Table of Contents

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-Q

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the Quarterly Period Ended March 31, 2017

 

Commission File Number: 001-32657

 

NABORS INDUSTRIES LTD.

(Exact name of registrant as specified in its charter)

 

 

 

 

Bermuda

 

98-0363970

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

Crown House

Second Floor

4 Par-la-Ville Road

Hamilton, HM08

Bermuda

(441) 292-1510

(Address of principal executive office)

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

 

YES ☒  NO ☐

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (Section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). 

 

YES ☒  NO ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

 

 

 

Large Accelerated Filer ☒

 

Accelerated Filer ☐

 

 

 

Non-accelerated Filer ☐

 

Smaller reporting company ☐

(Do not check if a smaller reporting company)

 

 

 

 

Emerging growth company ☐

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). 

 

YES ☐  NO ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

The number of common shares, par value $.001 per share, outstanding as of April 25, 2017 was 285,800,732, excluding 49,672,636 common shares held by our subsidiaries, or 335,473,368 in the aggregate.

 

 

 

 


 

Table of Contents

NABORS INDUSTRIES LTD. AND SUBSIDIARIES

 

Index

 

 

 

 

PART I FINANCIAL INFORMATION

 

 

 

Item 1.  

Financial Statements

 

 

 

 

 

Condensed Consolidated Balance Sheets as of March 31, 2017 and December 31, 2016

3

 

 

 

 

Condensed Consolidated Statements of Income (Loss) for the Three Months Ended March 31, 2017 and 2016

4

 

 

 

 

Condensed Consolidated Statements of Comprehensive Income (Loss) for the Three Months Ended March 31, 2017 and 2016

5

 

 

 

 

Condensed Consolidated Statements of Cash Flows for the Three Months Ended March 31, 2017 and 2016

6

 

 

 

 

Condensed Consolidated Statements of Changes in Equity for the Three Months Ended March 31, 2017 and 2016

7

 

 

 

 

Notes to Condensed Consolidated Financial Statements

8

 

 

 

Item 2.  

Management’s Discussion and Analysis of Financial Condition and Results of Operations

32

 

 

 

Item 3.  

Quantitative and Qualitative Disclosures About Market Risk

38

 

 

 

Item 4.  

Controls and Procedures

38

 

 

 

PART II OTHER INFORMATION  

 

 

 

Item 1.  

Legal Proceedings

40

 

 

 

Item 1A.  

Risk Factors

40

 

 

 

Item 2.  

Unregistered Sales of Equity Securities and Use of Proceeds

40

 

 

 

Item 3.  

Defaults Upon Senior Securities

41

 

 

 

Item 4.  

Mine Safety Disclosures

41

 

 

 

Item 5.  

Other Information

41

 

 

 

Item 6.  

Exhibits

42

 

 

 

Signatures  

43

 

 

 

Exhibit Index  

44

 

2


 

Table of Contents

NABORS INDUSTRIES LTD. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

 

March 31,

 

December 31,

 

 

    

2017

    

2016

 

 

 

(In thousands, except per

 

 

 

share amounts)

 

ASSETS

 

 

 

 

 

 

 

Current assets:

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

200,688

 

$

264,093

 

Short-term investments

 

 

27,907

 

 

31,109

 

Accounts receivable, net

 

 

514,446

 

 

508,355

 

Inventory, net

 

 

109,461

 

 

103,595

 

Assets held for sale

 

 

77,118

 

 

76,668

 

Other current assets

 

 

193,036

 

 

172,019

 

Total current assets

 

 

1,122,656

 

 

1,155,839

 

Property, plant and equipment, net

 

 

6,218,699

 

 

6,267,583

 

Goodwill

 

 

166,999

 

 

166,917

 

Deferred tax asset

 

 

373,973

 

 

366,586

 

Other long-term assets

 

 

212,985

 

 

230,090

 

Total assets

 

$

8,095,312

 

$

8,187,015

 

LIABILITIES AND EQUITY

 

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

 

 

Current portion of debt

 

$

313

 

$

297

 

Trade accounts payable

 

 

241,332

 

 

264,578

 

Accrued liabilities

 

 

497,364

 

 

543,248

 

Income taxes payable

 

 

32,640

 

 

13,811

 

Total current liabilities

 

 

771,649

 

 

821,934

 

Long-term debt

 

 

3,661,665

 

 

3,578,335

 

Other long-term liabilities

 

 

467,248

 

 

522,456

 

Deferred income taxes

 

 

8,356

 

 

9,495

 

Total liabilities

 

 

4,908,918

 

 

4,932,220

 

Commitments and contingencies (Note 7)

 

 

 

 

 

 

 

Equity:

 

 

 

 

 

 

 

Shareholders’ equity:

 

 

 

 

 

 

 

Common shares, par value $0.001 per share:

 

 

 

 

 

 

 

Authorized common shares 800,000; issued 335,567 and 333,598,  respectively

 

 

336

 

 

334

 

Capital in excess of par value

 

 

2,612,457

 

 

2,521,332

 

Accumulated other comprehensive income (loss)

 

 

(11,336)

 

 

(12,119)

 

Retained earnings

 

 

1,872,440

 

 

2,033,427

 

Less: treasury shares, at cost, 49,673 and 49,673 common shares, respectively

 

 

(1,295,949)

 

 

(1,295,949)

 

Total shareholders’ equity

 

 

3,177,948

 

 

3,247,025

 

Noncontrolling interest

 

 

8,446

 

 

7,770

 

Total equity

 

 

3,186,394

 

 

3,254,795

 

Total liabilities and equity

 

$

8,095,312

 

$

8,187,015

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

3


 

Table of Contents

NABORS INDUSTRIES LTD. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF INCOME (LOSS)

(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

    

March 31,

 

 

 

 

2017

 

2016

 

 

(In thousands, except per share amounts)

Revenues and other income:

 

 

 

 

 

 

 

 

Operating revenues

 

 

$

562,550

 

$

597,571

 

Earnings (losses) from unconsolidated affiliates

 

 

 

 2

 

 

(167,151)

 

Investment income (loss)

 

 

 

721

 

 

343

 

Total revenues and other income

 

 

 

563,273

 

 

430,763

 

 

 

 

 

 

 

 

 

 

Costs and other deductions:

 

 

 

 

 

 

 

 

Direct costs

 

 

 

387,644

 

 

365,023

 

General and administrative expenses

 

 

 

63,409

 

 

62,334

 

Research and engineering

 

 

 

11,757

 

 

8,162

 

Depreciation and amortization

 

 

 

203,672

 

 

215,818

 

Interest expense

 

 

 

56,518

 

 

45,730

 

Other, net

 

 

 

13,510

 

 

182,404

 

Total costs and other deductions

 

 

 

736,510

 

 

879,471

 

Income (loss) from continuing operations before income taxes

 

 

 

(173,237)

 

 

(448,708)

 

Income tax expense (benefit):

 

 

 

 

 

 

 

 

Current

 

 

 

22,689

 

 

14,825

 

Deferred

 

 

 

(48,298)

 

 

(66,889)

 

Total income tax expense (benefit)

 

 

 

(25,609)

 

 

(52,064)

 

Income (loss) from continuing operations, net of tax

 

 

 

(147,628)

 

 

(396,644)

 

Income (loss) from discontinued operations, net of tax

 

 

 

(439)

 

 

(926)

 

Net income (loss)

 

 

 

(148,067)

 

 

(397,570)

 

Less: Net (income) loss attributable to noncontrolling interest

 

 

 

(917)

 

 

(724)

 

Net income (loss) attributable to Nabors

 

 

$

(148,984)

 

$

(398,294)

 

 

 

 

 

 

 

 

 

 

Amounts attributable to Nabors:

 

 

 

 

 

 

 

 

Net income (loss) from continuing operations

 

 

$

(148,545)

 

$

(397,368)

 

Net income (loss) from discontinued operations

 

 

 

(439)

 

 

(926)

 

Net income (loss) attributable to Nabors

 

 

$

(148,984)

 

$

(398,294)

 

 

 

 

 

 

 

 

 

 

Earnings (losses) per share:

 

 

 

 

 

 

 

 

Basic from continuing operations

 

 

$

(0.52)

 

$

(1.41)

 

Basic from discontinued operations

 

 

 

 —

 

 

 —

 

Total Basic

 

 

$

(0.52)

 

$

(1.41)

 

Diluted from continuing operations

 

 

$

(0.52)

 

$

(1.41)

 

Diluted from discontinued operations

 

 

 

 —

 

 

 —

 

Total Diluted

 

 

$

(0.52)

 

$

(1.41)

 

Weighted-average number of common shares outstanding:

 

 

 

 

 

 

 

 

Basic

 

 

 

277,781

 

 

275,851

 

Diluted

 

 

 

277,781

 

 

275,851

 

 

 

 

 

 

 

 

 

 

Dividends declared per common share

 

 

$

0.06

 

$

0.06

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

4


 

Table of Contents

NABORS INDUSTRIES LTD. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)

(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

    

March 31,

 

 

 

 

 

2017

 

2016

 

 

 

(In thousands)

 

Net income (loss) attributable to Nabors

 

 

$

(148,984)

 

$

(398,294)

 

 

Other comprehensive income (loss), before tax:

 

 

 

 

 

 

 

 

 

Translation adjustment attributable to Nabors

 

 

 

 

 

 

 

 

 

Unrealized gain (loss) on translation adjustment

 

 

 

3,860

 

 

33,362

 

 

Less: reclassification adjustment for realized (gain) loss on translation adjustment

 

 

 

 —

 

 

 —

 

 

Translation adjustment attributable to Nabors

 

 

 

3,860

 

 

33,362

 

 

Unrealized gains (losses) on marketable securities:

 

 

 

 

 

 

 

 

 

Unrealized gains (losses) on marketable securities

 

 

 

(3,201)

 

 

769

 

 

Less: reclassification adjustment for (gains) losses included in net income (loss)

 

 

 

 —

 

 

 —

 

 

Unrealized gains (losses) on marketable securities

 

 

 

(3,201)

 

 

769

 

 

Pension liability amortization and adjustment

 

 

 

50

 

 

174

 

 

Unrealized gains (losses) and amortization on cash flow hedges

 

 

 

153

 

 

153

 

 

Other comprehensive income (loss), before tax

 

 

 

862

 

 

34,458

 

 

Income tax expense (benefit) related to items of other comprehensive income (loss)

 

 

 

79

 

 

129

 

 

Other comprehensive income (loss), net of tax

 

 

 

783

 

 

34,329

 

 

Comprehensive income (loss) attributable to Nabors

 

 

 

(148,201)

 

 

(363,965)

 

 

Net income (loss) attributable to noncontrolling interest

 

 

 

917

 

 

724

 

 

Translation adjustment attributable to noncontrolling interest

 

 

 

49

 

 

419

 

 

Comprehensive income (loss) attributable to noncontrolling interest

 

 

 

966

 

 

1,143

 

 

Comprehensive income (loss)

 

 

$

(147,235)

 

$

(362,822)

 

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

5


 

Table of Contents

NABORS INDUSTRIES LTD. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31,

 

 

    

2017

    

2016

 

 

 

(In thousands)

 

Cash flows from operating activities:

 

 

 

 

 

 

 

Net income (loss)

 

$

(148,067)

 

$

(397,570)

 

Adjustments to net income (loss):

 

 

 

 

 

 

 

Depreciation and amortization

 

 

204,364

 

 

216,669

 

Deferred income tax expense (benefit)

 

 

(48,469)

 

 

(67,289)

 

Impairments and other charges

 

 

 —

 

 

2,735

 

Deferred financing costs amortization

 

 

1,728

 

 

1,118

 

Discount amortization on long-term debt

 

 

4,505

 

 

568

 

Losses (gains) on debt buyback

 

 

8,596

 

 

(6,027)

 

Losses (gains) on long-lived assets, net

 

 

2,875

 

 

2,563

 

Impairments on equity method holdings

 

 

 —

 

 

177,242

 

Share-based compensation

 

 

10,280

 

 

7,374

 

Foreign currency transaction losses (gains), net

 

 

877

 

 

4,213

 

Equity in (earnings) losses of unconsolidated affiliates, net of dividends

 

 

(2)

 

 

167,151

 

Other

 

 

(751)

 

 

(428)

 

Changes in operating assets and liabilities, net of effects from acquisitions:

 

 

 

 

 

 

 

Accounts receivable

 

 

(19,198)

 

 

166,074

 

Inventory

 

 

(5,301)

 

 

2,057

 

Other current assets

 

 

(10,725)

 

 

(18,651)

 

Other long-term assets

 

 

15,294

 

 

13,214

 

Trade accounts payable and accrued liabilities

 

 

(38,659)

 

 

(120,757)

 

Income taxes payable

 

 

17,929

 

 

966

 

Other long-term liabilities

 

 

(53,267)

 

 

10,284

 

Net cash (used for) provided by operating activities

 

 

(57,991)

 

 

161,506

 

Cash flows from investing activities:

 

 

 

 

 

 

 

Purchases of investments

 

 

(4)

 

 

 —

 

Sales and maturities of investments

 

 

91

 

 

41

 

Capital expenditures

 

 

(183,427)

 

 

(129,875)

 

Proceeds from sales of assets and insurance claims

 

 

3,253

 

 

5,448

 

Other

 

 

(106)

 

 

(4,439)

 

Net cash (used for) provided by investing activities

 

 

(180,193)

 

 

(128,825)

 

Cash flows from financing activities:

 

 

 

 

 

 

 

Increase (decrease) in cash overdrafts

 

 

(469)

 

 

1,642

 

Proceeds from issuance of long-term debt

 

 

411,200

 

 

 —

 

Debt issuance costs

 

 

(10,439)

 

 

 —

 

Proceeds from revolving credit facilities

 

 

 —

 

 

150,000

 

Reduction in revolving credit facilities

 

 

 —

 

 

(70,000)

 

Proceeds from (payments for) issuance of common shares

 

 

8,300

 

 

 —

 

Repurchase of common shares

 

 

 —

 

 

(1,687)

 

Reduction in long-term debt

 

 

(170,491)

 

 

(148,045)

 

Dividends to shareholders

 

 

(17,040)

 

 

(16,922)

 

Proceeds from (payment for) commercial paper, net

 

 

 —

 

 

1,325

 

Cash proceeds from equity component of exchangeable debt

 

 

159,952

 

 

 —

 

Payments on term loan

 

 

(162,500)

 

 

 —

 

Proceeds from (payments for) short-term borrowings

 

 

16

 

 

(628)

 

Purchase of capped call hedge transactions

 

 

(40,250)

 

 

 —

 

Other

 

 

(5,341)

 

 

(3,190)

 

Net cash (used for) provided by financing activities

 

 

172,938

 

 

(87,505)

 

Effect of exchange rate changes on cash and cash equivalents

 

 

1,841

 

 

968

 

Net increase (decrease) in cash and cash equivalents

 

 

(63,405)

 

 

(53,856)

 

Cash and cash equivalents, beginning of period

 

 

264,093

 

 

254,530

 

Cash and cash equivalents, end of period

 

$

200,688

 

$

200,674

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

6


 

Table of Contents

 

NABORS INDUSTRIES LTD. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY

(Unaudited)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital

 

Accumulated

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common Shares

 

in Excess

 

Other

 

 

 

 

 

 

 

Non-

 

 

 

 

 

    

 

    

Par

    

of Par

    

Comprehensive

    

Retained

    

Treasury

    

controlling

    

Total

 

(In thousands)

 

Shares

 

Value

 

Value

 

Income

 

Earnings

 

Shares

 

Interest

 

Equity

 

As of December 31, 2015

 

330,526

 

 

331

 

 

2,493,100

 

 

(47,593)

 

 

3,131,134

 

 

(1,294,262)

 

 

11,158

 

 

4,293,868

 

Net income (loss)

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(398,294)

 

 

 —

 

 

724

 

 

(397,570)

 

Dividends to shareholders ($0.06 per share)

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(16,922)

 

 

 —

 

 

 —

 

 

(16,922)

 

Repurchase of treasury shares

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(1,687)

 

 

 —

 

 

(1,687)

 

Other comprehensive income (loss), net of tax

 

 —

 

 

 —

 

 

 —

 

 

34,329

 

 

 —

 

 

 —

 

 

419

 

 

34,748

 

Share-based compensation

 

 —

 

 

 —

 

 

7,374

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

7,374

 

Other

 

1,149

 

 

 1

 

 

(3,191)

 

 

 —

 

 

 —

 

 

 —

 

 

(424)

 

 

(3,614)

 

As of March 31, 2016

 

331,675

 

$

332

 

$

2,497,283

 

$

(13,264)

 

$

2,715,918

 

$

(1,295,949)

 

$

11,877

 

$

3,916,197

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of December 31, 2016

 

333,598

 

$

334

 

$

2,521,332

 

$

(12,119)

 

$

2,033,427

 

$

(1,295,949)

 

$

7,770

 

$

3,254,795

 

Net income (loss)

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(148,984)

 

 

 —

 

 

917

 

 

(148,067)

 

Dividends to shareholders ($0.06 per share)

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(17,153)

 

 

 —

 

 

 —

 

 

(17,153)

 

Other comprehensive income (loss), net of tax

 

 —

 

 

 —

 

 

 —

 

 

783

 

 

 —

 

 

 —

 

 

49

 

 

832

 

Issuance of common shares for stock options exercised, net of surrender of unexercised stock options

 

843

 

 

 1

 

 

8,299

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

8,300

 

Share-based compensation

 

 —

 

 

 —

 

 

10,280

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

10,280

 

Equity component of exchangeable debt

 

 —

 

 

 —

 

 

116,195

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

116,195

 

Capped call transactions

 

 —

 

 

 —

 

 

(40,250)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

(40,250)

 

Adoption of ASU No. 2016-09

 

 —

 

 

 —

 

 

1,943

 

 

 —

 

 

5,150

 

 

 —

 

 

 —

 

 

7,093

 

Other

 

1,126

 

 

 1

 

 

(5,342)

 

 

 —

 

 

 —

 

 

 —

 

 

(290)

 

 

(5,631)

 

As of March 31, 2017

 

335,567

 

$

336

 

$

2,612,457

 

$

(11,336)

 

$

1,872,440

 

$

(1,295,949)

 

$

8,446

 

$

3,186,394

 

 

The accompanying notes are an integral part of these condensed consolidated financial statements.

 

 

7


 

Table of Contents

Nabors Industries Ltd. and Subsidiaries

 

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Note 1 Nature of Operations

 

Unless the context requires otherwise, references in this annual report to “we,” “us,” “our,” “the Company,” or “Nabors” mean Nabors Industries Ltd., together with our subsidiaries where the context requires.

 

We own and operate the world’s largest land-based drilling rig fleet and are a leading provider of offshore platform drilling rigs in the United States and multiple international markets. We also provide advanced wellbore placement services, drilling software and performance tools, drilling equipment and innovative technologies throughout the world’s most significant oil and gas markets.

 

As a global provider of drilling and drilling-related services for land-based and offshore oil and natural gas wells, our fleet of rigs and drilling-related equipment as of March 31, 2017 included:

 

·

403 actively marketed rigs for land-based drilling operations in the United States, Canada and approximately 20 other countries throughout the world; and

 

·

41 actively marketed rigs for offshore drilling operations in the United States and multiple international markets.

 

Our business consists of four reportable operating segments: U.S., Canada, International and Rig Services.

 

Note 2 Summary of Significant Accounting Policies

 

Interim Financial Information

 

The accompanying unaudited consolidated condensed financial statements of Nabors have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”). Pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”), certain information and footnote disclosures normally included in annual financial statements prepared in accordance with GAAP have been omitted. Therefore, these financial statements should be read together with our annual report on Form 10-K for the year ended December 31, 2016 (“2016 Annual Report”). In management’s opinion, the unaudited condensed consolidated financial statements contain all adjustments necessary to state fairly our financial position as of March 31, 2017 and the results of operations, comprehensive income (loss), cash flows and changes in equity for the periods presented herein. Interim results for the three months ended March 31, 2017 may not be indicative of results that will be realized for the full year ending December 31, 2017.

 

Principles of Consolidation

 

Our condensed consolidated financial statements include the accounts of Nabors, as well as all majority owned and non-majority owned subsidiaries required to be consolidated under GAAP. All significant intercompany accounts and transactions are eliminated in consolidation.

 

Investments in operating entities where we have the ability to exert significant influence, but where we do not control operating and financial policies, are accounted for using the equity method. Our share of the net income (loss) of these entities is recorded as earnings (losses) from unconsolidated affiliates in our condensed consolidated statements of income (loss). The investments in these entities are included in investment in unconsolidated affiliates in our condensed consolidated balance sheets. We historically recorded our share of the net income (loss) of our equity method investment in C&J Energy Services, Ltd. (“CJES”) on a one-quarter lag, as we were not able to obtain the financial information of CJES on a timely basis. During the third quarter of 2016, CJES filed for bankruptcy, at which time we ceased accounting for our investment in CJES as an equity method investment and now report this investment at our estimate of fair value. See Note 3 — Investments in Unconsolidated Affiliates.

 

 

8


 

Table of Contents

Revenue Recognition

 

We recognize revenues and costs on daywork contracts daily as the work progresses. For certain contracts, we receive lump-sum payments for the mobilization of rigs and other drilling equipment. We defer revenue related to mobilization periods and recognize the revenue over the term of the related drilling contract. We also defer recognition of revenue on amounts received from customers for prepayment of services until those services are provided. At March 31, 2017 and December 31, 2016, our deferred revenues classified as accrued liabilities were $259.7 million and $255.6 million, respectively. At March 31, 2017 and December 31, 2016, our deferred revenues classified as other long-term liabilities were $262.8 million and $321.0 million, respectively.

 

Costs incurred related to a mobilization period for which a contract is secured are deferred and recognized over the term of the related drilling contract. Costs incurred to relocate rigs and other drilling equipment to areas in which a contract has not been secured are expensed as incurred. At March 31, 2017 and December 31, 2016, our deferred expenses classified as other current assets were $73.0 million and $63.4 million, respectively. At March 31, 2017 and December 31, 2016, our deferred expenses classified as other long-term assets were $59.6 million and $69.5 million, respectively.

 

We recognize revenue for top drives and instrumentation systems we manufacture when the earnings process is complete. This generally occurs when products have been shipped, title and risk of loss have been transferred, collectability is probable, and pricing is fixed and determinable.

 

We recognize, as operating revenue, proceeds from business interruption insurance claims in the period that the applicable proof of loss documentation is received. Proceeds from casualty insurance settlements in excess of the carrying value of damaged assets are recognized in other expense (income), net in the period that the applicable proof of loss documentation is received. Proceeds from casualty insurance settlements that are expected to be less than the carrying value of damaged assets are recognized at the time the loss is incurred and recorded in other expense (income), net.

 

We recognize reimbursements received for out-of-pocket expenses incurred as revenues and account for out-of-pocket expenses as direct costs.

 

Inventory, net

 

Inventory is stated at the lower of cost or net realizable value. Cost is determined using the first-in, first-out or weighted-average cost methods and includes the cost of materials, labor and manufacturing overhead. Inventory included the following:

 

 

 

 

 

 

 

 

 

 

 

 

March 31,

 

December 31,

 

 

    

2017

    

2016

 

 

 

(In thousands)

 

Raw materials

 

$

83,751

 

$

84,431

 

Work-in-progress

 

 

13,288

 

 

1,204

 

Finished goods

 

 

12,422

 

 

17,960

 

 

 

$

109,461

 

$

103,595

 

 

9


 

Table of Contents

Property, Plant and Equipment

 

We review our assets for impairment when events or changes in circumstances indicate that their carrying amounts may not be recoverable. If the estimated undiscounted future cash flows are not sufficient to support the asset’s recorded value, an impairment charge is recognized to reduce the carrying amount of the long-lived asset to its estimated fair value. The determination of future cash flows requires the estimation of dayrates and utilization, and such estimates can change based on market conditions, technological advances in the industry or changes in regulations governing the industry.

 

For an asset classified as held for sale, we consider the asset impaired when its carrying amount exceeds fair value less its cost to sell. Fair value is determined in the same manner as an impaired long-lived asset that is held and used.

 

Significant and unanticipated changes to the assumptions could result in future impairments. A continuation of the lower oil and natural gas prices experienced over the last two years could continue to adversely affect the demand for and prices of our services. As such, we will continue to assess our asset fleet, particularly our legacy and undersized rigs. Should we continue experiencing weakening in the market for a prolonged period for any specific rig class, this could result in future impairment charges or retirements of assets. As the determination of whether impairment charges should be recorded on our long-lived assets is subject to significant management judgment, and an impairment of these assets could result in a material charge on our condensed consolidated statements of income (loss), management believes that accounting estimates related to impairment of long-lived assets are critical.

 

Goodwill

 

We review goodwill for impairment annually during the second quarter of each fiscal year or more frequently if events or changes in circumstances indicate that the carrying amount of such goodwill and intangible assets exceed their fair value. Due to the adoption of Accounting Standards Update (“ASU”) No. 2017-04, effective January 1, 2017, we no longer determine goodwill impairment by calculating the implied fair value of goodwill by assigning the fair value of a reporting unit to all of its assets and liabilities as if that reporting unit had been acquired in a business combination. We will continue to perform our qualitative analysis as well as step one of the impairment test which compares the estimated fair value of the reporting unit to its carrying amount. If the carrying amount exceeds the fair value, an impairment charge will be recognized in an amount equal to the excess; however, the loss recognized should not exceed the total amount of goodwill allocated to that reporting unit.

 

For our goodwill tests prior to adoption of the new standard, we initially assessed goodwill for impairment based on qualitative factors to determine whether to perform the two-step annual goodwill impairment test, a Level 3 fair value measurement. After our qualitative assessment, step one of the impairment test compared the estimated fair value of the reporting unit to its carrying amount. If the carrying amount exceeded the fair value, a second step was required to measure the goodwill impairment loss. The second step compared the implied fair value of the reporting unit’s goodwill to its carrying amount. If the carrying amount exceeded the implied fair value, an impairment loss was recognized in an amount equal to the excess.

 

Our estimated fair values of our reporting units incorporate judgment and the use of estimates by management. Potential factors requiring assessment include a further or sustained decline in our stock price, declines in oil and natural gas prices, a variance in results of operations from forecasts, a change in operating strategy of assets and additional transactions in the oil and gas industry. Another factor in determining whether impairment has occurred is the relationship between our market capitalization and our book value. As part of our annual review, we compare the sum of our reporting units’ estimated fair value, which includes the estimated fair value of non-operating assets and liabilities, less debt, to our market capitalization and assess the reasonableness of our estimated fair value. Any of the above-mentioned factors may cause us to re-evaluate goodwill during any quarter throughout the year.

 

Recently Adopted Accounting Pronouncements

 

In March 2016, the Financial Accounting Standards Board (“FASB”) issued ASU No. 2016-07, Investments—Equity Method and Joint Ventures, to simplify the transition to the equity method of accounting. This standard eliminates the requirement to retroactively adopt the equity method of accounting as a result of an increase in the level of ownership interest or degree of influence. Instead, the equity method investor should add the cost of acquiring the additional interest in the investee to the current basis of the investor’s previously held interest and adopt the equity

10


 

Table of Contents

method of accounting as of the date the investment qualifies for the equity method of accounting. This guidance is effective for public companies for fiscal years beginning after December 15, 2016. The adoption of this guidance did not have an impact on our consolidated financial statements.

 

In March 2016, the FASB issued ASU No. 2016-09, Compensation—Stock Compensation, to simplify the accounting for share-based payment transactions, including the income tax consequences, classification of awards as either equity or liabilities and classification on the statement of cash flows. This guidance is effective for public companies for fiscal years beginning after December 15, 2016. We adopted this guidance on a prospective basis effective January 1, 2017. The impact of adoption was a decrease in deferred tax liabilities of $7.1 million and an increase in retained earnings of $7.1 million related to excess tax benefits on prior awards. Additionally, we elected to account for forfeitures as they occur. The impact of this election resulted in an increase in capital in excess of par and a corresponding decrease in retained earnings of $1.9 million.

 

In January 2017, the FASB issued ASU No. 2017-04, Intangibles—Goodwill and Other, which simplifies the subsequent measurement of goodwill by eliminating Step 2 of the goodwill impairment test. In computing the implied fair value of goodwill under Step 2, an entity had to perform procedures to determine the fair value at the impairment testing date of its assets and liabilities (including unrecognized assets and liabilities) following the procedure that would be required in determining the fair value of assets acquired and liabilities assumed in a business combination. Under this new standard, an entity should perform its goodwill impairment test by comparing the fair value of a reporting unit with its carrying amount and then recognize an impairment charge, as necessary, for the amount by which the carrying amount exceeds the reporting unit’s fair value, not to exceed the total amount of goodwill allocated to that reporting unit. This guidance is effective for fiscal years beginning after December 15, 2019. We have elected to early adopt this guidance on a prospective basis for our annual goodwill impairment test performed subsequent to January 1, 2017. The adoption of this standard had no effect on our financial condition, results of operations or disclosures for our first quarter ended March 31, 2017 as this standard only impacts the measurement of goodwill impairment charges on a prospective basis.

 

Recent Accounting Pronouncements Not Yet Adopted

 

In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers, relating to the revenue recognition from contracts with customers that creates a common revenue standard for GAAP and IFRS. The core principle will require recognition of revenue to represent the transfer of promised goods or services to customers in an amount that reflects the consideration, including costs incurred, to which the entity expects to be entitled in exchange for those goods or services. In July 2015, the FASB approved a one year deferral of this standard, with a new effective date for fiscal years beginning after December 15, 2017. During the first quarter of 2017, we expanded our implementation team and are in the process of reviewing our revenue streams. We have identified a subset of contracts that we believe are representative of our operations and began a detailed analysis of the related performance obligations and pricing arrangements in such contracts. At this time, we expect to apply the modified retrospective approach. However, we are still evaluating the requirements to determine the impact of the adoption on our consolidated financial statements and related disclosures.

 

In January 2016, the FASB issued ASU No. 2016-01, Financial Instruments—Overall, relating to the recognition and measurement of financial assets and liabilities. This standard enhances the reporting model for financial instruments, which includes amendments to address aspects of recognition, measurement, presentation and disclosure. This guidance is effective for public companies for fiscal years beginning after December 15, 2017. Early application is permitted. We are currently evaluating the impact this will have on our consolidated financial statements.

 

In February 2016, the FASB issued ASU No. 2016-02, Leases, relating to leases to increase transparency and comparability among companies. This standard requires that all leases with an initial term greater than one year be recorded on the balance sheet as an asset and a lease liability. Additionally, this standard will require disclosures designed to give financial statement users information on the amount, timing, and uncertainty of cash flows arising from leases. This guidance is effective for public companies for fiscal years beginning after December 15, 2018. Early application is permitted. This standard requires an entity to separate lease components from nonlease components within a contract. While the lease components would be accounted for under ASU No. 2016-02, nonlease components would be accounted for under ASU No. 2014-09. Therefore, we are evaluating ASU No. 2016-02 concurrently with the provisions of ASU No. 2014-09 and the impact this will have on our consolidated financial statements.  

 

11


 

Table of Contents

In August 2016, the FASB issued ASU No. 2016-15, Statement of Cash Flows, to reduce the diversity in practice in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. This guidance is effective for public companies for fiscal years beginning after December 15, 2017. Early application is permitted. We are currently evaluating the impact this will have on our consolidated financial statements.

 

In October 2016, the FASB issued ASU No. 2016-16—Income Taxes, which improves the accounting for the income tax consequences of intra-entity transfers of assets other than inventory. This guidance is effective for public companies for fiscal years beginning after December 15, 2017. Early application is permitted. We are currently evaluating the impact this will have on our consolidated financial statements.

 

In November 2016, the FASB issued ASU No. 2016-18, Statement of Cash Flows: Restricted Cash to provide guidance on the classification of restricted cash in the statement of cash flows. This guidance is effective for public companies for fiscal years beginning after beginning after December 15, 2017. Early application is permitted. The amendments in the ASU should be adopted on a retrospective basis. We are currently evaluating the impact this will have on our consolidated financial statements.

 

Note 3 Investments in Unconsolidated Affiliates

 

On March 24, 2015, we completed the merger (the “Merger”) of our Completion & Production Services business with C&J Energy Services, Inc. (“C&J Energy”). We received total consideration comprised of approximately $693.5 million in cash ($650.0 million after settlement of working capital requirements) and approximately 62.5 million common shares in the combined company, CJES, representing approximately 53% of the outstanding and issued common shares of CJES as of the closing date. We recognized our share of the net income (loss) of CJES, which was a loss of $167.1 million for the three months ended March 31, 2016, which is reflected in earnings (losses) from unconsolidated affiliates in our condensed consolidated statement of income (loss). Additionally, we recognized an other-than-temporary impairment charge of $153.4 million during the three months ended March 31, 2016, which is reflected in other, net in our condensed consolidated statement of income (loss). During the third quarter of 2016, CJES commenced voluntarily cases under chapter 11 of the U.S. Bankruptcy code. As such, we ceased accounting for our investment in CJES as an equity method investment. See Note 7—Commitments and Contingencies for disclosure surrounding the bankruptcy proceeding.

 

 

 

Note 4 Fair Value Measurements

 

Our financial assets and liabilities that are accounted for at fair value on a recurring basis as of March 31, 2017 consist of available-for-sale equity and debt securities. Our debt securities could transfer into or out of a Level 1 or 2 measure depending on the availability of independent and current pricing at the end of each quarter. During the three months ended March 31, 2017, there were no transfers of our financial assets between Level 1 and Level 2 measures. Our financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement. The majority of our short-term investments are categorized as Level 1 and had a fair value of $27.9 million as of March 31, 2017.

 

 

Nonrecurring Fair Value Measurements

 

We applied fair value measurements to our nonfinancial assets and liabilities measured on a nonrecurring basis, which consist of measurements primarily to assets held for sale, goodwill, equity method investments, intangible assets and other long-lived assets, assets acquired and liabilities assumed in a business combination and our pipeline contractual commitment. Based upon our review of the fair value hierarchy, the inputs used in these fair value measurements were considered Level 3 inputs.

 

 

12


 

Table of Contents

Fair Value of Financial Instruments

 

We estimate the fair value of our financial instruments in accordance with GAAP. The fair value of our long-term debt, revolving credit facility and commercial paper is estimated based on quoted market prices or prices quoted from third-party financial institutions. The fair value of our debt instruments is determined using Level 2 measurements. The carrying and fair values of these liabilities were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 2017

 

December 31, 2016

 

 

Carrying

 

Fair

 

Carrying

 

Fair  

 

    

Value

    

Value

    

Value

    

Value

 

 

(In thousands)

 

(In thousands)

6.15% senior notes due February 2018

 

$

665,222

 

$

690,168

 

$

827,539

 

$

865,300

9.25% senior notes due January 2019

 

 

303,489

 

 

337,252

 

 

303,489

 

 

337,443

5.00% senior notes due September 2020

 

 

669,616

 

 

694,311

 

 

669,540

 

 

689,211

4.625% senior notes due September 2021

 

 

694,928

 

 

706,658

 

 

694,868

 

 

708,765

5.50% senior notes due January 2023

 

 

600,000

 

 

615,378

 

 

600,000

 

 

627,000

5.10% senior notes due September 2023

 

 

346,480

 

 

351,462

 

 

346,448

 

 

348,613

0.75% senior exchangeable notes due January 2024

 

 

415,228

 

 

388,882

 

 

 —

 

 

 —

Term loan facility

 

 

 —

 

 

 —

 

 

162,500

 

 

162,500

Revolving credit facility

 

 

 —

 

 

 —

 

 

 —

 

 

 —

Commercial paper

 

 

 —

 

 

 —

 

 

 —

 

 

 —

Other

 

 

313

 

 

313

 

 

297

 

 

297

 

 

 

3,695,276

 

$

3,784,424

 

 

3,604,681

 

$

3,739,129

Less: Deferred financing costs

 

 

33,298

 

 

 

 

 

26,049

 

 

 

 

 

$

3,661,978

 

 

 

 

$

3,578,632

 

 

 

 

The fair values of our cash equivalents, trade receivables and trade payables approximate their carrying values due to the short-term nature of these instruments.

 

Note 5 Debt

 

Debt consisted of the following:

 

 

 

 

 

 

 

 

 

 

 

March 31,

 

December 31,

 

 

    

2017

    

2016

 

 

 

(In thousands)

 

6.15% senior notes due February 2018 (1)

 

$

665,222

 

$

827,539

 

9.25% senior notes due January 2019

 

 

303,489

 

 

303,489

 

5.00% senior notes due September 2020

 

 

669,616

 

 

669,540

 

4.625% senior notes due September 2021

 

 

694,928

 

 

694,868

 

5.50% senior notes due January 2023

 

 

600,000

 

 

600,000

 

5.10% senior notes due September 2023

 

 

346,480

 

 

346,448

 

0.75% senior exchangeable notes due January 2024

 

 

415,228

 

 

 —

 

Term loan facility

 

 

 —

 

 

162,500

 

Revolving credit facility

 

 

 —

 

 

 —

 

Commercial paper

 

 

 —

 

 

 —

 

Other

 

 

313

 

 

297

 

 

 

 

3,695,276

 

 

3,604,681

 

Less: current portion

 

 

313

 

 

297

 

Less: deferred financing costs

 

 

33,298

 

 

26,049

 

 

 

$

3,661,665

 

$

3,578,335

 


(1)

The 6.15% senior notes due February 2018 have been classified as long-term because we have the ability and intent to repay this obligation utilizing our revolving credit facility.

 

13


 

Table of Contents

During the three months ended March 31, 2017, we repurchased $162.5 million aggregate principal amount of our 6.15% senior notes due February 2018 for approximately $171.6 million in cash, reflecting principal and approximately $2.2 million of accrued and unpaid interest. The difference represents the premiums incurred in connection with these repurchases and is included in other, net in our condensed consolidated statement of income (loss) for the three months ended March 31, 2017.

 

0.75% Senior Exchangeable Notes Due January 2024

 

In January 2017, Nabors Industries, Inc. (“Nabors Delaware”), a wholly owned subsidiary of Nabors, issued $575 million in aggregate principal amount of 0.75% exchangeable senior unsecured notes due 2024, which are fully and unconditionally guaranteed by Nabors. The notes bear interest at a rate of 0.75% per year payable semiannually on January 15 and July 15 of each year, beginning on July 15, 2017. The exchangeable notes are bifurcated for accounting purposes into debt and equity components of $411.2 million and $163.8 million, respectively, based on the relative fair value. Debt issuance costs of $9.6 million and equity issuance costs of $3.9 million were capitalized in connection with the issuance of these notes in long-term debt and netted against the proceeds allocated to the equity component, respectively, in our condensed consolidated balance sheet. The debt issuance costs are being amortized through January 2024.

 

The exchangeable notes are exchangeable, under certain conditions, at an initial exchange rate of 39.75 common shares of Nabors per $1,000 principal amount of exchangeable notes (equivalent to an initial exchange price of approximately $25.16 per common share). Upon any exchange, Nabors Delaware will settle its exchange obligation in cash, common shares of Nabors, or a combination of cash and common shares, at our election.

 

In connection with the pricing of the notes, we entered into privately negotiated capped call transactions which are expected to reduce potential dilution to common shares and/or offset potential cash payments required to be made in excess of the principal amount upon any exchange of notes. Such reduction and/or offset is subject to a cap representing a price per share of $31.45, an approximately 75.0% premium over our share price of $17.97 as of the date of the transaction. The net proceeds from the offering of the exchangeable notes were used to prepay the remaining balance of our unsecured term loan originally scheduled to mature in 2020, as well as to pay the cost of the capped call transactions. Any remaining net proceeds from the offering were allocated for general corporate purposes, including to repurchase or repay other indebtedness.

 

Commercial Paper Program

 

As of March 31, 2017, we had no borrowings outstanding under this facility. Our commercial paper borrowings are classified as long-term debt because the borrowings are fully supported by availability under our revolving credit facility, which matures as currently structured in July 2020, more than one year from now.

 

Revolving Credit Facility

 

As of March 31, 2017, we had no borrowings outstanding under our $2.25 billion revolving credit facility, which matures in July 2020. The revolving credit facility contains various covenants and restrictive provisions that limit our ability to incur additional indebtedness, make investments or loans and create liens and require us to maintain a net funded indebtedness to total capitalization ratio, as defined in the agreement. Availability under the revolving credit facility is subject to a covenant not to exceed a net debt to capital ratio of 0.60:1. We were in compliance with all covenants under the agreement at March 31, 2017. If we fail to perform our obligations under the covenants, the revolving credit commitment could be terminated, and any outstanding borrowings under the facility could be declared immediately due and payable.

 

Term Loan Facility

 

On September 29, 2015, Nabors Delaware entered into a new five-year unsecured term loan facility for $325.0 million, which is fully and unconditionally guaranteed by us. The term loan facility contains a mandatory prepayment of $162.5 million due in September 2018, which was repaid in December 2016 utilizing a portion of the proceeds received in connection with the 5.50% senior notes offering. In January 2017, we repaid the remaining $162.5 million term loan utilizing the proceeds received in connection with the 0.75% senior exchangeable notes and the facility was terminated.

14


 

Table of Contents

Note 6 Common Shares

 

During the three months ended March 31, 2016, we repurchased 0.3 million of our common shares in the open market for $1.7 million, all of which are held in treasury.

 

On February 17, 2017, a cash dividend of $0.06 per share was declared for shareholders of record on March 14, 2017. The dividend was paid on April 4, 2017 in the amount of $17.2 million and was charged to retained earnings in our condensed consolidated statement of changes in equity for the three months ended March 31, 2017.

 

Note 7 Commitments and Contingencies

 

Contingencies

 

Income Tax

 

We operate in a number of countries throughout the world and our tax returns filed in those jurisdictions are subject to review and examination by tax authorities within those jurisdictions. We do not recognize the benefit of income tax positions we believe are more likely than not to be disallowed upon challenge by a tax authority. If any tax authority successfully challenges our operational structure, intercompany pricing policies or the taxable presence of our subsidiaries in certain countries, if the terms of certain income tax treaties are interpreted in a manner that is adverse to our structure, or if we lose a material tax dispute in any country, our effective tax rate on our worldwide earnings could change substantially.

 

We have received an assessment from a tax authority in Latin America in connection with a 2007 income tax return. The assessment relates to the denial of depreciation expense deductions related to drilling rigs. Similar deductions were taken for tax year 2009. Although Nabors and its tax advisors believe these deductions are appropriate and intend to continue to defend our position, we have recorded a partial reserve to account for this contingency. If we ultimately do not prevail, we estimate that we would be required to recognize additional tax expense in the range of $3 million to $8 million.  

 

Self-Insurance

 

We estimate the level of our liability related to insurance and record reserves for these amounts in our condensed consolidated financial statements. Our estimates are based on the facts and circumstances specific to existing claims and our past experience with similar claims. These loss estimates and accruals recorded in our financial statements for claims have historically been reasonable in light of the actual amount of claims paid and are actuarially supported. Although we believe our insurance coverage and reserve estimates are reasonable, a significant accident or other event that is not fully covered by insurance or contractual indemnity could occur and could materially affect our financial position and results of operations for a particular period.

 

We self-insure for certain losses relating to workers’ compensation, employers’ liability, general liability, automobile liability and property damage. Some of our workers’ compensation claims, employers’ liability and marine employers’ liability claims are subject to a $3.0 million per-occurrence deductible; additionally, some of our automobile liability claims are subject to a $2.5 million deductible. General liability claims remain subject to a $5.0 million per-occurrence deductible. Our policies were renewed effective April 1, 2017 and remains subject to these same deductibles.

 

In addition, we are subject to a $5.0 million deductible for land rigs and for offshore rigs. This applies to all kinds of risks of physical damage except for named windstorms in the U.S. Gulf of Mexico for which we are self-insured.

 

Litigation

 

Nabors and its subsidiaries are defendants or otherwise involved in a number of lawsuits in the ordinary course of business. We estimate the range of our liability related to pending litigation when we believe the amount and range of loss can be estimated. We record our best estimate of a loss when the loss is considered probable. When a liability is probable and there is a range of estimated loss with no best estimate in the range, we record the minimum estimated liability related to the lawsuits or claims. As additional information becomes available, we assess the potential liability related to our pending litigation and claims and revise our estimates. Due to uncertainties related to the resolution of

15


 

Table of Contents

lawsuits and claims, the ultimate outcome may differ from our estimates. For matters where an unfavorable outcome is reasonably possible and significant, we disclose the nature of the matter and a range of potential exposure, unless an estimate cannot be made at the time of disclosure. In the opinion of management and based on liability accruals provided, our ultimate exposure with respect to these pending lawsuits and claims is not expected to have a material adverse effect on our consolidated financial position or cash flows, although they could have a material adverse effect on our results of operations for a particular reporting period.

 

In March 2011, the Court of Ouargla entered a judgment of approximately $25.7 million (at March 31, 2017 exchange rates) against us relating to alleged violations of Algeria’s foreign currency exchange controls, which require that goods and services provided locally be invoiced and paid in local currency. The case relates to certain foreign currency payments made to us by CEPSA, a Spanish operator, for wells drilled in 2006. Approximately $7.5 million of the total contract amount was paid offshore in foreign currency, and approximately $3.2 million was paid in local currency. The judgment includes fines and penalties of approximately four times the amount at issue. We have appealed the ruling based on our understanding that the law in question applies only to resident entities incorporated under Algerian law. An intermediate court of appeals upheld the lower court’s ruling, and we appealed the matter to the Supreme Court. On September 25, 2014, the Supreme Court overturned the verdict against us, and the case was reheard by the Ouargla Court of Appeals on March 22, 2015 in light of the Supreme Court’s opinion. On March 29, 2015, the Ouargla Court of Appeals reinstated the initial judgment against us. We have appealed this decision again to the Supreme Court. While our payments were consistent with our historical operations in the country, and, we believe, those of other multinational corporations there, as well as interpretations of the law by the Central Bank of Algeria, the ultimate resolution of this matter could result in a loss of up to $17.7 million in excess of amounts accrued.

 

In March 2012, Nabors Global Holdings II Limited (“NGH2L”) signed an agreement with ERG Resources, LLC (“ERG”) relating to the sale of all of the Class A shares of NGH2L’s wholly owned subsidiary, Ramshorn International Limited, an oil and gas exploration company (“Ramshorn”) (“the ERG Agreement”). When ERG failed to meet its closing obligations, NGH2L terminated the transaction on March 19, 2012 and, as contemplated in the agreement, retained ERG’s $3.0 million escrow deposit. ERG filed suit the following day in the 61st Judicial District Court of Harris County, Texas, in a case styled ERG Resources, LLC v. Nabors Global Holdings II Limited, Ramshorn International Limited, and Parex Resources, Inc.; Cause No. 2012 16446, seeking injunctive relief to halt any sale of the shares to a third party, specifically naming as defendant Parex Resources, Inc. (“Parex”). The lawsuit also seeks monetary damages of up to $750.0 million based on an alleged breach of contract by NGH2L and alleged tortious interference with contractual relations by Parex. We successfully defeated ERG’s effort to obtain a temporary restraining order from the Texas court on March 20, 2012 and completed the sale of Ramshorn’s Class A shares to a Parex affiliate in April 2012, which mooted ERG’s application for a temporary injunction. The defendants made numerous jurisdictional challenges on appeal, and on April 30, 2015, ERG filed for bankruptcy under Chapter 11 of the United States Bankruptcy Code. Accordingly, the civil actions are currently subject to the bankruptcy stay and ERG’s claims in the lawsuit are assets of the estate. The lawsuit was stayed, pending further court actions, including appeals of the jurisdictional decisions. On June 17, 2016, the Texas Supreme Court issued its opinion on the jurisdictional appeal holding that jurisdiction exists in Texas for Ramshorn, but not for Parex Bermuda or Parex Canada. ERG retains its causes of action for monetary damages, but we believe the claims are foreclosed by the terms of the ERG Agreement and are without factual or legal merit. On December 28, 2016, the District Court granted Nabors’ Motion for Partial Summary Judgment to Enforce Exclusive Remedies Clause, holding that ERG’s potential recovery in the action may not exceed $4.5 million in accordance with the terms of the ERG Agreement. The plaintiffs have challenged this ruling by filing a motion for rehearing that was heard March 6, 2017. We await the Court’s ruling. Although we continue to vigorously defend the lawsuit, its ultimate outcome cannot be determined at this time.

 

On July 30, 2014, we and Nabors Red Lion Limited (“Red Lion”), along with C&J Energy and its board of directors, were sued in a putative shareholder class action filed in the Court of Chancery of the State of Delaware (the “Court of Chancery”). The plaintiff alleges that the members of the C&J Energy board of directors breached their fiduciary duties in connection with the Merger, and that Red Lion and C&J Energy aided and abetted these alleged breaches. The plaintiff sought to enjoin the defendants from proceeding with or consummating the Merger and the C&J Energy stockholder meeting for approval of the Merger and, to the extent that the Merger was completed before any relief was granted, to have the Merger rescinded. On November 10, 2014, the plaintiff filed a motion for a preliminary injunction, and, on November 24, 2014, the Court of Chancery entered a bench ruling, followed by a written order on November 25, 2014, that (i) ordered certain members of the C&J Energy board of directors to solicit for a 30 day period alternative proposals to purchase C&J Energy (or a controlling stake in C&J Energy) that were superior to the Merger, and (ii) preliminarily enjoined C&J Energy from holding its stockholder meeting until it complied with the foregoing.

16


 

Table of Contents

C&J Energy complied with the order while it simultaneously pursued an expedited appeal of the Court of Chancery’s order to the Supreme Court of the State of Delaware (the “Delaware Supreme Court”). On December 19, 2014, the Delaware Supreme Court overturned the Court of Chancery’s judgment and vacated the order. Nabors and the C&J Energy defendants filed a motion to dismiss that was granted by the Chancellor on August 24, 2016, including a ruling that C&J Energy could recover on the bond that was posted to support the temporary restraining order. The plaintiffs filed a Notice of Appeal on September 22, 2016. On March 23, 2017, the Delaware Supreme Court affirmed the dismissal of the lawsuit. The plaintiffs filed a Motion for Reargument, which was denied on March 31, 2017, concluding the case.

 

On March 24, 2015, we completed the Merger of our Completion & Production Services business with C&J Energy. In the Merger and related transactions, we acquired common shares in the combined entity, CJES, and entered into certain ancillary agreements with CJES, including a tax matters agreement, pursuant to which both parties agreed to indemnify each other following the completion of the Merger with respect to certain tax matters. On July 20, 2016, CJES and certain of its subsidiaries (collectively, the “debtors”) commenced voluntarily cases under chapter 11 of the U.S. Bankruptcy Code in the United States Bankruptcy Court for the Southern District of Texas, Houston Division. On December 12, 2016, we entered into a mediated settlement agreement with various other parties in the CJES bankruptcy proceedings (the “Settlement Agreement”). Pursuant to the Settlement Agreement, we agreed to support the debtors' chapter 11 plan of reorganization in exchange for: (i) two allowed unsecured claims for which we will receive distributions of up to $4.85 million; (ii) an amendment to the tax matters agreement providing that CJES will likely pay up to $11.5 million of obligations for which we would have otherwise been responsible; (iii) cancellation of various other obligations we had to the debtors; (iv) our pro rata share of warrants to acquire 2% of the common equity in the reorganized debtors; and (v) a mutual release of claims. The bankruptcy court approved the terms of the Settlement Agreement and confirmed the debtors' plan and, on January 6, 2017, CJES announced it had emerged from bankruptcy, thus concluding this proceeding.

 

Off-Balance Sheet Arrangements (Including Guarantees)

 

We are a party to some transactions, agreements or other contractual arrangements defined as “off-balance sheet arrangements” that could have a material future effect on our financial position, results of operations, liquidity and capital resources. The most significant of these off-balance sheet arrangements involve agreements and obligations under which we provide financial or performance assurance to third parties. Certain of these agreements serve as guarantees, including standby letters of credit issued on behalf of insurance carriers in conjunction with our workers’ compensation insurance program and other financial surety instruments such as bonds. In addition, we have provided indemnifications, which serve as guarantees, to some third parties. These guarantees include indemnification provided by Nabors to our share transfer agent and our insurance carriers. We are not able to estimate the potential future maximum payments that might be due under our indemnification guarantees.

 

Management believes the likelihood that we would be required to perform or otherwise incur any material losses associated with any of these guarantees is remote. The following table summarizes the total maximum amount of financial guarantees issued by Nabors:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Maximum Amount

 

 

    

2017

    

2018

    

2019

    

Thereafter

    

Total

 

 

 

(In thousands)

 

Financial standby letters of credit and other financial surety instruments

 

$

276,391

 

518

 

11,914

 

 —

 

$

288,823

 

 

 

Note 8 Earnings (Losses) Per Share

 

ASC 260, Earnings per Share, requires companies to treat unvested share-based payment awards that have nonforfeitable rights to dividends or dividend equivalents as a separate class of securities in calculating earnings (losses) per share. We have granted and expect to continue to grant to employees restricted stock grants that contain nonforfeitable rights to dividends. Such grants are considered participating securities under ASC 260. As such, we are required to include these grants in the calculation of our basic earnings (losses) per share and calculate basic earnings (losses) per share using the two-class method. The two-class method of computing earnings per share is an earnings allocation formula that determines earnings per share for each class of common stock and participating security according to dividends declared and participation rights in undistributed earnings.

 

17


 

Table of Contents

Basic earnings (losses) per share is computed utilizing the two-class method and is calculated based on the weighted-average number of common shares outstanding during the periods presented.

 

Diluted earnings (losses) per share is computed using the weighted-average number of common and common equivalent shares outstanding during the periods utilizing the two-class method for stock options and unvested restricted stock. Shares issuable upon exchange of the $575 million 0.75% exchangeable notes are not included in the calculation of diluted earnings (losses) per share unless the exchange value of the notes exceeds their principal amount at the end of the relevant reporting period, in which case the notes will be accounted for as if the number of common shares that would be necessary to settle the excess are issued. Such shares are only included in the calculation of the weighted-average number of shares outstanding in our diluted earnings (losses) per share calculation, when the price of our shares exceeds $25.16 on the last trading day of the quarter, which did not occur during the three months ended March 31, 2017.

 

A reconciliation of the numerators and denominators of the basic and diluted earnings (losses) per share computations is as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

 

 

 

    

2017

    

2016

 

 

(In thousands, except per share amounts)

BASIC EPS:

 

 

 

 

 

 

 

 

Net income (loss) (numerator):

 

 

 

 

 

 

 

 

Income (loss) from continuing operations, net of tax

 

 

$

(147,628)

 

$

(396,644)

 

Less: net (income) loss attributable to noncontrolling interest

 

 

 

(917)

 

 

(724)

 

Less: (earnings) losses allocated to unvested shareholders

 

 

 

3,811

 

 

8,199

 

Numerator for basic earnings per share:

 

 

 

 

 

 

 

 

Adjusted income (loss) from continuing operations, net of tax - basic

 

 

$

(144,734)

 

$

(389,169)

 

Income (loss) from discontinued operations, net of tax

 

 

$

(439)

 

$

(926)

 

Weighted-average number of shares outstanding - basic

 

 

 

277,781

 

 

275,851

 

Earnings (losses) per share:

 

 

 

 

 

 

 

 

Basic from continuing operations

 

 

$

(0.52)

 

$

(1.41)

 

Basic from discontinued operations

 

 

 

 —

 

 

 —

 

Total Basic

 

 

$

(0.52)

 

$

(1.41)

 

DILUTED EPS:

 

 

 

 

 

 

 

 

Adjusted income (loss) from continuing operations, net of tax - basic

 

 

$

(144,734)

 

$

(389,169)

 

Add: effect of reallocating undistributed earnings of unvested shareholders

 

 

 

 —

 

 

 —

 

Adjusted income (loss) from continuing operations, net of tax - diluted

 

 

$

(144,734)

 

$

(389,169)

 

Income (loss) from discontinued operations, net of tax

 

 

$

(439)

 

$

(926)

 

Weighted-average number of shares outstanding - basic

 

 

 

277,781

 

 

275,851

 

Add: dilutive effect of potential common shares

 

 

 

 —

 

 

 —

 

Weighted-average number of shares outstanding - diluted

 

 

 

277,781

 

 

275,851

 

Earnings (losses) per share:

 

 

 

 

 

 

 

 

Diluted from continuing operations

 

 

$

(0.52)

 

$

(1.41)

 

Diluted from discontinued operations

 

 

 

 —

 

 

 —

 

Total Diluted

 

 

$

(0.52)

 

$

(1.41)

 

 

 

 

 

 

 

 

 

 

 

For all periods presented, the computation of diluted earnings (losses) per share excludes outstanding stock options with exercise prices greater than the average market price of Nabors’ common shares, because their inclusion would be anti-dilutive and because they are not considered participating securities. For periods in which we experience a net loss from continuing operations, all potential common shares have been excluded from the calculation of weighted-average

18


 

Table of Contents

shares outstanding, because their inclusion would be anti-dilutive. The average number of options that were excluded from diluted earnings (losses) per share that would potentially dilute earnings per share in the future were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

 

 

 

    

2017

    

2016

 

 

 

 

 

 

 

 

 

 

Potentially dilutive securities excluded as anti-dilutive

 

 

 

4,647,807

 

 

5,414,712

 

 

In any period during which the average market price of Nabors’ common shares exceeds the exercise prices of these stock options, such stock options will be included in our diluted earnings (losses) per share computation using the if-converted method of accounting. Restricted stock is included in our basic and diluted earnings (losses) per share computation using the two-class method of accounting in all periods because such stock is considered participating securities.

 

Note 9 Supplemental Balance Sheet and Income Statement Information

 

Accrued liabilities included the following:

 

 

 

 

 

 

 

 

 

 

 

March 31,

 

December 31,

 

 

    

2017

    

2016

 

 

 

(In thousands)

 

Accrued compensation

 

$

100,783

 

$

116,775

 

Deferred revenue

 

 

259,671

 

 

255,626

 

Other taxes payable

 

 

16,264

 

 

16,419

 

Workers’ compensation liabilities

 

 

18,255

 

 

18,255

 

Interest payable

 

 

25,804

 

 

57,233

 

Litigation reserves

 

 

24,026

 

 

24,896

 

Current liability to discontinued operations

 

 

5,566

 

 

5,462

 

Dividends declared and payable

 

 

17,154

 

 

17,039

 

Other accrued liabilities

 

 

29,841

 

 

31,543

 

 

 

$

497,364

 

$

543,248

 

Other expense (income), net included the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

 

 

 

    

2017

    

2016

 

 

(In thousands)

Losses (gains) on sales, disposals and involuntary conversions of long-lived assets

 

 

$

2,875

 

$

5,298

 

Charges related to our CJES holdings (1)

 

 

 

 —

 

 

177,242

 

Litigation expenses

 

 

 

821

 

 

637

 

Foreign currency transaction losses (gains)

 

 

 

876

 

 

4,214

 

(Gain) loss on debt buyback

 

 

 

8,596

 

 

(6,027)

 

Other losses (gains)

 

 

 

342

 

 

1,040

 

 

 

 

$

13,510

 

$

182,404

 


(1)

Represents impairment charges related to our CJES holdings. See Note 3 — Investments in Unconsolidated Affiliates.

 

 

 

19


 

Table of Contents

The changes in accumulated other comprehensive income (loss), by component, included the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

 

    

Unrealized

    

 

 

    

 

 

    

 

 

 

 

 

Gains

 

gains (losses)

 

Defined

 

 

 

 

 

 

 

 

 

(losses) on

 

on available-

 

benefit

 

Foreign

 

 

 

 

 

 

cash flow

 

for-sale

 

pension plan

 

currency

 

 

 

 

 

    

hedges

    

securities

    

items

    

items

    

Total

 

 

 

(In thousands (1) )

 

As of January 1, 2016

 

$

(1,670)

 

$

(314)

 

$

(6,568)

 

$

(39,041)

 

$

(47,593)

 

Other comprehensive income (loss) before reclassifications

 

 

 

 

769

 

 

 —

 

 

33,362

 

 

34,131

 

Amounts reclassified from accumulated other comprehensive income (loss)

 

 

93

 

 

 

 

105

 

 

 —

 

 

198

 

Net other comprehensive income (loss)

 

 

93

 

 

769

 

 

105

 

 

33,362

 

 

34,329

 

As of March 31, 2016

 

$

(1,577)

 

$

455

 

$

(6,463)

 

$

(5,679)

 

$

(13,264)

 


(1)

All amounts are net of tax.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

 

    

Unrealized

    

 

 

    

 

 

    

 

 

 

 

 

Gains

 

gains (losses)

 

Defined

 

 

 

 

 

 

 

 

 

(losses) on

 

on available-

 

benefit

 

Foreign

 

 

 

 

 

 

cash flow

 

for-sale

 

pension plan

 

currency

 

 

 

 

 

    

hedges

    

securities

    

items

    

items

    

Total

 

 

 

(In thousands (1) )

 

As of January 1, 2017

 

$

(1,296)

 

$

14,235

 

$

(3,760)

 

$

(21,298)

 

$

(12,119)

 

Other comprehensive income (loss) before reclassifications

 

 

 —

 

 

(3,201)

 

 

 —

 

 

3,860

 

 

659

 

Amounts reclassified from accumulated other comprehensive income (loss)

 

 

93

 

 

 —

 

 

31

 

 

 —

 

 

124

 

Net other comprehensive income (loss)

 

 

93

 

 

(3,201)

 

 

31

 

 

3,860

 

 

783

 

As of March 31, 2017

 

$

(1,203)

 

$

11,034

 

$

(3,729)

 

$

(17,438)

 

$

(11,336)

 


(1)

All amounts are net of tax.

 

The line items that were reclassified to net income included the following:

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

 

 

 

    

2017

    

2016

 

 

(In thousands)

Interest expense

 

 

$

153

 

$

153

 

General and administrative expenses

 

 

 

50

 

 

174

 

Other expense (income), net

 

 

 

 —

 

 

 —

 

Total income (loss) from continuing operations before income tax

 

 

 

(203)

 

 

(327)

 

Tax expense (benefit)

 

 

 

(79)

 

 

(129)

 

Reclassification adjustment for (gains)/ losses included in net income (loss)

 

 

$

(124)

 

$

(198)

 

 

 

Note 10 Assets Held for Sale and Discontinued Operations

 

Assets Held for Sale

 

Assets held for sale as of March 31, 2017 and December 31, 2016 was $77.1 million and $76.7 million, respectively. These assets consisted primarily of our oil and gas holdings which are mainly in the Horn River basin in western Canada of $65.4 million and $65.0 million, respectively, as of the periods noted above and the operating results have been reflected in discontinued operations. The remainder represents assets that meet the criteria to be classified as assets held for sale, but do not represent a disposal of a component of an entity or a group of components of an entity representing a strategic shift that has or will have a major effect on the entity's operations and financial results.

 

20


 

Table of Contents

The carrying value of our assets held for sale represents the lower of carrying value or fair value less costs to sell. We continue to market these properties at prices that are reasonable compared to current fair value.

 

We have contracts with pipeline companies to pay specified fees based on committed volumes for gas transport and processing associated with these properties held for sale. At March 31, 2017, our undiscounted contractual commitments for these contracts approximated $15.7 million and we had liabilities of $11.6 million, $5.6 million of which were classified as current and were included in accrued liabilities. At December 31, 2016, our undiscounted contractual commitments for these contracts approximated $17.2 million and we had liabilities of $12.5 million, $5.5 million of which were classified as current and were included in accrued liabilities.

 

The amounts at each balance sheet date represented our best estimate of the fair value of the excess capacity of the pipeline commitments calculated using a discounted cash flow model, when considering our disposal plan, current production levels, natural gas prices and expected utilization of the pipeline over the remaining contractual term. Decreases in actual production or natural gas prices could result in future charges related to excess pipeline commitments.

 

Discontinued Operations

 

Our condensed statements of income (loss) from discontinued operations were as follows:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

    

 

 

    

2017

    

 

2016

 

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

Operating revenues (1)

 

 

$

2,034

 

 

$

377

 

Income (loss) from Oil & Gas discontinued operations:

 

 

 

 

 

 

 

 

 

Income (loss) from discontinued operations

 

 

$

(590)

 

 

$

(1,326)

 

Less: Impairment charges or other (gains) and losses on sale of wholly owned assets

 

 

 

20

 

 

 

 —

 

Less: Income tax expense (benefit)

 

 

 

(171)

 

 

 

(400)

 

Income (loss) from Oil and Gas discontinued operations, net of tax

 

 

$

(439)

 

 

$

(926)

 


(1) Reflects operating revenues of our historical oil and gas operating segment.

 

Note 11 Segment Information

 

The following table sets forth financial information with respect to our reportable operating segments:

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

 

 

 

    

2017

    

2016

 

 

(In thousands)

Operating revenues:

 

 

 

 

 

 

 

 

Drilling & Rig Services:

 

 

 

 

 

 

 

 

U.S.

 

 

$

161,934

 

$

148,676

 

Canada

 

 

 

27,808

 

 

17,494

 

International

 

 

 

338,223

 

 

401,055

 

Rig Services

 

 

 

71,441

 

 

53,853

 

Subtotal Drilling & Rig Services

 

 

 

599,406

 

 

621,078

 

 

 

 

 

 

 

 

 

 

Other reconciling items (1)

 

 

 

(36,856)

 

 

(23,507)

 

Total

 

 

$

562,550

 

$

597,571

 

 

 

21


 

Table of Contents

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

 

 

 

    

2017

    

2016

 

 

(In thousands)

Adjusted operating income (loss): (2)

 

 

 

 

 

 

 

 

Drilling & Rig Services:

 

 

 

 

 

 

 

 

U.S.

 

 

$

(63,182)

 

$

(47,559)

 

Canada

 

 

 

(4,011)

 

 

(7,278)

 

International

 

 

 

11,974

 

 

46,872

 

Rig Services

 

 

 

(9,109)

 

 

(10,644)

 

Total

 

 

$

(64,328)

 

$

(18,609)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

March 31,

 

 

 

    

2017

    

2016

 

 

(In thousands)

Reconciliation of adjusted operating income (loss) to net income (loss) from continuing operations before income taxes:

 

 

 

 

 

 

 

 

Total segment adjusted operating income (loss) (2)

 

 

$

(64,328)

 

$

(18,609)

 

Other reconciling items (3)

 

 

 

(39,604)

 

 

(35,157)

 

Earnings (losses) from unconsolidated affiliates

 

 

 

 2

 

 

(167,151)

 

Investment income (loss)

 

 

 

721

 

 

343

 

Interest expense

 

 

 

(56,518)

 

 

(45,730)

 

Other, net

 

 

 

(13,510)

 

 

(182,404)

 

Income (loss) from continuing operations before income taxes

 

 

$

(173,237)

 

$

(448,708)

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31,

 

December 31,

 

 

    

2017

    

2016

 

 

 

(In thousands)

 

Total assets:

 

 

 

 

 

 

 

Drilling & Rig Services:

 

 

 

 

 

 

 

U.S.

 

$

3,246,887

 

$

3,172,767

 

Canada

 

 

332,121

 

 

329,620

 

International

 

 

3,552,771

 

 

3,600,057

 

Rig Services

 

 

370,470

 

 

359,435

 

Subtotal Drilling & Rig Services

 

 

7,502,249

 

 

7,461,879

 

Other reconciling items (3)

 

 

593,063

 

 

725,136

 

Total

 

$

8,095,312

 

$

8,187,015

 


(1)

Represents the elimination of inter-segment transactions.

 

(2)

Adjusted operating income (loss) is computed by subtracting the sum of direct costs, general and administrative expenses, research and engineering expenses and depreciation and amortization from operating revenues. Management evaluates the performance of our operating segments using adjusted operating income (loss), which is a segment performance measure, because it believes that this financial measure reflects our ongoing profitability and performance. In addition, securities analysts and investors use this measure as one of the metrics on which they analyze our performance. A reconciliation to income (loss) from continuing operations before income taxes is provided in the above table.

 

(3)

Represents the elimination of inter-segment transactions and unallocated corporate expenses, assets and capital expenditures.

 

 

22


 

Table of Contents

Note 12 Condensed Consolidating Financial Information

 

Nabors has fully and unconditionally guaranteed all of the issued public debt securities of Nabors Delaware, a wholly owned subsidiary. The following condensed consolidating financial information is included so that separate financial statements of Nabors Delaware are not required to be filed with the SEC. The condensed consolidating financial statements present investments in both consolidated and unconsolidated affiliates using the equity method of accounting.

 

The following condensed consolidating financial information presents condensed consolidating balance sheets as of March 31, 2017 and December 31, 2016, statements of income (loss) and statements of other comprehensive income (loss) for the three months ended March 31, 2017 and 2016, and statements of cash flows for the three months ended March 31, 2017 and 2016 of (a) Nabors, parent/guarantor, (b) Nabors Delaware, issuer of public debt securities guaranteed by Nabors, (c) the non-guarantor subsidiaries, (d) consolidating adjustments necessary to consolidate Nabors and its subsidiaries and (e) Nabors on a consolidated basis.

 

 

23


 

Table of Contents

Condensed Consolidating Balance Sheets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

March 31, 2017

 

 

    

 

 

    

 

 

    

Other

    

 

 

    

 

 

 

 

 

Nabors

 

 

Nabors

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

Delaware

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

(Issuer)

    

Guarantors)

    

Adjustments

    

Total

 

 

 

(In thousands)

 

 

 

ASSETS

 

Current assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

8,579

 

$

 4

 

$

192,105

 

$

 —

 

$

200,688

 

Short-term investments

 

 

 —

 

 

 —

 

 

27,907

 

 

 —

 

 

27,907

 

Accounts receivable, net

 

 

 —

 

 

 —

 

 

514,446

 

 

 —

 

 

514,446

 

Inventory, net

 

 

 —

 

 

 —

 

 

109,461

 

 

 —

 

 

109,461

 

Assets held for sale

 

 

 —

 

 

 —

 

 

77,118

 

 

 —

 

 

77,118

 

Other current assets

 

 

57

 

 

28,080

 

 

164,899

 

 

 —

 

 

193,036

 

Total current assets

 

 

8,636

 

 

28,084

 

 

1,085,936

 

 

 —

 

 

1,122,656

 

Property, plant and equipment, net

 

 

 —

 

 

 —

 

 

6,218,699

 

 

 —

 

 

6,218,699

 

Goodwill

 

 

 —

 

 

 —

 

 

166,999

 

 

 —

 

 

166,999

 

Intercompany receivables

 

 

144,795

 

 

 —

 

 

1,117,044

 

 

(1,261,839)

 

 

 —

 

Investment in consolidated affiliates

 

 

3,044,185

 

 

4,779,879

 

 

1,151,049

 

 

(8,975,113)

 

 

 —

 

Deferred tax assets

 

 

 —

 

 

469,784

 

 

373,973

 

 

(469,784)

 

 

373,973

 

Other long-term assets

 

 

 —

 

 

161

 

 

301,414

 

 

(88,590)

 

 

212,985

 

Total assets

 

$

3,197,616

 

$

5,277,908

 

$

10,415,114

 

$

(10,795,326)

 

$

8,095,312

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIABILITIES AND EQUITY

 

Current liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Current portion of debt

 

$

 —

 

$

 —

 

$

313

 

$

 —

 

$

313

 

Trade accounts payable

 

 

113

 

 

24

 

 

241,195

 

 

 —

 

 

241,332

 

Accrued liabilities

 

 

19,555

 

 

27,386

 

 

450,423

 

 

 —

 

 

497,364

 

Income taxes payable

 

 

 —

 

 

 —

 

 

32,640

 

 

 —

 

 

32,640

 

Total current liabilities

 

 

19,668

 

 

27,410

 

 

724,571

 

 

 —

 

 

771,649

 

Long-term debt

 

 

 —

 

 

3,750,255

 

 

 —

 

 

(88,590)

 

 

3,661,665

 

Other long-term liabilities

 

 

 —

 

 

22,729

 

 

444,519

 

 

 —

 

 

467,248

 

Deferred income taxes

 

 

 —

 

 

 —

 

 

478,140

 

 

(469,784)

 

 

8,356

 

Intercompany payable

 

 

 —

 

 

1,261,839

 

 

 —

 

 

(1,261,839)

 

 

 —

 

Total liabilities

 

 

19,668

 

 

5,062,233

 

 

1,647,230

 

 

(1,820,213)

 

 

4,908,918

 

Shareholders’ equity

 

 

3,177,948

 

 

215,675

 

 

8,759,438

 

 

(8,975,113)

 

 

3,177,948

 

Noncontrolling interest

 

 

 —

 

 

 —

 

 

8,446

 

 

 —

 

 

8,446

 

Total equity

 

 

3,177,948

 

 

215,675

 

 

8,767,884

 

 

(8,975,113)

 

 

3,186,394

 

Total liabilities and equity

 

$

3,197,616

 

$

5,277,908

 

$

10,415,114

 

$

(10,795,326)

 

$

8,095,312

 

 

24


 

Table of Contents

Condensed Consolidating Balance Sheets

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

December 31, 2016

 

 

    

 

 

    

 

 

    

Other

    

 

 

    

 

 

 

 

 

Nabors

 

Nabors

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

Delaware

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

(Issuer)

    

Guarantors)

    

Adjustments

    

Total

 

 

 

(In thousands)

 

 

 

ASSETS

 

Current assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

1,148

 

$

10,177

 

$

252,768

 

$

 —

 

$

264,093

 

Short-term investments

 

 

 —

 

 

 —

 

 

31,109

 

 

 —

 

 

31,109

 

Accounts receivable, net

 

 

 —

 

 

 —

 

 

508,355

 

 

 —

 

 

508,355

 

Inventory, net

 

 

 —

 

 

 —

 

 

103,595

 

 

 —

 

 

103,595

 

Assets held for sale

 

 

 —

 

 

 —

 

 

76,668

 

 

 —

 

 

76,668

 

Other current assets

 

 

50

 

 

22,209

 

 

149,760

 

 

 —

 

 

172,019

 

Total current assets

 

 

1,198

 

 

32,386

 

 

1,122,255

 

 

 —

 

 

1,155,839

 

Property, plant and equipment, net

 

 

 —

 

 

 —

 

 

6,267,583

 

 

 —

 

 

6,267,583

 

Goodwill

 

 

 —

 

 

 —

 

 

166,917

 

 

 —

 

 

166,917

 

Intercompany receivables

 

 

142,447

 

 

 —

 

 

1,342,942

 

 

(1,485,389)

 

 

 —

 

Investment in consolidated affiliates

 

 

3,170,254

 

 

4,830,572

 

 

1,083,948

 

 

(9,084,774)

 

 

 —

 

Deferred tax assets

 

 

 —

 

 

443,049

 

 

366,586

 

 

(443,049)

 

 

366,586

 

Other long-term assets

 

 

 —

 

 

344

 

 

447,962

 

 

(218,216)

 

 

230,090

 

Total assets

 

$

3,313,899

 

$

5,306,351

 

$

10,798,193

 

$

(11,231,428)

 

$

8,187,015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIABILITIES AND EQUITY

 

Current liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Current debt

 

$

 —

 

$

 —

 

$

297

 

$

 —

 

$

297

 

Trade accounts payable

 

 

205

 

 

 8

 

 

264,365

 

 

 —

 

 

264,578

 

Accrued liabilities

 

 

20,669

 

 

65,246

 

 

457,333

 

 

 —

 

 

543,248

 

Income taxes payable

 

 

 —

 

 

 —

 

 

13,811

 

 

 —

 

 

13,811

 

Total current liabilities

 

 

20,874

 

 

65,254

 

 

735,806

 

 

 —

 

 

821,934

 

Long-term debt

 

 

 —

 

 

3,796,550

 

 

 —

 

 

(218,215)

 

 

3,578,335

 

Other long-term liabilities

 

 

 —

 

 

22,659

 

 

499,797

 

 

 —

 

 

522,456

 

Deferred income taxes

 

 

 —

 

 

 —

 

 

452,544

 

 

(443,049)

 

 

9,495

 

Intercompany payable

 

 

46,000

 

 

1,439,390

 

 

 —

 

 

(1,485,390)

 

 

 —

 

Total liabilities

 

 

66,874

 

 

5,323,853

 

 

1,688,147

 

 

(2,146,654)

 

 

4,932,220

 

Shareholders’ equity

 

 

3,247,025

 

 

(17,502)

 

 

9,102,276

 

 

(9,084,774)

 

 

3,247,025

 

Noncontrolling interest

 

 

 —

 

 

 —

 

 

7,770

 

 

 —

 

 

7,770

 

Total equity

 

 

3,247,025

 

 

(17,502)

 

 

9,110,046

 

 

(9,084,774)

 

 

3,254,795

 

Total liabilities and equity

 

$

3,313,899

 

$

5,306,351

 

$

10,798,193

 

$

(11,231,428)

 

$

8,187,015

 

 

25


 

Table of Contents

Condensed Consolidating Statements of Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 2017

 

 

    

 

 

    

Nabors

    

Other

    

 

 

    

 

 

 

 

 

Nabors

 

Delaware

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

(Issuer/

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

Guarantor)

    

Guarantors)

    

Adjustments

    

Total

      

 

 

(In thousands)

 

Revenues and other income:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating revenues

 

$

 —

 

$

 —

 

$

562,550

 

$

 —

 

$

562,550

 

Earnings (losses) from unconsolidated affiliates

 

 

 —

 

 

 —

 

 

 2

 

 

 —

 

 

 2

 

Earnings (losses) from consolidated affiliates

 

 

(145,871)

 

 

(50,717)

 

 

(96,239)

 

 

292,827

 

 

 —

 

Investment income (loss)

 

 

17

 

 

63

 

 

3,621

 

 

(2,980)

 

 

721

 

Total revenues and other income

 

 

(145,854)

 

 

(50,654)

 

 

469,934

 

 

289,847

 

 

563,273

 

Costs and other deductions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Direct costs

 

 

 —

 

 

 —

 

 

387,644

 

 

 —

 

 

387,644

 

General and administrative expenses

 

 

3,298

 

 

137

 

 

60,153

 

 

(179)

 

 

63,409

 

Research and engineering

 

 

 —

 

 

 —

 

 

11,757

 

 

 —

 

 

11,757

 

Depreciation and amortization

 

 

 —

 

 

31

 

 

203,641

 

 

 —

 

 

203,672

 

Interest expense

 

 

 —

 

 

60,755

 

 

(4,237)

 

 

 —

 

 

56,518

 

Other, net

 

 

(159)

 

 

11,397

 

 

2,093

 

 

179

 

 

13,510

 

Intercompany interest expense

 

 

(9)

 

 

 —

 

 

 9

 

 

 —

 

 

 —

 

Total costs and other deductions

 

 

3,130

 

 

72,320

 

 

661,060

 

 

 —

 

 

736,510

 

Income (loss) from continuing operations before income taxes

 

 

(148,984)

 

 

(122,974)

 

 

(191,126)

 

 

289,847

 

 

(173,237)

 

Income tax expense (benefit)

 

 

 —

 

 

(26,735)

 

 

1,126

 

 

 —

 

 

(25,609)

 

Income (loss) from continuing operations, net of tax

 

 

(148,984)

 

 

(96,239)

 

 

(192,252)

 

 

289,847

 

 

(147,628)

 

Income (loss) from discontinued operations, net of tax

 

 

 —

 

 

 —

 

 

(439)

 

 

 —

 

 

(439)

 

Net income (loss)

 

 

(148,984)

 

 

(96,239)

 

 

(192,691)

 

 

289,847

 

 

(148,067)

 

Less: Net (income) loss attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

(917)

 

 

 —

 

 

(917)

 

Net income (loss) attributable to Nabors

 

$

(148,984)

 

$

(96,239)

 

$

(193,608)

 

$

289,847

 

$

(148,984)

 

 

 

26


 

Table of Contents

Condensed Consolidating Statements of Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 2016

 

 

    

 

 

    

Nabors 

    

Other

    

 

 

    

 

 

 

 

 

Nabors 

 

Delaware

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

(Issuer/

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

Guarantor)

    

Guarantors)

    

Adjustments

    

Total

     

 

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues and other income:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating revenues

 

$

 —

 

$

 —

 

$

597,571

 

$

 —

 

$

597,571

 

Earnings (losses) from unconsolidated affiliates

 

 

 —

 

 

 —

 

 

(167,151)

 

 

 —

 

 

(167,151)

 

Earnings (losses) from consolidated affiliates

 

 

(395,770)

 

 

(106,087)

 

 

(137,970)

 

 

639,827

 

 

 —

 

Investment income (loss)

 

 

 —

 

 

123

 

 

3,201

 

 

(2,981)

 

 

343

 

Intercompany interest income

 

 

 —

 

 

160

 

 

 —

 

 

(160)

 

 

 —

 

Total revenues and other income

 

 

(395,770)

 

 

(105,804)

 

 

295,651

 

 

636,686

 

 

430,763

 

Costs and other deductions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Direct costs

 

 

 —

 

 

 —

 

 

365,023

 

 

 —

 

 

365,023

 

General and administrative expenses

 

 

2,362

 

 

131

 

 

59,998

 

 

(157)

 

 

62,334

 

Research and engineering

 

 

 —

 

 

 —

 

 

8,162

 

 

 —

 

 

8,162

 

Depreciation and amortization

 

 

 —

 

 

31

 

 

215,787

 

 

 —

 

 

215,818

 

Interest expense

 

 

 —

 

 

50,664

 

 

(4,934)

 

 

 —

 

 

45,730

 

Other, net

 

 

157

 

 

65

 

 

182,025

 

 

157

 

 

182,404

 

Intercompany interest expense

 

 

 5

 

 

 —

 

 

155

 

 

(160)

 

 

 —

 

Total costs and other deductions

 

 

2,524

 

 

50,891

 

 

826,216

 

 

(160)

 

 

879,471

 

Income (loss) from continuing operations before income taxes

 

 

(398,294)

 

 

(156,695)

 

 

(530,565)

 

 

636,846

 

 

(448,708)

 

Income tax expense (benefit)

 

 

 —

 

 

(18,725)

 

 

(33,339)

 

 

 —

 

 

(52,064)

 

Income (loss) from continuing operations, net of tax

 

 

(398,294)

 

 

(137,970)

 

 

(497,226)

 

 

636,846

 

 

(396,644)

 

Income (loss) from discontinued operations, net of tax

 

 

 —

 

 

 —

 

 

(926)

 

 

 —

 

 

(926)

 

Net income (loss)

 

 

(398,294)

 

 

(137,970)

 

 

(498,152)

 

 

636,846

 

 

(397,570)

 

Less: Net (income) loss attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

(724)

 

 

 —

 

 

(724)

 

Net income (loss) attributable to Nabors

 

$

(398,294)

 

$

(137,970)

 

$

(498,876)

 

$

636,846

 

$

(398,294)

 

 

 

27


 

Table of Contents

Condensed Consolidating Statements of Comprehensive Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 2017

 

 

    

 

 

    

Nabors

    

Other

    

 

 

    

 

 

 

 

 

Nabors

 

Delaware

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

(Issuer/

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

Guarantor)

    

Guarantors)

    

Adjustments

    

Total

     

 

 

(In thousands)

 

Net income (loss) attributable to Nabors

 

$

(148,984)

 

$

(96,239)

 

$

(193,608)

 

$

289,847

 

$

(148,984)

 

Other comprehensive income (loss) before tax:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Translation adjustment attributable to Nabors

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized gain (loss) on translation adjustment

 

 

3,860

 

 

(7)

 

 

3,860

 

 

(3,853)

 

 

3,860

 

Less: reclassification adjustment for realized (gain) loss on translation adjustment

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Translation adjustment attributable to Nabors

 

 

3,860

 

 

(7)

 

 

3,860

 

 

(3,853)

 

 

3,860

 

Unrealized gains (losses) on marketable securities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized gains (losses) on marketable securities

 

 

(3,201)

 

 

 —

 

 

(3,201)

 

 

3,201

 

 

(3,201)

 

Less: reclassification adjustment for (gains) losses included in net income (loss)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Unrealized gains (losses) on marketable securities

 

 

(3,201)

 

 

 —

 

 

(3,201)

 

 

3,201

 

 

(3,201)

 

Pension liability amortization and adjustment

 

 

50

 

 

50

 

 

100

 

 

(150)

 

 

50

 

Unrealized gains (losses) and amortization on cash flow hedges

 

 

153

 

 

153

 

 

153

 

 

(306)

 

 

153

 

Other comprehensive income (loss) before tax

 

 

862

 

 

196

 

 

912

 

 

(1,108)

 

 

862

 

Income tax expense (benefit) related to items of other comprehensive income (loss)

 

 

79

 

 

79

 

 

158

 

 

(237)

 

 

79

 

Other comprehensive income (loss), net of tax

 

 

783

 

 

117

 

 

754

 

 

(871)

 

 

783

 

Comprehensive income (loss) attributable to Nabors

 

 

(148,201)

 

 

(96,122)

 

 

(192,854)

 

 

288,976

 

 

(148,201)

 

Net income (loss) attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

917

 

 

 —

 

 

917

 

Translation adjustment attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

49

 

 

 —

 

 

49

 

Comprehensive income (loss) attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

966

 

 

 —

 

 

966

 

Comprehensive income (loss)

 

$

(148,201)

 

$

(96,122)

 

$

(191,888)

 

$

288,976

 

$

(147,235)

 

 

28


 

Table of Contents

Condensed Consolidating Statements of Comprehensive Income (Loss)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 2016

 

 

    

 

 

    

Nabors

    

Other

    

 

 

    

 

 

 

 

 

Nabors

 

Delaware

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

(Issuer/

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

Guarantor)

    

Guarantors)

    

Adjustments

    

Total

 

 

 

(In thousands)

 

Net income (loss) attributable to Nabors

 

$

(398,294)

 

$

(137,970)

 

$

(498,876)

 

$

636,846

 

$

(398,294)

 

Other comprehensive income (loss) before tax:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Translation adjustment attributable to Nabors

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized gain (loss) on translation adjustment

 

 

33,362

 

 

(46)

 

 

33,316

 

 

(33,270)

 

 

33,362

 

Less: reclassification adjustment for realized (gain) loss on translation adjustment

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Translation adjustment attributable to Nabors

 

 

33,362

 

 

(46)

 

 

33,316

 

 

(33,270)

 

 

33,362

 

Unrealized gains (losses) on marketable securities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized gains (losses) on marketable securities

 

 

769

 

 

 —

 

 

769

 

 

(769)

 

 

769

 

Less: reclassification adjustment for (gains) losses included in net income (loss)

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

 

 —

 

Unrealized gains (losses) on marketable securities

 

 

769

 

 

 —

 

 

769

 

 

(769)

 

 

769

 

Pension liability amortization and adjustment

 

 

174

 

 

174

 

 

348

 

 

(522)

 

 

174

 

Unrealized gains (losses) and amortization on cash flow hedges

 

 

153

 

 

153

 

 

153

 

 

(306)

 

 

153

 

Other comprehensive income (loss) before tax

 

 

34,458

 

 

281

 

 

34,586

 

 

(34,867)

 

 

34,458

 

Income tax expense (benefit) related to items of other comprehensive income (loss)

 

 

129

 

 

129

 

 

198

 

 

(327)

 

 

129

 

Other comprehensive income (loss), net of tax

 

 

34,329

 

 

152

 

 

34,388

 

 

(34,540)

 

 

34,329

 

Comprehensive income (loss) attributable to Nabors

 

 

(363,965)

 

 

(137,818)

 

 

(464,488)

 

 

602,306

 

 

(363,965)

 

Net income (loss) attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

724

 

 

 —

 

 

724

 

Translation adjustment attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

419

 

 

 —

 

 

419

 

Comprehensive income (loss) attributable to noncontrolling interest

 

 

 —

 

 

 —

 

 

1,143

 

 

 —

 

 

1,143

 

Comprehensive income (loss)

 

$

(363,965)

 

$

(137,818)

 

$

(463,345)

 

$

602,306

 

$

(362,822)

 

 

 

 

29


 

Table of Contents

Condensed Consolidating Statements Cash Flows

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 2017

 

 

    

 

 

    

Nabors

    

Other

    

 

 

    

 

 

 

 

 

Nabors

 

Delaware

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

(Issuer/

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

Guarantor)

    

Guarantors)

    

Adjustments

    

Total

 

 

 

(In thousands)

 

Net cash provided by (used for) operating activities

 

$

70,492

 

$

(112,431)

 

$

53,928

 

$

(69,980)

 

$

(57,991)

 

Cash flows from investing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purchases of investments

 

 

 —

 

 

 —

 

 

(4)

 

 

 —

 

 

(4)

 

Sales and maturities of investments

 

 

 —

 

 

 —

 

 

91

 

 

 —

 

 

91

 

Capital expenditures

 

 

 —

 

 

 —

 

 

(183,427)

 

 

 —

 

 

(183,427)

 

Proceeds from sales of assets and insurance claims

 

 

 —

 

 

 —

 

 

3,253

 

 

 —

 

 

3,253

 

Change in intercompany balances

 

 

 —

 

 

(198,035)

 

 

198,035

 

 

 —

 

 

 —

 

Other changes in investing

 

 

 —

 

 

 —

 

 

(106)

 

 

 —

 

 

(106)

 

Net cash provided by (used for) investing activities

 

 

 —

 

 

(198,035)

 

 

17,842

 

 

 —

 

 

(180,193)

 

Cash flows from financing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Increase (decrease) in cash overdrafts

 

 

 —

 

 

 —

 

 

(469)

 

 

 —

 

 

(469)

 

Proceeds from issuance of long-term debt

 

 

 —

 

 

411,200

 

 

 —

 

 

 —

 

 

411,200

 

Debt issuance costs

 

 

 —

 

 

(10,439)

 

 

 —

 

 

 —

 

 

(10,439)

 

Proceeds from (payments for) issuance of common shares

 

 

8,300

 

 

 —

 

 

 —

 

 

 —

 

 

8,300

 

    Capped call hedge transactions

 

 

 —

 

 

(40,250)

 

 

 —

 

 

 —

 

 

(40,250)

 

   Reduction of long-term debt

 

 

 —

 

 

(57,670)

 

 

(112,821)

 

 

 —

 

 

(170,491)

 

Dividends to shareholders

 

 

(20,020)

 

 

 —

 

 

 —

 

 

2,980

 

 

(17,040)

 

Payments on term loan

 

 

 —

 

 

(162,500)

 

 

 —

 

 

 —

 

 

(162,500)

 

Proceeds from (payments for) short-term borrowings

 

 

 —

 

 

 —

 

 

16

 

 

 —

 

 

16

 

Cash proceeds from equity component of convertible debt

 

 

 —

 

 

159,952

 

 

 —

 

 

 —

 

 

159,952

 

Proceeds from issuance of intercompany debt

 

 

20,000

 

 

20,000

 

 

(40,000)

 

 

 —

 

 

 —

 

    Paydown of intercompany debt

 

 

(66,000)

 

 

(20,000)

 

 

86,000

 

 

 —

 

 

 —

 

Distribution from subsidiary to parent

 

 

 —

 

 

 —

 

 

(67,000)

 

 

67,000

 

 

 —

 

Other changes

 

 

(5,341)

 

 

 —

 

 

 —

 

 

 —

 

 

(5,341)

 

Net cash (used for) provided by financing activities

 

 

(63,061)

 

 

300,293

 

 

(134,274)

 

 

69,980

 

 

172,938

 

Effect of exchange rate changes on cash and cash equivalents

 

 

 —

 

 

 —

 

 

1,841

 

 

 —

 

 

1,841

 

Net increase (decrease) in cash and cash equivalents

 

 

7,431

 

 

(10,173)

 

 

(60,663)

 

 

 —

 

 

(63,405)

 

Cash and cash equivalents, beginning of period

 

 

1,148

 

 

10,177

 

 

252,768

 

 

 —

 

 

264,093

 

Cash and cash equivalents, end of period

 

$

8,579

 

$

 4

 

$

192,105

 

$

 —

 

$

200,688

 

 

30


 

Table of Contents

Condensed Consolidating Statements Cash Flows

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended March 31, 2016

 

 

    

 

 

    

Nabors

    

Other

    

 

 

    

 

 

 

 

 

Nabors

 

Delaware

 

Subsidiaries

 

 

 

 

 

 

 

 

 

(Parent/

 

(Issuer/

 

(Non-

 

Consolidating

 

 

 

 

 

    

Guarantor)

    

Guarantor)

    

Guarantors)

    

Adjustments

    

Total

 

 

 

(In thousands)

 

Net cash provided by (used for) operating activities

 

$

1,790

 

$

(116,240)

 

$

278,937

 

$

(2,981)

 

$

161,506

 

Cash flows from investing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sales and maturities of investments

 

 

 —

 

 

 —

 

 

41

 

 

 —

 

 

41

 

Proceeds from sales of assets and insurance claims

 

 

 —

 

 

 —

 

 

5,448

 

 

 —

 

 

5,448

 

Capital expenditures

 

 

 —

 

 

 —

 

 

(129,875)

 

 

 —

 

 

(129,875)

 

Change in intercompany balances

 

 

 —

 

 

34,916

 

 

(34,916)

 

 

 —

 

 

 —

 

Other

 

 

 —

 

 

 —

 

 

(4,439)

 

 

 —

 

 

(4,439)

 

Net cash provided by (used for) investing activities

 

 

 —

 

 

34,916

 

 

(163,741)

 

 

 —

 

 

(128,825)

 

Cash flows from financing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Increase (decrease) in cash overdrafts

 

 

 —

 

 

 —

 

 

1,642

 

 

 —

 

 

1,642

 

Reduction in long-term debt

 

 

 —

 

 

 —

 

 

(148,045)

 

 

 —

 

 

(148,045)

 

Dividends to shareholders

 

 

(19,903)

 

 

 —

 

 

 —

 

 

2,981

 

 

(16,922)

 

Proceeds from (payments for) commercial paper, net

 

 

 —

 

 

1,325

 

 

 —

 

 

 —

 

 

1,325

 

Proceeds (issuance) of intercompany debt

 

 

22,000

 

 

 —

 

 

(22,000)

 

 

 —

 

 

 —

 

Proceeds from revolving credit facilities

 

 

 —

 

 

150,000

 

 

 —

 

 

 —

 

 

150,000

 

Reduction in revolving credit facilities

 

 

 —

 

 

(70,000)

 

 

 —

 

 

 —

 

 

(70,000)

 

Repurchase of common shares

 

 

 —

 

 

 —

 

 

(1,687)

 

 

 —

 

 

(1,687)

 

Proceeds from short-term borrowings

 

 

 —

 

 

 —

 

 

(628)

 

 

 —

 

 

(628)

 

Other changes

 

 

(3,190)

 

 

 —

 

 

 —

 

 

 —

 

 

(3,190)

 

Net cash (used for) provided by financing activities

 

 

(1,093)

 

 

81,325

 

 

(170,718)

 

 

2,981

 

 

(87,505)

 

Effect of exchange rate changes on cash and cash equivalents

 

 

 —

 

 

 —

 

 

968

 

 

 —

 

 

968

 

Net increase (decrease) in cash and cash equivalents

 

 

697

 

 

 1

 

 

(54,554)

 

 

 —

 

 

(53,856)

 

Cash and cash equivalents, beginning of period

 

 

873

 

 

10

 

 

253,647

 

 

 —

 

 

254,530

 

Cash and cash equivalents, end of period

 

$

1,570

 

$

11

 

$

199,093

 

$

 —

 

$

200,674

 

 

 

Note 13 Subsequent Events

 

On April 21, 2017, our Board of Directors declared a cash dividend of $0.06 per common share, which will be paid on July 5, 2017 to shareholders of record at the close of business on June 14, 2017.

 

31


 

Table of Contents

ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

We often discuss expectations regarding our future markets, demand for our products and services, and our performance in our annual, quarterly and current reports, press releases, and other written and oral statements. Statements relating to matters that are not historical facts are “forward-looking statements” within the meaning of the safe harbor provisions of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These “forward-looking statements” are based on an analysis of currently available competitive, financial and economic data and our operating plans. They are inherently uncertain and investors should recognize that events and actual results could turn out to be significantly different from our expectations. By way of illustration, when used in this document, words such as “anticipate,” “believe,” “expect,” “plan,” “intend,” “estimate,” “project,” “will,” “should,” “could,” “may,” “predict” and similar expressions are intended to identify forward-looking statements.

 

You should consider the following key factors when evaluating these forward-looking statements:

 

·

fluctuations and volatility in worldwide prices of and demand for oil and natural gas;

 

·

fluctuations in levels of oil and natural gas exploration and development activities;

 

·

fluctuations in the demand for our services;

 

·

competitive and technological changes and other developments in the oil and gas and oilfield services industries;

 

·

our ability to complete, and realize the expected benefits of, strategic transactions, including our recently announced joint venture in Saudi Arabia;

 

·

the existence of operating risks inherent in the oil and gas and oilfield services industries;

 

·

the possibility of changes in tax laws and other laws and regulations;

 

·

the possibility of political or economic instability, civil disturbance, war or acts of terrorism in any of the countries in which we do business; and

 

·

general economic conditions, including the capital and credit markets.

 

The above description of risks and uncertainties is by no means all-inclusive, but highlights certain factors that we believe are important for your consideration. For a more detailed description of risk factors that may affect us or our industry, please refer to Part I, Item 1A. — Risk Factors in our 2016 Annual Report.

 

Management Overview

 

This section is intended to help you understand our results of operations and our financial condition. This information is provided as a supplement to, and should be read in conjunction with, our condensed consolidated financial statements and the accompanying notes thereto.

 

We own and operate the world’s largest land-based drilling rig fleet and are a leading provider of offshore platform and drilling rigs in the United States and multiple international markets. Our business is comprised of our global land-based and offshore drilling rig operations and other rig services, consisting of equipment manufacturing, rig instrumentation and optimization software. We also specialize in wellbore placement solutions and are a leading provider of directional drilling and MWD systems and services. Our business consists of four reportable operating segments: U.S., Canada, International and Rig Services.

 

 

32


 

Table of Contents

Financial Results

 

Operating revenues for the three months ended March 31, 2017 totaled $562.6 million, representing a decrease of $35.0 million, or 6%, compared to the three months ended March 31, 2016. Although we have seen an increase in the number of rigs working in the U.S., spot prices remain under pricing pressure. Internationally, we experienced a decline in the number of rigs working, approximately 19%, which further impacted operating revenue for the quarter.

 

Net loss from continuing operations totaled $147.6 million for the three months ended March 31, 2017 ($0.52 per diluted share) compared to a net loss from continuing operations of $396.6 million ($1.41 per diluted share) for the three months ended March 31, 2016. This improvement was primarily a result of no longer maintaining an equity method investment in CJES, which accounted for $344.3 million of the net loss during the three months ended March 31, 2016 from our share of the net loss of CJES as well as impairment charges associated with the investment. Approximately $64.3 million and $18.6 million of the net loss during the three months ended March 31, 2017 and 2016, respectively, was attributable to our segment adjusted operating income (loss), which is our primary measure of operating performance.  See Segment Results of Operations for further information on the changes to segment adjusted operating income (loss). 

 

General and administrative expenses for the three months ended March 31, 2017 totaled $63.4 million, representing a marginal increase of $1.1 million, or 2% compared to the three months ended March 31, 2016. This is reflective of a slight increase in salaries and compensation.

 

Research and engineering expenses for the three months ended March 31, 2017 totaled $11.8 million, representing an increase of $3.6 million, or 44%, compared to the three months ended March 31, 2016. The increase resulted from an increase in headcount and compensation in combination with increased efforts towards a number of strategic research and engineering projects as the market rebalances and activity begins to accelerate.

 

Depreciation and amortization expense for the three months ended March 31, 2017 was $203.7 million, representing a decrease of $12.1 million, or 6%, compared to the three months ended March 31, 2016. The decrease was primarily due to the impact from retirements and impairments of various rigs and rig equipment in late 2016.

 

In January 2017, Nabors Delaware issued $575 million in aggregate principal amount of 0.75% exchangeable senior unsecured notes due 2024, which are fully and unconditionally guaranteed by Nabors. The net proceeds from the offering of the exchangeable notes were used to prepay the remaining balance of our unsecured term loan originally scheduled to mature in 2020, as well as to pay approximately $40.3 million for the cost of the capped call transactions related to the note offering. The remaining net proceeds from the offering were allocated for general corporate purposes, including the repurchase of approximately $162.5 million aggregate principal amount of our 6.15% senior notes due February 2018.

 

Segment Results of Operations

 

Our business is comprised of our global land-based and offshore drilling rig operations and other rig services, consisting of equipment manufacturing, rig instrumentation and optimization software. We also specialize in wellbore placement solutions and are a leading provider of directional drilling and MWD systems and services. Our business consists of four reportable operating segments: U.S., Canada, International and Rig Services. Our Rig Services segment is comprised of our drilling technology and top drive manufacturing, directional drilling, rig instrumentation and software services.

 

Management evaluates the performance of our operating segments using adjusted operating income (loss), which is our segment performance measure, because it believes that this financial measure reflects our ongoing profitability and performance. In addition, securities analysts and investors use this measure as one of the metrics on which they analyze our performance. Adjusted operating income (loss) is computed by subtracting the sum of direct costs, general and administrative expenses, research and engineering expenses and depreciation and amortization from operating revenues.

 

 

33


 

Table of Contents

The following tables set forth certain information with respect to our reportable segments and rig activity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Three Months Ended

 

 

 

 

 

 

 

 

 

 

March 31,

 

 

 

 

 

 

 

 

 

 

2017

 

2016

 

Increase/(Decrease)

 

 

 

(In thousands, except percentages and rig activity)

U.S.

 

 

 

    

    

 

    

    

 

    

    

    

    

 

Operating revenues

 

 

$

161,934

 

$

148,676

 

$

13,258

 

 9

%

 

Adjusted operating income (loss)

 

 

$

(63,182)

 

$

(47,559)

 

$

(15,623)

 

(33)

%

 

Average rigs working (1)

 

 

 

88.8

 

 

64.9

 

 

23.9

 

37

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Canada

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating revenues

 

 

$

27,808

 

$

17,494

 

$

10,314

 

59

%

 

Adjusted operating income (loss)

 

 

$

(4,011)

 

$

(7,278)

 

$

3,267

 

45

%

 

Average rigs working (1)

 

 

 

22.0

 

 

12.5

 

 

9.5

 

76

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

International

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating revenues

 

 

$

338,223

 

$

401,055

 

$

(62,832)

 

(16)

%

 

Adjusted operating income (loss)

 

 

$

11,974

 

$

46,872

 

$

(34,898)

 

(74)

%

 

Average rigs working (1)

 

 

 

89.8

 

 

110.5

 

 

(20.7)

 

(19)

%

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rig Services

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Operating revenues

 

 

$

71,441

 

$

53,853

 

$

17,588

 

33

%

 

Adjusted operating income (loss)

 

 

$

(9,109)

 

$

(10,644)

 

$

1,535

 

14

%

 


(1)

Represents a measure of the number of equivalent rigs operating during a given period. For example, one rig operating 182.5 days during a 365-day period represents 0.5 average rigs working. International average rigs working includes our equivalent percentage ownership of rigs owned by unconsolidated affiliates.

 

U.S.

 

Our U.S. Drilling segment includes land drilling activities in the lower 48 states, Alaska and offshore operations in the Gulf of Mexico.

 

Operating revenues increased slightly during the three months ended March 31, 2017 compared to the corresponding 2016 period primarily due to a 37% increase in the average number of rigs working during the first quarter of 2017 compared to 2016. Although we experienced an increase in activity, spot rates remain under pricing pressure which mitigated the impact of the rig count increase. Additionally, we incurred incremental costs associated with the conversion of rigs stacked on rate to operating, including reactivation and relocation costs.

 

Canada

 

Operating results increased during the three months ended March 31, 2017 compared to the corresponding 2016 period due to an increase in drilling rig activity, as evidenced by a 76% increase in average number of rigs working during the first quarter of 2017 compared to 2016.

 

International

 

Operating results decreased during the three months ended March 31, 2017 compared to the corresponding 2016 period primarily due to the loss of revenue and increased costs related to downtime incurred to perform structural work on many of our rigs in our largest international market. Additionally, results were negatively impacted by a 19% reduction in average number of rigs working during the first quarter of 2017 compared to 2016. Partially offsetting these declines were increased drilling activity in Colombia and Kuwait.

 

Rig Services

 

Operating results increased during the three months ended March 31, 2017 compared to the corresponding 2016 period primarily due to an increase in drilling activity and demand for our products and services.

 

 

34


 

Table of Contents

OTHER FINANCIAL INFORMATION

 

Earnings (losses) from unconsolidated affiliates

 

Earnings (losses) from unconsolidated affiliates represents our share of the net income (loss), as adjusted for our basis differences, of our equity method investments. We previously accounted for our investment in CJES on a one-quarter lag through June 30, 2016. On July 20, 2016, CJES voluntarily filed for protection under Chapter 11 of the Bankruptcy Code. As a result, beginning with the third quarter of 2016, we ceased accounting for our investment under the equity method of accounting. The three months ended March 31, 2016 includes our share of the net income (loss) of CJES from October 1, 2015 through December 31, 2015, resulting in a loss of $167.1 million, inclusive of charges of $131.2 million representing our share of CJES’s fixed asset impairment charges for the period.

 

Interest expense

 

Interest expense for the three months ended March 31, 2017 was $56.5 million, representing an increase of $10.8 million, or 24%, compared to the three months ended March 31, 2016. The increase was primarily due to the additional interest expense related to the issuance of $600 million in aggregate principal amount of 5.5% senior notes due 2023 during December 2016 as well as the issuance of $575 million in aggregate principal amount of 0.75% senior exchangeable notes due 2024 during January 2017.

 

Other, net

 

Other, net for the three months ended March 31, 2017 was $13.5 million of expense, which included a loss on debt buy-backs of $8.6 million, net losses on sales and disposals of assets of approximately $2.9 million, increases to our litigation reserves of $0.8 million and foreign currency exchange losses of $0.9 million.

 

Other, net for the three months ended March 31, 2016 was $182.4 million of expense, of which the majority, or $177.2 million, is attributable to impairments associated with our CJES holdings. During the quarter, we determined the carrying value of our investment in CJES was other than temporarily impaired, which resulted in an impairment charge of $153.4 million to reduce our carrying value to its estimated fair value determined principally based on the average price over a specified period. The balance of the impairment was attributable to our reserve of certain other amounts associated with our CJES holdings, including affiliate receivables. Further contributing to the expense for the quarter were net losses on sales and disposals of assets of approximately $5.3 million and foreign currency exchange losses of approximately $4.2 million, partially offset by a net gain on debt buybacks of approximately $6.0 million.

 

Income tax rate

 

Our worldwide effective tax rate during the three months ended March 31, 2017 was 14.8% compared to 11.6% during the three months ended March 31, 2016. The change was attributable to the effect of the geographic mix of pre-tax earnings (losses), including lower losses in low and high tax jurisdictions.  The tax effect of our share of the net loss of CJES during the three months ended March 31, 2016 also contributed to the change.

 

Discontinued Operations

 

Our discontinued operations during the three months ended March 31, 2017 and 2016 consisted of our historical wholly owned oil and gas businesses. Income (loss) from discontinued operations during the three months ended March 31, 2017 was a loss of $0.4 million compared to $0.9 million during the three months ended March 31, 2016.

 

Liquidity and Capital Resources

 

Financial Condition and Sources of Liquidity

 

Our primary sources of liquidity are cash and investments, availability under our revolving credit facility and commercial paper program, and cash generated from operations. As of March 31, 2017, we had cash and short-term investments of $228.6 million and working capital of $351.0 million. As of December 31, 2016, we had cash and short-term investments of $295.2 million and working capital of $333.9 million. At March 31, 2017, we had no borrowings outstanding under our $2.25 billion revolving credit facility and commercial paper program.

35


 

Table of Contents

 

In December 2016, Nabors Delaware completed an offering of $600 million aggregate principal amount of 5.50% senior unsecured notes due January 15, 2023, which are fully and unconditionally guaranteed by us. The proceeds from this offering were used to prepay the $162.5 million due in 2018 under our unsecured term loan and all amounts then outstanding under our $2.25 billion revolving credit facility and commercial paper program, or $392.1 million. The remaining proceeds were allocated for general corporate purposes, including to repay and repurchase debt. 

 

In January 2017, Nabors Delaware issued $575 million in aggregate principal amount of its 0.75% exchangeable senior unsecured notes due 2024, which are fully and unconditionally guaranteed by Nabors. The net proceeds from the offering of the exchangeable notes were used to prepay the remaining balance of our unsecured term loan originally scheduled to mature in 2020, as well as to pay approximately $40.3 million for the cost of the capped call transactions. The remaining net proceeds from the offering were allocated for general corporate purposes, including the repurchase of approximately $162.5 million aggregate principal amount of our 6.15% senior notes due February 2018.

 

We had 15 letter-of-credit facilities with various banks as of March 31, 2017. Availability under these facilities as of March 31, 2017 was as follows:

 

 

 

 

 

 

 

    

March 31,

 

 

 

2017

 

 

 

(In thousands)

 

Credit available

 

$

758,906

 

Less: Letters of credit outstanding, inclusive of financial and performance guarantees

 

 

126,623

 

Remaining availability

 

$

632,283

 

 

Our ability to access capital markets or to otherwise obtain sufficient financing is enhanced by our senior unsecured debt ratings as provided by the major credit rating agencies in the United States and our historical ability to access these markets as needed. While there can be no assurances that we will be able to access these markets in the future, we believe that we will be able to access capital markets or otherwise obtain financing in order to satisfy any payment obligation that might arise upon exchange or purchase of our notes and that any cash payment due, in addition to our other cash obligations, would not ultimately have a material adverse impact on our liquidity or financial position. A ratings downgrade could adversely impact our ability to access debt markets in the future, increase the cost of future debt, and potentially require us to post letters of credit for certain obligations.

 

Our gross debt to capital ratio was 0.54:1 as of March 31, 2017 and 0.52:1 as of December 31, 2016. Our net debt to capital ratio was 0.52:1 as of March 31, 2017 and 0.50:1 as of December 31, 2016. The gross debt to capital ratio is calculated by dividing (x) total debt by (y) total capital. Total capital is defined as total debt plus shareholders’ equity. Net debt is defined as total debt minus the sum of cash and cash equivalents and short-term investments. Availability under the revolving credit facility is subject to a covenant not to exceed a net debt to capital ratio of 0.60:1. Neither the gross debt to capital ratio nor the net debt to capital ratio is a measure of operating performance or liquidity defined by GAAP and may not be comparable to similarly titled measures presented by other companies.

 

Our interest coverage ratio was 2.9:1 as of March 31, 2017 and 3.4:1 as of December 31, 2016. The interest coverage ratio is a trailing 12-month quotient of the sum of (x) operating revenues, direct costs, general and administrative expenses and research and engineering expenses divided by (y) interest expense. The interest coverage ratio is not a measure of operating performance or liquidity defined by GAAP and may not be comparable to similarly titled measures presented by other companies.

 

Our current cash and investments, projected cash flows from operations and our revolving credit facility are expected to adequately finance our purchase commitments, capital expenditures, acquisitions, scheduled debt service requirements, and all other expected cash requirements for the next 12 months.

 

Future Cash Requirements

 

We expect capital expenditures over the next 12 months to be less than $0.7 billion. Purchase commitments outstanding at March 31, 2017 totaled approximately $219.7 million, primarily for rig-related enhancements, new rig equipment, as well as sustaining capital expenditures, other operating expenses and purchases of inventory. We can reduce planned expenditures if necessary or increase them if market conditions and new business opportunities warrant it. The level of our outstanding purchase commitments and our expected level of capital expenditures over the next 12

36


 

Table of Contents

months represent a number of capital programs that are currently underway or planned. We believe these programs will result in the enhancement of a significant number of rigs in our existing Lower 48 fleet. When the programs are completed, we expect to have a larger fleet of high-specification land rigs deployed in the Lower 48. We believe the capabilities of these high-specification rigs will meet or exceed requirements from customers.

 

We have historically completed a number of acquisitions and will continue to evaluate opportunities to acquire assets or businesses to enhance our operations. Several of our previous acquisitions were funded through issuances of debt or our common shares. Future acquisitions may be funded using existing cash or by issuing debt or additional shares of our stock. Such capital expenditures and acquisitions will depend on our view of market conditions and other factors.

 

See our discussion of guarantees issued by Nabors that could have a potential impact on our financial position, results of operations or cash flows in future periods included below under “Off-Balance Sheet Arrangements (Including Guarantees)”.

 

There have been no material changes to the contractual cash obligations table that was included in our 2016 Annual Report.

 

On August 25, 2015, our Board of Directors authorized a share repurchase program (the “program”) under which we may repurchase, from time to time, up to $400 million of our common shares by various means, including in the open market or in privately negotiated transactions. This authorization does not have an expiration date and does not obligate us to repurchase any of our common shares. Through March 31, 2017, we repurchased 10.9 million of our common shares for an aggregate purchase price of approximately $101.3 million under this program. As of March 31, 2017, the remaining amount authorized under the program that may be used to purchase shares was $298.7 million. The repurchased shares, which are held by our subsidiaries, are registered and tradable subject to applicable securities law limitations and have the same voting and other rights as other outstanding shares. As of March 31, 2017, our subsidiaries held 49.7 million of our common shares.

 

We may from time to time seek to retire or purchase our outstanding debt through cash purchases and/or exchanges for equity securities, both in open-market purchases, privately negotiated transactions or otherwise. Such repurchases or exchanges, if any, will depend on prevailing market conditions, our liquidity requirements, contractual restrictions and other factors and may involve material amounts.

 

Cash Flows

 

Our cash flows depend, to a large degree, on the level of spending by oil and gas companies for exploration, development and production activities. Sustained decreases in the price of oil or natural gas could have a material impact on these activities, and could also materially affect our cash flows. Certain sources and uses of cash, such as the level of discretionary capital expenditures or acquisitions, purchases and sales of investments, loans, issuances and repurchases of debt and of our common shares are within our control and are adjusted as necessary based on market conditions. We discuss our cash flows for the three months ended March 31, 2017 and 2016 below.

 

Operating Activities .   Net cash used for operating activities totaled $58.0 million during the three months ended March 31, 2017, compared to net cash provided of $161.5 million during the corresponding 2016 period. Operating cash flows are our primary source of capital and liquidity. The decrease in our operating cash flows was due in part to the decrease in adjusted operating income as a direct result of reductions in the level of drilling activity in our International drilling segment. Additionally, changes in working capital items such as collection of receivables, other deferred revenue arrangements and payments of operating payables are significant factors affecting operating cash flows. Bonuses and semi-annual interest payments are paid out during the first quarter, which is reflected in the changes in working capital items. Changes in working capital items used $93.9 million and provided $53.2 million in cash during the three months ended March 31, 2017 and 2016, respectively.

 

Investing Activities .   Net cash used for investing activities totaled $180.2 million during the three months ended March 31, 2017 compared to $128.8 million during the corresponding 2016 period. Our primary use of cash for investing activities is for capital expenditures related to rig-related enhancements, new construction and equipment, as well as sustaining capital expenditures. During the three months ended March 31, 2017 and 2016, we used cash for capital expenditures totaling $183.4 million and $129.9 million, respectively.

 

37


 

Table of Contents

Financing Activities .   Net cash provided by financing activities totaled $172.9 million during the three months ended March 31, 2017 compared to net cash used of $87.5 million during the corresponding 2016 period. During the three months ended March 31, 2017 we received net proceeds in connection with the issuance of our exchangeable senior unsecured notes of $520.5 million. This was partially offset by the repayment of the remaining balance of our unsecured term loan of $162.5 million and the repurchase of $170.5 million in long-term debt due in 2018. Additionally, we paid dividends of $17.1 million and had proceeds of $8.3 million due to stock options exercised during the three months ended March 31, 2017. During the three months ended March 31, 2016, we repurchased $148.0 million in long-term debt, partially offset by amounts borrowed under our revolving credit facility, net, of $80.0 million.

 

Other Matters

 

Recent Accounting Pronouncements

 

See Note 2 — Summary of Significant Accounting Policies.

 

Off-Balance Sheet Arrangements (Including Guarantees)

 

We are a party to transactions, agreements or other contractual arrangements defined as “off-balance sheet arrangements” that could have a material future effect on our financial position, results of operations, liquidity and capital resources. The most significant of these off-balance sheet arrangements involve agreements and obligations under which we provide financial or performance assurance to third parties. Certain of these agreements serve as guarantees, including standby letters of credit issued on behalf of insurance carriers in conjunction with our workers’ compensation insurance program and other financial surety instruments such as bonds. In addition, we have provided indemnifications, which serve as guarantees, to some third parties. These guarantees include indemnification provided by us to our share transfer agent and our insurance carriers. We are not able to estimate the potential future maximum payments that might be due under our indemnification guarantees. Management believes the likelihood that we would be required to perform or otherwise incur any material losses associated with any of these guarantees is remote.

 

The following table summarizes the total maximum amount of financial guarantees issued by Nabors:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Maximum Amount

 

 

    

2017

    

2018

    

2019

    

Thereafter

    

Total

 

 

 

(In thousands)

 

Financial standby letters of credit and other financial surety instruments

 

$

276,391

 

518

 

11,914

 

 —

 

$

288,823

 

 

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

We may be exposed to market risks arising from the use of financial instruments in the ordinary course of business as discussed in our 2016 Annual Report.

 

ITEM 4. CONTROLS AND PROCEDURES

 

We maintain a set of disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d‑15(e) under the Exchange Act) designed to provide reasonable assurance that information required to be disclosed in our reports filed under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to management as appropriate to allow timely decisions regarding required disclosure. We have investments in certain unconsolidated entities that we do not control or manage. Because we do not control or manage these entities, our disclosure controls and procedures with respect to these entities are necessarily more limited than those we maintain with respect to our consolidated subsidiaries.

 

The Company’s management, with the participation of the Chief Executive Officer and the Chief Financial Officer, has evaluated the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by this report. Based on this evaluation, the Chief Executive Officer and the Chief Financial Officer have concluded that the Company’s disclosure controls and procedures were effective as of the end of the period covered by this report

 

38


 

Table of Contents

There were no changes in our internal control over financial reporting during the quarter ended March 31, 2017 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

39


 

Table of Contents

PART II OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

 

Nabors and its subsidiaries are defendants or otherwise involved in a number of lawsuits in the ordinary course of business. We estimate the range of our liability related to pending litigation when we believe the amount and range of loss can be estimated. We record our best estimate of a loss when the loss is considered probable. When a liability is probable and there is a range of estimated loss with no best estimate in the range, we record the minimum estimated liability related to the lawsuits or claims. As additional information becomes available, we assess the potential liability related to our pending litigation and claims and revise our estimates. Due to uncertainties related to the resolution of lawsuits and claims, the ultimate outcome may differ from our estimates. For matters where an unfavorable outcome is reasonably possible and significant, we disclose the nature of the matter and a range of potential exposure, unless an estimate cannot be made at the time of disclosure. In the opinion of management and based on liability accruals provided, our ultimate exposure with respect to these pending lawsuits and claims is not expected to have a material adverse effect on our condensed consolidated financial position or cash flows, although they could have a material adverse effect on our results of operations for a particular reporting period. See Note 7 — Commitments and Contingencies for a description of such proceedings.

 

ITEM 1A. RISK FACTORS

 

In addition to the information set forth elsewhere in this report, the risk factors set forth in Item 1A. Risk Factors in our 2016 Annual Report should be carefully considered when evaluating us. These risks are not the only ones we face. Additional risks not presently known to us or that we currently deem immaterial may also impair our business.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

We withheld the following shares of our common stock to satisfy tax withholding obligations in connection with grants of stock awards during the three months ended March 31, 2017 from the distributions described below. These shares may be deemed to be “issuer purchases” of shares that are required to be disclosed pursuant to this Item, but were not purchased as part of a publicly announced program to purchase common shares:

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

    

    

 

    

    

    

Approximated

 

 

 

 

 

 

 

 

Total Number

 

Dollar Value of

 

 

 

 

 

 

 

 

of Shares

 

Shares that May

 

 

 

Total

 

Average

 

Purchased as

 

Yet Be

 

 

 

Number of

 

Price

 

Part of Publicly

 

Purchased

 

Period

 

Shares

 

Paid per

 

Announced

 

Under the

 

(In thousands, except per share amounts)

    

Repurchased

    

Share (1)

    

Program

    

Program (2)

 

January 1 - January 31

 

41

 

$

17.45

 

 —

 

298,716

 

February 1 - February 28

 

196

 

$

15.31

 

 —

 

298,716

 

March 1 - March 31

 

119

 

$

13.66

 

 —

 

298,716

 


(1)

Shares were withheld from employees and directors to satisfy certain tax withholding obligations due in connection with grants of shares under our 2003 Employee Stock Plan, the 2013 Stock Plan and the 2016 Stock Plan. Each of the 2016 Stock Plan, the 2013 Stock Plan, the 2003 Employee Stock Plan and the 1999 Stock Option Plan for Non-Employee Directors provide for the withholding of shares to satisfy tax obligations, but do not specify a maximum number of shares that can be withheld for this purpose. These shares were not purchased as part of a publicly announced program to purchase common shares.

 

(2)

In August 2015, our Board of Directors authorized a share repurchase program under which we may repurchase up to $400 million of our common shares in the open market or in privately negotiated transactions. Through March 31, 2017, we repurchased 10.9 million of our common shares for an aggregate purchase price of approximately $101.3 million under this program. As of March 31, 2017, we had $298.7 million that remained authorized under the program that may be used to repurchase shares. The repurchased shares are held by our subsidiaries are registered and tradable subject to applicable securities law limitations and have the same voting, dividend and other rights as other outstanding shares. As of March 31, 2017, our subsidiaries held 49.7 million of our common shares.

 

40


 

Table of Contents

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

 

None.

 

ITEM 4. MINE SAFETY DISCLOSURES

 

Not applicable.

 

ITEM 5. OTHER INFORMATION

 

None.

41


 

Table of Contents

ITEM 6. EXHIBITS

 

 

 

 

Exhibit No.

    

Description

4.1

 

Indenture, dated as of January 13, 2017, by and among Nabors Industries, Inc., as issuer, Nabors Industries Ltd., as guarantor, Citibank, N.A., as securities administrator and Wilmington Trust, National Association, as trustee.*

10.1(a)(+)

 

Nabors Industries Ltd. 2016 Stock Plan (incorporated by reference to Exhibit 99.1 to our Form S-8 (File No. 333-212781) filed with the SEC on July 29, 2016).

10.1(b)(+)

 

Form of Stock Option Agreement – Others, pursuant to the 2016 Stock Plan.*

10.1(c)(+)

 

Form of Restricted Stock Agreement – Others, pursuant to the 2016 Stock Plan.*

10.1(d)(+)

 

Form of Nabors Industries Ltd. TSR Stock Grant Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan.*

10.1(e)(+)

 

Form of Nabors Corporate Services, Inc. TSR Stock Grant Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan*

10.1(f)(+)

 

Form of Nabors Industries Ltd. TSR Stock Grant Agreement – William Restrepo, pursuant to the 2016 Stock Plan.*

10.1(g)(+)

 

Form of Nabors Corporate Services, Inc. TSR Grant Agreement – William Restrepo, pursuant to the 2016 Stock Plan*

10.1(h)(+)

 

Form of Nabors Industries Ltd. Restricted Stock Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan.*

10.1(i)(+)

 

Form of Nabors Corporate Services, Inc. Restricted Stock Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan.*

10.1(j)(+)

 

Form of Nabors Industries Ltd. Restricted Stock Agreement – William Restrepo, pursuant to the 2016 Stock Plan.*

10.1(k)(+)

 

Form of Nabors Corporate Services, Inc. Restricted Stock Agreement – William Restrepo, pursuant to the 2016 Stock Plan.*

10.2(+)

 

Form of Stock Option Agreement to the Amended and Restated 1999 Stock Option Plan for Non-Employee Directors.*

10.3(a)(+)

 

Nabors Industries, Inc. Executive Deferred Compensation Plan (as Amended and Restated Effective as of April 1, 2017).*

10.3(b)(+)

 

Form of Deferred Bonus Agreement under the Nabors Industries, Inc. Executive Deferred Compensation Plan.*

10.4

 

Nabors Industries, Inc. Deferred Compensation Plan (as Amended and Restated Effective as of January 1, 2017).*

31.1

 

Rule 13a-14(a)/15d-14(a) Certification of Anthony G. Petrello, Chairman, President and Chief Executive Officer*

31.2

 

Rule 13a-14(a)/15d-14(a) Certification of William Restrepo, Chief Financial Officer*

32.1

 

Certifications required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350), executed by Anthony G. Petrello, Chairman, President and Chief Executive Officer and William Restrepo, Chief Financial Officer.*

101.INS

 

XBRL Instance Document*

101.SCH

 

XBRL Schema Document*

101.CAL

 

XBRL Calculation Linkbase Document*

101.LAB

 

XBRL Label Linkbase Document*

101.PRE

 

XBRL Presentation Linkbase Document*

101.DEF

 

XBRL Definition Linkbase Document*

 

 

 


* Filed herewith.

42


 

Table of Contents

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

 

 

 

NABORS INDUSTRIES LTD.

 

 

 

By:

/s/ ANTHONY G. PETRELLO

 

 

Anthony G. Petrello

 

 

Chairman, President and

 

 

Chief Executive Officer

 

 

(Principal Executive Officer)

 

 

 

 

By:

/s/ WILLIAM RESTREPO

 

 

William Restrepo

 

 

Chief Financial Officer

(Principal Financial Officer and Accounting Officer)

 

 

 

 

Date:

April 28, 2017

 

 

43


 

Table of Contents

 

 

 

 

Exhibit No.

    

Description

4.1

 

Indenture, dated as of January 13, 2017, by and among Nabors Industries, Inc., as issuer, Nabors Industries Ltd., as guarantor, Citibank, N.A., as securities administrator and Wilmington Trust, National Association, as trustee.*

10.1(a)(+)

 

Nabors Industries Ltd. 2016 Stock Plan (incorporated by reference to Exhibit 99.1 to our Form S-8 (File No. 333-212781) filed with the SEC on July 29, 2016).

10.1(b)(+)

 

Form of Stock Option Agreement – Others, pursuant to the 2016 Stock Plan.*

10.1(c)(+)

 

Form of Restricted Stock Agreement – Others, pursuant to the 2016 Stock Plan.*

10.1(d)(+)

 

Form of Nabors Industries Ltd. TSR Stock Grant Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan.*

10.1(e)(+)

 

Form of Nabors Corporate Services, Inc. TSR Stock Grant Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan*

10.1(f)(+)

 

Form of Nabors Industries Ltd. TSR Stock Grant Agreement – William Restrepo, pursuant to the 2016 Stock Plan.*

10.1(g)(+)

 

Form of Nabors Corporate Services, Inc. TSR Grant Agreement – William Restrepo, pursuant to the 2016 Stock Plan*

10.1(h)(+)

 

Form of Nabors Industries Ltd. Restricted Stock Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan.*

10.1(i)(+)

 

Form of Nabors Corporate Services, Inc. Restricted Stock Agreement – Anthony G. Petrello, pursuant to the 2016 Stock Plan.*

10.1(j)(+)

 

Form of Nabors Industries Ltd. Restricted Stock Agreement – William Restrepo, pursuant to the 2016 Stock Plan.*

10.1(k)(+)

 

Form of Nabors Corporate Services, Inc. Restricted Stock Agreement – William Restrepo, pursuant to the 2016 Stock Plan.*

10.2(+)

 

Form of Stock Option Agreement to the Amended and Restated 1999 Stock Option Plan for Non-Employee Directors.*

10.3(a)(+)

 

Nabors Industries, Inc. Executive Deferred Compensation Plan (as Amended and Restated Effective as of April 1, 2017).*

10.3(b)(+)

 

Form of Deferred Bonus Agreement under the Nabors Industries, Inc. Executive Deferred Compensation Plan.*

10.4

 

Nabors Industries, Inc. Deferred Compensation Plan (as Amended and Restated Effective as of January 1, 2017).*

31.1

 

Rule 13a-14(a)/15d-14(a) Certification of Anthony G. Petrello, Chairman, President and Chief Executive Officer*

31.2

 

Rule 13a-14(a)/15d-14(a) Certification of William Restrepo, Chief Financial Officer*

32.1

 

Certifications required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350), executed by Anthony G. Petrello, Chairman, President and Chief Executive Officer and William Restrepo, Chief Financial Officer.*

101.INS

 

XBRL Instance Document*

101.SCH

 

XBRL Schema Document*

101.CAL

 

XBRL Calculation Linkbase Document*

101.LAB

 

XBRL Label Linkbase Document*

101.PRE

 

XBRL Presentation Linkbase Document*

101.DEF

 

XBRL Definition Linkbase Document*


* Filed herewith.

(+) Management contract or compensatory plan or arrangement.

 

44


EXECUTION VERSION

Exhibit 4.1

 

NABORS INDUSTRIES, INC.,

as Issuer

NABORS INDUSTRIES LTD.,

as Guarantor

$575,000,000

0.75% SENIOR EXCHANGEABLE

NOTES DUE JANUARY 15, 2024

________________

INDENTURE

Dated as of January 13, 2017

______________________

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Trustee

CITIBANK, N.A.,

as Securities Administrator

 

 

 


 

Table of Contents

 

 

 

Page

Article 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

1

 

 

Section 1.01.

Definitions.

1

 

 

 

ARTICLE 2

 

THE NOTES

 

13

 

 

 

Section 2.01.

Designation, Amount and Issuance of Notes.

13

Section 2.02.

Form of the Notes.

13

Section 2.03.

Date and Denomination of Notes; Payment at Maturity; Payment of Interest.

14

Section 2.04.

Execution and Authentication.

15

Section 2.05.

Registrar and Paying Agent.

16

Section 2.06.

Paying Agent to Hold Money in Trust.

17

Section 2.07.

Holder Lists.

17

Section 2.08.

Exchange and Registration of Transfer of Notes; Restrictions on Transfer.

17

Section 2.09.

Replacement Notes.

22

Section 2.10.

Outstanding Notes.

23

Section 2.11.

Temporary Notes.

23

Section 2.12.

Repurchase and Cancellation.

24

Section 2.13.

Defaulted Interest.

24

Section 2.14.

CUSIP and ISIN Numbers.

25

 

 

ARTICLE 3

 

REPURCHASE OF NOTES

25

 

 

Section 3.01.

Repurchase at Option of Holders Upon a Fundamental Change.

25

Section 3.02.

Withdrawal of Fundamental Change Repurchase Notice.

29

Section 3.03.

Deposit of Fundamental Change Repurchase Price.

29

Section 3.04.

Notes Repurchased in Part.

29

Section 3.05.

Covenant to Comply with Securities Laws Upon Repurchase of Notes.

30

 

 

ARTICLE 4

 

COVENANTS

30

 

 

Section 4.01.

Payment of Notes.

30

Section 4.02.

Maintenance of Office or Agency.

30

Section 4.03.

Reports; Rule 144A Information.

31

Section 4.04.

Existence.

32

Section 4.05.

Compliance Certificate.

32

Section 4.06.

Notification of Rule 144 Additional Interest or Reporting Additional Interest.

32

Section 4.07.

Payment of Additional Amounts.

32

 

i


 

 

Section 4.08.

Waiver of Stay, Extension or Usury Laws.

35

Section 4.09.

Rule 144 Additional Interest.

35

 

 

ARTICLE 5

 

SUCCESSOR COMPANY

36

 

 

Section 5.01.

Consolidation, Merger and Sale of Assets of the Issuer.

36

Section 5.02.

Consolidation, Merger and Sale of Assets of the Guarantor.

37

Section 5.03.

Successor to Be Substituted.

37

Section 5.04.

Opinion of Counsel and Officer’s Certificate to Be Given to the Trustee.

37

 

 

ARTICLE 6

 

DEFAULTS AND REMEDIES

38

 

 

Section 6.01.

Events of Default.

38

Section 6.02.

Acceleration.

39

Section 6.03.

Other Remedies.

41

Section 6.04.

Waiver of Past Defaults.

41

Section 6.05.

Control by Majority.

41

Section 6.06.

Limitation on Suits.

42

Section 6.07.

Rights of Holders to Receive Payment.

42

Section 6.08.

Collection Suit by Trustee.

42

Section 6.09.

Trustee May File Proofs of Claim.

43

Section 6.10.

Priorities.

43

Section 6.11.

Undertaking for Costs.

43

Section 6.12.

Failure to Comply with Reporting Covenant.

44

 

 

ARTICLE 7

 

TRUSTEE

 

44

 

 

 

Section 7.01.

Duties of Trustee.

44

Section 7.02.

Rights of Trustee.

46

Section 7.03.

Individual Rights of Trustee.

47

Section 7.04.

Trustee’s Disclaimer.

47

Section 7.05.

Notice of Defaults.

48

Section 7.06.

[Reserved.]

48

Section 7.07.

Compensation and Indemnity.

48

Section 7.08.

[Reserved.]

49

Section 7.09.

Replacement of Trustee.

49

Section 7.10.

Successor Trustee by Merger.

50

Section 7.11.

Eligibility; Disqualification.

50

 

 

ARTICLE 8

 

DISCHARGE OF INDENTURE

50

 

 

Section 8.01.

Discharge of Liability on Notes.

50

Section 8.02.

Application of Trust Money.

51

Section 8.03.

Repayment to Issuer.

51

Section 8.04.

Reinstatement.

51

ii


 

 

ARTICLE 9

 

AMENDMENTS

52

 

 

Section 9.01.

Without Consent of Holders.

52

Section 9.02.

With Consent of Holders.

53

Section 9.03.

[Reserved.]

55

Section 9.04.

Revocation and Effect of Consents and Waivers.

55

Section 9.05.

Notation on or Exchange of Notes.

55

Section 9.06.

Trustee to Sign Amendments.

56

 

 

ARTICLE 10

 

EXCHANGE OF NOTES

56

 

 

Section 10.01.

Right to Exchange.

56

Section 10.02.

Exchange Procedures; Settlement Upon Exchange; No Adjustment for Interest or Dividends; Cash Payments in Lieu of Fractional Shares.

59

Section 10.03.

Adjustment to Exchange Rate Upon a Make-Whole Fundamental Change.

63

Section 10.04.

Adjustment of Exchange Rate.

65

Section 10.05.

Effect of Reclassifications, Business Combinations, Asset Sales and Corporate Events.

75

Section 10.06.

Certain Covenants.

76

Section 10.07.

Trustee Disclaimer.

76

Section 10.08.

Surrender to Financial Institution in Lieu of Exchange.

77

 

 

ARTICLE 11

 

GUARANTEE

77

 

 

Section 11.01.

The Guarantee.

77

Section 11.02.

Guarantee Unconditional.

78

Section 11.03.

Discharge; Reinstatement.

78

Section 11.04.

Waiver by the Guarantor.

79

Section 11.05.

Subrogation and Contribution.

79

Section 11.06.

Stay of Acceleration.

79

Section 11.07.

Execution and Delivery of Guarantee.

79

Section 11.08.

Release of Guarantee.

79

 

 

 

ARTICLE 12

 

REDEMPTION UPON A CHANGE IN TAX LAW

80

 

 

Section 12.01.

Redemption Upon a Change in Tax Law.

80

Section 12.02.

Notice of Redemption; Selection of Notes.

80

Section 12.03.

Payment of Notes Called for Redemption.

82

Section 12.04.

Restrictions on Redemption.

82

 

 

 

ARTICLE 13

 

MISCELLANEOUS

82

 

 

Section 13.01.

[Reserved.]

82

Section 13.02.

Notices.

82

Section 13.03.

[Reserved.]

84

Section 13.04.

Certificate and Opinion as to Conditions Precedent.

84

 

iii


 

 

Section 13.05.

Statements Required in Certificate or Opinion.

84

Section 13.06.

When Notes Disregarded.

85

Section 13.07.

Rules by Trustee, Paying Agent and Registrar.

85

Section 13.08.

Set-Off of Withholding Taxes.

85

Section 13.09.

GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL.

85

Section 13.10.

No Personal Liability of Directors, Officers, Employees and Stockholders.

86

Section 13.11.

No Stockholder Rights.

86

Section 13.12.

Successors.

86

Section 13.13.

Multiple Originals.

86

Section 13.14.

Table of Contents; Headings.

86

Section 13.15.

Severability Clause.

87

Section 13.16.

Calculations.

87

Section 13.17.

No Adverse Interpretations of Other Agreements.

87

Section 13.18.

USA PATRIOT Act.

87

 

 

 

 

 

 

Exhibit A - Form of Note

 

Exhibit B - Restricted Common Shares Legend

 

 

 

iv


 

INDENTURE, dated as of January 13, 2017, among Nabors Industries, Inc., a Delaware corporation (the “ Issuer ”), Nabors Industries Ltd., a Bermuda exempted company (the “ Guarantor ” and, together with any other Person that Guarantees the Notes (as defined below) from time to time, the “ Guarantors, ”), Wilmington Trust, National Association, a national banking association, as trustee (the “ Trustee ”) and Citibank, N.A., as securities administrator (the “ Securities Administrator ”).

W I T N E S S E T H:

WHEREAS, for its lawful corporate purposes, (i) the Issuer has duly authorized the issuance of its 0.75% Exchangeable Senior Notes due January 15, 2024 (the “ Notes ”), initially in an aggregate principal amount not to exceed $575,000,000, and (ii) the Guarantor has duly authorized the issuance of the Guarantee (as defined below) of the Notes, respectively, having the terms, tenor, amount and other provisions hereinafter set forth, and, to provide therefor, have duly authorized the execution and delivery of this Indenture; and

WHEREAS, the Form of Note, the certificate of authentication to be borne by each Note, the Form of Exchange Notice, the Form of Fundamental Change Repurchase Notice and the Form of Assignment and Transfer to be borne by the Notes are to be substantially in the forms hereinafter provided; and

WHEREAS, all things necessary to make the Notes, when duly executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid obligations of the Issuer, the Guarantee, when duly executed by the Guarantor and delivered hereunder and to make this Indenture a valid and binding agreement of the Issuer and the Guarantor, in each case in accordance with the terms of the Notes, the Guarantee and this Indenture, have been done and performed, and the execution of this Indenture and the issue hereunder of the Notes and the Guarantee have in all respects been duly authorized.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Notes and the Guarantee by the holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all holders of the Notes and the Guarantee, as follows:

 

 

 


 

 

Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE 

Section 1.01.      Definitions .

The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. The words “herein”, “hereof”, “hereunder” and words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other Subdivision. The word “or” is not exclusive and the word “including” means including without limitation. The terms defined in this Article 1 1.01 include the plural as well as the singular.

Additional Amounts ” has the meaning specified in Section 4.07(a).

Additional Interest ” means Rule 144 Additional Interest and Reporting Additional Interest. Unless the context otherwise requires, all references to interest include Additional Interest, if any, payable pursuant hereto.

Additional Notes ” means any additional Notes issued pursuant to Section 2.01.

Additional Shares ” has the meaning specified in Section 10.03.

Affiliate ” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing; provided that for purposes of Section 4.09, Section 2.08(e) and Section 2.123, the term “Affiliate” shall instead refer to an affiliate within the meaning of Rule 144 under the Securities Act.

Agent Members ” has the meaning specified in Section 2.08(b)(vi).

Authentication Order ” means a written order of the Issuer signed by any one Officer to authenticate Notes that may be validly issued under this Indenture.

Averaging Period ” has the meaning specified in Section 10.04(e).

Bankruptcy Law ” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors, or the law of any other jurisdiction relating to bankruptcy, insolvency, winding up, liquidation, reorganization or the relief of debtors.

 

 

 


 

 

 “ Board of Directors ” means either the Board of Directors of the referent Person or any duly authorized committee or subcommittee of such Board. Unless the context otherwise requires, “Board of Directors” shall refer to the Board of Directors or any duly authorized committee or subcommittee of the Guarantor.

Business Day ” means any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

Capital Stock ” means, for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that entity.

Cash Settlement ” has the meaning set forth in Section 10.02(b).

Change in Control ” shall be deemed to have occurred at such time as either of the following events shall occur:

(1)     any person or group, other than the Guarantor, its Subsidiaries or any employee benefits plan of the Guarantor or its Subsidiaries, files a Schedule 13D or Schedule TO (or any successor schedule, form or report) pursuant to the Exchange Act, disclosing that such person has become the beneficial owner of shares with a majority of the total voting power of the Common Shares; unless such beneficial ownership (a) arises solely as a result of a revocable proxy delivered in response to a proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act, and (b) is not also then reportable on Schedule 13D (or any successor schedule) under the Exchange Act;

(2)     the Guarantor consolidates with, amalgamates or merges with or into another person (other than a Subsidiary of the Guarantor), or sells, conveys, transfers or leases all or substantially all of its properties and assets to any person (other than a Subsidiary of the Guarantor) or any person (other than a Subsidiary of the Guarantor) consolidates with or merges with or into the Guarantor, and (except in the case of any such sale, conveyance, transfer or lease) the outstanding Common Shares are reclassified into, converted for or converted into the right to receive any other property or security, provided that none of these circumstances will be a Change in Control if persons that beneficially own the Common Shares immediately prior to the transaction own, directly or indirectly, Common Shares with a majority of the total voting power of all outstanding common shares of the surviving or transferee person immediately after the transaction in substantially the same proportion as their ownership of the Guarantor's Voting Stock immediately prior to the transaction (this proviso, the “ Majority Ownership Exception ”); or

(3)     the first day on which the majority of the members of the Board of Directors cease to be Continuing Directors.

For purposes of defining a Change in Control:

2


 

 

(w)     “Continuing Director” means, as of any date of determination, any member of the Board of Directors who: (1) was a member of such Board of Directors (a) on the Issue Date of the Notes or (b) for at least two consecutive years; or (2) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Guarantor’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

 

(x)     the term "person" and the term "group" have the meanings given by Section 13(d) and 14(d) of the Exchange Act or any successor provisions;

(y)     the term "group" includes any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision; and

 

(z)     the term "beneficial owner" is determined in accordance with Rules 13d-3 and 13d-5 under the Exchange Act or any successor provisions, except that a person will be deemed to have beneficial ownership of all shares that person has the right to acquire irrespective of whether that right is exercisable immediately or only after the passage of time.

 

Notwithstanding the foregoing, it will not constitute a Change in Control if at least 90% of the consideration for the Common Shares (excluding cash payments for fractional shares and cash payments made in respect of dissenter's appraisal rights and cash payments of the Settlement Amount, if any) in the transaction or transactions constituting the Change in Control consists of common stock traded on a United States national securities exchange or approved for quotation on The NYSE, NYSE MKT LLC, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market (or any of their respective successors), or which will be so traded or quoted when exchanged in connection with the Change in Control transaction, and as a result of such transaction or transactions the Notes become convertible or exchangeable solely into such common stock.

Change in Tax Law ” has the meaning specified in Section 12.01.

Code ” means the Internal Revenue Code of 1986, as amended, and any successor statute.

close of business ” means 5:00 p.m., New York City time.

Closing Sale Price ” of any Common Share (or any other security for which a Closing Sale Price must be determined) on any Trading Day means the closing sale price per share of such security (or if no closing sale price is reported, the average of the closing bid and closing ask prices or, if more than one in either case, the average of the average closing bid and the average closing ask prices) on such day as reported in

3


 

 

composite transactions for the principal U.S. securities exchange on which the Common Shares are traded or, if the Common Shares are not listed on a U.S. national or regional securities exchange, the last quoted bid price as reported by OTC Markets Group Inc. In the absence of such a quotation, the Closing Sale Price will be the average of the mid-point of the last bid and ask prices for the Common Shares on the relevant date from each of at least three nationally recognized independent investment banking firms retained by the Issuer for that purpose, which may include one or more of the Initial Purchasers. The Closing Sale Price will be determined without reference to extended or after hours trading.

Combination Settlement ” has the meaning set forth in Section 10.02(b).

Common Stock ” of any Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.

Common Shares ” means the common shares, par value $0.001 per share, of the Guarantor, or such other Capital Stock into which such Common Shares are converted, reclassified or changed from time to time pursuant to Section 10.05. 

Corporate Trust Office ” means (i) with respect to the Trustee, the office at which this Indenture shall be principally administered, which office shall initially be located at the address of the Trustee specified in Section 13.02 and may be located at such other address as the Trustee may give notice to the Company in accordance with Section 13.02, the Holders and the Securities Administrator or such other address as a successor Trustee may designate from time to time by notice to the Company, the Holders and the Securities Administrator, and (ii) with respect to the Securities Administrator, the office at which this Indenture shall be principally administered, which office shall initially be located at the address of the Securities Administrator specified in Section 13.02 and may be located at such other address as the Securities Administrator may give notice to the Company in accordance with Section 13.02, the Holders and the Trustee or such other address as a successor Securities Administrator may designate from time to time by notice to the Company, the Holders and the Trustee.

 “ Custodian ” has the meaning specified in Section 6.01.

Daily Exchange Value ” for any Trading Day in the applicable Exchange Period equals 1/20th of:

(1)     the Exchange Rate in effect on that Trading Day, multiplied by  

(2)     the VWAP of the Common Shares on that Trading Day.

Daily Measurement Value ” means the quotient of the Specified Dollar Amount divided by 20.

4


 

 

Daily Settlement Amount ” for each $1,000 principal amount of Notes, for each of the 20 consecutive Trading Days in the relevant Exchange Period, shall consist of:

(1)     cash equal to the lesser of (a) the Daily Measurement Value and (b) the Daily Exchange Value; and

(2)     to the extent the Daily Exchange Value exceeds the Daily Measurement Value, a number of Common Shares equal to (a) the difference between the Daily Exchange Value and the Daily Measurement Value, divided by (b) the VWAP of the Common Shares on such Trading Day.

declaration date ” shall mean, with respect to a distribution by the Guarantor to all or substantially all of its holders of Common Shares, the date on which the distribution has been declared and authorized by the Board of Directors under applicable law.

Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

Defaulted Interest ” has the meaning specified in Section 2.13.

Depositary ” means the clearing agency registered under the Exchange Act that is designated to act as the Depositary for the Global Notes. DTC shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.

Dividend Threshold ” has the meaning specified in Section 10.04(d).

DTC ” means The Depository Trust Company and its successors.

Effective Date ” means the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

Event of Default ” has the meaning specified in Section 6.01.

Ex-Date ” means the first date on which the Common Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance, dividend or distribution in question, from the Guarantor or, if applicable, from the seller of Common Shares on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.

Exchange Act ” means the Securities Exchange Act of 1934, as amended (and any successor statute), and the rules and regulations of the SEC promulgated thereunder.

Exchange Agent ” means the agency appointed by the Issuer to which Notes may be presented for exchange. The Exchange Agent appointed by the Issuer shall initially be the Securities Administrator.

5


 

 

Exchange Consideration ” has the meaning specified in Section 10.08(a).

Exchange Date ” has the meaning specified in Section 10.02(a).

Exchange Notice ” has the meaning specified in Section 10.02(a).

Exchange Obligation ” has the meaning specified in Section 10.01.

Exchange Period ” means the 20 consecutive Trading Day period:

(1)     beginning on, and including, the 22nd Scheduled Trading Day immediately preceding any Redemption Date if the Exchange Date occurs on or after the Tax Redemption Notice Date and before the Related Redemption Date;

(2)     with respect to Exchange Notices received on or after December 15, 2023, beginning on, and including, the 22nd Scheduled Trading Day (or, if such Scheduled Trading Day is not a Trading Day, the immediately following Trading Day) immediately preceding the Maturity Date; and

(3)     in all other cases, beginning on, and including, the third Trading Day following the Issuer’s receipt of the relevant Exchange Notice.

Exchange Price ” on any day will equal $1,000, divided by the Exchange Rate in effect on that day.

Exchange Rate ” shall initially be 39.7488 Common Shares per $1,000 principal amount of Notes, subject to adjustment as provided in Article 10.

Expiration Date ” has the meaning specified in Section 10.04(e).

Financial Institution Surrender ” has the meaning specified in Section 10.08(a).

Financial Institution Surrender Election ” has the meaning specified in Section 10.08(a).

Fundamental Change ” shall be deemed to have occurred when any of the following has occurred (1) upon the occurrence of a Change in Control or (2) when the Common Shares (or other common stock underlying the Notes) cease to be listed or quoted on The NYSE, NYSE MKT LLC, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market (or any of their respective successors)

Fundamental Change Issuer Notice ” has the meaning specified in Section 3.01(d).

Fundamental Change Repurchase Date ” has the meaning specified in Section 3.01(a).

6


 

 

Fundamental Change Repurchase Expiration Time ” has the meaning specified in Section 3.01(a)(i).

Fundamental Change Repurchase Notice ” has the meaning specified in  Section 3.01(a)(i).

Fundamental Change Repurchase Price ” has the meaning specified in Section 3.01(a).

 “ Global Notes ” has the meaning specified in Section 2.02.

Global Notes Legend ” means the legend set forth in Exhibit A which is required to be placed on all Global Notes issued under this Indenture.

Guarantee ” means the guarantee of the Notes by the Guarantor, in accordance with the terms of this Indenture.

Guarantor ” means the Person named as a “Guarantor” in the first paragraph of this Indenture and, subject to Article 5, shall include its successor and assigns; provided that the obligations of the Guarantor under its Guarantee and this Indenture shall be subject to release and discharge in accordance with Article 8 or Section 11.08 of this Indenture.

Holder ” means the Person in whose name a Note is registered on the Registrar’s books.

Indenture ” means this Indenture as amended or supplemented from time to time.

Initial Purchasers ” means Citigroup Global Markets Inc. and Goldman, Sachs & Co., as representatives of the initial purchasers named in Schedule A of the Purchase Agreement.

interest ” means, when used with reference to the Notes, any interest payable under the terms of the Notes, including Defaulted Interest, if any, Rule 144 Additional Interest, if any, and Reporting Additional Interest, if any.

Interest Payment Date ” has the meaning specified in Section 2.03(c).

Issue Date ” means January 13, 2017.

Issuer ” has the meaning specified in the first paragraph of this Indenture, and subject to the provisions of Article 5, includes its successors and assigns.

Make-Whole Effective Date ” has the meaning specified in Section 10.03.

Make-Whole Fundamental Change ” has the meaning specified in Section 10.03.

7


 

 

Market Disruption Event ” means the occurrence or existence during the one-half hour period ending at the scheduled close of trading on the principal U.S. national or regional securities exchange or market on which the Common Shares (or such other security, as the case may be) are listed for trading of any material suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Shares or in any options contracts or futures contracts relating to the Common Shares (or such other security, as the case may be); provided that, for purposes of determining amounts due under Section 10.02(b), “Market Disruption Event” means (i) a failure by the primary U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Shares, for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Shares or in any options, contracts or futures contracts relating to the Common Shares.

Maturity Date ” means January 15, 2024.

Non-U.S. Holder ” means a Holder that is not treated as a United States person for U.S. federal income tax purposes as defined under Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended from time to time.

Notes ” means any Notes issued, authenticated and delivered under this Indenture, including any Global Notes.

NYSE ” means The New York Stock Exchange.

Offering Memorandum ” means (a) with respect to the Original Notes, the Original Offering Memorandum and (b) with respect to any Additional Notes issued pursuant to Section 2.01, the offering memorandum, prospectus or similar offering document relating to the offering and sale of such Additional Notes.

Officer ” means the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the Chief Financial Officer, the principal executive officer, the President, any Senior Vice President, Executive Vice President, or Vice President, the principal accounting officer, the principal financial officer, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Issuer or the Guarantor, as applicable.

Officer’s Certificate ” means a certificate signed by any one Officer of the Issuer. The Officer executing an Officer’s Certificate in accordance with Section 4.05 shall be the principal executive officer, the principal financial officer or the principal accounting officer of the Issuer.

open of business ” means 9:00 a.m., New York City time.

8


 

 

Opinion of Counsel ” means a written opinion, acceptable to the Trustee or the Securities Administrator, as applicable, from legal counsel. The counsel may be an employee of or counsel to the Issuer, which opinion may contain customary exceptions and qualifications as to the matters set forth therein.

Original Notes ” means the $575,000,000 aggregate principal amount of Notes, covered by the Original Offering Memorandum.

Original Offering Memorandum ” means the preliminary offering memorandum dated January 9, 2017, as supplemented by the pricing term sheet dated January 9, 2017, relating to the offering and sale of the Notes.

Paying Agent ” has the meaning specified in Section 2.05.

Person ” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

Purchase Agreement ” means the purchase agreement, dated as of January 9, 2017, among the Initial Purchasers, the Issuer and the Guarantor.

Physical Settlement ” has the meaning set forth in Section 10.02(b).

protected purchaser ” has the meaning specified in Section 2.09.

Purchase Agreement ” means the purchase agreement dated as of January 9, 2017 between the Issuer, the Guarantor and the Initial Purchasers relating to the offer and sale of the Notes.

Record Date ” means, in respect of a dividend or distribution to holders of Common Shares, the date fixed for determination of holders of Common Shares entitled to receive such dividend or distribution.

Redemption Date ” has the meaning specified in Section 12.02(a).

Redemption Notice ” has the meaning specified in Section 12.02(a).

Redemption Price ” has the meaning specified in Section 12.01.

Reference Property ” has the meaning specified in Section 10.05.

Register ” has the meaning specified in Section 2.05.

Registrar ” has the meaning specified in Section 2.05.

Regular Record Date ” means, with respect to any Interest Payment Date of the Notes, the January 1 and July 1 preceding the applicable January 15 and July 15 Interest Payment Date, respectively.

9


 

 

Reporting Additional Interest ” has the meaning specified in Section 6.12.

Resale Restriction Termination Date ” has the meaning specified in Section 2.08(c).

Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee (i) who shall have direct responsibility for the administration of this Indenture and (ii) to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.

Restricted Common Shares Legend ” is as set forth in Exhibit B .  

Restricted Note Legend ” is as set forth in Exhibit A .  

Rule 144 Additional Interest ” has the meaning specified in Section 4.09(c).

Rule 144A ” means Rule 144A as promulgated under the Securities Act as it may be amended from time to time hereafter.

Schedule TO ” means a Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Exchange Act.

Scheduled Trading Day ” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which the Common Shares are listed or admitted for trading. If the Common Shares are not so listed or admitted for trading, “Scheduled Trading Day” means a Business Day.

SEC ” means the Securities and Exchange Commission.

Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

Securities Administrator ” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.

Settlement Amount ” has the meaning specified in Section 10.02(b).

Settlement Method ” means, with respect to any exchange of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed to have been elected) by the Issuer.

Share Price ” has the meaning specified in Section 10.03.

Shelf Registration Statement ” means a registration statement of the Guarantor filed with the SEC on either (i) Form S-3 (or any successor form or other appropriate form under the Securities Act) or (ii) if the Guarantor is not permitted to file a registration statement on Form S-3, an evergreen registration statement on Form S-1 (or any

10


 

 

successor form or other appropriate form under the Securities Act), in each case for an offering to be made on a continuous or delayed basis pursuant to Rule 415 under the Securities Act covering the Notes and any Common Stock issuable upon exchange thereof.

Special Interest Payment Date ” has the meaning specified in Section 2.13(a).

Special Record Date ” has the meaning specified in Section 2.13(a).

Specified Dollar Amount ” means the maximum cash amount per $1,000 principal amount of Notes being exchanged to be received upon exchange as specified in the notice specifying the Settlement Method (or deemed so specified).

Spin-Off ” has the meaning specified in Section 10.04(c).

stated maturity ” means, with respect to any installment of interest or principal (including any sinking fund payment) on any series of Indebtedness, the date on which payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for their payment.

Subsidiary ” of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of the Voting Stock is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.

 “ Successor Company ” has the meaning specified in Section 5.01(a).

Successor Guarantor ” has the meaning specified in Error! Reference source not found. .  

Tax Redemption ” has the meaning specified in Section 12.01.

Tax Redemption Notice Date ” has the meaning specified in Section 10.03.

Taxes ” has the meaning specified in Section 4.07(a).

Territory ” has the meaning specified in Section 4.07(e).

Trading Day ” means a Scheduled Trading Day on which (i) trading in the Common Shares (or other security for which a Closing Sale Price must be determined) generally occurs on the NYSE or, if the Common Shares (or such other security) are not then listed on the NYSE, on the principal other U.S. national or regional securities exchange on which the Common Shares (or such other security) are then listed or, if the Common Shares (or such other security) are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares (or such

11


 

 

other security) are then listed or admitted for trading, (ii) there is no Market Disruption Event, and (iii) a Closing Sale Price for the Common Shares (or such other security for which a Closing Sale Price must be determined) is available on such securities exchange; provided that, for purposes of determining amounts due under Section 10.02(b), “Trading Day” means a day on which (x) there is no Market Disruption Event (as defined in the proviso to the definition thereof) and (y) trading in the Common Shares generally occurs on the NYSE or, if the Common Shares are not then listed on the NYSE, on the principal other U.S. national or regional securities exchange on which the Common Shares are then listed or, if the Common Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Shares are then listed or admitted for trading. If the Common Shares (or such other security) are not so listed or traded, “Trading Day” means a Business Day.

Trading Price ” of the Notes on any date of determination means the average of the secondary market bid quotations per $1,000 principal amount of Notes obtained by the bid solicitation agent for $5,000,000 principal amount of the Notes at approximately 3:30 p.m., New York City time, on such determination date from three independent nationally recognized securities dealers the Issuer selects, which may include one or more of the Initial Purchasers; provided that if at least three such bids cannot reasonably be obtained by the bid solicitation agent, but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained by the bid solicitation agent, this one bid shall be used. If the bid solicitation agent cannot reasonably obtain at least one bid for $5,000,000 principal amount of the Notes from a nationally recognized securities dealer or, in the Issuer’s reasonable judgment, the bid quotations are not indicative of the secondary market value of the Notes, then, for purposes of Section 10.01(d), the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product of the Closing Sale Price of the Common Shares on such determination date and the then applicable Exchange Rate.

Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended and the rules and regulations of the SEC promulgated thereunder.

Trustee ” means the party named as such in this Indenture until a successor replaces it and, thereafter, means the successor.

Uniform Commercial Code ” means the New York Uniform Commercial Code as in effect from time to time.

Valuation Period ” has the meaning specified in Section 10.04(c).

Voting Stock ” of any Person means Capital Stock of such Person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.

VWAP ” or “ volume weighted average price ” per Common Share on any Trading Day means such price as displayed on Bloomberg (or any successor service)

12


 

 

page NBR US  <EQUITY> AQR in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day; or, if such price is not available, the volume-weighted average price means the market value per Common Share on such day as determined by a nationally recognized independent investment banking firm, which may include one or more of the Initial Purchasers, retained for this purpose by the Issuer. The “volume-weighted average price” or “VWAP” will be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.

Wholly Owned Subsidiary ” of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than in the case of a Subsidiary that is incorporated in a jurisdiction other than a state in the United States of America or the District of Columbia, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) are owned by such Person or any Wholly Owned Subsidiary of such Person.

Article 2
THE NOTES

Section 2.01.      Designation, Amount and Issuance of Notes .

The Notes shall be designated as “0.75% Senior Exchangeable Notes due 2024.” The Notes shall initially be issued in an aggregate principal amount of $575,000,000. Upon the execution of this Indenture, or from time to time thereafter, Notes may be executed by the Issuer and delivered to the Trustee for authentication.

The Issuer may, without the consent of Holders, issue Additional Notes hereunder in the future on the same terms and conditions of the Notes issued hereunder; provided that if any such Additional Notes are not fungible with the Notes initially offered hereby for U.S. federal income tax purposes, such Additional Notes will have one or more separate CUSIP numbers. The Notes initially issued hereunder and any such Additional Notes shall rank equally and ratably and shall be treated as a single class for all purposes under this Indenture, except with respect to Rule 144 Additional Interest as provided in Section 4.09. The Issuer may not issue any Additional Notes if any Event of Default has occurred and is continuing with respect to the Notes.

Section 2.02.      Form of the Notes

The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the form set forth in Exhibit A hereto. The terms and provisions contained in the form of Notes attached as Exhibit A hereto shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Issuer, 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.

Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same

13


 

 

may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of this Indenture, or as may be required by the custodian for the Global Notes or the Depositary or as may be required for the Notes to be tradable on any market developed for trading of securities pursuant to Rule 144A or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Notes are subject.

So long as the Notes are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.08(b), all of the Notes shall initially be evidenced by one or more Notes in global form registered in the name of the Depositary or the nominee of the Depositary (the “ Global Notes ”). The transfer and exchange of beneficial interests in any such Global Notes shall be effected through the Depositary in accordance with this Indenture and the applicable procedures of the Depositary. Global Notes shall bear the Global Notes Legend. Except as provided in Section 2.08(b), beneficial owners of a Global Note shall not be entitled to have certificates registered in their names, shall not receive or be entitled to receive physical delivery of certificates in definitive registered form and shall not be considered Holders of such Global Note.

Any Global Notes shall represent such of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may from time to time be increased or reduced on the books and records of the Depositary and Trustee to reflect repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount of outstanding Notes represented thereby shall be made by the Trustee or the custodian for the Global Note, at the direction of the Trustee, in such manner and upon instructions given by the Holder of such Notes in accordance with this Indenture. Payment of principal of and any interest on any Global Notes shall be made to the Depositary in immediately available funds.

Section 2.03.      Date and Denomination of Notes; Payment at Maturity; Payment of Interest .

(a)      Date and Denomination . The Notes shall be issuable in fully registered form without interest coupons in minimum denominations of $1,000 principal amount and integral multiples in excess thereof. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the Notes. 

(b)      Payment at Maturity . On the Maturity Date, each Holder shall be entitled to receive on such date, $1,000 in cash for each $1,000 in principal amount of Notes, together with any accrued and unpaid interest thereon to, but excluding, the Maturity Date, unless such Note is earlier exchanged, redeemed, repurchased or otherwise cancelled. With respect to Global Notes, principal and any interest shall be paid to the Depositary by wire transfer of immediately available funds. Except as provided in

14


 

 

Section 2.03(c), with respect to any certificated Notes, principal and any interest shall be payable at the Issuer’s office or agency in New York, New York, which initially shall be the Corporate Trust Office of the Securities Administrator. If the Maturity Date is not a Business Day, payment shall be made on the next succeeding Business Day, and no additional interest shall accrue thereon.

(c)      Payment of Interest . Interest on the Notes shall accrue at the rate of 0.75% per annum from the date of original issuance of the Notes or from the most recent date to which interest has been paid or duly provided for. Interest shall be payable in arrears on January 15 and July 15 of each year (each, an “ Interest Payment Date ”), commencing on July 15, 2017, to Holders of record at the close of business on the applicable Regular Record Date. Notwithstanding the preceding sentence, the Issuer will not pay in cash accrued interest on any Notes when such Notes are exchanged, except as described in Section 10.02. 

The Issuer shall pay interest on:

(i)      any Global Notes to the Depositary in immediately available funds;

(ii)     any Notes in certificated form having a principal amount of less than $2,000,000, by check mailed to the address of the Person in whose name such Notes are registered as it appears in the Register; and

(iii)     any Notes in certificated form having a principal amount of $2,000,000 or more, by wire transfer in immediately available funds at the election of the Holder of such Notes duly delivered to the Securities Administrator at least five Business Days prior to the relevant Interest Payment Date. 

Interest on the Notes shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. If an Interest Payment Date (or any other payment date with respect to the Notes) is not a Business Day, payment shall be made on the next succeeding Business Day, and no additional interest shall accrue thereon with respect to such delay.

Payments of principal or interest (including Additional Interest, if any) on the Notes that are not made when due will accrue interest at the then-applicable interest rate on the Notes from the required payment date.

Section 2.04.      Execution and Authentication

15


 

 

One Officer shall sign the Notes for the Issuer by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.

A Note shall not be valid until an authorized signatory of the Trustee manually authenticates the Note. Upon receipt of an Authentication Order, the Trustee shall authenticate a Note executed by the Issuer. The signature of the Trustee on the Note shall be conclusive evidence that the Note has been duly and validly authenticated under this Indenture.

The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate the Notes. Any such appointment shall be evidenced by an instrument signed by a Responsible Officer, a copy of which shall be furnished to the Issuer. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes 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 any Registrar, Paying Agent or agent for service of notices and demands.

Section 2.05.      Registrar and Paying Agent

The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (the “ Registrar ”) and an office or agency where Notes may be presented for payment (the “ Paying Agent ”). The Corporate Trust Office of the Securities Administrator shall be considered as one such office or agency of the Issuer for each of the aforesaid purposes. The Registrar shall keep a register of the Notes (the “ Register ”) and of their transfer and exchange. The Issuer may have one or more co-registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent, and the term “Registrar” includes any co-registrars. The Issuer initially appoints the Securities Administrator as (i) Registrar in connection with the Notes, (ii) the custodian with respect to the Global Notes and (iii) Exchange Agent.

The Issuer may 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 Issuer shall notify the Trustee of the name and address of any such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefore pursuant to Section 7.07. The Guarantor or any of its Wholly Owned Subsidiaries (including the Issuer) that is not a Foreign Subsidiary may act as Paying Agent or Registrar.

The Issuer may remove any Registrar or Paying Agent upon written notice to such Registrar or Paying Agent and to the Trustee; provided, however , that no such removal shall become effective until (1) acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Issuer and such successor Registrar or Paying Agent, as the case may be, and delivered to the Trustee or (2) notification to the Trustee that the Trustee shall serve as Registrar or Paying Agent until

16


 

 

the appointment of a successor in accordance with clause (1) above. The Registrar or Paying Agent may resign at any time upon written notice; provided, however , that the Trustee may resign as Paying Agent or Registrar only if the Trustee also resigns as Trustee in accordance with Section 7.09.

The place of payment with respect to the Notes shall be the City of New York, and the Company hereby initially appoints the Securities Administrator as its Paying Agent in the City of New York, at its Corporate Trust Office in such city, as specified in Section 13.02, the intention of the Company being that the Notes shall at all times be payable in the City of New York.

 

For the avoidance of doubt, none of the Trustee (or its agents), the Paying Agent or the Exchange Agent shall have any obligation to determine any Trading Prices, market prices, the occurrence of any distribution or the occurrence of any event permitting an exchange or requiring an adjustment to the Exchange Rate.

 

Section 2.06.      Paying Agent to Hold Money in Trust

Prior to 11:00 a.m., New York City time, on the Maturity Date, each Interest Payment Date, any Fundamental Change Repurchase Date or Redemption Date and any settlement date of an Exchange Obligation, the Issuer shall deposit with the Paying Agent (or if the Issuer or a Wholly Owned Subsidiary of the Issuer is acting as Paying Agent, segregate and hold in trust for the benefit of the Persons entitled thereto) a sum sufficient to pay such amounts owed on such dates. The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of amounts owed on such dates and shall notify the Trustee in writing of any Default by the Issuer in making any such payment. If the Guarantor or a Wholly Owned Subsidiary of the Guarantor (including the Issuer) acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer 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 by the Paying Agent. Upon complying with this Section, the Paying Agent shall have no further liability for the money delivered to the Trustee.

Section 2.07.      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. If the Trustee is not the Registrar, the Issuer shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at least five 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.

Section 2.08.      Exchange and Registration of Transfer of Notes; Restrictions on Transfer

17


 

 

(a)      The Issuer shall cause to be kept at the Corporate Trust Office the Register in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and of transfers of Notes. The Register shall be in written form or in any form capable of being converted into written form within a reasonably prompt period of time. 

Upon surrender for registration of transfer of any Notes to the Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in this Section 2.08, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such restrictive legends as may be required by this Indenture.

Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency maintained by the Issuer pursuant to Section 4.02. Whenever any Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive bearing registration numbers not contemporaneously outstanding.

All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.

All Notes presented or surrendered for registration of transfer or for exchange, repurchase or conversion shall (if so required by the Issuer or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer, and the Notes shall be duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made to any Holder for any registration of, transfer or exchange of Notes, but the Issuer or the Trustee may require payment by the Holder of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes.

Neither the Issuer nor the Trustee nor any Registrar shall be required to exchange, issue or register a transfer of (a) any Note or portions thereof surrendered for exchange pursuant to Article 10 or (b) any Note or portions thereof tendered for repurchase (and not withdrawn) pursuant to Article 3.

(b)      The following provisions shall apply only to Global Notes: 

(i)      Each Global Note authenticated under this Indenture shall be registered in the name of the Depositary or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian for the Global Notes therefor, and each such Global Note shall constitute a single Note for all purposes of this Indenture.

18


 

 

(ii)      Unless the Issuer and the applicable Holder agree, notwithstanding any other provision in this Indenture, no Global Note may be exchanged in whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be registered, in the name of any Person other than the Depositary or a nominee thereof unless: 

(A)      the Depositary has notified the Issuer that it is unwilling or unable to continue as Depositary for such Global Note and a successor Depositary has not been appointed within 90 calendar days;

(B)      the Depositary has ceased to be registered as a clearing agency under the Exchange Act and a successor Depositary has not been appointed within 90 calendar days; or

(C)      an Event of Default with respect to the Notes has occurred and is continuing and the beneficial owner requests that its Notes be issued in physical, certificated form. 

(iii)      In addition, certificated Notes shall be issued in exchange for beneficial interests in a Global Note upon request by or on behalf of the Depositary in accordance with customary procedures following the request of a beneficial owner seeking to enforce its rights under the Notes or this Indenture, including its rights following the occurrence of an Event of Default.

(iv)      Notes issued in exchange for a Global Note or for any portion of a Global Note pursuant to clause (ii) or (iii) above shall be issued in definitive, fully registered form, without interest coupons, shall have an aggregate principal amount equal to that of such Global Notes or portion thereof to be so exchanged, shall be registered in such names and be in such authorized denominations as the Depositary shall designate and shall bear any legends required hereunder. Any Global Notes to be exchanged shall be surrendered by the Depositary to the Trustee, as Registrar; provided that pending completion of the exchange of a Global Note, the Trustee acting as custodian for the Global Notes for the Depositary or its nominee with respect to such Global Notes, shall reduce the principal amount thereof, by an amount equal to the portion thereof to be so exchanged, by means of an appropriate adjustment made on the books and records of the Trustee. Upon any such surrender or adjustment, the Trustee shall authenticate and make available for delivery the Notes issuable on such exchange to or upon the written order of the Depositary or an authorized representative thereof.

(v)      In the event of the occurrence of any of the events specified in clause (ii) above or upon any request described in clause (iii) above, the Issuer shall promptly make available to the Trustee a sufficient supply of certificated Notes in definitive, fully registered form, without interest coupons.

19


 

 

(vi)      Neither any members of, or participants in, the Depositary (the “ Agent Members ”) nor any other Persons on whose behalf Agent Members may act shall have any rights under this Indenture with respect to any Global Notes registered in the name of the Depositary or any nominee thereof, and the Depositary or such nominee, as the case may be, may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner and holder of such Global Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or such nominee, as the case may be, or impair, as between the Depositary, its Agent Members and any other Person on whose behalf an Agent Member may act, the operation of customary practices of such Persons governing the exercise of the rights of a Holder of any Notes. 

(vii)      At such time as all interests in a Global Note have been repurchased, converted, cancelled or exchanged for Notes in certificated form, such Global Note shall, upon receipt thereof, be cancelled by the Trustee or the Securities Administrator in accordance with standing procedures and instructions existing between the Depositary and the custodian for the Global Note. At any time prior to such cancellation, if any interest in a Global Note is repurchased, converted, cancelled or exchanged for Notes in certificated form, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing between the Depositary and the custodian for the Global Note, be appropriately reduced, and an endorsement shall be made on such Global Note, by the Trustee, the Securities Administrator or the custodian for the Global Note, at the direction of the Trustee, to reflect such reduction. 

(c)      Every Note (and all securities issued in exchange therefor or in substitution thereof) that bears or is required under this Section 2.08(c) to bear the Restricted Note Legend (together with any Common Shares issued upon exchange of the Notes and required to bear the Restricted Common Shares Legend, collectively, the “ Restricted Securities ”) shall be subject to the restrictions on transfer set forth in this Section 2.08(c) (including those set forth in the Restricted Note Legend and the Restricted Common Shares Legend) unless such restrictions on transfer shall be waived by written consent of the Issuer following receipt of legal advice supporting the permissibility of the waiver of such transfer restrictions, and the holder of each such Restricted Security, by such holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in this Section 2.08(c), the term “transfer” means any sale, pledge, loan, transfer or other disposition whatsoever of any Restricted Security or any interest therein. Until the date (the “ Resale Restriction Termination Date ”) that is the later of (1) the date that is one year after the last date of the original issuance of the Notes, or such shorter period of time as permitted by Rule 144 under the Securities Act or any successor provision thereunder, and (2) such later date, if any, as may be required by applicable laws, any certificate evidencing a Restricted Security shall bear the Restricted Note Legend (or in the case of Common Shares issued upon exchange of the Notes, the Restricted Common Shares Legend), unless such Restricted Security has been sold pursuant to a registration statement that has been declared effective under the Securities Act (and which continues

20


 

 

to be effective at the time of such transfer) or sold pursuant to Rule 144 under the Securities Act or any similar provision then in force, or unless otherwise agreed by the Issuer in writing as set forth above, with written notice thereof to the Trustee. After the Resale Restriction Termination Date applicable to any Note, the Restricted Note Legend shall be deemed removed from such Note.

(d)      In connection with any transfer of the Notes prior to the Resale Restriction Termination Date, the Holder must complete and deliver the form of assignment set forth on the certificate representing the Note, with the appropriate box checked, to the Trustee (or any successor Trustee, as applicable). 

Any Notes that are Restricted Securities and as to which such restrictions on transfer shall have expired in accordance with their terms or as to conditions for removal of the Restricted Note Legend set forth therein have been satisfied may, upon surrender of such Notes for exchange to the Registrar in accordance with the provisions of this Section 2.08, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the restrictive legend required by Section 2.08(c). If such Restricted Security surrendered for exchange is represented by a Global Note bearing the Restricted Note Legend, the principal amount of the legended Global Notes shall be reduced by the appropriate principal amount and the principal amount of a Global Note without a Restricted Note Legend shall be increased by an equal principal amount. If a Global Note without the Restricted Note Legend is not then outstanding, the Issuer shall execute and the Trustee shall authenticate and deliver an unlegended Global Note to the Depositary. The Issuer shall notify the Trustee in writing of the occurrence of the Resale Restriction Termination Date.

Any Common Shares issued upon exchange of the Notes as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of the certificates representing such Common Shares for exchange in accordance with the procedures of the transfer agent for the Common Shares, be exchanged for a new certificate or certificates for a like aggregate number of Common Shares, which shall not bear the Restricted Common Shares Legend.

(e)      Any Note or Common Shares issued upon exchange of a Note that are repurchased or owned by any Affiliates of the Issuer or the Guarantor may not be resold by such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or Common Shares, as the case may be, no longer being a “restricted security” (as defined in Rule 144). The Issuer will cause any Note that is repurchased or owned by the Issuer or any controlled “Affiliate” (as defined in Rule 144) to be surrendered to the Securities Administrator for cancellation as described under Section 2.12.

(f)      The Trustee shall have no responsibility or obligation to any Agent Members or any other Person with respect to the accuracy of the books or records, or the acts or omissions, of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery

21


 

 

to any Agent Member or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders of Notes and all payments to be made to Holders of Notes under the Notes shall be given or made only to or upon the order of the registered Holders of Notes (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Notes shall be exercised only through the Depositary subject to the customary procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members.

(g)      The Trustee and the Securities Administrator shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Notes (including any transfers between or among Agent Members) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.  Neither the Trustee, the Securities Administrator nor any Agent Member shall have any responsibility or liability for any actions taken or not taken by the Depositary.

Section 2.09.      Replacement Notes

If a mutilated Note is surrendered to the Registrar or if the Holder claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a replacement Note if the Holder takes the following actions and satisfies the requirements of Section 8-405 of the Uniform Commercial Code:

(a)      notifies the Issuer or the Trustee in writing within a reasonable time after he has notice of such loss, destruction or wrongful taking and prior to the Registrar registering a transfer of such Note;

(b)      makes a request to the Issuer or the Trustee in writing for a replacement Note prior to the Note 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 Issuer or the Trustee, including the requirements set forth in the following paragraph. 

Such Holder shall furnish an indemnity bond sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, the Paying Agent and the Registrar from any loss, expense, claim or liability that any of them may suffer if a Note is replaced and subsequently presented or claimed for payment. The Issuer and the Trustee may charge the Holder for their expenses in replacing a Note. In case any Note which has matured or is about to mature or has been validly tendered for repurchase on a Fundamental Change Repurchase Date or (and not validly withdrawn), or is to be exchanged or redeemed, shall become mutilated or be destroyed, lost or stolen, the Issuer

22


 

 

may, instead of issuing a substitute Note, pay or authorize the payment of or exchange or authorize the exchange of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or exchange shall furnish to the Issuer, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or in connection with such substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer, the Trustee, the Securities Administrator and, if applicable, any Paying Agent or Exchange Agent evidence to their satisfaction of the destruction, loss or theft of such Notes and of the ownership thereof.

Every replacement Note is an additional obligation of the Issuer.

The provisions of this Section 2.09 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.

Section 2.10.      Outstanding Notes

Notes outstanding at any time are all Notes authenticated by the Trustee except for those cancelled by the Securities Administrator, those delivered to the Securities Administrator for cancellation and those described in this Section as not outstanding. Subject to Section 2.12, a Note does not cease to be outstanding because the Guarantor or an Affiliate of the Guarantor holds the Note.

If a Note is replaced pursuant to Section 2.09, it ceases to be outstanding unless the Trustee and the Issuer receive proof satisfactory to them that the replaced Note is held by a protected purchaser.

If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Fundamental Change Repurchase Date, Redemption Date or Maturity Date money sufficient to pay all principal and interest payable on that date with respect to the Notes (or portions thereof) to be repurchased or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.

Section 2.11.      Temporary Notes

Pending the preparation of Notes in certificated form, the Issuer may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon receipt of an Authentication Order, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of the Notes in certificated form, but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Issuer. Any such temporary Notes shall be executed by the Issuer and authenticated by the Trustee or such authenticating agent upon the same conditions and in substantially the same manner, and with the same effect, as the Notes in certificated form. Without

23


 

 

unreasonable delay, the Issuer shall execute and deliver to the Trustee or such authenticating agent Notes in certificated form and thereupon any or all temporary Notes may be surrendered in exchange therefor, at each office or agency maintained by the Issuer pursuant to Section 4.02 and the Trustee or such authenticating agent shall authenticate and make available for delivery in exchange for such temporary Notes an equal aggregate principal amount of Notes in certificated form. Such exchange shall be made by the Issuer at its own expense and without any charge therefor. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations under this Indenture as Notes in certificated form authenticated and delivered hereunder.

Section 2.12.      Repurchase and Cancellation

The Issuer may, to the extent permitted by law, repurchase any Notes in the open market or by tender offer at any price or by private agreement, whether by the Issuer, the Guarantor or their respective Subsidiaries, including pursuant to cash-settled swaps or derivatives. Any Notes repurchased by the Issuer or the Guarantor (other than Notes repurchased pursuant to cash-settled swaps or derivatives) will be surrendered to the Securities Administrator for cancellation, but such Notes may not be reissued or resold by the Issuer or the Guarantor. Any Notes surrendered for cancellation to the Securities Administrator may not be reissued or resold and shall be promptly cancelled by the Securities Administrator in accordance with its standard procedures and not considered “outstanding” under this Indenture.

Section 2.13.      Defaulted Interest

Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 calendar days, shall forthwith cease to be payable to the Holder on the Regular Record Date, and such defaulted interest and interest (to the extent lawful) on such defaulted interest at the annual rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “ Defaulted Interest ”) shall be paid by the Issuer at its election, in each case, as provided in clause (a) or (b) below:

(a)      The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on a Special Record Date (as defined below) for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee and the Securities Administrator in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date (not less than 30 calendar days after such notice) of the proposed payment (the “ Special Interest Payment Date ”), and at the same time the Issuer shall deposit with the Trustee or the Securities Administrator an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee and the Securities Administrator for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a record

24


 

 

date (the “ Special Record Date ”) for the payment of such Defaulted Interest which shall be not more than fifteen calendar days and not less than ten calendar days prior to the Special Interest Payment Date and not less than ten calendar days after the receipt by the Trustee and the Securities Administrator of the notice of the proposed payment. The Trustee or the Securities Administrator shall promptly notify the Issuer of such Special Record Date, and in the name and at the expense of the Issuer, shall promptly cause notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor to be given to each Holder, not less than ten calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date and Special Interest Payment Date therefor having been so given, such Defaulted Interest shall be paid on the Special Interest Payment Date to the Persons in whose names the Notes (or their respective predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).

(b)      The Issuer may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee and the Securities Administrator of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee and the Securities Administrator.

(c)      Subject to the foregoing provisions of this Section 2.13, each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note. 

Section 2.14.      CUSIP and ISIN Numbers

The Issuer in issuing the Notes may use “CUSIP” and “ISIN” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of repurchase as a convenience to Holders; provided, however , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a repurchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such repurchase shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee and the Securities Administrator in writing of any changes to the “CUSIP” or “ISIN” numbers of the Notes.

Article 3
REPURCHASE OF NOTES

Section 3.01.      Repurchase at Option of Holders Upon a Fundamental Change

(a)      In the event any Fundamental Change shall occur prior to the Maturity Date, each Holder shall have the right, at the Holder’s option, to require the Issuer to repurchase any or all of such Holder's Notes (or portions thereof that are integral

25


 

 

multiples of $1,000 of principal amount), on a date specified by the Issuer in the Fundamental Change Issuer Notice (the “ Fundamental Change Repurchase Date ”), which shall be no later than 35 Trading Days and no earlier than 20 Trading Days after the date of the Fundamental Change Issuer Notice, at a purchase price payable in cash (the “ Fundamental Change Repurchase Price ”) equal to 100% of the principal amount of the Notes to be repurchased plus any accrued and unpaid interest, if any, Additional Interest and Additional Amounts owed, if any, to, but excluding, the Fundamental Change Repurchase Date; provided that if such Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the corresponding Interest Payment Date, then the interest payable on such Interest Payment Date shall be paid to the Holders of record of the Notes on the applicable Regular Record Date instead of the Holders surrendering the Notes for repurchase.

(b)      The Issuer, or at its request (which must be received by the Trustee at least three Business Days prior to the date the Trustee is requested to give such notice as described below) the Trustee or its agent in the name of and at the expense of the Issuer, shall mail to all Holders of record of the Notes a notice (a “ Fundamental Change Issuer Notice “) of the occurrence of a Fundamental Change and of the repurchase right arising as a result thereof on or before the 30th day after the occurrence of a Fundamental Change.  The Issuer shall deliver a copy of the Fundamental Change Issuer Notice to the Trustee.

(c)      Repurchases of Notes under this Section 3.01 shall be made upon: 

(i)      delivery to the Paying Agent by a Holder of a duly completed written notice (the “ Fundamental Change Repurchase Notice ”) of such Holder’s exercise of its repurchase right (together with the Notes to be repurchased, if certificated Notes have been issued) in the form set forth on the reverse of the Note prior to the close of business on the second Business Day immediately preceding the Fundamental Change Repurchase Date (the “ Fundamental Change Repurchase Expiration Time ”); and 

(ii)      delivery or book-entry transfer of the Notes to the Paying Agent at any time after delivery of the Fundamental Change Repurchase Notice (together with all necessary endorsements) and prior to the Fundamental Change Repurchase Expiration Time, at the Corporate Trust Office of the Paying Agent, such delivery being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor; provided , that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 3.01 only if the Notes so delivered to the Paying Agent shall conform in all respects to the description thereof in the related Fundamental Change Repurchase Notice. 

The Fundamental Change Repurchase Notice shall state:

(A)      with respect to Global Notes, the appropriate Depositary information and, with respect to certificated Notes, the certificate numbers, if any, of the Notes to be tendered for repurchase; 

26


 

 

(B)      the portion of the principal amount of the Notes to be repurchased, which must be $1,000 or multiples thereof; and 

(C)      that the Notes are to be repurchased by the Issuer pursuant to the applicable provisions of the Notes and this Indenture. 

Payment of the Fundamental Change Repurchase Price for Notes for which a Fundamental Change Repurchase Notice has been delivered and not withdrawn is conditioned upon book-entry transfer or delivery of the Notes, together with necessary endorsements, to the Paying Agent. Payment of the Fundamental Change Repurchase Price for the Notes shall be made on the later of the Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Notes, as the case may be.

All questions as to the validity, eligibility (including time of receipt) and acceptance of any Notes for repurchase shall be determined by the Issuer, whose determination shall be final and binding absent manifest error.

Notwithstanding anything herein to the contrary, any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 3.01 shall have the right to withdraw such Fundamental Change Repurchase Notice at any time prior to the Fundamental Change Repurchase Expiration Time by delivering a written notice of withdrawal to the Paying Agent in accordance with Section 3.02 below (or in the case of Notes held in book-entry form in accordance with the Depositary’s applicable procedures).

The Paying Agent shall promptly notify the Issuer of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal thereof.

(d)      Each Fundamental Change Issuer Notice shall specify, among other things: 

(i)       briefly, the events causing the Fundamental Change; 

(ii)      the effective date of the Fundamental Change; 

(iii)        the Fundamental Change Repurchase Date; 

(iv)       the last date on which a repurchase upon a Fundamental Change may be exercised; 

(v)         the Fundamental Change Repurchase Price; 

(vi)        the names and addresses of the Paying Agent and the Exchange Agent; 

(vii)     the then-current Exchange Rate and any adjustments thereto, including the amount of Additional Shares, if any, issuable with respect to such exchange;

27


 

 

(viii)    briefly, the exchange rights of the Notes;

(ix)      the procedures that a Holder must follow to exercise the right to repurchase upon a Fundamental Change; 

(x)       that the Fundamental Change Repurchase Price for any Notes as to which a Fundamental Change Repurchase Notice has been given and not withdrawn, together with any accrued and unpaid interest payable with respect thereto, shall be paid on or prior to the third Trading Day following the later of such Fundamental Change Repurchase Date and the time of book-entry transfer or delivery of the Notes (together with all necessary endorsements); 

(xi)      that, except as otherwise provided herein with respect to a Fundamental Change Repurchase Date that is after a Regular Record Date for the payment of an installment of interest and on or before the related Interest Payment Date, on and after such Fundamental Change Repurchase Date (unless there shall be a Default in the payment of the Fundamental Change Repurchase Price), interest on Notes subject to repurchase upon Fundamental Change shall cease to accrue, and all rights of the Holders of such Notes shall terminate, other than the right to receive, in accordance herewith, the Fundamental Change Repurchase Price; 

(xii)       that a Holder shall be entitled to withdraw its election in the Fundamental Change Repurchase Notice prior to the Fundamental Change Repurchase Expiration Time, by means of a letter or facsimile transmission (receipt of which is confirmed and promptly followed by a letter) setting forth the name of such Holder, a statement that such Holder is withdrawing its election to have Notes purchased by the Issuer on such Fundamental Change Repurchase Date pursuant to a repurchase upon a Fundamental Change, the certificate number(s) of such Notes to be so withdrawn, if such Notes are certificated Notes, the principal amount of the Notes of such Holder to be so withdrawn, which amount must be $1,000 or an integral multiple thereof and the principal amount, if any, of the Notes of such Holder that remain subject to the Fundamental Change Repurchase Notice delivered by such Holder in accordance with this Section 3.01, which amount must be $1,000 or an integral multiple thereof;

(xiii)     that Notes with respect to which a Fundamental Change Repurchase Notice is given by a Holder may be exchanged pursuant to Article 10 only if such Fundamental Change Repurchase Notice has been withdrawn in accordance with this Section 3.01 or the Issuer defaults in the payment of the Fundamental Change Repurchase Price; and 

(xiv)     the CUSIP number or numbers, as the case may be, of the Notes. 

No failure of the Issuer to give the foregoing notices and no defect therein shall limit the repurchase rights of Holders or affect the validity of the proceedings for the repurchase of the Notes pursuant to this Section 3.01.

28


 

 

(e)      Notwithstanding the foregoing, no Notes may be repurchased by the Issuer at the option of the Holders upon a Fundamental Change if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an acceleration resulting from a Default by the Issuer in the payment of the Fundamental Change Repurchase Price with respect to such Notes). 

Section 3.02.      Withdrawal of Fundamental Change Repurchase Notice

A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of withdrawal delivered to the Paying Agent (or in the case of Notes held in book-entry form in accordance with the Depositary’s applicable procedure) prior to the Fundamental Change Repurchase Expiration Time. The withdrawal notice must state:

(a)      with respect to Global Notes, the appropriate Depositary information and, with respect to certificated Notes, the certificate number, if any, of the withdrawn Notes; 

(b)      the principal amount of the withdrawn Notes; and 

(c)      the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000 or multiples of $1,000 in excess thereof. 

Section 3.03.      Deposit of Fundamental Change Repurchase Price

Prior to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date, the Issuer shall deposit with the Paying Agent or, if the Guarantor or a Wholly Owned Subsidiary of the Guarantor is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 2.06, an amount of cash in immediately available funds, sufficient to pay the aggregate Fundamental Change Repurchase Price of all the Notes or portions thereof that are to be repurchased as of the Fundamental Change Repurchase Date.

If the Paying Agent holds on the Fundamental Change Repurchase Date cash sufficient to pay the Fundamental Change Repurchase Price of the Notes that Holders have elected to require the Issuer to repurchase in accordance with Section 3.01, then, as of the Fundamental Change Repurchase Date:

(i)      such Notes shall cease to be outstanding and interest shall cease to accrue, whether or not book-entry transfer of the Notes has been made or the Notes have been delivered to the Paying Agent, as the case may be; and 

(ii)      all other rights of the Holders of such Notes shall terminate, other than the right to receive the Fundamental Change Repurchase Price upon delivery or transfer of such Notes. 

Section 3.04.      Notes Repurchased in Part

29


 

 

Upon presentation of any Notes repurchased only in part, the Issuer shall execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at the expense of the Issuer, a new Note or Notes, of any authorized denomination, in aggregate principal amount equal to the unrepurchased portion of the Notes presented.

Section 3.05.      Covenant to Comply with Securities Laws Upon Repurchase of Notes .

In connection with any repurchase upon a Fundamental Change, the Issuer shall, to the extent applicable, (i) comply with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may be applicable at the time of the offer to repurchase the Notes, and any such compliance resulting from changes to such rules made after the Issue Date that conflicts with the requirements of this Indenture shall be deemed to comply with this Indenture; (ii) file a Schedule TO or any other schedule required under the Exchange Act if applicable at the time of the offer to repurchase the Notes; and (iii) comply with all other federal and state securities laws in connection with the Issuer’s repurchase of the Notes.

Article 4
COVENANTS 

Section 4.01.      Payment of Notes

The Issuer shall promptly pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.

The Issuer shall pay interest on overdue principal at the rate specified therefor in the Notes, and, to the extent lawful, it shall pay interest on overdue installments of interest at the rate and in the manner specified in Section 2.13.

Section 4.02.      Maintenance of Office or Agency

The Issuer shall maintain an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment or for exchange or repurchase and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. As of the date of this Indenture, such office is located at the Corporate Trust Office of the Securities Administrator and, at any other time, at such other address as the Trustee or Securities Administrator may designate from time to time by notice to the Issuer provided , however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation under Section 4.02 to maintain an office or agency in The City of New York where any Notes may be presented or surrendered for payment. The Issuer shall give prompt written notice to the Trustee and the Securities Administrator of the location, and any change in the location, of such office

30


 

 

or agency not designated or appointed by the Trustee or the Securities Administrator provided , however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation under Section 4.02 to maintain an office or agency in The City of New York where any Notes may be presented or surrendered for payment. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee or the Securities Administrator with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Securities Administrator.

 

The Issuer may also from time to time designate co-registrars and one or more offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer shall give prompt written notice to the Trustee and the Securities Administrator of any such designation or rescission and of any change in the location of any such other office or agency.

Section 4.03.      Reports; Rule 144A Information

(a)      The Issuer shall deliver to the Trustee, within 15 calendar days after the Guarantor is required to file the same with the SEC (taking into account any applicable grace periods provided thereunder), copies 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 by rules and regulations prescribe) that the Guarantor is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (excluding any such information, document or reports, or portions thereof, subject to confidential treatment and any correspondence with the SEC). The filing of these reports with the SEC through its EDGAR database within the time periods for filing the same under the Exchange Act (taking into account any applicable grace periods provided thereunder) shall satisfy the Issuer’s obligation to furnish such reports to the Trustee. The Issuer shall promptly notify the Trustee in writing if the Guarantor fails to file any such reports. The Trustee shall have no responsibility to determine whether such filing of these reports has occurred. In the absence of such notification, the Trustee shall be entitled to presume that such filings were made. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s or the Guarantor’s compliance with any of its respective covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). 

(b)      The Issuer and the Guarantor shall, so long as any of the Notes or any Common Shares issuable upon exchange thereof will, at such time, constitute “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, promptly, upon written request, provide to the Trustee, any Holder, beneficial owner or prospective purchaser of such Notes or any Common Shares issuable upon exchange of such Notes the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act (to the extent such information is not available in the EDGAR database) to facilitate the resale of such Notes or Common Shares pursuant to Rule 144A. 

31


 

 

Section 4.04.      Existence

Except (i) as set forth in Article 5, (ii) in respect of Fundamental Changes and (iii) as otherwise permitted hereunder, the Issuer and the Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and effect their respective existence and rights (charter and statutory); provided that neither the Issuer nor the Guarantor shall be required to preserve any such right if the Issuer or the Guarantor shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer or the Guarantor and that the loss thereof is not disadvantageous in any material respect to the Holders.

Section 4.05.      Compliance Certificate

The Issuer shall deliver to the Trustee within 120 calendar days after the end of each fiscal year of the Guarantor an Officer’s Certificate of the Issuer, stating whether or not, to the knowledge of such Officer, any Default or Event of Default occurred during such period (if continuing) and if so, describing each Default or Event of Default, its status and the action the Issuer is taking or proposes to take with respect thereto.

Section 4.06.      Notification of Rule 144 Additional Interest or Reporting Additional Interest .

If Rule 144 Additional Interest or Reporting Additional Interest, as applicable, is payable by the Issuer, the Issuer shall deliver to the Trustee an Officer’s Certificate to that effect stating (i) the amount of such Rule 144 Additional Interest or Reporting Additional Interest, as applicable, that is payable and (ii) the date on which payment of such Rule 144 Additional Interest or Reporting Additional Interest, as applicable, shall commence. Unless and until a Responsible Officer of the Trustee receives such a certificate, the Trustee may assume without inquiry that no Rule 144 Additional Interest or Reporting Additional Interest, as applicable, is payable.

Section 4.07.      Payment of Additional Amounts

(a)      Unless otherwise required by law, neither the Issuer nor the Guarantor (including, for the purposes of this Section 4.07, any successor to the Issuer or the Guarantor) shall deduct or withhold from payments and deliveries made with respect to the Notes and the Guarantee , including, but not limited to, payments of principal (including, if applicable, the Fundamental Change Repurchase Price or Redemption Price), payments of interest and payments of cash and/or deliveries of Common Shares or other Reference Property, if any, upon exchange, on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature (including, without limitation, penalties and interest and other similar liabilities related thereto) (“ Taxes ”) imposed or levied by or on behalf of any political subdivisions or taxing authorities in having the power to tax.  The Issuer or the Guarantor shall withhold or deduct any Taxes as required by applicable law. In the event that any such payment or delivery by or on behalf of the Issuer or the Guarantor is subject to withholding or deduction on account of any Bermuda Taxes due from any such payment or delivery

32


 

 

made under or with respect to the Notes or the Guarantee, as the case may be, the Issuer or the Guarantor, as the case may be, shall pay Additional Amounts so that the net amount received by each Holder of Notes will equal the amount that such Holder would have received if the Bermuda Taxes had not been required to be withheld or deducted.  The amounts that the Issuer or the Guarantor are required to pay to preserve the net amount receivable by the Holders of the Notes are referred to as “ Additional Amounts .”

(b)      Additional Amounts , however, shall not be payable with respect to a payment or delivery made to a Holder of the Notes to the extent:

(i)      that any Bermuda 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, the acquisition, ownership or disposition of such Notes or the exercise or enforcement of rights under the Notes, the Guarantee or this Indenture;

(ii)      of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Notes, except as described below or as otherwise provided in this Indenture;

(iii)      that any such Bermuda Taxes would not have been imposed but for the presentation of the Notes, 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 Notes 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 Bermuda Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption such Holder is legally entitled to make, 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 date with respect to which the Issuer or the Guarantor shall apply this clause, the Issuer or the Guarantor shall have notified all Holders of the Notes in writing that they shall be required to provide this declaration or claim.

(c)      the Issuer and the Guarantor will also:

(i)      withhold or deduct such Bermuda Taxes as required;

33


 

 

(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 Notes, 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 Issuer and the Guarantor and, notwithstanding the Issuer or the Guarantor’s efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments.

(d)      The Issuer or the Guarantor shall 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 (or in any jurisdiction in the case of enforcement) with respect to the creation, issue, offering, enforcement, or retirement of the Notes or the Guarantee or with respect to payments or deliveries on the Notes or the Guarantee (other than, in the case of such taxes with respect to payments or deliveries, any taxes excluded from Additional Amounts as described above).

(e)      If payments with respect to the Notes or the Guarantee become subject generally to the taxing jurisdiction of any Territory or any political subdivision or taxing authority having power to tax, other than or in addition to any political subdivision or taxing authority in Bermuda having the power to tax, immediately upon becoming aware thereof the Issuer shall notify the Trustee of such event, and the Issuer or the Guarantor, as the case may be, shall pay Additional Amounts in respect thereof on terms corresponding to the terms of the foregoing provisions of this Section 4.07 with the substitution for (or, as the case may be, in addition to) the references herein to any political subdivisions or taxing authority in Bermuda having the power to tax with references to that other or additional Territory or any political subdivision or taxing authority having the power to tax to whose taxing jurisdiction such payments shall have become subject as aforesaid. The term “ Territory ” means for this purpose any jurisdiction (other than the United States or any political subdivision or taxing authority therein) in which the Issuer or the Guarantor, as the case may be, is incorporated or in which the Issuer or the Guarantor has its place of central management or central control or otherwise resident or doing business for tax purposes or any jurisdiction (other than the United States or any political subdivision or taxing authority therein) of any Paying Agent.

(f)      Whenever there is mentioned in any context the payment of cash and/or delivery of Common Shares or other Reference Property, if any, upon exchange of any Note or the payment of principal of (including the Fundamental Change Repurchase Price or Redemption Price, if applicable) and interest (including Additional Interest) on, any Note or any other amount payable or deliverable with respect to such Note, such mention

34


 

 

shall be deemed to include payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.

(g)      Notwithstanding anything else stated herein,   neither the Issuer nor the Guarantor shall pay Additional Amounts on account of any income or withholding Taxes imposed or levied by or on behalf of any political subdivisions or taxing authorities having the power to tax in the United States.

Section 4.08.      Waiver of Stay, Extension or Usury Laws

The Issuer covenants (to the extent it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take benefit or advantage of, any stay, extension or usury law or other law which would prohibit or forgive the Issuer from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time; the Issuer (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

Section 4.09.      Rule 144 Additional Interest

(a)      If, at any time during the six-month period beginning on, and including, the date that is six months after the last date of original issuance of the Notes offered pursuant to the applicable Offering Memorandum, the Guarantor fails to timely file any document or report that the Guarantor is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, as applicable (after giving effect to all applicable grace periods thereunder and other than current reports on Form 8-K), the Issuer shall pay Additional Interest on such Notes at the rate of 0.25% per annum of the principal amount of Notes outstanding for each day during such six-month period for which the Guarantor’s failure to file has occurred and is continuing. 

(b)      If, and for so long as, the Restricted Note Legend on the Notes has not been removed (or deemed removed pursuant to this Indenture), the Notes are assigned a restricted CUSIP or the Notes are not freely tradable by Holders other than the Issuer’s or the Guarantor’s Affiliates or Persons that were Affiliates of the Issuer or the Guarantor during the immediately preceding three months (without restrictions pursuant to U.S. securities laws or the terms of this Indenture or the Notes), in each case as of the 380th day after the last date of original issuance of the Notes offered pursuant to the applicable Offering Memorandum, the Issuer shall pay Additional Interest on such Notes at a rate equal to 0.25% per annum of the principal amount of such Notes then outstanding until such Notes are so freely tradable. 

(c)      Additional Interest payable in accordance with Section 4.09(a) or (b) (“ Rule 144 Additional Interest ”) shall be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Notes. 

35


 

 

(d)      Notwithstanding anything to the contrary, in no event shall the aggregate of any Rule 144 Additional Interest and any Reporting Additional Interest exceed 0.25% per annum of the principal amount of the Notes in respect of any period regardless of the number of any such events giving rise to such Additional Interest. 

(e)      Notwithstanding the foregoing, the Issuer shall not be required to pay Rule 144 Additional Interest pursuant to  Section 4.09(a) or Section 4.09(b) (x) on any date on which (A) the Guarantor shall have filed a Shelf Registration Statement for the resale of the Notes offered pursuant to the applicable Offering Memorandum with respect to which such Rule 144 Additional Interest is payable and any Common Shares issuable upon exchange of such Notes, (B) such Shelf Registration Statement is effective and usable by holders identified therein as selling security holders for the resale of such Notes and any Common Shares issued upon exchange of such Notes, (C) the holders may register the resale of their Notes under such Shelf Registration Statement on terms customary for the resale of exchangeable securities offered in reliance on Rule 144A and (D) such Notes and/or Common Shares sold pursuant to such Shelf Registration Statement become freely tradable as a result of such sale; or (y) once the Guarantor shall have complied with the requirements set forth in subclause (x) above for a period of one year with respect to the Notes offered pursuant to the applicable Offering Memorandum with respect to which such Rule 144 Additional Interest is payable.    

(f)      For the avoidance of doubt, in the event Additional Notes are issued under this Indenture pursuant to Section 2.01, for purposes of determining whether Additional Interest shall be payable pursuant to Section 4.09(a) or Section 4.09(b), or whether such Additional Interest is not payable pursuant to Section 4.09(e) with respect to any Notes issued under this Indenture, all Notes that do not have the same CUSIP number or were not offered by the same Offering Memorandum shall be considered separately.

Article 5
SUCCESSOR COMPANY 

Section 5.01.      Consolidation, Merger and Sale of Assets of the Issuer

The Issuer shall not, consolidate or amalgamate with or merge into any other entity or convey, transfer or lease the Issuer’s assets substantially as an entirety to any Person, unless:

(a)      the Person (the “ Successor Company ”) formed by such consolidation or amalgamation or into which the Issuer is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Issuer 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 reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Notes and the performance of every covenant of this Indenture on the part of the Issuer to be performed;

36


 

 

(b)      if as a result of such transaction, the Notes become convertible or exchangeable into Common Shares or other securities issued by a third party, such third party fully and unconditionally guarantees the obligations of the Issuer or such Successor Company under the Notes and this Indenture;

(c)      immediately after giving effect to that type of transaction, no Default or Event of Default shall have occurred and be continuing; and

Section 5.02.      Consolidation, Merger and Sale of Assets of the Guarantor

The Guarantor shall not, consolidate or amalgamate with or merge into any other entity or convey, transfer or lease the Guarantor’s assets substantially as an entirety to any Person, unless:

(a)      the Person (the “ Successor Guarantor ”) formed by such consolidation or amalgamation 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 Issuer substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Notes and the performance of every covenant of this Indenture on the part of the Guarantor to be performed;

(b)      if as a result of such transaction, the Notes become convertible or exchangeable into Common Shares or other securities issued by a third party, such third party fully and unconditionally guarantees the obligations of the Guarantor or such Successor Guarantor under the Notes and this Indenture;

(c)      immediately after giving effect to that type of transaction, no Default or Event of Default shall have occurred and be continuing; and

Section 5.03.      Successor to Be Substituted

Upon any consolidation of the Issuer or the Guarantor with, or merger or amalgamation of the Issuer or the Guarantor into, any other Person, or any conveyance, transfer or lease of the properties and assets of the Issuer or the Guarantor substantially as an entirety in accordance with Section 5.01 or Section 5.02, the Successor Company or Successor Guarantor formed by such consolidation or into which the Issuer or the Guarantor is merged or amalgamated 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 Issuer or the Guarantor, as the case may be, under this Indenture with the same effect as if such Successor Company or Successor Guarantor had been named as the Issuer 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 Notes.

Section 5.04.      Opinion of Counsel and Officer’s Certificate to Be Given to the Trustee

37


 

 

Prior to execution of any supplemental indenture effecting the assumption of obligations under the Notes and this Indenture pursuant to this Article 5 by the Successor Company or the Successor Guarantor, as the case may be, the Trustee shall receive an Officer’s Certificate and an Opinion of Counsel from the Issuer or Guarantor, as applicable, as conclusive evidence that any such consolidation, amalgamation, merger, sale, conveyance, transfer, lease or other disposition and any such assumption complies with the provisions of this Article 5 and that all conditions precedent set forth in this Indenture relating to such transaction have been complied with and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms.

Article 6
DEFAULTS AND REMEDIES 

Section 6.01.      Events of Default

An “ 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):

(a)      default in the payment of the principal of or premium, if any, or the Redemption Price or Fundamental Change Repurchase Price, on any Note, either at maturity, upon any Tax Redemption or required repurchase, by declaration or otherwise, and continuance of such default for a period of 10 days;

(b)      default in the payment of interest (including Additional Interest) or Additional Amounts, if any, upon any Note when such becomes due and payable, and continuance of such default for a period of 30 days;

(c)      default in the payment or delivery of cash, Common Shares or a combination of cash and Common Shares (including cash in lieu of fractional shares) when required to be paid or delivered following the exchange of a Note, and continuance of such default for a period of 20 days;

(d)      the failure to provide notice of the anticipated effective date or actual effective date of a Fundamental Change within 5 Trading Days of the dates required in this Indenture;

(e)      default in the observance or performance, or breach, of any covenant of the Issuer or the Guarantor in the Notes or this Indenture, and continuance of such default or breach for a period of 90 days after there has been given, in conformity with Section 6.02, to the Issuer and the Guarantor by the Trustee or to the Issuer, the Guarantor and the Trustee by the Holders of at least 25% in aggregate principal amount of the outstanding Notes a written notice specifying such default or breach and requiring it to be remedied;

38


 

 

(f)      the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case or proceeding under any applicable Bankruptcy Law or (B) a decree or order adjudging the Issuer or the Guarantor bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer 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 Issuer or the Guarantor or of any substantial part of the property of the Issuer or the Guarantor, or ordering the winding up or liquidation of the affairs of the Issuer 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;

(g)      the commencement by the Issuer 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 Issuer 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 Issuer or the Guarantor or of any substantial part of the property of the Issuer 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 Issuer or the Guarantor in furtherance of any such action; or

(h)      the Guarantee of the Notes ceases to be in full force and effect or becomes unenforceable or invalid or is declared null and void (other than in accordance with the terms of such Guarantee) or the Guarantor denies or disaffirms its obligations under such Guarantee.

The term “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

The Issuer shall deliver notice in writing to the Trustee, within 30 calendar days of becoming aware of the occurrence of any Event of Default or Default (if continuing), in each case, known to the Issuer, setting forth the details of such Event of Default or Default, its status and the action that the Issuer proposes to take with respect thereto.

Section 6.02.      Acceleration

If an Event of Default (other than an Event of Default specified in Section 6.01(f) or Section 6.01(g)) occurs and is continuing, either the Trustee by notice to the Issuer and the Guarantor, or the Holders of at least 25% in aggregate principal amount of the then

39


 

 

outstanding Notes may declare the principal of, Additional Amounts, if any, and accrued and unpaid interest (including Additional Interest) on all then outstanding Notes to be due and payable immediately. If an Event of Default specified in Section 6.01(f) or Section 6.01(g) occurs, the principal of, Additional Amounts, if any, and interest (including Additional Interest) on all Notes 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 an acceleration of Notes has occurred and before a judgment for payment of the money due has been obtained by the Trustee as hereinafter in this Article 6 provided, the Holders of a majority in aggregate principal amount of the outstanding Notes, by written notice to the Issuer, the Guarantor and the Trustee, may rescind and annul such acceleration and its consequences if:

(a)      the Issuer or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay:

(i)      the principal of and premium, if any, on any Notes which have become due otherwise than by such declaration of acceleration and Additional Amounts, if any, and any interest (including Additional Interest) thereon then due at the rate or rates prescribed therefor in such Notes or in this Indenture;

(ii)      to the extent that payment of such interest is lawful, interest upon overdue interest and overdue Additional Amounts, if any, at the rate or rates prescribed therefor in such Notes or in this Indenture;

(iii)      all sums paid or advanced by the Trustee hereunder and the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel; and

(b)      all Events of Default, other than the non-payment of the principal of Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.04.

No such rescission shall affect any subsequent Event of Default or impair any right consequent thereon.

If the maturity of the Notes is accelerated pursuant to this Section 6.02, 100% of the principal amount thereof and premium, if any, shall become due and payable plus Additional Amounts, if any, and accrued and unpaid interest (including Additional Interest) to the date of payment.

40


 

 

Section 6.03.      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, Additional Amounts, if any, or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.

The Trustee may maintain a proceeding even if it does not possess any of the Notes 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. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.

Section 6.04.      Waiver of Past Defaults

The Holders of a majority in aggregate principal amount of the Notes outstanding may, on behalf of all Holders, waive any existing Default or Event of Default under this Indenture and its consequences (including waivers obtained in connection with a tender offer or exchange offer for the Notes or a solicitation of consents in respect of the Notes, provided that in each case such offer or solicitation is made to all Holders of the Notes then outstanding on equal terms), except:

 

(a)      the Issuer’s failure to pay principal of or interest on any Notes when due; 

(b)      the Issuer’s failure to exchange any Notes into cash, Common Shares or a combination of cash and Common Shares, as the case may be, pursuant to the terms of this Indenture; 

(c)      the Issuer’s failure to pay the Fundamental Change Repurchase Price on the Fundamental Change Repurchase Date in connection with a Holder exercising its repurchase rights; or 

(d)      the Issuer’s failure to comply with any of the provisions of this Indenture that under 0 cannot be amended without the consent of each Holder affected. 

When a Default is waived, it is deemed cured, but no such waiver shall extend to any subsequent or other Default or impair any consequent right.

Section 6.05.      Control by Majority

The Holders of a majority in aggregate principal amount of the Notes 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

41


 

 

not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall receive indemnification from such Holders reasonably satisfactory to it against all losses and expenses caused by taking or not taking such action.

Section 6.06.      Limitation on Suits

No Holder may pursue any remedy under this Indenture, unless:

(a)      such Holder has given the Trustee written notice of an Event of Default and such Event of Default continues; 

(b)      the Holders of at least 25% in aggregate principal amount of the outstanding Notes have made a written request to the Trustee to pursue the remedy, and offered to the Trustee security or indemnity reasonably satisfactory to it against any cost, liability or expense of the Trustee; 

(c)      the Trustee has not instituted this action within 60 calendar days after receipt of such request; and 

(d)      during such 60 calendar day period, the Trustee has not received an inconsistent direction from the Holders of a majority in aggregate principal amount of the outstanding Notes. 

A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder (it being understood that the Trustee shall not have any affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).

Section 6.07.      Rights of Holders to Receive Payment

Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal (including payments pursuant to the required repurchase or redemption provisions of the Notes) of, premium, if any, Additional Amounts, if any and interest on the Notes held by such Holder, on or after the respective due dates expressed in the Notes or in the event of repurchase, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. In addition, notwithstanding any other provision of this Indenture, the right of any Holder to enforce its rights of exchange in accordance with the provisions of Article 10, on or after the applicable date for settlement of the Issuer’s Exchange Obligation, shall not be impaired or affected without the consent of such Holder.

Section 6.08.      Collection Suit by Trustee

If an Event of Default specified in Section 6.01(a), Error! Reference source not found. or Error! Reference source not found. occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or, if applicable, the Guarantor for the whole amount then due and owing (together

42


 

 

with interest on any unpaid interest to the extent lawful) and the amounts provided for in Section 7.07.

Section 6.09.      Trustee May File Proofs of Claim

The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel) and the Holders allowed in any judicial proceedings relative to the Issuer, its Subsidiaries, the Guarantor or their respective creditors or property and, unless prohibited by law or applicable regulations, may be entitled and empowered to participate as a member of any official committee of creditors appointed in such matter, and may vote on behalf of the Holders in any election of a trustee in bankruptcy or other Person performing similar functions, and any Custodian in any such judicial proceeding is hereby authorized by each Holder to make payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and its counsel, and any other amounts due the Trustee under Section 7.07.

Section 6.10.      Priorities

If the Trustee collects any money or property pursuant to this Article 6, it shall pay out the money or property in the following order:

FIRST: to the Trustee for amounts due under this Indenture;

SECOND: to Holders for amounts due and unpaid on the Notes for principal (including payments pursuant to the required repurchase provisions of the Notes) and interest, ratably without preference or priority of any kind, according to the amounts due and payable on the Notes for principal (including payments pursuant to the required repurchase provisions of the Notes), Additional Amounts, if any, and interest or in respect of any Exchange Obligation of the Issuer, respectively; and

THIRD: to the Issuer and Guarantor.

The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. At least fifteen calendar days before such record date, the Trustee shall mail to each Holder and the Issuer a notice that states the record date, the payment date and amount to be paid.

Section 6.11.      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 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 and expenses, against any party litigant in the suit, having due

43


 

 

regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Sections 6.06 and 6.07 or a suit by Holders of more than 10% in principal amount of the Notes.

Section 6.12.      Failure to Comply with Reporting Covenant

Notwithstanding anything to the contrary in this Indenture, if the Issuer so elects, the sole remedy for an Event of Default relating to the failure to comply with the reporting obligations in described in Section 4.03(a) hereof, shall, at the Issuer’s option, for the 365 calendar days after the occurrence of such an Event of Default, consist exclusively of the right to receive Additional Interest on the Notes at an annual rate equal to 0.25% of the principal amount of the Notes (“ Reporting Additional Interest ”).  Reporting Additional Interest shall be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the Notes. In the event the Issuer does not elect to pay the Reporting Additional Interest upon an Event of Default in accordance with this Section 6.12, the Notes shall be subject to acceleration as provided in Section 6.02. Notwithstanding anything to the contrary, in no event shall the aggregate of any Reporting Additional Interest and any Rule 144 Additional Interest for any period exceed 0.25% per annum of the principal amount of the Notes in respect of such period, regardless of the number of events or circumstances giving rise to the requirement to pay any such Reporting Additional Interest and any Rule 144 Additional Interest. Reporting Additional Interest shall accrue on all outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations in Section 4.03(a) first occurs to, but not including, the 365th day thereafter (or such earlier date on which the Event of Default is cured or waived). On such 365th day if such Event of Default is continuing, such Reporting Additional Interest will cease to accrue and the Notes will be subject to acceleration as provided in Section 6.02 above. This Section 6.12 will not affect the rights of Holders in the event of the occurrence of any other Event of Default.

Article 7
TRUSTEE 

Section 7.01.      Duties of Trustee

(a)      If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. 

(b)      Except during the continuance of an Event of Default: 

(i)      the Trustee need only perform such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and 

44


 

 

(ii)      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, in the case of certificates and opinions specifically required by any provision hereof to be furnished to it, the Trustee shall examine such certificates and opinions to determine whether or not, on their face, they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). 

(c)      The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: 

(i)      this paragraph does not limit the effect of paragraph (b) of this Section; 

(ii)      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 

(iii)      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 6.05. 

(d)      Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section. 

(e)      The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. 

(f)      Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. 

(g)      No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. 

(h)      Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. 

45


 

 

Section 7.02.      Rights of Trustee

(a)      The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon 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 Officer’s 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 the Officer’s Certificate or Opinion of Counsel. 

(c)      The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. 

(d)      The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. 

(e)      The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation. 

(f)      The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby. 

(g)      The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its rights to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder. 

(h)      The Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture. 

(i)      The Trustee shall not be required to give any note, bond or surety in respect of the execution of the trusts and powers under this Indenture. 

46


 

 

(j)      The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authorities and governmental action. 

(k)      Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to the Trustee by copies thereof certified by the Secretary or an Assistant Secretary (or equivalent Officer). 

(l)        The permissive rights of the Trustee set forth in this Indenture shall not be construed as duties. 

(m)      The Trustee shall be permitted to engage in other transactions with the Issuer or the Guarantor; provided that if the Trustee acquires any conflicting interest, it must eliminate such conflict or resign pursuant to this Article 7. 

(n)      In no event shall the Trustee be responsible or liable for special, indirect, punitive, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

(o)      the Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture.

(p)      The Trustee shall have no responsibility for any information in the Original Offering Memorandum or other disclosure materials distributed with respect to the Notes.

Section 7.03.      Individual Rights of Trustee

The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Guarantor or their respective Affiliates with the same rights it would have if it were not Trustee. Any Exchange Agent, Paying Agent, Registrar or co-paying agent may do the same with like rights. However, the Trustee must comply with Section 7.11.

Section 7.04.      Trustee’s Disclaimer

The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes or any Guarantee, it shall not be accountable for the Issuer’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuer or the Guarantor in this Indenture or in any

47


 

 

document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.

Section 7.05.      Notice of Defaults

(a)      The Trustee shall not be deemed to have notice of any Default or Event of Default, unless a Responsible Officer has received written notice thereof at its Corporate Trust Office, and such notice references this Indenture. No duty imposed upon the Trustee in this Indenture shall be applicable with respect to any Default or Event of Default of which the Trustee is not deemed to have notice. 

(b)      If a Default or Event of Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail by first class mail to each Holder at the address set forth in the Register written notice of the Default or Event of Default within 90 calendar days after it becomes aware of the occurrence of such Default or Event of Default, unless such Default or Event of Default shall have been cured or waived. Except in the case of a Default or Event of Default in payment of principal or interest on any Notes or a Default in the failure to deliver the consideration due upon exchange, the Trustee may withhold notice if and so long as it in good faith determines that withholding notice is in the interests of the Holders.

Section 7.06.      [Reserved.]

Section 7.07.      Compensation and Indemnity

The Issuer shall pay to the Trustee from time to time such compensation as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts. Each of the Issuer and the Guarantor, jointly and severally, shall indemnify the Trustee, and hold it harmless, against any and all loss, liability, claim (whether asserted by the Issuer, the Holder or any other person) or expense (including reasonable attorneys’ fees and expenses) incurred by or in connection with the offer and sale of the Notes or the acceptance or administration of this trust and the performance of its duties or powers hereunder. The Trustee shall notify the Issuer of any claim for which it may seek indemnity promptly upon obtaining actual knowledge thereof; provided ,   however , that any failure so to notify the Issuer shall not relieve the Issuer of its indemnity obligations hereunder. The Issuer shall defend the claim and the indemnified party shall provide reasonable cooperation at the Issuer’s expense in the defense. Such indemnified parties may have separate counsel and the Issuer shall pay the fees and expenses of such counsel; provided ,   however , that the Issuer shall not be required to pay such fees and expenses if it assumes such indemnified parties’ defense and, in such indemnified parties’ reasonable judgment, there is no conflict of interest between the Issuer and such parties in connection with such defense. Notwithstanding any of the foregoing, the Issuer need not

48


 

 

reimburse any expense or indemnify against any loss, liability or expense incurred by an indemnified party through such party’s own willful misconduct and negligence. The Issuer and the Guarantor need not pay for any settlement made without their consent, which consent shall not be unreasonably withheld.

To secure the Issuer’s payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest and any liquidated damages on particular Notes.

The obligations of the Issuer and the Guarantor pursuant to this Section 7.07 shall survive the satisfaction or discharge of this Indenture, any rejection or termination of this Indenture under any bankruptcy law or the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of an Event of Default specified in Error! Reference source not found. or Error! Reference source not found. with respect to the Issuer the expenses are intended to constitute expenses of administration under the Bankruptcy Law.

Section 7.08.      [Reserved.] 

Section 7.09.      Replacement of Trustee

The Trustee may resign at any time by so notifying the Issuer. The Holders of a majority in principal amount of the Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee. The Issuer shall remove the Trustee if:

(a)      the Trustee fails to comply with Section 7.11; 

(b)      the Trustee is adjudged bankrupt or insolvent; 

(c)      a receiver or other public officer takes charge of the Trustee or its property; or 

(d)      the Trustee otherwise becomes incapable of acting. 

If the Trustee is removed by the Holders of a majority in principal amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if the Trustee resigns, is removed by the Issuer or a vacancy otherwise exists in the office of Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.

A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. 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 7.07.

49


 

 

If a successor Trustee does not take office within 90 calendar days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Notes may petition any court of competent jurisdiction (at the expense of the Issuer) for the appointment of a successor Trustee.

If the Trustee fails to comply with Section 7.101, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

Notwithstanding the replacement of the Trustee pursuant to this Section, the Issuer’s and the Guarantor’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.

Section 7.10.      Successor Trustee by Merger

If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.

In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes 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 Notes or in this Indenture provided that the certificate of the Trustee shall have.

Section 7.11.      Eligibility; Disqualification

The Trustee shall at all times satisfy the requirements of Trust Indenture Act § 310(a). The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with Trust Indenture Act § 310(b); provided, however, that there shall be excluded from the operation of Trust Indenture Act § 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuer or the Guarantor are outstanding if the requirements for such exclusion set forth in Trust Indenture Act § 310(b)(1) are met.

Article 8
DISCHARGE OF INDENTURE 

Section 8.01.      Discharge of Liability on Notes

50


 

 

(a)      This Indenture shall, subject to Section 8.01(b), cease to be of further effect if: 

(i)      the Issuer (A) delivers all outstanding Notes (other than Notes replaced pursuant to Section 2.09) to the Trustee for cancellation or (B) (x) deposits with the Trustee or the Paying Agent after such Notes have become due and payable, whether at stated maturity, upon exchange, or on any Fundamental Change Repurchase Date or Redemption Date, cash (including any cash in lieu of fractional shares in connection with the exchange) and (y) in the case of an exchange for which a Physical Settlement or Combination Settlement applies, delivers to the exchanging Holders Common Shares issuable upon exchange, in each case calculated in accordance with this Indenture sufficient to satisfy all obligations due on all outstanding Notes and pays all other sums payable under this Indenture; and 

(ii)      the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided herein relating to the satisfaction and discharge of this Indenture have been complied with. 

(b)      Notwithstanding Section 8.01(a), the obligations of the Issuer and the Guarantor, as applicable, in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, and 7.07 and in this Article 8 shall survive until the Notes have been paid in full. Thereafter, the obligations of the Issuer and the Guarantor, as applicable, in Sections 7.07, 8.03 and 8.04 shall survive such satisfaction and discharge. 

Section 8.02.      Application of Trust Money

The Trustee shall hold in trust money or other property due in respect of exchanged Notes or payments due under this Article 8 deposited with it pursuant to this Article 8. It shall apply the deposited money through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes due in respect of exchanged Notes, in accordance with this Indenture in relation to the exchange of Notes pursuant to the terms hereof.

Section 8.03.      Repayment to Issuer

Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon written request any money held by them for the payment of principal or interest and any Common Shares or other property due in respect of exchanged Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money and/or securities must look to the Issuer for payment as general creditors.

Section 8.04.      Reinstatement

If the Trustee or Paying Agent is unable to apply any money or to deliver any other property due in respect of exchanged Notes or other payments due in accordance

51


 

 

with this Article 8 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 Issuer’s and Guarantor’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article 8 until such time as the Trustee or Paying Agent is permitted to apply all such money or other property due in respect of exchanged Notes or other payments due in accordance with this Article 8; provided ,   however , that, if the Issuer has made any payment of interest on or principal of any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

Article 9
AMENDMENTS 

Section 9.01.      Without Consent of Holders

This Indenture (including the terms and conditions of the Notes) and the Notes may be modified or amended by the Issuer, the Guarantor, the Securities Administrator and the Trustee, without the consent of the Holders, to, among other things:

(a)      convey, transfer, assign, mortgage or pledge to the Trustee as security for the Notes any property or assets;

(b)      evidence the succession of another Person to the Issuer or the Guarantor, or successive successions, and the assumption by the Successor Company or Successor Guarantor of the covenants, agreements and obligations of the Issuer or the Guarantor pursuant to Section 5.01 or Section 5.02;

(c)      add to the covenants of the Issuer or the Guarantor such further covenants, restrictions, conditions or provisions as the Issuer or the Guarantor and the Trustee shall consider to be for the protection of the Holders of Notes, to surrender any right or power herein conferred upon the Issuer 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 an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture; provided that in respect of any such additional covenant, restriction, condition or provision such amendment or supplement 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 Notes to waive such an Event of Default;

(d)      cure any ambiguity or omission 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 Notes;

52


 

 

(e)      increase the Exchange Rate as provided herein; 

(f)      irrevocably elect or eliminate one or more Settlement Methods to the extent such Settlement Method is available under this Indenture, or, in the case of Combination Settlement, irrevocably elect a Specified Dollar Amount;

(g)      provide for exchange rights of Holders and the Issuer’s repurchase obligations in connection with a Fundamental Change and/or in the event of any events described under Section 10.05;

(h)      provide for uncertificated Notes in addition to or in place of certificated Notes, provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;

(i)      provide for the issuance of Additional Notes and related Guarantees;

(j)      add guarantees of obligations under the Notes;

(k)      provide for a successor Trustee;

(l)      to effect any provision of this Indenture;

(m)    to conform the text of this Indenture or the Notes to the “Description of the Notes” set forth in the Original Offering Memorandum to the extent such provision in the “Description of the Notes” was intended to be a verbatim, or substantially verbatim, recitation of provisions of this Indenture or the Notes (which intent may be evidenced by an Officer’s Certificate to such effect); or

(n)     to make any other change that does not adversely affect the rights of any Holder.  

Upon the request of the Issuer and the Guarantor and upon receipt by the Trustee and the Securities Administrator of the documents described in Section 9.06, the Trustee and the Securities Administrator shall join with the Issuer and the Guarantor in the execution of any supplemental indenture entered into to effect any such amendment, supplement or waiver. 

Section 9.02.      With Consent of Holders

Except as provided in Section 9.01 or below in this 0, the Issuer, the Guarantor, the Trustee and the Securities Administrator may amend or supplement this Indenture or any of the Notes with the consent (including consents obtained in connection with a tender offer or exchange offer for the Notes or a solicitation of consents in respect of the Notes, provided that in each case such offer or solicitation is made to all Holders of the Notes then outstanding on equal terms) of the Holders of a majority in aggregate principal amount of the Notes then outstanding affected thereby.

53


 

 

Upon the request of the Issuer and the Guarantor and upon the filing with the Trustee and the Securities Administrator of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee and the Securities Administrator of the documents described in Section 9.06, the Trustee and the Securities Administrator shall join with the Issuer and the Guarantor in the execution of any supplemental indenture entered into to effect any such amendment, supplement or waiver. After an amendment, supplement or waiver under this 0 becomes effective, the Issuer shall send to the Holders of each Note affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to send such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.

The Holders of a majority in aggregate principal amount of the Notes then outstanding may waive compliance in a particular instance by the Issuer or the Guarantor with any provision of this Indenture or the Notes (including waivers obtained in connection with a tender offer or exchange offer for such Notes or a solicitation of consents in respect of such Notes, provided that in each case such offer or solicitation is made to all Holders of the Notes then outstanding on equal terms), except a default in the payment of the principal of, premium, if any, Additional Amounts, if any, or interest on any Notes or in respect of a provision which under this Indenture cannot be amended without the consent of the holder of each outstanding Note affected.

It shall not be necessary for the consent of the Holders under this 0 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof.

Without the consent of each Holder affected, an amendment, supplement or waiver under this Section 9.02 may not:

(a)      extend the final maturity of the principal of any of the Notes;

(b)      reduce the principal amount of any of the Notes;

(c)      reduce the rate or extend the time of payment of interest (including Additional Interest), or Additional Amounts, if any, on any of the Notes;

(d)      reduce any amount payable on redemption of any of the Notes or upon required repurchase upon a Fundamental Change;

(e)      change the currency in which the principal of or premium, if any, Additional Amounts, if any, or interest (including Additional Interest) on any of the Notes is payable;

(f)      change the Issuer’s obligation to repurchase any Notes upon a Fundamental Change in a manner adverse to the Holders; 

(g)      affect the right of a Holder to exchange any Notes into cash, Common Shares or a combination of cash and Common Shares, as the case may be, or reduce the

54


 

 

number of Common Shares or amount of property, including cash, receivable upon exchange pursuant to the terms of this Indenture; 

(h)      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 Note (including Additional Interest);

(i)      make any change in the percentage of principal amount of the Notes necessary to waive compliance with or to modify certain provisions of this Indenture; or

(j)      waive a continuing Default or Event of Default in the payment of principal of or premium, if any, Additional Amounts, if any, or interest, including Additional Interest, on the Notes.

Section 9.03.      [Reserved.] 

Section 9.04.      Revocation and Effect of Consents and Waivers

A consent to an amendment or a waiver by a Holder shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective once both (i) the requisite number of consents have been received by the Issuer or the Trustee and (ii) such amendment or waiver has been executed by the Issuer, the Guarantor and the Trustee.

The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding 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 give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 calendar days after such record date.

Section 9.05.      Notation on or Exchange of Notes

If an amendment changes the terms of a Note, the Trustee may require the Holder of the Note to deliver the Note to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment.

55


 

 

Section 9.06.      Trustee to Sign Amendments

The Trustee shall sign any amendment authorized pursuant to this Article 9 if the amendment 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 such amendment the Trustee shall be provided with, and (subject to Sections 7.01 and 7.02) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer’s Certificate and an Opinion of Counsel stating that such amendment is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligation of the Issuer enforceable against it in accordance with its terms (which Officer’s Certificate and Opinion of Counsel may contain customary exceptions and qualifications).

Article 10
EXCHANGE OF NOTES 

Section 10.01.      Right to Exchange

Upon compliance with the provisions of this Article 10, a Holder may exchange, at such Holder’s option, all or part of its Notes, in multiples of $1,000, based on the Exchange Rate (the “ Exchange Obligation ”). Prior to the close of business on the second Business Day immediately preceding December 15, 2023, Holders shall have the right to exchange their Notes only under the circumstances described in clauses (a) through (e) below. On or after December 15, 2023, a Holder may surrender its Notes for exchange at any time on or prior to the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date without regard to the conditions in clauses (a) through (e) below. In no event may Notes be surrendered for exchange after the close of business on the second Scheduled Trading Day immediately preceding the Maturity Date.

(a)      Exchange Upon Satisfaction of Sale Price Condition . All or a portion of a Holder’s Notes may be surrendered for exchange on any date during any fiscal quarter beginning after March 31, 2017 (and only during such fiscal quarter) if the Closing Sale Price of the Common Shares was more than 130% of the then current Exchange Price for at least 20 Trading Days (whether or not consecutive) in the period of the 30 consecutive Trading Days ending on the last Trading Day of the previous fiscal quarter. 

(b)      Exchange Upon Specified Corporate Transactions . If the Guarantor elects to: 

(i)      distribute to holders of its Common Shares generally certain rights, options or warrants (or any other security for which a Closing Sale Price must be determined) entitling them to purchase, for a period expiring within 45 calendar days after the declaration date for such distribution, Common Shares at a price per share less than the Closing Sale Price of the Common Shares on the Trading Day immediately preceding the declaration date for such distribution; or 

56


 

 

(ii)      distribute to holders of its Common Shares generally cash, other assets, securities or rights to purchase securities of the Guarantor, which distribution has a per Common Share value as reasonably determined by the Guarantor’s Board of Directors (or a committee thereof) exceeding 15% of the Closing Sale Price of the Common Shares on the Trading Day immediately preceding the declaration date for such distribution, 

then, in each case, the Issuer shall notify all Holders either (x) at least 45 Scheduled Trading Days prior to the Ex‑Date for any such distribution by notice in writing or (y) at least 10 Scheduled Trading Days prior to the Ex‑Date for such distribution; provided that, if the Issuer provides such notice in accordance with this clause (y) but not in accordance with the immediately preceding clause (x), notwithstanding anything to the contrary under Section 10.02 below or any other provision of this Indenture, the Issuer shall be required to settle all exchanges of Notes with an Exchange Date occurring during the period from, and including, the date of such notice to, and including, the Ex-Date for such distribution using Physical Settlement and the Issuer shall so notify the Holders in such notice in writing. Once the Issuer has given such notice, a Holder may surrender all or a portion of its Notes for exchange at any time until the earlier of the close of business on the Business Day immediately preceding the Ex-Date or the Issuer’s public announcement that such distribution shall not take place, even if the Notes are not otherwise exchangeable at such time.  No Holder may exercise this right to exchange if such Holder otherwise may participate in the distribution, without exchange, on the same terms as holders of the Common Shares as if such Holder held a number of Common Shares equal to the Exchange Rate on the Record Date of such distribution for each $1,000 principal amount of Notes held by such Holder (calculated on an aggregate basis per Holder).

(c)      Exchange Upon a Fundamental Change and Certain Other Corporate Events .  

If (1) the Guarantor is a party to a consolidation, merger, amalgamation, binding share exchange or sale or conveyance of all or substantially all of the Guarantor’s property and assets that does not constitute a Fundamental Change or a Make-Whole Fundamental Change, in each case, pursuant to which the Common Shares would be converted into Reference Property or (2) a Fundamental Change or a Make-Whole Fundamental Change (other than in connection with a Redemption Notice) occurs, in each case, a Holder may surrender Notes for exchange. The Issuer shall notify each Holder, the Trustee and the Exchange Agent (if other than the Trustee) (i) as promptly as practicable following the date the Issuer publicly announces such transaction but in no event less than 25 Scheduled Trading Days prior to the anticipated Effective Date for any such transaction or (ii) if the Issuer does not have knowledge of such transaction at least 25 Scheduled Trading Days prior to the anticipated effective date of such transaction, within three Business Days of the date upon which the Issuer receives notice, or otherwise becomes aware, of such transaction, but in no event later than the actual Effective Date of such transaction by notice in writing. In any such case, each Holder will have the right to exchange its Notes at any time beginning 25 Scheduled Trading Days prior to the date the Issuer notifies Holders as being the anticipated Effective Date of the

57


 

 

transaction (or, if later, the Business Day after the Issuer gives notice of such transaction) to, and including the date which is the earlier of (x) the date which is 35 Trading Days after the date that is the actual effective date of such transaction or, in the case of any transaction or event described above that also constitutes a Fundamental Change, the close of business on the Business Day immediately preceding the relevant Fundamental Change Repurchase Date and (y) the second Scheduled Trading Day immediately preceding the Maturity Date. If any Holder has submitted any or all of its Notes for repurchase in connection with a Fundamental Change, unless such Holder has withdrawn such Notes in a timely fashion, its exchange rights on the Notes so subject to repurchase will expire at the close of business on the second Business Day preceding the Fundamental Change Repurchase Date, unless the Issuer defaults in the payment of the Fundamental Change Repurchase Price. If any Holder has submitted any Notes for repurchase, such Notes may be exchanged only if such Holder timely submits a withdrawal notice and, if the Notes submitted are evidenced by a Global Note, such Holder complies with appropriate Depositary procedures. 

(d)      Exchange Upon Satisfaction of Trading Price Condition . Notes may be surrendered for exchange at any time during the five consecutive Business Day period immediately following any ten consecutive Trading Day period in which the Trading Price per $1,000 principal amount of Notes, as determined following a request by a Holder in accordance with the procedures set forth in this Section 10.01(d), for each Trading Day of such ten Trading Day period was less than 98% of the product of the Closing Sale Price of the Common Shares for each Trading Day during such ten Trading Day period and the then applicable Exchange Rate. The bid solicitation agent (if other than the Issuer) shall have no obligation to determine the Trading Price per $1,000 principal amount of Notes unless the Issuer shall have requested such a determination.  The Issuer shall have no obligation to make that request (or, if the Issuer is acting as bid solicitation agent, the Issuer shall have no obligation to determine the Trading Price of the Notes) unless a Holder of Notes requests that the Issuer do so.  If such a Holder provides such request, the Issuer shall instruct the bid solicitation agent (if other than the Issuer) to determine, or, if the Issuer is acting as bid solicitation agent, the Issuer shall determine, the Trading Price per $1,000 principal amount of Notes for each Trading Day until the minimum Trading Price threshold is exceeded. If (x) the Issuer is not acting as bid solicitation agent, and the Issuer does not so instruct the bid solicitation agent to obtain bids when required, or (y) the Issuer is acting as bid solicitation agent, and it fails to solicit bids when required, then, in either case, the Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the product of the Closing Sale Price of the Common Shares and the applicable Exchange Rate on each Trading Day such failure occurs. The bid solicitation agent (if other than the Issuer), the Exchange Agent and the Trustee shall have no obligation to determine the Trading Price of the Notes.

The Issuer shall initially act as the bid solicitation agent.

(e)      Exchange Upon Redemption .  If the Issuer calls any Note for a Tax Redemption, then the Holder of such Note may exchange such Note at any time before the close of business on the second Business Day immediately before the related

58


 

 

Redemption Date (or, if the Issuer fails to pay the Redemption Price due on such Redemption Date in full, at any time until such time as the Issuer pays such Redemption Price in full).

Section 10.02.      Exchange Procedures; Settlement Upon Exchange; No Adjustment for Interest or Dividends; Cash Payments in Lieu of Fractional Shares

(a)      In order to exercise the exchange right with respect to any Notes in certificated form, a Holder must, prior to the deadline for such exchange specified in Section 10.01: 

(i)      complete and manually sign a notice of exchange in the form entitled “Exchange Notice” attached to the reverse of such certificated Note (or a facsimile thereof) (a “ Exchange Notice ”); 

(ii)      deliver such Exchange Notice and the certificated Notes to be exchanged to the Exchange Agent at the office of the Exchange Agent; 

(iii)      to the extent any Common Shares issuable upon exchange are to be issued in a name other than the Holder’s, furnish appropriate endorsements and transfer documents as may be required by the Exchange Agent; 

(iv)      if required pursuant to this Section 10.02(a), pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled; and 

(v)       if required pursuant to Section 10.02(g), pay all transfer or similar taxes, if any. 

In order to exercise the exchange right with respect to any interest in a Global Note, a Holder must, prior to the deadline for such exchange specified in Section 10.01:

(i)      exchange by book-entry transfer to the Exchange Agent through the facilities of the Depositary and the Exchange Notice must comply with all applicable Depositary procedures;

(ii)     if required pursuant to this Section 10.02(a), pay funds equal to interest payable on the next Interest Payment Date to which such Holder is not entitled; and

(iii)     if required pursuant to Section 10.02(g), pay all transfer or similar taxes, if any.

The date on which the Holder satisfies the foregoing requirements is the “ Exchange Date. ” The Notes shall be deemed to have been exchanged immediately prior to the close of business on the Exchange Date; provided ,   however , that the Person in whose name any Common Shares shall be issuable upon such exchange shall become the holder of record of such shares as of the close of business on the Exchange Date, in the

59


 

 

case of Physical Settlement, or the last Trading Day of the relevant Exchange Period, in the case of Combination Settlement except as set forth in Section 10.04.

If a Holder exchanges any Notes after the close of business on the Regular Record Date for an interest payment but on or prior to the open of business on the corresponding Interest Payment Date, the record Holder at the close of business on such Regular Record Date (if other than such Holder) shall receive any interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the exchange.  Such Notes, upon surrender for exchange, must be accompanied by funds equal to the amount of interest that has accrued and shall be paid on the Notes being exchanged on the corresponding Interest Payment Date. However, such Holder is not required to make such payment:

(i)      if such Holder exchanges its Notes following the close of business on the Regular Record Date immediately preceding the Maturity Date;

(ii)      if such Holder exchanges its Notes in connection with a Fundamental Change and the Issuer has specified a Fundamental Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding Interest Payment Date

(iii)        to the extent of any overdue interest, if overdue interest exists at the time of exchange with respect to such Holder’s Notes; or

(iv)      if the Issuer has specified a Redemption Date that is after a Regular Record Date and on or prior to the third Business Day immediately following the corresponding Interest Payment Date.

Therefore, for the avoidance of doubt, all record Holders of Notes on the Regular Record Date immediately preceding the Maturity Date, the Redemption Date and any Fundamental Change Repurchase Date described in (i), (ii) and (iv) above will receive the full interest payment due on the Maturity Date, Redemption Date or Fundamental Change Repurchase Date or other applicable interest payment date regardless of whether their Notes have been exchanged following such Regular Record Date.

If a Holder has already delivered a Fundamental Change Repurchase Notice pursuant to Section 3.01 with respect to a Note, such Holder may not surrender that Note for exchange until such Holder has validly withdrawn the Fundamental Change Repurchase Notice in accordance with Section 3.02, except as to a portion of such Note that is not subject to such Fundamental Change Repurchase Notice.

(b)      Subject to this Section 10.02, Section 10.03 and Section 10.05, upon exchange of any Note, the Issuer may, at its election, pay or deliver, as the case may be, to the exchanging Holder, in respect of each $1,000 principal amount of Notes being exchanged either solely cash (“ Cash Settlement ”), solely Common Shares (other than cash in lieu of any fractional shares) (“ Physical Settlement ”) or a combination of cash and Common Shares (“ Combination Settlement ”), as set forth in this Section 10.02(b). 

60


 

 

All exchanges occurring on or after December 15, 2023 shall be settled using the same Settlement Method. Prior to December 15, 2023, the Issuer shall use the same Settlement Method for all exchanges occurring on the same Exchange Date, but the Issuer shall not have any obligation to use the same Settlement Method with respect to exchanges that occur on different Exchange Dates. However, notwithstanding anything to the contrary, if any Notes are called for a Tax Redemption, then the Issuer shall specify in the related Redemption Notice the Settlement Method that will apply to all exchanges of Notes with an Exchange Date that occurs on or after the Tax Redemption Notice Date and before the related Redemption Date

If the Issuer elects a Settlement Method, the Issuer shall notify Holders so exchanging of such Settlement Method through the Securities Administrator, who shall inform Holders through DTC, no later than the close of business on the second Scheduled Trading Day immediately following the related Exchange Date (or, in the case of any exchanges occurring on or after December 15, 2023, no later than the close of business on the Scheduled Trading Day immediately preceding December 15, 2023). If the Issuer does not timely elect a Settlement Method, the Issuer shall no longer have the right to elect Cash Settlement or Physical Settlement, and the Issuer shall be deemed to have elected Combination Settlement in respect of its Exchange Obligation, and the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000. If the Issuer elects Combination Settlement but does not timely notify exchanging Holders of the Specified Dollar Amount per $1,000 principal amount of Notes, such Specified Dollar Amount will be deemed to be $1,000.  The Issuer may from time to time change the default Settlement Method by written notice to the Holders.

The cash, Common Shares or combination of cash and Common Shares in respect of any exchange of Notes (the “ Settlement Amount ”) shall be computed as follows:

(i)      if the Issuer elects to satisfy its Exchange Obligation in respect of such exchange by Physical Settlement, the Issuer shall deliver to exchanging Holders in respect of each $1,000 principal amount of Notes being exchanged a number of Common Shares equal to the Exchange Rate in effect on the Exchange Date (and cash in lieu of any fractional share as described in Section 10.02(i)); 

(ii)      if the Issuer elects to satisfy its Exchange Obligation in respect of such exchange by Cash Settlement, the Issuer shall pay to exchanging Holders in respect of each $1,000 principal amount of Notes being exchanged cash in an amount equal to the sum of the Daily Exchange Values for each of the 20 consecutive Trading Days in the relevant Exchange Period; and 

(iii)      if the Issuer elects (or is deemed to have elected) to satisfy its Exchange Obligation in respect of such exchange by Combination Settlement, the Issuer shall pay or deliver, as the case may be, to exchanging Holders in respect of each $1,000 principal amount of Notes being exchanged, a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days in the relevant Exchange Period (and cash in lieu of any fractional share as described in Section 10.02(i)). 

61


 

 

(c)      Except as described under Section 10.03, Section 10.04 and Section 10.05, if Cash Settlement or Combination Settlement is applicable, the Issuer shall pay and/or deliver the consideration due upon exchange on the third Business Day immediately following the final Trading Day of the related Exchange Period. If Physical Settlement is applicable, the Issuer shall deliver the consideration due upon exchange on the third Business Day immediately following the related Exchange Date (except as otherwise provided in Section 10.04); provided , that, with respect to any Exchange Date with respect to which Physical Settlement applies occurring after December 15, 2023, settlement will occur on the Maturity Date. 

(d)      If more than one Note shall be surrendered for exchange at one time by the same Holder, the Exchange Obligation with respect to such Notes, if any, that shall be payable upon exchange shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted thereby) so surrendered. 

(e)      In case any certificated Note shall be surrendered for partial exchange, the Issuer shall execute and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the certificated Note so surrendered, without charge to such Holder, a new certificated Note or Notes in authorized denominations in an aggregate principal amount equal to the unexchanged portion of the surrendered certificated Note. 

(f)      Upon the exchange of an interest in a Global Note, the Trustee and the Depositary shall reduce the principal amount of such Global Note in their records. 

(g)      The issue of stock certificates on exchanges of Notes shall be made without charge to the exchanging Holder of Notes for any taxes or duties in respect of the issue thereof. The Issuer shall not, however, be required to pay any such tax or duty which may be payable in respect of any transfer involved in the issue and delivery of stock in any name other than that of the Holder of any Notes exchanged, and the Issuer shall not be required to issue or deliver any such stock certificate unless and until the Person or Persons requesting the issue thereof shall have paid to the Issuer the amount of such tax or duty or shall have established to the satisfaction of the Issuer that such tax has been paid. 

(h)      Except as provided in Section 10.02(a), upon exchange, Holders shall not receive any separate cash payment of accrued and unpaid interest on the Notes. Accrued and unpaid interest and Additional Amounts, if any, attributable to the period from the most recent Interest Payment Date to the Exchange Date shall be deemed to be paid in full with the payment or delivery, as the case may be, of the cash, Common Shares or a combination thereof, upon exchange, rather than cancelled, extinguished or forfeited. With respect to any exchange with Combination Settlement, accrued and unpaid interest will be deemed to be paid first out of the cash paid upon such exchange.  The Issuer’s payment or delivery to the Holders of the cash, Common Shares or a combination thereof, to be paid upon exchange of the Notes (including any cash payment in lieu of fractional shares) shall be deemed to satisfy the Issuer’s obligation to pay:

(i)      the principal amount of the Notes; and

62


 

 

(ii)       accrued and unpaid interest and Additional Amounts, if any, attributable to the period from the most recent Interest Payment Date to the Exchange Date.

(i)      The Guarantor shall not issue fractional Common Shares upon exchange of the Notes. If any fractional Common Shares would be issuable upon the exchange of any Note or Notes, the Issuer shall instead pay cash in lieu of fractional shares based on the Closing Sale Price of the Common Shares on the relevant Exchange Date, in the case of Physical Settlement, or on the final Trading Day of the relevant Exchange Period, in the case of Combination Settlement. 

(j)      Except as described under Section 10.04, the Issuer shall not make any payment or other adjustment for dividends on any Common Shares issued upon exchange of the Notes. 

(k)      The Issuer shall inform the Trustee or the Securities Administrator upon its request if the Notes have become exchangeable under Section 10.01(a).

Section 10.03.      Adjustment to Exchange Rate Upon a Make-Whole Fundamental Change

If and only to the extent (i) a Holder elects to exchange its Notes in connection with a Fundamental Change described in the definition of Fundamental Change (determined after giving effect to any exceptions to or exclusions from such definition, but without regard to the Majority Ownership Exception in the definition of Change in Control) or (ii) the Issuer provides a Redemption Notice in accordance with Section 12.02 (each, a “ Make-Whole Fundamental Change ”), the Exchange Rate shall be increased by an additional number of Common Shares (the “ Additional Shares ”).

The number of Additional Shares shall be determined by reference to the table below, based on (x) with respect to a Make-Whole Fundamental Change pursuant to clause (i) of the definition thereof, the date on which the Make-Whole Fundamental Change occurs or becomes effective; and (y) with respect to a Make-Whole Fundamental Change pursuant to clause (ii) of the definition thereof, the Tax Redemption Notice Date (each, a “ Make-Whole Effective Date ”) and, in either case, the price paid (or deemed paid) per share (the “ Share Price ”) per Common Share with respect to such Make-Whole Fundamental Change. If holders of Common Shares receive only cash as a result of a Make-Whole Fundamental Change, the Share Price will be the cash amount paid per share. Otherwise, the Share Price will be the average of the Closing Sale Prices of the Common Shares on the five Trading Days immediately preceding the Make-Whole Effective Date of such Make-Whole Fundamental Change. The Issuer shall notify Holders of the anticipated Make-Whole Effective Date with respect to a Make-Whole Fundamental Change pursuant to clause (i) of the definition thereof at least 35 Scheduled Trading Days prior to such Make-Whole Effective Date.  Notwithstanding the foregoing, the Issuer shall not be required to make any adjustment referred to in this Section 10.03 if the Make-Whole Effective Date is after the Maturity Date.

63


 

 

An exchange of the Notes by a Holder shall be deemed for purposes of this Section 10.03 to be “in connection with” a Make-Whole Fundamental Change pursuant to clause (i) of the definition thereof only if the Exchange Date occurs on or following the Make-Whole Effective Date of the Make-Whole Fundamental Change but before the close of business on the second Scheduled Trading Day immediately preceding the related Fundamental Change Repurchase Date (as specified in the Fundamental Change Issuer Notice) (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the Majority Ownership Exception, the 25th Trading Day immediately following such Make-Whole Effective Date).  An exchange of Notes by a Holder shall be deemed for purposes of this Section 10.03 to be “in connection with” a Make-Whole Fundamental Change pursuant to clause (ii) of the definition thereof if the Exchange Date occurs from, and including, the date of the related Redemption Notice (the “ Tax Redemption Notice Date ”) up to, and including, the close of business on the second Scheduled Trading Day immediately prior to the related Redemption Date.

The number of Additional Shares set forth in the table below shall be adjusted in the same manner as and at the same time as the Exchange Rate of the Notes is adjusted pursuant to Section 10.04. The Share Prices set forth in the first row of the table below (i.e., the column headers) shall be simultaneously adjusted to equal the Share Prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which shall be the Exchange Rate immediately prior to the adjustment and the denominator of which shall be the Exchange Rate as so adjusted.

The following table sets forth the number of Additional Shares by which the Exchange Rate shall be adjusted:

 

 

Share Price

Effective Date

    

$

17.97 

    

$

20.00 

    

$

22.50 

    

$

25.16 

    

$

27.50 

    

$

30.00 

    

$

35.00 

    

$

40.00 

    

$

50.00 

    

$

60.00 

    

$

75.00

January 13, 2017

    

 

15.8995 

    

 

13.1490 

    

 

10.5413 

    

 

8.4320 

    

 

6.9825 

    

 

5.7427 

    

 

3.9326 

    

 

2.7138 

    

 

1.2746 

    

 

0.5487 

    

 

0.0900 

January 15, 2018

 

 

15.8995 

 

 

13.1490 

 

 

10.5413 

 

 

8.4118 

 

 

6.9153 

 

 

5.6437 

 

 

3.8057 

 

 

2.5845 

 

 

1.1704 

 

 

0.4788 

 

 

0.0647 

January 15, 2019

 

 

15.8995 

 

 

13.1490 

 

 

10.5413 

 

 

8.3398 

 

 

6.7927 

 

 

5.4887 

 

 

3.6266 

 

 

2.4105 

 

 

1.0372 

 

 

0.3923 

 

 

0.0360 

January 15, 2020

 

 

15.8995 

 

 

13.1490 

 

 

10.5329 

 

 

8.1475 

 

 

6.5502 

 

 

5.2183 

 

 

3.3483 

 

 

2.1563 

 

 

0.8578 

 

 

0.2847 

 

 

0.0100 

January 15, 2021

 

 

15.8995 

 

 

13.1490 

 

 

10.2156 

 

 

7.7273 

 

 

6.0876 

 

 

4.7427 

 

 

2.9031 

 

 

1.7745 

 

 

0.6158 

 

 

0.1570 

 

 

0.0000 

January 15, 2022

 

 

15.8995 

 

 

12.9315 

 

 

9.5058 

 

 

6.9110 

 

 

5.2491 

 

 

3.9260 

 

 

2.2029 

 

 

1.2200 

 

 

0.3182 

 

 

0.0363 

 

 

0.0000 

January 15, 2023

 

 

15.8995 

 

 

11.8580 

 

 

8.0587 

 

 

5.3271 

 

 

3.6982 

 

 

2.5037 

 

 

1.1389 

 

 

0.4940 

 

 

0.0494 

 

 

0.0000 

 

 

0.0000 

January 15, 2024

 

 

15.8995 

 

 

10.2510 

 

 

4.6956 

 

 

0.0000 

 

 

0.0000 

 

 

0.0000 

 

 

0.0000 

 

 

0.0000 

 

 

0.0000 

 

 

0.0000 

 

 

0.0000 

 

provided ,   however , that the exact Share Price and Make-Whole Effective Date may not be set forth on the table, in which case, if the Share Price is:

(1)      between two Share Prices in the table or such Make-Whole Effective Date is between two Make-Whole Effective Dates on the table, the number of Additional Shares shall be determined by straight-line interpolation between the number of Additional Shares set forth for the higher and lower Share Price amount and the two Make-Whole Effective Dates, as applicable, based on a 360-day year;

64


 

 

(2)      in excess of $75.00 per share (subject to adjustment in the same manner and at the same time as the Share Prices in the table above), no Additional Shares will be added to the Exchange Rate; or

(3)      less than $17.97 per share (subject to adjustment in the same manner and at the same time as the Share Prices in the table above), no Additional Shares will be added to the Exchange Rate.

Notwithstanding the foregoing, in no event shall the Exchange Rate exceed 55.6483 shares per $1,000 principal amount of Notes, subject to adjustment in the same manner as the Exchange Rate pursuant to Section 10.04.

Any exchange of Notes that entitles the exchanging Holder to an adjustment to the Exchange Rate as described in this Section 10.03 shall be settled as described in Section 10.02.

Section 10.04.      Adjustment of Exchange Rate

The Issuer shall adjust the Exchange Rate for the following events:

(a)      If the Guarantor issues Common Shares as a dividend or distribution on Common Shares generally, or if the Guarantor effects a share split or share combination with respect to its Common Shares, the Exchange Rate shall be adjusted based on the following formula: 

 

ER 1  =  ER 0  × 

OS 1

 

 

OS 0

 

where,

ER 1      =     the Exchange Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution or the Effective Date of such share split or share combination, as the case may be;

ER 0      =     the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution or the Effective Date of such share split or share combination, as the case may be;

OS 0      =     the number of Common Shares outstanding immediately prior to the open of business on the Ex-Date for such dividend or distribution or the Effective Date of such share split or share combination; and

OS 1      =     the number of Common Shares that would be outstanding immediately after, and solely as a result of, such dividend, distribution, share split or share combination, as the case may be.

65


 

 

Any adjustment made under this clause (a) shall become effective immediately after the open of business on such Ex-Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this clause (a) is declared but not so paid or made, the Exchange Rate shall be immediately readjusted, effective as of the date the Board of Directors or a committee thereof determines not to pay such dividend or distribution, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.

(b)      If the Guarantor distributes to holders of its Common Shares generally any rights, options or warrants entitling them to purchase, for a period of 45 calendar days or less from the declaration date for such distribution, Common Shares at a price per share less than the Closing Sale Price of the Common Shares on the Trading Day immediately preceding, but excluding, the declaration date for such distribution, the Exchange Rate shall be increased based on the following formula: 

 

ER 1  =  ER 0  × 

OS 0  +  X  

 

 

OS 0  +  Y  

 

where

ER 1      =    the Exchange Rate in effect immediately after the open of business on the Ex-Date for such distribution;

ER 0      =    the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

OS 0      =    the number of Common Shares outstanding immediately prior to the open of business on the Ex-Date for such distribution;

X         =    the total number of Common Shares issuable pursuant to such rights, options or warrants; and

Y         =    the number of Common Shares equal to the aggregate price payable to exercise such rights, options or warrants, divided by the Closing Sale Price of the Common Shares on the Trading Day immediately preceding, but excluding, the declaration date for such distribution.

Any increase made under this clause (b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the open of business on the Ex-Date for such distribution. To the extent that Common Shares are not delivered after the expiration of such rights, options or warrants, the Exchange Rate shall be decreased to the Exchange Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of Common Shares actually delivered. If such rights, options or warrants are not so distributed, the Exchange Rate shall be

66


 

 

decreased to the Exchange Rate that would then be in effect if such Ex-Date for such distribution had not occurred.

For purposes of this clause (b) and Section 10.01(b)(i) above, in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase Common Shares at a price per share less than such Closing Sale Price on the Trading Day immediately preceding, but excluding, the declaration date for such distribution, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received by the Guarantor for such rights, options or warrants and any amount payable upon exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors or a committee thereof.

(c)      If the Guarantor distributes shares of its Capital Stock, evidences of its indebtedness or other of its securities, assets or property to holders of Common Shares generally, excluding: 

(i)      dividends or distributions described in clause (a) or (b) above; 

(ii)     dividends or distributions paid exclusively in cash described in clause (d) below;

(iii)    any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the change in the exchange consideration as described in Section 10.05;

(iv)    except as otherwise described in this Section 10.04, rights issued pursuant to a shareholders’ rights plan adopted by the Guarantor; and

(v)     Spin-Offs described below in the fourth paragraph of this clause (c);  

then the Exchange Rate shall be increased based on the following formula:

 

ER 1  =  ER 0  × 

SP 0

 

 

SP 0  –  FMV 

 

where,

ER 1      =    the Exchange Rate in effect immediately after the open of business on the Ex-Date for such distribution;

ER 0      =    the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for such distribution;

67


 

 

SP 0       =    the average Closing Sale Price of the Common Shares over the ten consecutive Trading Days immediately preceding, but excluding, the Ex-Date for such distribution; and

FMV   =    the fair market value (as determined by the Board of Directors or a committee thereof) of the shares of Capital Stock, evidences of Indebtedness, securities, assets or property distributed with respect to each outstanding Common Share immediately prior to the open of business on the Ex-Date for such distribution.

Any increase made under the portion of this clause (c) above shall become effective immediately after the open of business on the Ex-Date for such distribution. If such distribution is not so paid or made, the Exchange Rate shall be decreased to be the Exchange Rate that would then be in effect if such distribution had not been declared.

Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP 0 ” (as defined above), or if the difference between “SP 0 ” and “FMV” is less than $1.00, in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Shares without having to exchange its Notes, the amount and kind of the Capital Stock, evidences of the Guarantor’s indebtedness, or other securities assets or property of the Guarantor that such Holder would have received as if such Holder owned a number of Common Shares equal to the Exchange Rate in effect on the Ex-Date for the distribution. If the Guarantor issues rights, options or warrants that are only exercisable upon the occurrence of certain triggering events, then the Issuer shall not adjust the Exchange Rate pursuant to this clause (c) until the earliest of those triggering events occurs. In addition, in the case of any distribution of rights, options or warrants, to the extent such rights, options or warrants expire unexercised, the Exchange Rate shall be immediately readjusted to the Exchange Rate that would then be in effect had the increase made for the distribution of such rights, options or warrants been made on the basis of delivery of only the number of Common Shares actually delivered upon exercise of such rights, options or warrants.

With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Shares in shares of Capital Stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Guarantor that will be, upon distribution, listed or quoted on a U.S. national or regional securities exchange (a “ Spin-Off ”), the Exchange Rate shall be increased based on the following formula:

 

ER 1  =  ER 0  × 

FMV  +  MP 0

 

 

MP 0

 

where,

ER 1     =     Exchange Rate in effect immediately after the open of business on the Ex-Date for the Spin-Off;

68


 

 

ER 0     =     the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for the Spin-Off;

FMV  =     the average Closing Sale Price of the Capital Stock or similar equity interest distributed to holders of the Common Shares applicable to one Common Share (determined by reference to the definition of Closing Sale Price as if references therein to Common Shares were to such Capital Stock or similar equity interest) for the ten consecutive Trading Days immediately following, and including, the Ex-Date for such Spin-Off (such period, the “ Valuation Period ”); and

MP 0    =     the average of the Closing Sale Prices of the Common Shares over the Valuation Period.

Any adjustment to the Exchange Rate under the preceding paragraph of this clause (c) shall be made immediately after the close of business on the last day of the Valuation Period, but shall be given effect as of the open of business on the Ex-Date for the Spin-Off. Because the Issuer will make the adjustment to the Exchange Rate at the end of the Valuation Period with retroactive effect, the Issuer shall delay the settlement of any Notes where the Exchange Date (in the case of Physical Settlement) or the final day of the related Exchange Period (in the case of Cash Settlement or Combination Settlement) occurs during the Valuation Period. In such event, the Issuer shall pay or deliver, as the case may be, any cash, Common Shares or a combination thereof representing the Issuer’s exchange obligation due upon exchange (based on the adjusted Exchange Rate as described above) on the third Business Day immediately following the last Trading Day of the Valuation Period. The Person in whose name the certificate for any Common Shares delivered upon exchange is registered shall be treated as a stockholder of record as of the close of business on the last Trading Day of the Valuation Period. If any distribution of the type described in this Section 10.04(c) is declared but not so made, the Exchange Rate shall be immediately readjusted, effective as of the date the Board of Directors or a committee thereof determines not to make such distribution, to the Exchange Rate that would then be in effect if such distribution had not been declared.

(d)      If the Guarantor pays any cash dividends or distributions exclusively in cash to holders of its Common Shares generally (other than dividends or distributions made in connection with the Guarantor’s liquidation, dissolution or winding-up), other than a regular quarterly cash dividend that does not exceed the Dividend Threshold per Common Share, the Exchange Rate shall be increased based on the following formula: 

 

ER 1  =  ER 0  × 

SP 0  – 

 

 

SP 0  – 

 

where,

69


 

 

ER 1      =  the Exchange Rate in effect immediately after the open of business on the Ex-Date for such dividend or distribution;

ER 0      =  the Exchange Rate in effect immediately prior to the open of business on the Ex-Date for such dividend or distribution;

SP 0       =  the average Closing Sale Price of the Common Shares for the ten consecutive Trading Days immediately preceding, but excluding, the Ex-Date for such dividend or distribution;

C         =  the amount in cash per share the Guarantor distributes to holders of the Common Shares; and

T         =  an amount (subject to the proviso below, the “ Dividend Threshold ”) initially equal to $0.06 per common share; provided ,   however , that (x) if such dividend or distribution is not a regular quarterly cash dividend on the Common Shares, then the Dividend Threshold will be deemed to be zero per Common Share with respect to such dividend or distribution; and (y) the Dividend Threshold will be adjusted in the same manner as, and at the same time and for the same events for which the Exchange Rate is adjusted as a result of the operation of clauses (a), (b) and (c) above and clause (e) below.

Any increase made under this clause (d) shall become effective immediately after the open of business on the Ex-Date for such dividend or distribution. If such dividend or distribution is not so paid, the Exchange Rate shall be decreased, effective as of the date the Board of Directors, or a committee thereof, determines not to make or pay such dividend or distribution, to be the Exchange Rate that would then be in effect if such dividend or distribution had not been declared.

Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP 0 ” (as defined above), or if the difference between “SP 0 ” and “C” is less than $1.00, in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of Common Shares without having to exchange its Notes, the amount of cash that such Holder would have received as if such Holder owned a number of Common Shares equal to the Exchange Rate in effect on the Ex-Date for such cash dividend or distribution.

(e)      If the Guarantor or any of its Subsidiaries, including the Issuer, makes a payment in respect of a tender offer or exchange offer for the Common Shares, other than odd lot tender offers, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the average of the Closing Sale Price of the Common Shares over the ten consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date (the “ Expiration Date ”) on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Exchange Rate shall be increased based on the following formula: 

70


 

 

 

ER 1  =  ER 0  × 

AC  +   ( SP 1   ×  OS 1 )

 

 

OS 0   ×  SP 1

 

where,

ER 1      =  the Exchange Rate in effect immediately after the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;

ER 0      =  the Exchange Rate in effect immediately prior to the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date;

AC      =  the aggregate value, on the Expiration Date, of all cash and any other consideration (as determined by the Board of Directors or a committee thereof) paid or payable for shares purchased in such tender or exchange offer;

SP 1       =  the average Closing Sale Price of the Common Shares for the ten consecutive Trading Days next succeeding the Expiration Date (the “ Averaging Period ”);

OS 1      =  the number of Common Shares outstanding immediately after the close of business on the Expiration Date (after giving effect to such tender offer or exchange offer); and

OS 0      =  the number of Common Shares outstanding immediately prior to the close of business on the Expiration Date (prior to giving effect to such tender offer or exchange offer).

Any adjustment to the Exchange Rate under this clause (e) shall occur at the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date; provided that in respect of any exchange of Notes within the 10 Trading Days immediately following, and including, the Trading Day next succeeding the Expiration Date, references with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Expiration Date and the Exchange Date in determining the Exchange Rate. In addition, if the Trading Day next succeeding the Expiration Date is after the tenth Trading Day immediately preceding, and including, the end of any Exchange Period in respect of an exchange of Notes, references in this clause (e) to 10 Trading Days shall be deemed to be replaced, solely in respect of that exchange, with such lesser number of Trading days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, and including, the last day of such Exchange Period.

If the Guarantor or one of its Subsidiaries is obligated to purchase Common Shares pursuant to any such tender or exchange offer described in clause (e) above, but is permanently prevented by applicable law from effecting any such purchase or all such

71


 

 

purchases are rescinded, the applicable Exchange Rate shall be readjusted to be the Exchange Rate that would then be in effect if such tender or exchange offer had not been made or had been made only in respect of the purchases that have been effected.

(f)      To the extent that any shareholders’ rights plan adopted by the Guarantor is in effect upon exchange of the Notes, Holders will receive, in addition to any Common Shares due upon exchange, the rights under the applicable rights agreement. However, if, prior to any exchange, the rights have separated from the Common Shares in accordance with the provisions of the applicable shareholders’ rights plan, the Exchange Rate will be adjusted at the time of separation as if the Guarantor distributed to all holders of the Common Shares, shares of Capital Stock, evidences of indebtedness, securities, assets or property as described in clause (c) above, subject to readjustment in the event of the expiration, termination or redemption of such rights. 

(g)      Notwithstanding the foregoing, if an Exchange Rate adjustment becomes effective on any Ex-Date as described in this Section 10.04, and a Holder that has exchanged its Notes on or after such Ex-Date and on or prior to the related Record Date would be treated as the record holder of the Common Shares as of the related Exchange Date as described under Section 10.02(b) based on an adjusted Exchange Rate for such Ex-Date, then, notwithstanding the foregoing Exchange Rate adjustment provisions, such Exchange Rate adjustment relating to such Ex-Date shall not be made for such exchanging Holder. Instead, such Holder shall be treated as if such Holder were the record owner of such Common Shares on an unadjusted basis and participate in the related dividend, distribution or other event giving rise to such adjustment. 

(h)      In addition, if a Holder exchanges a Note and 

(i)      Combination Settlement is applicable to such a Note; 

(ii)      the Record Date, Effective Date, or Expiration Date for any event that requires an adjustment to the Exchange Rate under any of Sections 10.04(a) through (e) occurs (x) on or after the first Trading Day (as defined pursuant to the proviso of the definition thereof) of the related Exchange Period and (y) on or prior to the last Trading Day (as defined pursuant to the proviso of the definition thereof) of such Exchange Period; and 

(iii)      the Daily Settlement Amount for any Trading Day (as defined pursuant to the proviso of the definition thereof) in such Exchange Period that occurs on or prior to such Record Date, Effective Date or Expiration Date (x) includes Common Shares that do not entitle their holder to participate in such event and (y) is calculated based on an Exchange Rate that is not adjusted on account of such event; 

then, on account of such exchange, the Issuer will, on such Record Date, Effective Date or Expiration Date, treat such Holder, as a result of having exchanged such Notes, as though it were the record holder of a number of Common Shares equal to the total number of Common Shares that:

72


 

 

(A)      are deliverable as part of the Daily Settlement Amount (1) for a Trading Day (as defined pursuant to the proviso of the definition thereof) in such Exchange Period that occurs on or prior to such Record Date, Effective Date or Expiration Date and (2) is calculated based on an Exchange Rate that is not adjusted for such event; and 

(B)      if not for this Section 10.04(h) would not entitle such Holder to participate in such event. 

(i)      Adjustments to the Exchange Rate will be calculated to the nearest 1/10,000th of a share. 

(j)      Except as stated in this Section 10.04 and in Section 10.03, the Issuer shall not adjust the Exchange Rate for the issuances of Common Shares or any securities convertible into or exchangeable for Common Shares or rights to, purchase Common Shares or such convertible or exchangeable securities. 

(k)      Without limiting the foregoing Section 10.04(j), no adjustment to the Exchange Rate need be made: 

(i)      upon the issuance of any Common Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Guarantor and the investment of additional optional amounts in Common Shares under any plan; 

(ii)      upon the issuance of any Common Shares or options or rights to purchase Common Shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Guarantor or any of its Subsidiaries (including the Issuer); 

(iii)      upon the issuance of any Common Shares pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as of the date of this Indenture; 

(iv)      upon the issuance of any Common Shares at a price below the Exchange Price;

(v)      upon the repurchase of any Common Shares pursuant to an open-market share repurchase program or other buy-back transaction that is not a tender offer or exchange offer of the nature described under Section 10.04(e);

(vi)      for a third-party tender offer by any Subsidiary of the Guarantor as described under Section 10.04(e);

(vii)      for a change in the par value of the Common Shares; or 

(viii)      for accrued and unpaid interest, if any. 

73


 

 

(l)      Notwithstanding anything to the contrary in this Section 10.04, the Exchange Rate shall not be adjusted pursuant to this Section 10.04 if as a result of holding the Notes the Holders shall otherwise participate (other than in the case of a share split or share combination), at the same time and upon the same terms as holders of the Common Shares in any of the transactions that would otherwise give rise to adjustment pursuant to this Section 10.04 without exchange of such Holder’s Notes as if such Holder held a number of Common Shares equal to the applicable Exchange Rate multiplied by the principal amount (expressed in thousands) of Notes held by such Holder.

(m)      No adjustment pursuant to this Section 10.04 is required to be made to the Exchange Rate unless such adjustment would require a change of at least 1% in the Exchange Rate then in effect at such time. However, any adjustments that are less than 1% of the Exchange Rate shall be carried forward and taken into account in any subsequent adjustment, regardless of whether the aggregate adjustment is less than 1%, (i) with respect to any Notes surrendered for exchange for which the Issuer has elected Cash Settlement or Combination Settlement, on each Trading Day in the relevant Exchange Period and (ii) with respect to any Notes surrendered for exchange for which the Issuer has elected Physical Settlement, on the Exchange Date. 

(n)      In addition to those required by Sections 10.04(a) through (e), and subject to compliance with the listing standards of the NYSE, the Issuer from time to time may increase the Exchange Rate by any amount for a period of at least 20 Business Days.  Subject to compliance with the listing standards of the NYSE, the Issuer may also (but is not required to) increase the Exchange Rate to avoid or diminish income tax to holders of Common Shares or rights to purchase Common Shares in connection with a dividend or distribution of shares (or rights to acquire shares) or similar event. 

(o)      Whenever the Exchange Rate is adjusted as herein provided, the Issuer shall (i) file with the Trustee and with the Exchange Agent an Officer’s Certificate briefly stating the facts requiring the adjustment and the manner of computation and (ii) the Issuer shall notify the Holders of the Notes. 

(p)      For purposes of this Section 10.04, the number of Common Shares at any time outstanding shall not include shares held in the treasury of the Guarantor but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of Common Shares. The Guarantor shall not pay any dividend or make any distribution on Common Shares held in the treasury of the Guarantor. 

(q)      Whenever any provision of this Indenture requires the Issuer to calculate the Closing Sale Prices, the volume-weighted average price, the Daily Exchange Values or the Daily Settlement Amounts over, or based on, a span of multiple calendar days (including an Exchange Period, Valuation Period or Averaging Period), the Issuer shall make appropriate adjustments to each to account for any adjustment to the Exchange Rate that becomes effective, or any event requiring an adjustment to the Exchange Rate where the Ex-Date of the event occurs, at any time during the period when the Closing Sale Prices, the volume-weighted average prices, the Daily Exchange Values or the Daily Settlement Amounts are to be calculated. 

74


 

 

Section 10.05.      Effect of Reclassifications, Business Combinations, Asset Sales and Corporate Events

In the case of:

(a)      any recapitalization, reclassification or change of the Common Shares (other than changes in par value or to or from no par value or resulting from a subdivision or combination); 

(b)      any consolidation, merger, amalgamation or combination involving the Guarantor; 

(c)      any sale, lease or other transfer to a third-party of all or substantially all of the consolidated assets of the Guarantor and its Subsidiaries substantially as an entirety; or 

(d)      any statutory share exchange, 

in each case, as a result of which the Common Shares would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof), then, at and after the effective time of the transaction, the right to exchange each $1,000 principal amount of Notes will be changed into a right to exchange such principal amount of Notes into, in lieu of Common Shares, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of Common Shares equal to the Exchange Rate immediately prior to such transaction would have owned or been entitled to receive (the “ Reference Property ”) upon such transaction. Thereafter, references in this Indenture to Common Shares shall be deemed to apply mutatis mutandis to equivalent units of Reference Property, as nearly as is practical as determined in good faith by the Issuer. However, at and after the effective time of the transaction (i) the Issuer shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon exchange of the Notes as set forth under, and subject to, Section 10.02 above and (ii)(x) any amount otherwise payable in cash upon exchange of the Notes as set forth under Section 10.02 above will continue to be payable in cash, (y) the number of Common Shares, if any, otherwise deliverable upon exchange of the Notes as set forth under Section 10.02 above will instead be deliverable in the amount and type of Reference Property that a holder of that number of Common Shares would have received in such transaction and (z) the volume-weighted average price will be calculated based on the value of a unit of Reference Property that a holder of one Common Share would have received in such transaction. If the transaction causes the Common Shares to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), the Reference Property into which the Notes will become exchangeable will be deemed to be the kind and amount of consideration actually received by holders of a majority of the Common Shares that voted for such an election (if electing between two types of consideration) or holders of a plurality of the Common Shares that voted for such an election (if electing between more than two types of consideration), as the case may be. If

75


 

 

the holders of Common Shares receive only cash in such transaction, then for all exchanges that occur after the effective date of such transaction (i) the consideration due upon exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Exchange Rate in effect on the Exchange Date (as may be increased by any Additional Shares as described under Section 10.03), multiplied by the Share Price of Common Shares in such transaction and (ii) the Issuer shall satisfy the Exchange Obligation by paying cash to exchanging Holders on the third Business Day immediately following the Exchange Date.  The Issuer and the Guarantor shall not become a party to any such transaction described in this Section 10.05 unless its terms are consistent with the foregoing.

In connection with any transaction described in this Section 10.05, the Issuer shall also adjust the Dividend Threshold based on the number of Common Shares comprising the Reference Property and (if applicable) the value of any non-stock consideration comprising the Reference Property.  If the Reference Property is comprised solely of non-stock consideration, then the Dividend Threshold shall be zero.

Section 10.06.      Certain Covenants

(a)      The Guarantor shall, prior to the issuance of any Notes hereunder, and from time to time as may be necessary, reserve out of its authorized but unissued Common Shares or Common Shares held in treasury, a sufficient number of Common Shares, free of preemptive rights, to permit the exchange of the Notes. 

(b)      The Guarantor covenants that all Common Shares issued upon exchange of Notes shall be duly and validly issued and fully paid and non-assessable by the Guarantor and free from all taxes, liens and charges with respect to the issue thereof. 

(c)      The Guarantor shall endeavor promptly to comply with all federal and state securities laws regulating the issuance and delivery of Common Shares upon the exchange of Notes, if any, and shall cause to have listed or quoted and shall keep listed or quoted all such Common Shares on each U.S. national securities exchange or automatic quotation system or over-the-counter or other domestic market on which the Common Shares are then listed or quoted. 

Section 10.07.      Trustee Disclaimer

The Trustee shall have no duty to determine when or if an adjustment or reclassification under this Article 10 should be made, how it should be made, what any such adjustment or reclassification should be or if any adjustment or reclassification has been performed properly. If any adjustment is made to an Exchange Rate the Trustee may accept as conclusive evidence of that fact or the correctness of any such adjustment, and shall be fully protected in relying upon, the Officer’s Certificate delivered to the Trustee pursuant to Section 10.04(o) hereof. Unless and until the Trustee receives such Officer’s Certificate, the Trustee may assume without inquiry that the Exchange Rate has not been adjusted. The Trustee makes no representations as to the validity or value of any securities or assets issued upon exchange of the Notes, and the Trustee shall not be

76


 

 

responsible for the Issuer or the Guarantor’s failure to comply with any provision of this Article 10. 

Section 10.08.      Surrender to Financial Institution in Lieu of Exchange

(a)      When a Holder surrenders Notes for exchange and the Exchange Date for such Notes occurs prior to December 15, 2023, the Issuer may, at its election (a “ Financial Institution Surrender Election ”), direct the Exchange Agent in writing to surrender, on or prior to the second Business Day immediately following the relevant Exchange Date, such Notes to a financial institution designated by the Issuer (a “ Financial Institution Surrender ”) in lieu of exchange.  In order to accept any Notes surrendered for a Financial Institution Surrender, the designated financial institution must agree to timely pay or deliver, as the case may be, in exchange for such Notes, all of the cash, Common Shares or a combination thereof otherwise due upon exchange, all as provided above in Section 10.02 (the “ Exchange Consideration ”).  If the Issuer makes a Financial Institution Surrender Election, the Issuer shall, by the close of business on the second Business Day immediately following the relevant Exchange Date, notify the Holder surrendering its Notes for exchange that the Issuer has made such Financial Institution Surrender Election, and the Issuer shall notify the designated financial institution of the Settlement Method it has elected with respect to such exchange and the relevant deadline for payment or delivery of the relevant Exchange Consideration.

(b)      If the designated financial institution accepts any such Notes for a Financial Institution Surrender, it will pay or deliver, as the case may be, the Exchange Consideration to the Exchange Agent, and the Exchange Agent will pay or deliver such Exchange Consideration to such exchanging Holder on the third Business Day immediately following the relevant Exchange Date.  Any Notes exchanged by the designated financial institution will remain outstanding. If the designated financial institution agrees to accept any Notes for a Financial Institution Surrender but does not timely pay or deliver the related Exchange Consideration, or if such designated financial institution does not accept the Notes for a Financial Institution Surrender, the Issuer shall exchange the Notes and pay or deliver, as the case may be, the Exchange Consideration on the third Business Day immediately following the relevant Exchange Date as described above in Section 10.02.  The Issuer’s designation of a financial institution to which the Notes may be submitted for a Financial Institution Surrender does not require such institution to accept any Notes.

Article 11
GUARANTEE 

Section 11.01.      The Guarantee.    

Subject to the provisions of this Article 11, the Guarantor hereby irrevocably and unconditionally guarantees, jointly and severally, on a senior unsecured basis, to the Holders and to the Trustee the full and punctual payment (whether at stated maturity, by declaration of acceleration, upon required repurchase or otherwise) of the principal of, premium, if any, and interest, including Additional Interest, and Additional Amounts, if

77


 

 

any, on, and all other amounts payable under, each Note, payments required upon exchange of the Notes and the full and punctual payment of all other amounts payable by the Issuer under this Indenture, when and as they become due and payable, whether at maturity, upon repurchase, by declaration of acceleration or otherwise.  Upon failure by the Issuer to pay punctually any such amount, the Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in this Indenture.

If an Event of Default occurs with respect to a payment on the Notes, the Holders may institute legal proceedings directly against the Guarantor to enforce the Guarantee without first proceeding against the Issuer.

Section 11.02.      Guarantee Unconditional.    

The obligations of the Guarantor hereunder are unconditional and absolute and, without limiting the generality of the foregoing, will not be released, discharged or otherwise affected by

(a)     any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Issuer under this Indenture or any Note, by operation of law or otherwise;

(b)     any modification or amendment of or supplement to this Indenture or any Note;

(c)     any change in the corporate existence, structure or ownership of the Issuer, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Issuer or its assets or any resulting release or discharge of any obligation of the Issuer contained in this Indenture or any Note;

(d)     the existence of any claim, set-off or other rights which the Guarantor may have at any time against the Issuer, the Trustee or any other Person, whether in connection with this Indenture or any unrelated transactions, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;

(e)     any invalidity or unenforceability relating to or against the Issuer for any reason of this Indenture or any Note, or any provision of applicable law or regulation purporting to prohibit the payment by the Issuer of the principal of or interest on any Note or any other amount payable by the Issuer under this Indenture; or

(f)     any other act or omission to act or delay of any kind by the Issuer, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to such Guarantor’s obligations hereunder.

Section 11.03.      Discharge; Reinstatement.    

The Guarantor’s obligations hereunder will remain in full force and effect until the principal of, premium, if any, and interest on the Notes and all other amounts payable

78


 

 

by the Issuer under this Indenture have been paid in full.  If at any time any payment of the principal of, premium, if any, or interest on any Note or any other amount payable by the Issuer under this Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise, the Guarantor’s obligations hereunder with respect to such payment will be reinstated as though such payment had been due but not made at such time. 

Section 11.04.          Waiver by the Guarantor. 

The Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Issuer or any other Person. 

Section 11.05.        Subrogation and Contribution.    

Upon making any payment with respect to any obligation of the Issuer under this Article, the Guarantor will be subrogated to the rights of the payee against the Issuer with respect to such obligation.

Section 11.06.      Stay of Acceleration.    

If acceleration of the time for payment of any amount payable by the Issuer under this Indenture or the Notes is stayed upon the insolvency, bankruptcy or reorganization of the Issuer, all such amounts otherwise subject to acceleration under the terms of this Indenture are nonetheless payable by the Guarantor forthwith on demand by the Trustee or the Holders.

Section 11.07.      Execution and Delivery of Guarantee.    

The execution by the Guarantor of this Indenture (or an amended or supplemental indenture as provided in Article 9) evidences the Guarantee of the Guarantor, whether or not the person signing as an officer of the Guarantor still holds that office at the time of authentication of any Note.  The delivery of any Note by the Trustee after authentication constitutes due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor.

Section 11.08.      Release of Guarantee.    

The Guarantee will terminate upon defeasance or discharge of the Notes, as provided in Article 8 hereto or upon satisfaction of the conditions in Section 5.02.

Upon delivery by the Issuer to the Trustee and the Securities Administrator of an Officer’s Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in order to evidence the release of the Guarantor from its obligations under the Guarantee.

79


 

 

Article 12
REDEMPTION UPON A CHANGE IN TAX LAW

Section 12.01.      Redemption Upon a Change in Tax Law

No sinking fund shall be required for the Notes.  The Notes shall not be redeemable by the Issuer prior to the Maturity Date except to the extent set forth in this Article 12. Prior to the Maturity Date, if the Issuer or the Guarantor has, or on the next Interest Payment Date would, become obligated to pay to the Holder of any Note Additional Amounts as a result of any change or amendment that is announced and becomes effective on or after the date of the applicable Offering Memorandum in the laws or any rules or regulations of a relevant taxing jurisdiction or any change that is announced on or after the date of the applicable Offering Memorandum in an interpretation, administration or application of such laws, rules or regulations by any legislative body, court, governmental agency, taxing authority or regulatory or administrative authority of such relevant taxing jurisdiction (including the enactment of any legislation and the formal announcement or publication of any judicial decision or regulatory or administrative interpretation or determination) (a “ Change in Tax Law ”), then the Issuer may, at its option redeem for cash all but not part of the Notes (except in respect of certain Holders that elect otherwise in accordance with Section 12.02) at a redemption price equal to 100% of the principal amount, plus accrued and unpaid interest, to, but excluding, the Redemption Date (the “ Redemption Price ”), including, for the avoidance of doubt, any Additional Amounts with respect to such Redemption Price (any such redemption, a “ Tax Redemption ”); provided that the Issuer may only redeem the Notes if (x) the Issuer or the Guarantor (as applicable) cannot avoid these obligations by taking commercially reasonable measures available to the Issuer or the Guarantor (as applicable) and (y) the Issuer delivers to the Trustee and Securities Administrator an opinion of outside legal counsel of recognized standing in the relevant taxing jurisdiction attesting to such Change in Tax Law and obligation to pay Additional Amounts (which opinion, for the avoidance of doubt, shall not be required to include an opinion as to whether “commercially reasonable efforts” could be undertaken to avoid the otherwise applicable obligations) and an Officer’s Certificate attesting to such Change in Tax Law and obligation to pay Additional Amounts. If the Redemption Date occurs after a Regular Record Date and on or prior to the corresponding Interest Payment Date, the Issuer shall pay the full amount of accrued and unpaid interest and any Additional Amounts with respect to such interest due on such Interest Payment Date to the record Holder of the Notes on the Regular Record Date corresponding to such Interest Payment Date, and the Redemption Price payable to the Holder who presents a Note for a Tax Redemption will be equal to 100% of the principal amount of such Note, including, for the avoidance of doubt, any Additional Amounts with respect to such Redemption Price.

Section 12.02.      Notice of Redemption; Selection of Notes

(a)      If the Issuer exercises its right to redeem all of the Notes pursuant to Section 12.01, it shall fix a date for redemption (each, a “ Redemption Date ”) and it shall send a notice of such Tax Redemption (a “ Redemption Notice ”) not less than thirty (30) calendar nor more than sixty (60) calendar days prior to the Redemption Date to each

80


 

 

Holder of Notes so to be redeemed; provided ,   however , that, notwithstanding anything to the contrary herein, no Redemption Notice shall be given earlier than 90 calendar days prior to the earliest date on which the Issuer would, but for such Tax Redemption, be obligated to make payments of Additional Amounts and at the time any such Redemption Notice is given, such obligation to pay such Additional Amounts must remain in effect.  The Redemption Date must be a Business Day.

(b)      Each Redemption Notice shall specify:

(i)      the Redemption Date;

(ii)     the Redemption Price;

(iii)      that on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon, if any, shall cease to accrue on and after the Redemption Date (except as provided in the definition of Redemption Price with respect to a Redemption Date that falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date);

(iv)     the place or places where such Notes are to be surrendered for payment of the Redemption Price;

(v)      that Holders may surrender their Notes for exchange at any time prior to the close of business on the Scheduled Trading Day immediately preceding the Redemption Date;

(vi)     the procedures an exchanging Holder must follow to exchange its Notes and the Settlement Method and Specified Dollar Amount, if applicable;

(vii)     the Exchange Rate and, if applicable, the number of Additional Shares added to the Exchange Rate in accordance with Section 10.03; and

(viii)     the CUSIP, ISIN or other similar numbers, if any, assigned to such Notes.

(c)           A Redemption Notice shall be irrevocable and will not be subject to conditions, and outstanding Notes will become due and payable at the Redemption Price on the Redemption Date.

(d)      Upon receiving a Redemption Notice, each Holder shall have the right to elect to not have its Notes redeemed, in which case the Issuer shall not be obligated to pay any Additional Amounts on any payment with respect to such Notes solely as a result of such Change in Tax Law that resulted in the obligation to pay such Additional Amounts (whether upon exchange, repurchase, maturity or otherwise, and whether in cash, Common Shares, Reference Property or otherwise) after the Redemption Date (or, if the Issuer fails to pay the Redemption Price on the Redemption Date, such later date on which the Issuer pays the Redemption Price), and all future payments with respect to

81


 

 

such Notes will be subject to the deduction or withholding of such relevant taxing jurisdiction taxes required by law to be deducted or withheld as a result of such Change in Tax Law; provided that, notwithstanding the foregoing, if a Holder electing not to have its Notes redeemed exchanges its Notes, the Issuer shall be obligated to pay Additional Amounts, if any, with respect to such exchange.

(e)      A Holder electing to not have its Notes redeemed must deliver to the Trustee a written notice of such election so as to be received by the Trustee prior to the close of business on the second Scheduled Trading Day immediately preceding the Redemption Date; provided that a Holder that complies with the requirements for exchange described under Section 10.02 will be deemed to have delivered a notice of its election to not have its Notes so redeemed. A Holder may withdraw any notice of election (other than such a deemed notice of election) by delivering to the Trustee a written notice of withdrawal prior to the close of business on the second Scheduled Trading Day immediately preceding the Redemption Date (or, if the Issuer fails to pay the Redemption Price on the Redemption Date, such later date on which the Issuer pays the Redemption Price). If no election is made or deemed to have been made, the Holder will have its Notes redeemed without any further action.

Section 12.03.      Payment of Notes Called for Redemption

If any Redemption Notice has been given in respect of the Notes in accordance with Section 12.02, the Notes shall become due and payable on the Redemption Date at the place or places stated in the Redemption Notice and at the applicable Redemption Price, except as provided in the definition of Redemption Price with respect to a Redemption Date that falls after a Regular Record Date but on or prior to the immediately succeeding Interest Payment Date.  On presentation and surrender of the Notes at the place or places stated in the Redemption Notice, the Notes shall be paid and redeemed by the Issuer at the applicable Redemption Price.

Section 12.04.      Restrictions on Redemption

Notwithstanding anything to the contrary in this Indenture or the Notes, the Issuer may not redeem any Notes if the principal amount of the Notes has been accelerated (other than as a result of failure to pay the Redemption Price and any related interest as provided in this Article 12) and such acceleration has not been rescinded on or before the related Redemption Date.

Article 13
MISCELLANEOUS 

Section 13.01.      [Reserved.] 

Section 13.02.      Notices

Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture (except for the initial authentication of the

82


 

 

Notes on the date hereof), the Issuer Any notice or communication shall be in writing and delivered in person or mailed by first-class mail addressed as follows:

If to either the Company or the Guarantor:

Nabors Industries, Inc.
515 West Greens Road, Suite 1200
Houston, Texas  77067
Attention:  General Counsel
Facsimile:  (281) 775-8431

 

With a copy to:

Vinson & Elkins LLP

1001 Fannin Street

Suite 2500

Houston, TX 77002

Attn: Mike Telle

 

and

Latham & Watkins LLP
885 Third Avenue

New York, New York 10022
Telephone (212) 906-1200
Attn:  Witold Balaban

 

If to the Trustee:

Wilmington Trust, National Association
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention:  Nabors Industries, Inc. Administrator
Facsimile: (302) 636-4145

If to the Securities Administrator:

Citibank, N.A.
388 Greenwich Street, 14
th Floor
New York, New York 10013
Attention: Louis A. Piscitelli
Facsimile: (347) 767-2639

The Issuer, the Securities Administrator or the Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.

83


 

 

Any notice or communication required to be mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the Register of the Registrar, or, with respect to Global Notes, may be transmitted to the Depositary in accordance with its rules and procedures.

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, it is duly given, whether or not the addressee receives it.

In addition to the foregoing, the Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

Section 13.03.      [Reserved.] 

Section 13.04.      Certificate and Opinion as to Conditions Precedent

Upon any request or application by the Issuer to the Trustee or the Securities Administrator to take or refrain from taking any action under this Indenture (except for the initial authentication of the Notes on the date hereof), the Issuer shall furnish to the Trustee or the Securities Administrator, as the case may be:

(a)      an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Securities Administrator, as the case may be, stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and 

(b)      an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Securities Administrator, as the case may be, stating that, in the opinion of such counsel, all such conditions precedent have been complied with. 

Section 13.05.      Statements Required in Certificate or Opinion

Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than the certificate provided for in Section 4.05) shall include:

84


 

 

(a)      a statement that the individual making such certificate or opinion has read such covenant or condition; 

(b)      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; 

(c)      a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and 

(d)      a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with. 

Section 13.06.      When Notes Disregarded

In determining whether the Holders of the required principal amount of Notes have consented to a modification, amendment or waiver of the terms of this Indenture, Notes owned by the Guarantor or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Guarantor shall be disregarded (from both the numerator and denominator) and deemed not to be outstanding except that, for the purpose of determining whether the Trustee shall be protected in relying on any such consent, waiver or related direction, only Notes which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Subject to the foregoing, only Notes outstanding at the time shall be considered in any such determination.

Section 13.07.      Rules by Trustee, Paying Agent and Registrar

The Trustee may make reasonable rules for action by or a meeting of Holders. The Registrar and the Paying Agent may make reasonable rules for their functions.

Section 13.08.      Set-Off of Withholding Taxes

If the Issuer is required by applicable law to pay, and pays, withholding tax on behalf of a Non-U.S. Holder as a result of an adjustment to the Exchange Rate, the Issuer may, at its option, set off or cause to be set off such withholding tax against any payments of cash or Common Shares on the Notes (or, if such withholding tax has not previously been fully set off against such cash or shares, against any payments on the Common Shares).

Section 13.09.      GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL

THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Each of

85


 

 

the parties hereto agrees that any legal action, suit or proceeding against it with respect to its obligations, liabilities or any other matter arising out of or in connection with this Indenture, the Notes or the Guarantees may be brought in the courts of the State of New York and hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam , generally and unconditionally with respect to any action, suit or proceeding for itself and in respect of its properties, assets and revenues. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES OR THE TRANSACTION CONTEMPLATED HEREBY.

Section 13.10.      No Personal Liability of Directors, Officers, Employees and Stockholders .

No past, present or future director, manager, officer, employee, incorporator, stockholder, member or partner of the Issuer or the Guarantor, as such, will have any liability for any obligations of the Issuer or the Guarantor under the Notes or this Indenture for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Note, waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

Section 13.11.      No Stockholder Rights .

Holders shall not have any rights as stockholders of the Guarantor (including, without limitation, voting rights and rights to receive any dividends or other distributions on Common Shares).

Section 13.12.      Successors

All agreements of the Issuer and the Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.

Section 13.13.      Multiple Originals

The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

Section 13.14.      Table of Contents; Headings

86


 

 

The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.

Section 13.15.      Severability Clause

In case any provision in this Indenture 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 and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

Section 13.16.      Calculations

Except as otherwise provided herein, the Issuer shall be responsible for making all calculations called for under the Notes. These calculations include, but are not limited to, determinations of the Closing Sale Price or volume-weighted average price of the Common Shares, Daily Settlement Amounts, Daily Exchange Values, accrued interest payable on the Notes, Additional Amounts and the Exchange Rate and Exchange Price. The Issuer and its agents will make all these calculations in good faith and, absent manifest error, such calculations will be final and binding on Holders of the Notes. The Issuer shall provide a schedule of these calculations to each of the Trustee and the Exchange Agent, and each of the Trustee and the Exchange Agent is entitled to rely upon the accuracy of the Issuer’s calculations without independent verification. The Trustee will forward these calculations to any Holder upon the written request of such Holder.

Section 13.17.      No Adverse Interpretations of Other Agreements

This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Guarantor or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

Section 13.18.      USA PATRIOT Act

The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

[ Signature Pages Follow ]

 

 

87


 

 

IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

 

 

 

 

NABORS INDUSTRIES, INC.
as Issuer

 

 

 

 

 

 

By:

/s/ William Restrepo

 

 

 

Name:   William Restrepo

 

 

 

Title:     Chief Financial Officer

 

 

 

 

[ Signature page to the Indenture — Issuer ]

 


 

 

 

 

NABORS INDUSTRIES LTD.
as Guarantor

 

 

 

 

 

 

By:

/s/ Mark D. Andrews

 

 

 

Name:   Mark D. Andrews

 

 

 

Title:     Corporate Secretary

 

 

 

[Signature page to the Indenture — Guarantor]

 


 

 

 

 

WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee

 

 

 

 

 

 

By:

/s/ W. Thomas Morris, II

 

 

 

Name:   W. Thomas Morris, II

 

 

 

Title:     Vice President

 

 

 

[ Signature page to the Indenture — Trustee

 


 

 

 

 

 

 

 

 

CITIBANK, N.A.
as Securities Administrator

 

 

 

 

 

 

By:

/s/ Louis Piscitelli

 

 

 

Name:   Louis Piscitelli

 

 

 

Title:     Vice President

 

 

 

[ Signature page to the Indenture — Securities Administrator

 

 

 


 

 

 

EXHIBIT A

[FORM OF FACE OF NOTE]

[Global Note Legend]

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), TO NABORS INDUSTRIES, INC. 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.

[Restricted Note Legend] 1

THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND, ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS NOTE AND ANY COMMON SHARES ISSUABLE UPON EXCHANGE OF THIS NOTE (AND ANY BENEFICIAL INTEREST HEREIN OR THEREIN) MAY NOT BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, EXCEPT:

 

(A)     TO THE ISSUER, NABORS INDUSTRIES LTD. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES;

 

(B)     PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER;

 

 


1     This Restricted Note Legend shall be deemed removed from the face of this Security without further action of the Company, the Trustee, or the holders of this Security at such time as the Company instructs the Trustee to remove such legend pursuant to ‎0 of the Indenture.

A-1


 

 

 

(C)     TO A PERSON THAT THE HOLDER REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR

 

(D)     UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

 

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE DATE: (A) THAT IS AT LEAST ONE YEAR AFTER THE LAST ORIGINAL ISSUANCE DATE OF THE NOTES; AND (B) ON WHICH THE ISSUER HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND WILL NO LONGER APPLY IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE.

 

PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSES (C) AND (D), THE ISSUER, NABORS INDUSTRIES LTD. AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS (WITH RESPECT TO CLAUSE (D) ONLY) OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

A-2


 

 

No.

0.75% Senior Exchangeable Note due 2024

CUSIP No.: 62957H AA3 2
ISIN No.: US62957HAA32

NABORS INDUSTRIES, INC., a Delaware corporation, promises to pay to [Cede & Co.] 3 , or registered assigns, the principal sum of [            ] Million Dollars ($        ) [or such lesser amount as is indicated in the books and records of the Trustee and DTC] 4 , on January 15, 2024, and to pay interest thereon from [            ], or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on January 15 and July 15 of each year, commencing July 15, 2017, at the rate of 0.75% per annum, until the principal hereof is paid or made available for payment or exchanged. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Regular Record Date for such interest, which shall be January 1 or July 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders not more than 15 calendar days and not less than 10 calendar days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture (as defined on the reverse hereof).

If any payment date hereunder is not a Business Day, payment may be made on the next succeeding Business Day, and no additional interest shall accrue thereon. Interest on the Notes shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 


2     At such time as the Company notifies the Trustee to remove the legend (other than the first paragraph thereof) pursuant to ‎0 of the Indenture, the CUSIP number for this Security shall be deemed to be CUSIP No. 62957H AB1. Additional Notes issued pursuant to ‎0 of the Indenture may have different CUSIP numbers.

3     Use bracketed language only if Global Note.

4     Use bracketed language only if Global Note.

 

 

A-3


 

 

This Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by, and construed in accordance with, the laws of said State.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture (as defined on the reverse hereof) or be valid or obligatory for any purpose.

Dated:

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

 

 

By:

 

 

 

Name:     

 

 

Title:     

 

A-4


 

 

 

 

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

WILMINGTON TRUST, NATIONAL ASSOCIATION as Trustee, certifies that this is one of the Notes referred to in the Indenture.

 

BY: CITIBANK, N.A. , as Authenticating Agent

 

By:

 

 

 

Authorized Signatory

 

 

 

A-5


 

 

[FORM OF REVERSE SIDE OF NOTE]

0.75% Senior Exchangeable Note due 2024

NABORS INDUSTRIES, INC., a Delaware corporation (such company, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “ Issuer ”), issued this Note under an Indenture dated as of January 13, 2017, (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Issuer, the Guarantor, Wilmington Trust, National Association, as Trustee and Citibank, N.A., as Securities Administrator, to which reference is hereby made for a statement of the respective rights, obligations, duties and immunities thereunder of the Trustee, the Guarantor, the Issuer and the Holders and of the terms upon which the Notes are, and are to be, authorized and delivered. Except as specifically provided in Section 1 hereof, all terms used in this Note which are defined in the Indenture shall have the meaning assigned to them in the Indenture. If any terms of this Note conflict with or are inconsistent with the terms of the Indenture, the terms of the Indenture shall apply.

The payment of principal of, and premium, if any, and interest on the Notes and all other amounts under the Indenture is guaranteed by the Guarantor as provided in the Indenture.

1.       Further Provisions Relating to Interest    

In certain circumstances described in the Indenture, the Issuer may be required to pay Reporting Additional Interest or Rule 144 Additional Interest. Except as otherwise specifically set forth, all references herein to “interest” include Defaulted Interest, if any, Rule 144 Additional Interest, if any, and Reporting Additional Interest, if any.

2.       Method of Payment    

The Issuer shall pay interest on the Notes (except Defaulted Interest) to the Persons who are registered Holders of Notes at the close of business on the January 1 and July 1 next preceding the Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer shall pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts.

The Issuer shall pay interest on:

(i)      any Global Notes to the Depositary in immediately available funds;

(ii)     any Notes in certificated form having a principal amount of less than $2,000,000, by check mailed to the address of the Person in whose name such Notes are registered as it appears in the Register; and

(iii)       any Notes in certificated form having a principal amount of $2,000,000 or more, by wire transfer in immediately available funds at the election of the Holder of

A-6


 

 

such Notes duly delivered to the Securities Administrator at least five Business Days prior to the relevant Interest Payment Date.

3.       Paying Agent, Registrar and Exchange Agent    

Initially, Citibank, N.A., a national banking association organized under the laws of the United States, shall act as Paying Agent, Registrar and Exchange Agent. The Issuer may appoint and change any Paying Agent, Registrar or co-registrar or Exchange Agent without notice. The Guarantor or any of its Wholly Owned Subsidiaries that is not a Foreign Subsidiary may act as Paying Agent, Registrar or co-registrar.

4.       Sinking Fund    

The Notes are not subject to any sinking fund.

5.       Repurchase of Notes at the Option of Holders    

Upon the occurrence of a Fundamental Change, the Holder has the right to require the Issuer to repurchase all or part of such Holder’s Notes in a principal amount thereof that is equal to $1,000 in principal amount or multiples in excess thereof on the Fundamental Change Repurchase Date at a price, payable in cash, equal to 100% of the principal amount of the Notes such Holder elects to require the Issuer to repurchase, plus accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date. On or before the second Business Day after the occurrence of a Fundamental Change, the Issuer shall provide to all Holders of record on the date of the Fundamental Change at their addresses shown in the Register of the Registrar, the Trustee and the Paying Agent, a written notice of the occurrence of the Fundamental Change and the resulting repurchase right. Such notice shall state, among other things, the event causing the Fundamental Change and the procedures a Holder must follow to require the Issuer to repurchase such Holder’s Notes.

6.       Redemption Upon a Change in Tax Law    

In connection with a Change in Tax Law, the Issuer may, at its option, redeem for cash all but not part of the Notes at a Redemption Price equal to 100% of the principal amount, plus accrued and unpaid interest, to, but excluding, the Redemption Date, including, for the avoidance of doubt, any Additional Amounts with respect to such Redemption Price, as set forth in Article 12 of the Indenture.

7.       Exchange    

Subject to the provisions of the Indenture, the Holder hereof may exchange, during certain periods and upon the occurrence of certain conditions specified in the Indenture and prior to the second Scheduled Trading Day immediately preceding the Maturity Date, any Notes or portion thereof that is $1,000 or multiples thereof based on an Exchange Rate specified in the Indenture, as adjusted from time to time as provided in the Indenture, upon satisfaction of the requirements set forth in the Indenture, including surrender of this Note, together with an exchange notice as provided in the Indenture and

A-7


 

 

this Note, to the Issuer at the office of the Exchange Agent and, unless the shares issuable on exchange are to be issued in the same name as this Note, duly endorsed by, or accompanied by instruments of transfer in form satisfactory to the Issuer duly executed by, the Holder or by its duly authorized attorney. Upon exchange, the Issuer shall satisfy its Exchange Obligation in cash, Common Shares or a combination of cash and Common Shares, as the case may be, at the Issuer’s election, in accordance with, and subject to, the provisions of the Indenture. The initial Exchange Rate shall be 39.7488 Common Shares per $1,000 principal amount of Notes, subject to adjustment as provided in the Indenture. No fractional Common Shares shall be issued upon any exchange, but an adjustment in cash shall be paid to the Holder, as provided in the Indenture, in respect of any fraction of a share that would otherwise be issuable upon the surrender of any Note or Notes for exchange. No adjustment shall be made for dividends or any shares issued upon exchange of such Note except as provided in the Indenture.

8.       Denominations, Transfer, Exchange    

The Notes are in registered form without coupons in minimum denominations of $1,000 and multiples of $1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. Upon any transfer or exchange, the Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes required by law or permitted by the Indenture.

9.       Persons Deemed Owners    

The registered Holder of this Note may be treated as the owner of it for all purposes.

10.       Unclaimed Money    

Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon written request any money held by them for the payment of principal or interest and any Common Shares or other property due in respect of exchanged Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money and/or securities must look to the Issuer for payment as general creditors.

11.       Amendment Waiver    

Subject to certain exceptions, the Indenture contains provisions permitting a modification or amendment of the Indenture or the Notes with the written consent or affirmative vote of the Holders of a majority in aggregate principal amount of the then outstanding Notes and the waiver of any Event of Default (other than with respect to nonpayment, a failure to satisfy the Exchange Obligation or a provision that cannot be amended without the written consent of each Holder affected) or noncompliance with any provision with the written consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes.

A-8


 

 

In addition, the Indenture permits an amendment of the Indenture or the Notes without the consent of any Holder under circumstances specified in the Indenture. The Indenture also permits an amendment of the Indenture or the Notes only with the consent of any Holder affected thereby under circumstances specified in the Indenture.

12.       Defaults and Remedies    

Except as specified in the Indenture, if an Event of Default occurs (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer or the Guarantor) and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Notes may declare the principal amount of the Notes and accrued and unpaid interest on the outstanding Notes to be due and payable. If an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer or the Guarantor occurs, the principal amount of the Notes and accrued and unpaid interest on the outstanding Notes shall automatically become due and payable without any declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in aggregate principal amount of the outstanding Notes may rescind any such acceleration with respect to the Notes and its consequences.

If an Event of Default occurs and is continuing, the Trustee shall be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense. Subject to certain exceptions, no Holder may pursue any remedy with respect to the Indenture or the Notes unless (i) such Holder has given the Trustee written notice of an Event of Default, (ii) Holders of at least 25% in aggregate principal amount of the outstanding Notes have made a written request to the Trustee to pursue the remedy and offered security or indemnity reasonably satisfactory to it against any costs, liability or expense of the Trustee, (iii) the Trustee fails to comply with such request within 60 calendar days after receipt of such request and the offer of indemnity and (iv) the Trustee has not received an inconsistent direction from the Holders of a majority in aggregate principal amount of the outstanding Notes. Subject to certain restrictions, the Holders of a majority in aggregate principal amount of the outstanding Notes are given the right to direct the time, method and place of any proceedings for any remedy available to the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal liability or expense for which the Trustee has not received adequate indemnity as determined by it in good faith; 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 under the Indenture, the Trustee shall be entitled to indemnification reasonably satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.

No reference herein to the Indenture and no provision of this Note or of the Indenture shall impair, as among the Issuer and the Holder of the Notes, the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this

A-9


 

 

Note at the place, at the respective times, at the rate and in the coin or currency herein and in the Indenture prescribed.

13.       Trustee Dealings with the Issuer    

Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Guarantor or their respective Affiliates with the same rights it would have if it were not Trustee.

14.      No Personal Liability of Directors, Officers, Employees and Stockholders

No director, officer, manager, employee, incorporator, stockholder, member or partner of the Issuer or the Guarantor, as such, will have any liability for any obligations of the Issuer or the Guarantor under the Notes or this Indenture for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder, by accepting a Note, waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

15.       Authentication    

This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent) manually signs the certificate of authentication on the other side of this Note.

16.      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 rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).

17.       GOVERNING LAW    

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF NEW YORK.

18.      CUSIP and ISIN Numbers    

Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to be printed on the Notes and has directed the Trustee to use CUSIP and ISIN numbers in notices of repurchase as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of repurchase and reliance may be placed only on the other identification numbers placed thereon.

A-10


 

 

 

The Issuer shall furnish to any Holder of Notes upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note.

 

A-11


 

 

EXCHANGE NOTICE

0.75% Senior Exchangeable Note due 2024

TO:      NABORS INDUSTRIES, INC. 
            CITIBANK, N.A., as Securities Administrator

The undersigned registered owner of this Note hereby exercises the option to exchange this Note, or the portion thereof (which is $1,000 or a multiple thereof) below designated in accordance with the terms of the Indenture referred to in this Note, and directs that the cash, Common Shares or combination of cash and Common Shares, as the case may be, deliverable upon such exchange and any Notes representing any unexchanged principal amount hereof, be issued and/or delivered to the registered holder hereof unless a different name has been indicated below. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. If shares or any portion of this Note not exchanged are to be issued in the name of a person other than the undersigned, the undersigned shall provide the appropriate information below and pay all transfer taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of interest accompanies this Note.

Dated:

 

 

 

 

 

 

Signature(s)

 

Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

Signature Guarantee

 

A-12


 

 

Fill in the registration of Common Shares, if any, if to be issued, and Notes if to be delivered, and the person to whom cash and payment for fractional shares is to be made, if to be made, other than to and in the name of the registered holder:

 

 

Please print name and address

 

(Name)

 

(Street Address)

 

(City, State and Zip Code)

 

Principal amount to be exchanged  (if less than all):

 

$

 

 

 

 

 

Social Security or Other Taxpayer
Identification Number:

 

 

 

NOTICE: The signature on this Exchange Notice must correspond with the name as written upon the face of the Notes in every particular without alteration or enlargement or any change whatever.

 

A-13


 

 

FUNDAMENTAL CHANGE REPURCHASE NOTICE

0.75% Senior Exchangeable Note due 2024

TO:     NABORS INDUSTRIES, INC.
           CITIBANK, N.A., as Securities Administrator

The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Nabors Industries, Inc. (the “ Issuer ”) regarding the right of holders to elect to require the Issuer to repurchase the Notes and requests and instructs the Issuer to repay the entire principal amount of this Note, or the portion thereof (which is $1,000 or a multiple thereof) below designated, in accordance with the terms of the Indenture at the price of 100% of such entire principal amount or portion thereof, together with accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date to the registered holder hereof. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Indenture. The Notes shall be repurchased by the Issuer as of the Fundamental Change Repurchase Date pursuant to the terms and conditions specified in the Indenture.

Dated:

 

 

 

 

 

 

Signature(s)

 

NOTICE: The above signatures of the holder(s) hereof must correspond with the name as written upon the face of the Notes in every particular without alteration or enlargement or any change whatever.

Notes Certificate Number (if applicable): ____________

Principal amount to be repurchased (if less than all, must be $1,000 or multiples in excess thereof): ____________

Social Security or Other Taxpayer Identification Number: ____________

 

A-14


 

 

FORM OF ASSIGNMENT AND TRANSFER

0.75% Senior Exchangeable Note due 2024

For value received              hereby sell(s) assign(s) and transfer(s) unto               (Please insert social security or other Taxpayer Identification Number of assignee) the within Notes, and hereby irrevocably constitutes and appoints                attorney to transfer said Notes on the books of the Issuer, with full power of substitution in the premises.

In connection with any transfer of the Notes prior to the first anniversary of the last date of the original issuance of the Notes, the undersigned confirms that such Notes are being transferred:

□     To Nabors Industries Ltd., Nabors Industries, Inc. or any of their respective subsidiaries; or 

□     To a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act of 1933, as amended; or 

□     Pursuant to a Registration Statement which has been declared effective under the Securities Act of 1933, as amended, and which continues to be effective at the time of transfer; or

□     Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended; 

and unless the Notes are being transferred to Nabors Industries, Inc., Nabors Industries Ltd. or one of their respective subsidiaries, the undersigned confirms that such Notes are not being transferred to an “affiliate” of Nabors Industries, Inc. or Nabors Industries Ltd. as defined in Rule 144 under the Securities Act of 1933, as amended.

Unless one of the boxes is checked, the Trustee shall refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered holder thereof.

 

A-15


 

 

Dated:

 

 

 

 

 

 

Signature(s)

 

Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

Signature Guarantee

 

NOTICE: The signature on this Assignment must correspond with the name as written upon the face of the Notes in every particular without alteration or enlargement or any change whatever.

 

A-16


 

 

EXHIBIT B

RESTRICTED COMMON SHARES LEGENDS 5

THE SALE OF THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND ACCORDINGLY, PRIOR TO THE RESALE RESTRICTION TERMINATION DATE (AS DEFINED BELOW), THIS SECURITY (AND ANY BENEFICIAL INTEREST HEREIN) MAY NOT BE OFFERED, RESOLD, OR OTHERWISE TRANSFERRED, EXCEPT:

(A)     TO NABORS INDUSTRIES, INC., NABORS INDUSTRIES LTD. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES;

(B)     PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND THAT CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; OR

(C)     UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).

THE “RESALE RESTRICTION TERMINATION DATE” MEANS THE DATE: (A) THAT IS AT LEAST ONE YEAR AFTER THE LAST ORIGINAL ISSUANCE DATE OF NABORS INDUSTRIES, INC.’s 0.75% SENIOR EXCHANGEABLE NOTES DUE 2024; AND (B) ON WHICH NABORS INDUSTRIES, INC. HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND WILL NO LONGER APPLY, IN ACCORDANCE WITH THE PROCEDURES DESCRIBED IN THE INDENTURE FOR THE NOTES.

PRIOR TO ANY TRANSFER PURSUANT TO THE FOREGOING CLAUSE (C), NABORS INDUSTRIES, INC., NABORS INDUSTRIES LTD. AND NABORS INDUSTRIES, INC.’S TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE AND RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. 

 


5      This legend should be included on Common Shares issued upon conversion of Notes only if such Common Shares are Restricted Securities.

B-1


Exhibit 10.1(b)

 

FORM OF STANDARD

STOCK OPTION AGREEMENT

NABORS INDUSTRIES, INC.

 

This Stock Option Agreement (“Agreement”) is effective the ______ day of______, 2017 (“Date of Grant”) between Nabors Industries, Inc. (“NII”), acting on behalf of Nabors Industries Ltd. (“NIL” or the “Company”) and at the request of a subsidiary of NIL (“Subsidiary”), and [insert employee’s name]  (“Optionee”), an employee of Subsidiary.

 

WHEREAS , Subsidiary desires to provide a grant of stock options to Optionee, an Eligible Recipient, as an incentive to encourage stock ownership and to remain in the employ of Subsidiary; to enhance the profitability of the Company and the mutuality of interest between Optionee and the Company; and to strengthen and protect the Company’s goodwill; and

 

WHEREAS , it is agreed between the parties that the stock options shall be governed exclusively by this Agreement and the Nabors Industries Ltd. 2016 Stock Plan (“ Plan”).  In the event of any conflict between the terms of this Agreement and the Plan, the Plan shall control. 

 

NOW, THEREFORE , the parties agree as follows:

 

1.         Grant of Options :

 

(a)         Number of Shares.  NII, at the request of Subsidiary, hereby grants to Optionee in accordance with the terms and conditions of the Plan, the right and option to purchase from NIL all or any part of an aggregate of [insert number of shares] Common Shares (the “Options”).

 

(b)         Exercise Price .  The Options shall have an exercise price of $           per Common Share, which has been determined to be not less than the Fair Market Value of a Common Share at the Date of Grant.

 

(c)         Expiration Date .  The Options shall expire on _____ (the “Expiration Date”).

 

(d)         Vesting .  Optionee’s rights with respect to the Options, subject to the provisions of paragraph 2 below, shall only vest in 4  equal annual installments beginning on the first calendar year anniversary of the Date of Grant.

 

(e)         Exercise of Options .  Subject to earlier expiration of the Options as herein provided, the Options may be exercised, by written notice to the Company addressed to the attention of its Corporate Secretary (or such other officer or employee of the Company as the Company may designate from time to time), at any time and from time to time after the Date of Grant hereof, but, except as otherwise provided below, the Options shall not be exercisable for more than a percentage of the aggregate number of Common Shares offered by this Agreement


 

that are vested, determined in accordance with paragraph 1(d).  Except as provided in paragraph 2(a) and subject to paragraph 2(b), the Options may be exercised only while Optionee remains an employee, officer, director or consultant of Subsidiary and will terminate and cease to be exercisable upon Optionee’s termination of employment or other service relationship with Subsidiary.

 

2.         Terms and Conditions . The Options are subject to the following terms and conditions:

 

(a)         Effect of Termination of Employment.  Subject to paragraph 2(b) below, if Optionee ceases to be an employee, officer, director or consultant of Subsidiary for any reason other than Optionee’s resignation or Termination for Cause,  any outstanding Options vested on the date of Termination may be exercised after Optionee’s date of Termination by Optionee (or in the event of Optionee’s death, Optionee’s heirs, devisees, or legatees) until the earlier of the Expiration Date or 90 days following the date of Termination.  If Optionee ceases to be an employee, officer, director or consultant of Subsidiary due to Optionee’s  Resignation or Termination for Cause, any outstanding options whether vested or unvested shall expire and may not be exercised after Optionee’s date of termination.   In all events, all options that are unvested on and as of the date of termination shall be forfeited.

 

(b)         Wrongful Conduct.    Notwithstanding any other provision of this Agreement, if the Board or any committee of the Board, prior to or following the date Optionee ceases for any reason whatsoever to be an employee, officer, director, or consultant of Subsidiary (or any other subsidiary of NIL), and after full consideration of the facts, finds by majority vote that Optionee has engaged in fraud, embezzlement, theft, commission of a felony, dishonesty, or any other conduct inimical to NIL, NII or Subsidiary, Optionee shall forfeit all unexercised Options, whether or not vested and shall return to the Company any gain on Options previously exercised.  The decision of the Board or any committee of the Board shall be final. 

 

(c)         Solicitation of Employees/Competition .  During the term of employment and for a period of 1 year following Optionee’s Termination of employment with Subsidiary (or any other subsidiary of NIL), Optionee agrees that he or she will not (i) individually or on behalf of his or her employer or any other person or entity, directly or indirectly, solicit, divert, or recruit any employee or officer of NIL, NII, Subsidiary, or any of the affiliated companies, or induce any employee of NIL, NII, Subsidiary or any of the affiliated companies, to terminate his or her employment, or (ii) directly or indirectly, as an employee, consultant, principal, agent, trustee or otherwise engage in any business through a corporation, partnership or other entity that competes directly with any business that is conducted by NIL, NII, Subsidiary or any of the affiliated companies (the “Competing Business”) and that (x) Optionee was directly or indirectly engaged in on behalf of NIL, NII, Subsidiary or any of the affiliated companies or (y) Optionee obtained confidential information regarding during the course of his or her employment (the “Restricted Business”). 

 

Additionally, for a period of 1 year following Optionee’s Termination with Subsidiary (or any other subsidiary of NIL), Optionee will not directly or indirectly solicit service or accept competing business from customers of NIL, NII, Subsidiary or any of the affiliated companies


 

with whom Optionee, within the previous year, (i) had or made contact, or (ii) had access to Confidential Information regarding.  The restrictions in this Section 2(c) are further limited geographically to the following areas where a Competing Business operates in the Restricted Business: any country in which NIL, Subsidiary or any of the other affiliated companies or other subsidiaries of NIL engage in the Restricted Business.

 

Without limiting the remedies to which NIL, NII, Subsidiary or any affiliated company may be entitled, if the Board of Directors or any committee of the Board, prior to or following the date Optionee ceases, for any reason whatsoever, to be an employee, officer, director, or consultant of Subsidiary (or any other subsidiary of NIL) and after full consideration of the facts, find by majority vote that Optionee has engaged in any of the activities mentioned in this Section 2(c),  Optionee shall forfeit all unexercised Options, whether or not vested and shall return to the Company any gain on Options previously exercised.  The decision of the Board or any committee of the Board shall be final. 

 

“Affiliated companies” as used herein means any entity which now or in the future directly controls, is controlled by, or is under common control with Company, where “control” in relation to Company means the direct or indirect ownership of at least fifty percent of the voting securities or shares.  

 

Company has attempted to place the most reasonable limitations on Optionee’s subsequent employment opportunities consistent with the protection of Company’s valuable trade secrets, business interests, and goodwill.  In order to accommodate Optionee in obtaining subsequent employment, Company may, in its discretion, grant a waiver of one or more of the restrictions on subsequent employment contained in this Section 2(c).  A request for waiver shall be in writing and must be received by the Company at least 45 days before the proposed starting date of the employment for which Optionee is seeking a waiver.  The request must include the full name and address of the organization with which Optionee is seeking employment;  the department or area in which Optionee proposes to work; the position or job title to be held by Optionee; and a complete description of the duties Optionee expects to perform for such employer.  If Company decides to grant a waiver (which decision shall be solely within Company’s discretion), the waiver may be subject to such restrictions or conditions as Company may impose.

 

(d)         Continuance of Employment.  Nothing in this Agreement shall confer on any individual any right to continue in the employ of Subsidiary (or any other subsidiary of NIL) or to interfere in any way with the right of Subsidiary (or any other subsidiary of NIL) to terminate Optionee's employment at any time.  Nothing in this Agreement alters the employment at-will relationship between the parties.

 

(e)         Non‑Qualified Options.  The options shall be treated as non‑qualified stock options for U.S. federal income tax purposes. 

 

(f)         Governing Terms.  This Agreement is subject to, and Subsidiary and Optionee agree to be bound by, all the terms and conditions of the Plan under which the Options 


 

were granted, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the Plan, the Board or a committee thereof is vested with conclusive authority to interpret and construe the Plan and this Agreement, and is authorized to adopt rules and regulations for carrying out the Plan.  A copy of the Plan in its present form is posted on the Company’s intranet site and is also available for inspection during business hours at NII’s principal office.

 

3.         Notices .  Any notice to be given by Optionee under this Agreement shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator of Nabors Corporate Services, Inc. at the offices of Nabors Corporate Services, Inc. in Houston, Texas, or at such address as may be communicated in writing to Optionee from time to time.  Any notice or communication by NIL, NII, or Subsidiary to Optionee under this Agreement shall be in writing and shall be deemed to have been given if sent to Optionee’s e-mail address maintained by the Company or any of its subsidiaries, made through the employee portal maintained by the Company or any of its subsidiaries, or if mailed or delivered to Optionee at the address listed in the records of NIL or at such address as specified in writing to NIL by Optionee..

 

4.         Shareholder Rights . Neither Optionee nor Optionee’s heirs, devisees, legal representative, legatees or distributes, as the case may be, shall have any of the rights or privileges of a shareholder of NIL by virtue of the Options except with respect to any Common Shares actually issued or transferred of record and delivered to one of the aforementioned persons.

 

5.         Acknowledgments

 

(a)         Optionee agrees to be bound by the terms of this Agreement and the  Plan and hereby acknowledges that all decisions, determinations and interpretations of the Administrator in respect of this Agreement and the Plan shall be final, conclusive and binding on all Optionees and their heirs, devisees, legal representatives, legatees, beneficiaries and distributees.

 

(b)         Equitable Adjustments .  Optionee understands that Optionee may be subject to the Equitable Adjustment provisions in Section 5 of the Plan.

 

(c)         Incorporation of Plan Terms .  The applicable terms of the Plan are incorporated into this Agreement by reference. Capitalized terms used but not defined herein shall have the meanings set forth in the Plan.

 

6.         Governing Law & Severability .  Except as provided for below, the Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Agreement should be held invalid, the remainder of this Agreement shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable, but before such severance occurs, the parties request any court of competent jurisdiction to reform the offending provision to allow it to be enforced in a reasonable fashion.  The parties further intend that the post-employment restrictions set forth in Section 2(c) hereof shall be construed in accordance with and governed by the laws of the State of New York. 

 


 

7.         Termination or   Modification .  The grant of Options pursuant to this Agreement shall be irrevocable except that NIL shall have the right to revoke them at any time prior to vesting if it is contrary to law or modify it to bring it into compliance with any valid and mandatory law or government regulation. Subject to the foregoing, no modification or waiver of this Agreement or any part hereof shall be valid or effective unless in writing and signed by the parties hereto.  Further, no waiver or breach of this Agreement shall be deemed to be a waiver of any other subsequent breach or conditions, whether of a like or different nature. 

 

8.         Entire Agreement .  This Agreement, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

9.         Dispute .  Any dispute, controversy or claim arising out of, or relating to, this Agreement or the breach, termination or invalidity thereof, other than for injunctive relief to enforce the post-employment provisions of Section 2(c) of this Agreement, shall be settled by arbitration before a single arbitrator in accordance with the rules of the American Arbitration Association.  The place of arbitration shall be at Houston, Texas.  Nothing herein s hall preclude e ither party from seeking in a court of competent jurisdiction injunctive relief or other provisional remedy in case of any breach hereof, including without limitation injunctive relief or other provisional remedy to enforce the provisions of Section 2(c) of this Agreement or to compel arbitration or otherwise aid said arbitration.  The losing party shall bear all the costs of any proceeding including reasonable attorney’s fees.

 

10.          Place of Performance; Venue .  The place of performance for this Agreement is and shall be Harris County, Texas; and venue for any action to enforce any term of this Agreement by injunctive relief or other provisional remedy (as provided for by Section 9, above) shall lie in Harris County, Texas, or for purposes of Optionee’s obligations under Section 2(c), NIL or Subsidiary may elect to seek such relief in the jurisdiction in which Optionee resides or works at the time suit is filed.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first written above. 

 

 

 

 

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

 

 

By:

 

 

 

 

 

 

 

OPTIONEE

 

 

 

 

 

«NAME»

 


Exhibit 10.1(c)

 

RESTRICTED STOCK AGREEMENT

 

This Restricted Stock Grant (“Grant”)  is effective the _________ day of ________________,  2017 (“Date of Grant”) between Nabors Industries, Inc.  (“NII”), acting on behalf of Nabors Industries Ltd.  (“NIL”) and at the request of ________, a subsidiary of NIL (the “Subsidiary”) (collectively, the “Company”), and [insert employee’s name] ________  (the “Grantee”), an employee of Subsidiary.

 

Upon the Date of Grant, the fair market value of a  common share of NIL, par value $0.001 per share (“Common Share”), was ____________.

 

RECITALS

 

Under the Nabors Industries Ltd. 2016 Stock Plan  (“Plan”), the Compensation Committee of the Board (the “Committee”) has determined the form of this Grant and selected the Grantee, an Eligible Recipient, to receive this Grant and the Common Shares that are subject hereto.  The applicable terms of the Plan are incorporated in this Grant by reference, including the definition of terms contained in the Plan. 

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the Plan, the Committee has made this Grant and concurrently issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.  Number of Shares .  The number of Common Shares awarded under this Grant is ___________.

 

SECTION 2.  Rights of the Grantee as Shareholder .  The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Grant, all of the additional shares shall be subject to the provisions of this Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the Plan (the “Account”).  If requested, NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 6.

 

SECTION 3.  Restriction Period .  Except as otherwise provided in this Section 3, the period of restriction (“Restriction Period”) for the Common Shares issued under this Grant shall commence on the Date of Grant and shall expire in four equal annual installments on the first four anniversaries of the Date of Grant (i.e., the award will vest 25% per year), so long as the Grantee remains an employee of the Subsidiary (or an employee of any other subsidiary of NIL) from the Date of Grant through such anniversary.  In addition, the Restriction Period shall expire earlier as to all Common Shares issued under this Grant upon the Grantee’s Termination due to the Grantee’s


 

death or Disability.  The Restriction Period may also expire earlier upon the occurrence of a corporate change or upon Termination under specified circumstances during a specified period following such a corporate change if the Board, acting in its sole discretion, makes a determination in accordance with Section 12 of the Plan.

 

SECTION 4.  Terms and Conditions .  This Grant is subject to the following terms and conditions:

 

a.   If the Grantee ceases for any reason to be an employee of the Subsidiary (or an employee of any other subsidiary of NIL) any unvested portion of this Grant shall be forfeited, the Grantee will assign, transfer, and deliver the certificates or any other evidence of ownership of such shares to NIL or the Subsidiary, all interest of the Grantee in such shares shall terminate, and the Grantee shall cease to be a shareholder with respect to such shares. 

 

b.   During the Restriction Period, the Grantee must not, voluntarily or involuntarily, sell, assign, transfer, pledge, or otherwise dispose of any unvested portion of the Grant.  Any attempted sale, assignment, transfer, pledge or other disposition of any unvested portion of this Grant whether voluntary or involuntary, shall be ineffective and NIL (i) shall not be required to transfer the shares, (ii) may impound any certificates for the shares or otherwise restrict the Grantee’s Account and (iii) shall hold the certificates until the expiration of the Restriction Period. 

 

c.   Notwithstanding any other provision of this Grant, if the Board or any committee of the Board, prior to or following the date the Grantee ceases for any reason whatsoever to be an employee of the Subsidiary (or any other subsidiary of NIL), and after full consideration of the facts, find by majority vote that the Grantee has engaged in fraud, embezzlement, theft, commission of a felony, dishonesty, or any other conduct inimical to NIL, NII or Subsidiary, the Grantee shall forfeit this entire Grant, whether or not vested and shall return to the Company any proceeds from the sale of shares granted hereunder.  The decision of the Board or the Committee shall be final. 

 

d.   During the term of employment and for a period of 1 year following the Grantee’s Termination with the Subsidiary (or any other subsidiary of NIL), the Grantee agrees that he or she will not (i) individually or on behalf of his or her employer or any other person or entity, directly or indirectly, solicit, divert, or recruit any employee or officer of NIL, NII, Subsidiary or any of the affiliated companies, or induce any employee of NIL, NII, Subsidiary or any of the affiliated companies, to terminate his or her employment, or (ii) directly or indirectly, as an employee, consultant, principal, agent, trustee or otherwise engage in any business through a corporation, partnership or other entity that competes directly with any business that is conducted by NIL, NII, Subsidiary or any of the affiliated companies (the “Competing Business”) and that (x) the Grantee was directly or indirectly engaged in on behalf of NIL, NII, Subsidiary or any affiliated company or (y) the Grantee obtained confidential information regarding during the course of his or her employment (the “Restricted Business”).  

 

Additionally, for a period of 1 year following the Grantee’s Termination with the Subsidiary (or any other subsidiary of NIL), the Grantee will not directly or indirectly

2


 

solicit service or accept competing business from customers of NIL, NII, Subsidiary or any of the affiliated companies with whom the Grantee, within the previous year, (i) had or made contact, or (ii) had access to confidential information regarding. 

 

The restrictions in this Section 4(d) are further limited geographically to the following areas or locations where a Competing Business operates in the Restricted Business: any country in which NIL, the Subsidiary or any affiliates or other subsidiaries of NIL engage in the Restricted Business.

 

Without limiting the remedies to which NIL, NII, Subsidiary or any affiliated company may be entitled, if the Board or any committee of the Board, prior to or following the date the Grantee ceases, for any reason whatsoever, to be an employee of the Subsidiary (or any other subsidiary of NIL) and after full consideration of the facts, find by majority vote that the Grantee has engaged in any of the activities mentioned in this Section 4,  the Grantee shall forfeit any unvested portion of the Grant.  The decision of the Board or any committee of the Board of Directors shall be final. 

 

“Affiliated companies” as used herein means any entity which now or in the future directly controls, is controlled by, or is under common control with Company, where “control” in relation to Company means the direct or indirect ownership of at least 50% of the voting securities or shares.  

 

Company has attempted to place the most reasonable limitations on the Grantee’s subsequent employment opportunities consistent with the protection of Company’s valuable trade secrets, business interests, and goodwill.  In order to accommodate the Grantee in obtaining subsequent employment, Company may, in its discretion, grant a waiver of one or more of the restrictions on subsequent employment contained in this Section 4(d).  A request for waiver shall be in writing and must be received by the Company at least 45 days before the proposed starting date of the employment for which the Grantee is seeking a waiver.  The request must include the full name and address of the organization with which the Grantee is seeking employment;  the department or area in which the Grantee proposes to work; the position or job title to be held by the Grantee; and a complete description of the duties the Grantee expects to perform for such employer.  If Company decides to grant a waiver (which decision shall be solely within Company’s discretion), the waiver may be subject to such restrictions or conditions as Company may impose.

 

e.   Nothing in this Grant shall confer on any individual any right to continue in the employ of the Subsidiary (or any other subsidiary of NIL) or to interfere in any way with the right of the Subsidiary (or any other subsidiary of NIL) to terminate the Grantee’s employment at any time.  Nothing in this Grant alters the employment at-will relationship between the parties. 

 

f.   This Grant is subject to, and the Subsidiary and the Grantee agree to be bound by, all the terms and conditions of the Plan under which this Grant is being granted, as the Plan may be amended from time to time in accordance with its terms.  Pursuant to said Plan, the Board or a committee thereof established for such purposes is vested with conclusive authority to interpret and construe the Plan and this Grant, and is authorized

3


 

to adopt rules and regulations for carrying out the Plan.  A copy of the Plan in its present form is posted on the Company’s intranet site and is also available for inspection during business hours at NII’s principal office.

For purposes of this Grant, NIL will determine when the Grantee’s employment terminates.  The Grantee’s employment will not be deemed to have terminated if the Grantee goes on military leave, medical leave or other bona fide leave of absence, if the leave was approved by NIL or any of its subsidiaries in writing and if continued crediting of employment is required by applicable law, the Company’s policies or the terms of Grantee’s leave; provided that vesting dates may be adjusted in accordance with NIL’s policies or the terms of Grantee’s leave. 

 

SECTION 5.  Lapse of Restrictions.    Upon the expiration of the Restriction Period with respect to any of the Common Shares issued under this Grant without the forfeiture thereof, all restrictions shall terminate on the related shares, and the Grantee shall be entitled to transfer the shares from the Account or receive certificates without the legend prescribed in Section 6.  However, in the event of an attempted violation of the condition specified in Section 4(b), NIL shall be entitled to delay transfers or withhold delivery of any of the certificates if, and for so long as, in the judgment of NIL’s  counsel, NIL would incur a risk of liability to any party to whom such shares were purported to be sold, transferred, pledged or otherwise disposed. 

 

SECTION 6.  Legend on Certificates.  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Agreement and are subject to substantial restrictions, including but not limited to, a prohibition against transfer, either voluntary or involuntary, and a provision requiring transfer of these shares to Nabors Industries Ltd.  without any payment in the event of termination of the employment of the registered owner, all as more particularly set forth in the Restricted Stock Agreement, a copy of which is on file with Nabors Corporate Services, Inc. 

 

At the discretion of NIL, NIL may hold the Common Shares issued or transferred pursuant to this Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above. 

 

SECTION 7.  Specific Performance of the Grantee’s Covenants .  By accepting this Grant and the issuance and delivery of the Common Shares pursuant to this Grant, the Grantee acknowledges that NIL does not have an adequate remedy in damages for the breach by the Grantee of the conditions and covenants set forth in this Grant and agrees that NIL is entitled to and may obtain an order or a decree of specific performance against the Grantee issued by any court or arbitrator having jurisdiction. 

 

SECTION 8.  Employment with NIL .  Nothing in this Grant or in the Plan shall confer upon the Grantee the right to continued employment with NIL or any of its subsidiaries. 

 

SECTION 9.  Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after 30 days from grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

4


 

SECTION 10.  Withholding Tax .  Before NIL removes restrictions on the transfer or delivers a certificate for Common Shares issued or transferred pursuant to this Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL (or to the Subsidiary, if so designated by NIL or NII) the amount of federal, state or local taxes, if any, required by law to be withheld (“Withholding Obligation “).  Subject to any policy of the Company as in effect from time to time, NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to the Grantee a net balance of shares (“Net Shares”) unless NIL receives notice not less than 5 days before any Withholding Obligation arises that the Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if the Grantee has not delivered funds within 15 days after the Withholding Obligation arises, NIL may elect to deliver Net Shares.  By accepting this Grant,  the Grantee agrees that NIL or any of its affiliates may withhold (at its option) cash for the amount of any withholding required with respect to fractional shares. 

 

SECTION 11.  Notices and Payments .  Any notice to be given by the Grantee under this Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator of Nabors Corporate Services, Inc. at the offices of Nabors Corporate Services, Inc. in Houston, Texas, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL, NII, or the Subsidiary to the Grantee under this Grant shall be in writing and shall be deemed to have been given if sent to the Grantee’s e-mail address maintained by the Company or any of its subsidiaries, made through the employee portal maintained by the Company or any of its subsidiaries, or if mailed or delivered to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee. 

 

SECTION 12.  Waiver .  The waiver by NIL of any provision of this Grant shall not operate as, or be construed to be, a waiver of the same or any other provision hereof at any subsequent time for any other purpose. 

 

SECTION 13.  Termination or Modification of Restricted Stock Grant .  This Grant shall be irrevocable except that NIL shall have the right to revoke it at any time during the Restriction Period if it is contrary to law or modify it to bring it into compliance with any valid and mandatory law or government regulation.  Upon request in writing by NIL, the Grantee will tender any certificates for amendment of the legend or for change in the number of Common Shares issued or transferred as NIL deems necessary in light of the amendment of   this Grant.  In the event of revocation of this Grant pursuant to the foregoing, NIL may give notice to the Grantee that the Common Shares are to be assigned, transferred and delivered to NIL as though the Grantee’s employment with NIL terminated on the date of the notice. 

 

SECTION 14.  Governing Law & Severability .  Except as provided for below, the Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Grant should be held invalid, the remainder of this Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable, but before such severance occurs, the parties request any court of competent jurisdiction to reform the offending provision to

5


 

allow it to be enforced in a reasonable fashion.  The parties further intend that the post-employment restrictions set forth in Section 4(d) hereof shall be construed in accordance with and governed by the laws of the State of New York.    

 

SECTION 15.  Entire Agreement.    This Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties. 

 

SECTION 16.  Dispute.  Any dispute, controversy or claim arising out of, or relating to, this Grant or the breach, termination or invalidity thereof, other than for injunctive relief to enforce the post-employment restrictions in Section 4(d) of this Grant,  shall be settled by arbitration before a single arbitrator in accordance with the rules of the American Arbitration Association.  The place of arbitration shall be at Houston, Texas.  Nothing herein shall preclude either party from seeking in a court of competent jurisdiction injunctive relief or other provisional remedy in case of any breach hereof, including without limitation injunctive relief or other provisional remedy to enforce the provisions of Section 4(d) of this Grant or to compel arbitration or otherwise aid said arbitration.  The losing party shall bear all the costs of any proceeding including reasonable attorney’s fees.

 

SECTION 17. Place of Performance; Venue.  The place of performance for this Grant is and shall be Harris County, Texas; and venue for any action to enforce any term of this Grant by injunctive relief or other provisional remedy (as provided for by Section 16, above) shall lie in Harris County, Texas, or for the purposes of the Grantee’s obligations under Section 4(d), NIL or the Subsidiary may elect to seek such relief in the jurisdiction in which the Grantee resides or works at the time suit is filed.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Grant as of the day and year first written above. 

 

 

 

 

 

 

 

NABORS INDUSTRIES, INC. 

 

 

 

By: 

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

«NAME»

 

6


Exhibit 10.1(d)

 

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant  (“ Restricted Stock Grant ”)   between Nabors Industries, Inc. (“ NII ”), acting on behalf of Nabors Industries Ltd. (“ NIL ” or the “ Company ”), and Anthony G. Petrello (“ Grantee ”), an Eligible Recipient,   contains the terms and conditions under which the Compensation Committee of the Board (the “ Committee ”), has awarded to Grantee , as of [_____] (the “ Date of Grant ”) and pursuant to the Nabors Industries Ltd. 2016 Stock Plan (“ 2016 Plan ”), certain restricted Common Shares of the Company to incentivize Grantee to contribute to the success of the Company.    The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference.  Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently h as issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.  Number of Shares The number of shares awarded under this Restricted Stock Grant is [_____]   (the “ Award ”).

 

SECTION 2.  Rights of the Grantee as Shareholder .  The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the “ Account ”).  At the discretion of NIL, NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.  Restriction Period .  The period of restriction (“ Restriction Period ”) for the Common Shares issued under this Restricted Stock Grant (the “ Restricted Shares ”) shall commence on the Date of Grant and shall lapse, if at all, as follows:

 

 (a) The Committee, in its sole discretion, has established target Performance Goals based on the Company’s Total Shareholder Return (“ TSR Targets ”), which will be measured over a three-fiscal-year performance cycle commencing on [______] and ending on [_______] (such period, the “ Performance Cycle ”).   Total Shareholder Return (“ TSR ”) is the percentage increase in the value of shares over the Performance Cycle, based on the average closing share price for the thirty (30) consecutive business days prior to the start of the Performance Cycle and the average closing share price for the last thirty (30) consecutive business days in the Performance Cycle.  The increase is calculated as the sum of (i) the change in share price and (ii) the value of dividends declared during the Performance Cycle, assuming such dividends are reinvested in additional shares as of the date they are declared.   The Company’s TSR will be compared to the TSR of a peer group (the “ Peer Group ”)

1


 

comprised of Halliburton Co.; Baker Hughes, Inc.; Ensco plc. ; Weatherford International Ltd.; Diamond Offshore Drilling Inc.; Noble Corp.; Helmerich & Payne Inc.; Rowan Companies plc.; Superior Energy Services, Inc.; Patterson-UTI Energy, Inc.; Schlumberger Limited; Atwood Oceanics Inc.; TechnipFMC plc; National Oilwell Varco, Inc.; and Transocean Ltd. to determine relative TSR (“ RTSR ”). The Peer Group may be adjusted by the Committee from time to time during or at the conclusion of the Performance Cycle, in its sole discretion after consultation with Grantee,  in the event any of the companies in the Peer Group cease to be publicly traded or in response to a merger, consolidation or divestiture activity amongst companies, available public reporting or other events actually or potentially affecting the composition of the Peer Group.  Any such adjustments shall be prescribed in a manner that strives to meet the requirements of Section 162(m) of the Code.

 

(b)  Restrictions will lapse based upon TSR relative to the Peer Group, pursuant to the schedule on Exhibit A .  The Committee shall have sole discretion to determine which RTSR level has been achieved (if any) and whether the restrictions shall lapse on any or all of the Restricted Shares. The Committee’s determinations pursuant to the exercise of discretion with respect to all matters described in this paragraph shall be final and binding on the Grantee.  The Committee shall make this determination within sixty (60) days following the end of the Performance Cycle or as soon as administratively practicable thereafter, with any lapses to occur as of the date of determination (the “ TSR Vesting Date ”).

 

(c)  If, as of the TSR Vesting Date, the Compensation Committee determines that restrictions shall lapse for less than 100% of the Restricted Shares, (x) neither the Grantee nor any of his heirs, beneficiaries, executors, administrators or other personal representatives shall have any further rights whatsoever in or with respect to any of the remaining Restricted Shares and all such shares shall be forfeited to NIL without consideration.

 

(d) In the event of a Change in Control of NIL (as defined in the Grantee’s employment agreement effective January 1, 2013), fifty percent (50%) of the unvested Restricted Shares held by Grantee shall become vested immediately.

 

(e)  In the event of termination of the Grantee’s employment by reason of Disability (as defined in his employment agreement effective January 1, 2013) or death, fifty percent (50%) of the unvested  Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall become vested on the TSR Vesting Date.    

 

(f)  In the event of termination of the Grantee’s employment either by the Grantee for Constructive Termination Without Cause, or by the Company Without Cause (each as defined in his employment agreement effective January 1, 2013), fifty percent (50%) of the unvested Restricted Shares held by Grantee shall become vested on the TSR Vesting Date.

 

(g) Anything herein notwithstanding, in the event of the termination of the Grantee’s employment by the Company for Cause or by the written voluntary resignation of the Grantee (each as contemplated in Grantee’s employment agreement effective January 1, 2013),  the Grantee shall forfeit any Restricted Shares to the extent the restrictions on those shares have not lapsed as of the date the Executive’s employment is terminated. 

 

(h) Upon the release of the Restricted Shares from the restrictions, the Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall be distributed to Grantee or his designated beneficiary (as applicable). No fractional Common Shares will be issued. If the calculation of the number of Common Shares to be issued results in fractional shares, then the number of Common Shares will be rounded up to the nearest whole Common Share.

2


 

SECTION 4.  Terms and Conditions .  The Award is subject to the following terms and conditions:

 

(a) The Award made to Grantee shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time. 

 

(b) Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and NII and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.  Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement, a copy of which is on file with  Nabors Corporate Services, Inc.

 

At the discretion of NIL, NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.  Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.  Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL or to NII the amount of federal, state or local taxes, if any, required by law to be withheld (“ Withholding Obligation ”).  Subject to any Company policy in effect from time to time, NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to Grantee a net balance of shares (“ Net Shares ”) unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if Grantee has not delivered funds within fifteen (15) days after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.  Notices and Payments .  Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator of Nabors Corporate Services, Inc. at the offices of Nabors Corporate Services, Inc. in Houston, Texas, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL or NII to the Grantee under this Restricted Stock

3


 

Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.  Waiver .  The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.  Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.  Entire Agreement .  This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above. 

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

By:

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

ANTHONY G. PETRELLO

 

4


 

Exhibit A

 

 

 

 

 

 

 

 

PERCENTAGE OF

RTSR RANK

SHARES

 

EARNED

1, 2 or 3

100%

4 or 5

75%

6 or 7

60%

8 or 9

50%

10 or 11

40%

12 or 13

25%

14, 15 or 16

0%

 

5


Exhibit 10.1(e)

 

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant (“ Restricted Stock Grant ”) between Nabors Industries, Inc. (“ NII ”), acting on behalf of Nabors Industries Ltd. (“ NIL ” or the “ Company ”) and at the request of a subsidiary of NIL (the “ Subsidiary ”), and Anthony G. Petrello (“ Grantee ”), an Eligible Recipient, contains the terms and conditions under which the Compensation Committee of the Board (the “ Committee ”), has awarded to Grantee , as of [______] (the “ Date of Grant ”) and pursuant to the Nabors Industries Ltd. 2016 Stock Plan (“ 2016 Plan ”), certain restricted Common Shares of the Company to incentivize Grantee to contribute to the success of the Company.  The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference. Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently h as issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.   Number of Shares The number of shares awarded under this Restricted Stock Grant is [_____]   (the “ Award ”).

 

SECTION 2.   Rights of the Grantee as Shareholder .  The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the “ Account ”).  At the discretion of NIL, NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.   Restriction Period .  The period of restriction (“ Restriction Period ”) for the Common Shares issued under this Restricted Stock Grant (the “ Restricted Shares ”) shall commence on the Date of Grant and shall lapse, if at all, as follows:

 

(a) The Committee, in its sole discretion, has established target Performance Goals based on the Company’s Total Shareholder Return (“ TSR Targets ”), which will be measured over a three-fiscal-year performance cycle commencing on [______] and ending on [______] (such period, the “ Performance Cycle ”).   Total Shareholder Return (“ TSR ”) is the percentage increase in the value of shares over the Performance Cycle, based on the average closing share price for the thirty (30) consecutive business days prior to the start of the Performance Cycle and the average closing share price for the last thirty (30) consecutive business days in the Performance Cycle.  The increase is calculated as the sum of (i) the change in share price and (ii) the value of dividends declared during the Performance Cycle, assuming such dividends are reinvested in additional shares as of the date they are

1


 

declared.   The Company’s TSR will be compared to the TSR of a peer group (the “ Peer Group ”) comprised of Halliburton Co.; Baker Hughes, Inc.; Ensco plc.; Weatherford International Ltd.; Diamond Offshore Drilling Inc.; Noble Corp.; Helmerich & Payne Inc.; Rowan Companies plc.; Superior Energy Services, Inc.; Patterson-UTI Energy, Inc.; Schlumberger Limited; Atwood Oceanics Inc.; TechnipFMC plc; National Oilwell Varco, Inc.; and Transocean Ltd. to determine relative TSR (“ RTSR ”). The Peer Group may be adjusted by the Committee from time to time during or at the conclusion of the Performance Cycle, in its sole discretion after consultation with Grantee, in the event any of the companies in the Peer Group cease to be publicly traded or in response to a merger, consolidation or divestiture activity amongst companies, available public reporting or other events actually or potentially affecting the composition of the Peer Group.  Any such adjustments shall be prescribed in a manner that strives to meet the requirements of Section 162(m) of the Code.

 

(b) Restrictions will lapse based upon TSR relative to the Peer Group, pursuant to the schedule on Exhibit A .  The Committee shall have sole discretion to determine which RTSR level has been achieved (if any) and whether the restrictions shall lapse on any or all of the Restricted Shares. The Committee’s determinations pursuant to the exercise of discretion with respect to all matters described in this paragraph shall be final and binding on the Grantee. The Committee shall make this determination within sixty (60) days following the end of the Performance Cycle or as soon as administratively practicable thereafter, with any lapses to occur as of the date of determination (the “ TSR Vesting Date ”).

 

(c) If, as of the TSR Vesting Date, the Compensation Committee determines that restrictions shall lapse for less than 100% of the Restricted Shares, (x) neither the Grantee nor any of his heirs, beneficiaries, executors, administrators or other personal representatives shall have any further rights whatsoever in or with respect to any of the remaining Restricted Shares and all such shares shall be forfeited to NIL without consideration.

 

(d) In the event of a Change in Control of NIL (as defined in the Grantee’s employment agreement effective January 1, 2013), fifty percent (50%) of the unvested Restricted Shares held by Grantee shall become vested immediately.

 

(e) In the event of termination of the Grantee’s employment by reason of Disability (as defined in his employment agreement effective January 1, 2013) or death, fifty percent (50%) of the unvested Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall become vested on the TSR Vesting Date.

 

(f) In the event of termination of the Grantee’s employment either by the Grantee for Constructive Termination Without Cause, or by the Company Without Cause (each as defined in his employment agreement effective January 1, 2013), fifty percent (50%) of the unvested Restricted Shares held by Grantee shall become vested on the TSR Vesting Date.

 

(g) Anything herein notwithstanding, in the event of the termination of the Grantee’s employment by the Company for Cause or by the written voluntary resignation of the Grantee (each as contemplated in Grantee’s employment agreement effective January 1, 2013), the Grantee shall forfeit any Restricted Shares to the extent the restrictions on those shares have not lapsed as of the date the Executive’s employment is terminated.

 

(h) Upon the release of the Restricted Shares from the restrictions, the Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall be distributed to Grantee or his designated beneficiary (as applicable). No fractional Common Shares will be issued. If the calculation of the number of Common Shares to be issued results in fractional shares, then the number of Common Shares will be rounded up to the nearest whole Common Share.

2


 

SECTION 4.   Terms and Conditions .  The Award is subject to the following terms and conditions:

 

(a)   The Award made to Grantee shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time. 

 

(b)   Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and NII and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.   Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement, a copy of which is on file with Nabors Corporate Services, Inc.

 

At the discretion of NIL, NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.   Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.   Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL or to NII the amount of federal, state or local taxes, if any, required by law to be withheld (“ Withholding Obligation ”).  Subject to any Company policy in effect from time to time, NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to Grantee a net balance of shares (“ Net Shares ”) unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if Grantee has not delivered funds within fifteen (15) days after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.   Notices and Payments .  Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator of Nabors Corporate Services, Inc. at the offices of Nabors Corporate Services, Inc. in Houston, Texas, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL or NII to the Grantee under this Restricted Stock

3


 

Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.   Waiver .  The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.   Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.   Entire Agreement .  This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above.

 

 

NABORS INDUSTRIES, INC.

 

 

 

By:

 

 

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

ANTHONY G. PETRELLO

 

4


 

Exhibit A

 

 

PERCENTAGE OF

RTSR RANK

SHARES

 

EARNED

1, 2 or 3

100%

4 or 5

75%

6 or 7

60%

8 or 9

50%

10 or 11

40%

12 or 13

25%

14, 15 or 16

0%

 

5


Exhibit 10.1(f)

 

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant  (“ Restricted Stock Grant ”)   between Nabors Industries, Inc. (“ NII ”), acting on behalf of Nabors Industries Ltd. (“ NIL ” or the “ Company ”), and William Restrepo (“ Grantee ”), an Eligible Recipient,   contains the terms and conditions under which the Compensation Committee of the Board (the “ Committee ”), has awarded to Grantee , as of [______] (the “ Date of Grant ”) and pursuant to the Nabors Industries Ltd. 2016 Stock Plan (“ 2016 Plan ”), certain restricted Common Shares of the Company to incentivize Grantee to contribute to the success of the Company.    The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference. Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently h as issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.  Number of Shares The number of shares awarded under this Restricted Stock Grant is [_____]   (the “ Award ”).

 

SECTION 2.  Rights of the Grantee as Shareholder .  The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the “ Account ”).  At the discretion of NIL, NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.  Restriction Period .  The period of restriction (“ Restriction Period ”) for the Common Shares issued under this Restricted Stock Grant (the “ Restricted Shares ”) shall commence on the Date of Grant and shall lapse, if at all, as follows:

 

(a) The Committee, in its sole discretion, has established target Performance Goals based on the Company’s Total Shareholder Return (“ TSR Targets ”), which will be measured over a three-fiscal-year performance cycle commencing on [______] and ending on [______] (such period, the “ Performance Cycle ”).   Total Shareholder Return (“ TSR ”) is the percentage increase in the value of shares over the Performance Cycle, based on the average closing share price for the thirty (30) consecutive business days prior to the start of the Performance Cycle and the average closing share price for the last thirty (30) consecutive business days in the Performance Cycle.  The increase is calculated as the sum of (i) the change in share price and (ii) the value of dividends declared during the Performance Cycle, assuming such dividends are reinvested in additional shares as of the date they are declared.   The Company’s TSR will be compared to the TSR of a peer group (the “ Peer Group ”)

1


 

comprised of Halliburton Co.; Baker Hughes, Inc.; Ensco plc.; Weatherford International Ltd.; Diamond Offshore Drilling Inc.; Noble Corp.; Helmerich & Payne Inc.; Rowan Companies plc.; Superior Energy Services, Inc.; Patterson-UTI Energy, Inc.; Schlumberger Limited; Atwood Oceanics Inc.; TechnipFMC plc; National Oilwell Varco, Inc.; and Transocean Ltd. to determine relative TSR (“ RTSR ”). The Peer Group may be adjusted by the Committee from time to time during or at the conclusion of the Performance Cycle, in its sole discretion after consultation with Grantee,  in the event any of the companies in the Peer Group cease to be publicly traded or in response to a merger, consolidation or divestiture activity amongst companies, available public reporting or other events actually or potentially affecting the composition of the Peer Group.  Any such adjustments shall be prescribed in a manner that strives to meet the requirements of Section 162(m) of the Code.

 

(b)  Restrictions will lapse based upon TSR relative to the Peer Group, pursuant to the schedule on Exhibit A .  The Committee shall have sole discretion to determine which RTSR level has been achieved (if any) and whether the restrictions shall lapse on any or all of the Restricted Shares. The Committee’s determinations pursuant to the exercise of discretion with respect to all matters described in this paragraph shall be final and binding on the Grantee.  The Committee shall make this determination within sixty (60) days following the end of the Performance Cycle or as soon as administratively practicable thereafter, with any lapses to occur as of the date of determination (the “ TSR Vesting Date ”).

 

(c)  If, as of the TSR Vesting Date, the Compensation Committee determines that restrictions shall lapse for less than 100% of the Restricted Shares, (x) neither the Grantee nor any of his heirs, beneficiaries, executors, administrators or other personal representatives shall have any further rights whatsoever in or with respect to any of the remaining Restricted Shares and all such shares shall be forfeited to NIL without consideration.

 

(d)  In the event of termination of the Grantee’s employment by reason of Disability (as defined in his employment agreement effective March 3, 2014)  or death, fifty percent (50%) of the unvested  Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall become vested on the TSR Vesting Date.    

 

(e)  In the event of termination of the Grantee’s employment either by the Grantee for Constructive Termination Without Cause, or by the Company Without Cause (each as defined in his employment agreement effective March 3, 2014), fifty percent (50%) of the unvested Restricted Shares held by Grantee shall become vested on the TSR Vesting Date.

 

(f)  Anything herein notwithstanding, in the event of the termination of the Grantee’s employment by the Company for Cause or by the written voluntary resignation of the Grantee (each as contemplated in Grantee’s employment agreement effective March 3, 2014),  the Grantee shall forfeit any Restricted Shares to the extent the restrictions on those shares have not lapsed as of the date the Executive’s employment is terminated. 

 

(g) Upon the release of the Restricted Shares from the restrictions, the Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall be distributed to Grantee or his designated beneficiary (as applicable). No fractional Common Shares will be issued. If the calculation of the number of Common Shares to be issued results in fractional shares, then the number of Common Shares will be rounded up to the nearest whole Common Share.

2


 

SECTION 4.  Terms and Conditions .  The Award is subject to the following terms and conditions:

 

(a) The Award made to Grantee shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time.

 

(b) Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and NII and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.  Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement, a copy of which is on file with  Nabors Corporate Services, Inc.

 

At the discretion of NIL, NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.  Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.  Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL or to NII the amount of federal, state or local taxes, if any, required by law to be withheld (“ Withholding Obligation ”).  Subject to any Company policy in effect from time to time, NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to Grantee a net balance of shares (“ Net Shares ”) unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if Grantee has not delivered funds within fifteen (15) days after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.  Notices and Payments .  Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator of Nabors Corporate Services, Inc. at the offices of Nabors Corporate Services, Inc. in Houston, Texas, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL or NII to the Grantee under this Restricted Stock

3


 

Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.  Waiver .  The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.  Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.  Entire Agreement .  This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above. 

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

 

By:

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

WILLIAM RESTREPO

 

4


 

Exhibit A

 

 

 

 

 

 

 

PERCENTAGE OF

RTSR RANK

SHARES

 

EARNED

1, 2 or 3

100%

4 or 5

75%

6 or 7

60%

8 or 9

50%

10 or 11

40%

12 or 13

25%

14, 15 or 16

0%

 

5


Exhibit 10.1(g)

 

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant  (“ Restricted Stock Grant ”)   between Nabors Industries, Inc. (“ NII ”), acting on behalf of Nabors Industries Ltd. (“ NIL ” or the “ Company ”) and at the request of a subsidiary of NIL (the “Subsidiary”), and William Restrepo (“ Grantee ”), an Eligible Recipient,   contains the terms and conditions under which the Compensation Committee of the Board (the “ Committee ”), has awarded to Grantee , as of [______] (the “ Date of Grant ”) and pursuant to the Nabors Industries Ltd. 2016 Stock Plan (“ 2016 Plan ”), certain restricted Common Shares of the Company to incentivize Grantee to contribute to the success of the Company.    The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference. Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently h as issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.  Number of Shares The number of shares awarded under this Restricted Stock Grant is [_____]   (the “ Award ”).

 

SECTION 2.  Rights of the Grantee as Shareholder .  The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the “ Account ”).  At the discretion of NIL, NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.  Restriction Period .  The period of restriction (“ Restriction Period ”) for the Common Shares issued under this Restricted Stock Grant (the “ Restricted Shares ”) shall commence on the Date of Grant and shall lapse, if at all, as follows:

 

(a) The Committee, in its sole discretion, has established target Performance Goals based on the Company’s Total Shareholder Return (“ TSR Targets ”), which will be measured over a three-fiscal-year performance cycle commencing on [______] and ending on [______] (such period, the “ Performance Cycle ”).   Total Shareholder Return (“ TSR ”) is the percentage increase in the value of shares over the Performance Cycle, based on the average closing share price for the thirty (30) consecutive business days prior to the start of the Performance Cycle and the average closing share price for the last thirty (30) consecutive business days in the Performance Cycle.  The increase is calculated as the sum of (i) the change in share price and (ii) the value of dividends declared during the Performance Cycle, assuming such dividends are reinvested in additional shares as of the date they are

1


 

declared.   The Company’s TSR will be compared to the TSR of a peer group (the “ Peer Group ”) comprised of Halliburton Co.; Baker Hughes, Inc.; Ensco plc.; Weatherford International Ltd.; Diamond Offshore Drilling Inc.; Noble Corp.; Helmerich & Payne Inc.; Rowan Companies plc.; Superior Energy Services, Inc.; Patterson-UTI Energy, Inc.; Schlumberger Limited; Atwood Oceanics Inc.; TechnipFMC plc; National Oilwell Varco, Inc.; and Transocean Ltd. to determine relative TSR (“ RTSR ”). The Peer Group may be adjusted by the Committee from time to time during or at the conclusion of the Performance Cycle, in its sole discretion after consultation with Grantee,  in the event any of the companies in the Peer Group cease to be publicly traded or in response to a merger, consolidation or divestiture activity amongst companies, available public reporting or other events actually or potentially affecting the composition of the Peer Group.  Any such adjustments shall be prescribed in a manner that strives to meet the requirements of Section 162(m) of the Code.

 

(b)  Restrictions will lapse based upon TSR relative to the Peer Group, pursuant to the schedule on Exhibit A .  The Committee shall have sole discretion to determine which RTSR level has been achieved (if any) and whether the restrictions shall lapse on any or all of the Restricted Shares. The Committee’s determinations pursuant to the exercise of discretion with respect to all matters described in this paragraph shall be final and binding on the Grantee.  The Committee shall make this determination within sixty (60) days following the end of the Performance Cycle or as soon as administratively practicable thereafter, with any lapses to occur as of the date of determination (the “ TSR Vesting Date ”).

 

(c)  If, as of the TSR Vesting Date, the Compensation Committee determines that restrictions shall lapse for less than 100% of the Restricted Shares, (x) neither the Grantee nor any of his heirs, beneficiaries, executors, administrators or other personal representatives shall have any further rights whatsoever in or with respect to any of the remaining Restricted Shares and all such shares shall be forfeited to NIL without consideration.

 

(d)  In the event of termination of the Grantee’s employment by reason of Disability (as defined in his employment agreement effective March 3, 2014)  or death, fifty percent (50%) of the unvested  Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall become vested on the TSR Vesting Date.    

 

(e)  In the event of termination of the Grantee’s employment either by the Grantee for Constructive Termination Without Cause, or by the Company Without Cause (each as defined in his employment agreement effective March 3, 2014), fifty percent (50%) of the unvested Restricted Shares held by Grantee shall become vested on the TSR Vesting Date.

 

(f)  Anything herein notwithstanding, in the event of the termination of the Grantee’s employment by the Company for Cause or by the written voluntary resignation of the Grantee (each as contemplated in Grantee’s employment agreement effective March 3, 2014),  the Grantee shall forfeit any Restricted Shares to the extent the restrictions on those shares have not lapsed as of the date the Executive’s employment is terminated. 

 

(g) Upon the release of the Restricted Shares from the restrictions, the Restricted Shares held by Grantee or his designated beneficiary (as applicable) shall be distributed to Grantee or his designated beneficiary (as applicable). No fractional Common Shares will be issued. If the calculation of the number of Common Shares to be issued results in fractional shares, then the number of Common Shares will be rounded up to the nearest whole Common Share.

 

2


 

SECTION 4.  Terms and Conditions .  The Award is subject to the following terms and conditions:

 

(a) The Award made to Grantee shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time.

 

(b) Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and NII and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.  Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement, a copy of which is on file with  Nabors Corporate Services, Inc.

 

At the discretion of NIL, NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.  Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.  Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL or to NII the amount of federal, state or local taxes, if any, required by law to be withheld (“ Withholding Obligation ”).  Subject to any Company policy in effect from time to time, NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to Grantee a net balance of shares (“ Net Shares ”) unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if Grantee has not delivered funds within fifteen (15) days after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.  Notices and Payments .  Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator of Nabors Corporate Services, Inc. at the offices of Nabors Corporate Services, Inc. in Houston, Texas, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL or NII to the Grantee under this Restricted Stock

3


 

Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.  Waiver .  The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.  Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.  Entire Agreement .  This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above. 

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

By:

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

WILLIAM RESTREPO

 

4


 

Exhibit A

 

 

 

 

 

 

 

 

PERCENTAGE OF

RTSR RANK

SHARES

 

EARNED

1, 2 or 3

100%

4 or 5

75%

6 or 7

60%

8 or 9

50%

10 or 11

40%

12 or 13

25%

14, 15 or 16

0%

 

5


Exhibit 10.1(h)

 

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant ("Restricted Stock Grant") is effective the [__] day of [______] (“Date of Grant”) between Nabors Industries, Inc. ("NII"), acting on behalf of Nabors Industries Ltd. (“NIL” or the “Company”), and Anthony G. Petrello  (the "Grantee").

 

 

RECITALS

 

Pursuant to the Nabors Industries Ltd. 2016 Stock Plan ("2016 Plan"), the Compensation Committee of the Board (the "Committee") has determined the form of this Restricted Stock Grant and selected the Grantee, an Eligible Recipient, to receive this Restricted Stock Grant and the Common Shares that are subject hereto.  The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference.  Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently has issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.  Number of Shares .  The number of Common Shares awarded under this Restricted Stock Grant is [_____] (the “Award”).

 

SECTION 2.  Rights of the Grantee as Shareholder .  The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the "Account").  At the discretion of NIL, NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.  Restriction Period .  The period of restriction ("Restriction Period") for the Common Shares issued under this Restricted Stock Grant shall commence on the Date of Grant and shall lapse in three equal annual installments beginning on [______] (i.e., the award will vest one-third per year).  Notwithstanding the foregoing, if the Grantee voluntarily resigns as either Chief Executive Officer of Nabors Industries Ltd. or as a Director of Nabors Industries Ltd. before a new written amendment extending on mutually agreeable terms the current term of the Grantee’s employment agreement has been executed by all parties to the Grantee’s current employment agreement, effective January 1, 2013, then notwithstanding anything to the contrary such “voluntary resignation” shall not be considered a voluntary resignation for purposes of this Restricted Stock Grant and the 2016 Plan, but instead shall be deemed a termination entitling the Grantee to the immediate vesting of any outstanding and unvested portion of the Award.

1


 

SECTION 4.  Terms and Conditions .  The Award is subject to the following terms and conditions:

 

a.   The Award shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time.  In the event of termination of employment for any reason, except by NIL or any Subsidiary of NIL for cause or by voluntary resignation by the Grantee (in which case any unvested portion of the Award shall be forfeited, subject to the provisions of Section 3 hereby incorporated into this section), any unvested portion of the Award shall become immediately vested as of the date of termination of employment without regard to the Restriction Period set forth in Section 3 above.  The term “for cause” shall have the same meaning as in Section 1(h) of the Grantee’s employment agreement effective January 1, 2013.  Notwithstanding anything to the contrary in any plan, policy, or other document (including, but not limited to, the 2016 Plan), Section 4 of this Restricted Stock Grant shall exclusively govern the rights of the Grantee with respect to the Award upon termination of employment.

 

b.   Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and NII and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.  Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement, a copy of which is on file with  Nabors Corporate Services, Inc.

 

At the discretion of NIL, NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.  Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.  Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL (or to a Subsidiary of NIL, if so designated by NII or NIL) the amount of federal, state or local taxes, if any, required by law to be withheld ("Withholding Obligation").  Subject to any Company policy as in effect from time to time, NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to the Grantee a net balance of shares

2


 

("Net Shares") unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that the Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if the Grantee has not delivered funds within fifteen (15) days of after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.  Notices and Payments .  Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator at the offices of NIL in Hamilton, Bermuda, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL,  NII, or any Subsidiary of NIL to the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.  Waiver .  The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.  Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.  Entire Agreement .  This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above.

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

By:

 

 

 

 

GRANTEE

 

 

 

 

 

ANTHONY G. PETRELLO

 

3


Exhibit 10.1(i)

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant ("Restricted Stock Grant") is effective the [___] day of [______] (“Date of Grant”) between Nabors Industries, Inc. ("NII"), acting on behalf of Nabors Industries Ltd. (“NIL” or the “Company”) and at the request of a subsidiary of NIL (the “Subsidiary”), and Anthony G. Petrello  (the "Grantee"), an employee of Subsidiary,

 

 

RECITALS

 

Pursuant to the Nabors Industries Ltd. 2016 Stock Plan ("2016 Plan"), the Compensation Committee of the Board (the "Committee") has determined the form of this Restricted Stock Grant and selected the Grantee, an Eligible Recipient, to receive this Restricted Stock Grant and the Common Shares that are subject hereto.  The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference.  Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently has issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.  Number of Shares .  The number of Common Shares awarded under this Restricted Stock Grant is [______] (the “Award”).

 

SECTION 2.  Rights of the Grantee as Shareholder .  The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the "Account").  At the discretion of NIL, NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.  Restriction Period .  The period of restriction ("Restriction Period") for the Common Shares issued under this Restricted Stock Grant shall commence on the Date of Grant and shall lapse in three equal annual installments beginning on [______] (i.e., the award will vest one-third per year).  Notwithstanding the foregoing, if the Grantee voluntarily resigns as either Chief Executive Officer of Nabors Industries Ltd. or as a Director of Nabors Industries Ltd. before a new written amendment extending on mutually agreeable terms the current term of the Grantee’s employment agreement has been executed by all parties to the Grantee’s current employment agreement, effective January 1, 2013, then notwithstanding anything to the contrary such “voluntary resignation” shall not be considered a voluntary resignation for purposes of this Restricted Stock Grant and the 2016 Plan, but

1


 

instead shall be deemed a termination entitling the Grantee to the immediate vesting of any outstanding and unvested portion of the Award.

 

SECTION 4.  Terms and Conditions .  The Award is subject to the following terms and conditions:

 

a. The Award shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time.  In the event of termination of employment for any reason, except by NIL or the Subsidiary for cause or by voluntary resignation by the Grantee (in which case any unvested portion of the Award shall be forfeited, subject to the provisions of Section 3 hereby incorporated into this section), any unvested portion of the Award shall become immediately vested as of the date of termination of employment without regard to the Restriction Period set forth in Section 3 above.  The term “for cause” shall have the same meaning as in Section 1(h) of the Grantee’s employment agreement effective January 1, 2013.  Notwithstanding anything to the contrary in any plan, policy, or other document (including, but not limited to, the 2016 Plan), Section 4 of this Restricted Stock Grant shall exclusively govern the rights of the Grantee with respect to the Award upon termination of employment.

 

b. Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and the Subsidiary and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.  Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement, a copy of which is on file with  Nabors Corporate Services, Inc.

 

At the discretion of NIL, NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.  Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.  Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL (or to the Subsidiary, if so designated by NII or NIL) the amount of federal,

2


 

state or local taxes, if any, required by law to be withheld ("Withholding Obligation").  Subject to any Company policy as in effect from time to time, NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to the Grantee a net balance of shares ("Net Shares") unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that the Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if the Grantee has not delivered funds within fifteen (15) days of after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.  Notices and Payments .  Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator at the offices of NIL in Hamilton, Bermuda, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL, NII, or the Subsidiary to the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.  Waiver .  The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.  Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.  Entire Agreement .  This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above. 

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

By:

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

ANTHONY G. PETRELLO

 

3


Exhibit 10.1(j)

 

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant ("Restricted Stock Grant") is effective the [___] day of [______] (“Date of Grant”) between Nabors Industries, Inc. ("NII"), acting on behalf of Nabors Industries Ltd. (“NIL” or the “Company”), and William J. Restrepo  (the "Grantee").

 

 

RECITALS

 

Pursuant to the Nabors Industries Ltd. 2016 Stock Plan ("2016 Plan"), the Compensation Committee of the Board (the "Committee") has determined the form of this Restricted Stock Grant and selected the Grantee, an Eligible Recipient, to receive this Restricted Stock Grant and the Common Shares that are subject hereto.  The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference.  Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently has issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.   Number of Shares .   The number of Common Shares awarded under this Restricted Stock Grant is [_____] (the “Award”).

 

SECTION 2.   Rights of the Grantee as Shareholder .   The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the "Account").  At the discretion of NIL,  NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.     Restriction Period .  The period of restriction ("Restriction Period") for the Common Shares issued under this Restricted Stock Grant shall commence on the Date of Grant and shall lapse in three equal annual installments beginning on [______] (i.e., the award will vest one-third per year).  Notwithstanding the foregoing, if the Grantee voluntarily resigns as Chief Financial Officer of Nabors Industries Ltd. before a new written amendment extending on mutually agreeable terms the current term of the Grantee’s employment agreement has been executed by all parties to the Grantee’s current employment agreement, effective March 3, 2014, then notwithstanding anything to the contrary such “voluntary resignation” shall not be considered a voluntary resignation for purposes of this Restricted Stock Grant and the 2016 Plan, but instead shall be deemed a termination entitling the Grantee to the immediate vesting of any outstanding and unvested portion of the Award.

 

SECTION 4.   Terms and Conditions .  The Award is subject to the following terms and conditions: 


 

a. The Award shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time.  In the event of termination of employment for any reason, except by NIL or any Subsidiary of NIL for cause or by voluntary resignation by the Grantee (in which case any unvested portion of the Award shall be forfeited, subject to the provisions of Section 3 hereby incorporated into this section), any unvested portion of the Award shall become immediately vested as of the date of termination of employment without regard to the Restriction Period set forth in Section 3 above.  The term “for cause” shall have the same meaning as in Section 1(h) of the Grantee’s employment agreement effective March 3, 2014.  Notwithstanding anything to the contrary in any plan, policy, or other document (including, but not limited to, the 2016 Plan), Section 4 of this Restricted Stock Grant shall exclusively govern the rights of the Grantee with respect to the Award upon termination of employment.

 

b. Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and NII and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.    Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement,  a copy of which is on file with Nabors Corporate Services, Inc.

 

At the discretion of NIL,  NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.   Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.   Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL (or to a Subsidiary of NIL, if so designated by NII or NIL) the amount of federal, state or local taxes, if any, required by law to be withheld ("Withholding Obligation").  Subject to any Company policy as in effect from time to time,  NIL will withhold the number of shares required to satisfy any Withholding Obligation, and provide to the Grantee a net balance of shares ("Net Shares") unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that the Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if the 

2


 

Grantee has not delivered funds within fifteen (15) days of after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.    Notices and Payments .   Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator at the offices of NIL in Hamilton, Bermuda, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL, NII, or any Subsidiary of NIL to the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.    Waiver .   The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.    Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.  Entire Agreement .  This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above. 

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

By:

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

WILLIAM J. RESTREPO

 

3


Exhibit 10.1(k)

RESTRICTED STOCK AGREEMENT

NABORS INDUSTRIES, INC.

 

This Restricted Stock Grant ("Restricted Stock Grant") is effective the [___] day of [______] (“Date of Grant”) between Nabors Industries, Inc. ("NII"), acting on behalf of Nabors Industries Ltd. (“NIL” or the “Company”) and at the request of a subsidiary of NIL (the “Subsidiary”), and William J. Restrepo  (the "Grantee"), an employee of Subsidiary,

 

 

RECITALS

 

Pursuant to the Nabors Industries Ltd. 2016 Stock Plan ("2016 Plan"), the Compensation Committee of the Board (the "Committee") has determined the form of this Restricted Stock Grant and selected the Grantee, an Eligible Recipient, to receive this Restricted Stock Grant and the Common Shares that are subject hereto.  The applicable terms of the 2016 Plan are incorporated in this Restricted Stock Grant by reference.  Capitalized terms used but not defined herein shall have the meanings set forth in the 2016 Plan.

 

RESTRICTED STOCK GRANT

 

In accordance with the terms of the 2016 Plan, the Committee has made this Restricted Stock Grant and concurrently has issued or transferred to the Grantee Common Shares upon the following terms and conditions:

 

SECTION 1.   Number of Shares .   The number of Common Shares awarded under this Restricted Stock Grant is [______] (the “Award”).

 

SECTION 2.   Rights of the Grantee as Shareholder .   The Grantee, as the owner of the Common Shares issued or transferred pursuant to this Restricted Stock Grant, is entitled to all the rights of a shareholder of NIL, including the right to vote, the right to receive dividends payable either in stock or in cash, and the right to receive shares in any recapitalization of the Company, subject, however, to the restrictions stated in this Restricted Stock Grant.  If the Grantee receives any additional shares by reason of being the holder of the Common Shares issued or transferred under this Restricted Stock Grant or of the additional shares previously distributed to the Grantee, all of the additional shares shall be subject to the provisions of this Restricted Stock Grant.  Initially, the Common Shares will be held in an account maintained with the processor under the 2016 Plan (the "Account").  At the discretion of NIL,  NIL may provide the Grantee with a certificate for the shares, which would bear a legend as described in Section 5.

 

SECTION 3.     Restriction Period .  The period of restriction ("Restriction Period") for the Common Shares issued under this Restricted Stock Grant shall commence on the Date of Grant and shall lapse in three equal annual installments beginning on [______] (i.e., the award will vest one-third per year).  Notwithstanding the foregoing, if the Grantee voluntarily resigns as Chief Financial Officer of Nabors Industries Ltd. before a new written amendment extending on mutually agreeable terms the current term of the Grantee’s employment agreement has been executed by all parties to the Grantee’s current employment agreement, effective March 3, 2014, then notwithstanding anything to the contrary such “voluntary resignation” shall not be considered a voluntary resignation for purposes of this Restricted Stock Grant and the 2016 Plan, but instead shall be deemed a termination entitling the Grantee to the immediate vesting of any outstanding and unvested portion of the Award.

1


 

SECTION 4.   Terms and Conditions .  The Award is subject to the following terms and conditions: 

 

a. The Award shall be for the benefit of the Grantee, his heirs, devisees, legatees or assigns at any time.  In the event of termination of employment for any reason, except by NIL or the Subsidiary for cause or by voluntary resignation by the Grantee (in which case any unvested portion of the Award shall be forfeited, subject to the provisions of Section 3 hereby incorporated into this section), any unvested portion of the Award shall become immediately vested as of the date of termination of employment without regard to the Restriction Period set forth in Section 3 above.  The term “for cause” shall have the same meaning as in Section 1(h) of the Grantee’s employment agreement effective March 3, 2014.  Notwithstanding anything to the contrary in any plan, policy, or other document (including, but not limited to, the 2016 Plan), Section 4 of this Restricted Stock Grant shall exclusively govern the rights of the Grantee with respect to the Award upon termination of employment.

 

b. Except as otherwise expressly provided herein, this Restricted Stock Grant is subject to, and the Subsidiary and the Grantee agree to be bound by, all the terms and conditions of the 2016 Plan, as the same may have been amended from time to time in accordance with its terms.  Pursuant to the 2016 Plan, the Board or the Committee is vested with conclusive authority to interpret and construe the 2016 Plan and this Restricted Stock Grant, and is authorized to adopt rules and regulations for carrying out the 2016 Plan.  Further, the parties reserve the right to clarify or amend this Restricted Stock Grant on mutually acceptable terms in any manner which would have been permitted under the 2016 Plan as of the Date of Grant.

 

SECTION 5.    Legend on Certificates .  Any certificate evidencing ownership of Common Shares issued or transferred pursuant to this Restricted Stock Grant that is delivered during the Restriction Period shall bear the following legend on the back side of the certificate:

 

These shares have been issued or transferred subject to a Restricted Stock Grant and are subject to certain restrictions as more particularly set forth in a Restricted Stock Grant Agreement, a copy of which is on file with Nabors Corporate Services, Inc.

 

At the discretion of NIL,  NIL may hold the Common Shares issued or transferred pursuant to this Restricted Stock Grant in an Account as described in Section 2, otherwise hold them in escrow during the Restriction Period, or issue a certificate to the Grantee bearing the legend set forth above.

 

SECTION 6.   Section 83(b) Election .  If the Grantee makes an election pursuant to Section 83(b) of the Internal Revenue Code, the Grantee shall promptly (but in no event after thirty (30) days from the Date of Grant) file a copy of such election with NIL, and cash payment for taxes shall be made at the time of such election.

 

SECTION 7.   Withholding Tax .  Before NIL removes restrictions on transfer from the Account or delivers a certificate for Common Shares issued or transferred pursuant to this Restricted Stock Grant that bears no legend or otherwise delivering shares free from restriction, the Grantee shall be required to pay to NIL (or to the Subsidiary, if so designated by NII or NIL) the amount of federal, state or local taxes, if any, required by law to be withheld ("Withholding Obligation").  Subject to any Company policy as in effect from time to time,  NIL will withhold the number of shares required to

2


 

satisfy any Withholding Obligation, and provide to the Grantee a net balance of shares ("Net Shares") unless NIL receives notice not less than five (5) days before any Withholding Obligation arises that the Grantee intends to deliver funds necessary to satisfy the Withholding Obligation in such manner as NIL may establish or permit.  Notwithstanding any such notice, if the Grantee has not delivered funds within fifteen (15) days of after the Withholding Obligation arises, NIL may elect to deliver Net Shares.

 

SECTION 8.    Notices and Payments .   Any notice to be given by the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given only upon receipt by the Stock Plan Administrator at the offices of NIL in Hamilton, Bermuda, or at such address as may be communicated in writing to the Grantee from time to time.  Any notice or communication by NIL, NII, or the Subsidiary to the Grantee under this Restricted Stock Grant shall be in writing and shall be deemed to have been given if sent to the Grantee at the address listed in the records of NIL or at such address as specified in writing to NIL by the Grantee.

 

SECTION 9.    Waiver .   The waiver by NIL of any provision of this Restricted Stock Grant shall not operate as, or be construed to be, a waiver of the same or any other provision of this Restricted Stock Grant at any subsequent time for any other purpose.

 

SECTION 10.    Governing Law & Severability .  The Plan and all rights and obligations thereunder shall be construed in accordance with and governed by the laws of the State of Delaware.  If any provision of this Restricted Stock Grant should be held invalid, the remainder of this Restricted Stock Grant shall be enforced to the greatest extent permitted by applicable law, it being the intent of the parties that invalid or unenforceable provisions are severable.

 

SECTION 11.  Entire Agreement .    This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties.

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Restricted Stock Grant as of the day and year first written above. 

 

 

 

 

NABORS INDUSTRIES, INC.

 

 

 

By:

 

 

 

 

 

 

GRANTEE

 

 

 

 

 

WILLIAM J. RESTREPO

 

3


Exhibit 10.2

 

STOCK OPTION AGREEMENT

NABORS INDUSTRIES LTD.

 

This Stock Option Agreement, effective as of ____________ between NABORS INDUSTRIES LTD. (“Company”) and ___________ (“Optionee”),

 

WHEREAS, Optionee is now a Non-Employee Director of the Company, and

 

WHEREAS, the purpose of the Nabors Industries Ltd. 1999 Stock Option Plan for Non-Employee Directors (the “Plan”) is to promote the interests of the Company and its shareholders by strengthening the Company’s ability to attract and retain the services of experienced and knowledgeable directors and by encouraging such directors to acquire increased proprietary interest in the Company and

 

WHEREAS, the achievement of these goals will be assisted by the grant of an option to purchase shares of the Company’s Common Shares, $.001 par value (the “Stock”),

 

NOW THEREFORE, the parties mutually agree as follows:

 

1.          Grant of Option.  Effective _______________, the Company grants to Optionee the option to purchase ________ shares of Stock (“Optioned Stock”), subject to the terms and conditions set forth herein and in the Plan.  A copy of the Plan is attached hereto and is made part of the 1999 Stock Option Agreement for Non-Employee Directors.

 

2.          Option Price.  The price at which each share of Optioned Stock may be purchased shall be $______ per share of Optioned Stock.

 

3.          Vesting of Options.  The options shall vest immediately.

 

4.          Optionee Acknowledgment.  The Optionee agrees to be bound by the terms of the Option Agreement and the Plan.

 

IN WITNESS WHEREOF, the Optionee has duly executed this Agreement as of the day and year first written above.

 

 

Optionee

 

 

 

 

 

 

 

By:

 

 

 

Optionee

 


 

IN WITNESS WHEREOF, the Company has caused this Option Agreement to be duly executed by its duly authorized officer as of the day and year first above written.

 

COMPANY:

NABORS INDUSTRIES LTD.

 

 

 

 

 

 

 

By:

 

 


Exhibit 10.3(a)

 

NABORS INDUSTRIES, INC.

EXECUTIVE DEFERRED COMPENSATION PLAN

 

 

 

Amended and Restated Effective as of April 1, 2017

 

 


 

 

TABLE OF CONTENTS

 

 

 

 

ARTICLE

PAGE

 

 

 

 

I

Definitions and Construction

I-1

 

 

 

 

II

Participation

II-1

 

 

 

 

III

Account Credits and Allocations of Income or Loss

III 1

 

 

 

 

IV

Deemed Investment of Funds

IV-1

 

 

 

 

V

Determination of Vested Interest and Forfeitures

V-1

 

 

 

 

VI

In-Service Withdrawals and Loans

VI-1

 

 

 

 

VII

Benefit Payment

VII-1

 

 

 

 

VIII

Administration of the Plan

VIII-1

 

 

 

 

IX

Administration of Funds

IX-1

 

 

 

 

X

Nature of the Plan

X-1

 

 

 

 

XI

Miscellaneous

XI-1

 

 

-i-


 

 

NABORS INDUSTRIES, INC.

EXECUTIVE DEFERRED COMPENSATION PLAN

 

W I T N E S S E T H :

WHEREAS ,  Nabors Industries, Inc. (the “Company”)  has heretofore established the Nabors Industries, Inc. Executive Deferred Compensation Plan, hereinafter referred to as the “Plan,” to aid certain of its executive employees in making more adequate provision for their retirement; and

WHEREAS , the Company desires to amend the Plan in certain respects and to restate the Plan in its entirety, intending thereby to provide an uninterrupted and continuing program of benefits.

NOW THEREFORE , the Plan is hereby amended and restated in its entirety as follows, with no interruption in time, effective as of April 1, 2017, except as otherwise provided herein:

 

 

 

 


 

 

I.

Definitions and Construction

1.1         Definitions .  Where the following words and phrases appear in the Plan, they shall have the respective meanings set forth below, unless their context clearly indicates to the contrary.

(1)        Account :  The account established for each Participant’s benefit under Article III, including the amounts credited thereto.

(2)        Affiliate :  Each trade or business (whether or not incorporated) that together with the Company would be deemed to be a “single employer” within the meaning of subsections (b) or (c) of Section 414 of the Code, in each case, determined by application of an 80% control standard.    

(3)        As soon as administratively practicable :  For purposes of benefit distributions, a date of distribution that is as soon as administratively practicable, as determined by the Board, following a permissible payment event, which shall occur no later than the 90 th  day following the date of the permissible payment event and in no event shall a Participant or his Beneficiary be permitted to designate the taxable year of the payment.

(4)        Beneficiary :  The person or entity who, pursuant to Section 7.4, will receive payment of a Participant’s benefit in the event of such Participant’s death.

(5)        Board :  The Board of Directors of the Company.

(6)        Bonus Agreement :  An employment agreement or deferred bonus agreement between an Eligible Employee and the Employer that provides for participation in a “deferred bonus program.”

(7)        Bonus Agreement Deferrals :  Deferrals made by the Employer on a Participant’s behalf pursuant to Section 3.1.

(8)        Bonus Deferrals :  Deferrals made by the Employer on a Participant’s behalf pursuant to Article III, which may be Bonus Agreement Deferrals or Discretionary Bonus Deferrals.

(9)        Cause :  Cause for termination of a Participant’s employment with the Employer, as defined in such Participant’s Bonus Agreement, or, in the case of a Participant who is not a party to a Bonus Agreement:   (i) a material act or acts of dishonesty or disloyalty by the Participant which could or has adversely affected the Employer or the Company; (ii) the Participant’s breach of any of the Company’s personnel policies which, if correctable, remains uncorrected for 90 days following written notice specifying such breach given to the Participant by the Board; (iii) the Participant’s gross negligence or willful misconduct in performance of the duties and services required of him in his position, including any intentional acts of discrimination or harassment; (iv) the Participant’s conviction of any felony; (v) the Participant’s conviction of any crime involving moral turpitude; or (vi) the Participant’s act or acts which are detrimental to the image or reputation of the Employer

I-1


 

 

or the Company or acts which did or could result in material financial loss to the Employer or the Company.

(10)      Change in Control :  A “change in control event” within the meaning of Treasury Regulation § 1.409A-3(i)(5).

(11)      Code :  The Internal Revenue Code of 1986, as amended.    

(12)      Company :  Nabors Industries, Inc.

(13)      Constructive Termination Without Cause :  A Participant’s termination of his employment with the Employer under circumstances constituting a “Constructive Termination Without Cause,” as defined in his Bonus Agreement.

(14)      Disability :  A Participant’s Disability as defined under his Bonus Agreement, or, in the case of a Participant who is not a party to a Bonus Agreement, the Participant’s becoming incapacitated or disabled by accident, sickness or other circumstance which creates an impairment (despite reasonable accommodation) that renders him mentally or physically incapable of performing the duties and services required of him hereunder for a period of at least six months during any 12-month period as determined in good faith by the Plan Administrator.

(15)      Discretionary Bonus Deferrals :  Deferrals made by the Employer on a Participant’s behalf pursuant to Section 3.2.

(16)      Effective Date :  April 1, 2017 as to this amendment and restatement.  The original effective date of the Plan was December 31, 2008.

(17)      Eligible Employee :  Each employee of the Employer who is selected by the Board for participation in the Plan.

(18)      Employer :  The Company and any other entity designated by the Plan Administrator as eligible to participate in the Plan pursuant to the provisions of Section 2.3.

(19)      ERISA :   The Employee Retirement Income Security Act of 1974, as amended.

(20)      FICA Amount :  The term “FICA Amount” has the meaning set forth in Section 7.8(c).

(21)      Funds :  The investment funds, if any, designated from time to time by the Plan Administrator for the deemed investment of Accounts pursuant to Section 4.1.

(22)      Interest Credit Option :  A Fund made available by the Plan Administrator pursuant to Section 4.1(a) that provides a fixed rate of interest that is established, and subject to change from time to time, by the Company.

(23)      In-Service Payment Date :  The date, if any, specified in a Participant’s Bonus Agreement or at the time of a Discretionary Bonus Deferral is credited to a Participant’s Account (or otherwise determined in accordance with Section 3.1 or 3.2, as applicable) for payment of

I-2


 

 

the Participant’s Vested Interest under the Plan (or, with respect to any Bonus Agreement entered into on or after March 15, 2009, payment of the Participant’s Vested Interest in a specified Subaccount under the Plan) while the Participant remains employed by the Employer or one of its Affiliates.

(24)      Noncompetition Covenants :  The non-competition and non-solicitation covenants included in a Participant’s Bonus Agreement, Confidentiality and Noncompetition Agreement or other written agreement, if any, with such Participant’s Employer.

(25)      Other Arrangements :  The term “Other Arrangements” has the meaning set forth in Section 11.5(b)(ii)(C).

(26)      Other Taxes :  The term “Other Taxes” has the meaning set forth in Section 7.8(e).

(27)      Participant :  Each Eligible Employee for whom a Bonus Deferral has been made pursuant to Section 3.1.

(28)      Plan :  The Nabors Industries, Inc. Executive Deferred Compensation Plan, as amended from time to time.

(29)      Plan Administrator :  The person, persons or entity designated by the Board to administer the Plan.

(30)      Plan Year :  The twelve consecutive month period commencing January 1 of each year.

(31)      Specified Employee :  An individual who on the date of his Termination of Service is considered a “key employee” within the meaning of Section 416(i) of the Code (applied in accordance with the Treasury Regulations promulgated thereunder and without regard to subparagraph (5) thereof) if, as of the date of his Termination of Service, the Company or any Affiliate is publicly traded on an established securities market or otherwise.  The identification of Specified Employees for purposes of distributions upon Termination of Service pursuant to Article VII shall be made in accordance with the general requirements of Section 409A(a)(2)(B)(i) of the Code pursuant to any method elected by the Plan Administrator or, if no such election is made, under the default rules under such Code Section.

(32)      Subaccount :  A subaccount established under the Participant’s Account to which a specified Bonus Agreement Deferral or Discretionary Bonus Deferral is credited.  Reference to an Account shall include all Subaccounts included in such Account unless otherwise provided herein.

(33)      Termination of Service :  The termination of a Participant’s employment with the Employer and all Affiliates for any reason whatsoever or for no reason at all.  Notwithstanding anything to the contrary herein, a Participant shall not be considered to have incurred a Termination of Service for purposes of the Plan if his termination does not constitute a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code.    

I-3


 

 

(34)      Trust :  The trust established under the Trust Agreement.

(35)      Trust Agreement :  The agreement entered into between the Employer and the Trustee pursuant to Article X.

(36)      Trust Fund :  The funds and properties held pursuant to the provisions of the Trust Agreement, together with all income, profits and increments thereto.

(37)      Trustee :  The trustee or trustees qualified and acting under the Trust Agreement at any time.

(38)      Vested Interest :  The portion of a Participant’s Account which, pursuant to the Plan, is nonforfeitable.

1.2         Number and Gender .  Wherever appropriate herein, words used in the singular shall be considered to include the plural and words used in the plural shall be considered to include the singular.  The masculine gender, where appearing in the Plan, shall be deemed to include the feminine gender.

1.3         References to Statutes and Regulations .  References herein to provisions of the Code and ERISA or the regulations promulgated thereunder shall include any successor statute or regulation and any applicable authoritative guidance promulgated thereunder.

1.4         Headings .  The headings of Articles and Sections herein are included solely for convenience, and if there is any conflict between such headings and the text of the Plan, the text shall control.

 

 

I-4


 

 

II.

Participation

2.1         Participation .

(a)       The Board, in its sole discretion, shall select and notify those management or highly compensated employees of the Employer who shall become Eligible Employees.  An Eligible Employee shall become a Participant upon the crediting by the Employer of a Bonus Deferral to his Account pursuant to Article III.  Notwithstanding the foregoing, each Eligible Employee who has entered into a Bonus Agreement with an Employer shall become a Participant upon the effective date of such agreement.

(b)       Subject to the provisions of Section 2.2, a Participant shall remain eligible to receive Bonus Deferrals hereunder for each Plan Year following his commencement of participation in the Plan until his Termination of Service.

2.2         Cessation of Active Participation .  Notwithstanding any provision herein to the contrary, an Eligible Employee who has become a Participant shall cease to be eligible to receive Bonus Deferrals hereunder effective as of any date designated by the Plan Administrator; provided, however, that an Eligible Employee who is party to a Bonus Agreement shall be eligible to receive Bonus Agreement Deferrals under the Plan as provided in his Bonus Agreement.  Any such Plan Administrator action shall be communicated to the affected individual prior to the effective date of such action.  Such an individual may again become eligible to receive Bonus Deferrals hereunder as determined by the Board in its sole discretion.

2.3         Participating Employers .  It is contemplated that other entities may be designated by the Plan Administrator as eligible to participate in the Plan and thereby become an Employer.  Any such entity, whether or not presently existing, may become an Employer hereunder by written designation of the Plan Administrator delivered to the Secretaries of the Company and the designated Employer.  Such written designation shall specify the effective date of the Employer’s participation and may incorporate specific provisions relating to the operation of the Plan that apply to such Employer and its Eligible Employees.  Except as otherwise provided herein and in an Employer’s written designation of participation pursuant to this Section 2.3, the provisions of the Plan shall apply separately and equally to each Employer and its employees in the same manner as is expressly provided for the Company and its employees, except that the power to appoint or otherwise affect the Plan Administrator and the Trustee and the power to amend or terminate the Plan or amend the Trust Agreement shall be exercised by the Board alone.  Transfer of employment among Employers and Affiliates shall not be considered a Termination of Service hereunder and service with one Employer shall be considered service with all others.  Any Employer may, by appropriate action of its officers without the need for approval of its board of directors (or noncorporate counterpart) or the Plan Administrator or the Board, terminate its participation in the Plan.  Moreover, the Board may, in its discretion, terminate an Employer’s Plan participation at any time.  Notwithstanding the foregoing, the termination of an Employer’s Plan participation may be effective only as of the last day of the last payroll period beginning during a Plan Year if the Employer remains an Affiliate of the Company following such termination (provided, however, that any Bonus Deferral already in effect for such Plan Year shall remain in effect, even if the

II-1


 

 

crediting of the amount to an Account with respect to such Bonus Deferral occurs after such Plan Year), or if the Employer does not remain as an Affiliate of the Company at such time, the termination shall be effective only at a time that complies with Section 409A of the Code.  Further, notwithstanding the foregoing, distributions pursuant to any such termination of an Employer’s participation in the Plan shall be subject to the provisions of Section 11.5 and Treasury Regulation § 1.409A-3(j)(4)(ix). 

 

 

II-2


 

 

III.

Account Credits and Allocations of Income or Loss

3.1         Bonus Agreement Deferrals .  For each Participant who is a party to a Bonus Agreement, as soon as practicable following each date specified by such Bonus Agreement, the Employer shall credit such Participant’s Account with a Bonus Agreement Deferral in the amount specified in the Bonus Agreement.  Any Bonus Agreement Deferral credited by the Employer to the Participant’s Account pursuant to this Section 3.1 with respect to a particular Plan Year shall be credited to a separate Subaccount established within his Account with respect to such Plan Year.  Each such Subaccount shall be referred to by a distinct name chosen by the Plan Administrator, relating to the Plan Year for which the Bonus Agreement Deferral was made pursuant to the Participant’s Bonus Agreement (such as the “2008 Bonus Agreement Deferral Subaccount”).  Each such Subaccount shall be subject to separate deemed investment designations pursuant to Section 4.1.  Each Bonus Agreement entered into on or after March 15, 2009 may specify an In-Service Payment Date upon which the Subaccount to which such Bonus Agreement Deferral will be credited shall be paid (except as otherwise provided pursuant to Article VII).  If no such date is specified in such Bonus Agreement at the time it is entered into, such Subaccount and any earnings related thereto will be distributed at the Participant’s Termination of Service (except as otherwise provided pursuant to Article VII).

3.2         Discretionary Bonus Deferrals .  As of any date selected by the Employer, the Employer may credit a Participant’s Account with one or more Discretionary Bonus Deferral(s) in such amount(s), if any, as the Employer shall determine in its sole discretion.  Such credits may be made on behalf of some Participants but not others, and such credits may vary among individual Participants in amount.  Any amount credited by the Employer to a Participant’s Account pursuant to this Section 3.2 shall be credited to a separate Subaccount within his Account.  Each such Subaccount shall be referred to by a distinct name chosen by the Plan Administrator (such as the “2008 Discretionary Bonus Deferral Subaccount” for a Discretionary Bonus Deferral credited on a date during calendar year 2008).  At each time the Employer credits a Participant’s Account with a Discretionary Bonus Deferral, the Employer may specify an In-Service Payment Date upon which the Subaccount to which such Discretionary Bonus Deferral will be credited shall be paid (except as otherwise provided pursuant to Article VII).  If no such date is specified at the time such Discretionary Bonus Deferral is credited pursuant to this Section, such Subaccount will be distributed at the Participant’s Termination of Service (except as otherwise provided pursuant to Article VII).

3.3         Valuation of Accounts .  All amounts credited to an Account shall be deemed invested in accordance with Article IV on the date such amount is credited to such Account, and the balance of each Account shall reflect the result of the daily pricing of the assets in which such Account is deemed invested from the time of such crediting until the time of distribution.    Notwithstanding the foregoing, in the case of any Subaccounts  within an Account that are invested in the Interest Credit Option, interest shall be credited to such Subaccounts at the frequency established by the Plan Administrator in its discretion and such Subaccount shall not be adjusted to reflect any other amounts.

 

 

III-1


 

 

IV.

Deemed Investment of Funds

4.1         Participant Directions .

(a)       Each Participant may designate, in accordance with the procedures established from time to time by the Plan Administrator, the manner in which the amounts allocated to his Account or Subaccounts shall be deemed to be invested from among the Funds made available from time to time for such purpose by the Plan Administrator.  Such Participant may be permitted to designate one of such Funds for the deemed investment of all the amounts allocated to his Account or he may be permitted to split the deemed investment of the amounts allocated to his Account or Subaccounts between such Funds in such increments as the Plan Administrator may prescribe.  If a Participant fails to make investment designations with respect to the deemed investment of his Account or any Subaccount thereunder,  then his Account or such Subaccount shall be deemed to be invested in the Fund or Funds designated by the Plan Administrator from time to time in a uniform and nondiscriminatory manner. 

(b)       A  Participant may change his deemed investment designation for future amounts to be allocated to his Account or Subaccounts.  Any such change shall be made in accordance with the procedures established by the Plan Administrator and the frequency of such changes may be limited by the Plan Administrator.

(c)       A  Participant may elect to convert his deemed investment designation with respect to the amounts already allocated to his Account or Subaccounts.  Any such conversion shall be made in accordance with the procedures established by the Plan Administrator and the frequency of such conversions may be limited by the Plan Administrator.

(d)       Notwithstanding anything to the contrary in Sections 4.1(a), 4.1(b) and 4.1(c), if a Participant designates the Plan’s Interest Credit Option with respect to a Subaccount established to hold a particular year’s Bonus Agreement Deferrals or Discretionary Bonus Deferrals on his behalf,  all such amounts in such Subaccount must be designated for investment in the Interest Credit Option.

 

 

 

IV-1


 

 

V.

Determination of Vested Interest and Forfeitures

5.1         Bonus Agreement Deferrals .    

(a)       With respect to a Bonus Agreement entered into prior to March 15, 2009, a Participant shall have a 100% Vested Interest in the portion of his Account attributable to Bonus Agreement Deferrals pursuant to such Bonus Agreement and all earnings attributable thereto. 

(b)       With respect to a Bonus Agreement entered into on or after March 15, 2009 and prior to April 1, 2014, a Participant shall have a 100% Vested Interest in the Subaccount to which a particular Bonus Agreement Deferral has been credited pursuant to such Bonus Agreement (i) on the In-Service Payment Date specified with respect to such Bonus Agreement Deferral in such Bonus Agreement or (ii) if no In-Service Payment Date with respect to a particular Bonus Agreement Deferral has been specified in the Bonus Agreement at the time it is entered into, the Subaccount into which such Bonus Agreement Deferral was credited will vest upon the fifth anniversary of the date that the Bonus Agreement is executed and such anniversary date shall be deemed to be the In-Service Payment Date with respect to the Subaccount to which such Bonus Agreement Deferral is credited.

(c)       With respect to a Bonus Agreement entered into on or after April 1, 2014 and prior to April 1, 2017,  (i) a Participant shall have a 100% Vested Interest in the Subaccount to which a particular Bonus Agreement Deferral has been credited pursuant to such Bonus Agreement (x) on the date specified with respect to such Bonus Agreement Deferral in such Bonus Agreement or (y) if no vesting date with respect to a particular Bonus Agreement Deferral has been specified in the Bonus Agreement at the time it is entered into, on the third anniversary of the date that the Bonus Agreement is executed; and (ii) the applicable vesting date determined pursuant to clause (i) of this Section 5.1(c) shall be deemed to be the In-Service Payment Date with respect to the Subaccount to which such Bonus Agreement Deferral is credited.

(d)       With respect to a Bonus Agreement entered into on or after April 1, 2017, a Participant shall have a 100% Vested Interest in the Subaccount to which a particular Bonus Agreement Deferral has been credited pursuant to such Bonus Agreement (i) on the date(s) specified with respect to such Bonus Agreement Deferral in such Bonus Agreement or (ii) if no vesting date(s) with respect to a particular Bonus Agreement Deferral has been specified in such Bonus Agreement at the time it is entered into, determined based upon the annual anniversary of the date that such Bonus Agreement is executed in accordance with the following schedule:

V-1


 

 

 

 

Annual Anniversary

Vested Interest

 

 

Less than 5

0%

 

 

5

50%

 

 

6

60%

 

 

7

70%

 

 

8

80%

 

 

9

90%

 

 

10 or more

100%

 

 

 

The Subaccount described in the preceding sentence shall not have an In-Service Payment Date unless such a date has been specified in the applicable Bonus Agreement.

5.2         Discretionary Bonus Deferrals .  On each occasion, if any, upon which the Employer has credited a Participant with a Discretionary Bonus Deferral under Section 3.2, the Employer shall designate the vesting schedule applicable to the separate Subaccount to which such amount shall have been credited.  A Participant’s Vested Interest in such separate Subaccount shall be determined in accordance with the vesting schedule so designated.  If no vesting schedule shall have been designated with respect to a particular Subaccount established prior to April 1, 2017 with respect to a Discretionary Bonus Deferral credited pursuant to Section 3.2, a Participant shall have a 100% Vested Interest in such Subaccount upon the third anniversary of the date such Discretionary Bonus Deferral was so credited and such anniversary date shall be deemed to be the In-Service Payment Date with respect to such Subaccount.  If no vesting schedule shall have been designated with respect to a particular Subaccount established on or after April 1, 2017 with respect to a Discretionary Bonus Deferral credited pursuant to Section 3.2, a Participant shall obtain a Vested Interest in such Subaccount based upon the annual anniversary of the date such Discretionary Bonus Deferral was so credited in accordance with the following schedule:

 

 

Annual Anniversary

Vested Interest

 

 

Less than 5

0%

 

 

5

50%

 

 

6

60%

 

 

7

70%

 

 

8

80%

 

 

9

90%

 

 

10

100%

 

 

V-2


 

 

The Subaccount described in the preceding sentence shall not have an In-Service Payment Date unless such a date has been specified by the Employer and communicated to the Participant in writing at the time the applicable Discretionary Bonus Deferral is credited to such Subaccount.

5.3         Accelerated Vesting.    Notwithstanding any contrary provisions of this Article V, a Participant’s Accounts (or Subaccounts, if applicable, as provided below) shall vest at the time of the following event if such event occurs earlier than the vesting events described in the preceding provisions of this Article V:

(a)       A Participant whose Termination of Service with the Employer (i) is initiated by the Employer for reasons other than Cause, (ii) occurs in a Constructive Termination Without Cause (only if and to the extent provided in such Participant’s Bonus Agreement) or (iii) occurs on account of the Participant’s death or Disability shall have a 100% Vested Interest in his Account upon such termination.

(b)       A Participant who has not incurred a Termination of Service shall have a 100% Vested Interest in his Account immediately prior to his Employer becoming insolvent (as defined in Article X), in which case, such Participant will have the same rights as a general creditor of the Employer with respect to his or her Account balance.

5.4         Forfeitures .

(a)       A  Participant who has a Vested Interest in any Subaccount that is less than 100% as of the date of his Termination of Service shall forfeit to the Employer the unvested portion of such Subaccount as of such date.

(b)       Notwithstanding anything to the contrary in Section 5.1 or Section 5.2, in the event that the Participant’s employment with the Employer is terminated by the Employer for Cause at any time prior to the payment of the Participant’s Plan benefit, the Participant shall forfeit to the Employer his entire interest in his Account as of the date of such termination; (2) with respect to the portion, if any, of the Participant’s Account attributable to Bonus Agreement Deferrals, if the Participant terminates his employment with the Employer and its Affiliates prior to an applicable In-Service Payment Date relating to such Bonus Agreement Deferrals, the Participant shall forfeit to the Employer such portion of his Account as of the date of such termination; provided, however, that clause (2) of this Section 5.4(b) shall not be applicable to the extent that such Participant’s Bonus Agreement(s) provide for accelerated vesting or payment of Plan benefits in connection with his Constructive Termination Without Cause and the Participant terminates his employment under circumstances constituting a Constructive Termination Without Cause in accordance with his Bonus Agreement(s); and (3) with respect to the portion, if any, of a Participant’s Account attributable to any Discretionary Bonus Deferral, if the Participant terminates his employment with the Employer and its Affiliates prior to an applicable In-Service Payment Date with respect to such Discretionary Bonus Deferral, the Participant shall forfeit to the Employer such portion of his Account as of the date of such termination unless specifically provided to the contrary in writing by the Employer at the time such Discretionary Bonus Deferral was credited to his or her Account pursuant to Section 3.2.

V-3


 

 

(c)       Notwithstanding the preceding provisions of this Article V, the vested portion of a Participant’s Account may be forfeited to the Employer pursuant to the provisions of Section 7.5 or 7.7.

5.5         Transfers of Employment .  Notwithstanding anything to the contrary herein, transfers of employment among Employers and their Affiliates shall not be considered a Termination of Service.   Continuous service with the Employer and any of its Affiliates shall constitute continuous service for purposes of determining a Participant’s Vested Interest in his Account.

 

 

V-4


 

 

VI.

In-Service Withdrawals and Loans

6.1         Restrictions on In-Service Withdrawals and Loans .  Except in connection with distributions relating to applicable In-Service Payment Dates, Participants shall not be permitted to make withdrawals from the Plan prior to incurring a Termination of Service.  Participants shall not, at any time, be permitted to borrow from the Trust Fund.

 

 

VI-1


 

 

VII.

Benefit Payment

7.1         Amount of Benefit .  Upon the earliest to occur of (a) a Participant’s In-Service Payment Date or (b) a Participant’s Termination of Service, such Participant, or, in the event of the death of a Participant while employed by the Employer or an Affiliate, such Participant’s designated Beneficiary, shall be entitled to a benefit equal in value to such Participant’s Vested Interest in the balance in his Account as of the date the payment of such benefits is to occur pursuant to Section 7.2.  Notwithstanding the foregoing, with respect to a Participant who first entered into a Bonus Agreement with the Employer on or after March 15, 2009 or whose Account was first credited with a Discretionary Bonus Deferral on or after such date, the amount of any benefit payable with respect to a particular In-Service Payment Date shall be limited to the value of the Participant’s Vested Interest in the balance of his Subaccount(s) to which such In-Service Payment Date relates as of the date the payment of such benefits is to occur pursuant to Section 7.2.

7.2         Time of Payment .

(a)       Except as provided in Section 7.2(c), payment of a Participant’s benefit under Section 7.1 shall be made on the earliest to occur of such Participant’s In-Service Payment Date or, subject to the delayed payment requirement for Specified Employees described in Section 7.2(b), Termination of Service.  A payment will be considered to have been paid at the time provided in the preceding sentence if payment is made as soon as administratively practicable (as defined in Section 1.1(3)) following such payment time.

(b)       Notwithstanding anything to the contrary herein,  but subject to Section 7.2(c), in the case of a Participant who is a Specified Employee, a distribution upon such Participant’s Termination of Service (other than a termination in the event of his death) shall be made on the date that is six months after the date of such Participant’s Termination of Service (or, if earlier, as soon as administratively practicable following the death of the Participant).

(c)       If allowed by the Plan Administrator, a Participant may irrevocably elect to delay the payment date pertaining to his Account or Subaccount(s), as applicable, for a minimum period of five years from the originally scheduled date of payment, provided that such election to delay payment (i) is not effective until at least 12 months after the date on which the election is made and (ii) in the case of an election that relates to an In-Service Payment Date, is made at least 12 months before such In-Service Payment Date.  A re-deferral election pursuant to this Section 7.2(c) must be made in accordance with the procedures and rules established by the Plan Administrator, which shall be construed and administered in accordance with Section 409A of the Code.

(d)       Notwithstanding the foregoing provisions of this Section 7.2, in the event of the death of a Participant (including but not limited to a Specified Employee) prior to the distribution of his Account, the remaining balance of the Participant’s Vested Interest in his Account shall be paid to his designated Beneficiaries upon his death.  A payment will be considered to have been paid at the time provided in the preceding sentence if payment is made as

VII-1


 

 

soon as administratively practicable (as defined in Section 1.1(3)) following the Participant’s death.    

7.3         Form of Payment .    A Participant shall receive payment of his benefit under the Plan as a single lump sum payment; provided, however, that in the case of a Participant who first entered into a Bonus Agreement with the Employer on or after March 15, 2009 or whose Account was first credited with a Discretionary Bonus Deferral on or after such date, payment with respect to each Subaccount under the Plan to which he is entitled to a benefit shall be paid as a single lump sum payment.  For purposes of compliance with Section 409A of the Code, payments to which a Participant may be entitled with respect to each of his Subaccounts under the Plan shall be considered separate payments. 

7.4         Beneficiaries .

(a)       Each Participant shall have the right to designate the Beneficiary or Beneficiaries to receive payment of his benefit in the event of his death.  Each such designation with respect to a Participant shall be made by executing the Beneficiary designation form prescribed by the Plan Administrator and filing the same with the Plan Administrator during such Participant’s lifetime.  Any such designation may be changed at any time by execution of a new designation in accordance with this Section during such Participant’s lifetime.

(b)       If no such designation is on file with the Plan Administrator at the time of the death of the Participant or such designation is not effective for any reason as determined by the Plan Administrator, then the Beneficiary or Beneficiaries to receive such benefit shall be as follows:

(i)       If a Participant leaves a surviving spouse, his benefit shall be paid to such surviving spouse;

(ii)      If a Participant leaves no surviving spouse but leaves issue, then his benefit shall be paid to such issue per stirpes; and

(iii)     If a Participant leaves no surviving spouse or issue, his benefit shall be paid to such Participant’s executor or administrator, or to his heirs at law if there is no administration of such Participant’s estate.

7.5         Repayment Obligation for Violation of Noncompetition Obligations .  Notwithstanding anything to the contrary herein, in the event that a  Participant violates his Noncompetition Covenant, if any, such Participant shall be obligated to repay to the Employer the gross amount of his Account balance paid to him pursuant to the preceding provisions of this Article VII.  Such payment shall be due on the date that is three business days following any such violation.  In the event that any Participant who incurs a repayment obligation pursuant to this Section 7.5 fails to make complete and timely repayment, such Participant shall also be liable to the Employer for interest at the then-applicable federal rate for underpayments of tax and shall be obligated to indemnify the Employer against and hold it harmless from the Employer’s costs of enforcement of this Section 7.5 (including, without limitation, attorney’s fees, court costs and expenses related thereto).

VII-2


 

 

7.6         Payment of Benefits .  To the extent the Trust Fund, if any, has sufficient assets, the Trustee shall pay benefits to Participants or their Beneficiaries, except to the extent the Employer pays the benefits directly to Participants or their Beneficiaries and provides adequate evidence of such payment to the Trustee.  To the extent the Trustee does not or cannot pay benefits out of the Trust Fund, the benefits shall be paid by the Employer and reimbursed by the Trustee.  Any benefit payments made to a Participant or for his benefit pursuant to any provision of the Plan shall be debited to such Participant’s Account.  All benefit payments shall be made in cash to the fullest extent practicable.

7.7         Unclaimed Benefits .  In the case of a benefit payable on behalf of a Participant, if the Plan Administrator is unable to locate the Participant or Beneficiary to whom such benefit is payable, upon the Plan Administrator’s determination thereof, such benefit shall be forfeited to the Employer.  Notwithstanding the foregoing, if subsequent to any such forfeiture the Participant or Beneficiary to whom such benefit is payable makes a valid claim for such benefit, such forfeited benefit (without any adjustment for earnings or loss after the time of such forfeiture) shall be restored to the Plan by the Employer and paid in accordance with the Plan.

7.8         Permitted Accelerated Payments .  Notwithstanding anything to the contrary in the Plan, the Plan Administrator may direct the accelerated payment of Plan benefits under the following circumstances:

(a)       A  Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Account, in a single lump sum payment, to the extent necessary for any Federal officer or employee in the executive branch to comply with an ethics agreement with the Federal government;

(b)       A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Account, in a single lump sum payment, to the extent reasonably necessary to avoid the violation of an applicable Federal, state, local or bona fide foreign ethics law or conflicts of interest law;

(c)       A Participant shall be entitled to receive a distribution of such portion of  the Vested Interest in his Account, in a single lump sum payment, as is necessary to pay (i) the Federal Insurance Contributions Act (FICA) tax imposed under Sections 3101, 3121(a) and 3121(v)(2) of the Code, where applicable, on Bonus Deferrals (the “ FICA Amount ”), (ii) the income tax at source on wages imposed under Section 3401 of the Code, or the corresponding withholding provisions of applicable state, local, or foreign tax laws as a result of the payment of the FICA Amount, and (iii) the additional income tax at source on wages attributable to the pyramiding Section 3401 wages and taxes; provided, however, that the total payment under this Section 7.8(c) shall not exceed the aggregate of the FICA Amount and the income tax withholding related to such FICA Amount;

(d)       A Participant shall be entitled to receive distribution of such portion of the Vested Interest in his Account, in a single lump sum payment, as is required to be included in the Participant’s income as a result of the failure of the Plan to comply with Section 409A of the Code; provided, however, that such distribution shall not exceed the amount required to be included in the Participant’s income as a result of such failure;

VII-3


 

 

(e)       A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Account, in a single lump sum payment, to reflect payment of state, local or foreign tax obligations arising from participation in the Plan that apply to an amount deferred under the Plan before the amount is paid or made available to the Participant.  Any such payment may not exceed (i) the amount of such taxes as are due as a result of participation in the Plan (the “ Other Taxes ”) and may be made in the form of withholding pursuant to the provisions of the applicable law or by distribution directly to the Participant and (ii) the income tax at source on wages imposed under Section 3401 of the Code as a result of the distribution of the Other Taxes and to pay the additional income tax at source on wages imposed under Section 3401 of the Code attributable to the payment of such additional Section 3401 wages and Other Taxes;

(f)       A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Account, in a single lump sum payment, in connection with the settlement of an arm’s length bona fide dispute between the Employer and the Participant as to the Participant’s right to benefits under the Plan to the extent contemplated under Section 409A of the Code without causing such distribution to be treated as an impermissible acceleration;

(g)       A  Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Account, in a single lump sum payment, under any other circumstance permitted under Treasury Regulation § 1.409A-3(j)(4) (except in connection with a qualified domestic relations order) or any successor regulation thereto or prescribed by the Commissioner of Internal Revenue in generally applicable guidance published in the Internal Revenue Bulletin; and

(h)       The Board may direct, in its discretion, that the Vested Interest of each Participant in his Account under the Plan be distributed in connection with a termination of the Plan in accordance with Section 11.5.

Any distribution to be made pursuant to Sections 7.8 (a) through (g) shall be made as soon as administratively practicable (as defined in Section 1.1(3)) following the determination that such distribution should be made.

 

 

VII-4


 

 

VIII.

Administration of the Plan

8.1         Appointment of Plan Administrator .  The general administration of the Plan shall be vested in the Plan Administrator which shall be appointed by the Board and shall consist of one or more persons or entities.  If no such person(s) or entity is appointed, the Company shall be the Plan Administrator.

8.2         Term, Vacancies, Resignation, and Removal .  Each individual member of the Plan Administrator shall serve until he resigns, dies, or is removed by the Board.  At any time during his term of office, an individual member of the Plan Administrator may resign by giving written notice to the Board and the Plan Administrator, such resignation to become effective upon the appointment of a substitute member or, if earlier, the lapse of 30 days after such notice is given as herein provided.  At any time during his term of office, and for any reason, a member of the Plan Administrator may be removed by the Board with or without cause, and the Board may in its discretion fill any vacancy that may result therefrom.  Any member of the Plan Administrator who is an employee of the Employer or any Affiliate shall automatically cease to be a member of the Plan Administrator as of the date he ceases to be employed by the Employer and all Affiliates, regardless of the reason for such termination.

8.3         Self-Interest of Participants .  No member of the Plan Administrator shall have any right to vote or decide upon any matter relating solely to himself under the Plan or to vote in any case in which his individual right to claim any benefit under the Plan is particularly involved.  In any case in which a Plan Administrator member is so disqualified to act and the remaining members cannot agree, the Board shall appoint a temporary substitute member to exercise all the powers of the disqualified member concerning the matter in which he is disqualified.

8.4         Plan Administrator Powers and Duties .  The Plan Administrator shall supervise the administration and enforcement of the Plan according to the terms and provisions hereof and shall have all powers necessary to accomplish these purposes, including, but not by way of limitation, the right, power, and authority:

(a)       To establish, amend, suspend or waive rules, regulations, and bylaws for the administration of the Plan that are not inconsistent with the terms and provisions hereof, and to enforce the terms of the Plan and the rules and regulations promulgated thereunder by the Plan Administrator;

(b)       To construe in its discretion all terms, provisions, conditions, and limitations of the Plan;

(c)       To correct any defect or to supply any omission or to reconcile any inconsistency that may appear in the Plan in such manner and to such extent as it shall deem in its discretion expedient to effectuate the purposes of the Plan;

(d)       To employ and compensate such accountants, attorneys, investment advisors, and other agents, employees, and independent contractors as the Plan

VIII-1


 

 

Administrator may deem necessary or advisable for the proper and efficient administration of the Plan;

(e)       To determine in its discretion all questions relating to eligibility;

(f)       To determine whether and when a Participant has incurred a Termination of Service, the reason for such Termination of Service, and the extent, if any, to which such Termination of Service results in an acceleration of any unvested portion of any of such Participant’s Subaccounts;

(g)       To make a determination in its discretion as to the right of any person to a benefit under the Plan and to prescribe procedures to be followed by Participants and Beneficiaries in obtaining benefits hereunder;

(h)       To receive and review reports from the Trustee as to the financial condition of the Trust Fund, including its receipts and disbursements; and

(i)        To establish or designate Funds as investment options as provided in Section 4.1.

8.5         Claims Review .  Claims for Plan benefits and reviews of Plan benefit claims which have been denied or modified will be processed in accordance with the written Plan claims procedures established by the Plan Administrator, which procedures are hereby incorporated by reference as a part of the Plan as such procedures may be amended from time to time by the Plan Administrator.

8.6         Employer to Supply Information .  The Employer shall supply full and timely information to the Plan Administrator, including, but not limited to, information relating to each Participant’s compensation, retirement, death, or other cause of Termination of Service and such other pertinent facts as the Plan Administrator may require.  The Employer shall advise the Trustee, if any, of such of the foregoing facts as are deemed necessary for the Trustee to carry out the Trustee’s duties under the Plan and the Trust Agreement.  When making a determination in connection with the Plan, the Plan Administrator shall be entitled to rely upon the aforesaid information furnished by the Employer or any information furnished by a Participant, Beneficiary or the Trustee.

8.7         Indemnity .  To the extent permitted by applicable law, the Company shall indemnify and hold harmless each individual serving as a member of the Plan Administrator against any and all expenses, liabilities and claims arising out of their discharge in good faith of responsibilities under or incident to the Plan including any such expenses, liabilities and claims as may arise based upon such individual’s negligence.  Expenses and liabilities arising out of such individual’s own gross negligence or willful misconduct shall not be covered under this indemnity.  Expenses against which such individual shall be indemnified hereunder shall include, without limitation, the amounts of any settlement or judgment, costs, counsel fees, and related charges reasonably incurred in connection with a claim asserted or a proceeding brought or settlement thereof.  This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Company or provided by the Company under any articles of

VIII-2


 

 

incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, as such indemnities are permitted under applicable law.

 

 

VIII-3


 

 

IX.

Administration of Funds

9.1         Payment of Expenses .  All expenses incident to the administration of the Plan and Trust, including but not limited to, legal, accounting, Trustee fees, and expenses of the Plan Administrator, may be paid by the Employer and, if not paid by the Employer, shall be paid by the Trustee, at the direction of the Plan Administrator, from the Trust Fund, if any.

9.2         Trust Fund Property .  All income, profits, recoveries, contributions, forfeitures and any and all moneys, securities and properties of any kind at any time received or held by the Trustee, if any, shall be held for investment purposes as a commingled Trust Fund pursuant to the terms of the Trust Agreement.  The Plan Administrator shall maintain an Account in the name of each Participant, but the maintenance of an Account designated as the Account of a Participant shall not mean that such Participant shall have a greater or lesser interest than that due him by operation of the Plan and shall not be considered as segregating any funds or property from any other funds or property contained in the commingled fund.  No Participant shall have any title to any specific asset in the Trust Fund.  The assets of the Trust Fund shall be invested in such investments as the Trustee shall determine, in accordance with the terms of the Trust Agreement.  The Trustee may (but is not required to) consider the Employer’s or a Participant’s investment preferences when investing the assets attributable to the Participant’s Account.

 

 

IX-1


 

 

X.

Nature of the Plan

10.1        Establishment of Trust Fund .  The Employer intends and desires by the adoption of the Plan to recognize the value to the Employer of the past and present services of employees covered by the Plan and to encourage and assure their continued service with the Employer by making more adequate provision for their future retirement security.  The Plan is intended to constitute an unfunded, unsecured plan of deferred compensation for a select group of management or highly compensated employees of the Employer.  Plan benefits herein provided are a contractual obligation of the Employer which shall be paid out of the Trust Fund or the Employer’s general assets.  Nevertheless, subject to the terms hereof and of the Trust Agreement, the Employer shall transfer money or other property to the Trustee to provide Plan benefits hereunder, and   the Trustee shall pay the Plan benefits to Participants and Beneficiaries out of the Trust in accordance with the terms of the Plan and the Trust Agreement as in effect from time to time.  To the extent that the Employer transfers assets to the Trustee pursuant to the Trust Agreement, the Plan Administrator may, but need not, establish procedures for the Trustees to invest the Trust Fund in accordance with each Participant’s designated deemed investments pursuant to Section 4.1 respecting the portion of the Trust Fund assets equal to such Participant’s Account.

10.2        Ownership of Trust Fund Assets .  The Employer shall remain the owner of all assets in the Trust Fund and the assets shall be subject to the claims of the Employer’s creditors if the Employer ever becomes insolvent.  For purposes hereof, the Employer shall be considered “insolvent” if (a) the Employer is unable to pay its debts as such debts become due or (b) the Employer is subject to a pending proceeding as a debtor under the United Sates Bankruptcy Code (or any successor federal statute).  The Chief Executive Officer of the Employer and its board of directors shall have the duty to inform the Trustee in writing if the Employer becomes insolvent. Such notice given under the preceding sentence by any party shall satisfy all of the parties’ duty to give notice.  When so informed, the Trustee shall suspend payments to the Participants  and Beneficiaries and hold the assets for the benefit of the Employer’s general creditors.  If the Trustee receives a written allegation that the Employer is insolvent, the Trustee shall suspend payments to the Participants  and Beneficiaries and hold the Trust Fund for the benefit of the Employer’s general creditors, and shall determine in the manner specified in the Trust Agreement whether the Employer is insolvent.  If the Trustee determines that the Employer is not insolvent, the Trustee shall resume payments to the Participants and Beneficiaries.  No Participant or Beneficiary shall have any preferred claim to, or any beneficial ownership interest in, any assets of the Trust Fund, and, upon commencement of participation in the Plan, each Participant shall have agreed to waive his priority credit position, if any, under applicable state law with respect to the assets of the Trust Fund.

10.3        Limitation on Funding .  Notwithstanding anything to the contrary herein or in the Trust Agreement, in no event shall money and/or property be transferred to the Trust if such transfer would result in adverse tax consequences to a Participant pursuant to Section 409A(b) of the Code.

 

 

X-1


 

 

XI.

Miscellaneous

11.1        No Contract of Employment .  The adoption and maintenance of the Plan shall not be deemed to be a contract of employment or for other services between the Employer and any person or to be consideration for the employment of any person.  Nothing herein contained shall be deemed to (a) give any person the right to be retained in the employ or other service of the Employer, (b) restrict the right of the Employer to discharge any person or terminate any service relationship at any time, (c) give the Employer the right to require that any person remain in the employ or service of the Employer, (d) restrict any person’s right to terminate his employment or service relationship with the Employer at any time, or (e) be a commitment on the part of the Employer to continue the rate of compensation of a Participant for any period.

11.2        Alienation of Interest Forbidden .  The interest of a Participant or his Beneficiary or Beneficiaries hereunder may not be sold, transferred, assigned, or encumbered in any manner, either voluntarily or involuntarily, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be null and void; neither shall the benefits hereunder be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person to whom such benefits or funds are payable, nor shall they be an asset in bankruptcy or subject to garnishment, attachment or other legal or equitable proceedings.

11.3        Payments of Benefits to Others .  Notwithstanding anything to the contrary in Section 11.10, if any Participant or Beneficiary to whom a benefit is payable under the Plan is unable to care for his affairs because of illness or accident, any payment due (unless prior claim therefore shall have been made by a duly qualified guardian or other legal representative) may be paid to the spouse, parent, brother, or sister, or any other individual deemed by the Plan Administrator to be maintaining or responsible for the maintenance of such person.  Any payment made in accordance with the provisions of this Section 11.3 shall be a complete discharge of any liability of the Plan with respect to the benefit so paid.

11.4        Withholding .  All Bonus Deferrals and payments provided for hereunder shall be subject to applicable withholding and other deductions as shall be required of the Employer under any applicable local, state or federal law.

11.5        Amendment and Termination .

(a)      The Board may from time to time, in its discretion, amend, in whole or in part, any or all of the provisions of the Plan; provided, however, that no amendment may be made that would impair the rights of a Participant with respect to amounts already allocated to his Accounts and in which such Participant has a 100% Vested Interest; provided further, however, that, notwithstanding the foregoing (and without constituting an impermissible impairment of Participant rights in violation of this sentence), (i) the Board   may make such amendments to the Plan as are necessary or advisable, as determined by the Board in its discretion, to enable the Plan and the Accounts of the Participants established hereunder to comply with the requirements of Section 409A of the Code and (ii) the Board may decide to amend the Plan to prospectively eliminate Participants’ rights to make deemed investment designations pursuant to Section 4.1(a)

XI-1


 

 

provided that the Board specifies, at the time of any such elimination, an alternative method for the crediting of earnings with respect to amounts allocated to Participants’ Accounts.

(b)      Notwithstanding anything to the contrary, the Board may, in its sole discretion (and without constituting an impermissible impairment of Participant rights in violation of Paragraph (a)), terminate the Plan and accelerate the time and form of payment of all Vested Interests in Accounts under the Plan, under the following circumstances:

(i)      The Board may terminate and liquidate the Plan within 12 months of a corporate dissolution taxed under Section 331 of the Code, or with the approval of a bankruptcy court, provided that the balance of all of the Participants’ Accounts under the Plan are included in the Participants’ respective gross incomes in the latest of (A) the calendar year in which the Plan termination and liquidation occurs; (B) the calendar year in which the Participant attains a 100% Vested Interest in such amount, or (C) the first calendar year in which the payment is administratively practicable;

(ii)     The Board may, in its discretion, terminate and liquidate the Plan in connection with a Change in Control of the Company (or, with respect to a Participant who is employed by an Employer other than the Company, a Change in Control of such Employer), provided that the following requirements are satisfied:

(A)      The Board (or its appropriate counterpart with respect to any Employer other than the Company) takes irrevocable action to terminate and liquidate the Plan within 30 days preceding or 12 months following such Change in Control;

(B)      The Vested Interest of each Participant in his Account under the Plan and all Other Arrangements is distributed within 12 months following the date that all necessary actions to terminate and liquidate the Plan and the Other Arrangements are irrevocably taken; and

(C)      All plans, agreements, methods, programs and other arrangements that are sponsored by the “service recipient” (within the meaning of Section 409A of the Code), as determined immediately following such Change in Control, with respect to which deferrals of compensation are treated as having been deferred under a single plan under Treasury Regulation § 1.409A-1(c)(2) (collectively, the “ Other Arrangements ”), are terminated and liquidated with respect to each Participant who experienced such Change in Control.  For purposes of this Section 11.5(b)(ii), the applicable “service recipient” with the discretion to liquidate and terminate the Plan and the Other Arrangements shall be the “service recipient” that is primarily liable immediately after the transaction for the payment of the Plan benefits.

(iii)   The Board may, in its discretion, terminate and liquidate the Plan, provided that:

XI-2


 

 

(A)      The termination and liquidation does not occur proximate to a downturn in the financial health of the Company and all entities that would be considered a single “service recipient” along with the Company under Section 409A of the Code;

(B)      Such “service recipient” terminates and liquidates all plans, agreements, methods, programs and other arrangements sponsored by the service recipient that would be aggregated with any terminated and liquidated plans, agreements, methods, programs and other arrangements under Treasury Regulation § 1.409A-1(c) as if there was one service provider that had deferrals of compensation under every such plan, agreement, method, program and other arrangement sponsored by the service recipient;

(C)      No payments in liquidation of the Plan are made within 12 months of the date that the Company takes all necessary action to irrevocably terminate and liquidate the Plan, other than payments that would be payable under the terms of such arrangements if the action to terminate and liquidate the Plan had not occurred;

(D)      All payments are made within 24 months of the date that the Company takes all necessary action to irrevocably terminate and liquidate the Plan; and

(E)      The Company and all other entities required to be considered a single “service recipient” within the meaning of Section 409A of the Code do not adopt any new plan, agreement, method, program or other arrangement described in Section 11.5(b)(iii)(B) at any time within three years following the date that the service recipient took all necessary action to irrevocably terminate and liquidate the Plan.

(iv)      The Board may, in its discretion, terminate and liquidate the Plan upon such other events or conditions as the Commissioner of Internal Revenue may prescribe in generally applicable guidance published in the Internal Revenue Bulletin. 

In the event that the Plan is terminated, the Vested Interest in the balance in a Participant’s Account shall be paid to such Participant or his Beneficiary in the manner specified by the Board (but subject to the distribution timing requirements described above), which may include the payment of a single lump sum payment in full satisfaction of all of such Participant’s or Beneficiary’s benefits hereunder. After Participants and their Beneficiaries are paid all Plan benefits in which they had a 100% Vested Interest, all remaining assets of the Trust Fund which were not fully vested at the time of the Plan termination shall be returned to the Employer.

11.6        Severability .  If any provision of the Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof; instead, each provision shall be fully severable and the Plan shall be construed and enforced as if said illegal or invalid provision had never been included herein.

XI-3


 

 

11.7        Guaranty .  Notwithstanding any provisions of the Plan to the contrary, in the event any Employer fails to make payment of the benefits due under the Plan on behalf of its Participants, whether directly or through the Trust, the Company shall be liable for and shall make payment of such benefits due as a guarantor of such entity’s obligations hereunder.  The guaranty obligations provided herein shall be satisfied directly and not through the Trust.

11.8        Provisions Binding .    All of the provisions of the  Plan shall be binding upon all persons who will be entitled to any benefit hereunder, including but not limited to all Participants and their heirs and personal representatives.

11.9        Timing of Payments .  Payment of Plan benefits may be subject to administrative or other delays that result in payment to the Participant or his Beneficiaries on a date later than the date specified in the Plan or any agreement or notice relating to the Participant’s Bonus Deferrals.  Any such payment delays will comply with Section 409A of the Code, including, without limitation Treasury Regulation § 1.409A-2(b)(7).  No Participant or Beneficiary shall be entitled to any additional earnings or interest in respect of any such payment delays, nor shall any Participant or Beneficiary be provided any election with respect to the timing of any delayed payment.

11.10      Receipt and Release .  Any payment to any Participant or Beneficiary in accordance with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims against the Employer, the Plan Administrator and the Trustee under the Plan and the Plan Administrator may require such Participant or Beneficiary, as a condition precedent to such payment, to execute a receipt and release to such effect.  If any Participant or Beneficiary is determined by the Plan Administrator to be incompetent by reason of physical or mental disability or minority to give a valid receipt and release, the Plan Administrator may cause the payment or payments that become due to such person to be made to another person for his benefit without responsibility on the part of the Plan Administrator, the Employer or the Trustee to follow the application of such funds.  Notwithstanding any requirement of a receipt and release in accordance with this Section, payment of a Participant’s or Beneficiary’s benefit under the Plan shall be made no later than the latest time such payment may be made without causing the imposition of the tax under Section 409A of the Code.

11.11      Governing Laws .  All provisions of the Plan shall be construed in accordance with the laws of Texas except to the extent preempted by federal law.

11.12      Section 409A Generally .  The provisions of the Plan are intended in all respects to comply with Section 409A of the Code and the authoritative guidance promulgated thereunder and shall be construed and applied as necessary to comply with Section 409A and such authoritative guidance.  At all times the Company intends to operate and administer the Plan in compliance with the requirements of Section 409A of the Code and such authoritative guidance.  In the case of any conflict with Section 409A of the Code or any Bonus Agreement or ambiguity in the Plan’s or such Bonus Agreement’s terms, the Plan and such Bonus Agreement shall be construed and applied in a manner that complies with Section 409A and the administrative guidance promulgated thereunder.  Notwithstanding the foregoing, the tax treatment of the benefits provided under the Plan is not warranted or guaranteed.  Neither the Employer, its Affiliates nor their respective directors or trustees, officers, employees or advisors (other than in his or her individual capacity

XI-4


 

 

as a Participant with respect to his or her individual liability for taxes, interest, penalties or other monetary amounts) shall be held liable for any taxes, interest, penalties or other monetary amounts owed by any Participant, any Beneficiary or any other taxpayer as a result of the Plan.

 

XI-5


Exhibit 10.3(b)

 

 DEFERRED BONUS AGREEMENT

 

This Deferred Bonus Agreement (this “Agreement”) is made by and between [ Insert applicable employing entity] (the “Company”) and [●] (“Employee”), effective as of [●] (the “Effective Date”).  Each of Company and Employee is sometimes referred to herein as a “Party” and collectively as the “Parties.”

 

WHEREAS, the Company desires to provide Employee the opportunity to earn a deferred bonus on the terms and conditions, and for the consideration, hereinafter set forth. 

 

NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations contained herein, the Company and Employee agree as follows:

 

ARTICLE I

DEFERRED BONUS

 

Section 1.1 Deferred Bonus.  Employee shall participate in the Nabors Industries, Inc. Executive Deferred Compensation Plan, as amended, restated, or otherwise modified from time to time (the “Plan”), in accordance with the following terms:

 

(a) If not previously established, the Company shall establish a deferred compensation account for Employee’s benefit under the Plan (the “Account”).  On [●], the Company will credit [●] Dollars ($[●]) to a subaccount established under the Account (the “Subaccount”).  Employee shall elect, in accordance with the procedures established from time to time by the Plan Administrator (as defined in the Plan), the manner in which the amounts credited to the Subaccount shall be deemed to be invested from among the Funds (as defined in the Plan) made available under the Plan from time to time, which Funds include a deemed investment fund that, through December 31, [●], provides an annual interest rate on such amounts equal to [●] percent ([●]%), and after that date provides an annual interest rate on such amounts as established by the Company from time to time. This Agreement constitutes a Bonus Agreement pursuant to the Plan, and the Subaccount constitutes a Bonus Agreement Deferral pursuant to the Plan.

 

(b) The amounts credited to the Subaccount, as adjusted for deemed investment earnings and/or losses attributable thereto (the “Subaccount Balance”), shall become vested and nonforfeitable on the [●] anniversary of the Vesting Commencement Date (the “Vesting Date”), so long as Employee remains employed by the Company through the Vesting Date.  Notwithstanding the foregoing, (i) upon the termination of Employee’s employment with the Company as a result of Employee’s death or Disability (as defined below) prior to the Vesting Date, the Subaccount Balance shall immediately become fully vested and nonforfeitable as of the date of such termination, and (ii) upon the termination of Employee’s employment with the Company by the Company without Cause (as defined below) prior to the Vesting Date,  a percentage of the Subaccount Balance shall immediately become vested and nonforfeitable as of the date of such termination, and such


 

percentage shall be the percentage that would have become vested as of the date of such termination if [●] % of the Subaccount Balance was deemed to be vested on each anniversary of the Vesting Commencement Date that occurred prior to the date of such termination. 

 

(c) Notwithstanding anything to the contrary herein, if the Company terminates Employee’s employment for Cause at any time, Employee will forfeit his entire interest (including any portion that has previously become vested) in the Subaccount to the Company without compensation therefor. Further notwithstanding anything to the contrary herein, if Employee resigns prior to the Vesting Date, Employee will forfeit his entire interest in the Subaccount to the Company without compensation therefor.

 

(d) Subject to Section 2.13(b), within ten (10) days after a Qualifying Termination, Employee shall be paid the Subaccount Balance, calculated as of the date of such Qualifying Termination, as one lump sum payment.

 

(e) The terms and conditions of the Plan will control in the case of any conflict with the provisions of this Agreement;   provided, however, that the vesting, forfeiture and time of payment provisions in this Section 1.1 shall control over any inconsistent vesting, forfeiture and time of payment provisions in the Plan.

 

(f) For purposes of this Agreement, the following terms shall have the meanings set forth below:

 

(i) “Cause” shall mean a determination by the Company that one of the following acts or circumstances has occurred:

 

A. A material act or acts of dishonesty or disloyalty by Employee that could or have adversely affected the Company;

B. Employee’s breach of any of his obligations under this Agreement, which, if correctable, remains uncorrected for 90 days following the date written notice specifying such breach is given to Employee by the Company;

C. Employee’s breach of any of the Company’s policies, including, but not limited to, the Company’s Code of Business Conduct, Human Resources policies, and/or the Employee Confidentiality and Intellectual Property Agreement, which, if correctable, remains uncorrected for 90 days following the date written notice specifying such breach is given to Employee by the Company;

D. Employee’s gross negligence or willful misconduct in the performance of his duties and services for the Company, including any intentional acts of discrimination or harassment;

2


 

E. Employee’s conviction of any felony or any crime involving moral turpitude; or

F. Employee’s act or acts that are detrimental to the image or reputation of the Company or acts that did or could result in material financial loss to the Company.

(ii) “Disability” shall mean Employee’s becoming incapacitated or disabled by accident, sickness or other circumstance resulting in an impairment (after accounting for reasonable accommodation) that (A) renders him mentally or physically incapable of performing the duties and services required of him for a period of at least six months during any 12-month period and (B) is expected to result in death or to last for a continuous period of not less than 12 months, in each case, as determined in good faith by the Company.

 

(iii) “Qualifying Termination” shall mean the termination of Employee’s employment with the Company (A) as a result of Employee’s death or Disability at any time, (B) by the Company without Cause at any time, or (C) as a result of Employee’s resignation on or after the Vesting Date.

 

(iv) “Significant Event” shall mean (A) a sale of all or substantially all of the assets of the Company, (B) a merger, consolidation, or reorganization of Nabors Industries Ltd. and/or its affiliates with another corporation or another business entity, (C) any reorganization or restructuring of Nabors Industries Ltd. and/or its affiliates including, without limitation, a transaction under Rule 13e-3 of the Securities Exchange Act of 1934, (D) the formation of a master limited partnership involving assets of the Company and/or its affiliates, (E) the spin off or similar transaction involving the Company, or (F) any other significant transaction involving Nabors Industries Ltd. and/or its affiliates

 

(v) “Vesting Commencement Date” shall mean [●] .

 

 

ARTICLE II
MISCELLANEOUS

 

Section 2.1 Company Policies .  Except as otherwise provided in this Agreement, Employee will continue to be subject to all applicable policies and plans of the Company, including, without limitation, the Nabors Dispute Resolution Program. 

 

Section 2.2 Employment .  It is understood and agreed that either the Company or Employee may freely terminate Employee’s employment at any time for any reason.

 

Section 2.3 Assignability; Binding Nature .  This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs (in the case of Employee) and assigns.  No rights or obligations of the Company under this Agreement may be assigned or transferred by the Company except that such rights or obligations may be assigned or transferred

3


 

pursuant to a Significant Event, provided that the assignee or transferee assumes the liabilities, obligations and duties of the Company, as contained in this Agreement, by written contract.  The Company further agrees that, in the event of a Significant Event, it shall take whatever action it legally can in order to cause such assignee or transferee to expressly assume the liabilities, obligations and duties of the Company hereunder.  No rights or obligations of Employee under this Agreement may be assigned or transferred by Employee other than his rights to compensation and benefits. 

 

Section 2.4   Notices . For purposes of this Agreement, notices and all other communications provided for herein shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by any means which provides a receipt upon delivery and addressed as follows:

 

 

If to the Company to:

Nabors Corporate Services, Inc.

515 West Greens Road, Suite 1200

Houston, Texas 77067

Attention:  General Counsel

 

 

 

If to Employee to:

 

Employee’s current home address as reflected in Employee’s personnel file.

 

 

 

or to such other address as either Party may furnish to the other in writing in accordance herewith, except that notices of changes of address shall be effective only upon receipt.

 

Section 2.5 Applicable Law, Jurisdiction and Mandatory Forum .  This Agreement is entered into under, and shall be governed for all purposes by, the laws of the State of Texas.  Any dispute arising between Employee and the Company or any of its affiliates, whether in connection with this Agreement, Employee’s employment, or otherwise, shall be resolved through binding arbitration pursuant to the Nabors Dispute Resolution Program, as in effect from time to time.

 

Section 2.6 No Waiver .  No failure by either Party hereto at any time to give notice of any breach by the other Party of, or to require compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time or (ii) preclude insistence upon strict compliance in the future.

 

Section 2.7 Severability . If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Agreement, and all other provisions shall remain in full force and effect.

 

4


 

Section 2.8 Counterparts . This Agreement may be executed in one or more counterparts (including by electronic mail or in portable document format (.pdf)), each of which shall be deemed to be an original, but all of which together will constitute one and the same Agreement.

 

Section 2.9 Withholding of Taxes and Other Items . The Company may withhold from any compensation or benefits payable under this Agreement all federal, state, city or other taxes as may be required pursuant to any law or governmental regulation or ruling (including any Federal Insurance Contributions Act taxes). Furthermore, should Employee owe the Company any money at the time of termination of employment, Employee authorizes and consents to the Company deducting the amount owed by Employee from compensation otherwise owed Employee.

 

Section 2.10 Interpretation; Headings .  As used in this Agreement, “Company” shall include the Company and each of its affiliates. As used in this Agreement, “affiliate” shall mean any person or entity which directly or indirectly through one or more intermediaries owns or controls, is owned or controlled by, or is under common ownership or control with, the Company. The article, section and paragraph headings have been inserted for purposes of convenience and shall not be used for interpretive purposes. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against any party hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by each of the Parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the Parties.

 

Section 2.11 Termination . Termination of this Agreement shall not affect any right or obligation of either Party set forth in Article I hereto which is accrued or vested prior to or upon such termination.  In addition, the provisions of Article II shall survive any termination of this Agreement.

 

Section 2.12 Entire Agreement; Additional Agreements . This Agreement, together with the Plan, constitutes the entire agreement of the Parties with regard to the subject matter hereof.  The Parties acknowledge and agree that they may, but shall not be obligated to, enter into additional agreements similar to this Agreement that may provide for the crediting of additional amounts to Employee’s Account under the Plan but that such amounts shall be credited to separate subaccount(s) under the Plan and shall vest and be paid at such other time(s) as are provided in such additional agreement(s), unless otherwise provided specifically therein. Each Party to this Agreement acknowledges that no representation, inducement, promise or agreement, oral or written, has been made by either Party, or by anyone acting on behalf of either Party, which is not embodied herein.  Any modification of this Agreement will be effective only if it is in writing and signed by the Party to be charged.

 

Section 2.13 Application of Section 409A of the Code .

 

(a) General .  To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), so as to prevent inclusion in gross income of any amounts payable or benefits provided hereunder in a taxable year that is prior to the taxable year or years in which such amounts or benefits would otherwise actually be distributed, provided or otherwise made

5


 

available to Employee.  This Agreement shall be construed, administered, and governed in a manner consistent with this intent and the following provisions of this Section 2.13 shall control over any contrary provisions of this Agreement. 

 

(b) Delayed Payment Restriction . Notwithstanding any provision in this Agreement to the contrary, if employee is a Specified Employee (as defined in the Plan) and any payment or benefit provided for herein or pursuant to any other agreement or plan of the Company to which Employee is entitled to any payment or benefit would be subject to additional taxes and interest under Section 409A of the Code if Employee’s receipt of such payment or benefit is not delayed until the Section 409A Payment Date (as defined below), then such payment or benefit shall not be provided to Employee (or Employee’s estate, if applicable) until the Section 409A Payment Date (and, at that time, Employee shall also receive interest thereon from the date such payment or benefit would have been provided in the absence of this paragraph until the date of receipt of such payment or benefit at the short term applicable federal rate as in effect as of the termination date; provided, however, that with respect to any delayed payment of Employee’s Account Balance under the Plan, such Account Balance shall be credited with deemed investment income in accordance with the terms of the program and not interest under the terms of this Agreement).  For purposes of this Agreement, “Section 409A Payment Date” shall mean the earlier of (1) the date of Employee’s death or (2) the date which is six months after the date of termination of Employee’s employment with the Company. Employee hereby agrees to be bound by the Company’s determination of its Specified Employees in accordance with the Plan and any of the methods permitted under Section 409A of the Code.

 

(c) Separation from Service .  Amounts payable hereunder upon Employee’s termination or severance of employment with the Company that constitute deferred compensation under Section 409A of the Code shall be paid upon Employee’s “separation from service” within the meaning of Section 409A of the Code.

 

(d) Separate Payments .  For purposes of Section 409A of the Code, any rights to payments and benefits under this Agreement shall be treated as rights to separate payments for purposes of Section 409A of the Code.

 

(e) References to Section 409A .  References in this Agreement to Section 409A of the Code include both that section of the Code itself and any regulations and authoritative guidance promulgated thereunder. 

 

(f) Acknowledgement .  Employee acknowledges and agrees that, with respect to this Agreement and any amendment hereto, he is not relying upon any written or oral statement or representation of the Company, any of its affiliates, or any of their respective officers, directors, shareholders, agents, attorneys or successors (the “Nabors Parties”), or any failure of any such individual or entity to disclose information, or any written or oral statements or representations or failure to disclose information by any representative or agent of any such individual or entity.  Employee acknowledges and agrees that, with respect to this Agreement and any amendments hereto, Employee is relying on his or her

6


 

own judgment and the judgment of the professionals of Employee’s choice with whom Employee has consulted.  The Nabors Parties shall have no liability to Employee or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the requirements of, Section 409A of the Code.

 

[ Remainder of this page left blank intentionally ]

 

 

7


 

IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the Effective Date.

 

 

COMPANY:

 

[Insert applicable employing entity]

 

 

 

By:

Name:

Title:

 

 

EMPLOYEE:

 

 

 

[Insert name of Employee]

8


Exhibit 10.4

 

NABORS INDUSTRIES, INC.
DEFERRED COMPENSATION PLAN

(As Amended and Restated Effective as of January 1, 2017)

 

 


 

 

NABORS INDUSTRIES, INC.
DEFERRED COMPENSATION PLAN

W I T N E S S E T H:

WHEREAS , Nabors Industries, Inc. (the “Company”) has heretofore adopted the Nabors Industries, Inc. Deferred Compensation Plan, hereinafter referred to as the “Plan,” to aid certain of its employees in making more adequate provision for their retirement; and

WHEREAS , the Company desires to amend the Plan in certain respects and to restate the Plan in its entirety, intending thereby to provide an uninterrupted and continuing program of benefits.

NOW THEREFORE , the Plan is hereby amended and restated in its entirety as follows with no interruption in time, effective as of January 1, 2017, except as otherwise provided herein:

 


 

 

TABLE OF CONTENTS

 

 

 

 

ARTICLE

 

PAGE

 

 

 

I.

Definitions and Construction

1

 

 

 

II.

Participation

6

 

 

 

III.

Account Credits and Allocations of Income or Loss

8

 

 

 

IV.

Deemed Investment of Funds

13

 

 

 

V.

Determination of Vested Interest

14

 

 

 

VI.

In-Service Withdrawals

15

 

 

 

VII.

Termination Benefits

17

 

 

 

VIII.

Administration of the Plan

22

 

 

 

IX.

Administration of Funds

24

 

 

 

X.

Nature of the Plan

25

 

 

 

XI.

Miscellaneous

26

 

 

 


 

 

I.

Definitions and Construction

1.1 Definitions .  Where the following words and phrases appear in the Plan, they shall have the respective meanings set forth below, unless their context clearly indicates to the contrary.

(1)

Accounts :  A Participant’s Elective Deferral Account and/or Matching Deferral Account, including the amounts credited thereto.

(2)

Affiliate :  Each trade or business (whether or not incorporated) that together with the Company would be deemed to be a “single employer” within the meaning of subsections (b) or (c) of Section 414 of the Code, in each case, determined by application of an 80% control standard.

(3)

As soon as administratively practicable :  For purposes of benefit distributions, a date of distribution that is as soon as administratively practicable, as determined by the Board, following a permissible payment event, but in no event later than the later of the 90 th  day following the date of the permissible payment event or December 31 st  of the calendar year in which the permissible payment event occurs.  In no event shall a Participant or his Beneficiary be permitted to designate the taxable year of the payment.

(4)

Base Salary :  The base rate of pay paid in cash by the Employer to or for the benefit of a Participant for services rendered or labor performed while a Participant, including base pay a Participant could have received in cash in lieu of (i) Compensation deferrals pursuant to Section 3.1 and (ii) elective contributions made on his behalf by the Employer pursuant to a qualified cash or deferred arrangement (as defined in Section 401(k) of the Code) or pursuant to a plan maintained under Section 125 of the Code.  For sake of clarity, a Participant’s Base Salary shall not include any Commissions.

(5)

Beneficiary :  The person or entity who, pursuant to Section 7.4, will receive payment of a Participant’s benefit in the event of such Participant’s death.

(6)

Board :  The Board of Directors of the Company.

(7)

Bonus :  The annual incentive bonus, if any, paid in cash by the Employer to or for the benefit of a Participant for services rendered or labor performed, including the portion thereof that a Participant could have received in cash in lieu of (i) Compensation deferrals pursuant to Section 3.1 and (ii) elective contributions made on his behalf by the Employer pursuant to a qualified cash or deferred arrangement (as defined in Section 401(k) of the Code) or pursuant to a plan maintained under Section 125 of the Code, but excluding (A) any annual incentive bonuses or awards earned by the Participant over a service period of longer or shorter than 12 months (except any Performance Bonuses permitted to be deferred under Section 3.1(b)) and (B) Commissions.

(8)

Change in Control :  A “change in control event” within the meaning of Treasury Regulation § 1.409A‑3(i)(5).

1


 

 

(9)

Code :  The Internal Revenue Code of 1986, as amended.

(10)

Commissions :  The commissions, if any, paid in cash by the Employer to or for the benefit of a Participant for services rendered or labor performed.

(11)

Company :  Nabors Industries, Inc.

(12)

Compensation :  Base Salary, Bonus and/or Performance Bonus.

(13)

Disability :  The term “Disability” shall mean total and permanent disability as determined under the Savings Plan.

(14)

Effective Date :  January 1, 2017, as to this amendment and restatement of the Plan except as otherwise provided herein.  The original effective date of the Plan was February 1, 1995.  Notwithstanding anything to the contrary herein, none of the provisions of this restatement shall apply to the Grandfathered Subaccounts.

(15)

Elective Deferral Account :  An individual account for each Participant to which is credited his Elective Deferrals pursuant to Section 3.1 and which is adjusted to reflect changes in value as provided in Section 3.3.

(16)

Elective Deferrals :  Deferrals made by a Participant pursuant to Section 3.1.

(17)

Eligible Employee :  Each employee of the Employer who is selected by the Board for participation in the Plan.

(18)

Eligibility Period :  The 30-day period following an Eligible Employee’s notification by the Plan Administrator of eligibility to participate in the Plan.

(19)

Employer :  The Company and any other entity designated by the Plan Administrator as eligible to participate in the Plan pursuant to the provisions of Section 2.3.

(20)

ERISA :  The Employee Retirement Income Security Act of 1974, as amended.

(21)

Funds :  The investment funds, if any, designated from time to time by the Plan Administrator for the deemed investment of Accounts pursuant to Section 4.1.

(22)

Grandfathered Subaccounts :  Separate subaccounts segregated under the plan comprising (i) Elective Deferrals made on or prior to December 31, 2004, (ii) Matching Deferrals in which a Participant had a Vested Interest as of December 31, 2004 (and only to the extent of the respective Vested Interests the Participants had on such date), and (iii) earnings under the Plan on amounts of Elective Deferrals and Matching Deferrals in Participants’ Accounts to the extent attributable to amounts described in the preceding provisions of this sentence.  Grandfathered Subaccounts shall be governed by the provisions of the Plan as in effect on October 3, 2004.

(23)

Matching Deferrals :  Deferrals made by the Employer on a Participant’s behalf pursuant to Section 3.2.

2


 

 

(24)

Matching Deferral Account :  An individual account for each Participant to which is credited his Matching Deferrals and that is adjusted to reflect changes in value as provided in Section 3.3.

(25)

Participant :  Each Eligible Employee who has become a Participant pursuant to Article II.  In addition, where the context requires, the term “Participant” shall be deemed to include an Eligible Employee for purposes of Section 3.1 if such Eligible Employee has not yet become a Participant pursuant to Section 2.1.

(26)

Performance Bonus :  A Bonus that constitutes “performance-based compensation” within the meaning of Section 409A(a)(4)(B)(iii) of the Code.

(27)

Plan :  The Nabors Industries, Inc. Deferred Compensation Plan, as amended from time to time.

(28)

Plan Administrator :  The person, persons or entity designated by the Board to administer the Plan.

(29)

Plan Year :  The twelve consecutive month period commencing January 1 of each year.

(30)

Pre-2015 Accounts :  The portion of a Participant’s Accounts attributable to Elective Deferrals and Matching Deferrals with respect to Plan Years beginning prior to January 1, 2015, and which is adjusted to reflect changes in value as provided in Section 3.3; provided, however that the “Pre-2015 Accounts” shall not include any amounts that are segregated in Grandfathered Subaccounts maintained under the Plan.

(31)

Savings Plan :  The Nabors Industries, Inc. Retirement Savings Plan, as amended from time to time, or, if different, the 401(k) savings plan sponsored by the Employer in which the Participant is eligible to participate.

(32)

Scheduled In-Service Withdrawal :  A distribution elected by a Participant for an in-service withdrawal of Elective Deferrals within a Specified Year Subaccount and earnings or losses attributable thereto, as set forth in such Participant’s election form for such Plan Year.

(33)

Scheduled Withdrawal Date :  The distribution date elected by a Participant for a Scheduled In-Service Withdrawal.

(34)

Specified Employee :  An individual who on the date of his Termination of Service is considered a “key employee” within the meaning of Section 416(i) of the Code (applied in accordance with the Treasury Regulations promulgated thereunder and without regard to subparagraph (5) thereof) if, as of the date of his Termination of Service, the Company or any Affiliate is publicly traded on an established securities market or otherwise.  The identification of Specified Employees for purposes of distributions upon Termination of Service pursuant to Article VII shall be made in accordance with the general requirements of Section 409A(a)(2)(B)(i) of the Code pursuant to any method elected by the Plan Administrator or, if no such election is made, under the default rules under Section 409A of the Code.

3


 

 

(35)

Specified Year Subaccount :  The portion of a Participant’s Accounts attributable to Elective Deferrals of Compensation earned and/or Matching Deferrals made during a particular Plan Year and that is adjusted to reflect changes in value as provided in Section 3.3.  A Specified Year Subaccount shall be established with respect to each Plan Year on behalf of each Participant who (i) elects to make Elective Deferrals in a Plan Year beginning on or after January 1, 2015 or (ii) receives Matching Deferrals in a Plan Year beginning on or after January 1, 2016.

(36)

Termination of Service :  The termination of a Participant’s employment with the Employer and all Affiliates, regardless of the reason, if any, for such termination.  Notwithstanding anything to the contrary herein, a Participant shall not be considered to have incurred a Termination of Service for purposes of the Plan if his termination does not constitute a “separation from service” within the meaning of Section 409A(a)(2)(A)(i) of the Code.

(37)

Trust :  The trust established under the Trust Agreement.

(38)

Trust Agreement :  The agreement entered into between the Employer and the Trustee pursuant to Article X.

(39)

Trust Fund :  The funds and properties held pursuant to the provisions of the Trust Agreement, together with all income, profits and increments thereto.

(40)

Trustee :  The trustee or trustees qualified and acting under the Trust Agreement at any time.

(41)

Unforeseeable Financial Emergency :  An unexpected need of a Participant for cash that (i) arises from a severe financial hardship of the Participant resulting from an illness or accident of the Participant or the Participant’s spouse, Beneficiary, or dependent (within the meaning of Section 152 of the Code, without regard to Sections 152(b)(1), (b)(2), and (d)(1)(B)), loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances, as determined under Section 409A of the Code, arising as a result of events beyond the control of such Participant and (ii) would result in severe financial hardship to such Participant if his Compensation deferral election were not canceled pursuant to Section 3.1(d) and/or if a benefit payment pursuant to Section 6.2 were not permitted.  Cash needs arising from foreseeable events, such as the purchase of a house or payment of college tuition, shall not be considered to be the result of an Unforeseeable Financial Emergency. Further, cash needs that may be relieved (a) through reimbursement or compensation from insurance or otherwise, (b) by liquidation of the Participant’s assets, to the extent the liquidation of such assets would not itself cause severe financial hardship, or (c) by cessation of deferrals under the Plan shall not be considered to be Unforeseeable Financial Emergencies.

(42)

Vested Interest :  The portion of a Participant’s Accounts which, pursuant to the Plan, is nonforfeitable.

1.2 Number and Gender .  Wherever appropriate herein, words used in the singular shall be considered to include the plural and words used in the plural shall be considered to include

4


 

 

the singular.  The masculine gender, where appearing in the Plan, shall be deemed to include the feminine gender.

1.3 References to Statutes and Regulations .  References herein to provisions of the Code and ERISA or the regulations promulgated thereunder shall include any successor statute or regulation and any applicable authoritative guidance promulgated thereunder.

1.4 Headings .  The headings of Articles and Sections herein are included solely for convenience, and if there is any conflict between such headings and the text of the Plan, the text shall control.

5


 

 

II.

Participation

2.1 Participation .

(a) The Board, in its sole discretion, shall select and notify those management or highly compensated employees of the Employer who shall become Eligible Employees.  An Eligible Employee may become a Participant, effective as of the first day of the next Plan Year following such Eligible Employee’s notification of eligibility, by executing and filing with the Plan Administrator the Compensation deferral election prescribed by the Plan Administrator prior to the start of such Plan Year or such earlier deadline, if any, as shall be prescribed by the Plan Administrator.

(b) Notwithstanding Section 2.1(a), after the start of a Plan Year, the Board may, in its sole discretion, select and notify those Eligible Employees who may become Participants with respect to such Plan Year by executing and filing with the Plan Administrator, prior to the close of such Eligible Employee’s Eligibility Period and in accordance with the procedures established by the Plan Administrator, the Compensation deferral election prescribed by the Plan Administrator.  An Eligible Employee who has filed such election in accordance with this Section 2.1(b) shall become a Participant and be eligible to begin deferring Compensation under the Plan as of the first day of the first payroll period that coincides with or next follows the date the Eligible Employee is first notified of his Plan eligibility or, if the Eligible Employee files his election during his Eligibility Period but after the first day of such first payroll period, such later date as may be administratively feasible after such election is filed; provided, however, that, as further described in Section 3.1(c)(v), the Compensation deferred must be Compensation for services performed after the election.  Notwithstanding the preceding provisions of this Section 2.1(b), an Eligible Employee will not be permitted to become a Participant after the start of a Plan Year pursuant to this Section 2.1(b) if such Eligible Employee was eligible to participate (other than for purposes of the accrual of earnings) in the Plan (or in any other nonqualified deferred compensation account balance plan maintained by the Employer or an Affiliate that is considered to be the same “plan” within the meaning of Treasury Regulation Section 1.409A-1(c)(2)) at any time during the 24-month period ending on the date such Eligible Employee becomes eligible to participate in the Plan under this Section 2.1(b).

(c) Subject to the provisions of Section 2.2, a Participant shall remain eligible to defer Compensation and/or receive an allocation of Matching Deferrals hereunder for each Plan Year following his commencement of participation in the Plan until his Termination of Service.

2.2 Cessation of Active Participation .  Notwithstanding any provision herein to the contrary, an individual who has become a Participant in the Plan pursuant to Section 2.1 shall cease to be entitled to defer Compensation and/or receive an allocation of Matching Deferrals hereunder effective as of the last day of the Plan Year, unless the Plan Administrator shall have notified such Participant that the Participant has been selected by the Board as an Eligible Employee with respect to the subsequent Plan Year.  Such an individual may again become entitled to defer Compensation and/or receive an allocation of Matching Deferrals hereunder beginning as of the first day of any subsequent Plan Year as determined by the Board in its sole discretion.

6


 

 

2.3 Participating Employers .  It is contemplated that other entities may be designated by the Plan Administrator as eligible to participate in the Plan and thereby become an Employer.  Any such entity, whether or not presently existing, may become an Employer hereunder by written designation of the Plan Administrator delivered to the Secretaries of the Company and the designated Employer.  Such written designation shall specify the effective date of the Employer’s participation and may incorporate specific provisions relating to the operation of the Plan that apply to such Employer and its Eligible Employees.  Except as otherwise provided herein and in an Employer’s written designation of participation pursuant to this Section 2.3, the provisions of the Plan shall apply separately and equally to each Employer and its employees in the same manner as is expressly provided for the Company and its employees, except that the power to appoint or otherwise affect the Plan Administrator and the Trustee and the power to amend or terminate the Plan or amend the Trust Agreement shall be exercised by the Board alone.  Transfer of employment among Employers and Affiliates shall not be considered a Termination of Service hereunder and service with one Employer shall be considered service with all others.  Any Employer may, by appropriate action of its officers without the need for approval of its board of directors (or noncorporate counterpart) or the Plan Administrator or the Board, terminate its participation in the Plan.  Moreover, the Board may, in its discretion, terminate an Employer’s Plan participation at any time.  Notwithstanding the foregoing, the termination of an Employer’s Plan participation may be effective only as of the last day of the last payroll period beginning during a Plan Year if the Employer remains an Affiliate of the Company following such termination (provided, however, that any election to defer Compensation already in effect for such Plan Year shall remain in effect, even if the crediting of the amount to an Account with respect to such election occurs after such Plan Year), or if the Employer does not remain as an Affiliate of the Company at such time, then the termination shall be effective only at a time that complies with Section 409A of the Code.  Further, notwithstanding the foregoing, distributions pursuant to any such termination of an Employer’s participation in the Plan shall be subject to the provisions of Section 11.5 and Treasury Regulation Section 1.409A-3(j)(4)(ix).

7


 

 

III.

Account Credits and Allocations of Income or Loss

3.1 Elective Deferrals .

(a) A Participant meeting the eligibility requirements of Section 2.1 may:

(i) Elect to defer a portion of such Participant’s Base Salary for each Plan Year in an amount equal to an integral percentage of from 1% to 90% of such Participant’s Base Salary; and/or

(ii) Elect to defer a portion of such Participant’s Bonus for each Plan Year in an amount equal to an integral percentage of from 1% to 90% of such Participant’s Bonus; and/or

(iii) With respect to Plan Years beginning on or after January 1, 2016, elect to defer the portion of such Participant’s Base Salary for each Plan Year in an amount equal to the portion of his Employee Pre-Tax Contributions (or other pre-tax contributions) that such Participant elects to contribute under the Savings Plan sponsored by his Employer for such Plan Year but that such Participant is unable to contribute to the Savings Plan due to restrictions imposed by applicable limitations under the Savings Plan and the Code, including Sections 401(a)(17), 401(k)(3), 401(m)(2), 414(v), 415, or 402(g) of the Code (and any administrative procedures utilized under the Savings Plan to ensure that such limits are not exceeded).

(b) Notwithstanding anything to the contrary in Section 3.1(a) or 3.1(c), if permitted in accordance with the administrative procedures implemented by the Plan Administrator (which may vary among individual Participants), a Participant may elect to defer (or change an election to defer) a Performance Bonus after the start of a Plan Year or Plan Years in which such Performance Bonus is earned in whole or in part, provided that (i) such Participant makes the initial deferral election with respect to such Performance Bonus on the form and in accordance with the procedures prescribed by the Plan Administrator and delivered to the Plan Administrator no later than the date that is six months before the end of the performance period applicable thereto, (ii) such Participant has performed services continuously for the Employer from the later of the beginning of the performance period or the date upon which the performance criteria applicable to such Performance Bonus are established through a date no earlier than the date upon which the Participant makes an initial deferral election with respect thereto pursuant to this Section 3.1(b), and (iii) such Participant makes such election before the Performance Bonus has become readily ascertainable (within the meaning of Section 409A of the Code).  In the event that such Participant has elected to defer Bonus for a Plan Year, any election by such Participant to defer a Performance Bonus under this Section 3.1(b) shall be deemed to override any election as to such Performance Bonus under Section 3.1(a)(ii), but only with respect to such Performance Bonus.  In the event that a Participant is eligible to receive a Performance Bonus but has not made (or been offered) a special election to defer such Performance Bonus pursuant to this Section 3.1(b), any election made pursuant to Section 3.1(a)(ii) with respect to the first Plan Year during the

8


 

 

performance period with respect to which such Performance Bonus was earned shall apply to such Performance Bonus whenever it is paid.

(c) Compensation for a Plan Year not deferred pursuant to elections under Section 3.1(a) or 3.1(b) shall be received by such Participant in cash.  A Participant’s annual election to defer an amount of his Compensation pursuant to this Section 3.1 shall comply with the following requirements:

(i) Such election shall be made by effecting, on the form prescribed by the Plan Administrator and prior to the start of each Plan Year (except for newly Eligible Employees under Section 2.1(b) or with respect to a Participant’s election to defer a Performance Bonus, if permitted pursuant to Section 3.1(b)), an Elective Deferral election pursuant to which the Participant authorizes the Employer to reduce his Compensation in the elected amount.  Such election shall also specify the applicable time and form of payment of such Participant’s benefits in accordance with the provisions of Section 3.1(c)(iii) and Article VII.  In consideration of such election, the Employer agrees to credit the amount specified in such election, subject to applicable Plan requirements to such Participant’s Elective Deferral Account maintained under the Plan.

(ii) The reduction in a Participant’s Compensation pursuant to his Elective Deferral election shall be effected by Compensation reductions each payroll period as determined by the Plan Administrator following the effective date of such election.  Such Compensation reductions shall apply with respect to all Compensation earned within the Plan Year to which the Elective Deferral election relates (except as provided in Section 2.1(b) concerning newly Eligible Employees) regardless of when the Compensation is actually paid; provided, however, that Base Salary earned for services performed during the final payroll period containing the last day of a Plan Year that is payable pursuant to the Employer’s normal payroll practices after the last day of such Plan Year shall be treated as Base Salary earned in the subsequent Plan Year in which the Base Salary is actually paid and shall be subject to the Participant’s Elective Deferral election in effect for such subsequent Plan Year, if any.  For the sake of clarity, Compensation reductions attributable to elections to defer a Participant’s Bonus earned during a Plan Year shall be made within a subsequent Plan Year if the Bonus to which the Elective Deferral election relates is paid in such subsequent Plan Year.

(iii) For the Plan Year beginning January 1, 2015 and each Plan Year thereafter, a Participant’s Elective Deferrals shall be credited to such Participant’s Specified Year Subaccount for such Plan Year, and such Participant’s Elective Deferral election for such Plan Year shall specify whether the deferral of his Compensation for such Plan Year shall be made until (A) such Participant’s Termination of Service or (B) a Scheduled Withdrawal Date (i.e., as a Scheduled In-Service Withdrawal subject to the provisions of Section 6.3).  If a Participant elects for the Compensation in any Specified Year Subaccount to be deferred until a Scheduled Withdrawal Date, such Participant shall specify the particular Scheduled Withdrawal Date upon which the Scheduled In-Service Withdrawal of amounts credited to such Specified Year Subaccount shall commence if the Participant is still employed by the Employer on that date.  Any Participant who fails to elect the time of distribution of the Specified Year Subaccount for any Plan Year that is

9


 

 

deferred under the Plan in accordance with this Section 3.1(c)(iii) shall be deemed to have elected to have deferred the amounts deferred to such Specified Year Subaccount for such Plan Year until his Termination of Service.

(iv) Elective Deferrals made by a Participant shall be paid by the Employer to the Trust as soon as administratively feasible following the date upon which the Compensation deferred would have been received by such Participant in cash if he had not elected to defer such amount pursuant to this Section 3.1 and such Elective Deferrals shall be credited to the Participant’s Elective Deferral Account as of the date such Elective Deferrals are received by the Trustee.

(v) Such election shall become effective as of the first day of the Plan Year that is immediately after the date the election is effected by the Participant and filed with the Plan Administrator.  Notwithstanding the foregoing, an Elective Deferral election made by an Eligible Employee who becomes a Participant pursuant to Section 2.1(b) shall (A) become effective with respect to deferrals of the Participant’s Base Salary as of the first day of the first payroll period coincident with or next following the date such Eligible Employee is first notified of his Plan eligibility or, if he files his election during his Eligibility Period but after the first day of such first payroll period, such later date as may be administratively feasible after such election is filed and shall be effective only with respect to Base Salary earned on or after the first day of such first payroll period and after the filing of such election, (B) become effective as soon as administratively feasible with respect to deferrals of the Participant’s Bonus Compensation for the Plan Year that is earned over a performance period that coincides with the Plan Year or such Participant’s term of employment during such Plan Year, if less (“Annual Bonus Compensation”), but shall apply only to a portion of the Participant’s Annual Bonus Compensation for the Plan Year equal to the total amount of the Participant’s Annual Bonus Compensation for the Plan Year multiplied by the ratio of the number of days remaining in the Plan Year after the election over the total number of days in the Plan Year during which the Participant was employed by the Employer, and (C) become effective with respect to Bonus Compensation other than Annual Bonus Compensation at the start of the first performance period that coincides with or begins after the date that the Participant first defers Bonus under the Plan.

(vi) An Elective Deferral election shall remain in force and effect for the entire Plan Year (or portion thereof) to which such election relates and, subject to Section 3.1(d), shall be irrevocable for such Plan Year, except with respect to Performance Bonuses, for which any election that is permitted by the Plan Administrator pursuant to Section 3.1(b) shall apply only to the Performance Bonus(es) to which it relates, shall override any Elective Deferral election that might otherwise apply to such Performance Bonus, and shall be irrevocable once the deadline for such election under Section 3.1(b) has passed.

(vii) Any Plan provisions to the contrary notwithstanding, an Elective Deferral election shall be suspended during any period of unpaid leave of absence from the Employer and shall terminate immediately on the date such Participant incurs a Termination of Service.

10


 

 

(viii) An Elective Deferral election shall not remain in force and effect for subsequent Plan Years after the Plan Year to which such election applies.  If a Participant has made an Elective Deferral election for any Plan Year, such election shall no longer be effective as of the first day of the subsequent Plan Year, except with respect to any Bonuses or Performance Bonuses earned but not paid during the prior Plan Year.  For the sake of clarity, pursuant to Section 3.1(c)(ii), a Participant’s Elective Deferral election for any Plan Year shall not be effective with respect to the Participant’s Base Salary earned for services performed during the final payroll period containing the last day of such Plan Year that is payable pursuant to the Employer’s normal payroll practices after the last day of such Plan Year.

(ix) A Participant who has made an Elective Deferral election may make a new Elective Deferral election for a subsequent Plan Year, if he satisfies the eligibility requirements set forth in Section 2.1, by effecting a new Elective Deferral election prior to the first day of such Plan Year and within the time period prescribed by the Plan Administrator, or, with respect to any Performance Bonus for which a separate Elective Deferral election is permitted, prior to the deadline for such election under Section 3.1(b).

(d) In the event that (i) the Plan Administrator, upon written petition of a Participant, determines in its sole discretion that such Participant has suffered an Unforeseeable Financial Emergency, (ii) a Participant receives a distribution of an emergency benefit pursuant to Section 6.2, or (iii) a Participant receives a hardship distribution from the Savings Plan in accordance with Treasury Regulation § 1.401(k)-1(d)(3), then such Participant’s Elective Deferral election then in effect, if any, shall terminate effective as soon as administratively feasible after such determination or distribution.  A Participant whose Compensation deferral election has been so terminated may again elect to defer a portion of his Compensation effective as of the first day of any subsequent Plan Year during which he is an Eligible Employee by executing and delivering to the Employer, in accordance with the procedures established by the Plan Administrator, a new Elective Deferral election prior to the deadline for deferral elections for such Plan Year established pursuant to Section 2.1(a); provided, however, that a Participant whose Compensation deferral election has been so terminated in connection with a distribution described in clause (iii) above shall not be permitted to elect to defer his Compensation prior to the first day of the first Plan Year commencing after the end of the elective deferral suspension period applicable to the Participant under the Savings Plan in connection with his receipt of a hardship distribution.

(e) Any Participant who has made an Elective Deferral election under the Plan for a Plan Year shall be precluded from changing his deferral election, if any, under the Savings Plan for such Plan Year and any deferral election change under the Savings Plan made during such Plan Year shall not be effective under the Savings Plan until the beginning of the following Plan Year.  Further, notwithstanding anything to the contrary in Section 3.1(a)(iii), a Participant’s actions or inactions under the Savings Plan shall not be permitted to result in an increase in the amounts deferred under the Plan pursuant to Section 3.1(a)(iii) and all other nonqualified deferred compensation plans in which the Participant participates (other than amounts described in Section 3.2(a)) in excess of the limit with respect to elective deferrals under Sections 402(g)(1)(A), (B), and (C) in effect for the taxable year in which such action or inaction occurs.

11


 

 

3.2 Matching Deferrals .

(a) For each Plan Year, the Employer shall defer an amount on behalf of each Participant whose Company matching contributions under the Savings Plan for such Plan Year were reduced as a result of the limitations imposed by Sections 401(k)(3), 401(m)(2), and/or 415 of the Code in order to comply with such limitations for such Plan Year.  The amount of each such Matching Deferral shall equal 100% of the amount of such reduction.  Matching Deferrals made on a Participant’s behalf pursuant to this Section 3.2(a) for a Plan Year shall be credited to such Participant’s Matching Deferral Account as of the date received by the Trustee.

(b) Notwithstanding anything to the contrary in this Section 3.2, the amount of Matching Deferrals pursuant to Section 3.2(a) with respect to any Participant shall not be affected by such Participant’s actions or inactions under the Savings Plan or any other “qualified employer plan” (as defined under Section 409A of the Code) that is sponsored by the Employer or its Affiliates and that provides for matching or other similar contingent contributions with respect to elective deferrals and other employee pre-tax contributions subject to the contribution restrictions under Section 401(a)(3) or 402(g) of the Code, and any after-tax contributions by such Participant to the Savings Plan or any such other qualified employer plan, to the extent that such actions or inactions would cause the amount of such Marching Deferrals to exceed 100% of the matching or contingent amounts that would be provided under such qualified employer plan(s) absent plan-based restrictions that reflect limits on qualified plan contributions under the Code.

3.3 Valuation of Accounts .  All amounts credited to a Participant’s Account shall be deemed invested in accordance with Article IV on the date such amounts are credited to such Account, and the balance of each Account shall reflect the result of the daily pricing of the assets in which such Account is deemed invested from the time of such crediting until the time of distribution.

12


 

 

IV.

Deemed Investment of Funds

4.1 Participant Directions .

(a) Each Participant may designate, in accordance with the procedures established from time to time by the Plan Administrator, the manner in which the amounts allocated to his Accounts shall be deemed to be invested from among the Funds made available from time to time for such purpose by the Plan Administrator.  Such Participant may be permitted to designate one of such Funds for the deemed investment of all the amounts allocated to his Accounts or he may be permitted to split the deemed investment of the amounts allocated to his Accounts between such Funds in such increments as the Plan Administrator may prescribe.  If a Participant fails to make investment designations with respect to the deemed investment of his Accounts, then his Accounts shall be deemed to be invested in the Fund or Funds designated by the Plan Administrator from time to time in a uniform and nondiscriminatory manner.

(b) A Participant may change his deemed investment designation for future amounts to be allocated to his Accounts.  Any such change shall be made in accordance with the procedures established by the Plan Administrator and the frequency of such changes may be limited by the Plan Administrator.

(c) A Participant may elect to convert his deemed investment designation with respect to the amounts already allocated to his Accounts.  Any such conversion shall be made in accordance with the procedures established by the Plan Administrator and the frequency of such conversions may be limited by the Plan Administrator.

13


 

 

V.

Determination of Vested Interest 

5.1 Vested Interest .  A Participant shall at all times have a 100% Vested Interest in his Elective Deferral Account and his Matching Deferral Account, if any, at all times.

14


 

 

VI.

In-Service Withdrawals

6.1 Restrictions on In-Service Withdrawals and Loans .  Except as provided in Section 3.1 with respect to Scheduled In-Service Withdrawals and Section 6.2 with respect to withdrawals based on Unforeseeable Financial Emergency, Participants shall not be permitted to make withdrawals from the Plan prior to incurring a Termination of Service.  Participants shall not, at any time, be permitted to borrow from their Accounts or the Trust Fund.  Following a Participant’s Termination of Service, this Article VI shall not be applicable to the Participant and the amounts credited to such Participant’s Accounts shall be payable to such Participant only in accordance with the provisions of Article VII.

6.2 Emergency Benefit .  In the event that the Plan Administrator, upon written petition of a Participant, determines in its sole discretion that such Participant has suffered an Unforeseeable Financial Emergency, such Participant shall be entitled to a benefit in an amount not to exceed the lesser of (a) the amount determined by the Plan Administrator as necessary to meet such Participant’s needs created by the Unforeseeable Financial Emergency or (b) the then value of such Participant’s Vested Interest in his Accounts.  Benefits distributed pursuant to this Section may include amounts necessary to pay any federal, state or local income taxes or penalties reasonably anticipated to result from the distribution.  Such benefit shall be paid in a single lump sum payment as soon as administratively practicable (as defined in Section 1.1(3)) after the Plan Administrator has made its determinations with respect to the availability and amount of such benefit.  If a Participant’s Accounts are deemed to be invested in more than one Fund, such benefit shall be distributed pro rata from each Fund in which such Accounts is deemed to be invested.

6.3 Scheduled In-Service Withdrawals .

(a) With respect to each Specified Year Subaccount as to which a Participant has elected a Scheduled In-Service Withdrawal in accordance with Section 3.1(c)(iii), such Participant shall receive a Scheduled In-Service Withdrawal of such Specified Year Subaccount commencing on the Scheduled Withdrawal Date elected by such Participant for such Specified Year Subaccount if such Participant is still employed by the Employer on such date.  A Participant shall receive the Scheduled In-Service Withdrawal of a Specified Year Subaccount to which such an election applies in one of the following forms elected by such Participant in writing on the form prescribed by the Plan Administrator at the time specified in Section 6.3(b):

(1) A single lump sum payment; or

(2) Annual installments for a period of an integral number of consecutive years from two through five inclusive, as designated by such Participant, and on or within 30 days following April 1 of each such calendar year commencing with the calendar year coincident with or next following the Scheduled Withdrawal Date; provided, however, that with respect to any installments payable to a Participant from any Specified Year Subaccount, (x) in the event of such Participant’s Termination of Service prior to the end of such elected installment period, the remaining balance in such Specified Year Subaccount shall be paid in accordance with Article VII, and (y) the amount of each annual

15


 

 

installment with respect to each Specified Year Subaccount shall be computed by dividing the remaining balance attributable to such Specified Year Subaccount as of the date next preceding the date of payment of such annual installment by the number of annual installments remaining under such Participant’s election with respect to such Specified Year Subaccount.

In the event a Participant fails to timely elect in accordance with Section 6.3(b) the form in which a Scheduled In-Service Withdrawal is to be paid as to any Specified Year Subaccount, such Scheduled In-Service Withdrawal shall be paid in the form of a single lump sum payment.

(b) A Participant’s elections pursuant to Section 6.3(a) with respect to a Scheduled In-Service Withdrawal must be made at the time of his annual Elective Deferral election pursuant to Section 3.1(c)(iii).  Notwithstanding the foregoing, a Participant may subsequently elect to delay the distribution (and/or change the form of payment to another permissible form of payment under Section 6.3(a)) of amounts credited to one or more of his Specified Year Subaccounts provided that (i) such distribution (or the commencement thereof) is delayed for a period of at least five additional calendar years,  (ii) such election is made at least 12 months prior to the date that such distribution would otherwise be made or commence, and (iii) such election is not given effect until 12 months following the date it is made.  Such elections may be made separately as to each Specified Year Subaccount and each series of installment payments elected thereunder shall each be treated as a single payment for purposes of Section 409A of the Code, as provided in Section 7.3(c). 

6.4 Restriction on In-Service Distributions .  This Article VI shall not be applicable to a Participant following his Termination of Service, and the amounts credited to such Participant’s Accounts shall be payable to such Participant (or in the event of the Participant’s death, his designated Beneficiary) only in accordance with the provisions of Article VII.

16


 

 

VII.

Termination Benefits

7.1 Amount of Benefit .  Upon a Participant’s Termination of Service, such Participant, or, in the event of the death of a Participant while employed by the Employer or an Affiliate or prior to the commencement of the payment of such Participant’s benefit, such Participant’s Beneficiary, shall be entitled to a benefit equal in value to such Participant’s Vested Interest in the balance in his Accounts as of the date payment of such benefit is to occur pursuant to Section 7.2.

7.2 Time of Payment .

(a) Subject to the delayed payment requirement for Specified Employees described in Section 7.2(b), payment of a Participant’s benefit under Section 7.1 shall be made (i) if payable in a lump sum, within 30 days following the date of such Participant’s Termination of Service;  or (ii) if payable in installment payments, commence on or within 30 days following April 1 next following such Participant’s Termination of Service.  A payment will be considered to have been paid at the time provided in the preceding sentence if it is paid as soon as administratively practicable (as defined in Section 1.1(3)) following such payment time.

(b) Notwithstanding anything to the contrary herein, in the case of a Participant who is a Specified Employee, a distribution upon such Participant’s Termination of Service (other than a termination in the event of his death) shall be made or commence to be made, as applicable, on the earlier of (i) the later of (A) the date that is six months after the date of such Participant’s Termination of Service or (B) April 1 next following such Participant’s Termination of Service or (ii) as soon as administratively practicable following the death of such Participant.

(c) Notwithstanding the foregoing provisions of this Section 7.2 or any election of installment payments pursuant to Section 7.3(a)(2) with respect to one or more Specified Year Subaccounts, in the event of the death of a Participant (including but not limited to a Specified Employee) prior to the commencement or complete distribution of his Accounts, the remaining balance in his Accounts shall be paid to his designated Beneficiaries upon his death.  A payment will be considered to have been paid at the time provided in the preceding sentence if it is paid as soon as administratively practicable (as defined in Section 1.1(3)) following such Participant’s death.

7.3 Alternative Forms of Benefit Payments .

(a) If a Participant incurs a Termination of Service, such Participant shall receive (i) distribution of his benefit attributable to his Pre-2015 Accounts in a single lump sum payment and (ii) distribution of each Specified Year Subaccount in one of the following forms elected by such Participant in writing on the form prescribed by the Plan Administrator in accordance with Section 7.3(b):

(1) A single lump sum payment; or

(2) Annual installments on or within 30 days following April 1 of each calendar year for a period of an integral number of years from two through 10 inclusive, as

17


 

 

designated by such Participant; provided, however, that with respect to any installments payable to such Participant under the Plan, (x) in the event of such Participant’s death prior to the end of the elected installment period, the remaining balance in such Specified Year Subaccount shall be paid as soon as administratively practicable in one lump sum payment to such Participant’s designated Beneficiary, and (y) the amount of each annual installment shall be computed by dividing the unpaid balance in such Specified Year Subaccount as of the date of payment of such annual installment by the number of annual installments remaining.

A single election shall be made pursuant to this Section 7.3(a) by each Participant with respect to each Specified Year Subaccount to be made in connection with a Termination of Service.  In the event such Participant fails to timely elect in accordance with this Section 7.3(a) the form in which his benefit payments are to be made with respect to one or more Specified Year Subaccounts, such benefit payments shall be in the form of a single lump sum payment. 

(b) A Participant’s elections pursuant to Section 7.3(a) with respect to his Specified Year Subaccounts shall be made on the form prescribed by the Plan Administrator and prior to the applicable deadline for annual Elective Deferral elections under Section 3.1(c)(i).  Notwithstanding the foregoing, a Participant may, on the form prescribed by the Plan Administrator, make changes in his elections as to the time and form of payment of his Plan benefits attributable to his Specified Year Subaccounts; provided, however, that (i) any such change shall not be effective if such Participant incurs a Termination of Service on or before the date that is 12 months after such Participant delivers the form implementing such change to the Plan Administrator, (ii) except in the case of the death of the Participant, the payment (or installment payments) with respect to which the new election is made must be deferred for a period of not less than five years from the date such payment would otherwise have been paid (or five years from the date the first installment was scheduled to be paid in the case of an election of installment payments), and (iii) any new election that relates to payment at a specified time (or pursuant to a fixed schedule) may not be made less than 12 months before the date the payment is scheduled to be paid (or 12 months before the date the first amount was scheduled to be paid in the case of an election of installment payments).  Election changes pursuant to this Section 7.2(c) may be made separately as to each election previously made by a Participant (i.e., relating to each Specified Year Subaccount).  The requirements for changes in a Participant’s elections as to time and form of payment of his Plan benefit shall not apply in the case of a distribution pursuant to Section 6.2 (Unforeseeable Financial Emergency) or any other earlier payment of a Plan benefit otherwise permitted and not considered an election change or acceleration under Section 409A of the Code.

(c) The entitlement to installment payments from any Specified Year Subaccount shall each be treated as the entitlement to a single payment with respect to such Specified Year Subaccount for purposes of Section 409A of the Code and the applicable administrative guidance thereunder.  Based on this treatment, when applying the election change restrictions of Section 6.3(b) and Section 7.3(b), a change to the time or form of payment of a particular Specified Year Subaccount must result in an additional deferral for a minimum of five years from the date that the first installment from such Specified Year Subaccount would have otherwise been paid.  For example, a 10-year installment payout of a Participant’s 2015 Specified Year Subaccount scheduled to commence in 2019 could be changed to a lump sum payment

18


 

 

payable in 2024 or a series of installment payments commencing in 2024, assuming the other requirements of Section 6.3(b) or 7.3(c), as applicable, have been satisfied.  In this example, a separate election to change the payment timing, made in accordance with the requirements of Section 7.3(b), would be required to be made if a Participant desired to change the time and form of distribution of any of the Participant’s other Specified Year Subaccounts.

7.4 Beneficiaries .

(a) Each Participant shall have the right to designate the Beneficiary or Beneficiaries to receive payment of his benefit in the event of his death.  Each such designation with respect to a Participant shall be made by executing the Beneficiary designation form prescribed by the Plan Administrator and filing the same with the Plan Administrator during such Participant’s lifetime.  Any such designation may be changed at any time by execution of a new designation in accordance with this Section during such Participant’s lifetime.

(b) If no such designation is on file with the Plan Administrator at the time of the death of the Participant or such designation is not effective for any reason as determined by the Plan Administrator, then the Beneficiary or Beneficiaries to receive such benefit shall be as follows:

(i) If a Participant leaves a surviving spouse, his benefit shall be paid to such surviving spouse;

(ii) If a Participant leaves no surviving spouse but leaves issue, then his benefit shall be paid to such issue per stirpes; and

(iii) If a Participant leaves no surviving spouse or issue, his benefit shall be paid to such Participant’s executor or administrator, or to his heirs at law if there is no administration of such Participant’s estate.

7.5 Payment of Benefits .  To the extent the Trust Fund, if any, has sufficient assets, the Trustee shall pay benefits to Participants or their Beneficiaries, except to the extent the Employer pays the benefits directly to Participants or their Beneficiaries and provides adequate evidence of such payment to the Trustee.  To the extent the Trustee does not or cannot pay benefits out of the Trust Fund, the benefits shall be paid by the Employer and reimbursed by the Trustee.  Any benefit payments made to a Participant or for his benefit pursuant to any provision of the Plan shall be debited to such Participant’s Accounts.  All benefit payments shall be made in cash to the fullest extent practicable.

7.6 Unclaimed Benefits .  In the case of a benefit payable on behalf of a Participant, if the Plan Administrator is unable to locate the Participant or Beneficiary to whom such benefit is payable, upon the Plan Administrator’s determination thereof, such benefit shall be forfeited to the Employer.  Notwithstanding the foregoing, if subsequent to any such forfeiture the Participant or Beneficiary to whom such benefit is payable makes a valid claim for such benefit, such forfeited benefit (without any adjustment for earnings or loss after the time of such forfeiture) shall be restored to the Plan by the Employer and paid in accordance with the Plan.

19


 

 

7.7 Permitted Accelerated Payments .  Notwithstanding anything to the contrary in the Plan, the Plan Administrator may direct the accelerated payment of Plan benefits as to some or all of a Participant’s Accounts, as determined by the Plan Administrator in its sole discretion, under the following circumstances:

(a) A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Accounts, in a single lump sum payment, to the extent necessary for any Federal officer or employee in the executive branch to comply with an ethics agreement with the Federal government;

(b) A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Accounts, in a single lump sum payment, to the extent reasonably necessary to avoid the violation of an applicable Federal, state, local or bona fide foreign ethics law or conflicts of interest law;

(c) A Participant shall be entitled to receive a distribution of such portion of the Vested Interest in his Accounts, in a single lump sum payment, as is necessary to pay (i) the Federal Insurance Contributions Act (FICA) tax imposed under Sections 3101, 3121(a) and 3121(v)(2) of the Code, where applicable, on Compensation deferred under the Plan (the “FICA Amount”), (ii) the income tax at source on wages imposed under Section 3401 of the Code, or the corresponding withholding provisions of applicable state, local, or foreign tax laws as a result of the payment of the FICA Amount, and (iii) the additional income tax at source on wages attributable to the pyramiding Section 3401 wages and taxes; provided, however, that such distribution under this Section 7.7(c) shall not exceed the aggregate of the FICA Amount and the income tax withholding related to such FICA Amount;

(d) A Participant shall be entitled to receive distribution of such portion of the Vested Interest in his Accounts, in a single lump sum payment, as is required to be included in the Participant’s income as a result of the failure of the Plan to comply with Section 409A of the Code; provided, however, that such distribution shall not exceed the amount required to be included in the Participant’s income as a result of such failure;

(e) A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Accounts, in a single lump sum payment, to reflect payment of state, local or foreign tax obligations arising from participation in the Plan that apply to an amount deferred under the Plan before the amount is paid or made available to the Participant; provided, however, that such distribution shall not exceed (i) the amount of such taxes as are due as a result of participation in the Plan (the “Other Taxes”) and may be made in the form of withholding pursuant to the provisions of the applicable law or by distribution directly to the Participant; and/or (ii) the payment of income tax at source on wages imposed under Section 3401 of the Code as a result of the distribution of the Other Taxes and to pay the additional income tax at source on wages imposed under Section 3401 of the Code attributable to the payment of such additional Section 3401 wages and Other Taxes; provided, however that such distribution shall not exceed the amount of the Other Taxes and the income tax withholding related to the Other Taxes;

(f) A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Accounts, in a single lump sum payment, in connection with the

20


 

 

settlement of an arm’s length bona fide dispute between the Employer and the Participant as to the Participant’s right to benefits under the Plan to the extent contemplated under Section 409A of the Code without causing such distribution to be treated as an impermissible acceleration under Section 409A of the Code;

(g) A Participant shall be entitled to receive distribution of all or such portion of the Vested Interest in his Accounts, in a single lump sum payment, under any other circumstance permitted under Treasury Regulation § 1.409A-3(j)(4) (except in connection with a qualified domestic relations order) or any successor regulation thereto or prescribed by the Commissioner of Internal Revenue in generally applicable guidance published in the Internal Revenue Bulletin; and

(h) The Board may direct, in its discretion, that the Vested Interest of each Participant in his Accounts under the Plan be distributed in connection with a termination of the Plan in accordance with Section 11.5.

Any distribution to be made pursuant to Sections 7.7 (a) through (g) shall be made as soon as administratively practicable (as defined in Section 1.1(3)) following the determination that such distribution should be made.

21


 

 

VIII.

Administration of the Plan

8.1 Appointment of Plan Administrator .  The general administration of the Plan shall be vested in the Plan Administrator which shall be appointed by the Board and shall consist of one or more persons or entities.  If no such person(s) or entity is appointed, the Company shall be the Plan Administrator.

8.2 Term, Vacancies, Resignation, and Removal .  Each individual member of the Plan Administrator shall serve until he resigns, dies, or is removed by the Board.  At any time during his term of office, an individual member of the Plan Administrator may resign by giving written notice to the Board and the Plan Administrator, such resignation to become effective upon the appointment of a substitute member or, if earlier, the lapse of 30 days after such notice is given as herein provided. At any time during his term of office, and for any reason, a member of the Plan Administrator may be removed by the Board with or without cause, and the Board may in its discretion fill any vacancy that may result therefrom.  Any member of the Plan Administrator who is an employee of the Employer or any Affiliate shall automatically cease to be a member of the Plan Administrator as of the date he ceases to be employed by the Employer and all Affiliates, regardless of the reason for such termination.

8.3 Self-Interest of Participants .  No member of the Plan Administrator shall have any right to vote or decide upon any matter relating solely to himself under the Plan or to vote in any case in which his individual right to claim any benefit under the Plan is particularly involved.  In any case in which a Plan Administrator member is so disqualified to act and the remaining members cannot agree, the Board shall appoint a temporary substitute member to exercise all the powers of the disqualified member concerning the matter in which he is disqualified.

8.4 Plan Administrator Powers and Duties .  The Plan Administrator shall supervise the administration and enforcement of the Plan according to the terms and provisions hereof and shall have all powers necessary to accomplish these purposes, including, but not by way of limitation, the right, power, and authority:

(a) To establish, amend, suspend or waive rules, regulations, and bylaws for the administration of the Plan that are not inconsistent with the terms and provisions hereof, and to enforce the terms of the Plan and the rules and regulations promulgated thereunder by the Plan Administrator;

(b) To construe in its discretion all terms, provisions, conditions, and limitations of the Plan;

(c) To correct any defect or to supply any omission or to reconcile any inconsistency that may appear in the Plan in such manner and to such extent as it shall deem in its discretion expedient to effectuate the purposes of the Plan;

(d) To employ and compensate such accountants, attorneys, investment advisors, and other agents, employees, and independent contractors as the Plan Administrator may deem necessary or advisable for the proper and efficient administration of the Plan;

22


 

 

(e) To determine in its discretion all questions relating to eligibility;

(f) To determine whether and when a Participant has incurred a Termination of Service, and the reason for such termination;

(g) To make a determination in its discretion as to the right of any person to a benefit under the Plan and to prescribe procedures to be followed by Participants and Beneficiaries in obtaining benefits hereunder;

(h) To receive and review reports from the Trustee as to the financial condition of the Trust Fund, including its receipts and disbursements; and

(i) To establish or designate Funds as investment options as provided in Section 4.1.

8.5 Claims Review .  Claims for Plan benefits and reviews of Plan benefit claims which have been denied or modified will be processed in accordance with the written Plan claims procedures established by the Plan Administrator, which procedures are hereby incorporated by reference as a part of the Plan as such procedures may be amended from time to time by the Plan Administrator.

8.6 Employer to Supply Information .  The Employer shall supply full and timely information to the Plan Administrator, including, but not limited to, information relating to each Participant’s Compensation, retirement, death, or other cause of Termination of Service and such other pertinent facts as the Plan Administrator may require.  The Employer shall advise the Trustee, if any, of such of the foregoing facts as are deemed necessary for the Trustee to carry out the Trustee’s duties under the Plan and the Trust Agreement.  When making a determination in connection with the Plan, the Plan Administrator shall be entitled to rely upon the aforesaid information furnished by the Employer or any information furnished by a Participant, Beneficiary or the Trustee.

8.7 Indemnity .  To the extent permitted by applicable law, the Company shall indemnify and hold harmless each individual serving as a member of the Plan Administrator against any and all expenses, liabilities and claims arising out of their discharge in good faith of responsibilities under or incident to the Plan including any such expenses, liabilities and claims as may arise based upon such individual’s negligence.  Expenses and liabilities arising out of such individual’s own gross negligence or willful misconduct shall not be covered under this indemnity.  Expenses against which such individual shall be indemnified hereunder shall include, without limitation, the amounts of any settlement or judgment, costs, counsel fees, and related charges reasonably incurred in connection with a claim asserted or a proceeding brought or settlement thereof.  This indemnity shall not preclude such further indemnities as may be available under insurance purchased by the Company or provided by the Company under any articles of incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, as such indemnities are permitted under applicable law.

23


 

 

IX.

Administration of Funds

9.1 Payment of Expenses .  All expenses incident to the administration of the Plan and Trust, including but not limited to, legal, accounting, Trustee fees, and expenses of the Plan Administrator, may be paid by the Employer and, if not paid by the Employer, shall be paid by the Trustee, at the direction of the Plan Administrator, from the Trust Fund, if any.

9.2 Trust Fund Property .  All income, profits, recoveries, contributions, forfeitures and any and all moneys, securities and properties of any kind at any time received or held by the Trustee, if any, shall be held for investment purposes as a commingled Trust Fund pursuant to the terms of the Trust Agreement.  The Plan Administrator shall maintain Accounts in the name of each Participant, but the maintenance of Accounts designated as the Accounts of a Participant shall not mean that such Participant shall have a greater or lesser interest than that due him by operation of the Plan and shall not be considered as segregating any funds or property from any other funds or property contained in the commingled fund.  No Participant shall have any title to any specific asset in the Trust Fund.  The assets of the Trust Fund shall be invested in such investments as the Trustee shall determine, in accordance with the terms of the Trust Agreement.  The Trustee may (but is not required to) consider the Employer’s or a Participant’s investment preferences when investing the assets attributable to the Participant’s Accounts.

24


 

 

X.

Nature of the Plan

10.1 Establishment of Trust Fund .  The Employer intends and desires by the adoption of the Plan to recognize the value to the Employer of the past and present services of employees covered by the Plan and to encourage and assure their continued service with the Employer by making more adequate provision for their future retirement security.  The Plan is intended to constitute an unfunded, unsecured plan of deferred compensation for a select group of management or highly compensated employees of the Employer.  Plan benefits herein provided are a contractual obligation of the Employer which shall be paid out of the Trust Fund or the Employer’s general assets.  Nevertheless, subject to the terms hereof and of the Trust Agreement, the Employer shall transfer money or other property to the Trustee to provide Plan benefits hereunder, and the Trustee shall pay the Plan benefits to Participants and Beneficiaries out of the Trust in accordance with the terms of the Plan and the Trust Agreement as in effect from time to time.  To the extent that the Employer transfers assets to the Trustee pursuant to the Trust Agreement, the Plan Administrator may, but need not, establish procedures for the Trustees to invest the Trust Fund in accordance with each Participant’s designated deemed investments pursuant to Section 4.1 respecting the portion of the Trust Fund assets equal to such Participant’s Accounts.

10.2 Ownership of Trust Fund Assets .  The Employer shall remain the owner of all assets in the Trust Fund and the assets shall be subject to the claims of the Employer’s creditors if the Employer ever becomes insolvent.  For purposes hereof, the Employer shall be considered “insolvent” if (a) the Employer is unable to pay its debts as such debts become due or (b) the Employer is subject to a pending proceeding as a debtor under the United States Bankruptcy Code (or any successor federal statute).  The Chief Executive Officer of the Employer and its board of directors shall have the duty to inform the Trustee in writing if the Employer becomes insolvent. Such notice given under the preceding sentence by any party shall satisfy all of the parties’ duty to give notice.  When so informed, the Trustee shall suspend payments to the Participants and Beneficiaries and hold the assets for the benefit of the Employer’s general creditors.  If the Trustee receives a written allegation that the Employer is insolvent, the Trustee shall suspend payments to the Participants and Beneficiaries and hold the Trust Fund for the benefit of the Employer’s general creditors, and shall determine in the manner specified in the Trust Agreement whether the Employer is insolvent.  If the Trustee determines that the Employer is not insolvent, the Trustee shall resume payments to the Participants and Beneficiaries.  No Participant or Beneficiary shall have any preferred claim to, or any beneficial ownership interest in, any assets of the Trust Fund, and, upon commencement of participation in the Plan, each Participant shall have agreed to waive his priority credit position, if any, under applicable state law with respect to the assets of the Trust Fund.

10.3 Limitation on Funding .  Notwithstanding anything to the contrary herein or in the Trust Agreement, in no event shall money and/or property be transferred to the Trust if such transfer would result in adverse tax consequences to a Participant pursuant to Section 409A(b) of the Code.

25


 

 

XI.

Miscellaneous

11.1 No Contract of Employment .  The adoption and maintenance of the Plan shall not be deemed to be a contract of employment or for other services between the Employer and any person or to be consideration for the employment of any person.  Nothing herein contained shall be deemed to (a) give any person the right to be retained in the employ or other service of the Employer, (b) restrict the right of the Employer to discharge any person or terminate any service relationship at any time, (c) give the Employer the right to require that any person remain in the employ or service of the Employer, (d) restrict any person’s right to terminate his employment or service relationship with the Employer at any time, or (e) be a commitment on the part of the Employer to continue the rate of compensation of a Participant for any period.

11.2 Alienation of Interest Forbidden .  The interest of a Participant or his Beneficiary or Beneficiaries hereunder may not be sold, transferred, assigned, or encumbered in any manner, either voluntarily or involuntarily, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be null and void; neither shall the benefits hereunder be liable for or subject to the debts, contracts, liabilities, engagements or torts of any person to whom such benefits or funds are payable, nor shall they be an asset in bankruptcy or subject to garnishment, attachment or other legal or equitable proceedings.

11.3 Payments of Benefits to Others .  Notwithstanding anything to the contrary in Section 11.10, if any Participant or Beneficiary to whom a benefit is payable under the Plan is unable to care for his affairs because of illness or accident, any payment due (unless prior claim therefore shall have been made by a duly qualified guardian or other legal representative) may be paid to the spouse, parent, brother, or sister, or any other individual deemed by the Plan Administrator to be maintaining or responsible for the maintenance of such person.  Any payment made in accordance with the provisions of this Section 11.3 shall be a complete discharge of any liability of the Plan with respect to the benefit so paid.

11.4 Withholding .  All deferrals and payments provided for hereunder shall be subject to applicable withholding and other deductions as shall be required of the Employer under any applicable local, state or federal law.

11.5 Amendment and Termination .

(a) The Board may from time to time, in its discretion, amend, in whole or in part, any or all of the provisions of the Plan; provided, however, that no amendment may be made that would impair the rights of a Participant with respect to amounts already allocated to his Accounts and in which such Participant has a 100% Vested Interest; provided further, however, that, notwithstanding the foregoing (and without constituting an impermissible impairment of Participant rights in violation of this sentence), (i) the Board may make such amendments to the Plan as are necessary or advisable, as determined by the Board in its discretion, to enable the Plan and the Accounts of the Participants established hereunder to comply with the requirements of Section 409A of the Code and (ii) the Board may decide to amend the Plan to prospectively eliminate Participants’ rights to make deemed investment designations pursuant to Section 4.1(a)

26


 

 

provided that the Board specifies, at the time of any such elimination, an alternative method for the crediting of earnings with respect to amounts allocated to Participants’ Accounts.

(b) Notwithstanding anything to the contrary, the Board may, in its sole discretion (and without constituting an impermissible impairment of Participant rights in violation of Section 11.5(a)), terminate the Plan and accelerate the time and form of payment of all Vested Interests in Accounts under the Plan, under the following circumstances:

(i) The Board may terminate and liquidate the Plan within 12 months of a corporate dissolution taxed under Section 331 of the Code, or with the approval of a bankruptcy court, provided that the balance of all of the Participants’ Accounts under the Plan are included in the Participants’ respective gross incomes in the latest of (A) the calendar year in which the Plan termination and liquidation occurs; (B) the calendar year in which the Participant attains a 100% Vested Interest in such amount, or (C) the first calendar year in which the payment is administratively practicable;

(ii) The Board may, in its discretion, terminate and liquidate the Plan in connection with a Change in Control of the Company (or, with respect to a Participant who is employed by an Employer other than the Company, a Change in Control of such Employer), provided that the following requirements are satisfied:

(A) The Board (or its appropriate counterpart with respect to any Employer other than the Company) takes irrevocable action to terminate and liquidate the Plan within 30 days preceding or 12 months following such Change in Control;

(B) The Vested Interest of each Participant in his Accounts under the Plan and all Other Arrangements (as defined in subparagraph (C) below) is distributed within 12 months following the date that all necessary actions to terminate and liquidate the Plan and the Other Arrangements are irrevocably taken; and

(C) All plans, agreements, methods, programs and other arrangements that are sponsored by the “service recipient” (within the meaning of Section 409A of the Code), as determined immediately following such Change in Control, with respect to which deferrals of compensation are treated as having been deferred under a single plan under Treasury Regulation § 1.409A-1(c)(2) (collectively, the “Other Arrangements”), are terminated and liquidated with respect to each Participant who experienced such Change in Control.  For purposes of this Section 11.5(b)(ii), the applicable “service recipient” with the discretion to liquidate and terminate the Plan and the Other Arrangements shall be the “service recipient” that is primarily liable immediately after the transaction for the payment of the Plan benefits.

(iii) The Board may, in its discretion, terminate and liquidate the Plan, provided that:

(A) The termination and liquidation does not occur proximate to a downturn in the financial health of the Company and all entities that would be considered a single “service recipient” along with the Company under Section 409A of the Code;

27


 

 

(B) Such “service recipient” terminates and liquidates all plans, agreements, methods, programs and other arrangements sponsored by the service recipient that would be aggregated with any terminated and liquidated plans, agreements, methods, programs and other arrangements under Treasury Regulation § 1.409A-1(c) as if there was one service provider that had deferrals of compensation under every such plan, agreement, method, program and other arrangement sponsored by the service recipient;

(C) No payments in liquidation of the Plan are made within 12 months of the date that the Company takes all necessary action to irrevocably terminate and liquidate the Plan, other than payments that would be payable under the terms of such arrangements if the action to terminate and liquidate the Plan had not occurred;

(D) All payments are made within 24 months of the date that the Company takes all necessary action to irrevocably terminate and liquidate the Plan; and

(E) The Company and all other entities required to be considered a single “service recipient” within the meaning of Section 409A of the Code do not adopt any new plan, agreement, method, program or other arrangement described in Section 11.5(b)(iii)(B) at any time within three years following the date that the service recipient took all necessary action to irrevocably terminate and liquidate the Plan.

(c) The Board may, in its discretion, terminate and liquidate the Plan upon such other events or conditions as the Commissioner of Internal Revenue may prescribe in generally applicable guidance published in the Internal Revenue Bulletin.

In the event that the Plan is terminated, the Vested Interest in the balance in a Participant’s Accounts shall be paid to such Participant or his Beneficiary in the manner specified by the Board (but subject to the distribution timing requirements described above), which may include the payment of a single lump sum payment in full satisfaction of all of such Participant’s or Beneficiary’s benefits hereunder. 

11.6 Severability .  If any provision of the Plan shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof; instead, each provision shall be fully severable and the Plan shall be construed and enforced as if said illegal or invalid provision had never been included herein.

11.7 Guaranty .  Notwithstanding any provisions of the Plan to the contrary, in the event any Employer fails to make payment of the benefits due under the Plan on behalf of its Participants, whether directly or through the Trust, the Company shall be liable for and shall make payment of such benefits due as a guarantor of such entity’s obligations hereunder.  The guaranty obligations provided herein shall be satisfied directly and not through the Trust.

11.8 Provisions Binding .  All of the provisions of the Plan shall be binding upon all persons who will be entitled to any benefit hereunder, including but not limited to all Participants and their heirs and personal representatives.

11.9 Timing of Payments .  Payment of Plan benefits may be subject to administrative or other delays that result in payment to the Participant or his Beneficiaries on a date later than the

28


 

 

date specified in the Plan or the Participant’s election form.  Any such payment delays will comply with Section 409A of the Code, including, without limitation Treasury Regulation § 1.409A-2(b)(7).  No Participant or Beneficiary shall be entitled to any additional earnings or interest in respect of any such payment delays, nor shall any Participant or Beneficiary be provided any election with respect to the timing of any delayed payment.

11.10 Receipt and Release .  Any payment to any Participant or Beneficiary in accordance with the provisions of the Plan shall, to the extent thereof, be in full satisfaction of all claims against the Employer, the Plan Administrator and the Trustee under the Plan and the Plan Administrator may require such Participant or Beneficiary, as a condition precedent to such payment, to execute a receipt and release to such effect.  If any Participant or Beneficiary is determined by the Plan Administrator to be incompetent by reason of physical or mental disability or minority to give a valid receipt and release, the Plan Administrator may cause the payment or payments that become due to such person to be made to another person for his benefit without responsibility on the part of the Plan Administrator, the Employer or the Trustee to follow the application of such funds.  Notwithstanding any requirement of a receipt and release in accordance with this Section, payment of a Participant’s or Beneficiary’s benefit under the Plan shall be made no later than the latest time such payment may be made without causing the imposition of the tax under Section 409A of the Code.

11.11 Governing Laws .  All provisions of the Plan shall be construed in accordance with the laws of Texas except to the extent preempted by federal law.

11.12 Compliance with Code Section 409А .  The Plan is intended to satisfy the requirements of Section 409А of the Code, as applicable, in order to avoid any adverse tax consequences resulting from any failure to comply with Section 409А of the Code and, as a result, the Plan shall be operated in a manner consistent with such compliance.  Except to the extent expressly set forth in the Plan, Participants (and their Beneficiaries, as applicable) shall have no right to dictate the taxable year in which any payment hereunder that is subject to Section 409А of the Code should be paid.  Notwithstanding the foregoing, the Company makes no representation that the Plan complies with Section 409A of the Code and the Company, the other Employers and their respective Affiliates, directors, trustees, officers, employees and advisors (other than in his or her individual capacity as a Participant with respect to his or her individual liability for taxes, interest, penalties or other monetary amounts) shall not have any liability to any Participant or Beneficiary for any failure to comply with Section 409A of the Code.

11.13 Claims of Other Persons .  The provisions of the Plan shall in no event be construed as giving any person, firm or corporation any legal or equitable right as against the Employer, its officers, employees, or directors or the Board or the Plan Administrator, except any such rights as are specifically provided for in the Plan or are hereafter created in accordance with the terms and provisions of the Plan.

29


Exhibit 31.1

 

Certification of Chief Executive Officer

Pursuant to Exchange Act Rule 13a-14(a) or 15d-14(a)

 

I, Anthony G. Petrello, certify that:

 

1.

I have reviewed this quarterly report on Form 10-Q of Nabors Industries Ltd.;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

 

 

Date:      April 28, 2017

/s/ ANTHONY G. PETRELLO

 

 

Anthony G. Petrello

 

 

Chairman, President and Chief Executive Officer

 

 


Exhibit 31.2

 

Certification of Chief Financial Officer

Pursuant to Exchange Act Rule 13a-14(a) or 15d-14(a)

 

I, William Restrepo, certify that:

 

1.

I have reviewed this quarterly report on Form 10-Q of Nabors Industries Ltd.;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c)

Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d)

Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.

The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a)

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b)

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

 

 

 

 

Date:    April 28, 2017

/s/ WILLIAM RESTREPO

 

 

 

William Restrepo

 

 

 

Chief Financial Officer

 


Exhibit 32.1

 

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report on Form 10-Q of Nabors Industries Ltd. (the “Company”) for the quarter ended March 31, 2017 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Anthony G. Petrello, Chairman, President and Chief Executive Officer of the Company, and I, William Restrepo, Chief Financial Officer of the Company, each certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:

 

(1)  the Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

(2)  the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

 

/s/ ANTHONY G. PETRELLO

 

Anthony G. Petrello

 

Chairman, President and Chief Executive Officer

 

 

 

 

 

/s/ WILLIAM RESTREPO

 

William Restrepo

 

Chief Financial Officer

 

 

 

 

 

Date: April 28, 2017