustee of any rights or remedies under any of the Securities or this Indenture or its delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the purported assignment of any property as security for any of the Securities, including all or any part of the rights of the Company or the Guarantor under this Indenture, (v) the extension of the time for payment by the Company or the Guarantor of any payments or other sums or any part thereof owing or payable under any of the terms and provisions of any of the Securities or this Indenture or of the time for performance by the Company or the Guarantor of any other obligations under or arising out of any such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or amendment (whether material or otherwise) of any duty, agreement or obligation set forth in this Indenture of any other obligor with respect to the Securities, (vii) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, either of the Company or the Guarantor or any of their respective assets, or the disaffirmance of any of the Securities, the Guarantees or this Indenture in any such proceeding, (viii) the release or discharge of the Company or the Guarantor from the performance or observance of any agreement,
covenant, term or condition contained in any of such instruments by operation of law, (ix) the unenforceability of any of the obligations of any of the other obligors under the Securities, the Guarantees or this Indenture, (x) any change in the name, business, capital structure, corporate existence, or ownership of the Company or the Guarantor, or (xi) any other circumstance which might otherwise constitute a defense available to, or a legal or equitable discharge of, a surety or the Guarantor.
(d) The Guarantor hereby (i) waives diligence, presentment, demand of
payment, notice of acceptance, filing of claims with a court in the event of the
merger, insolvency or bankruptcy of the Company or the Guarantor, and all
demands and notices whatsoever, (ii) acknowledges that any agreement, instrument
or document evidencing the Guarantees may be transferred and that the benefit of
its obligations hereunder shall extend to each holder of any agreement,
instrument or document evidencing the Guarantees without notice to them and
(iii) covenants that its Guarantees will not be discharged except by complete
performance of the Guarantees or of the obligations guaranteed thereby. The
Guarantor further agrees that if at any time all or any part of any payment
theretofore applied by any Person to any Guarantee is, or must be, rescinded or
returned for any reason whatsoever, including, without limitation, the
insolvency, bankruptcy or reorganization of the Guarantor, such Guarantee shall,
to the extent that such payment is or must be rescinded or returned, be deemed
to have continued in existence notwithstanding such application, and the
Guarantees shall continue to be effective or be reinstated, as the case may be,
as though such application had not been made.
(e) The Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Company in respect of any amounts paid by the Guarantor pursuant to the provisions of this Indenture; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation with respect to any of the Securities until all of the Securities and the Guarantees thereof shall have been paid in full or discharged.
(f) A director, officer, employee or stockholder, as such, of the Guarantor shall not have any liability for any obligations of the Guarantor under this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.
(g) No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under this Article IX and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Article IX shall limit the right of the Trustee or the Holders to take any action to accelerate the maturity of the Securities pursuant to Article V or to pursue any rights or remedies hereunder or under applicable law.
SECTION 9.02. Execution and Delivery of Notation of Guarantees. To further evidence the Guarantees, the Guarantor hereby agrees that on the date of this Indenture a notation of such Guarantees may be endorsed on each Security authenticated and delivered by the Trustee and executed by either manual or facsimile signature of an Officer of the Guarantor.
The Guarantor hereby agrees that its Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation relating to the Guarantee thereof.
If an Officer of the Guarantor whose signature is on this Indenture or a Security no longer holds that office, or if any other or additional Person shall have become a "Guarantor" hereunder in accordance with Section 4.01 or 4.02 hereof, at the time the Trustee authenticates such Security or at any time thereafter, the Guarantor's Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of the Guarantor and each other Person which may at such time constitute the "Guarantor" hereunder.
ARTICLE X
REDEMPTION
SECTION 10.01. Notices to Trustee. If the Company elects to redeem the Securities pursuant to the redemption provisions of Section 10.07, it shall furnish to the Trustee, at least five days before notice of such redemption is to be given pursuant to Section 10.03, an Officers' Certificate setting forth the Redemption Date, the principal amount of such Securities to be redeemed and the Redemption Price (or the method of calculating the Redemption Price).
SECTION 10.02. Selection of Securities to be Redeemed. If less than all of the Securities are to be redeemed, the Trustee shall select the Securities to be redeemed by such method as the Trustee in its sole discretion shall deem fair and appropriate. The particular Securities to be redeemed shall be selected, unless otherwise provided herein, not less than five days before notice of such redemption is to be given pursuant to Section 10.03, by the Trustee from the outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed. Securities and portions of them selected shall be in amounts of $1,000 or integral multiples thereof. Except as provided in the preceding sentence, provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.
SECTION 10.03. Notices to Holders.
(a) At least 20 days but not more than 75 days before a Redemption Date, the Company shall mail in conformity with Section 11.02 a notice of redemption to each Holder whose Securities are to be redeemed. The notice shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price (or the method of calculating the Redemption Price);
(iii) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be surrendered to the Paying Agent at the address specified in such notice to collect the Redemption Price;
(vi) that unless the Company defaults in making the redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date and the only remaining right of the Holders is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Securities; and
(vii) the aggregate principal amount of Securities being redeemed.
If any of the Securities to be redeemed is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to redemptions.
(b) At the Company's request, the Trustee shall give the notice required in
Section 10.03(a) in the Company's name; provided, however, that the Company
shall deliver to the Trustee, at least 15 days prior to the requested mailing
date (unless the Trustee consents in writing to a shorter period), an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in Section 10.03(a).
SECTION 10.04. Effect of Notices of Redemption. Once notice of redemption is mailed pursuant to Section 10.03, Securities called for redemption become due and payable on the Redemption Date at the Redemption Price. Upon surrender to the Paying Agent, such Securities shall be paid out at the Redemption Price.
SECTION 10.05. Deposit of Redemption Price. At or prior to 11:00 a.m. New York City time on the Redemption Date, the Company shall deposit with the Trustee or with the Paying Agent immediately available funds sufficient to pay the Redemption Price of all Securities to be redeemed on that date. The Trustee or the Paying Agent shall return to the Company any money not required for that purpose less the expenses of the Trustee as provided herein.
If the Company complies with the preceding paragraph, interest on the Securities or portions thereof to be redeemed (whether or not such Securities are presented for payment) will cease to accrue on the applicable Redemption Date. If any Security called for redemption shall not be so paid upon surrender because of the failure of the Company to comply with the preceding paragraph, then interest will be paid on the unpaid principal and premium, if any, from the Redemption Date until such principal and premium are paid and, to the extent lawful, on any interest not paid on such unpaid principal, in each case at the rate provided in the Securities and in Section 3.01.
SECTION 10.06. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Company shall issue and the Trustee shall authenticate for the Holder, at the expense of the Company, a new Security equal in principal amount to the unredeemed portion of the Security surrendered.
SECTION 10.07. Optional Redemption. The Securities may be redeemed at any time on such terms and subject to such conditions as are specified in such Securities.
Any redemption pursuant to this Section 10.07 shall be made, to the extent applicable, pursuant to the provisions of Sections 10.01 through 10.06.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. If this Indenture excludes any provision of the TIA that is required to be included, such provision shall be deemed included herein.
SECTION 11.02. Notices. Any notice or communication by the Company, the Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the other's address:
If to either the Company or the Guarantor, to it at:
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Telephone No.: (281) 874-0035
Telecopier No.: (281) 775-8431
If to the Trustee:
Bank One, N.A.
1111 Polaris Parkway, Suite 1K, OH1-0181
Columbus, Ohio 43240
Attention: Global Corporate Trust Services Group
Telephone No.: (614) 248-6229
Telecopier No.: (614) 248-5195
Each of the Company, the Guarantor and the Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. Notwithstanding the foregoing, notices to the Trustee shall be effective only upon receipt.
Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid, to the Holder's address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or the Guarantor mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including, without limitation, notices to the Trustee or the Company or the Guarantor by Holders, shall be in writing, except as set forth below, and in the English language.
In case by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03. Communication by Holders with Other Holders. Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture, the Securities or the Guarantees. The Company, the Guarantor, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company or the Guarantor to the Trustee to take any action under this Indenture, the Company or the Guarantor shall, if requested by the Trustee, furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
Notwithstanding the foregoing, no such Opinion of Counsel shall be required in connection with the issuance of the Original Securities pursuant to the Offering or of Series B Securities pursuant to the Exchange Offer.
SECTION 11.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or the Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 11.07. Legal Holidays. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08. No Recourse Against Others. A director, officer, employee or stockholder of the Company or the Guarantor, as such, shall not have any liability for any obligations of the Company or the Guarantor under the Securities, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release shall be part of the consideration for the issue of the Securities.
SECTION 11.09. Governing Law. This Indenture, the Securities and the Guarantees shall be governed by and constructed in accordance with the laws of the State of New York.
SECTION 11.10. Consent to Jurisdiction and Service of Process. The Guarantor is not organized under the laws the United States (including the States thereof and the District of Columbia) and therefore it hereby appoints the Company as the authorized agent thereof (the "Authorized Agent") upon whom process may be served in any action, suit or proceeding arising out of or based on this Indenture or the Securities which may be instituted in the Supreme Court of the State of New York or the United States District Court for the Southern District of New York, in either case in the Borough of Manhattan, The City of New York, by the Holder of any Security, and to the fullest extent permitted by applicable law, the Guarantor hereby waives any objection which it may now or hereafter have to the laying of venue of any such proceeding and expressly and irrevocably accepts and submits, for the benefit of the Holders from time to time of the Securities, to the nonexclusive jurisdiction of any such court in respect of any such action, suit or proceeding, for itself and with respect to its properties, revenues and assets. Such appointment shall be irrevocable unless and until the appointment of a successor authorized agent for such purpose, and such successor's acceptance of such appointment, shall have occurred. The Guarantor agrees to take any and all actions, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent with respect to any such action shall be deemed, in every respect, effective service of process upon the Guarantor. Notwithstanding the foregoing, any action against the Guarantor arising out of or based on any Security or the Guarantees may also be instituted by the Holder of such Security in any court in the jurisdiction of organization of the Guarantor, and the Guarantor expressly accepts the jurisdiction of any such court in any such action. The Company hereby accepts the foregoing appointment as agent for service of process.
SECTION 11.11. Waiver of Immunity. To the extent that the Guarantor or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any thereof, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Indenture or the Securities, the Guarantor, to the maximum extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.
SECTION 11.12. Judgment Currency. The Guarantor agrees to indemnify the Trustee and each Holder against any loss incurred by it as a result of any judgment or order being given or made and expressed and paid in a currency (the "Judgment Currency") other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii) the spot rate of exchange in The City of New York at which the Trustee or such Holder on the date of payment of such judgment or order is able to purchase U.S. dollars with the amount of the Judgment Currency actually received by the Trustee or such Holder. The foregoing indemnity shall constitute a separate and independent obligation of the Guarantor and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term "spot rate of exchange" shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, U.S. dollars.
SECTION 11.13. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company, the Guarantor or any other Subsidiary of the Guarantor. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.14. Successors. All agreements of the Company and the Guarantor in this Indenture and the Securities shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.
SECTION 11.15. Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.16. Counterpart Originals. The parties may sign any number of copies of this Indenture by manual or facsimile signature. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 11.17. Table of Contents, Headings, etc. The Table of Contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
COMPANY:
NABORS INDUSTRIES, INC.
By: /s/ Anthony G. Petrello
------------------------------------
Name: Anthony G. Petrello
Title: President and
Chief Operating Officer
|
GUARANTOR:
NABORS INDUSTRIES, LTD.
By: /s/ Daniel McLachlin
------------------------------------
Name: Daniel McLachlin
Title: Vice President and
Corporate Secretary
Signed in St. Michael, Barbados
|
TRUSTEE:
BANK ONE, NA., as Trustee
By: /s/ Josie Hixon
------------------------------------
Name: Josie Hixon
Title: Vice President
|
EXHIBIT A
FACE OF SECURITY
GLOBAL SECURITY LEGEND
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. THE DEPOSITORY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. 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 (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. 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, SUCH REGISTRATION. BY ITS ACQUISITION OF THIS SECURITY OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
1. AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, THAT IT WILL OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH EITHER THE COMPANY OR ANY OF ITS AFFILIATES WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO NABORS INDUSTRIES LTD. OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED 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 THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH OF THE
* This paragraph should be included only if the Security is a Global Security.
CASES ABOVE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
2. AGREES THAT, BEFORE THE HOLDER OFFERS, SELLS OR OTHERWISE TRANSFERS THIS SECURITY, THE COMPANY AND THE REGISTRAR MAY REQUIRE THE HOLDER OF THIS SECURITY TO DELIVER A WRITTEN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION THAT THEY REASONABLY REQUIRE TO CONFIRM THAT SUCH PROPOSED TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED IN THIS SECURITY, THE TERMS "OFFSHORE TRANSACTION," "U.S. PERSON"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM WITHIN REGULATION S.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
BY ITS ACQUISITION OF THIS SECURITY THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (I) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE AND HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OF PLANS, INDIVIDUAL RETIREMENT ACCOUNTS OR OTHER ARRANGEMENTS THAT ARE SUBJECT TO SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR PROVISIONS UNDER ANY FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OR ERISA OR THE CODE ("SIMILAR LAWS"), OR OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE "PLAN ASSETS" OF SUCH PLANS, ACCOUNTS OR ARRANGEMENTS, OR (II) THE PURCHASE AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.**
REGULATION S TEMPORARY GLOBAL SECURITY LEGEND
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.***
144A SECURITY LEGEND
EACH PURCHASER OF THE SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS
SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.****
** These paragraphs should be included only if the Security is a Restricted Definitive Security or a Restricted Global Security.
*** This paragraph should be included only if the Security is a Regulation S Temporary Global Security.
**** This paragraph should be included only if the Security is a Series A
Security that is a 144A Global Security or a Definitive Security sold to
QIBs pursuant to Rule 144A.
NABORS INDUSTRIES, INC.
5.375% SERIES [A/B] SENIOR NOTE DUE 2012
CUSIP No. 629568 AG 1 $
Nabors Industries, Inc., a Delaware corporation (the "Company"), for value received promises to pay to or registered assigns, the principal sum of $ Dollars [or such greater or lesser amount as is indicated on the Schedule of Exchanges of Securities on the other side of this Security*] on August 15, 2012.
Interest Payment Dates: February 15 and August 15 Record Dates: February 1 and August 1
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.
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile by one of its duly authorized officers.
Dated:
NABORS INDUSTRIES, INC.
Certificate of Authentication:
BANK ONE, N.A.,
as Trustee, certifies that this is one
of
the Securities referred to in the
within-
mentioned Indenture.
* This phrase should be included only if the Security is a Global Security.
REVERSE OF SECURITY
NABORS INDUSTRIES, INC.
5.375% SERIES A/B SENIOR NOTE DUE 2012
This Security is one of a duly authorized issue of 5.375% Series A/B Senior Notes due 2012 (the "Securities") of Nabors Industries, Inc., a Delaware corporation (the "Company").
1. Interest. The Company promises to pay interest on the principal amount of this Security at 5.375% per annum from August 22, 2002 until maturity. The Company will pay interest semiannually on February 15 and August 15 of each year (each an "Interest Payment Date"), beginning February 15, 2003, or if any such day is not a Business Day, on the next succeeding Business Day. Interest on this Security will accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from August 22, 2002; provided that if there is no existing Default in the payment of interest, and if this Security is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date. Further, the Company shall pay interest on overdue principal, premium, if any, Liquidated Damages, if any, and Additional Amounts, if any, from time to time on demand at a rate equal to the interest rate then in effect; it shall pay interest, Liquidated Damages, if any, and Additional Amounts, if any, on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on this Security (except defaulted interest) to the Persons who are registered Holders of this Security at the close of business on the record date next preceding the Interest Payment Date, even if this Security is canceled after such record date and on or before such Interest Payment Date. The Holder must surrender this Security to a Paying Agent to collect payments of principal and premium, if any. The Company will pay the principal of and premium, if any, Liquidated Damages, if any, and Additional Amounts, if any, and interest on this Security in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. The Company will make all payments in respect of a certificated Security (including principal, premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest) at the Corporate Trust Office of the Trustee or by mailing a check to the registered address of each Holder thereof; provided, however, that payments on a certificated Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Ranking and Guarantees. This Security is a senior unsecured obligation of the Company and is guaranteed pursuant to guarantees (the "Guarantees") by Nabors Industries Ltd., a Bermuda exempted company (the "Guarantor"). The Guarantees are senior unsecured obligations of the Guarantor. References herein to the Indenture or the Securities shall be deemed also to refer to the Guarantees set forth in the Indenture except where the context otherwise requires.
4. Optional Redemption. This Security will be redeemable, in whole or in part, at any time, at the Company's option, at a Redemption Price equal to the greater of (1) 100% of the principal amount of this Security then outstanding to be redeemed, or (2) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the Redemption Date) computed by discounting such payments to the Redemption Date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at a rate equal to the sum of 30 basis points plus the Adjusted Treasury Rate on the third Business Day prior to the Redemption Date, as calculated by an
Independent Investment Banker, plus accrued and unpaid interest, up to, but not including the Redemption Date.
"Adjusted Treasury Rate" means, with respect to any Redemption Date, 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 U.S. Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities" for the maturity corresponding to the Optional Redemption Comparable Treasury Issue (if no maturity is within three months before or after the remaining term of this Security, yields for the two published maturities most closely corresponding to the Optional Redemption Comparable Treasury Issue will be determined and the Adjusted Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or if such 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 Optional Redemption Comparable Treasury Issue, calculated using a price for the Optional Redemption Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Optional Redemption Comparable Treasury Price for such redemption date.
"Independent Investment Banker" means Lehman Brothers Inc., or if such firm is unwilling or unable to serve as such, an independent investment and banking institution of national standing appointed by the Trustee.
"Optional Redemption Reference Treasury Dealer" means each of up to five dealers to be selected by the Company and the Guarantor, and their respective successors; provided that if any of the foregoing ceases to be, and has no affiliate that is, a primary U.S. governmental securities dealer (a "Primary Treasury Dealer"), the Company and the Guarantor will substitute for it another Primary Treasury Dealer.
"Optional Redemption Comparable Treasury Issue" means the U.S. Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Securities 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 this Security, or, if, in the reasonable judgment of the Independent Investment Banker, there is no such security, then the Optional Redemption Comparable Treasury Issue will mean the U.S. Treasury security or securities selected by the Independent Investment Banker as having an actual or interpolated maturity or maturities comparable to the remaining term of this Security.
"Optional Redemption Comparable Treasury Price" means (1) the average of five Optional Redemption Reference Treasury Dealer Quotations for the applicable redemption date, after excluding the highest and lowest Optional Redemption Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than five such Optional Redemption Reference Treasury Dealer Quotations, the average of all such quotations.
"Optional Redemption Reference Treasury Dealer Quotations" means, with
respect to each Optional Redemption Reference Treasury Dealer and any Redemption
Date for this Security, the average, as determined by the Independent Investment
Banker of the bid and asked prices for the Optional Redemption Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker and the Trustee at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption
Date.
5. Paying Agent and Registrar. Initially, Bank One, N.A. (the "Trustee"), the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar, co-registrar or additional paying agent without notice to any Holder. The Guarantor or any of its Subsidiaries may act in any such capacity.
6. Indenture. The Company issued this Security under an Indenture dated as of August 22, 2002 (as amended, supplemented or otherwise modified from time to time, the "Indenture") among the
Company, the Guarantor and the Trustee. The terms of this Security include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date of execution of the Indenture. This Security and the Guarantees are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. Capitalized terms used but not defined in this Security have the respective meanings given to such terms in the Indenture.
7. Denominations, Transfer, Exchange. The Securities are issuable only in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of this Security may be registered and this Security may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not exchange or register the transfer of this Security during the period between a record date and the corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
9. Amendments and Waivers. Subject to certain exceptions and limitations, the Indenture or this Security may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities, and compliance in a particular instance by the Company or the Guarantor with any provision of the Indenture with respect to the Securities may be waived (other than certain provisions, including any continuing Default or Event of Default in the payment of the principal of or premium, if any, Additional Amounts, if any, or interest on the Securities) by the Holders of at least a majority in aggregate principal amount of the Securities then outstanding in accordance with the terms of the Indenture. Without the consent of any Holder, the Company, the Guarantor and the Trustee may amend or supplement the Indenture or this Security to convey, transfer, assign, mortgage or pledge to the Trustee as security for this Security any property or assets; to evidence the succession of another entity to the Company or the Guarantor, or successive successions, and the assumption by the successor entity of the covenants, agreements and obligations of the Company or the Guarantor pursuant to Section 4.01 or 4.02 of the Indenture; to add to the covenants of the Company or the Guarantor such further covenants, restrictions, conditions or provisions as the Company or the Guarantor and the Trustee shall consider to be for the protection of the Holders of Securities, to surrender any right or power conferred upon the Company or the Guarantor, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions of an Event of Default permitting the enforcement of all or any of the several remedies provided in the Indenture, provided that in respect of any such additional covenant, restriction, condition or provision such amendment or supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities to waive such an Event of Default; to cure any ambiguity or to correct or supplement any provision contained in the Indenture or in any supplemental indenture which may be defective or inconsistent with any other provision contained in the Indenture or in any supplemental indenture, provided that no such action shall adversely affect the interests of the Holders of this Security; to provide for uncertificated Securities in addition to or in place of certificated Securities, subject to any restrictions contained in the Indenture; to comply with any requirements, including the requirements of the SEC, in order to effect or maintain the qualification of the Indenture under the TIA; and to provide for any additional guarantees of the Securities or make any other change that does not adversely affect the rights under the Indenture of any Holder.
The right of any Holder to participate in any consent required or sought pursuant to any provision of the Indenture (and the obligation of the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of
this Security as of a date identified by the Trustee in a notice furnished to Holders in accordance with the terms of the Indenture.
10. Defaults and Remedies. Events of Default include: (i) default in the
payment of the principal of or premium, if any, on any Security at its Maturity,
and continuance of such default for a period of 10 days; or (ii) default in the
payment of interest, Liquidated Damages, if any, or Additional Amounts, if any,
upon any of the Securities when it becomes due and payable, and continuance of
such default for a period of 30 days; or (iii) default in the performance or
observance, or breach, of any covenant of the Company or the Guarantor in any
Security or the Indenture (other than a covenant a default in whose performance
or whose breach is elsewhere in Section 5.01 of the Indenture specifically dealt
with), and continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" under the
Indenture; or (iv) certain events specified in the Indenture relating to the
bankruptcy, insolvency or reorganization of the Company or the Guarantor; or
(vi) the Guarantees cease to be in full force and effect or become unenforceable
or invalid or are declared null and void (other than in accordance with the
terms of such Guarantees) or the Guarantor denies or disaffirms its obligations
under such Guarantees.
If an Event of Default (other than an Event of Default referred to in clause (iv) of the preceding paragraph) with respect to this Security occurs and is continuing, the Trustee by notice to the Company and the Guarantor, or by the Holders of at least 25% in aggregate principal amount of the then outstanding Securities by written notice to the Company, the Guarantor and the Trustee, may declare the principal of and Liquidated Damages, if any, Additional Amounts, if any, and interest on all then outstanding Securities to be due and payable immediately. The amount due and payable upon the acceleration of any Security is equal to 100% of the principal amount thereof plus Liquidated Damages, if any, Additional Amounts, if any, and accrued interest to the date of payment. Holders may not enforce the Indenture or this Security except as provided in the Indenture. The Trustee does require indemnity reasonably satisfactory to it before it enforces the Indenture or this Security. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal or premium, if any, or interest) if it determines that withholding notice is in their interests. Each of the Company and the Guarantor must furnish an annual compliance certificate to the Trustee.
11. Additional Amounts. If the Company or the Guarantor is required to withhold or deduct any amount for or on account of any Taxes for any payment made under or with respect to this Security, it will pay any Additional Amounts.
12. Discharge or Defeasance Prior to Maturity. The Indenture shall be discharged and canceled upon the payment of all of the Securities and shall be discharged or defeased except for certain obligations upon the irrevocable deposit with the Trustee of cash, or U.S. Government Obligations or a combination thereof sufficient for such payment.
13. Trustee Dealings with the Company and the Guarantor. The Trustee in its individual or any other capacity may become the owner or pledgee of this Security and may otherwise deal with the Company, the Guarantor or any of their Affiliates with the same rights it would have if it were not the Trustee.
14. No Recourse Against Others. A director, officer, employee or stockholder of the Company or the Guarantor, as such, shall not have any liability for any obligations of the Company or the Guarantor under this Security, the Guarantees or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting this Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of this Security.
15. Authentication. This Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that this Security has been authenticated under the Indenture.
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused a CUSIP number to be printed on this Security as a convenience to the Holders of this Security. No representation is made as to the correctness of such number either as printed on this Security or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on this Security.
17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
18. Governing Law. The Indenture, this Security and the Guarantees shall be governed by and constructed in accordance with, the laws of the State of New York.
19. Additional Rights and Obligations of Holders. In addition to the rights provided to Holders of Securities under the Indenture, this Security and the Guarantees, Holders shall have all the rights set forth in the Registration Rights Agreement, dated August 22, 2002 (the "Registration Rights Agreement"), among the Company, the Guarantor and the Initial Purchaser. Each Holder, by his acceptance thereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including without limitation the obligations of the Holders with respect to a registration and the indemnification of the Company and the Guarantor to the extent provided therein.*
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Request may be made to it at:
Nabors Industries, Inc. 515 West Greens Road, Suite 1200 Houston, Texas 77067 Attention: General Counsel Telephone No.: (281) 874-0035 Telecopier No.: (281) 775-8431
* This paragraph should be included only if the Security is a Series A Security.
FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEES
The Guarantor (which term includes any successor Person in such capacity under the Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of and premium, if any, Liquidated Damages, if any, Additional Amounts, if any, and interest on these Securities and all other amounts due and payable under the Indenture and these Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantees and the Indenture are expressly set forth in Article IX of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantees.
Guarantor:
NABORS INDUSTRIES LTD.
By: --------------------------------
Name:
Title:
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this Security to
and irrevocably appoint ________________________ as agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: __________________
SCHEDULE OF EXCHANGES OF SECURITIES**
The following exchanges, redemptions or repurchases of a part of this Global Security have been made:
PRINCIPAL AMOUNT OF SIGNATURE OF
AMOUNT OF DECREASE AMOUNT OF INCREASE GLOBAL SECURITY AUTHORIZED OFFICER,
IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT FOLLOWING SUCH TRUSTEE OR
DATE OF TRANSACTION OF GLOBAL SECURITY OF GLOBAL SECURITY DECREASE (OR INCREASE) SECURITIES CUSTODIAN
|
** This Schedule should be included only if the Security is a Global Security.
EXHIBIT B
[RESERVED]
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Bank One, N.A.
100 East Broad Street, 8th Floor
Columbus, Ohio 43215
Attention: Global Corporate Trust Services Group
RE: 5.375% SENIOR NOTES DUE 2012
Reference is hereby made to the Indenture, dated as of August 22, 2002 (the "Indenture"), among Nabors Industries, Inc., as issuer (the "Company"), Nabors Industries Ltd., as guarantor (the "Guarantor"), and Bank One, 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[s] or interest in such Security[s] specified in Annex A hereto, in the principal amount of $ in such Security[s] or interests (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. [ ] 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 believed and 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 Global Security and/or the Definitive Security and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY PURSUANT TO REGULATION
S. The Transfer is being effected pursuant to and in accordance with Regulation
S 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 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 903(b) or 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
proposed transfer is being made prior to the expiration of the Distribution
Compliance 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). 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 Global Security and/or the Definitive Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE 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 and any applicable blue sky securities laws of any State of the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to Nabors Industries Ltd. or any of its Subsidiaries;
or
(c) [ ] such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY.
(a) [ ] 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) [ ] 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 Regulation S 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 and the Guarantor.
[Insert Name of Transferor]
Title:
Dated: ,
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the Global Security (CUSIP [ ]), or
(b) [ ] a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the Global Security (CUSIP [ ]); or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security, in accordance with the terms of the Indenture.
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas 77067
Attention: General Counsel
Bank One, N.A.
100 East Broad Street, 8th Floor
Columbus, Ohio 43215
Attention: Global Corporate Trust Services Group
RE: 5.375% SENIOR NOTES DUE 2012
Reference is hereby made to the Indenture, dated as of August 22, 2002 (the "Indenture"), among Nabors Industries, Inc., as issuer (the "Company"), Nabors Industries Ltd., as guarantor (the "Guarantor"), and Bank One, 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[s] or interest in such Security[s] specified herein, in the principal amount of $ in such Security[s] or interests (the "Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY:
(a) [ ] 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 Owner's 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 Owner's 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 U.S. 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.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Security for an Unrestricted Definitive Security, the Owner hereby certifies (i) the Definitive Security is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global 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 Definitive Security is being acquired in compliance with any applicable blue sky securities laws of any State of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In connection with the Owner's Exchange of a Restricted Definitive Security for a beneficial interest in an
Unrestricted Global Security, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's 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 beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any State of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO
UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's Exchange
of a Restricted Definitive Security for an Unrestricted Definitive
Security, the Owner hereby certifies (i) the Unrestricted Definitive
Security is being acquired for the Owner's 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.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL SECURITIES:
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Security for a Restricted Definitive Security with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Security is being acquired for the Owner's own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Security issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Security and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE SECURITY TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection with the Exchange of the Owner's Restricted Definitive Security for a beneficial interest in the [CHECK ONE] 144A Global Security, Regulation S Global Security with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Securities and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any State of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Security and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the Company and the Guarantor.
Title:
Dated: ,
EXHIBIT 4.2
NABORS INDUSTRIES, INC.
$275,000,000 5.375% SENIOR NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
August 22, 2002
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Nabors Industries, Inc., a corporation organized under the laws of the State of Delaware (the "Company"), proposes to issue and sell to Lehman Brothers Inc. (the "Initial Purchaser"), upon the terms set forth in a purchase agreement, dated August 22, 2002 (the "Purchase Agreement"), $275,000,000 aggregate principal amount of its 5.375% Senior Notes due 2012 (the "Notes") relating to the initial placement of the Notes (the "Initial Placement"). The Notes will be unconditionally guaranteed (the "Guarantees" and together with the Notes, the "Securities") on a senior basis by Nabors Industries Ltd., a Bermuda company (the "Guarantor"). Concurrently with Initial Placement of the Notes, Nabors Holdings 1, ULC, an indirect, wholly-owned subsidiary of the Guarantor, is offering an aggregate of $225,000,000 of its 4.875% Senior Notes due 2009, guaranteed by each of the Guarantor and Nabors Industries, Inc., a Delaware corporation, to Qualified Institutional Buyers under Rule 144A (the "Concurrent Offering"). The consummation of the Initial Placement of the Notes and the Concurrent Offering are not conditioned upon each other. To satisfy a condition to the obligations of the Initial Purchaser under the Purchase Agreement, the Company and the Guarantor agree with the Initial Purchaser for the benefit of the holders from time to time of the Securities (including the Initial Purchaser) and the New Securities (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 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.
"Affiliate" of any specified Person shall have the same meaning as in Rule 501(b) of Regulation D of the Securities Act.
"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 the date on which the Securities 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 consummation of the Registered Exchange Offer, 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 all New Securities held by Exchanging Dealers or Initial Purchaser have been sold pursuant thereto.
"Exchange Offer Registration Statement" shall mean a registration statement of the Company and the Guarantor 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 the Initial Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any Securities 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).
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated as of August 22, 2002, among the Company, the Guarantor and Bank One, N.A., as trustee, as the same may be amended from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of Notes and/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.
"Memorandum" shall have the meaning set forth in the Purchase Agreement.
"New Notes" shall mean debt securities of the Company, guaranteed by the Guarantor, identical in all material respects to the Notes (except that the cash interest and interest rate step-up provisions and the transfer restrictions shall be modified or eliminated, as appropriate) and to be issued under the Indenture or the New Securities Indenture.
"New Securities" shall mean debt securities of the Company and the related guarantees of the Guarantor, identical in all material respects to the Securities (except that the cash interest and interest rate step-up provisions and the transfer restrictions shall be modified or eliminated, as appropriate) and to be issued under the Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture among the Company, the Guarantor and the New Securities Trustee, identical in all material respects to the Indenture (except that the interest rate step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company reasonably satisfactory to the Initial Purchaser, as trustee with respect to the New Securities under the New Securities Indenture.
"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 Securities or the New Securities 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.
"Registered Exchange Offer" shall mean the proposed offer of the Company to issue and deliver to the Holders of the Securities that are not prohibited by any law or policy of the Commission from participating in such offer, in exchange for the Securities, a like aggregate principal amount of the New Notes and Related Guarantees.
"Registration Statement" shall mean any Exchange Offer Registration Statement or Shelf Registration Statement that covers any of the Securities or the New Securities 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.
"Related Guarantees" shall mean the guarantees of the Guarantor to be issued under the Indenture or the New Securities Indenture in respect of New Notes.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement of the Company and the Guarantor pursuant to the provisions of Section 3 hereof which covers some or all of the Securities and/or New Securities, 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.
"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 Securities and New Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities or New Securities 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 and the Guarantor shall prepare, at their cost, and, not later than 90 days following the Closing Date (or if such 90th day is not a Business Day, the next succeeding Business Day) shall file with the Commission the Exchange Offer Registration Statement with respect to the Registered Exchange Offer. The Company and the Guarantor shall use their reasonable best efforts to cause the Exchange Offer Registration Statement to become effective under the Act not later December 2, 2002.
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantor shall promptly commence the Registered Exchange Offer.
(c) In connection with the Registered Exchange Offer, the Company and the Guarantor shall:
(i) mail 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 their reasonable best efforts to complete the Registered Exchange Offer promptly, but no later than December 31, 2002, and hold the Registered Exchange Offer open for not less than 20 Business Days;
(iii) use their 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 Securities by Exchanging Dealers or the Initial Purchaser during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in New York City, which may be the Trustee, the New Securities Trustee or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities 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;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Company and the Guarantor are conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation to the effect that the Company and the Guarantor have not entered into any arrangement or understanding with any Person to distribute the New Securities to be received in the Registered Exchange Offer and that, to the best of their information and belief, each Holder participating in the Registered Exchange Offer is acquiring the New Securities in the ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the Company and the Guarantor 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 Securities Trustee, as the case may be, promptly to authenticate and deliver to each Holder of Securities 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 Securities (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 Commission's 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 under the Act if the resales are of New Securities obtained by such Holder in exchange for Securities 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 and the Guarantor that, at the time of the consummation of the Registered Exchange Offer:
(i) any New Securities 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 Securities or the New Securities within the meaning of the Act;
(iii) such Holder is not an Affiliate of the Company or any of the Guarantor 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 Securities; and
(v) if such Holder is a Broker-Dealer, that it will receive New Securities for its own account in exchange for Securities 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 Securities.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable interpretations thereof by the Commission's staff, the Company determines upon advice of its outside counsel that it is not permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason the Exchange Offer Registration Statement is not declared effective by December 2, 2002 or the Registered Exchange Offer is not consummated by December 31, 2002; (iii) the Initial Purchaser determines upon advice of its counsel that a Shelf Registration Statement must be filed in connection with any public offering or sale of Securities that are not eligible to be exchanged for New Securities in the Registered Exchange Offer and that are held by it following consummation of the Registered Exchange Offer; or (iv) any Holder (other than the Initial Purchaser) is not eligible to participate in the Registered Exchange Offer or does not receive freely tradeable New Securities 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 Securities shall not result in such New Securities being not "freely tradeable"), the Company and the Guarantor shall effect a Shelf Registration Statement in accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company and the Guarantor, at their 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 thereafter shall use their reasonable best efforts to cause to be declared effective under the Act as soon as practicable, but in no event later than December 31, 2002, a Shelf Registration Statement relating to the offer and sale of the Securities or the New Securities, 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 Purchaser) shall be entitled to have the Securities or New Securities 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 Securities received by the Initial Purchaser in exchange for Securities constituting any portion of an unsold allotment, the Company and the Guarantor may, if permitted by current interpretations by the Commission's 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 and the Guarantor shall use their 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 for a period the earlier of (A) the time when all of the Securities or New Securities, as applicable, covered by the Shelf Registration Statement can be sold pursuant to Rule 144 without limitation under clauses (c), (e), (f) and (h) of Rule 144, (B) the date on which all the Securities or New Securities, as applicable, covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement, and (C) the date two years 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"). The Company and the Guarantor shall be deemed not to have used their reasonable best efforts to keep the Shelf Registration Statement effective during the requisite period if they voluntarily
take any action that would result in Holders of Securities or New Securities covered thereby not being able to offer and sell such Securities or New Securities during that period, unless (A) such action is required by applicable law; or (B) such action is taken by the Company and the Guarantor in good faith and for valid business reasons (not including avoidance of the Company's and the Guarantor' obligations hereunder), including, but not limited to, the acquisition or divestiture of assets, so long as the Company and the Guarantor promptly thereafter comply with the requirements of Section 5(k) hereof, if applicable.
(iii) the Company and the Guarantor shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, (A) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission; and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
4. Special Interest. If (a) on or prior to December 31, 2002, the Registered Exchange Offer has not been consummated, or (b) after either the Exchange Offer Registration Statement or the Shelf Registration Statement has been declared effective, such Registration Statement thereafter ceases to be effective or usable in connection with resales of Securities or New Securities in accordance with and during the periods specified in this Agreement (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 Securities and the New Securities (in addition to the stated interest on the Securities and New Securities) 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. Special Interest will accrue at a rate of 0.25% per annum.
All obligations of the Company and the Guarantor set forth in the preceding paragraph that are outstanding with respect to any Security at the time such Security is exchanged for a New Security shall survive until such time as all such obligations with respect to such Security have been satisfied in full.
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 and the Guarantor shall:
(i) furnish to the Initial Purchaser, 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 therein after the initial filing) and shall use their reasonable best efforts to reflect in each such document, when so filed with the Commission, such comments as the Initial Purchaser reasonably proposes;
(ii) include the information set forth in Annex A hereto on the front page of the Prospectus contained in the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration Statement in a section setting forth details of the Exchange Offer, in Annex C hereto in the underwriting or plan of distribution section of the Prospectus contained in the Exchange Offer Registration Statement, and in Annex D hereto in the letter of transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by the Initial Purchaser, 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; and
(iv) in the case of a Shelf Registration Statement, include the names of the Holders that propose to sell Securities or New Securities, as applicable, pursuant to the Shelf Registration Statement as selling security holders.
(b) The Company and the Guarantor 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 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, 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 and the Guarantor shall advise the Initial Purchaser,
the Holders of Securities or New Securities covered by any Shelf
Registration Statement and any Exchanging Dealer under any Exchange Offer
Registration Statement that has provided in writing to the Company and the
Guarantor a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchaser or any such Holder or Exchanging Dealer
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 and the Guarantor 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;
(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 and the Guarantor of any notification with respect to the suspension of the qualification of the Securities or New Securities 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 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 and the Guarantor shall use their reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement or the qualification of the Securities or New Securities therein for sale in any jurisdiction at the earliest possible time.
(e) The Company and the Guarantor shall furnish to each Holder of Securities or New Securities covered by any Shelf Registration Statement, without charge, at least one copy of such Shelf Registration Statement and any post-effective amendment thereto, and, if the Holder so requests in writing, all material incorporated therein by reference and all exhibits thereto (including exhibits incorporated by reference therein).
(f) The Company and the Guarantor shall, during the Shelf Registration Period, deliver to each Holder of Securities or New Securities 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 and the Guarantor consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities or New Securities in connection with the offering and sale of the Securities or New Securities covered by the Prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantor shall furnish to each Exchanging Dealer or the Initial Purchaser which so requests, without charge, at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including all material incorporated by reference therein, and, if the Exchanging Dealer so requests in writing, all exhibits thereto (including exhibits incorporated by reference therein).
(h) The Company and the Guarantor shall promptly deliver to the Initial Purchaser, each Exchanging Dealer and each other Person required to deliver a Prospectus during the 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. The Company and the Guarantor consent to the use of the Prospectus or any amendment or supplement thereto by the Initial Purchaser, 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 Securities covered by the Prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities or New Securities pursuant to any Registration Statement, the Company and the Guarantor shall arrange, if necessary, for the qualification of the Securities or the New Securities 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 and the Guarantor be obligated to qualify to do business in any jurisdiction where they are not then so qualified or to take any action that would subject them to service of process in suits or taxation, other than those arising out of the Initial Placement, the Registered Exchange Offer or any offering pursuant to a Shelf Registration Statement, in any such jurisdiction where they are not then so subject.
(j) The Company and the Guarantor shall cooperate with the Holders of Securities and New Securities to facilitate the timely preparation and delivery of certificates representing New Securities or Securities to be issued or sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Guarantor shall promptly
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 Purchaser
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 Purchaser, the Holders of the Securities or New Securities
and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement, the Company and the Guarantor shall provide a CUSIP number for the Securities or the New Securities, as the case may be, registered under such Registration Statement and provide the Trustee with printed certificates for such Securities or New Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Company and the Guarantor shall comply with all applicable rules and regulations of the Commission and shall make generally available to their security holders 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 and the Guarantor shall cause the Indenture or the New Securities Indenture, as the case may be, to be qualified under the Trust Indenture Act in a timely manner.
(o) The Company and the Guarantor may require each Holder of Securities or New Securities to be sold pursuant to any Shelf Registration Statement to furnish to the Company and the Guarantor such information regarding the Holder and the distribution of such Securities as the Company and the Guarantor may from time to time reasonably require for inclusion in such Registration Statement. The Company and the Guarantor may exclude from such Shelf Registration Statement the Securities or New Securities 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 and the Guarantor shall enter into such agreements and take all other appropriate actions (including if requested an underwriting agreement in customary form) in order to expedite or facilitate the registration or the disposition of the Securities or New Securities, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures no less favorable than those set forth in Section 7 (or such other provisions and procedures acceptable to the Majority Holders and the Managing Underwriters, if any, with respect to all parties to be indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the Company and the Guarantor shall use their reasonable best efforts to:
(i) make reasonably available for inspection by the Holders of Securities or New Securities 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;
(ii) cause the Company's officers, directors and employees to supply all relevant information reasonably requested by the Holders or any such 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 Securities or New Securities registered thereunder and the Underwriters, if any, in form, substance and scope as are customarily made by issuers to Underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the Guarantor 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 Registration Statement), addressed to each selling Holder of Securities or New Securities 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; 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 and the Guarantor.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at (A) the effectiveness of such Registration Statement and each post-effective amendment thereto; and (B) 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 Securities by Holders to the Company (or to such other Person as directed by the Company) in exchange for the New Securities, the Company shall mark, or caused to be marked, on the Securities so exchanged that such Securities are being canceled in exchange for the New Securities. In no event shall the Securities be marked as paid or otherwise satisfied.
(s) If any Broker-Dealer shall underwrite any Securities or New Securities 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 National Association of Securities Dealers, Inc.) thereof, whether as a Holder of such Securities or New Securities or as an Underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, 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 Securities or New Securities;
(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 and the Guarantor shall use their reasonable best efforts to take all other steps necessary to effect the registration of the Securities or the New Securities, as the case may be, covered by a Registration Statement.
6. Registration Expenses. The Company and the Guarantor shall bear all expenses incurred in connection with the performance of their 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 Purchaser or the Holders, all agency fees and commissions, underwriting discounts and commissions and transfer taxes attributable to the sale or disposition of Securities by a Holder.
7. Indemnification and Contribution.
(a) The Company and the Guarantor agree, jointly and severally, to
indemnify and hold harmless (i) the Initial Purchaser, (ii) each Holder of
Securities or New Securities, 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), (iii) each Person, if any, who
controls (within the meaning of either Section 15 of the Securities 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 Purchaser, the Holders (including
predecessor Holders) or any controlling person (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 or
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus, 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, claims, damages or
liabilities 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 or the Guarantor in
writing by such Indemnified Holder expressly for use in therein; provided,
however, that neither the Company nor the Guarantor shall be liable to any
Indemnified Holder under the indemnity agreement of this paragraph with respect
to any preliminary prospectus to the extent that any such loss, claim, damage,
liability, judgment or expense of such Indemnified Holder results from the fact
that such Indemnified Holder sold Securities or New Securities under a
Registration Statement to a Person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (or of the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto on a timely basis), in any case where such
delivery is required by applicable law and the loss, claim, damage, liability or
expense of such Indemnified Holder results from an untrue statement or omission
of a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (or in the preliminary prospectus as then amended or
supplemented if the Company or the Guarantor shall have furnished such
Indemnified Holder with such amendment or supplement thereto, as the case may
be, on a timely basis). The Company or the Guarantor shall notify such
Indemnified Holder promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves the
Company or the Guarantor or such Indemnified Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company and the Guarantor, each of their respective directors and officers and each Person who controls the Company or the Guarantor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company and the Guarantor to each Holder, but only with reference to such losses, claims, damages or liabilities which 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 or the Guarantor in writing by such Holder expressly for use in any Registration Statement or Prospectus, or any amendment or supplement thereto or any related preliminary prospectus. This indemnity agreement will be in addition to any liability which any such Holder may otherwise have.
(c) The Initial Purchaser agrees to indemnify and hold harmless the Company
and the Guarantor, each of their respective directors and officers and each
Person who controls the Company or the Guarantor within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company and the Guarantor to the
Initial Purchaser, but only with reference to such losses, claims, damages or
liabilities which 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 Purchaser furnished to the Company or the Guarantor in writing by the Initial Purchaser expressly for use in any Registration Statement or Prospectus, or any amendment or supplement thereto or any related preliminary prospectus. This indemnity agreement will be in addition to any liability which the Initial Purchaser 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 two 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 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 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 amount of Securities and New Securities offered in the Prospectus to which the claim relates, any such separate firm for the Company, its directors, respective officers and such control Persons of the Company shall be designated in writing by the Company, and any such separate firm for the Guarantor, its directors, respective officers and such control Persons of the Guarantor shall be designated in writing by the Guarantor. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its 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 and second paragraphs of this Section 7 is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities 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, claims, damages or liabilities (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 Securities or New Securities pursuant to any Registration Statement which resulted in such losses, claims, damages or liabilities 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, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor 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 and the Guarantor bear to the total net proceeds received by such Indemnified Holder from sales of Securities or New Securities 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 the Guarantor or such Indemnified Holder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) Each of the Company, the Guarantor and the Initial Purchaser 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, claims, damages and liabilities 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 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 Securities or New Securities 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 Security or New Security pursuant to a Registration Statement 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 Securities 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 or the Guarantor, their respective officers or directors or any other Person controlling any of the Company or the Guarantor and (iii) acceptance of and payment for any of the Securities or New Securities.
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as the case may be, covered by any Shelf Registration Statement are 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 and the Guarantor.
(b) No Person may participate in any underwritten offering pursuant to any Shelf Registration Statement, unless such Person (i) agrees to sell such Person's Securities or New Securities, 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 securities 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 written consent of the Majority Holders (or, after the consummation of any Registered Exchange Offer in accordance with
Section 2 hereof, of New Securities); provided, however, that, with respect to any matter that directly or indirectly affects the rights of the Initial Purchaser hereunder, the Company shall obtain the written consent of the Initial Purchaser. 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 Securities or New Securities, 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 Securities or New Securities, as the case may be, being sold rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to the Company in accordance with the provisions of this Section, which address initially is, with respect to each Holder, the address of such Holder maintained by the Registrar under the Indenture, with a copy in like manner to Salomon Smith Barney Inc;
(b) if to the Initial Purchaser, initially at its address set forth in the Purchase Agreement; and
(c) if to the Company or the Guarantor, initially at its or their address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchaser 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 Securities or New Securities. The Company hereby agrees to extend the benefits of this Agreement to any Holder of Securities and the New Securities, and any such Holder may specifically enforce the provisions of this Agreement as if an original party hereto.
13. Counterparts. This Agreement may be in signed counterparts, each of which shall an original and all of which 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.
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.
17. Securities Held by the Company, etc. Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities or New Securities is required hereunder, Securities or New Securities, as applicable, held by the Company or its Affiliates (other than subsequent Holders of Securities or New Securities if such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such Securities or New Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
[Remainder Of This Page Is Intentionally Left Blank]
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, the Guarantor and you.
Very truly yours,
NABORS INDUSTRIES, INC.
By: /s/ Anthony G. Petrello
----------------------------------
Name: Anthony G. Petrello
Title: President and Chief
Operating Officer
|
NABORS INDUSTRIES LTD.
By: /s/ Daniel McLachlin
----------------------------------
Name: Daniel McLachlin
Title: Vice President and
Corporate Secretary
Signed in St. Michael, Barbados
|
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
LEHMAN BROTHERS INC.
By: /s/ Gregory Hall
-----------------------------------
Name: Gregory Hall
Title: Managing Director
|
ANNEX A
Each Broker-Dealer that receives New Securities 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 Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. 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 Securities received in exchange for Securities where such Securities were acquired by such Broker-Dealer as a result of market-making activities or other trading activities. The Company has agreed that, starting on the Expiration Date (as defined herein) and ending on the close of business one year after the Expiration Date, or such shorter period as will terminate when all New Securities held by Exchanging Dealers or Initial Purchaser have been sold pursuant hereto, it will make this Prospectus available to any Broker-Dealer for use in connection with any such resale. Furthermore, any broker-dealer that acquired any of the old notes directly from us:
- may not rely on the applicable interpretation of the staff of the SEC's 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 Commission's letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and
- must also be named as a selling noteholder in connection with the registration and prospectus delivery requirements of the Securities Act relating to any resale transaction.
See "Plan of Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in exchange for Securities, where such Securities 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 Securities Act in connection with any offer, resale or other transfer of such New Securities, including information with respect to any selling holder required by the Securities Act in connection with the resale of the New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities 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 Securities. 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 Securities received in exchange for Securities where such Securities were acquired as a result of market-making activities or other trading activities. We have agreed that, starting on the Expiration Date and ending on the close of business 180-days after the Expiration Date or such shorter period as will terminate when all New Securities held by Exchanging Dealers or Initial Purchaser have been sold pursuant hereto, 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 , 200 , all dealers effecting transactions in the New Securities may be required to deliver a prospectus.
We will not receive any proceeds from any sale of New Securities by brokers-dealers. New Securities 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 Securities 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 and/or the purchasers of any such New Securities. Any Broker-Dealer that resells New Securities 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 Securities may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit of any such resale of New Securities and any commissions or concessions received by any such Persons may be deemed to be underwriting compensation under the Securities 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 Securities Act.
Furthermore, any broker-dealer that acquired any of the old notes directly from us:
- may not rely on the applicable interpretation of the staff of the SEC's 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 Commission's letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and
- must also be named as a selling noteholder in connection with the registration and prospectus delivery requirements of the Securities Act relating to any resale transaction.
For a period of 180-days after the Expiration Date or such shorter period as will terminate when all New Securities held by Exchanging Dealers or Initial Purchaser have been sold pursuant hereto, 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 Securities) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Securities (including any Broker-Dealers) against certain liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or 508.]
ANNEX D
Rider A
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.
Name:
------------------------------------------------
Address:
------------------------------------------------
------------------------------------------------
------------------------------------------------
|
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New Securities in the ordinary course of its business, it is not engaged in, and does not intend to engage in, a distribution of New Securities and it has no arrangements or understandings with any Person to participate in a distribution of the New Securities. If the undersigned is a Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it represents that the Securities to be exchanged for New Securities 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 Securities; 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 Securities Act.
EXHIBIT 5.1
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212) 735-3000
October 10, 2002
Nabors Industries, Inc.
515 West Greens Road
Suite 1200
Houston, Texas 77067
Ladies and Gentlemen:
We have acted as special U.S. counsel to Nabors Industries, Inc., a Delaware corporation, as issuer (the "Company"), and Nabors Industries Ltd., a Bermuda exempted company, as guarantor (the "Guarantor"), in connection with the public offering of up to $275,000,000 aggregate principal amount of 5.375% Senior Notes due 2012 (the "Exchange Notes") of the Company. The Indenture, dated as of August 22, 2002 (the "Indenture"), by and among the Company, the Guarantor and Bank One, N.A., as trustee (the "Trustee"), provides for the guarantee of the Exchange Notes by the Guarantor (the "Guarantees") to the extent set forth in the Indenture. The Exchange Notes are to be issued pursuant to an exchange offer (the "Exchange Offer") in exchange for a like principal amount of the issued and outstanding 5.375% Senior Notes due 2012 of the Company (the "Original Notes") under the Indenture, as contemplated by the Registration Rights Agreement, dated August 22, 2002 (the "Registration Rights Agreement"), by and among the Company, the Guarantor and Lehman Brothers Inc.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Act").
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of:
(i) the Registration Statement on Form S-4 relating to the Exchange Notes and the Guarantees to be filed with the Securities and Exchange Commission (the "Commission") on October 11, 2002 under the Act (the "Registration Statement");
(ii) an executed copy of the Registration Rights Agreement;
(iii) an executed copy of the Indenture, including the terms and provisions of the Guarantees;
(iv) the Certificate of Incorporation of the Company, as certified by the Secretary of State of the State of Delaware;
(v) the By-laws of the Company, as currently in effect;
(vi) certain resolutions adopted by the members of the Board of Directors of the Company relating to the Exchange Offer, the Indenture, the issuance of the Exchange Notes by the Company and related matters;
(vii) the Form T-1 of the Trustee filed as an exhibit to the Registration Statement; and
(viii) the form of the Exchange Notes.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the Guarantor and such agreements, certificates of public officials, certificates of officers or other representatives of the Company, the Guarantor and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified, conformed or photostatic copies and the authenticity of the originals of such copies. In making our examination of documents executed or to be
executed, we have assumed that the parties thereto (other than the Company) had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and, except as set forth in our opinion below, the validity and binding effect thereof on such parties. We have also assumed that such parties (other than the Company) have complied with all aspects of the laws of their respective jurisdictions of organization in connection with the Exchange Notes, the Guarantees, the Registration Rights Agreement and the Indenture. As to any facts material to the opinions expressed herein that we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company, the Guarantor and others.
Our opinion set forth herein is limited to the Delaware corporate law and the laws of the State of New York that are normally applicable to transactions of the type contemplated by the Exchange Offer and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as "Opined on Law"). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such non-opined-on law on the opinions herein stated.
Based upon and subject to the foregoing, and the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that when the Exchange Notes (in the form examined by us) have been duly executed and authenticated in accordance with the terms of the Indenture and have been delivered upon consummation of the Exchange Offer against receipt of Original Notes surrendered in exchange therefor in accordance with the terms of the Exchange Offer, the Exchange Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors' rights generally and (2) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).
In rendering the opinion set forth above, we have assumed that the execution and delivery by the Company and the Guarantor of the Indenture and the performance by each of the Company and the Guarantor of their respective obligations under the Exchange Notes and the Guarantees do not and will not violate, conflict with or constitute a default under any agreement or instrument to which the Company or the Guarantor or their properties are subject, except that we do not make this assumption for those agreements and instruments which have been identified to us by either the Company or the Guarantor as being material to them and which are listed in Part II of the Registration Statement.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption "Legal Matters" in the prospectus included in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP |
EXHIBIT 5.2
[APPLEBY SPURLING & KEMPE LETTERHEAD]
3 October 2002
Nabors Industries, Inc.
515 West Greens Road
Suite 1200
Houston, Texas 77067
Dear Sirs
NABORS INDUSTRIES LTD.
We have acted as legal counsel in Bermuda to Nabors Industries Ltd. (the "Guarantor") in connection with a guarantee to be granted by the Guarantor in support of $275,000,000 aggregate principal amount of 5.375% Senior Notes due 2012 (the "Exchange Notes") to be offered to the public by Nabors Industries, Inc., a Delaware corporation (the "Company"). The Indenture, dated as of August 22, 2002 (the "US Indenture"), by and among the Company, the Guarantor and Bank One, N.A., as Trustee (the "Trustee"), provides for the guarantee of the Exchange Notes by the Guarantor (the "Guarantees") to the extent set forth in the US Indenture. The Exchange Notes are to be issued pursuant to an exchange offer (the "Exchange Offer") in exchange for a like principal amount of the issued and outstanding 5.375% Senior Notes due 2012 of the Company (the "Original Notes") under the US Indenture, as contemplated by the Registration Rights Agreement, dated August 22, 2002 (the "US Registration Rights Agreement"), by and among the Company, the Guarantor and Lehman Brothers Inc.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Act") in connection with the execution of the following agreements:
(a) the US INDENTURE;
(b) the US REGISTRATION RIGHTS AGREEMENT;
(c) the form of GUARANTEE attached to the EXCHANGE NOTES; and
(d) the REGISTRATION STATEMENT
(The US INDENTURE, the US REGISTRATION RIGHTS AGREEMENT and the form of GUARANTEE attached to the EXCHANGE NOTES are hereinafter collectively referred to as the "SUBJECT AGREEMENTS").
For the purposes of this opinion we have examined and relied upon the documents listed, and in some cases defined, in the Schedule to this opinion (the "DOCUMENTS") together with such other documentation as we have considered requisite to this opinion.
ASSUMPTIONS
In stating our opinion we have assumed:
(a) the authenticity, accuracy and completeness of all Documents and other documentation examined by us submitted to us as originals and the conformity to authentic original documents of all Documents and other such documentation submitted to us as certified, conformed, notarised, faxed or photostatic copies;
(b) that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent;
(c) the genuineness of all signatures on the Documents;
(d) the authority, capacity and power of each of the persons signing the Documents (other than the Guarantor in respect of the Subject Agreements);
(e) that any representation, warranty or statement of fact or law, other than as to the laws of Bermuda, made in any of the Documents is true, accurate and complete;
(f) that the Subject Agreements constitute the legal, valid and binding obligations of each of the parties thereto, other than the Guarantor, under the laws of its jurisdiction of incorporation or its jurisdiction of formation;
(g) that the Subject Agreements have been validly authorized, executed and delivered by each of the parties thereto, other than the Guarantor, and the performance thereof is within the capacity and powers of each such party thereto, and that each such party to which the Guarantor purportedly delivered the Subject Agreements has actually received and accepted delivery of such Subject Agreements;
(h) that the Subject Agreements will effect, and will constitute legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with their terms, under the laws of the State of New York by which they are expressed to be governed;
(i) that the Subject Agreements are in the proper legal form to be admissible in evidence and enforced in the courts of the State of New York and in accordance with the laws of the State of New York;
(j) that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Subject Agreements or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Subject Agreements is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction;
(k) that the Guarantor and each of the other parties to the Subject Agreements is not carrying on investment business in or from within Bermuda under the provisions of the Investment Business Act 1998 as amended from time to time;
(l) that the records which were the subject of the Company Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Company Search been materially altered;
(m) that the records which were the subject of the Litigation Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Litigation Search been materially altered;
(n) that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions passed by the Board of Directors of the Guarantor in a meeting which was duly convened and at which a duly constituted quorum was present and voting throughout and that there is no matter affecting the authority of the Directors to effect entry by the Guarantor into the Subject Agreements, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein;
(o) that each of the other parties to the Subject Agreements have no express or constructive knowledge of any circumstance whereby any Director of the Guarantor, when the Board of Directors of the Guarantor passed the Resolutions, failed to discharge his fiduciary duty owed to the Guarantor and to act honestly and in good faith with a view to the best interests of the Guarantor;
(p) that the Guarantor has entered into its obligations under the Subject Agreements in good faith for the purpose of carrying on its business and that, at the time it did so, there were reasonable grounds for believing that the transactions contemplated by the Subject Agreements would benefit the Guarantor;
(q) that each transaction to be entered into pursuant to the Subject Agreements is entered into in good faith and for full value and will not have the effect of preferring one creditor over another;
(r) that, when executed and delivered, the Guarantee will be in a form which does not differ in any material respect from the drafts which we have examined for the purposes of this opinion; and
(s) that there are no circumstances affecting the enforceability of the US Indenture or the US Registration Rights Agreement which have arisen since the date which those documents were entered into, of which we are unaware, which would have any adverse implication in relation to the opinions expressed herein.
OPINION
Based upon and subject to the foregoing and subject to the reservations set out below and to any matters not disclosed to us, we are of the opinion that:
(1) The Guarantor is an exempted company incorporated with limited liability and existing under the laws of Bermuda. The Guarantor possesses the capacity to sue and be sued in its own name and is in good standing under the laws of Bermuda.
(2) The Guarantor has all requisite corporate power and authority to enter into, execute, deliver, and perform its obligations under the Subject Agreements, including the Guarantee, and to take all action as may be necessary to complete the transactions contemplated thereby.
(3) The execution, delivery and performance by the Guarantor of the Subject Agreements, including the Guarantee, and the transactions contemplated thereby have been duly authorised by all necessary corporate action on the part of the Guarantor.
(4) The US Indenture and the US Registration Rights Agreement have been duly executed by the Guarantor and each constitutes legal valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its terms.
(5) When the Exchange Notes, including the Guarantee, have been duly executed and authenticated in accordance with the terms of the US Indenture and have been delivered upon consummation of the Exchange Offer against receipt of Original Notes surrendered in exchange therefor in accordance with the terms of the Exchange Offer, the Guarantee will constitute a legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms.
(6) Subject as otherwise provided in this opinion no consent, licence or authorisation of, filing with, or other act by or in respect of, any governmental authority or court of Bermuda is required to be obtained by the Guarantor in connection with the execution, delivery or performance by the Guarantor of the Subject Agreements, including the Guarantee, or to ensure the legality, validity, admissibility into evidence or enforceability as to the Guarantor, of the Subject Agreements, including the Guarantee.
(7) The execution, delivery and performance by the Guarantor of the Subject Agreements including the Guarantee and the transactions contemplated thereby do not and will not
violate, conflict with or constitute a default under (i) any requirement of any law or any regulation of Bermuda or (ii) the Constitutional Documents.
RESERVATIONS
We have the following reservations:
(a) The term "enforceable" as used in this opinion means that there is a way of ensuring that each party performs an agreement or that there are remedies available for breach.
(b) We express no opinion as to the availability of equitable remedies such as specific performance or injunctive relief, or as to any matters which are within the discretion of the courts of Bermuda in respect of any obligations of the Guarantor as set out in the Subject Agreements. In particular, we express no opinion as to the enforceability of any present or future waiver of any provision of law (whether substantive or procedural) or of any right or remedy which might otherwise be available presently or in the future under the Subject Agreements.
(c) Enforcement of the obligations of the Guarantor under the Subject Agreements may be limited or affected by applicable laws from time to time in effect relating to bankruptcy, insolvency or liquidation or any other laws or other legal procedures affecting generally the enforcement of creditors' rights.
(d) Enforcement of the obligations of the Guarantor may be the subject of a statutory limitation of the time within which such proceedings may be brought.
(e) We express no opinion as to any law other than Bermuda law and none of the opinions expressed herein relates to compliance with or matters governed by the laws of any jurisdiction except Bermuda. This opinion is limited to Bermuda law as applied by the Courts of Bermuda at the date hereof.
(f) Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of Bermuda may refuse to enforce it to the extent that such performance would be illegal under the laws of, or contrary to public policy of, such other jurisdiction.
(g) We express no opinion as to the validity, binding effect or enforceability of any provision incorporated into any of the Subject Agreements by reference to a law other than that of Bermuda, or as to the availability in Bermuda of remedies which are available in other jurisdictions.
(h) Where a person is vested with a discretion or may determine a matter in his or its opinion, such discretion may have to be exercised reasonably or such an opinion may have to be based on reasonable grounds.
(i) We express no opinion as to the validity or binding effect of any provision of the Subject Agreements which provides for the severance of illegal, invalid or unenforceable provisions.
(j) A Bermuda court may refuse to give effect to any provisions of the Subject Agreements in respect of costs of unsuccessful litigation brought before the Bermuda court or where that court has itself made an order for costs.
(k) Searches of the Register of Companies at the office of the Registrar of Companies and of the Supreme Court Causes Book at the Registry of the Supreme Court are not conclusive and it should be noted that the Register of Companies and the Supreme Court Causes Book do not reveal:
(i) details of matters which have been lodged for filing or registration which as a matter of best practice of the Registrar of Companies or the Registry of the Supreme Court would have or should have been disclosed on the public file, the Causes Book or the Judgment Book, as the case may be, but for whatever reason have not actually been filed or registered or are not disclosed or which, notwithstanding filing or registration, at the date and time the search is concluded are for whatever reason not disclosed or do not appear on the public file, the Causes Book or Judgment Book;
(ii) details of matters which should have been lodged for filing or registration at the Registrar of Companies or the Registry of the Supreme Court but have not been lodged for filing or registration at the date the search is concluded;
(iii) whether an application to the Supreme Court for a winding-up petition or for the appointment of a receiver or manager has been prepared but not yet been presented or has been presented but does not appear in the Causes Book at the date and time the search is concluded;
(iv) whether an arbitration or administrative proceedings are pending or whether any proceedings are threatened, or whether any arbitrator has been appointed; or
(v) whether a receiver or manager has been appointed privately pursuant to the provisions of a debenture or other security, unless notice of the fact has been entered in the Register of Charges in accordance with the provisions of the Act.
Furthermore, in the absence of a statutorily defined system for the registration of charges created by companies incorporated outside Bermuda ("OVERSEAS COMPANIES") over their assets located in Bermuda, it is not possible to determine definitively from searches of the Register of Charges maintained by the Registrar of Companies in respect of such overseas companies what charges have been registered over any of their assets located in Bermuda or whether any one charge has priority over any other charge over such assets.
(l) In order to issue this opinion we have carried out the Company Search as referred to in the Schedule to this opinion and have not enquired as to whether there has been any change since the date of such search.
(m) In order to issue this opinion we have carried out the Litigation Search as referred to in the Schedule to this opinion and have not enquired as to whether there has been any change since the date of such search.
(n) In paragraph (1) above, the term "good standing" means that the Guarantor has received a Certificate of Compliance from the Registrar of Companies.
(o) The agreement that the Guarantor will not exercise its statutory powers, as provided in clause 4.01 of the US Indenture, may constitute an unlawful fetter on the statutory power of the Guarantor. This power is reserved for exercise by the shareholders of the Guarantor.
DISCLOSURE
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption "Legal Matters" in the prospectus included in the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
Further, this opinion speaks as of its date and is strictly limited to the matters stated herein and we assume no obligation to review or update this opinion if applicable law or the existing facts or circumstances should change.
This opinion is governed by and is to be construed in accordance with Bermuda law. It is given on the basis that it will not give rise to any legal proceedings with respect thereto in any jurisdiction other than Bermuda.
Yours faithfully
/s/ Appleby Spurling & Kempe |
SCHEDULE
1. The entries and filings shown in respect of the Guarantor on the file of the Guarantor maintained in the Register of Companies at office of the Registrar of Companies in Hamilton, Bermuda, as revealed by a search on 3 October 2002 (the "COMPANY SEARCH").
2. The entries and filings shown in respect of the Guarantor in the Supreme Court Causes Book maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a search on 3 October 2002 in respect of the Guarantor (the "LITIGATION SEARCH").
3. Certified copies of the Certificate of Incorporation, Memorandum of Association and Bye-Laws for the Guarantor (collectively referred to as the "CONSTITUTIONAL DOCUMENTS").
4. Certified copy of the Minutes of the Meeting of the Board of Directors of the Guarantor held on 17th July 2002 relating to matters including the Registration Statement, Exchange Offer, the US Indenture, and the issuance of the Guarantee and related matters (the "RESOLUTIONS").
5. Faxed copy of an executed registration rights agreement, dated 22
August 2002, among the Company, the Guarantor, and Lehman Brothers Inc.
(the "US REGISTRATION RIGHTS AGREEMENT").
6. Faxed copy of an executed indenture, dated as of 22 August 2002, among the Company, the Guarantor and Bank One, N.A. (the "US INDENTURE").
7. An electronic copy of the registration statement (excluding exhibits and excluding the documents incorporated by reference) (the "REGISTRATION STATEMENT").
8. A Certificate of Compliance, dated 3 October 2002 issued by the Ministry of Finance in respect of the Company.
9. An electronic form of the Form T-1 of the Trustee filed as an exhibit to the Registration Statement.
10. An electronic form of the Guarantee attached to the Exchange Notes issued by the Company (the "GUARANTEE").
EXHIBIT 12.1
NABORS INDUSTRIES, INC. AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
SIX MONTHS ENDED THREE
JUNE 30, YEAR ENDED DECEMBER 31, MONTHS ENDED YEAR ENDED
------------------- ---------------------------------------- DECEMBER 31, SEPTEMBER 30,
2002 2001 2001 2000 1999 1998 1997 1997
-------- -------- -------- -------- ------- -------- ------------ -------------
(IN THOUSANDS, EXCEPT RATIO AMOUNTS)
Income before income
taxes................... $ 90,083 $299,198 $557,612 $229,743 $45,629 $199,981 $62,616 $182,410
Less earnings from
affiliates, net of
dividends............... (13,511) (17,442) (26,386) (21,540) 343 305 25 (450)
Add amortization of
capitalized interest.... 409 384 768 661 526 516 85 319
Add fixed charges as
adjusted (from below)... 30,603 28,727 63,774 37,655 31,165 16,040 4,107 16,980
-------- -------- -------- -------- ------- -------- ------- --------
Earnings.............. $107,584 $310,867 $595,768 $246,519 $77,663 $216,842 $66,833 $199,259
-------- -------- -------- -------- ------- -------- ------- --------
Fixed charges:
Interest expense:
Interest on
indebtedness........ $ 11,282 $ 11,503 $ 22,921 $ 28,122 $30,088 $ 14,974 $ 3,858 $ 15,993
Capitalized........... 735 748 1,609 2,021 154 2,648 297 1,191
Amortization of debt
related costs(1)...... 17,751 15,474 37,801 7,248 307 489 121 527
Interest portion of
rental expense........ 1,570 1,750 3,052 2,285 770 577 128 460
-------- -------- -------- -------- ------- -------- ------- --------
Fixed charges before
adjustments........... 31,338 29,475 65,383 39,676 31,319 18,688 4,404 18,171
Less capitalized
interest.............. (735) (748) (1,609) (2,021) (154) (2,648) (297) (1,191)
-------- -------- -------- -------- ------- -------- ------- --------
Fixed charges as
adjusted.............. $ 30,603 $ 28,727 $ 63,774 $ 37,655 $31,165 $ 16,040 $ 4,107 $ 16,980
-------- -------- -------- -------- ------- -------- ------- --------
Ratio (earnings divided by
fixed charges before
adjustments)............ 3.43 10.55 9.11 6.21 2.48 11.60 15.18 10.97
-------- -------- -------- -------- ------- -------- ------- --------
|
(1) Includes deferred financing, discount and premium amortization
EXHIBIT 15.1
October 10, 2002
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Commissioners:
We are aware that our report dated April 17, 2002, except for Notes 1 and 2, as to which the date is April 29, 2002, on our review of the interim consolidated financial information of Nabors Industries, Inc. (Nabors Delaware) as of and for the period ended March 31, 2002 and included in the Nabors Delaware's quarterly report on Form 10-Q for the quarter then ended is incorporated by reference in this Registration Statement.
We are also aware that our report dated July 17, 2002, except for Note 11, as to which the date is August 8, 2002, and Notes 4 and 10, as to which the date is October 10, 2002, on our review of the interim consolidated financial information of Nabors Industries Ltd. (the Company) as of and for the period ended June 30, 2002 and included in the Company's quarterly report on Form 10-Q/A for the quarter then ended is incorporated by reference in this Registration Statement.
Very truly yours,
/s/ PricewaterhouseCoopers LLP |
EXHIBIT 21.1
NABORS INDUSTRIES, INC.
SIGNIFICANT SUBSIDIARIES
As of June 30, 2002
Jurisdiction of
Subsidiary Incorporation or Organization
---------- -----------------------------
Nabors Corporate Services Delaware
Serendipity Investments, Ltd. Delaware
Nabors Drilling USA, LP Delaware
Yellow Deer Investments Corp. Nevada
Nabors Alaska Drilling, Inc. Alaska
Nabors Holding Company Delaware
Pool Company Delaware
Nabors International, Inc. Delaware
Nabors Management Ltd. Bermuda
Nabors Drilling International Ltd. Bermuda
Nabors Offshore Corporation Delaware
Pool Well Services Co. Delaware
|
NABORS INDUSTRIES, LTD.
SIGNIFICANT SUBSIDIARIES
As of June 30, 2002
Jurisdiction of
Subsidiary Incorporation or Organization
---------- -----------------------------
Nabors International Finance, Inc. Delaware
Nabors Industries, Inc. Delaware
Nabors Corporate Services Delaware
Serendipity Investments, Ltd. Delaware
Nabors Drilling USA, LP Delaware
Yellow Deer Investments Corp. Nevada
Nabors Alaska Drilling, Inc. Alaska
Nabors Holding Company Delaware
Pool Company Delaware
Nabors International, Inc. Delaware
Nabors Management Ltd. Bermuda
Nabors Drilling International Ltd. Bermuda
Nabors Offshore Corporation Delaware
Pool Well Services Co. Delaware
|
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of our report dated January 23, 2002, except for Note 16, as to which the date is March 18, 2002, Notes 1, 2, 7, 12 and 15, as to which the date is August 20, 2002, and Note 17, as to which the date is October 10, 2002, relating to the consolidated financial statements, which is included in Nabors Industries Ltd.'s Current Report on Form 8-K dated October 10, 2002. We also consent to the incorporation by reference of our report dated January 23, 2002 relating to the financial statement schedule, which appears in Nabors Industries, Inc.'s Annual Report on Form 10-K for the year ended December 31, 2001. We also consent to the reference to us under the heading "Independent Accountants" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP Houston, Texas October 10, 2002 |
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
BANK ONE, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
1 BANK ONE PLAZA, CHICAGO, ILLINOIS 60670-0120
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE, NATIONAL ASSOCIATION
1 BANK ONE PLAZA, SUITE IL1-0120
CHICAGO, ILLINOIS 60670-0120
|
ATTN: SANDRA L. CARUBA, LAW DEPARTMENT (312) 336-9436
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
NABORS INDUSTRIES, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 93-0711613 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) |
515 WEST GREENS ROAD, SUITE 1200
HOUSTON, TEXAS 77067
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence business.*
3. A copy of the authorization of the trustee to exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and the State of Illinois, on this 20th day of September, 2002.
BANK ONE, NATIONAL ASSOCIATION,
TRUSTEE
By /s/ Sandra L. Caruba
----------------------------
Sandra L. Caruba
First Vice President
|
* EXHIBITS 1, 2, 3, AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF BANK ONE, NATIONAL ASSOCIATION, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF HOUSEHOLD FINANCE CORPORATION FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 2000 (REGISTRATION NO. 333-33240).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 20, 2002
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Nabors Industries, Inc. and Bank One, National Association, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE, NATIONAL ASSOCIATION
By /s/ Sandra L. Caruba
-------------------------
Sandra L. Caruba
First Vice President
|
EXHIBIT 7
Legal Title of Bank: Bank One, N.A. Call Date: 6/30/02 Address: 1 Bank One Plaza Cert #: 03618 Page RC-1 City, State Zip: Chicago, IL 60670 |
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 2002
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter.
SCHEDULE RC--BALANCE SHEET
DOLLAR AMOUNTS IN THOUSANDS C300
--------
ASSETS RCON
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin(1) ......................... 0081 12,783,000 1.a
b. Interest-bearing balances(2) ................................................... 0071 3,002,000 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ...................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) ................... 1773 42,712,000 2.b
3. Federal funds sold and securities purchased under agreements to resell
a. Federal funds sold in domestic offices ......................................... B987 7,139,000
b. Securities Purchased under agreements to resell ................................ B989 1,015,000 3.
4. Loans and lease financing receivables: (from Schedule RC-C) RCON
----
a. Loans and leases held for sale ................................................. 5369 1,587,000 4.a
b. Loans and leases, net of unearned income ....................................... B528 101,957,000 4.b
c. LESS: Allowance for loan and lease losses ...................................... 3123 2,551,000 4.c
d. Loans and leases, net of unearned income and allowance
(item 4.b minus 4.c) ........................................................... B529 99,406,000 4.d
5. Trading assets (from Schedule RC-D) ............................................... 3545 3,353,000 5.
6. Premises and fixed assets (including capitalized leases) .......................... 2145 1,006,000 6.
7. Other real estate owned (from Schedule RC-M) ...................................... 2150 33,000 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .................................................... 2130 175,000 8.
9. Customers' liability to this bank on acceptances outstanding ...................... 2155 244,000 9.
10. Intangible assets
a. Goodwill ....................................................................... 3163 473,000 10.a
b. Other intangible assets (from Schedule RC-M) ................................... 0426 2,000 10.b
11. Other assets (from Schedule RC-F) ................................................. 2160 10,989,000 11.
12. Total assets (sum of items 1 through 11) .......................................... 2170 183,869,000 12.
|
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
(3) Includes all securities resale agreements in domestic and foreign offices, regardless of maturity.
Legal Title of Bank: Bank One, N.A. Call Date: 3/31/02 Address: 1 Bank One Plaza Cert #: 03618 Page RC-2 City, State Zip: Chicago, IL 60670
SCHEDULE RC-CONTINUED
DOLLAR AMOUNTS IN THOUSANDS
LIABILITIES RCON
13. Deposits: ----
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)....... 2200 90,275,000 13.a
(1) Noninterest-bearing(1)...................................................... 6631 33,176,000 13.a1
(2) Interest-bearing............................................................ 6636 57,099,000 13.a2
b. Not applicable
14. Federal funds purchased and securities sold under agreements RCFN
to repurchase ----
a. Federal funds purchased in domestic offices (2)................................. B993 5,324,000 14.a
b. Securities sold under agreements to repurchase (3).............................. RCFD
----
B995 13,027,000 14.b
5. Trading Liabilities(from Schedule RC-D)............................................ 3548 3,119,000 15.
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases) (from Schedule RC-M)......................... 3190 19,954,000 16.
17. Not applicable
18. Bank's liability on acceptances executed and outstanding........................... 2920 244,000 18.
19. Subordinated notes and debentures (2).............................................. 3200 3,979,000 19.
20. Other liabilities (from Schedule RC-G)............................................. 2930 10,109,000 20.
21. Total liabilities (sum of items 13 through 20)..................................... 2948 170,457,000 21.
22. Minority interest in consolidated subsidiaries..................................... 3000 60,000 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................................... 3838 0 23.
24. Common stock....................................................................... 3230 201,000 24.
25. Surplus (exclude all surplus related to preferred stock)........................... 3839 7,479,000 25.
26. a. Retained earnings............................................................... 3632 5,545,000 26.a
b. Accumulated other comprehensive income(3)....................................... B530 127,000 26.b
27. Other equity capital components(4)................................................. A130 0 27.
28. Total equity capital (sum of items 23 through 27).................................. 3210 13,352,000 28.
29. Total liabilities, minority interest, and equity capital
(sum of items 21, 22, and 28)...................................................... 3300 183,869,000 29.
Memorandum
To be reported only with the March Report of Condition --------------------------
1. Indicate in the box at the right the number of the statement below that RCON | Number Number
best describes the most comprehensive level of auditing work performed for -------------|------------ M.I.
the bank by independent external auditors as of any date during 2001............... 6724 | N/A
--------------------------
1 = Independent audit of the bank conducted in accordance 5 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 6 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 7 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 8 = Other audit procedures (excluding tax preparation work)
3 = Attestation on bank management's assertion on the 9 = No external audit work
effectiveness of internal control over financial reporting
by a certified public accounting firm.
4 = Directors' examination of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm (may be required by state chartering
authority)
|
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16,
"other borrowed money."
(3) Includes all securities repurchase agreements in domestic and foreign
offices, regardless of maturity.
(4) Includes limited-life preferred stock and related surplus.
(5) Includes net unrealized holding gains (losses) on available-for-sale
securities, accumulated net gains (losses) on cash flow hedges, and
minimum pension liability adjustments.
(6) Includes treasury stock and unearned Employee Stock Ownership Plan shares.
EXHIBIT 99.1
LETTER OF TRANSMITTAL
NABORS INDUSTRIES, INC.
OFFER FOR ALL OUTSTANDING
5.375% SENIOR NOTES DUE 2012
IN EXCHANGE FOR
5.375% SENIOR NOTES DUE 2012
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
PURSUANT TO THE PROSPECTUS, DATED , 2002
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON , 2002, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
DELIVERY TO:
BANK ONE, N.A., EXCHANGE AGENT
By Hand, Overnight Delivery or by Mail:
1111 Polaris Parkway, Suite N1-OH1-0184
Columbus, Ohio 43240
Attention: Exchanges
By Facsimile Transmission:
614-248-9987
Confirm by Telephone:
800-346-5153
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that he or she has received the Prospectus, dated , 2002 (the "Prospectus"), of Nabors Industries, Inc., a corporation incorporated in the State of Delaware (the "Company"), and this Letter of Transmittal (the "Letter"), which together constitute the Company's offer (the "Exchange Offer") to exchange an aggregate principal amount of up to $275,000,000 of the Company's 5.375% Senior Notes due 2012 (the "New Notes") which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of the Company's issued and outstanding 5.375% Senior Notes due 2012 (the "Old Notes") from the registered holders thereof (the "Holders").
For each Old Note accepted for exchange, the Holder of such Old Note will receive an New Note having a principal amount equal to that of the surrendered Old Note. The New Notes will bear interest from the most recent date to which interest has been paid on the Old Notes or, if no interest has been paid on the Old Notes, from August 22, 2002. Accordingly, registered Holders of New Notes on the relevant record date for the first interest
payment date following the consummation of the Exchange Offer will receive interest accruing from the most recent date to which interest has been paid or, if no interest has been paid, from August 22, 2002. Old Notes accepted for exchange will cease to accrue interest from and after the date of consummation of the Exchange Offer. Holders of Old Notes whose Old Notes are accepted for exchange will not receive any payment in respect of accrued interest on such Old Notes otherwise payable on any interest payment date the record date for which occurs on or after consummation of the Exchange Offer.
This Letter is to be completed by a holder of Old Notes either if certificates are to be forwarded herewith or if a tender of certificates for Old Notes, if available, is to be made by book-entry transfer to the account maintained by the Exchange Agent at The Depository Trust Company (the "Book-Entry Transfer Facility") pursuant to the procedures set forth in "The Exchange Offer -- Book-Entry Transfer" section of the Prospectus and an Agent's Message is not delivered. Tenders by book-entry transfer may also be made by delivering an Agent's Message in lieu of this Letter. The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility to, and received by, the Exchange Agent and forming a part of a Book-Entry Confirmation (as defined below), which states that the Book-Entry Transfer Facility has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by this Letter and that the Company may enforce this Letter against such participant. Holders of Old Notes whose certificates are not immediately available, or who are unable to deliver their certificates or confirmation of the book-entry tender of their Old Notes into the Exchange Agent's account at the Book-Entry Transfer Facility (a "Book-Entry Confirmation") and all other documents required by this Letter to the Exchange Agent on or prior to the Expiration Date, must tender their Old Notes according to the guaranteed delivery procedures set forth in "The Exchange Offer -- Guaranteed Delivery Procedures" section of the Prospectus. See Instruction 1.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The undersigned has completed the appropriate boxes below and signed this Letter to indicate the action the undersigned desires to take with respect to the Exchange Offer.
List below the Old Notes to which this Letter relates. If the space provided below is inadequate, the certificate numbers and principal amount of Old Notes should be listed on a separate signed schedule affixed hereto.
------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES 1 2 3
------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
PRINCIPAL PRINCIPAL
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE AMOUNT OF AMOUNT
(PLEASE FILL IN, IF BLANK) NUMBER(S)* OLD NOTE(S) TENDERED**
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
TOTAL
------------------------------------------------------------------------------------------------------------------------------
|
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
Account Number Transaction Code Number
By crediting the Old Notes to the Exchange Agent's account at the Book-Entry Transfer Facility's Automated Tender Offer Program ("ATOP") and by complying with applicable ATOP procedures with respect to the Exchange Offer, including transmitting to the Exchange Agent a computer-generated Agent's Message in which the holder of the Old Notes acknowledges and agrees to be bound by the terms of, and makes the representations and warranties contained in, this Letter, the participant in the Book-Entry Transfer Facility confirms on behalf of itself and the beneficial owners of such Old Notes all provisions of this Letter (including all representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required herein and executed and transmitted this Letter to the Exchange Agent.
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s)
Window Ticket Number (if any)
Date of Execution of Notice of Guaranteed Delivery
Name of Institution Which Guaranteed Delivery
IF DELIVERED BY BOOK-ENTRY TRANSFER, COMPLETE THE FOLLOWING:
Account Number Transaction Code Number
[ ] 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.
Name:
Address:
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 the 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 the New Notes for its own account in exchange for the Old Notes, it represents that the Old Notes to be exchanged for the 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 Securities Act.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company the aggregate principal amount of Old Notes indicated above. Subject to, and effective upon, the acceptance for exchange of the Old Notes tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company all right, title and interest in and to such Old Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the undersigned's true and lawful agent and attorney-in-fact with respect to such tendered Old Notes, with full power of substitution, among other things, to cause the Old Notes to be assigned, transferred and exchanged. The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Old Notes, and to acquire New Notes issuable upon the exchange of such tendered Old Notes, and that, when the same are accepted for exchange, the Company will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim when the same are accepted by the Company. The undersigned hereby further represents that: (i) any New Notes received by the undersigned will be received in the ordinary course of business, (ii) the undersigned will have no arrangement or understanding with any person to participate in the distribution of the Old Notes or the New Notes within the meaning of the Securities Act, (iii) the undersigned is not an "affiliate" (as such term is defined in Rule 501(b) of Regulation D of the Securities Act) of the Company or Nabors, or if the undersigned is an affiliate, then the undersigned will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if the undersigned is not a broker-dealer, then it is not engaged in, and does not intend to engage in, the distribution of the New Notes, and (v) if the undersigned is a broker-dealer, then it will receive the New Notes for its own account in exchange for the Old Notes that were acquired as a result of market-making actives or other trading activities and that it will deliver a prospectus in connection with any resale of the New Notes.
The undersigned acknowledges that this Exchange Offer is being made in reliance on interpretations by the staff of the Securities and Exchange Commission (the "SEC"), as set forth in no-action letters issued to third parties, that the New Notes issued pursuant to the Exchange Offer in exchange for the Old Notes may be offered for resale, resold and otherwise transferred by Holders thereof (other than any such Holder that is an "affiliate" of the Company within the meaning of Rule 501(b) of Regulation D of the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such Holders' business and such Holders have no arrangement with any person to participate in the distribution of such New Notes. However, the SEC has not considered the Exchange Offer in the context of a no-action letter and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offer as in other circumstances. If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of New Notes and has no arrangement or understanding to participate in a distribution of New Notes. If any Holder is an affiliate of the Company, is engaged in or intends to engage in or has any arrangement or understanding with respect to the distribution of the New Notes to be acquired pursuant to the Exchange Offer, such Holder (i) could not rely on the applicable interpretations of the staff of the SEC and (ii) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for the 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 meeting the requirements of the Securities Act 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 Securities Act.
The undersigned will, upon request, execute and deliver any additional documents deemed by the Company to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby. All authority conferred or agreed to be conferred in this Letter and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. This tender
may be withdrawn only in accordance with the procedures set forth in "The Exchange Offer -- Withdrawal Rights" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance Instructions" below, please deliver the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of Old Notes, please credit the account indicated above maintained at the Book-Entry Transfer Facility. Similarly, unless otherwise indicated under the box entitled "Special Delivery Instructions" below, please send the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) to the undersigned at the address shown above in the box entitled "Description of Old Notes."
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE.
To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be issued in the name of and sent to someone other than the person or persons whose signature(s) appear(s) on this Letter above, or if Old Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at the Book-Entry Transfer Facility other than the account indicated above.
Issue New Notes and/or Old Notes to:
(COMPLETE SUBSTITUTE FORM W-9)
[ ] Credit unexchanged Old Notes
delivered by book-entry transfer to the Book-Entry Transfer Facility
account set forth below.
To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be sent to someone other than the person or persons whose signature(s) appear(s) on this Letter above or to such person or persons at an address other than shown in the box entitled "Description of Old Notes" on this Letter above.
Mail New Notes and/or Old Notes to:
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT'S MESSAGE IN LIEU THEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(COMPLETE ACCOMPANYING SUBSTITUTE FORM W-9 BELOW)
X ------------------------------------------------------ ------------------------------------------------- , 2002 X ------------------------------------------------------ ------------------------------------------------- , 2002 (SIGNATURE(S) OF OWNER) (DATE) Area Code and Telephone Number ----------------------------------------------------------------------------------------------------------------------- |
If a holder is tendering any Old Notes, this Letter must be signed by the registered holder(s) as the name(s) appear(s) on the certificate(s) for the Old Notes or by any person(s) authorized to become registered holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, officer or other person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 3.
SIGNATURE GUARANTEE
(NAME AND FIRM)
Dated: ____________________ , 2002
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER FOR THE
5.375% SENIOR NOTES DUE 2012 OF NABORS INDUSTRIES, INC.
IN EXCHANGE FOR THE
5.375% SENIOR NOTES DUE 2012 OF NABORS INDUSTRIES, INC.
WHICH HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED
1. DELIVERY OF THIS LETTER AND NOTES; GUARANTEED DELIVERY PROCEDURES.
This Letter is to be completed by holders of Old Notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for delivery by book-entry transfer set forth in "The Exchange Offer -- Book-Entry Transfer" section of the Prospectus and an Agent's Message is not delivered. Tenders by book-entry transfer may also be made by delivering an Agent's Message in lieu of this Letter. The term "Agent's Message" means a message, transmitted by the Book-Entry Transfer Facility to and received by the Exchange Agent and forming a part of a Book-Entry Confirmation, which states that the Book-Entry Transfer Facility has received an express acknowledgment from the tendering participant, which acknowledgment states that such participant has received and agrees to be bound by the Letter of Transmittal and that the Company may enforce the Letter of Transmittal against such participant. Certificates for all physically tendered Old Notes, or Book-Entry Confirmation, as the case may be, as well as a properly completed and duly executed Letter (or manually signed facsimile hereof or Agent's Message in lieu thereof) and any other documents required by this Letter, must be received by the Exchange Agent at the address set forth herein on or prior to the Expiration Date, or the tendering holder must comply with the guaranteed delivery procedures set forth below. Old Notes tendered hereby must be in denominations of principal amount of $1,000 and any integral multiple thereof.
Holders whose certificates for Old Notes are not immediately available or
who cannot deliver their certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date, or who cannot complete the
procedure for book-entry transfer on a timely basis, may tender their Old Notes
pursuant to the guaranteed delivery procedures set forth in "The Exchange
Offer -- Guaranteed Delivery Procedures" section of the Prospectus. Pursuant to
such procedures, (i) such tender must be made through an Eligible Institution,
(ii) prior to 5:00 P.M., New York City time, on the Expiration Date, the (as
defined below) Exchange Agent must receive from such Eligible Institution a
properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Company (by facsimile transmission,
mail or hand delivery), setting forth the name and address of the holder of Old
Notes and the amount of Old Notes tendered, stating that the tender is being
made thereby and guaranteeing that within three American Stock Exchange ("AMEX")
trading days after the date of execution of the Notice of Guaranteed Delivery,
the certificates for all physically tendered Old Notes, in proper form for
transfer, or a Book-Entry Confirmation, as the case may be, together with a
properly completed and duly executed Letter (or facsimile thereof or Agent's
Message in lieu thereof) with any required signature guarantees and any other
documents required by this Letter will be deposited by the Eligible Institution
with the Exchange Agent, and (iii) the certificates for all physically tendered
Old Notes, in proper form for transfer, or a Book-Entry Confirmation, as the
case may be, together with a properly completed and duly executed Letter (or
facsimile thereof or Agent's Message in lieu thereof) with any required
signature guarantees and all other documents required by this Letter, are
received by the Exchange Agent within three AMEX trading days after the date of
execution of the Notice of Guaranteed Delivery.
The method of delivery of this Letter, the Old Notes and all other required documents is at the election and risk of the tendering holders, but the delivery will be deemed made only when actually received or confirmed by the Exchange Agent. If Old Notes are sent by mail, it is suggested that the mailing be registered mail, properly insured, with return receipt requested, made sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 P.M., New York City time, on the Expiration Date.
See "The Exchange Offer" section of the Prospectus.
2. PARTIAL TENDERS (NOT APPLICABLE TO NOTEHOLDERS WHO TENDER BY BOOK-ENTRY TRANSFER).
If less than all of the Old Notes evidenced by a submitted certificate are to be tendered, the tendering holder(s) should fill in the aggregate principal amount of Old Notes to be tendered in the box above entitled "Description of Old Notes -- Principal Amount Tendered." A reissued certificate representing the balance of nontendered Old Notes will be sent to such tendering holder, unless otherwise provided in the appropriate box on this Letter, promptly after the Expiration Date. ALL OF THE OLD NOTES DELIVERED TO THE EXCHANGE AGENT WILL BE DEEMED TO HAVE BEEN TENDERED UNLESS OTHERWISE INDICATED.
3. SIGNATURES ON THIS LETTER; BOND POWERS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES.
If this Letter is signed by the registered holder of the Old Notes tendered hereby, the signature must correspond exactly with the name as written on the face of the certificates without any change whatsoever.
If any tendered Old Notes are owned of record by two or more joint owners, all of such owners must sign this Letter.
If any tendered Old Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter as there are different registrations of certificates.
When this Letter is signed by the registered holder or holders of the Old Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the New Notes are to be issued, or any untendered Old Notes are to be reissued, to a person other than the registered holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter is signed by a person other than the registered holder or holders of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered holder or holders appear(s) on the certificate(s) and signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, proper evidence satisfactory to the Company of their authority to so act must be submitted.
Endorsements on certificates for Old Notes or signatures on bond powers required by this Instruction 3 must be guaranteed by a firm that is a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the American Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program (each an "Eligible Institution").
Signatures on this Letter need not be guaranteed by an Eligible Institution, provided the Old Notes are tendered: (i) by a registered holder of Old Notes (which term, for purposes of the Exchange Offer, includes any participant in the Book-Entry Transfer Facility system whose name appears on a security position listing as the holder of such Old Notes) who has not completed the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" on this Letter, or (ii) for the account of an Eligible Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS.
Tendering holders of Old Notes should indicate in the applicable box the name and address to which New Notes issued pursuant to the Exchange Offer and or substitute certificates evidencing Old Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Noteholders tendering Old Notes by book-entry transfer may request that Old Notes not exchanged be credited to such account maintained at the Book-Entry Transfer Facility as such noteholder may designate hereon. If no such instructions are given, such Old Notes not exchanged will be returned to the name and address of the person signing this Letter.
5. TAXPAYER IDENTIFICATION NUMBER AND CERTIFICATION OF FOREIGN STATUS.
Federal income tax law generally requires that a tendering holder whose Old Notes are accepted for exchange must provide the Company (as payor) with such holder's correct Taxpayer Identification Number ("TIN") on the Substitute Form W-9 below, which in the case of a tendering holder who is an individual, is his or her social security number. If the Company is not provided with the current TIN or an adequate basis for an exemption from backup withholding, such tendering holder may be subject to a $50 penalty imposed by the Internal Revenue Service (the "IRS"). In addition, the Exchange Agent may be required to withhold at the then applicable backup withholding rate on the amount of any reportable payments made after the exchange to such tendering holder of New Notes. If withholding results in an overpayment of taxes, a refund may be obtained.
Exempt holders of Old Notes (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. See the enclosed Guidelines of Certification of Taxpayer Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for additional instructions.
To prevent backup withholding, each tendering holder of Old Notes must provide its correct TIN by completing the Substitute Form W-9 set forth below, certifying, under penalties of perjury, that the TIN provided is correct (or that such holder is awaiting a TIN) and that (i) the holder is exempt from backup withholding, or (ii) the holder has not been notified by the IRS that such holder is subject to backup withholding as a result of a failure to report all interest or dividends or (iii) the IRS has notified the holder that such holder is no longer subject to backup withholding.
If the Old Notes are in more than one name or are not in the name of the actual owner, such holder should consult the W-9 Guidelines for information on which TIN to report. If such holder does not have a TIN, such holder should consult the W-9 Guidelines for instructions on applying for a TIN, check the box in Part 2 of the Substitute Form W-9 and write "applied for" in lieu of its TIN. Note: Checking this box and writing "applied for" on the form means that such holder has already applied for a TIN or that such holder intends to apply for one in the near future. If the box in Part 2 of the Substitute Form W-9 is checked, the Exchange Agent will withhold at the then applicable backup withholding rate on reportable payments made to a holder during the sixty (60) day period following the date of the Substitute Form W-9. If the holder furnishes the Exchange Agent with his or her TIN within sixty (60) days of the Substitute Form W-9, the Exchange Agent will remit such amounts withheld during such sixty (60) day period to such holder and no further amounts will be withheld from payments made to the holder thereafter. If, however, such holder does not provide its TIN to the Exchange Agent within such sixty (60) day period, the Exchange Agent will remit such previously withheld amounts to the IRS as backup withholding and will withhold at the then applicable backup withholding rate on all reportable payments to the holder thereafter until such holder furnishes its TIN to the Exchange Agent.
If the tendering holder of Old Notes is a nonresident alien or foreign entity not subject to backup withholding, such holder must give the Exchange Agent a completed Form W-8BEN, Certificate of Foreign Status. These forms may be obtained from the Exchange Agent.
6. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the transfer of Old Notes to it or its order pursuant to the Exchange Offer. If, however, New Notes and/or substitute Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE OLD NOTES SPECIFIED IN THIS LETTER.
7. WAIVER OF CONDITIONS.
The Company reserves the absolute right to waive satisfaction of any or all conditions enumerated in the Prospectus.
8. NO CONDITIONAL TENDERS.
No alternative, conditional, irregular or contingent tenders will be accepted. All tendering holders of Old Notes, by execution of this Letter, shall waive any right to receive notice of the acceptance of their Old Notes for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated to give notice of any defect or irregularity with respect to any tender of Old Notes nor shall any of them incur any liability for failure to give any such notice.
9. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES.
Any holder whose Old Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions.
10. WITHDRAWAL RIGHTS.
Tenders of Old Notes may be withdrawn at any time prior to 5:00 P.M., New York City time, on the Expiration Date.
For a withdrawal of a tender of Old Notes to be effective, a written notice of withdrawal must be received by the Exchange Agent at the address set forth above prior to 5:00 P.M., New York City time, on the Expiration Date. Any such notice of withdrawal must (i) specify the name of the person having tendered the Old Notes to be withdrawn (the "Depositor"), (ii) identify the Old Notes to be withdrawn (including certificate number or numbers and the principal amount of such Old Notes), (iii) contain a statement that such holder is withdrawing his election to have such Old Notes exchanged, (iv) be signed by the holder in the same manner as the original signature on the Letter by which such Old Notes were tendered (including any required signature guarantees) or be accompanied by documents of transfer to have the Trustee with respect to the Old Notes register the transfer of such Old Notes in the name of the person withdrawing the tender and (v) specify the name in which such Old Notes are registered, if different from that of the Depositor. If Old Notes have been tendered pursuant to the procedure for book-entry transfer set forth in "The Exchange Offer -- Book-Entry Transfer" section of the Prospectus, any notice of withdrawal must specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Old Notes and otherwise comply with the procedures of such facility. All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Company, whose determination shall be final and binding on all parties. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer and no New Notes will be issued with respect thereto unless the Old Notes so withdrawn are validly retendered. Any Old Notes that have been tendered for exchange but which are not exchanged for any reason will be returned to the Holder thereof without cost to such Holder (or, in the case of Old Notes tendered by book-entry transfer into the Exchange Agent's account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures set forth in "The Exchange Offer -- Book-Entry Transfer" section of the Prospectus, such Old Notes will be credited to an account maintained with the Book-Entry Transfer Facility for the Old Notes) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Old Notes may be retendered by following the procedures described above at any time on or prior to 5:00 P.M., New York City time, on the Expiration Date.
11. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES.
Questions relating to the procedure for tendering, as well as requests for additional copies of the Prospectus and this Letter, and requests for Notices of Guaranteed Delivery and other related documents may be directed to the Exchange Agent, at the address and telephone number indicated above.
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT
FORM W-9 AND CERTIFY BY SIGNING AND DATING BELOW. TIN: ----------------------------------
Social Security Number or
Employer Identification Number
------------------------------------------------------------------------------------------------
DEPARTMENT OF THE PART 2 -- TIN APPLIED FOR [ ]
TREASURY ------------------------------------------------------------------------------------------------
INTERNAL REVENUE SERVICE CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
PAYOR'S REQUEST FOR (1) the number shown on this form is my correct TIN (or I am waiting for a number to be issued
TAXPAYER IDENTIFICATION to me),
NUMBER ("TIN") AND
CERTIFICATION (2) I am not subject to backup withholding either because: (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service (the 'IRS')
that I am subject to backup withholding as a result of a failure to report all interest or
dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding
and
(3) I am a U.S. person (including a U.S. resident alien).
------------------------------------------------------------------------------------------------
SIGNATURE OF U.S. PERSON -------------------------------- DATE----------------
--------------------------------------------------------------------------------------------------------------------------------
You must cross out item (2) of the above certification if you have been notified by the IRS that you are subject to backup with
holding because of underreporting of interest or dividends on your tax return and you have not been notified by the IRS that
you are no longer subject to backup withholding.
--------------------------------------------------------------------------------------------------------------------------------
|
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 2 OF SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of the exchange, an amount equal to the then applicable backup withholding rate on all reportable payments made to me thereafter will be withheld until I provide a number.
Signature ____________________________________________________________________
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR
NABORS INDUSTRIES, INC.
This form or one substantially equivalent hereto must be used to accept the Exchange Offer of Nabors Industries, Inc. (the "Company") made pursuant to the Prospectus, dated , 2002 (the "Prospectus"), if certificates for the outstanding 5.375% Senior Notes due 2012 of the Company (the "Original Notes") are not immediately available or if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach Bank One, N.A., as exchange agent (the "Exchange Agent") prior to 5:00 P.M., New York City time, on the Expiration Date of the Exchange Offer. Such form may be delivered or transmitted by facsimile transmission, mail or hand delivery to the Exchange Agent as set forth below. In addition, in order to utilize the guaranteed delivery procedure to tender Original Notes pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof) must also be received by the Exchange Agent prior to 5:00 P.M., New York City time, on the Expiration Date. Capitalized terms not defined herein shall have the respective meanings ascribed to them in the Prospectus.
BANK ONE, N.A.
DELIVERY TO:
BANK ONE, N.A., EXCHANGE AGENT
By Hand, Overnight Delivery or by Mail:
1111 Polaris Parkway, Suite N1-OH1-0184
Columbus, Ohio 43240
Attention: Exchanges
By Facsimile Transmission
(for Eligible Institutions only):
(614) 248-9987
Confirm by Telephone:
(800) 346-5153
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSION OF THIS INSTRUMENT VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to the Company the principal amount of Original Notes set forth below pursuant to the guaranteed delivery procedure described in "The Exchange Offer -- Guaranteed Delivery Procedures" section of the Prospectus.
The Notice of Guaranteed Delivery must be signed by the holder(s) of Original Notes as their name(s) appear(s) on certificates for Original Notes or on a security position listing, or by person(s) authorized to become registered holder(s) by endorsement and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below.
Principal Amount of Original Notes Tendered:*
$ ______________________________________ Certificate Nos. (if available):
If Original Notes will be delivered by book-entry transfer to The Depository Trust Company, provide account number.
Total Principal Amount Represented by
Original Notes Certificate(s):
$ ______________________________________
Account Number ________________________
* Must be in denominations of principal amount of $1,000 and any integral multiple thereof.
PLEASE SIGN HERE
Principal Amount at Maturity of Original Notes
If Original Notes will be delivered by book-entry transfer to the Depository Trust Company, provide account number.
Total Principal Amount at Maturity Represented by Original Notes Certificate(s):
Must be in denominations of principal amount at maturity of $1,000 and any integral multiple thereof.
Please Sign Here
Please Print Name(s) and Address(es)
X
------------------------------------------------------ ------------------------------------
X
------------------------------------------------------ ------------------------------------
SIGNATURE(S) OF OWNER(S) OR AUTHORIZED SIGNATORY DATE
Area Code and Telephone Number:
------------------------------------------------------------------
Please Print Name(s) and Address(es)
|
Name(s):
------------------------------------------------------------
Capacity:
------------------------------------------------------------
Address(es):
------------------------------------------------------------
|
ALL AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL SURVIVE THE DEATH OR INCAPACITY OF THE UNDERSIGNED AND EVERY OBLIGATION OF THE UNDERSIGNED HEREUNDER SHALL BE BINDING UPON THE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF THE UNDERSIGNED.
GUARANTEE
(Not to be Used for Signature Guarantees)
The undersigned, a financial institution (including most banks, savings and loan associations and brokerage houses) that is a participant in the Securities Transfer Agents Medallion Program, the American Stock Exchange Medallion Signature Program or the Stock Exchanges Medallion Program, hereby guarantees that the certificates representing the principal amount of Original Notes tendered hereby in proper form for transfer, or timely confirmation of the book-entry transfer of such Original Notes into the Exchange Agent's account at The Depository Trust Company pursuant to the procedures set forth in "The Exchange Offer -- Guaranteed Delivery Procedures" section of the Prospectus, together with one or more properly and duly executed Letters of Transmittal (or facsimile thereof or Agent's Message in lieu thereof) and any required signature guarantee and any other documents required by the Letter of Transmittal, will be received by the Exchange Agent at the address set forth above, no later than three American Stock Exchange trading days after the Expiration Date.
----------------------------------------------------- ------------------------------------------------------
NAME OF FIRM AUTHORIZED SIGNATURE
----------------------------------------------------- ------------------------------------------------------
ADDRESS TITLE
----------------------------------------------------- Name: ----------------------------------------------
ZIP CODE (PLEASE TYPE OF PRINT)
Area Code and Tel. No. --------------------------- Dated: ----------------------------------------------
|
NOTE: DO NOT SEND THE ORIGINAL NOTES WITH THIS FORM. ORIGINAL NOTES SHOULD BE SENT ONLY WITH A COPY OF YOUR PREVIOUSLY EXECUTED LETTER OF TRANSMITTAL.
EXHIBIT 99.3
NABORS INDUSTRIES, INC.
OFFER FOR ALL OUTSTANDING
5.375% SENIOR NOTES DUE 2012
IN EXCHANGE FOR
5.375% SENIOR NOTES DUE 2012
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
To Our Clients:
Enclosed for your consideration is a Prospectus, dated , 2002 (the "Prospectus"), and the related Letter of Transmittal (the "Letter of Transmittal"), relating to the offer (the "Exchange Offer") of Nabors Industries, Inc. (the "Company") to exchange its 5.375% Senior Notes due 2012, which have been registered under the Securities Act of 1933, as amended (the "Exchange Notes"), for its outstanding 5.375% Senior Notes due 2012 (the "Original Notes"), upon the terms and subject to the conditions described in the Prospectus and the Letter of Transmittal. The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement dated August 22, 2002, by and among the Company, as issuer, Nabors Industries Ltd., a Bermuda exempted company, as guarantor, and the initial purchasers referred to therein.
This material is being forwarded to you as the beneficial owner of the Original Notes held by us for your account but not registered in your name. A TENDER OF SUCH ORIGINAL NOTES MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether you wish us to tender on your behalf the Original Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Original Notes on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 P.M., New York City time, on , 2002, unless extended by the Company. Any Original Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Original Notes.
2. The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned "The Exchange Offer -- Conditions to the Exchange Offer."
3. Any transfer taxes incident to the transfer of Original Notes from the holder to the Company will be paid by the Company, except as otherwise provided in the Instructions in the Letter of Transmittal.
4. The Exchange Offer expires at 5:00 P.M., New York City time, on , 2002, unless extended by the Company.
If you wish to have us tender your Original Notes, please so instruct us by completing, executing and returning to us the instruction form on the back of this letter. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR INFORMATION ONLY AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER ORIGINAL NOTES.
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed material referred to therein relating to the Exchange Offer made by Nabors Industries, Inc. with respect to its Original Notes.
This will instruct you to tender the Original Notes held by you for the account of the undersigned, upon and subject to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal.
The undersigned expressly agrees to be bound by the enclosed Letter of Transmittal and that such Letter of Transmittal may be enforced against the undersigned.
Please tender the Original Notes held by you for my account as indicated below:
5.375% Senior Notes due 2012 $ (Aggregate Principal Amount of Original Notes)
[ ] Please do not tender any Original Notes held by you for my account.
Dated: , 2002
Signature(s): ----------------------------------------------------------------
Print Name(s)
|
here: --------------------------------------------------------------
Print
Address(es): ----------------------------------------------------------------
Area Code and Telephone
Number(s): ------------------------------------------------------------
Tax Identification or Social Security
Number(s): --------------------------------------------------------
None of the Original Notes held by us for your account will be tendered unless we receive written instructions from you to do so. Unless a specific contrary instruction is given in the space provided, your signature(s) hereon shall constitute an instruction to us to tender all the Original Notes held by us for your account.
EXHIBIT 99.4
NABORS INDUSTRIES, INC.
OFFER FOR ALL OUTSTANDING
5.375% SENIOR NOTES DUE 2012
IN EXCHANGE FOR
5.375% SENIOR NOTES DUE 2012
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Nabors Industries, Inc. (the "Company") is offering, upon and subject to the terms and conditions set forth in the Prospectus, dated , 2002 (the "Prospectus"), and the enclosed letter of transmittal (the "Letter of Transmittal"), to exchange (the "Exchange Offer") its 5.8375% Senior Notes due 2012, which have been registered under the Securities Act of 1933, as amended, for its outstanding 5.375% Senior Notes due 2012 (the "Original Notes"). The Exchange Offer is being made in order to satisfy certain obligations of the Company contained in the Registration Rights Agreement dated August 22, 2002 by and among the Company, as issuer, Nabors Industries Ltd., a Bermuda exempted company, as guarantor, and the initial purchasers referred to therein.
We are requesting that you contact your clients for whom you hold Original Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Original Notes registered in your name or in the name of your nominee, or who hold Original Notes registered in their own names, we are enclosing the following documents:
1. Prospectus dated , 2002;
2. The Letter of Transmittal for your use and for the information of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer if certificates for Original Notes are not immediately available or time will not permit all required documents to reach the Exchange Agent prior to the Expiration Date (as defined below) or if the procedure for book-entry transfer cannot be completed on a timely basis;
4. A form of letter which may be sent to your clients for whose account you hold Original Notes registered in your name or the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Exchange Offer;
5. Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9; and
6. Return envelopes addressed to Bank One, N.A., the Exchange Agent, for the Exchange Offer.
YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2002, UNLESS EXTENDED BY THE COMPANY (THE "EXPIRATION DATE"). ORIGINAL NOTES TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE.
To participate in the Exchange Offer, a duly executed and properly completed Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof), with any required signature guarantees and any other required documents, should be sent to the Exchange Agent and certificates representing the Original Notes should be delivered to the Exchange Agent, all in accordance with the instructions set forth in the Letter of Transmittal and the Prospectus.
If a registered holder of Original Notes desires to tender Original Notes, but such Original Notes are not immediately available, or time will not permit such holder's Original Notes or other required documents to reach the Exchange Agent before the Expiration Date, or the procedure for book-entry transfer cannot be completed on a timely basis, a tender may be effected by following the guaranteed delivery procedures described in the Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery Procedures."
The Company will, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding the Prospectus and the related documents to the beneficial owners of Original Notes held by them as nominee or in a fiduciary capacity. The Company will pay or cause to be paid all stock transfer taxes applicable to the exchange of Original Notes pursuant to the Exchange Offer, except as set forth in Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the procedure for tendering Original Notes pursuant to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to Bank One, N.A., the Exchange Agent for the Exchange Offer, at its address and telephone number set forth on the front of the Letter of Transmittal.
Very truly yours,
NABORS INDUSTRIES, INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY PERSON AS AN AGENT OF THE COMPANY OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM WITH RESPECT TO THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures