EXHIBIT 4.7
REGISTRATION RIGHTS AGREEMENT
Dated as of ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇ and Between
PRIDE INTERNATIONAL, INC.,
as Issuer,
and
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
as Initial Purchaser
2 1/2% Convertible Senior Notes Due 2007
TABLE OF CONTENTS
1. Definitions............................................................ 1
2. Shelf Registration..................................................... 4
3. Liquidated Damages..................................................... 5
4. Registration Procedures................................................ 6
5. Registration Expenses.................................................. 11
6. Indemnification........................................................ 11
7. Rules 144 and 144A..................................................... 14
8. Miscellaneous.......................................................... 14
REGISTRATION RIGHTS AGREEMENT
This registration rights agreement (the "Agreement") is dated as of March
4, 2002, by and between PRIDE INTERNATIONAL, INC., a Delaware corporation (the
"Company"), and DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC. (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of February 26, 2002 (the "Purchase Agreement"), by and between the
Company and the Initial Purchaser, which provides for the sale by the Company to
the Initial Purchaser of $250,000,000 aggregate principal amount of the
Company's 21/2% Convertible Senior Notes Due 2007 (the "Firm Notes"), which are
convertible into Common Stock of the Company, par value $.01 per share (the
"Underlying Shares"), plus up to an additional $50,000,000 aggregate principal
amount of the same which the Initial Purchaser may subsequently elect to
purchase pursuant to the terms of the Purchase Agreement (the "Additional Notes"
and, together with the Firm Notes, the "Convertible Notes"). The Convertible
Notes are being issued pursuant to an Indenture dated as of May 1, 1997 (the
"Original Indenture"), between the Company and JPMorgan Chase Bank (formerly The
Chase Manhattan Bank), as trustee, as amended and supplemented to date and as
further amended and supplemented by the Fifth Supplemental Indenture thereto to
be dated as of the date hereof (the Original Indenture, as so amended and
supplemented, the "Indenture").
In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchaser and any subsequent
holder or holders of the Convertible Notes or Underlying Shares as provided
herein. The execution and delivery of this Agreement is a condition to the
Initial Purchaser's obligation to purchase the Firm Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
ADDITIONAL NOTES: See the second introductory paragraph hereto.
AGREEMENT: See the first introductory paragraph hereto.
AMOUNT OF REGISTRABLE SECURITIES: (a) With respect to Convertible Notes
constituting Registrable Securities, the aggregate principal amount of all such
Convertible Notes outstanding, (b) with respect to Underlying Shares
constituting Registrable Securities, the aggregate number of such Underlying
Shares outstanding multiplied by a fraction (i) the numerator of which shall be
1,000 and (ii) the denominator of which shall be the Conversion Rate (as defined
in the Indenture relating to the Convertible Notes upon the conversion of which
such Underlying Shares were issued) in effect at the time of computing the
Amount of Registrable Securities or, if no such Convertible Notes are then
outstanding, the last Conversion Rate that was in effect under such Indenture
when any such Convertible Notes were last outstanding, and (c) with respect to
combinations thereof, the sum of (a) and (b) for the relevant Registrable
Securities.
BUSINESS DAY: Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York are authorized or required by law to be closed.
CLOSING DATE: March 4, 2002.
COMPANY: See the first introductory paragraph hereto.
CONVERTIBLE NOTES: See the second introductory paragraph hereto.
DAMAGES PAYMENT DATE: See Section 3(c) hereof.
DEPOSITARY: The Depository Trust Company until a successor is appointed by
the Company.
EFFECTIVENESS DATE: The 180th day after the Closing Date.
EFFECTIVENESS PERIOD: See Section 2(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
FILING DATE: The 90th day after the Closing Date.
FIRM NOTES: See the second introductory paragraph hereto.
HOLDER: Any holder of Registrable Securities.
INDEMNIFIED HOLDER: See Section 6 hereof.
INDEMNIFIED PERSON: See Section 6 hereof.
INDEMNIFYING PERSON: See Section 6 hereof.
INDENTURE: See the second introductory paragraph hereto.
INITIAL PURCHASER: See the first introductory paragraph hereto.
INITIAL SHELF REGISTRATION: See Section 2(a) hereof.
INSPECTORS: See Section 4(l) hereof.
LIQUIDATED DAMAGES: See Section 3(a) hereof.
ORIGINAL INDENTURE: See second introductory paragraph hereto.
PERSON: An individual, partnership, corporation, limited liability company,
unincorporated association, trust, joint venture or similar entity, or a
governmental agency or political subdivision thereof.
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PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
PURCHASE AGREEMENT: See the second introductory paragraph hereto.
RECORDS: See Section 4(l) hereof.
REGISTRABLE SECURITIES: All Convertible Notes and all Underlying Shares
upon original issuance thereof and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement covering such Convertible
Notes and Underlying Shares having been declared effective by the SEC and such
Convertible Notes and Underlying Shares having been disposed of in accordance
with such effective Registration Statement, (ii) such Convertible Notes and
Underlying Shares having been sold in compliance with Rule 144 or could (except
with respect to affiliates of the Company within the meaning of the Securities
Act) be sold in compliance with Rule 144(k), or (iii) such Convertible Notes and
any Underlying Shares ceasing to be outstanding.
REGISTRATION DEFAULT: See Section 3(a) hereof.
REGISTRATION STATEMENT: Any registration statement of the Company filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
RULE 144: Rule 144 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
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SHELF REGISTRATION: See Section 2(b) hereof.
SHELF REGISTRATION STATEMENT: See Section 2(b) hereof.
SUBSEQUENT SHELF REGISTRATION: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
TRUSTEE: The Trustee under the Indenture.
UNDERLYING SHARES: See the second introductory paragraph hereto.
2. Shelf Registration.
(a) Shelf Registration. The Company shall use its reasonable best
efforts to file with the SEC a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "Initial Shelf Registration") on or prior to the Filing Date.
The Initial Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by
Holders in the manner or manners set forth in such Registration Statement and in
Rule 415. The Company shall not permit any securities other than the Registrable
Securities to be included in the Initial Shelf Registration or any Subsequent
Shelf Registration (as defined below).
The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on or prior
to the Effectiveness Date and to keep such Initial Shelf Registration
continuously effective under the Securities Act until the date that is two years
from the Closing Date (as it may be shortened pursuant to clause (i) or clause
(ii) immediately following, the "Effectiveness Period"), or such shorter period
ending when (i) all the Registrable Securities covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) the date on which all the Registrable
Securities (x) held by Persons who are not affiliates of the Company may be
resold pursuant to Rule 144(k) under the Securities Act or (y) cease to be
outstanding, or (iii) a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Company shall use its reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use its reasonable best efforts
to cause the Subsequent Shelf Registration to be declared effective under the
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Securities Act as soon as practicable after such filing and to keep such
Registration Statement continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days during
which the Initial Shelf Registration and any Subsequent Shelf Registration were
previously continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf Registration and
the term "Shelf Registration Statement" means any Registration Statement filed
in connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of the majority in Amount of Registrable Securities covered by such
Registration Statement.
3. Liquidated Damages.
(a) The Company and the Initial Purchaser agree that the Holders of
Registrable Securities will suffer damages if the Company fails to fulfill its
obligations under Section 2 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
agrees to pay liquidated damages on the Registrable Securities ("Liquidated
Damages") under the circumstances and to the extent set forth below (each of
which shall be given independent effect; each a "Registration Default"):
(i) if the Initial Shelf Registration is not filed on or prior to
the Filing Date, then commencing on the day after the Filing Date, Liquidated
Damages shall accrue on the Registrable Securities at a rate of 0.50% per annum
on the Amount of Registrable Securities for the first 90 days immediately
following the Filing Date, such Liquidated Damages increasing by an additional
0.50% per annum at the beginning of each subsequent 90-day period;
(ii) if the Company fails to use all reasonable efforts and the
Initial Shelf Registration is not declared effective by the SEC on or prior to
the Effectiveness Date, then commencing one day after the Effectiveness Date,
Liquidated Damages shall accrue on the Registrable Securities at a rate of 0.50%
per annum on the Amount of Registrable Securities for the first 90 days
immediately following the day after such Effectiveness Date, such Liquidated
Damages increasing by an additional 0.50% per annum at the beginning of each
subsequent 90-day period; and
(iii) if a Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the Effectiveness
Period (other than as permitted under Section 3(b)), then Liquidated Damages
shall accrue on the Registrable Securities at a rate of 0.50% per annum on the
Amount of Registrable Securities for the first 90 days commencing on the day
such Shelf Registration ceases to be effective, such Liquidated Damages
increasing by an additional 0.50% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that Liquidated Damages on the Registrable Securities may not
accrue under more than one of the foregoing clauses (i), (ii) or (iii) at any
one time and at no time shall the
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aggregate amount of Liquidated Damages accruing exceed in the aggregate 1.0% per
annum of the Amount of Registrable Securities; provided, further, however, that
(1) upon the filing of the Shelf Registration as required hereunder (in the case
of clause (a)(i) of this Section 3), (2) upon the effectiveness of the Shelf
Registration as required hereunder (in the case of clause (a)(ii) of this
Section 3), or (3) upon the effectiveness or availability of a Shelf
Registration which had ceased to remain effective or available (in the case of
(a)(iii) of this Section 3), Liquidated Damages on the Registrable Securities as
a result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue. It is understood and agreed that, notwithstanding any
provision to the contrary, so long as any Registrable Security is then covered
by an effective Shelf Registration Statement, no Liquidated Damages shall accrue
on such Registrable Security.
(b) Notwithstanding paragraph (a) of this Section 3, the Company shall
be permitted to suspend the effectiveness or availability of a Shelf
Registration for any reason whatsoever for up to 30 consecutive days in any 90
day period, for a total of not more than 60 days in any calendar year, without
paying Liquidated Damages.
(c) So long as Convertible Notes remain outstanding, the Company shall
notify the Trustee within two Business Days after each and every date on which
an event occurs in respect of which Liquidated Damages is required to be paid.
Any amounts of Liquidated Damages due pursuant to (a)(i), (a)(ii) or (a)(iii) of
this Section 3 will be payable in cash semi-annually on each September 1 and
March 1 (each a "Damages Payment Date"), commencing with the first such date
occurring after any such Liquidated Damages commences to accrue, to Holders to
whom regular interest is payable on such Damages Payment Date with respect to
Convertible Notes that are Registrable Securities and to Persons that are
registered Holders 15 days prior to such Damages Payment Date with respect to
Underlying Shares that are Registrable Securities. The amount of Liquidated
Damages for Registrable Securities will be determined by multiplying the
applicable rate of Liquidated Damages by the Amount of Registrable Securities
outstanding on the Damages Payment Date following such Registration Default in
the case of the first such payment of Liquidated Damages with respect to a
Registration Default (and thereafter at the next succeeding Damages Payment Date
until the cure of such Registration Default), multiplied by a fraction, the
numerator of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
4. Registration Procedures. In connection with the filing of any Registration
Statement pursuant to Section 2 hereof, the Company shall effect such
registrations to permit the sale of the securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
and in connection with any Registration Statement filed by the Company hereunder
the Company shall:
(a) Prepare and file with the SEC on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section 2
hereof, and use its reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein; provided,
however, that before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and afford
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the Holders of the Registrable Securities covered by such Registration Statement
a reasonable opportunity to review copies of all such documents proposed to be
filed, other than documents filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act that are deemed incorporated by reference
in such Registration Statement or Prospectus (in each case, where possible, at
least five Business Days prior to such filing, or such later date as is
reasonable under the circumstances). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the Holders
of a majority in Amount of Registrable Securities covered by such Registration
Statement shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period;
cause the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) promulgated under the Securities
Act; and comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such Prospectus as so
supplemented. Subject to Section 3(b), the Company shall be deemed not to have
used its reasonable best efforts to keep a Registration Statement effective
during the Effectiveness Period if it voluntarily takes any action that would
result in selling Holders of the Registrable Securities covered thereby not
being able to sell such Registrable Securities during that period unless such
action is required by applicable law or unless the Company complies with this
Agreement, including without limitation the provisions of Section 4(j) hereof.
(c) Notify the selling Holders of Registrable Securities promptly (but
in any event within two Business Days), (i) when a Prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective under the Securities Act (including in such notice a written statement
that any Holder may, upon request, obtain, at the sole expense of the Company,
one conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) of the happening of any
event, the existence of any condition or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading and (iv) of the
Company's determination that a post-effective amendment to a Registration
Statement would be appropriate.
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(d) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If requested, furnish to each selling Holder of Registrable
Securities and a single counsel to such Holders (chosen in accordance with
Section 5(b)) at the sole expense of the Company, one conformed copy of the
Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, and all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits.
(f) Deliver to each selling Holder of Registrable Securities and a
single counsel to such Holders (chosen in accordance with Section 5(b)) at the
sole expense of the Company, as many copies of the Prospectus (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the second paragraph of Section 4(p) hereof, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Securities and
the agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any amendment
or supplement thereto.
(g) Prior to any public offering of Registrable Securities, to use its
reasonable best efforts to register or qualify, to the extent required by
applicable law, and to cooperate with the selling Holders of Registrable
Securities in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Securities or offer
and sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder reasonably requests; provided, however, that
the Company agrees to cause the Company's counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 4(g); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so qualified,
(B) take any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction where it
is not then so subject.
(h) Cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company; and enable such shares of Registrable Securities to be
in such denominations and registered in such names as the Holders may reasonably
request.
(i) Use its reasonable best efforts to cause the Registrable Securities
covered by any Shelf Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be reasonably necessary
to enable the seller or
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sellers thereof to consummate the disposition of such Registrable Securities,
except as may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of such
approvals.
(j) Upon the occurrence of any event contemplated by paragraph
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable give notice
to suspend the availability in the Registration Statement as contemplated by
Section 3(b) and, subject to Section 3(b), prepare and (subject to Section 4(a)
hereof) file with the SEC, at the sole expense of the Company, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
any such Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(k) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the Registrable
Securities.
(l) Make available for inspection by any selling Holder of such
Registrable Securities being sold and any attorney, accountant or other agent
retained by any such selling Holder (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours at such time or
times as shall be mutually convenient for the Company and the Inspectors as a
group, all financial and other records, pertinent corporate documents and
instruments of the Company and its subsidiaries (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement; provided,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of such Holders by one firm of counsel, which firm shall
be ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. until another firm shall be designated pursuant to
Section 5(b). Records that the Company determines, in good faith, to be
confidential and any Records that it notifies the Inspectors are confidential
shall not be disclosed by any Inspector unless (i) the disclosure of such
Records is necessary to avoid or correct a material misstatement or material
omission in such Registration Statement if such Registration Statement is then
available, (ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or proceeding, directly
involving or potentially involving such Inspector and arising out of, based
upon, relating to, or involving this Agreement or any transactions contemplated
hereby or arising hereunder or (iv) the information in such Records has been
made generally available to the public other than through the acts of such
Inspector; provided, however, that prior notice shall be provided as soon as
practicable to the Company of the potential disclosure of any information by
such Inspector pursuant to clauses (ii) or (iii) of this sentence to permit the
Company to obtain a protective order
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(or waive the provisions of this paragraph (l)). Each Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of such
information to the extent such actions are otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the Holder or any
Inspector, unless and until such information in such Records has been made
generally available to the public other than as a result of a breach of this
Agreement.
(m) Provide (i) the Holders of the Registrable Securities to be
included in such Registration Statement and not more than one counsel for all
the Holders of such Registrable Securities chosen in accordance with Section
5(b), (ii) the sales or placement agent, if any, thereof, and (iii) one counsel
for such agents, reasonable opportunity to participate in the preparation of
such Registration Statement, each prospectus included therein or filed with the
SEC, and each amendment or supplement thereto.
(n) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(o) Cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the Trustee
and the Holders of the Registrable Securities to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its reasonable best efforts to
cause the Trustee to execute, all documents as may be required to effect such
changes and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner.
(p) Use its reasonable best efforts to take all other steps necessary
or advisable to effect the registration of the Registrable Securities covered by
a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company the Notice
and Questionnaire attached to the Offering Memorandum dated February 26, 2002
used in connection with the offer of the Convertible Notes and such other
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request to the
extent necessary or advisable to comply with the Securities Act. The Company may
exclude from such registration the Registrable Securities of any seller if such
seller fails to furnish such Notice and Questionnaire and such information
within 20 Business Days after receiving such request. Each seller as to which
any Shelf Registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed so that the information
previously furnished to the Company by such seller is not materially misleading
and does not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
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Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof, or upon the suspension of the availability of the
Registration Statement as contemplated by Section 3(b) such Holder will
forthwith discontinue disposition of such Registrable Securities covered by such
Registration Statement or Prospectus until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(j) hereof,
or until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company, including,
without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses of compliance with state securities or Blue Sky
laws (including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions as provided in Section 4(g)
hereof), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company, (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company and reasonable
fees and disbursements of one special counsel for the sellers of Registrable
Securities (subject to the provisions of Section 5(b) hereof), (v) Securities
Act liability insurance, if the Company desires such insurance, (vi) fees and
expenses of all other Persons retained by the Company, (vii) internal expenses
of the Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(viii) the expense of any annual audit, (ix) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, if applicable, and (x) the expenses relating to printing, word
processing and distributing all Registration Statements, securities sales
agreements and any other documents necessary in order to comply with this
Agreement. Notwithstanding anything in this Agreement to the contrary, each
Holder shall pay all underwriting discounts and brokerage commissions with
respect to any Registrable Securities sold by it.
(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a majority
in Amount of Registrable Securities to be included in such Registration
Statement, which counsel shall be ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. until another firm
shall be designated pursuant to this Section 5(b).
6. Indemnification. The Company agrees to indemnify and hold harmless (i) the
Initial Purchaser, (ii) each Holder, (iii) each Person, if any, who controls
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) any of the foregoing (any of the Persons referred to in this
clause (iii) being hereinafter referred to as a "controlling person"), (iv) the
respective officers, directors, partners, employees, representatives and agents
of the Initial Purchaser, the Holders (including predecessor Holders) or any
controlling person (any person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as an "Indemnified
11
Holder"), from and against any and all losses, claims, damages, liabilities and
judgments (including, without limitation, reasonable legal fees and other
expenses reasonably incurred in connection with any suit, action or proceeding
or any claim asserted) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Holder furnished to the Company in writing by such Holder
expressly for use in therein; provided, however, that the Company shall not be
liable to any Indemnified Holder under the indemnity agreement of this paragraph
with respect to any preliminary prospectus to the extent that any such loss,
claim, damage, liability, judgment or expense of such Indemnified Holder results
from the fact that such Indemnified Holder sold Registrable Securities under a
Registration Statement to a Person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (or of the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto on a timely basis), in any case where such
delivery is required by applicable law and the loss, claim, damage, liability or
expense of such Indemnified Holder results from an untrue statement or omission
of a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (or in the preliminary prospectus as then amended or
supplemented if the Company shall have furnished such Indemnified Holder with
such amendment or supplement thereto, as the case may be, on a timely basis).
The Company shall notify Indemnified Holder promptly of the institution, threat
or assertion of any claim, proceeding (including any governmental investigation)
or litigation in connection with the matters addressed by this Agreement which
involves the Company or such Indemnified Holder.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers and each Person who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to each Holder, but only with reference to such losses, claims, damages
or liabilities which are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to a Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and such Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 6 that the Indemnifying Person may
designate in such proceeding and shall pay the reasonable fees and expenses of
such counsel related to such
12
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) such Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) such
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to such Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include an Indemnifying
Person and an Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to a conflict of interests between them. It
is understood that an Indemnifying Person shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the indemnified
Holders shall be designated in writing by the Holders of the majority in Amount
of Registrable Securities, and any such separate firm for the Company, its
directors, respective officers and such control Persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, such Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 6 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person on the one hand and the Indemnified
Person on the other hand pursuant to the Purchase Agreement or from the offering
of the Registrable Securities pursuant to any Shelf Registration or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Indemnifying
Person on the one hand and the Indemnified Person on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and any Indemnified
Holder on the other shall be deemed to be in the same proportion as the total
net proceeds from the initial offering and sale of Convertible Notes (before
deducting expenses) received by the Company bear to the total net proceeds
received by such Indemnified Holder from sales of Registrable Securities giving
rise to such obligations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Indemnified
Holder and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
13
Each of the Company and the Initial Purchaser agrees that it would not
be just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall any Holder
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages which
such Holder would have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors or any other Person controlling any of the
Company and (iii) acceptance of and payment for any of the Registrable
Securities.
7. Rules 144 and 144A. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
for so long as any Registrable Securities remain outstanding, if at any time the
Company is not required to file such reports, it will, upon the request of any
Holder or beneficial owner of Registrable Securities, make available such
information necessary to permit sales pursuant to Rule 144A under the Securities
Act. The Company further covenants that, for so long as any Registrable
Securities remain outstanding, it will use its reasonable best efforts to take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under
the Securities Act, as such rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of
14
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Company has not entered and will not enter into any
agreement with respect to any of its securities that will grant to any Person
piggyback registration rights with respect to a Registration Statement, except
to the extent any existing right has heretofore been waived.
(b) Adjustments Affecting Registrable Securities. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and the Holders of not less than a majority in Amount of
Registrable Securities; provided, however, that Section 6 and this Section 8(c)
may not be amended, modified or supplemented without the prior written consent
of the Company and each Holder (including, in the case of an amendment,
modification or supplement of Section 6, any Person who was a Holder of
Registrable Securities disposed of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Securities may be
given by Holders of at least a majority in Amount of the Registrable Securities
being sold by such Holders pursuant to such Registration Statement. Each Holder
of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant to
this Section 8(c), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder. Each Holder may waive
compliance with respect to any obligation of the Company under this Agreement as
it may apply or be enforced by such particular Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Registrable Securities, at the most
current address of such Holder set forth on the records of the security
registrar under the Indenture, in the case of Holders of Convertible Notes, and
in the stock ledger of the Company, in the case of Holders of common stock of
the Company.
15
(2) if to the Initial Purchaser:
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Equity Syndicate
with copies to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
2300 First City Tower
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: T. ▇▇▇▇ ▇▇▇▇▇, Esq.
(3) if to the Company, at the addresses as follows:
Pride International, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
with copies to:
▇▇▇▇▇ ▇▇▇▇▇, L.L.P.
One Shell Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when the addressor
receives facsimile confirmation, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed
16
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN MANHATTAN, NEW
YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Securities are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchaser on the
one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PRIDE INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
S-1