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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 17, 2024
HELMERICH & PAYNE, INC.
(Exact name of registrant as specified in
its charter)
DE |
|
1-4221 |
|
73-0679879 |
(State or other jurisdiction of Incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer Identification No.) |
222 North Detroit Avenue
Tulsa, OK 74120
(Address of principal executive offices
and zip code)
(918) 742-5531
(Registrant’s telephone number, including
area code)
N/A
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2.):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class |
|
Trading
symbol(s) |
|
Name of each exchange on which
registered |
Common Stock ($0.10 par value) |
|
HP |
|
NYSE |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth
company ¨
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. ¨
ITEM 1.01 |
ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. |
Notes and Indenture
On September 17, 2024,
Helmerich & Payne, Inc. (the “Company” or “we”) completed its previously announced private
offering (the “Offering”) of (i) $350,000,000 aggregate principal amount of its 4.650% senior notes due 2027 (the
“2027 Notes”), (ii) $350,000,000 aggregate principal amount of its 4.850% senior notes due 2029 (the “2029
Notes”) and (iii) $550,000,000 aggregate principal amount of its 5.500% senior notes due 2034 (the “2034
Notes” and, together with the 2027 Notes and the 2029 Notes, the “Notes”) to
persons reasonably believed to be qualified institutional buyers in the United States pursuant to Rule 144A under the
Securities Act of 1933, as amended (the “Securities Act”), and to certain non-U.S. persons in transactions outside the
United States pursuant to Regulation S under the Securities Act.
The
Notes were issued pursuant to that certain indenture, dated as of December 20, 2018 (the “Base Indenture”), by and among
the Company, Helmerich & Payne International Drilling Co. and Computershare
Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee
(the “Trustee”), as supplemented by (i) with respect to the 2027 Notes, the Third Supplemental Indenture, dated as of
September 17, 2024 (the “Third Supplemental Indenture”), by and between the Company and the Trustee, (ii) with respect
to the 2029 Notes, the Fourth Supplemental Indenture, dated as of September 17, 2024 (the “Fourth Supplemental Indenture”),
by and between the Company and the Trustee and (iii) with respect to the 2034 Notes, as supplemented by the Fifth Supplemental Indenture,
dated as of September 17, 2024 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the Third Supplemental
Indenture and the Fourth Supplemental Indenture, the “Indenture”), by and between the Company and the Trustee.
The 2027
Notes will mature on December 1, 2027 and bear interest at a rate of 4.650% per annum, the 2029 Notes will mature on December 1,
2029 and bear interest at a rate of 4.850% per annum and the 2034 Notes will mature on December 1, 2034 and bear interest at a rate
of 5.500% per annum. Interest on the Notes will be payable semi-annually on June 1 and December 1 of each year, beginning on
June 1, 2025, to persons who are registered holders of the Notes on the immediately preceding May 15 or November 15, respectively.
The Notes
are the Company’s general unsecured obligations and are effectively junior in right of payment to any of the Company’s future
secured debt to the extent of the value of the collateral therefor, equal in right of payment with all of the Company’s existing
and future unsecured unsubordinated debt, senior in right of payment to any of the Company’s future senior subordinated or subordinated
debt and structurally subordinated to all debt and other liabilities of the Company’s subsidiaries.
The
Company intends to use the net proceeds from the sale of the Notes, together with borrowings
under its term loan credit facility and cash on hand, to (i) finance the purchase price for its previously announced pending acquisition
of KCA Deutag International Limited, a private company limited by shares incorporated in Jersey (“KCA Deutag,” and such acquisition,
the “KCA Deutag Acquisition”), pursuant to that certain Sale and Purchase Agreement, dated as of July 25, 2024 (the “Purchase
Agreement”), among the Company, the Majority Sellers named therein, the Management Seller named therein, Ocorian Limited, a private
company limited by shares incorporated in Jersey, HP Global Holdings Limited, a private company limited by shares incorporated in Jersey
and a wholly owned subsidiary of the Company, and, for certain purposes set forth therein, KCA Deutag, (ii) repay certain of KCA
Deutag’s outstanding indebtedness and (iii) pay related fees and expenses.
If (i) the consummation of the KCA Deutag
Acquisition does not occur on or before the later of (x) October 25, 2025 and (y) such date to which we may agree to extend
the “Long Stop Date” under the Purchase Agreement (the “Special Mandatory Redemption Outside Date”), (ii) prior
to the Special Mandatory Redemption Outside Date, the Purchase Agreement is terminated without the consummation of the KCA Deutag Acquisition,
or (iii) we otherwise notify the Trustee that we will not pursue the consummation of the KCA Deutag Acquisition, we will be required
to redeem the Notes of each series then outstanding (such redemption, the “Special Mandatory Redemption”), at a special mandatory
redemption price equal to 101% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest to, but excluding,
the date upon which such Notes will be redeemed.
Prior to
November 1, 2027 (one month prior to the maturity date of the 2027 Notes), with respect to the 2027 Notes (the “2027 Notes
Par Call Date”), prior to November 1, 2029 (one month prior to the maturity date of the 2029 Notes), with respect to the 2029
Notes (the “2029 Notes Par Call Date”), and prior to September 1, 2034 (three months prior to the maturity date of the
2034 Notes), with respect to the 2034 Notes (the “2034 Notes Par Call Date”), the Company may redeem such Notes at its option,
in whole or in part, at any time and from time to time, at the applicable “make-whole” redemption price, plus accrued and
unpaid interest on the principal amount of the applicable series of Notes being redeemed to, but excluding, the redemption date. On or
after the 2027 Notes Par Call Date, in the case of the 2027 Notes, the 2029 Notes Par Call Date, in the case of the 2029 Notes, and the
2034 Notes Par Call Date, in the case of the 2034 Notes, as applicable, the Company may redeem such series of Notes, in whole or in part,
at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes being redeemed, plus accrued
and unpaid interest to, but excluding, the redemption date.
The Indenture
contains certain covenants that, among other things, limit the ability of the Company and its subsidiaries to incur certain liens; engage
in sale and lease-back transactions; and consolidate, merge or transfer all or substantially all of the assets of the Company. These covenants
are subject to a number of important exceptions, limitations and qualifications. The Indenture also contains customary events of default
with respect to the Notes.
The Notes have not been registered under the Securities
Act or any state or foreign securities laws and may not be offered or sold in the United States or to, or for the benefit of, U.S. persons
absent registration under, or an applicable exemption from, the registration requirements of the Securities Act and any applicable state
or foreign securities laws.
This Current Report on Form 8-K does not constitute
an offer to sell or purchase, or a solicitation of an offer to sell or purchase, any security.
The foregoing
description of the Notes and the Indenture does not purport to be complete and is qualified in its entirety by reference to the full text
of the Base Indenture, the Third Supplemental Indenture (including the form of 2027 Note attached thereto), the Fourth Supplemental Indenture
(including the form of 2029 Note attached thereto), and the Fifth Supplemental Indenture (including the form of 2034 Note attached thereto),
copies of which are filed as Exhibits 4.1, 4.2, 4.3 and 4.4, respectively, to this Current Report on Form 8-K and incorporated herein
by reference.
Registration Rights Agreement
In connection with the issuance of the Notes, the
Company also entered into a registration rights agreement, dated as of September 17, 2024 (the “Registration Rights Agreement”),
with the initial purchasers of the Notes named therein. Under the Registration Rights Agreement, the Company agreed, among other things,
to: (i) file a registration statement (the “Exchange Offer Registration Statement”) with the Securities and Exchange
Commission (the “SEC”) to register an offer to exchange each series of the Notes for freely tradeable notes having terms identical
in all material respects to each such series of Notes (the “Registered Exchange Offer”); (ii) use commercially reasonable
efforts to cause the Exchange Offer Registration Statement to become effective under the Securities Act not later than the later of (x) the
30th day following the Company’s filing of a Form 8-K or an amendment thereto including the financial statements of KCA Deutag
and pro forma financial information related to the Company’s acquisition of KCA Deutag required by Items 9.01(a) and 9.01(b) of
Form 8-K (the “KCAD Financials Form 8-K”) and (y) June 16, 2025; and (iii) use commercially reasonable
efforts to cause the Registered Exchange Offer to be completed not later than the later of (x) the 60th day following the Company’s
filing of the KCAD Financials Form 8-K and (y) July 14, 2025 (the “Exchange Offer Closing Deadline”), subject
to certain limitations.
If, among other events, the Registered Exchange
Offer is not completed by the Exchange Offer Closing Deadline, then special additional interest will accrue in an amount equal to 0.25%
per annum of the principal amount of the Notes, from and including the date on which such default shall occur to but excluding the date
on which such default is cured.
The foregoing description of the Registration Rights
Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement,
a copy of which is filed as Exhibit 4.5 to this Current Report on Form 8-K and incorporated herein by reference.
ITEM 2.03 |
CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT. |
The information set forth under the subheading
“Notes and Indenture” in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 2.03 by reference.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K
contains “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of
the Exchange Act. All statements other than statements of historical facts included in this communication are forward-looking statements.
Forward-looking statements may be identified by the use of forward-looking terminology such as “may,” “will,”
“expect,” “intend,” “estimate,” “anticipate,” “believe,” “predict,”
“project,” “target,” “continue,” or the negative thereof or similar terminology, and such include,
but are not limited to, statements regarding the consummation of the KCA Deutag Acquisition and the intended use of the net proceeds from
the Offering.
Forward-looking statements are
based upon current plans, estimates, and expectations that are subject to risks, uncertainties, and assumptions, many of which are beyond
our control and any of which could cause actual results to differ materially from those expressed in or implied by the forward-looking
statements. Although we believe that the expectations reflected in such forward-looking statements are reasonable, we can give no assurance
that such expectations will prove to be correct. The inclusion of such statements should not be regarded as a representation that such
plans, estimates, or expectations will be achieved. Factors that could cause actual results to differ materially from those expressed
in or implied by such forward-looking statements include, but are not limited to, our ability to consummate the KCA Deutag Acquisition
on the terms currently contemplated, risks and uncertainties related to economic, market or business conditions, and additional factors
disclosed in our 2023 Annual Report on Form 10-K, including under Part I, Item 1A— “Risk Factors” and
Part II, Item 7— “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
thereof, as updated by subsequent reports (including the Company’s Quarterly Reports on Form 10-Q) we file with the SEC.
All
forward-looking statements, expressed or implied, included in this communication are expressly qualified in their entirety by this cautionary
statement. This cautionary statement should also be considered in connection with any subsequent written or oral forward-looking statements
that we or persons acting on our behalf may issue. All forward-looking statements speak only as of the date they are made and are
based on information available at that time. Because of the underlying risks and uncertainties, we caution you against placing
undue reliance on these forward-looking statements. We assume no duty to update or revise these forward-looking statements based on changes
in internal estimates, expectations or otherwise, except as required by law.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit Number |
|
Description |
|
|
|
4.1 |
|
Indenture, dated December 20, 2018, among Helmerich & Payne, Inc., Helmerich & Payne International Drilling Co. and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (incorporated herein by reference to Exhibit 4.1 of the Company’s Form 8-K filed on December 20, 2018, SEC File No. 001-04221). |
4.2 |
|
Third Supplemental Indenture, dated September 17, 2024, between Helmerich & Payne, Inc. and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (including the form of 4.650% Senior Note due 2027). |
4.3 |
|
Fourth Supplemental Indenture, dated September 17, 2024, between Helmerich & Payne, Inc. and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (including the form of 4.850% Senior Note due 2029). |
4.4 |
|
Fifth Supplemental Indenture, dated September 17, 2024, between Helmerich & Payne, Inc. and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (including the form of 5.500% Senior Note due 2034). |
4.5 |
|
Registration Rights Agreement, dated September 17, 2024, among Helmerich & Payne, Inc. and the initial purchasers named therein. |
104 |
|
Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. |
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
|
HELMERICH & PAYNE, INC. |
|
|
|
By: |
/s/ William H. Gault |
|
Name: |
William H. Gault |
|
Title: |
Corporate Secretary |
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|
|
|
Date: |
September 17, 2024 |
Exhibit 4.2
HELMERICH & PAYNE, INC.
as Issuer
and
COMPUTERSHARE TRUST COMPANY, N.A. (AS SUCCESSOR
TO WELLS FARGO BANK, NATIONAL ASSOCIATION)
as Trustee
THIRD SUPPLEMENTAL INDENTURE
Dated as of September 17, 2024
to
INDENTURE
Dated as of December 20, 2018
Providing for Issuance of
4.650% SENIOR NOTES DUE 2027
TABLE
OF CONTENTS
Page
Article 1 |
DEFINITIONS AND INCORPORATION BY REFERENCE |
|
Section 1.01 |
Definitions |
1 |
Section 1.02 |
Rules of Construction |
5 |
|
|
|
Article 2 |
THE NOTES |
|
Section 2.01 |
Creation and Form |
5 |
Section 2.02 |
Execution and Authentication |
5 |
Section 2.03 |
Issuance of Additional Notes |
6 |
|
|
|
Article 3 |
REDEMPTION AND PURCHASE |
|
Section 3.01 |
Redemption and Purchase |
6 |
Section 3.02 |
Optional Redemption |
6 |
Section 3.03 |
Conditional Redemption |
7 |
Section 3.04 |
Special Mandatory Redemption |
7 |
|
|
|
Article 4 |
COVENANTS |
|
Section 4.01 |
Covenants |
8 |
Section 4.02 |
Limitation on Liens |
8 |
Section 4.03 |
Limitations on Sale and Lease-Back Transactions |
10 |
Section 4.04 |
Reports |
11 |
Section 4.05 |
Change of Control Offer |
11 |
|
|
|
Article 5 |
SUPPLEMENTAL INDENTURES |
|
Section 5.01 |
Amending Without Consent of Holders to Conform to the Description of Notes |
12 |
|
|
|
Article 6 |
MISCELLANEOUS |
|
Section 6.01 |
Third Supplemental Indenture Controls |
13 |
Section 6.02 |
No Recourse Against Others |
13 |
Section 6.03 |
Governing Law |
13 |
Section 6.04 |
No Adverse Interpretation of Other Agreements |
13 |
Section 6.05 |
Successors |
13 |
Section 6.06 |
Severability |
13 |
Section 6.07 |
Counterparts |
13 |
Section 6.08 |
Force Majeure |
14 |
Section 6.09 |
Table of Contents and Headings |
14 |
Section 6.10 |
The Trustee |
14 |
APPENDIX |
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|
|
APPENDIX |
Rule 144A/Regulation S Appendix |
Appendix - 1 |
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|
|
EXHIBIT |
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|
|
EXHIBIT A |
Form of Global Note |
Exhibit A – 1 |
This Third Supplemental Indenture, dated as of
September 17, 2024 (this “Third Supplemental Indenture”), between Helmerich & Payne, Inc., a Delaware corporation
(the “Company”), and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), a national
banking association organized under the laws of the United States of America, as trustee (the “Trustee”), supplements and
amends the Indenture, dated as of December 20, 2018 (the “Original Indenture,” and together with this Third Supplemental
Indenture, the “Indenture”).
RECITATIONS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore
executed and delivered the Original Indenture to provide for the issuance of the Company’s senior debt securities to be issued in
one or more series;
WHEREAS, Section 8.01 of the Original Indenture
provides, among other things, that the Company and the Trustee may without the consent of Holders enter into indentures supplemental to
the Original Indenture to, among other things, (a) add to, change or eliminate any of the provisions of the Original Indenture in
respect of one or more series of Securities provided that any such addition, change or elimination (i) shall neither (A) apply
to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only
when there is no such Security outstanding and (b) establish the form or terms of Securities of any series as permitted by Section 2.01
and Section 2.02 of the Original Indenture;
WHEREAS, the Company desires to provide and has
determined to authorize the issuance of (i) its 4.650% Senior Notes due 2027, and currently desires to issue Notes (defined below)
in the aggregate amount of $350,000,000 (the Initial Notes, as such term is defined below), and (ii) if and when issued pursuant
to a registered exchange offer for the Initial Notes or the filing of a shelf registration statement by the Company with the Securities
and Exchange Commission (the “SEC”), the Company’s 4.650% Senior Notes due 2027 (the Exchange Notes, as such term is
defined below, and together with the Initial Notes, the “Notes”), which for the avoidance of doubt, will constitute a single
new series of Securities, and to set forth the form and terms thereof;
WHEREAS, the Company proposes in and by this Third
Supplemental Indenture to supplement and amend the Original Indenture, but only insofar as it will apply to the Notes; and
WHEREAS, all action on the part of the Company
necessary to authorize the creation and issuance of the Notes has been duly taken.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE
WITNESSETH:
That, in order to establish the designation, form
and terms of, and to authorize the authentication and delivery of the Notes, and in consideration of the acceptance of the Notes by the
Holders thereof and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
(a) Capitalized
terms used herein and not otherwise defined shall have the respective meanings assigned thereto in the Original Indenture.
(b) Section 1.01
of the Original Indenture is amended and supplemented, with respect to the Notes, by inserting or restating, as the case may be, in their
appropriate alphabetical position, the following definitions:
“Additional Notes” means 4.650% Senior
Notes due 2027 of the Company as may be originally issued from time to time after the Initial Issuance Date under the terms of the Indenture
in addition to the Initial Notes and the Exchange Notes. The Additional Notes are “Additional Securities” within the meaning
of the Indenture, and shall be subject to the further provisions of the Indenture with respect thereto.
“Change of Control” means the occurrence
of any one of the following:
(a) the
sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the Company and the Subsidiaries taken as a whole to any “person”
(as that term is used in Rule 13d-3 under the Exchange Act) other than to the Company or one or more of the Subsidiaries or a combination
thereof or a person controlled by the Company or one or more of the Subsidiaries or a combination thereof; or
(b) the
consummation of any transaction (including without limitation, any merger, amalgamation or consolidation) the result of which is that
any “person” (as that term is used in Rule 13d-3 under the Exchange Act) (other than any Subsidiary) becomes the “beneficial
owner”(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding
Voting Stock of the Company, measured by voting power rather than number of shares (excluding a redomestication of the Company).
Notwithstanding the preceding or any provision
of Rule 13d-3 under the Exchange Act, a person or group shall not be deemed to beneficially own Voting Stock subject to a stock or
asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement
related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such
agreement.
Notwithstanding the foregoing, a transaction will
not be deemed to involve a Change of Control if (1)(A) the Company becomes a direct or indirect wholly owned Subsidiary of a holding
company (which shall include a parent company) and (B) the direct or indirect holders of the Voting Stock of such holding company
immediately following that transaction are substantially the same as, and hold in substantially the same proportions as, the holders of
the Company’s Voting Stock immediately prior to that transaction or (2) immediately following that transaction no person (other
than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50%
of the then-outstanding Voting Stock, measured by voting power rather than number of shares, of (A) a holding company (which shall
include a parent company) of which the Company is a direct or indirect wholly owned subsidiary, (B) a person to whom all or substantially
all of the assets of the Company and its Subsidiaries has been sold, leased, transferred, or otherwise conveyed, or (C) the surviving
person in a merger, consolidation or combination of the Company.
“Change of Control Offer” has the meaning
set forth in Section 4.05 of this Third Supplemental Indenture.
“Change of Control Price” has the meaning
set forth in Section 4.05 of this Third Supplemental Indenture.
“Change of Control Triggering Event”
means the occurrence of both a Change of Control and a Ratings Event. Notwithstanding the foregoing, no Change of Control Triggering Event
will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually
been consummated.
“Exchange Notes” means (1) the
4.650% Senior Notes due 2027 issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration
Rights Agreement and (2) Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities
Act.
“Fitch” means Fitch Ratings Inc., or
any successor thereof which is a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62)
of the Exchange Act.
“Initial Issuance Date” means September 17,
2024.
“Initial Notes” means (1) $350,000,000
aggregate principal amount of 4.650% Senior Notes due 2027 issued pursuant to the Indenture on the Initial Issuance Date and (2) Additional
Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act.
“Investment Grade” means a rating of
Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); a rating of BBB- or better
by S&P (or its equivalent under any successor rating category of S&P); a rating of BBB- or better by Fitch (or its equivalent
under any successor rating category of Fitch); and the equivalent investment grade rating from any replacement Rating Agency or Agencies
appointed by the Company.
“Joint Venture” means any partnership,
corporation or other entity in which up to and including 50% of the partnership interests, outstanding Capital Stock or other equity interests
is owned, directly or indirectly, by the Company and/or one or more Subsidiaries. A Joint Venture is not treated as a Subsidiary.
“KCA Deutag Acquisition” means the
acquisition by the Purchaser of the entire share capital of KCA Deutag International Limited, a private company limited by shares incorporated
in Jersey (“KCA Deutag”), from the Majority Sellers and all other shareholders of KCA Deutag pursuant to the Purchase Agreement.
“Moody’s” means Moody’s
Investors Service, Inc., a subsidiary of Moody’s Corporation, or any successor thereof which is a “nationally recognized
statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Purchase Agreement” means the Sale
and Purchase Agreement, dated as of July 25, 2024, by and among the Company, the majority sellers named therein (the “Majority
Sellers”), the management seller named therein, Ocorian Limited, a private company limited by shares incorporated in Jersey, HP
Global Holdings Limited, a private company limited by shares incorporated in Jersey and a wholly owned subsidiary of the Company (the
“Purchaser”), and, for certain purposes set forth therein, KCA Deutag, as it may be amended from time to time.
“Rating Agency” means each of Moody’s,
S&P and Fitch; provided, that if any of Moody’s, S&P and Fitch ceases to rate the Notes or fails to make a rating of
the Notes publicly available, the Company will appoint a replacement for such Rating Agency that is a “nationally recognized statistical
rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Ratings Event” means the ratings of
the Notes are downgraded by one or more gradations (including gradations within ratings categories as well as between rating categories)
and immediately following such downgrading, the Notes are rated below Investment Grade by any two Rating Agencies, on any date during
the period commencing upon the earlier of (a) the occurrence of a Change of Control and (b) the first public announcement
by the Company of the occurrence of any Change of Control or the Company’s intention to effect a Change of Control and ending 60
days following consummation of such Change of Control; provided, however, that a particular reduction in rating will not be deemed to
have occurred in respect of a particular Change of Control (and thus will not constitute a Change of Control Triggering Event) if the
Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform
the Trustee in writing at the Company’s or the Trustee’s request that the reduction was the result, in whole or in part, of
any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the
applicable Change of Control has occurred at the time of such reduction in rating); provided, further, that no Change of Control Triggering
Event shall occur if following such downgrade, the ratings of the Notes by two or more Rating Agencies are equal to or better than their
respective ratings on the date hereof.
“Registered Exchange Offer” means the
offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver to such Holders,
in exchange for the Initial Notes, a like aggregate principal amount of Exchange Notes registered under the Securities Act.
“S&P” means S&P Global Ratings,
a division of S&P Global, Inc., or any successor thereof which is a “nationally recognized statistical rating organization”
within the meaning of Section 3(a)(62) of the Exchange Act.
“Special Interest” means all Special
Interest then owing pursuant to Section 4 of the Registration Rights Agreement referred to in clause (1) of the definition of
“Registration Rights Agreement” in the Appendix. Unless the context indicates otherwise, all references to “interest”
in the Indenture or the Notes shall be deemed to include any Special Interest to the extent then applicable.
“Special Mandatory Redemption” has
the meaning specified in Section 3.04 of this Third Supplemental Indenture.
“Special Mandatory Redemption Date”
has the meaning specified in Section 3.04 of this Third Supplemental Indenture.
“Special Mandatory Redemption Outside Date”
has the meaning specified in Section 3.04 of this Third Supplemental Indenture.
“Special Mandatory Redemption Price”
has the meaning specified in Section 3.04 of this Third Supplemental Indenture.
“Special Mandatory Redemption Trigger Date”
has the meaning specified in Section 3.04 of this Third Supplemental Indenture.
“Treasury Rate” means, with respect
to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted each Business Day by the Board
of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for
the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors
of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor
designation or publication) (“H.15”) under the caption “U.S. government securities — Treasury constant
maturities — Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury
Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period
from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity
on H.15 exactly equal to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity
on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining
Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using
such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter
than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For
purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal
to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semiannual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States
Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally
distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call
Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two
or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria
of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury
security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities
at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semiannual yield
to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as
a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal
places. The Company will, prior to such Redemption Date, deliver to the Trustee an Officers’ Certificate setting forth the Treasury
Rate and showing the calculation of such in reasonable detail. The Trustee shall have no duty to verify the Company’s calculation
of the Treasury Rate.
“Voting Stock” of any specified person
as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors
of such person.
Other Definitions.
Term |
|
Defined in Section |
“Alternate Offer” |
|
Section 4.05(e) |
“Change of Control Offer” |
|
Section 4.05(a) |
“Change of Control Payment Date” |
|
Section 4.05(a) |
“Change of Control Price” |
|
Section 4.05 |
“Signature Law” |
|
Section 6.07 |
Section 1.02 Rules of
Construction.
Unless the context otherwise requires: (1) a
term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance
with U.S. GAAP; (3) “or” is not exclusive; (4) words in the singular include the plural, and in the plural
include the singular; (5) words implying any gender shall apply to all genders; (6) the term “merger”
includes an amalgamation, a statutory compulsory share exchange or a conversion of a corporation into a limited liability company, a partnership
or other entity and vice versa; and (7) provisions apply to successive events and transactions. All references in this Third
Supplemental Indenture to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this
Third Supplemental Indenture; and the term “herein,” “hereof,” “hereunder”
and any other word of similar import refers to this Third Supplemental Indenture.
Article 2
THE NOTES
Section 2.01 Creation
and Form.
Pursuant to Sections 2.01 and 2.02 of the Original
Indenture, there is hereby created a new series of Securities designated as the Company’s “4.650% Senior Notes due 2027.”
The Notes shall be subject to the provisions of the Rule 144A/Regulation S Appendix attached hereto (the “Appendix”),
shall be substantially in the form specified in Exhibit A to this Third Supplemental Indenture, shall have the terms set forth therein
and shall be entitled to the benefits of the other provisions of the Original Indenture as modified by this Third Supplemental Indenture
and specified herein.
Section 2.02 Execution
and Authentication.
On the Initial Issuance Date, the Trustee shall
authenticate and deliver (i) up to $350,000,000 of Initial Notes, (ii) at any time and from time to time thereafter, the Trustee
shall authenticate and deliver Additional Notes for original issue, and (iii) shall issue Exchange Notes in an exchange for Initial
Notes pursuant to a Registration Rights Agreement (as defined in the Appendix), in each case upon the Trustee’s receipt of an Issuer
Order in accordance with Section 2.03 of the Original Indenture. Such Issuer Order shall specify the amount of the Notes to be authenticated
and the date on which the issue of Notes is to be authenticated and either detail or attach the information from Section 2.02 and,
in the case of an issuance of Additional Notes pursuant to Section 2.03 of this Third Supplemental Indenture after the Initial Issuance
Date, shall certify that such issuance is in compliance with such Section 2.03 hereof. The Notes shall be issued initially in the
form of Global Securities, for which The Depository Trust Company shall act as Depositary. Notes in the form of Global Securities shall
bear the legends set forth on the form of Note attached hereto and such other legends as may be specified in the Appendix. The Notes may
be guaranteed by Subsidiaries as provided in Article IX of the Original Indenture in the future.
Section 2.03 Issuance
of Additional Notes.
After the Initial Issuance Date, the Company shall
be entitled to issue Additional Notes under the Indenture which shall have identical terms as the Notes issued on the Initial Issuance
Date, other than with respect to the size, issue date, issue price and first interest payment; provided that if the Additional
Notes are not fungible with the Notes for U.S. federal income tax purposes, then they must be issued with a different CUSIP number. The
Notes issued on the Initial Issuance Date and any Additional Notes under the Indenture shall be treated as a single class for all purposes
under the Indenture, including, without limitation, waivers, amendments and redemptions.
With respect to any Additional Notes, the Company
shall set forth in a resolution of the Board of Directors of the Company and an Officers’ Certificate, a copy of each which shall
be delivered to the Trustee, the following information:
(a) the
aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture;
(b) the
issue date, the issue price and the CUSIP number of such Additional Notes; provided, however, that if the Additional Notes are not fungible
with the Notes for U.S. federal income tax purposes, then they must be issued with a different CUSIP number;
(c) the
date from which interest shall accrue on such Additional Notes; and
(d) the
other statements required by Section 2.02 of the Original Indenture.
In addition to the foregoing, the Company shall
deliver to the Trustee an Issuer Order as described in Section 2.02, an Opinion of Counsel as to enforceability of the Additional
Notes, together with an Opinion of Counsel that all conditions precedent to the issuance and authentication of the Additional Notes have
been satisfied.
Article 3
REDEMPTION AND PURCHASE
Section 3.01 Redemption
and Purchase.
The Notes shall be subject to redemption by the
Company pursuant to the provisions of Article X of the Original Indenture and this Article 3 and Section 4.05(d).
Section 3.02 Optional
Redemption.
(a) Prior
to November 1, 2027 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any
time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of:
(i) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming
the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 20 basis points less (b) interest accrued to, but not including, the Redemption Date; and
(ii) 100%
of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest
thereon to, but not including, the Redemption Date.
The Company’s actions and determinations
in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall not be
responsible for calculating the Redemption Price or any component thereof.
Unless the Company defaults in payment of the Redemption
Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
The Company also may from time to time purchase
Notes in tender offers, open market purchases or negotiated transactions without prior notice to the holders of the Notes.
(b) On
or after the Par Call Date, the Company may redeem the Notes in whole or in part, at any time and from time to time, at a Redemption Price
equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including, the
Redemption Date.
Section 3.03 Conditional
Redemption.
Any redemption of Notes or notice thereof may,
at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including, but not limited to,
completion of a corporate transaction, consummation of a financing transaction or equity issuance, the proceeds of which are used to fund
such redemption, or other event. If any redemption is so subject to the satisfaction of one or more conditions precedent, the notice thereof
shall describe each such condition and, if applicable, shall state that, in the Company’s sole discretion, the Redemption Date may
be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), and/or
such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied
(or waived by the Company in its sole discretion) by the Redemption Date, or by the Redemption Date as so delayed, and/or that such notice
may be rescinded at any time by the Company if the Company determines in its sole discretion that any or all of such conditions will not
be satisfied (or waived). If any Redemption Date shall be delayed as contemplated by this Section 3.03 and the terms of the applicable
notice of redemption, such Redemption Date as so delayed may occur at any time after the original Redemption Date set forth in the applicable
notice of redemption and after the satisfaction (or waiver) of any applicable conditions precedent, including, without limitation, on
a date that is less than 10 days after the original Redemption Date or more than 60 days after the date of the applicable notice of redemption.
The Company shall provide written notice of the delay of such Redemption Date or the rescission of such notice of redemption (and rescission
and cancellation of the redemption of the Notes) to the Trustee no later than 10:00 a.m. Eastern Time (subject to DTC procedures)
on the Redemption Date or the Redemption Date as so delayed that all conditions to the redemption have been satisfied or if any such redemption
has been rescinded or delayed. Upon receipt of such notice of delay of such Redemption Date or rescission of such notice of redemption,
such Redemption Date shall be automatically delayed or such notice of redemption shall be automatically rescinded, as applicable, and
the redemption of the Notes shall be automatically delayed or rescinded and cancelled, as applicable, as provided in such notice. In addition,
the Company may provide in such notice that payment of the Redemption Price and performance of the Company’s obligations with respect
to such redemption may be performed by another Person.
Section 3.04 Special
Mandatory Redemption.
If (i) the consummation of the KCA Deutag
Acquisition does not occur on or before the later of (x) October 25, 2025 and (y) such date to which the Company may agree
to extend the “Long Stop Date” under the Purchase Agreement (the “Special Mandatory Redemption Outside Date”),
(ii) prior to the Special Mandatory Redemption Outside Date, the Purchase Agreement is terminated without the consummation of the
KCA Deutag Acquisition or (iii) the Company otherwise notifies the Trustee that it will not pursue the consummation of the KCA Deutag
Acquisition (the earlier of the date of delivery of such notice described in clause (iii), the Special Mandatory Redemption Outside Date
and the date the Purchase Agreement is terminated without consummation of the KCA Deutag Acquisition (the “Special Mandatory Redemption
Trigger Date”)), the Company will be required to redeem the Notes then outstanding (such redemption, the “Special Mandatory
Redemption”), at a special mandatory redemption price equal to 101% of the principal amount of the Notes to be redeemed plus accrued
and unpaid interest to, but excluding, the Special Mandatory Redemption Date (as defined below) (the “Special Mandatory Redemption
Price”).
In the event that the Company becomes obligated
to redeem the Notes pursuant to the Special Mandatory Redemption, it will promptly, and in any event not more than ten Business Days after
the Special Mandatory Redemption Trigger Date, cause notice to be delivered electronically or mailed to each holder of the Notes at its
registered address (such date of notification to the holders, the “redemption notice date”). The notice will inform holders
that the Notes will be redeemed no earlier than the third Business Day and no later than 30 days following the redemption notice date
(the “Special Mandatory Redemption Date”) and that all of the outstanding Notes to be redeemed will be redeemed at the Special
Mandatory Redemption Price on the Special Mandatory Redemption Date automatically and without any further action by the holders of the
Notes. No later than 10:00 a.m., New York City time, on the Special Mandatory Redemption Date, the Company will deposit with the Trustee
funds sufficient to pay the Special Mandatory Redemption Price. Unless the Company defaults in payment of the Special Mandatory Redemption
Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Notes to be redeemed.
Upon the occurrence of the closing of the KCA Deutag
Acquisition, this Section 3.04 shall terminate and cease to be of no further force or effect.
Article 4
COVENANTS
Section 4.01 Covenants.
The Company shall be subject to the covenants pursuant
to the provisions of Article III of the Original Indenture and this Article 4.
Section 4.02 Limitation
on Liens.
(a) So long as any Notes are outstanding,
the Company will not, nor will it permit any Subsidiary to, issue, assume or guarantee any Debt, if such Debt is secured by a mortgage
upon any properties of the Company or any Subsidiary or upon any securities or Debt of any Subsidiary (whether such properties, securities
or Debt is now owned or hereafter acquired) without in any such case effectively providing that the Notes shall be secured equally and
ratably with (or prior to) such Debt, except that the foregoing restrictions shall not apply to:
(i) mortgages on any property acquired
(and related contracts, intangibles and other assets incidental thereto or arising therefrom (including improvements and accessions thereto
and replacements or proceeds thereof)), constructed, developed, operated, altered, repaired or improved by the Company or any Subsidiary
(or mortgages on the securities of, or equity interests in, a special purpose Subsidiary which holds no material assets other than the
property being acquired, constructed, developed, operated, altered, repaired or improved) after the date of the Indenture which are created
within 360 days after such acquisition (or in the case of property constructed, developed, operated, altered, repaired or improved, after
the completion and commencement of commercial operation of such property, whichever is later), to secure or provide for all or any part
of the payment of the purchase price or cost thereof (including to secure indebtedness to finance all or any part of such purchase price
or cost); provided that in the case of such construction, development, operation, alteration, repair or improvement, the mortgages shall
not apply to any property owned by the Company or any Subsidiary before such construction, development, operation, alteration, repair
or improvement other than (1) unimproved real property on which the property so constructed, or the development, operation, alteration,
repair or improvement, is located or (2) personal property which is so improved (and related contracts, intangibles and other assets
incidental thereto or arising therefrom (including improvements and accessions thereto and replacements or proceeds thereof));
(ii) (1) mortgages
existing on the Initial Issuance Date, (2) existing mortgages on property acquired (including mortgages on any property acquired
from a person which is consolidated with or merged with or into the Company or a Subsidiary) or (3) mortgages outstanding at the
time any corporation, partnership or other entity becomes a Subsidiary or is consolidated with or merged with or into the Company or a
Subsidiary, including mortgages on the securities of, or equity interests in, such corporation, partnership or other entity; provided
that in the case of (3) such mortgages shall only apply to property owned by, or securities of or equity interests in, such corporation,
partnership or other entity at the time it becomes a Subsidiary or that is acquired thereafter other than from the Company or another
Subsidiary;
(iii) mortgages
in favor of the Company or any Subsidiary;
(iv) mortgages
in favor of domestic or foreign governmental bodies to secure advances or other payments or performance pursuant to any contract or statute
or to secure indebtedness incurred to finance the purchase price or cost of constructing, developing, operating, altering, repairing or
improving the property subject to such mortgages (and related contracts, intangibles and other assets incidental thereto or arising therefrom
(including improvements and accessions thereto and replacements or proceeds thereof)), including mortgages to secure Debt of the pollution
control or industrial revenue bond type;
(v) mortgages
consisting of pledges or deposits by the Company or any Subsidiary under workers’ compensation laws, unemployment insurance laws
or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Company or any Subsidiary is a party, or deposits to secure public or statutory obligations or regulatory obligations of
the Company or any Subsidiary or deposits of cash or United States of America government bonds to secure surety or appeal bonds to which
it is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred
in the ordinary course of business;
(vi) mortgages
imposed by law, including materialmen’s, carriers’, warehousemen’s, repairman’s, builders’, workmen’s,
landlords’ and mechanics’ liens, in each case for sums not overdue for a period of more than 45 days or being contested in
good faith by appropriate proceedings;
(vii) mortgages
for taxes, assessments or other governmental charges that are not yet delinquent or which are being contested in good faith by appropriate
proceedings or which thereafter can be paid without penalty;
(viii) mortgages
in favor of issuers of surety or performance and return of money bonds or letters of credit or bankers’ acceptances issued pursuant
to the request of and for the account of the Company or any Subsidiary in the ordinary course of its business;
(ix) mortgages consisting of encumbrances,
easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines,
roads, pipe lines, water mains and other similar purposes, or mortgages consisting of zoning or other restrictions as to the use of real
properties or mortgages incidental to the conduct of the business of the Company or a Subsidiary or to the ownership of its properties
which do not materially adversely affect the value of said properties or materially impair their use in the operation of the business
of the Company or a Subsidiary;
(x) mortgages
arising by virtue of any statutory or common law provisions or included in any customary deposit account agreements or related or similar
documentation relating to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depository institution;
(xi) mortgages
on the stock, partnership or other equity interest in any Joint Venture of the Company or any of its Subsidiaries, or in any Subsidiary
of the Company that owns an equity interest in a Joint Venture of the Company to secure Debt contributed and/or advanced solely to that
Joint Venture;
(xii) mortgages
on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(xiii) any
mortgage over goods (or any documents relating thereto) arising either in favor of a bank issuing a form of documentary credit in connection
with the purchase of such goods or by way of retention of title by the supplier of such goods where such goods are supplied on credit,
subject to such retention of title, and in both cases where such goods are acquired in the ordinary course of business;
(xiv) mortgages
in favor of a seller on any segregated cash earnest money deposits made by the Company or any of its Subsidiaries in connection with any
executed letter of intent or purchase agreement for a purchase of property or assets not prohibited by the indenture;
​(xv) any
mortgage on the funds and accounts securing any Debt of the Company or any Subsidiary pursuant to customary escrow arrangements pending
the release thereof, or pursuant to customary discharge, redemption or defeasance provisions; or
(xvi) any
extension, renewal, substitution, refinancing or replacement (or successive extensions, renewals, substitutions, refinancings or replacements),
in whole or in part, of any mortgage referred to in the foregoing clauses (a) through (o), inclusive; provided that (1) such
extension, renewal, substitution, refinancing or replacement mortgage shall not extend beyond the property or assets that secured or were
of the type that secured the mortgage extended, renewed, substituted, refinanced or replaced, plus improvements, accessions to and replacements
or proceeds thereof on such property or assets, unless otherwise permitted by this covenant, and (2) the Debt secured by such mortgage
is not greater in principal amount than the Debt secured by the mortgage extended, renewed, substituted, refinanced or replaced plus the
amount of fees and expenses and any prepayment premiums or breakage costs incurred in connection therewith.
(b) In addition to the foregoing exceptions
to the limitations set forth in Section 4.02(a), the Company and any Subsidiary may, without securing the Notes, issue, assume or
guarantee Debt secured by a mortgage that, taken together with certain Attributable Debt described in the following sentence, does not
in the aggregate exceed 15.0% of Consolidated Net Tangible Assets determined at the time of incurrence. The Attributable Debt to be aggregated
for purposes of this exception is all Attributable Debt in respect of Sale and Lease-Back Transactions of the Company and its Subsidiaries
under the exception in clause (2) of Section 4.03(e) existing at such time.
Section 4.03 Limitations
on Sale and Lease-Back Transactions. So long as any Notes are outstanding, the Company will not, nor will it permit any Subsidiary
to, enter into any Sale and Lease-Back Transaction, other than any Sale and Lease-Back Transaction:
(a) entered into within 360 days of the later
of the acquisition, construction, development, operation, alteration, repair, improvement or placing into service of the property subject
thereto by the Company or such Subsidiary;
(b) involving a lease of less than five years;
(c) entered into in connection with an industrial
revenue bond or pollution control financing;
(d) between or among the Company and/or one
or more Subsidiaries;
(e) as to which the Company or such Subsidiary
would be entitled to incur Debt secured by a mortgage on the property to be leased in an amount equal to the Attributable Debt with respect
to such Sale and Lease-Back Transaction without equally and ratably securing the Notes (1) under clauses (i) through (xvi) of
Section 4.02(a) or (2) under Section 4.02(b); or
(f) as to which the Company will apply an
amount equal to the net proceeds from the sale of the property so leased to (1) the retirement (other than any mandatory retirement),
within 360 days of the effective date of any such Sale and Lease-Back Transaction, of Notes or of Funded Debt of the Company or a Subsidiary
or (2) the acquisition, construction, development, operation, alteration, repair or improvement of other property, provided that
such property is owned by the Company or a Subsidiary free and clear of all mortgages.
Section 4.04 Reports.
The Company covenants to furnish to the Trustee,
within 15 days after the Company files the same with the SEC, copies of the annual reports and of the information, documents and other
reports that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act
or pursuant to Section 314 of the Trust Indenture Act; provided, however, that the Company will be deemed to have furnished such
reports to the Trustee if they have filed such reports with the SEC using the EDGAR filing system (or any successor thereto) and such
reports are publicly available.
At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act and the Notes are not freely transferrable under the Securities Act, upon the request
of a Holder of the Notes, the Company will promptly furnish or cause to be furnished the information specified under Rule 144A(d)(4) of
the Securities Act to such Holder, or to a prospective purchaser of a Note designated by such Holder, in order to permit compliance with
Rule 144A under the Securities Act.
Delivery of such reports, information and documents
to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive
knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s
or any other Person’s compliance with any of the covenants under the Indenture or the Notes (as to which the Trustee is entitled
to rely exclusively on Officers’ Certificates). The Trustee shall have no duty or obligation whatsoever to monitor or confirm, on
a continuing basis or otherwise, the Company’s or any other Person’s compliance with any of the covenants described herein
or to determine whether such reports, information or documents have been posted on any website or other online data system or filed with
the SEC through EDGAR (or other applicable system), to examine such reports, information, documents and other reports to ensure compliance
with the provisions of the Indenture, to ascertain the correctness or otherwise of the information or the statements contained therein
or to participate in any conference calls.
Section 4.05 Change
of Control Offer.
Upon the occurrence of a Change of Control Triggering
Event, each Holder of Notes will have the right to require the Company to purchase all or any part (equal to a minimum of $2,000 or an
integral multiple of $1,000 in excess thereof) of the Holder’s Notes at a purchase price in cash equal to 101% (the “Change
of Control Price”) of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase
(subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date),
except to the extent that the Company has exercised its right to redeem the Notes as described under Section 3.02 or as otherwise
set forth in this section.
(a) Within
60 days following the date upon which the Change of Control Triggering Event has occurred, or at the Company’s option, prior to
any Change of Control but after the public announcement of the transaction that constitutes or may constitute the Change of Control, except
to the extent that the Company has exercised its right to redeem the Notes as described under Section 3.02 or as otherwise set forth
in this section, the Company will send a notice (a “Change of Control Offer”) to each holder of Notes with a copy to the Trustee,
which notice will govern the terms of the Change of Control Offer, stating:
(i) that
a Change of Control Triggering Event with respect to Notes has occurred and that such holder has the right to require the Company to purchase
such holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to, but excluding, the date of purchase (subject to the right of holders of record on the relevant record date to receive interest
on the relevant Interest Payment Date);
(ii) the
circumstances regarding such Change of Control Triggering Event;
(iii) the
purchase date (which shall be (i) no earlier than 30 days nor later than 60 days from the date such notice is sent, if sent after
consummation of the Change of Control and (ii) on the date of the Change of Control, if sent prior to consummation of the Change
of Control, in each case, other than as may be required by law) (such date, the “Change of Control Payment Date”); and
(iv) the
instructions that a holder must follow in order to have its Notes purchased.
(b) Holders
of Notes electing to have Notes purchased pursuant to a Change of Control Offer will be required to surrender their Notes, with the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified
in the notice, or transfer their Notes to the paying agent by book-entry transfer pursuant to the applicable procedures of the Paying
Agent and DTC, prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
(c) The
Company may make a Change of Control Offer in advance of a Change of Control and the Change of Control Payment Date, and the Company’s
Change of Control Offer may be conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control
at the time of making the Change of Control Offer.
(d) If
Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw the Notes in a
Change of Control Offer, Alternate Offer or any other tender offer and the Company (or any third party making a Change of Control Offer,
Alternate Offer or other tender offer in lieu of the Company, as described below) purchases all of the Notes validly tendered and not
withdrawn by such Holders pursuant to such Change of Control Offer, Alternate Offer or other tender offer, as applicable, the Company
will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 10 days following such purchase
pursuant to the Change of Control Offer, Alternate Offer or other tender offer described above, as the case may be, to redeem all Notes
that remain outstanding following such purchase at a Redemption Price in cash equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of holders of record on the relevant record
date to receive interest on the relevant Interest Payment Date). Any such redemption pursuant to this Section 4.05(d) shall
be made in accordance with Article X of the Original Indenture.
(e) The
Company will not be required to make a Change of Control Offer if (1) a third party makes such an offer in the manner, at the times
and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all Notes properly
tendered and not withdrawn under its offer or (2) in connection with or in contemplation of any Change of Control, the Company has
made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than
the Change of Control Price and purchases all Notes properly tendered in accordance with the terms of such Alternate Offer.
(f) The
Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer.
(g) The
Holders of a majority in principal amount of the outstanding Notes may, on behalf of the holders of all Notes, in accordance with Section 8.02
of the Original Indenture, amend or waive the right of the Holders to require the Company to purchase all or any part of each holder’s
Notes as a consequence of a Change of Control Triggering Event.
Article 5
SUPPLEMENTAL INDENTURES
Section 5.01 Amending
Without Consent of Holders to Conform to the Description of Notes.
With respect to the Notes, in addition to the circumstances
described in Section 8.01 of the Original Indenture, the Company and the Trustee may amend or supplement the Indenture as it relates
to the Notes without the consent of any Holder of outstanding Notes to conform the text of the Indenture or the Notes to the “Description
of the Notes” set forth in the offering memorandum of the Company, dated September 10, 2024, relating to the initial offering
of the Notes.
Article 6
MISCELLANEOUS
Section 6.01 Third
Supplemental Indenture Controls.
To the extent that there is any conflict or inconsistency
between the Original Indenture and this Third Supplemental Indenture, the provisions of this Third Supplemental Indenture shall control.
Section 6.02 No
Recourse Against Others.
A director, officer, employee or stockholder of
the Company, as such, shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release shall be part of the consideration for the issue of the Notes.
Section 6.03 Governing
Law.
This Third Supplemental Indenture and the Notes
shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 6.04 No
Adverse Interpretation of Other Agreements.
This Third Supplemental Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company. Any such indenture, loan or debt agreement may not be used to interpret
the Indenture.
Section 6.05 Successors.
All agreements of the Company in the Indenture
and the Securities shall bind its successor. All agreements of the Trustee in the Indenture shall bind its successor.
Section 6.06 Severability.
In case any provision in this Third Supplemental
Indenture, Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 6.07 Counterparts.
This Third Supplemental Indenture shall be valid,
binding and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of
(i) in the case of this Third Supplemental Indenture and any certificate, agreement or other document to be signed in connection
with this Third Supplemental Indenture and the transactions contemplated hereby, other than any Notes, any electronic signature permitted
by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act,
and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature
Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic
signature (except in the case of any Notes) or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity,
legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely
upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature
(except in the case of any Notes), of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity
thereof. This Third Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original,
but such counterparts shall, together, constitute one and the same instrument. The exchange of copies of this Third Supplemental Indenture
and of signature pages by facsimile, PDF or other electronic transmission shall constitute effective execution and delivery of this
Third Supplemental Indenture as to the parties hereto and may be used in lieu of the original Third Supplemental Indenture for all purposes.
Notwithstanding the foregoing, original manual signatures shall be used for authentication by the Trustee of any Notes, and execution
or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
Section 6.08 Force
Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, (i) any act or provision of present or future law or regulation or governmental
authority, (ii) labor disputes, strikes or work stoppages, (iii) accidents, (iv) acts of war or terrorism, (v) civil
or military disturbances, (vi) nuclear or natural catastrophes or acts of God, (vii) epidemics or pandemics, (viii) disease,
(ix) quarantine, (x) national emergency, (xi) interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, (xii) communications system failure, (xiii) malware or ransomware, (xiv) the unavailability
of the Federal Reserve Bank wire, telex or other communication or wire facility, or (xv) unavailability of any securities clearing
system; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section 6.09 Table
of Contents and Headings.
The Table of Contents and headings of the Articles
and Sections of this Third Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 6.10 The
Trustee.
The recitals contained herein shall be taken as
statements of the Company, and the Trustee does not assume any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Third Supplemental Indenture, except that the Trustee represents that it is duly authorized
to execute and deliver this Third Supplemental Indenture and perform its obligations hereunder. This Third Supplemental Indenture is executed
and accepted by the Trustee subject to all the terms and conditions set forth in the Original Indenture with the same force and effect
as if those terms and conditions were repeated at length herein and made applicable to the Trustee with respect hereto.
[Signatures on following page]
IN WITNESS WHEREOF, the parties hereto have
caused this Third Supplemental Indenture to be duly executed as of the day and year first above written.
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Company: |
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HELMERICH & PAYNE, INC. |
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By: |
/s/ J. Kevin Vann |
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Name: |
J. Kevin Vann |
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Title: |
Senior Vice President and Chief Financial Officer |
[Signature Page to Third Supplemental Indenture]
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Trustee: |
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COMPUTERSHARE TRUST COMPANY, N.A. |
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By: |
/s/ Corey J. Dahlstrand |
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Name: |
Corey J. Dahlstrand |
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Title: |
Vice President |
[Signature Page to Third Supplemental Indenture]
RULE 144A/REGULATION S APPENDIX
Article 1
PROVISIONS RELATING TO INITIAL NOTES AND EXCHANGE NOTES
Section 1.01 Definitions
(a) Definitions.
For the purposes of this Appendix the following terms shall have the meanings indicated below:
“Depository” means The Depository
Trust Company, its nominees and their respective successors.
“Exchange Notes” means (1) the
4.650% Senior Notes due 2027 issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration
Rights Agreement and (2) Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities
Act.
“IAI” means an institution that
is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act, who are
not also QIBs.
“Initial Notes” means (1) $350,000,000
aggregate principal amount of the Company’s 4.650% Senior Notes due 2027 issued pursuant to the Indenture on the Initial Issuance
Date and (2) Additional Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act.
“Notes” means the Initial Notes,
the Additional Notes, if any, and the Exchange Notes, treated as a single class.
“Notes Custodian” means the
custodian with respect to a Global Note (as appointed by the Depository), or any successor Person thereto and shall initially be the Trustee.
“Notes Purchase Agreement” means
(1) with respect to the Initial Notes issued on the Initial Issuance Date, the purchase agreement dated September 10, 2024 among
the Company and the Initial Purchasers named therein, and (2) with respect to each issuance of Additional Notes, the purchase agreement
or underwriting agreement among the Company and the Persons purchasing such Additional Notes.
“QIB” means a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act.
“Registered Exchange Offer”
means the offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver
to such Holders, in exchange for the Initial Notes, a like aggregate principal amount of Exchange Notes registered under the Securities
Act.
“Registration Rights Agreement”
means (1) with respect to the Initial Notes issued on the Initial Issuance Date, the Registration Rights Agreement dated September 17,
2024 among the Company and the Initial Purchasers named therein and (2) with respect to each issuance of Additional Notes issued
in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the
Company and the Persons purchasing such Additional Notes under the related Notes Purchase Agreement.
“Shelf Registration Statement”
means a “shelf” registration statement of the Company filed with the SEC pursuant to a Registration Rights Agreement and providing
for the sales of Notes.
“Transfer Restricted Securities”
means Notes that bear or are required to bear the legend set forth in Section 2.03(b) hereof.
Section 1.02 Other
Definitions.
Term |
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Defined in Section |
“Agent Members” |
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2.01(b) |
“Distribution Compliance Period” |
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2.01(b) |
“Global Notes” |
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2.01(a) |
“IAI Notes” |
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2.01(a) |
“Regulation S” |
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2.01(a) |
“Regulation S Notes” |
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2.01(a) |
“Restricted Global Note” |
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2.01(a) |
“Rule 144A” |
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2.01(a) |
“Rule 144A Notes” |
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2.01(a) |
Article 2
THE NOTES
Section 2.01
(a) Form and
Dating. Initial Notes offered and sold to (i) QIBs in reliance on Rule 144A (“Rule 144A Notes”) under the
Securities Act (“Rule 144A”) or in reliance on Regulation S (“Regulation S Notes”) under the Securities Act
(“Regulation S”), and (ii) IAIs in reliance on an exemption from the registration requirements of the Securities Act
other than Rule 144A (“IAI Notes”), in each case as provided in a Notes Purchase Agreement, shall be issued initially
in the form of one or more permanent Notes in definitive, fully registered form without interest coupons with the Notes legend and restricted
Notes legend set forth in Exhibit A to this Third Supplemental Indenture (each, a “Restricted Global Note”), which shall
be deposited on behalf of the purchasers of the Initial Notes represented thereby with the Trustee, as custodian for the Depository (or
with such other custodian as the Depository may direct), and registered in the name of the Depository or a nominee of the Depository,
duly executed by the Company and authenticated by the Trustee as hereinafter provided. Beneficial interests in a Restricted Global Note
representing Initial Notes sold in reliance on either Rule 144A or Regulation S may be held through Euroclear or Clearstream, as
indirect participants in the Depository. The aggregate principal amount of the Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided. Additional Notes or other
Notes (including Exchange Notes), in each case that are not Transfer Restricted Notes, shall be issued in global form (with the global
Notes legend set forth in Exhibit A) or in certificated form as provided in the Indenture. Notes issued in global form and Restricted
Global Notes are sometimes referred to in this Appendix as “Global Notes.” The Global Notes are “Global Securities”
within the meaning of the Indenture, and shall be subject to the further provisions of the Indenture with respect thereto.
(b) Book-Entry
Provisions. This Section 2.01(b) shall apply only to a Global Note deposited with or on behalf of the Depository. The Company
shall execute and the Trustee shall, in accordance with this Section 2.01(b) and the Indenture, authenticate and deliver initially
one or more Global Notes that (a) shall be registered in the name of the Depository for such Global Note or Global Notes or the nominee
of such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions
or held by the Trustee as custodian for the Depository. If such Global Notes are Restricted Global Notes, then separate Global Notes shall
be issued to represent Rule 144A Notes, Regulation S Notes and IAI Notes so long as required by law or the Depository.
Members of, or participants in, the Depository
(“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depository
or by the Trustee as the custodian of the Depository or under such Global Note, and the Company, the Trustee and any agent of the Company
or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial interest
in any Global Note.
Until the 40th day after the later of the commencement
of the offering of any Initial Notes and the original issue date of such Initial Notes (such period, the “Distribution Compliance
Period”), a beneficial interest in a Restricted Global Note representing Regulation S Notes may be transferred to a Person who takes
delivery in the form of an interest in a Restricted Global Note representing Rule 144A Notes only if the transferor first delivers
to the Trustee a written certificate (in the form provided in the form of Note in Exhibit A) to the effect that such transfer is
being made to a Person who the transferor reasonably believes is purchasing for its own account or accounts as to which it exercises sole
investment discretion and that such Person is a QIB, in each case in a transaction meeting the requirements of Rule 144A and in accordance
with any applicable securities laws of any state of the United States or any other jurisdiction. After the expiration of the Distribution
Compliance Period, such certification requirements shall not apply to such transfers of beneficial interests in a Restricted Global Note
representing Regulation S Notes.
Beneficial interests in a Restricted Global Note
representing Rule 144A Notes may be transferred to a Person who takes delivery in the form of an interest in a Restricted Global
Note representing Regulation S Notes, whether before or after the expiration of the Distribution Compliance Period, only if the transferor
first delivers to the Trustee a written certificate (in the form provided in the form of Note in Exhibit A) to the effect that such
transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(c) Certificated
Notes. Except as provided in the Indenture, owners of beneficial interests in Restricted Global Notes shall not be entitled to receive
physical delivery of certificated Notes. Certificated Notes shall not be exchangeable for beneficial interests in Global Notes.
Section 2.02 Authentication.
The Trustee shall authenticate and deliver Notes as provided in the Indenture.
Section 2.03 Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes.
(1) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depository, in accordance with the
Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor
of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depository’s
procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the
Global Note. The Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person
specified in such instructions a beneficial interest in the Global Note and to debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(2) Notwithstanding
any other provisions of this Appendix, a Global Note may not be transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(3) In
the event that a Restricted Global Note is exchanged for Notes in certificated form pursuant to the Indenture, prior to the effectiveness
of a Shelf Registration Statement with respect to such Notes, such Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of this Section 2.03 (including the certification requirements set forth on the reverse
of the Initial Notes intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case may be) and such other
procedures as may from time to time be adopted by the Company.
(b) Restricted
Notes Legend.
(1) Except
as permitted by the following paragraphs (2) and (3), each Note certificate evidencing the Restricted Global Notes (and all Notes
issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.”
(2) Upon
any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Restricted Global
Note) pursuant to Rule 144 under the Securities Act, the Registrar shall permit the transferee thereof to exchange such Transfer
Restricted Security for a certificated Note that does not bear the legend set forth above and rescind any restriction on the transfer
of such Transfer Restricted Security, if the transferor thereof certifies in writing to the Registrar that such sale or transfer was made
in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Note).
(3) After
a transfer of any Initial Note pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect
to such Initial Note, all requirements pertaining to legends on such Initial Note will cease to apply, any requirement that any such
Initial Note issued to certain Holders be issued in global form will cease to apply, and a certificated Initial Note or an Initial Note
in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial
Note upon exchange of such transferring Holder’s certificated Initial Note or directions to transfer such Holder’s interest
in the Global Note, as applicable.
(c) Exchange
of Initial Notes for Exchange Notes. The Initial Notes may be exchanged for Exchange Notes pursuant to the terms of the Registered
Exchange Offer. The Trustee shall make the exchange as follows:
(1) The
Company shall present the Trustee with an Officers’ Certificate certifying the following:
(A) upon
issuance of the Exchange Notes, the transactions contemplated by the Registered Exchange Offer have been consummated; and
(B) the
principal amount of Initial Notes properly tendered in the Registered Exchange Offer that are represented by a Global Note or by Global
Notes and the principal amount of Initial Notes properly tendered in the Registered Exchange Offer that are represented by individual
Initial Notes, the name of each Holder of such individual Initial Notes, the principal amount properly tendered in the Registered Exchange
Offer by each such Holder and the name and address to which individual Registered Exchange Notes shall be registered and sent for each
such Holder.
The Trustee, upon receipt of (i) such Officers’
Certificate, (ii) an Opinion of Counsel to the Company addressed to the Trustee of the Notes to the effect that the Exchange Notes
have been registered under Section 5 of the Securities Act, and the Indenture has been qualified under the Trust Indenture Act and
(iii) an Issuer Order, shall authenticate a Global Note or Global Notes for Exchange Notes in aggregate principal amount equal to
the aggregate principal amount of Initial Notes represented by a Global Note or by Global Notes indicated in such Officers’ Certificate
as having been properly tendered.
If the principal amount of the Global Note or Global
Notes for the Exchange Notes is less than the principal amount of the Global Note or Global Notes for the Initial Notes, the Trustee shall
make an endorsement on such Global Note or Global Notes for Initial Notes indicating a reduction in the principal amount represented thereby.
EXHIBIT A
FACE OF 2027 NOTE
[GLOBAL SECURITY LEGEND]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS
NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.07(a) OF THE INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY
AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.1
1
These paragraphs should be included only if the Security is a Global Security
[RESTRICTED NOTES LEGEND]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.2
2
These paragraphs should be included only if the Security is a Restricted Global
Note.
HELMERICH & PAYNE, INC.
4.650% SENIOR NOTE DUE 2027
No.
CUSIP No.______________________ |
$____________________ |
ISIN No.______________________
Helmerich & Payne, Inc., a Delaware
corporation (the “Company”), for value received promises to pay to ____________________, or registered assigns, the principal
sum of ____________________ Dollars [or such greater or lesser amount as is indicated on the Schedule of Exchanges of Interests in the
Global Securities on the other side of this Note]3
on December 1, 2027.
Interest Payment Dates: June 1 and December 1,
commencing June 1, 2025
Record Dates: May 15 and November 15
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.
3
To be included only if the Note is a Global Security.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused
this Note to be signed manually or by facsimile by one of its duly authorized officers.
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HELMERICH & PAYNE, INC. |
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By: |
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Dated:
Certificate of Authentication:
This is one of
the Notes referred to in the within-
mentioned Indenture.
COMPUTERSHARE TRUST COMPANY, N.A., as Trustee
Dated:
REVERSE OF NOTE
HELMERICH & PAYNE, INC.
4.650% SENIOR NOTE DUE 2027
This Security is one of a duly authorized issue
of 4.650% Senior Notes due 2027 (the “Notes”) of Helmerich & Payne, Inc., a Delaware corporation (the “Company”),
issued under the Indenture referred to herein.
1. Interest.
The Company promises to pay interest on the unpaid principal amount of this Note at a rate of 4.650% per annum. [In addition, the Company
will pay Special Interest if and to the extent required by the Registration Rights Agreement, dated as of September 17, 2024, among
the Company and the other parties named on the signature pages thereof.]4
The Company will pay interest semi-annually on June 1 and December 1 of each year (each an “Interest Payment Date”),
beginning June 1, 2025, or if any such day is not a Business Day, on the next succeeding Business Day. Interest on this Note will
accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from September 17,
2024; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date. Further, to the extent lawful, the Company shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue principal and interest (without regard to any applicable grace period), at the same rate. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method
of Payment. The Company will pay interest on this Note (except defaulted interest) to the Persons who are registered Holders of this
Note at the close of business on the record date next preceding the Interest Payment Date, even if this Note is canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender this Note to a Paying Agent to collect payments of principal.
The Company will pay the principal of and interest on this Note in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Security (including principal
and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company.
The Company will make all payments in respect of a certificated Security (including principal and interest) at the Corporate Trust Office
of the Trustee or at the office or agency of the Paying Agent maintained for such purpose in The City of New York or, at its option, by
mailing a check to the registered address of each Holder thereof; provided, however, that payments on a certificated Security of
not less than $1,000,000 aggregate principal amount of Securities will be made by wire transfer to a U.S. dollar account maintained by
the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the
Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or
such other date as the Trustee may accept in its discretion).
3. Ranking
and Guarantees. This Note is a senior unsecured obligation of the Company, and may in the future be guaranteed by Subsidiaries of
the Company as provided in the Indenture (a “Guarantee”). A Guarantee may be released in accordance with the terms of the
Indenture. References herein to the Indenture or the Securities shall be deemed also to refer to the Guarantees, if any, set forth in
the Indenture except where the context otherwise requires.
4. Optional
Redemption; Special Mandatory Redemption; Purchases upon Change of Control Triggering Event.
(a) Prior
to November 1, 2027 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any
time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of: (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to, but not including,
the Redemption Date; and (ii) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid
interest thereon to, but not including, the Redemption Date.
4
To be included for Initial Notes
The Company’s actions and determinations
in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall not be
responsible for calculating the Redemption Price or any component thereof.
Unless the Company defaults in payment of the Redemption
Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
The Company also may from time to time purchase
Notes in tender offers, open market purchases or negotiated transactions without prior notice to the holders of the Notes.
On or after the Par Call Date, the Company may
redeem the Notes in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount of
the Notes being redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
The Notes may also be redeemed in certain circumstances
described in Section 4.05(d) of the Third Supplemental Indenture.
(b) Upon
the occurrence of a Change of Control Triggering Event, each holder of Notes will have the right to require the Company to purchase all
or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of the holder’s Notes at a purchase price in cash
equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject
to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date), subject
to the limitations set forth in the Indenture.
(c) The
Notes are subject to redemption pursuant to Section 3.04 of the Third Supplemental Indenture.
5. Paying
Agent and Registrar. Initially, Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of the Company’s Subsidiaries may act in any such capacity.
6. Indenture.
The Company issued this Note under an Indenture dated as of December 20, 2018 (the “Original Indenture”) and the Third
Supplemental Indenture thereto dated as of September 17, 2024 (the “Third Supplemental Indenture”, together with the
Original Indenture and as amended, supplemented or otherwise modified from time to time, the “Indenture”) between the Company
and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association) (the “Trustee”). The terms
of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb). This Note is subject to all such terms, and Holders are referred to the Indenture and
the Trust Indenture Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be controlling (to the extent permitted by law). The Company initially
has issued $350,000,000 aggregate principal amount of Notes. The Company may issue Additional Notes of the same series as this Note under
the Indenture, provided that if the Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, then they must
be issued with a different CUSIP number. Capitalized terms used but not defined in this Security have the respective meanings given to
such terms in the Indenture.
7. Denominations,
Transfer, Exchange. The Securities are issuable only in registered form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of this Security may be registered and this Security may be exchanged only as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any transfer tax or similar governmental charge or other fee required by law and payable in connection therewith.
The Registrar need not exchange or register the transfer of this Security during the period between a record date and the corresponding
Interest Payment Date.
8. Persons
Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
9. Amendments
and Waivers. Subject to certain exceptions and limitations, the Indenture or this Security may be amended or supplemented with the
consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, and compliance in a particular instance
by the Company with any provision of the Indenture with respect to the Notes may be waived (other than certain provisions, including any
continuing Default or Event of Default in the payment of the principal of or interest on the Notes) by the Holders of a majority in aggregate
principal amount of the Notes then outstanding in accordance with the terms of Section 8.02 of the Indenture. Without the consent
of any Holder, the Company and the Trustee may amend or supplement this Security as provided in Section 8.01 of the Indenture.
The right of any Holder to participate in any consent
required or sought pursuant to any provision of the Indenture (and the obligation of the Company to obtain any such consent otherwise
required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of this Note as of
a record date fixed by the Company in accordance with the terms of the Indenture.
10. Defaults
and Remedies. If an Event of Default (other than certain Events of Default relating to bankruptcy events as provided in the Indenture)
occurs and is continuing, either the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes may declare the
principal amount of the Notes to be due and payable immediately. If any Event of Default relating to bankruptcy events as provided in
the Indenture occurs, the principal amount of the Notes will be automatically due and payable immediately. However, any time after an
acceleration with respect to the Notes has occurred, but before a judgment or decree based on such acceleration has been obtained, the
Holders of a majority in principal amount of outstanding Notes may, under some circumstances, rescind and annul such acceleration. The
majority-holders, however, may not annul or waive a continuing default in payment of principal of, premium, if any, or interest on the
Notes.
11. No
Recourse Against Others. A director, officer, employee or stockholder of the Company, as such, shall not have any liability for any
obligations of the Company under this Security or the Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Holder by accepting this Note waives and releases all such liability. The waiver and release are part of the consideration
for the issuance of this Note.
12. Authentication.
This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that this Note has been authenticated
under the Indenture.
13. CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has
caused a CUSIP number to be printed on this Note as a convenience to the Holders of this Note. No representation is made as to the correctness
of such number either as printed on this Note or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on this Note.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by
the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform
Gifts to Minors Act).
15. [Additional
Rights of Holders of Restricted Global Securities and Restricted Definitive Securities. In addition to the rights provided to Holders
of Securities under the Indenture, Holders of Securities will have the rights set forth in the Registration Rights Agreement, dated as
of September 17, 2024, among the Company and the other parties named on the signature pages thereof.]5
5
Delete for Exchange Note
16. Governing
Law. The Indenture and this Note shall be governed by and construed in accordance with, the laws of the State of New York.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to it at:
Helmerich & Payne, Inc.
222 North Detroit Avenue
Tulsa, Oklahoma 74120
Attention: Chief Legal Officer
E-mail: investor.relations@hpinc.com
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign
and transfer this Security to:
(Insert assignee’s social security or tax I.D. number)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint _______________ as agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Date: _________________________________________________________
Your Signature:
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee:
(Participant in a Recognized Signature Guaranty Medallion Program)
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
SECURITY6
The following increases or decreases in the principal
amount of this Global Security have been made:
Date of
Transaction |
|
Amount of
Decrease in
Principal Amount
of Global Security |
|
Amount of
Increase in
Principal Amount
of Global Security |
|
Principal Amount
of Global Security
Following Such
Decrease (or
Increase) |
|
Signature of
Authorized
Signatory, Trustee
or Securities
Custodian |
|
|
|
|
|
|
|
|
|
6
This Schedule should be included only if the Note is a Global Security.
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased
by the Company pursuant to Section 4.05 of the Third Supplemental Indenture, check the box below:
¨
If you want to elect to have only part of the Security
purchased by the Company pursuant to Section 4.05 of the Third Supplemental Indenture, state the amount you elect to have purchased:
$_________
Date:
________________________________
|
Your Signature: |
|
|
|
|
|
(Sign exactly as your name appears on the face of this Security) |
|
|
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Tax Identification No.: |
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Signature Guarantee:7
________________________________
7
Participant in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
Exhibit 4.3
HELMERICH & PAYNE, INC.
as Issuer
and
COMPUTERSHARE TRUST COMPANY, N.A. (AS SUCCESSOR
TO WELLS FARGO BANK, NATIONAL ASSOCIATION)
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of September 17, 2024
to
INDENTURE
Dated as of December 20, 2018
Providing for Issuance of
4.850% SENIOR NOTES DUE 2029
TABLE
OF CONTENTS
|
|
|
Page |
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE |
|
Section 1.01 |
|
Definitions |
1 |
Section 1.02 |
|
Rules of Construction |
5 |
|
|
|
|
Article 2
THE NOTES |
|
Section 2.01 |
|
Creation and Form |
5 |
Section 2.02 |
|
Execution and Authentication |
5 |
Section 2.03 |
|
Issuance of Additional Notes |
6 |
|
|
|
|
Article 3
REDEMPTION AND PURCHASE |
|
Section 3.01 |
|
Redemption and Purchase |
6 |
Section 3.02 |
|
Optional Redemption |
6 |
Section 3.03 |
|
Conditional Redemption |
7 |
Section 3.04 |
|
Special Mandatory Redemption |
7 |
|
|
|
|
Article 4
COVENANTS |
|
Section 4.01 |
|
Covenants |
8 |
Section 4.02 |
|
Limitation on Liens |
8 |
Section 4.03 |
|
Limitations on Sale and Lease-Back Transactions |
10 |
Section 4.04 |
|
Reports |
11 |
Section 4.05 |
|
Change of Control Offer |
11 |
|
|
|
|
Article 5
SUPPLEMENTAL INDENTURES |
|
Section 5.01 |
|
Amending Without Consent of Holders to Conform to the Description
of Notes |
12 |
|
|
|
|
Article 6
MISCELLANEOUS |
|
Section 6.01 |
|
Fourth Supplemental Indenture Controls |
13 |
Section 6.02 |
|
No Recourse Against Others |
13 |
Section 6.03 |
|
Governing Law |
13 |
Section 6.04 |
|
No Adverse Interpretation of Other Agreements |
13 |
Section 6.05 |
|
Successors |
13 |
Section 6.06 |
|
Severability |
13 |
Section 6.07 |
|
Counterparts |
13 |
Section 6.08 |
|
Force Majeure |
14 |
Section 6.09 |
|
Table of Contents and Headings |
14 |
Section 6.10 |
|
The Trustee |
14 |
APPENDIX
APPENDIX | |
Rule 144A/Regulation S Appendix | |
Appendix - 1 |
EXHIBIT
EXHIBIT A | |
Form of Global Note | |
Exhibit A – 1 |
This Fourth Supplemental Indenture, dated as of
September 17, 2024 (this “Fourth Supplemental Indenture”), between Helmerich & Payne, Inc., a Delaware
corporation (the “Company”), and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association),
a national banking association organized under the laws of the United States of America, as trustee (the “Trustee”), supplements
and amends the Indenture, dated as of December 20, 2018 (the “Original Indenture,” and together with this Fourth Supplemental
Indenture, the “Indenture”).
RECITATIONS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore
executed and delivered the Original Indenture to provide for the issuance of the Company’s senior debt securities to be issued
in one or more series;
WHEREAS, Section 8.01 of the Original Indenture
provides, among other things, that the Company and the Trustee may without the consent of Holders enter into indentures supplemental
to the Original Indenture to, among other things, (a) add to, change or eliminate any of the provisions of the Original Indenture
in respect of one or more series of Securities provided that any such addition, change or elimination (i) shall neither (A) apply
to any Security of any series created prior to the execution of such supplemental Indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective
only when there is no such Security outstanding and (b) establish the form or terms of Securities of any series as permitted by
Section 2.01 and Section 2.02 of the Original Indenture;
WHEREAS, the Company desires to provide and has
determined to authorize the issuance of (i) its 4.850% Senior Notes due 2029, and currently desires to issue Notes (defined below)
in the aggregate amount of $350,000,000 (the Initial Notes, as such term is defined below), and (ii) if and when issued pursuant
to a registered exchange offer for the Initial Notes or the filing of a shelf registration statement by the Company with the Securities
and Exchange Commission (the “SEC”), the Company’s 4.850% Senior Notes due 2029 (the Exchange Notes, as such term is
defined below, and together with the Initial Notes, the “Notes”), which for the avoidance of doubt, will constitute a single
new series of Securities, and to set forth the form and terms thereof;
WHEREAS, the Company proposes in and by this Fourth
Supplemental Indenture to supplement and amend the Original Indenture, but only insofar as it will apply to the Notes; and
WHEREAS, all action on the part of the Company
necessary to authorize the creation and issuance of the Notes has been duly taken.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That, in order to establish the designation, form
and terms of, and to authorize the authentication and delivery of the Notes, and in consideration of the acceptance of the Notes by the
Holders thereof and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
(a) Capitalized
terms used herein and not otherwise defined shall have the respective meanings assigned thereto in the Original Indenture.
(b) Section 1.01
of the Original Indenture is amended and supplemented, with respect to the Notes, by inserting or restating, as the case may be, in their
appropriate alphabetical position, the following definitions:
“Additional Notes” means 4.850% Senior
Notes due 2029 of the Company as may be originally issued from time to time after the Initial Issuance Date under the terms of the Indenture
in addition to the Initial Notes and the Exchange Notes. The Additional Notes are “Additional Securities” within the meaning
of the Indenture, and shall be subject to the further provisions of the Indenture with respect thereto.
“Change of Control” means the occurrence
of any one of the following:
(a) the
sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the Company and the Subsidiaries taken as a whole to any “person”
(as that term is used in Rule 13d-3 under the Exchange Act) other than to the Company or one or more of the Subsidiaries or a combination
thereof or a person controlled by the Company or one or more of the Subsidiaries or a combination thereof; or
(b) the
consummation of any transaction (including without limitation, any merger, amalgamation or consolidation) the result of which is that
any “person” (as that term is used in Rule 13d-3 under the Exchange Act) (other than any Subsidiary) becomes the “beneficial
owner”(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding
Voting Stock of the Company, measured by voting power rather than number of shares (excluding a redomestication of the Company).
Notwithstanding the preceding or any provision
of Rule 13d-3 under the Exchange Act, a person or group shall not be deemed to beneficially own Voting Stock subject to a stock
or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar
agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated
by such agreement.
Notwithstanding the foregoing, a transaction will
not be deemed to involve a Change of Control if (1)(A) the Company becomes a direct or indirect wholly owned Subsidiary of a holding
company (which shall include a parent company) and (B) the direct or indirect holders of the Voting Stock of such holding company
immediately following that transaction are substantially the same as, and hold in substantially the same proportions as, the holders
of the Company’s Voting Stock immediately prior to that transaction or (2) immediately following that transaction no person
(other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more
than 50% of the then-outstanding Voting Stock, measured by voting power rather than number of shares, of (A) a holding company (which
shall include a parent company) of which the Company is a direct or indirect wholly owned subsidiary, (B) a person to whom all or
substantially all of the assets of the Company and its Subsidiaries has been sold, leased, transferred, or otherwise conveyed, or (C) the
surviving person in a merger, consolidation or combination of the Company.
“Change of Control Offer” has the
meaning set forth in Section 4.05 of this Fourth Supplemental Indenture.
“Change of Control Price” has the
meaning set forth in Section 4.05 of this Fourth Supplemental Indenture.
“Change of Control Triggering Event”
means the occurrence of both a Change of Control and a Ratings Event. Notwithstanding the foregoing, no Change of Control Triggering
Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has
actually been consummated.
“Exchange Notes” means (1) the
4.850% Senior Notes due 2029 issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration
Rights Agreement and (2) Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities
Act.
“Fitch” means Fitch Ratings Inc.,
or any successor thereof which is a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62)
of the Exchange Act.
“Initial Issuance Date” means September 17,
2024.
“Initial Notes” means (1) $350,000,000
aggregate principal amount of 4.850% Senior Notes due 2029 issued pursuant to the Indenture on the Initial Issuance Date and (2) Additional
Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act.
“Investment Grade” means a rating
of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); a rating of BBB- or
better by S&P (or its equivalent under any successor rating category of S&P); a rating of BBB- or better by Fitch (or its
equivalent under any successor rating category of Fitch); and the equivalent investment grade rating from any replacement Rating
Agency or Agencies appointed by the Company.
“Joint Venture” means any partnership,
corporation or other entity in which up to and including 50% of the partnership interests, outstanding Capital Stock or other equity
interests is owned, directly or indirectly, by the Company and/or one or more Subsidiaries. A Joint Venture is not treated as a Subsidiary.
“KCA
Deutag Acquisition” means the acquisition by the Purchaser of the entire share capital of KCA Deutag International Limited,
a private company limited by shares incorporated in Jersey (“KCA Deutag”), from the Majority Sellers and all other shareholders
of KCA Deutag pursuant to the Purchase Agreement.
“Moody’s” means Moody’s
Investors Service, Inc., a subsidiary of Moody’s Corporation, or any successor thereof which is a “nationally recognized
statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Purchase
Agreement” means the Sale and Purchase Agreement, dated as of July 25, 2024, by and among the Company, the majority
sellers named therein (the “Majority Sellers”), the management seller named therein, Ocorian Limited, a private company limited
by shares incorporated in Jersey, HP Global Holdings Limited, a private company limited by shares incorporated in Jersey and a wholly
owned subsidiary of the Company (the “Purchaser”), and, for certain purposes set forth therein, KCA Deutag, as it may be
amended from time to time.
“Rating Agency” means each of Moody’s,
S&P and Fitch; provided, that if any of Moody’s, S&P and Fitch ceases to rate the Notes or fails to make a rating
of the Notes publicly available, the Company will appoint a replacement for such Rating Agency that is a “nationally recognized
statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Ratings Event” means the ratings
of the Notes are downgraded by one or more gradations (including gradations within ratings categories as well as between rating categories)
and immediately following such downgrading, the Notes are rated below Investment Grade by any two Rating Agencies, on any date during
the period commencing upon the earlier of (a) the occurrence of a Change of Control and (b) the first public announcement
by the Company of the occurrence of any Change of Control or the Company’s intention to effect a Change of Control and ending 60
days following consummation of such Change of Control; provided, however, that a particular reduction in rating will not be deemed to
have occurred in respect of a particular Change of Control (and thus will not constitute a Change of Control Triggering Event) if the
Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or
inform the Trustee in writing at the Company’s or the Trustee’s request that the reduction was the result, in whole or in
part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether
or not the applicable Change of Control has occurred at the time of such reduction in rating); provided, further, that no Change of Control
Triggering Event shall occur if following such downgrade, the ratings of the Notes by two or more Rating Agencies are equal to or better
than their respective ratings on the date hereof.
“Registered Exchange Offer” means
the offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver to such
Holders, in exchange for the Initial Notes, a like aggregate principal amount of Exchange Notes registered under the Securities Act.
“S&P” means S&P Global Ratings,
a division of S&P Global, Inc., or any successor thereof which is a “nationally recognized statistical rating organization”
within the meaning of Section 3(a)(62) of the Exchange Act.
“Special Interest” means all Special
Interest then owing pursuant to Section 4 of the Registration Rights Agreement referred to in clause (1) of the definition
of “Registration Rights Agreement” in the Appendix. Unless the context indicates otherwise, all references to “interest”
in the Indenture or the Notes shall be deemed to include any Special Interest to the extent then applicable.
“Special Mandatory Redemption” has
the meaning specified in Section 3.04 of this Fourth Supplemental Indenture.
“Special Mandatory Redemption Date”
has the meaning specified in Section 3.04 of this Fourth Supplemental Indenture.
“Special Mandatory Redemption Outside Date”
has the meaning specified in Section 3.04 of this Fourth Supplemental Indenture.
“Special Mandatory Redemption Price”
has the meaning specified in Section 3.04 of this Fourth Supplemental Indenture.
“Special Mandatory Redemption Trigger Date”
has the meaning specified in Section 3.04 of this Fourth Supplemental Indenture.
“Treasury Rate” means, with respect
to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted each Business Day by the Board
of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for
the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors
of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor
designation or publication) (“H.15”) under the caption “U.S. government securities — Treasury constant
maturities — Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury
Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period
from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity
on H.15 exactly equal to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity
on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining
Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using
such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter
than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For
purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal
to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semiannual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United
States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date
equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the
Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there
are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting
the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United
States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semiannual
yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed
as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three
decimal places. The Company will, prior to such Redemption Date, deliver to the Trustee an Officers’ Certificate setting forth
the Treasury Rate and showing the calculation of such in reasonable detail. The Trustee shall have no duty to verify the Company’s
calculation of the Treasury Rate.
“Voting Stock” of any specified person
as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of
directors of such person.
Other
Definitions.
Term |
|
Defined in Section |
“Alternate Offer” |
|
Section 4.05(e) |
“Change of Control Offer” |
|
Section 4.05(a) |
“Change of Control Payment
Date” |
|
Section 4.05(a) |
“Change of Control Price” |
|
Section 4.05 |
“Signature Law” |
|
Section 6.07 |
Section 1.02 Rules of
Construction.
Unless the context otherwise requires: (1) a
term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance
with U.S. GAAP; (3) “or” is not exclusive; (4) words in the singular include the plural, and in the plural
include the singular; (5) words implying any gender shall apply to all genders; (6) the term “merger”
includes an amalgamation, a statutory compulsory share exchange or a conversion of a corporation into a limited liability company, a
partnership or other entity and vice versa; and (7) provisions apply to successive events and transactions. All references
in this Fourth Supplemental Indenture to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections
of this Fourth Supplemental Indenture; and the term “herein,” “hereof,” “hereunder”
and any other word of similar import refers to this Fourth Supplemental Indenture.
Article 2
THE NOTES
Section 2.01 Creation
and Form.
Pursuant to Sections 2.01 and 2.02 of the Original
Indenture, there is hereby created a new series of Securities designated as the Company’s “4.850% Senior Notes due 2029.”
The Notes shall be subject to the provisions of the Rule 144A/Regulation S Appendix attached hereto (the “Appendix”),
shall be substantially in the form specified in Exhibit A to this Fourth Supplemental Indenture, shall have the terms set forth
therein and shall be entitled to the benefits of the other provisions of the Original Indenture as modified by this Fourth Supplemental
Indenture and specified herein.
Section 2.02 Execution
and Authentication.
On the Initial Issuance Date, the Trustee shall
authenticate and deliver (i) up to $350,000,000 of Initial Notes, (ii) at any time and from time to time thereafter, the Trustee
shall authenticate and deliver Additional Notes for original issue, and (iii) shall issue Exchange Notes in an exchange for Initial
Notes pursuant to a Registration Rights Agreement (as defined in the Appendix), in each case upon the Trustee’s receipt of an Issuer
Order in accordance with Section 2.03 of the Original Indenture. Such Issuer Order shall specify the amount of the Notes to be authenticated
and the date on which the issue of Notes is to be authenticated and either detail or attach the information from Section 2.02 and,
in the case of an issuance of Additional Notes pursuant to Section 2.03 of this Fourth Supplemental Indenture after the Initial
Issuance Date, shall certify that such issuance is in compliance with such Section 2.03 hereof. The Notes shall be issued initially
in the form of Global Securities, for which The Depository Trust Company shall act as Depositary. Notes in the form of Global Securities
shall bear the legends set forth on the form of Note attached hereto and such other legends as may be specified in the Appendix. The
Notes may be guaranteed by Subsidiaries as provided in Article IX of the Original Indenture in the future.
Section 2.03 Issuance
of Additional Notes.
After the Initial Issuance Date, the Company shall
be entitled to issue Additional Notes under the Indenture which shall have identical terms as the Notes issued on the Initial Issuance
Date, other than with respect to the size, issue date, issue price and first interest payment; provided that if the Additional
Notes are not fungible with the Notes for U.S. federal income tax purposes, then they must be issued with a different CUSIP number. The
Notes issued on the Initial Issuance Date and any Additional Notes under the Indenture shall be treated as a single class for all purposes
under the Indenture, including, without limitation, waivers, amendments and redemptions.
With respect to any Additional Notes, the Company
shall set forth in a resolution of the Board of Directors of the Company and an Officers’ Certificate, a copy of each which shall
be delivered to the Trustee, the following information:
(a) the
aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture;
(b) the
issue date, the issue price and the CUSIP number of such Additional Notes; provided, however, that if the Additional Notes are not fungible
with the Notes for U.S. federal income tax purposes, then they must be issued with a different CUSIP number;
(c) the
date from which interest shall accrue on such Additional Notes; and
(d) the
other statements required by Section 2.02 of the Original Indenture.
In addition to the foregoing, the Company shall
deliver to the Trustee an Issuer Order as described in Section 2.02, an Opinion of Counsel as to enforceability of the Additional
Notes, together with an Opinion of Counsel that all conditions precedent to the issuance and authentication of the Additional Notes have
been satisfied.
Article 3
REDEMPTION AND PURCHASE
Section 3.01 Redemption
and Purchase.
The Notes shall be subject to redemption by the
Company pursuant to the provisions of Article X of the Original Indenture and this Article 3 and Section 4.05(d).
Section 3.02 Optional
Redemption.
(a) Prior
to November 1, 2029 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any
time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of:
(i) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming
the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 25 basis points less (b) interest accrued to, but not including, the Redemption Date; and
(ii) 100%
of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest
thereon to, but not including, the Redemption Date.
The Company’s actions and determinations
in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall not be
responsible for calculating the Redemption Price or any component thereof.
Unless the Company defaults in payment of the
Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
The Company also may from time to time purchase
Notes in tender offers, open market purchases or negotiated transactions without prior notice to the holders of the Notes.
(b) On
or after the Par Call Date, the Company may redeem the Notes in whole or in part, at any time and from time to time, at a Redemption
Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including,
the Redemption Date.
Section 3.03 Conditional
Redemption.
Any redemption of Notes or notice thereof may,
at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including, but not limited to,
completion of a corporate transaction, consummation of a financing transaction or equity issuance, the proceeds of which are used to
fund such redemption, or other event. If any redemption is so subject to the satisfaction of one or more conditions precedent, the notice
thereof shall describe each such condition and, if applicable, shall state that, in the Company’s sole discretion, the Redemption
Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion),
and/or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been
satisfied (or waived by the Company in its sole discretion) by the Redemption Date, or by the Redemption Date as so delayed, and/or that
such notice may be rescinded at any time by the Company if the Company determines in its sole discretion that any or all of such conditions
will not be satisfied (or waived). If any Redemption Date shall be delayed as contemplated by this Section 3.03 and the terms of
the applicable notice of redemption, such Redemption Date as so delayed may occur at any time after the original Redemption Date set
forth in the applicable notice of redemption and after the satisfaction (or waiver) of any applicable conditions precedent, including,
without limitation, on a date that is less than 10 days after the original Redemption Date or more than 60 days after the date of the
applicable notice of redemption. The Company shall provide written notice of the delay of such Redemption Date or the rescission of such
notice of redemption (and rescission and cancellation of the redemption of the Notes) to the Trustee no later than 10:00 a.m. Eastern
Time (subject to DTC procedures) on the Redemption Date or the Redemption Date as so delayed that all conditions to the redemption have
been satisfied or if any such redemption has been rescinded or delayed. Upon receipt of such notice of delay of such Redemption Date
or rescission of such notice of redemption, such Redemption Date shall be automatically delayed or such notice of redemption shall be
automatically rescinded, as applicable, and the redemption of the Notes shall be automatically delayed or rescinded and cancelled, as
applicable, as provided in such notice. In addition, the Company may provide in such notice that payment of the Redemption Price and
performance of the Company’s obligations with respect to such redemption may be performed by another Person.
Section 3.04 Special
Mandatory Redemption.
If (i) the consummation of the KCA Deutag
Acquisition does not occur on or before the later of (x) October 25, 2025 and (y) such date to which the Company may agree
to extend the “Long Stop Date” under the Purchase Agreement (the “Special Mandatory Redemption Outside Date”),
(ii) prior to the Special Mandatory Redemption Outside Date, the Purchase Agreement is terminated without the consummation of the
KCA Deutag Acquisition or (iii) the Company otherwise notifies the Trustee that it will not pursue the consummation of the KCA Deutag
Acquisition (the earlier of the date of delivery of such notice described in clause (iii), the Special Mandatory Redemption Outside Date
and the date the Purchase Agreement is terminated without consummation of the KCA Deutag Acquisition (the “Special Mandatory Redemption
Trigger Date”)), the Company will be required to redeem the Notes then outstanding (such redemption, the “Special Mandatory
Redemption”), at a special mandatory redemption price equal to 101% of the principal amount of the Notes to be redeemed plus accrued
and unpaid interest to, but excluding, the Special Mandatory Redemption Date (as defined below) (the “Special Mandatory Redemption
Price”).
In the event that the Company becomes obligated
to redeem the Notes pursuant to the Special Mandatory Redemption, it will promptly, and in any event not more than ten Business Days
after the Special Mandatory Redemption Trigger Date, cause notice to be delivered electronically or mailed to each holder of the Notes
at its registered address (such date of notification to the holders, the “redemption notice date”). The notice will inform
holders that the Notes will be redeemed no earlier than the third Business Day and no later than 30 days following the redemption notice
date (the “Special Mandatory Redemption Date”) and that all of the outstanding Notes to be redeemed will be redeemed at the
Special Mandatory Redemption Price on the Special Mandatory Redemption Date automatically and without any further action by the holders
of the Notes. No later than 10:00 a.m., New York City time, on the Special Mandatory Redemption Date, the Company will deposit with the
Trustee funds sufficient to pay the Special Mandatory Redemption Price. Unless the Company defaults in payment of the Special Mandatory
Redemption Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Notes to be redeemed.
Upon the occurrence of the closing of the KCA
Deutag Acquisition, this Section 3.04 shall terminate and cease to be of no further force or effect.
Article 4
COVENANTS
Section 4.01 Covenants.
The Company shall be subject to the covenants
pursuant to the provisions of Article III of the Original Indenture and this Article 4.
Section 4.02 Limitation
on Liens.
(a) So long as any Notes are outstanding,
the Company will not, nor will it permit any Subsidiary to, issue, assume or guarantee any Debt, if such Debt is secured by a mortgage
upon any properties of the Company or any Subsidiary or upon any securities or Debt of any Subsidiary (whether such properties, securities
or Debt is now owned or hereafter acquired) without in any such case effectively providing that the Notes shall be secured equally and
ratably with (or prior to) such Debt, except that the foregoing restrictions shall not apply to:
(i) mortgages on any property
acquired (and related contracts, intangibles and other assets incidental thereto or arising therefrom (including improvements and accessions
thereto and replacements or proceeds thereof)), constructed, developed, operated, altered, repaired or improved by the Company or any
Subsidiary (or mortgages on the securities of, or equity interests in, a special purpose Subsidiary which holds no material assets other
than the property being acquired, constructed, developed, operated, altered, repaired or improved) after the date of the Indenture which
are created within 360 days after such acquisition (or in the case of property constructed, developed, operated, altered, repaired or
improved, after the completion and commencement of commercial operation of such property, whichever is later), to secure or provide for
all or any part of the payment of the purchase price or cost thereof (including to secure indebtedness to finance all or any part of
such purchase price or cost); provided that in the case of such construction, development, operation, alteration, repair or improvement,
the mortgages shall not apply to any property owned by the Company or any Subsidiary before such construction, development, operation,
alteration, repair or improvement other than (1) unimproved real property on which the property so constructed, or the development,
operation, alteration, repair or improvement, is located or (2) personal property which is so improved (and related contracts, intangibles
and other assets incidental thereto or arising therefrom (including improvements and accessions thereto and replacements or proceeds
thereof));
(ii) (1) mortgages
existing on the Initial Issuance Date, (2) existing mortgages on property acquired (including mortgages on any property acquired
from a person which is consolidated with or merged with or into the Company or a Subsidiary) or (3) mortgages outstanding at the
time any corporation, partnership or other entity becomes a Subsidiary or is consolidated with or merged with or into the Company or
a Subsidiary, including mortgages on the securities of, or equity interests in, such corporation, partnership or other entity; provided
that in the case of (3) such mortgages shall only apply to property owned by, or securities of or equity interests in, such corporation,
partnership or other entity at the time it becomes a Subsidiary or that is acquired thereafter other than from the Company or another
Subsidiary;
(iii) mortgages
in favor of the Company or any Subsidiary;
(iv) mortgages
in favor of domestic or foreign governmental bodies to secure advances or other payments or performance pursuant to any contract or statute
or to secure indebtedness incurred to finance the purchase price or cost of constructing, developing, operating, altering, repairing
or improving the property subject to such mortgages (and related contracts, intangibles and other assets incidental thereto or arising
therefrom (including improvements and accessions thereto and replacements or proceeds thereof)), including mortgages to secure Debt of
the pollution control or industrial revenue bond type;
(v) mortgages
consisting of pledges or deposits by the Company or any Subsidiary under workers’ compensation laws, unemployment insurance laws
or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Company or any Subsidiary is a party, or deposits to secure public or statutory obligations or regulatory obligations of
the Company or any Subsidiary or deposits of cash or United States of America government bonds to secure surety or appeal bonds to which
it is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred
in the ordinary course of business;
(vi) mortgages
imposed by law, including materialmen’s, carriers’, warehousemen’s, repairman’s, builders’, workmen’s,
landlords’ and mechanics’ liens, in each case for sums not overdue for a period of more than 45 days or being contested in
good faith by appropriate proceedings;
(vii) mortgages
for taxes, assessments or other governmental charges that are not yet delinquent or which are being contested in good faith by appropriate
proceedings or which thereafter can be paid without penalty;
(viii) mortgages
in favor of issuers of surety or performance and return of money bonds or letters of credit or bankers’ acceptances issued pursuant
to the request of and for the account of the Company or any Subsidiary in the ordinary course of its business;
(ix) mortgages consisting of encumbrances,
easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines,
roads, pipe lines, water mains and other similar purposes, or mortgages consisting of zoning or other restrictions as to the use of real
properties or mortgages incidental to the conduct of the business of the Company or a Subsidiary or to the ownership of its properties
which do not materially adversely affect the value of said properties or materially impair their use in the operation of the business
of the Company or a Subsidiary;
(x) mortgages
arising by virtue of any statutory or common law provisions or included in any customary deposit account agreements or related or similar
documentation relating to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depository institution;
(xi) mortgages
on the stock, partnership or other equity interest in any Joint Venture of the Company or any of its Subsidiaries, or in any Subsidiary
of the Company that owns an equity interest in a Joint Venture of the Company to secure Debt contributed and/or advanced solely to that
Joint Venture;
(xii) mortgages
on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(xiii) any
mortgage over goods (or any documents relating thereto) arising either in favor of a bank issuing a form of documentary credit in connection
with the purchase of such goods or by way of retention of title by the supplier of such goods where such goods are supplied on credit,
subject to such retention of title, and in both cases where such goods are acquired in the ordinary course of business;
(xiv) mortgages
in favor of a seller on any segregated cash earnest money deposits made by the Company or any of its Subsidiaries in connection with
any executed letter of intent or purchase agreement for a purchase of property or assets not prohibited by the indenture;
(xv) any
mortgage on the funds and accounts securing any Debt of the Company or any Subsidiary pursuant to customary escrow arrangements
pending the release thereof, or pursuant to customary discharge, redemption or defeasance provisions; or
(xvi) any
extension, renewal, substitution, refinancing or replacement (or successive extensions, renewals, substitutions, refinancings or replacements),
in whole or in part, of any mortgage referred to in the foregoing clauses (a) through (o), inclusive; provided that (1) such
extension, renewal, substitution, refinancing or replacement mortgage shall not extend beyond the property or assets that secured
or were of the type that secured the mortgage extended, renewed, substituted, refinanced or replaced, plus improvements, accessions to
and replacements or proceeds thereof on such property or assets, unless otherwise permitted by this covenant, and (2) the Debt secured
by such mortgage is not greater in principal amount than the Debt secured by the mortgage extended, renewed, substituted, refinanced
or replaced plus the amount of fees and expenses and any prepayment premiums or breakage costs incurred in connection therewith.
(b) In addition to the foregoing exceptions
to the limitations set forth in Section 4.02(a), the Company and any Subsidiary may, without securing the Notes, issue, assume or
guarantee Debt secured by a mortgage that, taken together with certain Attributable Debt described in the following sentence, does not
in the aggregate exceed 15.0% of Consolidated Net Tangible Assets determined at the time of incurrence. The Attributable Debt to be aggregated
for purposes of this exception is all Attributable Debt in respect of Sale and Lease-Back Transactions of the Company and its Subsidiaries
under the exception in clause (2) of Section 4.03(e) existing at such time.
Section 4.03 Limitations
on Sale and Lease-Back Transactions. So long as any Notes are outstanding, the Company will not, nor will it permit any Subsidiary
to, enter into any Sale and Lease-Back Transaction, other than any Sale and Lease-Back Transaction:
(a) entered into within 360 days of the
later of the acquisition, construction, development, operation, alteration, repair, improvement or placing into service of the property
subject thereto by the Company or such Subsidiary;
(b) involving a lease of less than five
years;
(c) entered into in connection with an industrial
revenue bond or pollution control financing;
(d) between or among the Company and/or
one or more Subsidiaries;
(e) as to which the Company or such Subsidiary
would be entitled to incur Debt secured by a mortgage on the property to be leased in an amount equal to the Attributable Debt with respect
to such Sale and Lease-Back Transaction without equally and ratably securing the Notes (1) under clauses (i) through (xvi) of
Section 4.02(a) or (2) under Section 4.02(b); or
(f) as to which the Company will apply an
amount equal to the net proceeds from the sale of the property so leased to (1) the retirement (other than any mandatory retirement),
within 360 days of the effective date of any such Sale and Lease-Back Transaction, of Notes or of Funded Debt of the Company or a Subsidiary
or (2) the acquisition, construction, development, operation, alteration, repair or improvement of other property, provided that
such property is owned by the Company or a Subsidiary free and clear of all mortgages.
Section 4.04 Reports.
The Company covenants to furnish to the Trustee,
within 15 days after the Company files the same with the SEC, copies of the annual reports and of the information, documents and other
reports that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act or pursuant to Section 314 of the Trust Indenture Act; provided, however, that the Company will be deemed to have furnished
such reports to the Trustee if they have filed such reports with the SEC using the EDGAR filing system (or any successor thereto) and
such reports are publicly available.
At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act and the Notes are not freely transferrable under the Securities Act, upon the request
of a Holder of the Notes, the Company will promptly furnish or cause to be furnished the information specified under Rule 144A(d)(4) of
the Securities Act to such Holder, or to a prospective purchaser of a Note designated by such Holder, in order to permit compliance with
Rule 144A under the Securities Act.
Delivery of such reports, information and documents
to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive
knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s
or any other Person’s compliance with any of the covenants under the Indenture or the Notes (as to which the Trustee is entitled
to rely exclusively on Officers’ Certificates). The Trustee shall have no duty or obligation whatsoever to monitor or confirm,
on a continuing basis or otherwise, the Company’s or any other Person’s compliance with any of the covenants described herein
or to determine whether such reports, information or documents have been posted on any website or other online data system or filed with
the SEC through EDGAR (or other applicable system), to examine such reports, information, documents and other reports to ensure compliance
with the provisions of the Indenture, to ascertain the correctness or otherwise of the information or the statements contained therein
or to participate in any conference calls.
Section 4.05 Change
of Control Offer.
Upon the occurrence of a Change of Control Triggering
Event, each Holder of Notes will have the right to require the Company to purchase all or any part (equal to a minimum of $2,000 or an
integral multiple of $1,000 in excess thereof) of the Holder’s Notes at a purchase price in cash equal to 101% (the “Change
of Control Price”) of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase
(subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date),
except to the extent that the Company has exercised its right to redeem the Notes as described under Section 3.02 or as otherwise
set forth in this section.
(a) Within
60 days following the date upon which the Change of Control Triggering Event has occurred, or at the Company’s option, prior to
any Change of Control but after the public announcement of the transaction that constitutes or may constitute the Change of Control,
except to the extent that the Company has exercised its right to redeem the Notes as described under Section 3.02 or as otherwise
set forth in this section, the Company will send a notice (a “Change of Control Offer”) to each holder of Notes with a copy
to the Trustee, which notice will govern the terms of the Change of Control Offer, stating:
(i) that
a Change of Control Triggering Event with respect to Notes has occurred and that such holder has the right to require the Company to
purchase such holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to, but excluding, the date of purchase (subject to the right of holders of record on the relevant record date to receive
interest on the relevant Interest Payment Date);
(ii) the
circumstances regarding such Change of Control Triggering Event;
(iii) the
purchase date (which shall be (i) no earlier than 30 days nor later than 60 days from the date such notice is sent, if sent after
consummation of the Change of Control and (ii) on the date of the Change of Control, if sent prior to consummation of the Change
of Control, in each case, other than as may be required by law) (such date, the “Change of Control Payment Date”); and
(iv) the
instructions that a holder must follow in order to have its Notes purchased.
(b) Holders
of Notes electing to have Notes purchased pursuant to a Change of Control Offer will be required to surrender their Notes, with the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified
in the notice, or transfer their Notes to the paying agent by book-entry transfer pursuant to the applicable procedures of the Paying
Agent and DTC, prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
(c) The
Company may make a Change of Control Offer in advance of a Change of Control and the Change of Control Payment Date, and the Company’s
Change of Control Offer may be conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control
at the time of making the Change of Control Offer.
(d) If
Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw the Notes in a
Change of Control Offer, Alternate Offer or any other tender offer and the Company (or any third party making a Change of Control Offer,
Alternate Offer or other tender offer in lieu of the Company, as described below) purchases all of the Notes validly tendered and not
withdrawn by such Holders pursuant to such Change of Control Offer, Alternate Offer or other tender offer, as applicable, the Company
will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 10 days following such purchase
pursuant to the Change of Control Offer, Alternate Offer or other tender offer described above, as the case may be, to redeem all Notes
that remain outstanding following such purchase at a Redemption Price in cash equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of holders of record on the relevant record
date to receive interest on the relevant Interest Payment Date). Any such redemption pursuant to this Section 4.05(d) shall
be made in accordance with Article X of the Original Indenture.
(e) The
Company will not be required to make a Change of Control Offer if (1) a third party makes such an offer in the manner, at the times
and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all Notes properly
tendered and not withdrawn under its offer or (2) in connection with or in contemplation of any Change of Control, the Company has
made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than
the Change of Control Price and purchases all Notes properly tendered in accordance with the terms of such Alternate Offer.
(f) The
Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer.
(g) The
Holders of a majority in principal amount of the outstanding Notes may, on behalf of the holders of all Notes, in accordance with Section 8.02
of the Original Indenture, amend or waive the right of the Holders to require the Company to purchase all or any part of each holder’s
Notes as a consequence of a Change of Control Triggering Event.
Article 5
SUPPLEMENTAL INDENTURES
Section 5.01 Amending
Without Consent of Holders to Conform to the Description of Notes.
With respect to the Notes, in addition to the
circumstances described in Section 8.01 of the Original Indenture, the Company and the Trustee may amend or supplement the Indenture
as it relates to the Notes without the consent of any Holder of outstanding Notes to conform the text of the Indenture or the Notes to
the “Description of the Notes” set forth in the offering memorandum of the Company, dated September 10, 2024, relating
to the initial offering of the Notes.
Article 6
MISCELLANEOUS
Section 6.01 Fourth
Supplemental Indenture Controls.
To the extent that there is any conflict or inconsistency
between the Original Indenture and this Fourth Supplemental Indenture, the provisions of this Fourth Supplemental Indenture shall control.
Section 6.02 No
Recourse Against Others.
A director, officer, employee or stockholder of
the Company, as such, shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release shall be part of the consideration for the issue of the Notes.
Section 6.03 Governing
Law.
This Fourth Supplemental Indenture and the Notes
shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 6.04 No
Adverse Interpretation of Other Agreements.
This Fourth Supplemental Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company. Any such indenture, loan or debt agreement may not be used
to interpret the Indenture.
Section 6.05 Successors.
All agreements of the Company in the Indenture
and the Securities shall bind its successor. All agreements of the Trustee in the Indenture shall bind its successor.
Section 6.06 Severability.
In case any provision in this Fourth Supplemental
Indenture, Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 6.07 Counterparts.
This Fourth Supplemental Indenture shall be valid,
binding and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means
of (i) in the case of this Fourth Supplemental Indenture and any certificate, agreement or other document to be signed in connection
with this Fourth Supplemental Indenture and the transactions contemplated hereby, other than any Notes, any electronic signature permitted
by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act,
and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively,
“Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature.
Each electronic signature (except in the case of any Notes) or faxed, scanned, or photocopied manual signature shall for all purposes
have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled
to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other
electronic signature (except in the case of any Notes), of any party and shall have no duty to investigate, confirm or otherwise verify
the validity or authenticity thereof. This Fourth Supplemental Indenture may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. The exchange of copies
of this Fourth Supplemental Indenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute
effective execution and delivery of this Fourth Supplemental Indenture as to the parties hereto and may be used in lieu of the original
Fourth Supplemental Indenture for all purposes. Notwithstanding the foregoing, original manual signatures shall be used for authentication
by the Trustee of any Notes, and execution or indorsement of writings when required under the UCC or other Signature Law due to the character
or intended character of the writings.
Section 6.08 Force
Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, (i) any act or provision of present or future law or regulation or governmental
authority, (ii) labor disputes, strikes or work stoppages, (iii) accidents, (iv) acts of war or terrorism, (v) civil
or military disturbances, (vi) nuclear or natural catastrophes or acts of God, (vii) epidemics or pandemics, (viii) disease,
(ix) quarantine, (x) national emergency, (xi) interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, (xii) communications system failure, (xiii) malware or ransomware, (xiv) the unavailability
of the Federal Reserve Bank wire, telex or other communication or wire facility, or (xv) unavailability of any securities clearing
system; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section 6.09 Table
of Contents and Headings.
The Table of Contents and headings of the Articles
and Sections of this Fourth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 6.10 The
Trustee.
The recitals contained herein shall be taken as
statements of the Company, and the Trustee does not assume any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Fourth Supplemental Indenture, except that the Trustee represents that it is duly authorized
to execute and deliver this Fourth Supplemental Indenture and perform its obligations hereunder. This Fourth Supplemental Indenture is
executed and accepted by the Trustee subject to all the terms and conditions set forth in the Original Indenture with the same force
and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee with respect hereto.
[Signatures on following page]
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed as of the day and year
first above written.
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Company: |
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HELMERICH & PAYNE, INC. |
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By: |
/s/ J. Kevin Vann |
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Name: |
J. Kevin Vann |
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Title: |
Senior Vice President and Chief Financial Officer |
[Signature Page to
Fourth Supplemental Indenture]
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Trustee: |
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COMPUTERSHARE TRUST COMPANY, N.A. |
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By: |
/s/ Corey J. Dahlstrand |
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Name: |
Corey J. Dahlstrand |
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Title: |
Vice President |
[Signature Page to Fourth Supplemental Indenture]
RULE 144A/REGULATION S APPENDIX
Article 1
PROVISIONS RELATING TO INITIAL NOTES AND EXCHANGE NOTES
Section 1.01 Definitions
(a) Definitions.
For the purposes of this Appendix the following terms shall have the meanings indicated below:
“Depository” means The Depository
Trust Company, its nominees and their respective successors.
“Exchange Notes” means (1) the
4.850% Senior Notes due 2029 issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration
Rights Agreement and (2) Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities
Act.
“IAI”
means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
“Initial Notes” means (1) $350,000,000
aggregate principal amount of the Company’s 4.850% Senior Notes due 2029 issued pursuant to the Indenture on the Initial Issuance
Date and (2) Additional Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act.
“Notes” means the Initial Notes,
the Additional Notes, if any, and the Exchange Notes, treated as a single class.
“Notes Custodian” means the
custodian with respect to a Global Note (as appointed by the Depository), or any successor Person thereto and shall initially be the
Trustee.
“Notes Purchase Agreement”
means (1) with respect to the Initial Notes issued on the Initial Issuance Date, the purchase agreement dated September 10,
2024 among the Company and the Initial Purchasers named therein, and (2) with respect to each issuance of Additional Notes, the
purchase agreement or underwriting agreement among the Company and the Persons purchasing such Additional Notes.
“QIB” means a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act.
“Registered Exchange Offer”
means the offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver
to such Holders, in exchange for the Initial Notes, a like aggregate principal amount of Exchange Notes registered under the Securities
Act.
“Registration Rights Agreement”
means (1) with respect to the Initial Notes issued on the Initial Issuance Date, the Registration Rights Agreement dated September 17,
2024 among the Company and the Initial Purchasers named therein and (2) with respect to each issuance of Additional Notes issued
in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the
Company and the Persons purchasing such Additional Notes under the related Notes Purchase Agreement.
“Shelf Registration Statement”
means a “shelf” registration statement of the Company filed with the SEC pursuant to a Registration Rights Agreement and
providing for the sales of Notes.
“Transfer Restricted Securities”
means Notes that bear or are required to bear the legend set forth in Section 2.03(b) hereof.
Section 1.02 |
Other Definitions. |
Term |
Defined in Section |
“Agent Members” |
2.01(b) |
“Distribution Compliance Period” |
2.01(b) |
“Global Notes” |
2.01(a) |
“IAI Notes” |
2.01(a) |
“Regulation S” |
2.01(a) |
“Regulation S Notes” |
2.01(a) |
“Restricted Global Note” |
2.01(a) |
“Rule 144A” |
2.01(a) |
“Rule 144A Notes” |
2.01(a) |
Article 2
THE NOTES
Section 2.01
(a) Form and
Dating. Initial Notes offered and sold to (i) QIBs in reliance on Rule 144A (“Rule 144A Notes”) under
the Securities Act (“Rule 144A”) or in reliance on Regulation S (“Regulation S Notes”) under the Securities
Act (“Regulation S”), and (ii) IAIs in reliance on an exemption from the registration requirements of the Securities
Act other than Rule 144A (“IAI Notes”), in each case as provided in a Notes Purchase Agreement, shall be issued initially
in the form of one or more permanent Notes in definitive, fully registered form without interest coupons with the Notes legend and restricted
Notes legend set forth in Exhibit A to this Fourth Supplemental Indenture (each, a “Restricted Global Note”), which
shall be deposited on behalf of the purchasers of the Initial Notes represented thereby with the Trustee, as custodian for the Depository
(or with such other custodian as the Depository may direct), and registered in the name of the Depository or a nominee of the Depository,
duly executed by the Company and authenticated by the Trustee as hereinafter provided. Beneficial interests in a Restricted Global Note
representing Initial Notes sold in reliance on either Rule 144A or Regulation S may be held through Euroclear or Clearstream, as
indirect participants in the Depository. The aggregate principal amount of the Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided. Additional Notes or other
Notes (including Exchange Notes), in each case that are not Transfer Restricted Notes, shall be issued in global form (with the global
Notes legend set forth in Exhibit A) or in certificated form as provided in the Indenture. Notes issued in global form and Restricted
Global Notes are sometimes referred to in this Appendix as “Global Notes.” The Global Notes are “Global Securities”
within the meaning of the Indenture, and shall be subject to the further provisions of the Indenture with respect thereto.
(b) Book-Entry
Provisions. This Section 2.01(b) shall apply only to a Global Note deposited with or on behalf of the Depository. The Company
shall execute and the Trustee shall, in accordance with this Section 2.01(b) and the Indenture, authenticate and deliver initially
one or more Global Notes that (a) shall be registered in the name of the Depository for such Global Note or Global Notes or the
nominee of such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions
or held by the Trustee as custodian for the Depository. If such Global Notes are Restricted Global Notes, then separate Global Notes
shall be issued to represent Rule 144A Notes, Regulation S Notes and IAI Notes so long as required by law or the Depository.
Members of, or participants in, the Depository
(“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depository
or by the Trustee as the custodian of the Depository or under such Global Note, and the Company, the Trustee and any agent of the Company
or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial interest
in any Global Note.
Until the 40th day after the later of the commencement
of the offering of any Initial Notes and the original issue date of such Initial Notes (such period, the “Distribution Compliance
Period”), a beneficial interest in a Restricted Global Note representing Regulation S Notes may be transferred to a Person who
takes delivery in the form of an interest in a Restricted Global Note representing Rule 144A Notes only if the transferor first
delivers to the Trustee a written certificate (in the form provided in the form of Note in Exhibit A) to the effect that such transfer
is being made to a Person who the transferor reasonably believes is purchasing for its own account or accounts as to which it exercises
sole investment discretion and that such Person is a QIB, in each case in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United States or any other jurisdiction. After the expiration of
the Distribution Compliance Period, such certification requirements shall not apply to such transfers of beneficial interests in a Restricted
Global Note representing Regulation S Notes.
Beneficial interests in a Restricted Global Note
representing Rule 144A Notes may be transferred to a Person who takes delivery in the form of an interest in a Restricted Global
Note representing Regulation S Notes, whether before or after the expiration of the Distribution Compliance Period, only if the transferor
first delivers to the Trustee a written certificate (in the form provided in the form of Note in Exhibit A) to the effect that such
transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(c) Certificated
Notes. Except as provided in the Indenture, owners of beneficial interests in Restricted Global Notes shall not be entitled to receive
physical delivery of certificated Notes. Certificated Notes shall not be exchangeable for beneficial interests in Global Notes.
Section 2.02 Authentication.
The Trustee shall authenticate and deliver Notes as provided in the Indenture.
Section 2.03 Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes.
(1) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depository, in accordance with the
Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor
of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depository’s
procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the
Global Note. The Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person
specified in such instructions a beneficial interest in the Global Note and to debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(2) Notwithstanding
any other provisions of this Appendix, a Global Note may not be transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such successor Depository.
(3) In
the event that a Restricted Global Note is exchanged for Notes in certificated form pursuant to the Indenture, prior to the effectiveness
of a Shelf Registration Statement with respect to such Notes, such Notes may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.03 (including the certification requirements set forth on the
reverse of the Initial Notes intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case may be) and
such other procedures as may from time to time be adopted by the Company.
(b) Restricted
Notes Legend.
(1) Except
as permitted by the following paragraphs (2) and (3), each Note certificate evidencing the Restricted Global Notes (and all Notes
issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.”
(2) Upon
any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Restricted Global
Note) pursuant to Rule 144 under the Securities Act, the Registrar shall permit the transferee thereof to exchange such Transfer
Restricted Security for a certificated Note that does not bear the legend set forth above and rescind any restriction on the transfer
of such Transfer Restricted Security, if the transferor thereof certifies in writing to the Registrar that such sale or transfer was
made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Note).
(3) After
a transfer of any Initial Note pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect
to such Initial Note, all requirements pertaining to legends on such Initial Note will cease to apply, any requirement that any such
Initial Note issued to certain Holders be issued in global form will cease to apply, and a certificated Initial Note or an Initial Note
in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial
Note upon exchange of such transferring Holder’s certificated Initial Note or directions to transfer such Holder’s interest
in the Global Note, as applicable.
(c) Exchange
of Initial Notes for Exchange Notes. The Initial Notes may be exchanged for Exchange Notes pursuant to the terms of the Registered
Exchange Offer. The Trustee shall make the exchange as follows:
(1) The
Company shall present the Trustee with an Officers’ Certificate certifying the following:
(A) upon
issuance of the Exchange Notes, the transactions contemplated by the Registered Exchange Offer have been consummated; and
(B) the
principal amount of Initial Notes properly tendered in the Registered Exchange Offer that are represented by a Global Note or by Global
Notes and the principal amount of Initial Notes properly tendered in the Registered Exchange Offer that are represented by individual
Initial Notes, the name of each Holder of such individual Initial Notes, the principal amount properly tendered in the Registered Exchange
Offer by each such Holder and the name and address to which individual Registered Exchange Notes shall be registered and sent for each
such Holder.
The Trustee, upon receipt of (i) such Officers’
Certificate, (ii) an Opinion of Counsel to the Company addressed to the Trustee of the Notes to the effect that the Exchange Notes
have been registered under Section 5 of the Securities Act, and the Indenture has been qualified under the Trust Indenture Act and
(iii) an Issuer Order, shall authenticate a Global Note or Global Notes for Exchange Notes in aggregate principal amount equal to
the aggregate principal amount of Initial Notes represented by a Global Note or by Global Notes indicated in such Officers’ Certificate
as having been properly tendered.
If the principal amount of the Global Note or
Global Notes for the Exchange Notes is less than the principal amount of the Global Note or Global Notes for the Initial Notes, the Trustee
shall make an endorsement on such Global Note or Global Notes for Initial Notes indicating a reduction in the principal amount represented
thereby.
EXHIBIT A
FACE OF 2029 NOTE
[GLOBAL SECURITY LEGEND]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND
IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.07(a) OF THE INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.1
1 These paragraphs should be included
only if the Security is a Global Security
[RESTRICTED NOTES LEGEND]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.2
2 These paragraphs should be
included only if the Security is a Restricted Global Note.
HELMERICH & PAYNE, INC.
4.850% SENIOR NOTE DUE 2029
No. |
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CUSIP No.______________________ |
$____________________ |
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ISIN No.______________________ |
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Helmerich & Payne, Inc., a Delaware
corporation (the “Company”), for value received promises to pay to ____________________, or registered assigns, the principal
sum of ____________________ Dollars [or such greater or lesser amount as is indicated on the Schedule of Exchanges of Interests in the
Global Securities on the other side of this Note] 3 on December 1, 2029.
Interest Payment Dates: June 1 and December 1,
commencing June 1, 2025
Record Dates: May 15 and November 15
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.
[Signature Page Follows]
3 To be included only if the Note is a Global Security.
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized officers.
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HELMERICH & PAYNE, INC. |
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By: |
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Name: |
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Title: |
Dated:
Certificate of Authentication:
This is one of
the Notes referred to in the within-
mentioned Indenture.
COMPUTERSHARE
TRUST COMPANY, N.A., as Trustee
Dated:
REVERSE OF NOTE
HELMERICH & PAYNE, INC.
4.850% SENIOR NOTE DUE 2029
This Security is one of a duly authorized issue
of 4.850% Senior Notes due 2029 (the “Notes”) of Helmerich & Payne, Inc., a Delaware corporation (the “Company”),
issued under the Indenture referred to herein.
1. Interest.
The Company promises to pay interest on the unpaid principal amount of this Note at a rate of 4.850% per annum. [In addition, the Company
will pay Special Interest if and to the extent required by the Registration Rights Agreement, dated as of September 17, 2024, among
the Company and the other parties named on the signature pages thereof.]4 The Company will pay interest semi-annually
on June 1 and December 1 of each year (each an “Interest Payment Date”), beginning June 1, 2025, or if any
such day is not a Business Day, on the next succeeding Business Day. Interest on this Note will accrue from the most recent Interest
Payment Date on which interest has been paid or, if no interest has been paid, from September 17, 2024; provided that if there
is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date. Further, to the
extent lawful, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and interest (without regard to any applicable grace period), at the same rate. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
2. Method
of Payment. The Company will pay interest on this Note (except defaulted interest) to the Persons who are registered Holders of this
Note at the close of business on the record date next preceding the Interest Payment Date, even if this Note is canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender this Note to a Paying Agent to collect payments of principal.
The Company will pay the principal of and interest on this Note in money of the United States of America that at the time of payment
is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Security (including
principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust
Company. The Company will make all payments in respect of a certificated Security (including principal and interest) at the Corporate
Trust Office of the Trustee or at the office or agency of the Paying Agent maintained for such purpose in The City of New York or, at
its option, by mailing a check to the registered address of each Holder thereof; provided, however, that payments on a certificated
Security of not less than $1,000,000 aggregate principal amount of Securities will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Ranking
and Guarantees. This Note is a senior unsecured obligation of the Company, and may in the future be guaranteed by Subsidiaries of
the Company as provided in the Indenture (a “Guarantee”). A Guarantee may be released in accordance with the terms of the
Indenture. References herein to the Indenture or the Securities shall be deemed also to refer to the Guarantees, if any, set forth in
the Indenture except where the context otherwise requires.
4. Optional
Redemption; Special Mandatory Redemption; Purchases upon Change of Control Triggering Event.
(a) Prior
to November 1, 2029 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at any
time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of: (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points less (b) interest accrued to, but not including,
the Redemption Date; and (ii) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid
interest thereon to, but not including, the Redemption Date.
4 To be included for Initial Notes
The Company’s actions and determinations
in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall not be
responsible for calculating the Redemption Price or any component thereof.
Unless the Company defaults in payment of the
Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
The Company also may from time to time purchase
Notes in tender offers, open market purchases or negotiated transactions without prior notice to the holders of the Notes.
On or after the Par Call Date, the Company may
redeem the Notes in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount
of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
The Notes may also be redeemed in certain circumstances
described in Section 4.05(d) of the Fourth Supplemental Indenture.
(b) Upon
the occurrence of a Change of Control Triggering Event, each holder of Notes will have the right to require the Company to purchase all
or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of the holder’s Notes at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase
(subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date),
subject to the limitations set forth in the Indenture.
(c) The
Notes are subject to redemption pursuant to Section 3.04 of the Fourth Supplemental Indenture.
5. Paying
Agent and Registrar. Initially, Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of the Company’s Subsidiaries may act in any such capacity.
6. Indenture.
The Company issued this Note under an Indenture dated as of December 20, 2018 (the “Original Indenture”) and the Fourth
Supplemental Indenture thereto dated as of September 17, 2024 (the “Fourth Supplemental Indenture”, together with the
Original Indenture and as amended, supplemented or otherwise modified from time to time, the “Indenture”) between the Company
and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association) (the “Trustee”). The terms
of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb). This Note is subject to all such terms, and Holders are referred to the Indenture and
the Trust Indenture Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be controlling (to the extent permitted by law). The Company initially
has issued $350,000,000 aggregate principal amount of Notes. The Company may issue Additional Notes of the same series as this Note under
the Indenture, provided that if the Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, then they
must be issued with a different CUSIP number. Capitalized terms used but not defined in this Security have the respective meanings given
to such terms in the Indenture.
7. Denominations,
Transfer, Exchange. The Securities are issuable only in registered form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of this Security may be registered and this Security may be exchanged only as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any transfer tax or similar governmental charge or other fee required by law and payable in connection therewith.
The Registrar need not exchange or register the transfer of this Security during the period between a record date and the corresponding
Interest Payment Date.
8. Persons
Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
9. Amendments
and Waivers. Subject to certain exceptions and limitations, the Indenture or this Security may be amended or supplemented with the
consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, and compliance in a particular instance
by the Company with any provision of the Indenture with respect to the Notes may be waived (other than certain provisions, including
any continuing Default or Event of Default in the payment of the principal of or interest on the Notes) by the Holders of a majority
in aggregate principal amount of the Notes then outstanding in accordance with the terms of Section 8.02 of the Indenture. Without
the consent of any Holder, the Company and the Trustee may amend or supplement this Security as provided in Section 8.01 of the
Indenture.
The right of any Holder to participate in any
consent required or sought pursuant to any provision of the Indenture (and the obligation of the Company to obtain any such consent otherwise
required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of this Note as of
a record date fixed by the Company in accordance with the terms of the Indenture.
10. Defaults
and Remedies. If an Event of Default (other than certain Events of Default relating to bankruptcy events as provided in the Indenture)
occurs and is continuing, either the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes may declare
the principal amount of the Notes to be due and payable immediately. If any Event of Default relating to bankruptcy events as provided
in the Indenture occurs, the principal amount of the Notes will be automatically due and payable immediately. However, any time after
an acceleration with respect to the Notes has occurred, but before a judgment or decree based on such acceleration has been obtained,
the Holders of a majority in principal amount of outstanding Notes may, under some circumstances, rescind and annul such acceleration.
The majority-holders, however, may not annul or waive a continuing default in payment of principal of, premium, if any, or interest on
the Notes.
11. No
Recourse Against Others. A director, officer, employee or stockholder of the Company, as such, shall not have any liability for any
obligations of the Company under this Security or the Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Holder by accepting this Note waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
12. Authentication.
This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that this Note has been authenticated
under the Indenture.
13. CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has
caused a CUSIP number to be printed on this Note as a convenience to the Holders of this Note. No representation is made as to the correctness
of such number either as printed on this Note or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on this Note.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform
Gifts to Minors Act).
15. [Additional
Rights of Holders of Restricted Global Securities and Restricted Definitive Securities. In addition to the rights provided to Holders
of Securities under the Indenture, Holders of Securities will have the rights set forth in the Registration Rights Agreement, dated as
of September 17, 2024, among the Company and the other parties named on the signature pages thereof.]5
5 Delete for Exchange Note
16. Governing
Law. The Indenture and this Note shall be governed by and construed in accordance with, the laws of the State of New York.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to it at:
Helmerich & Payne, Inc.
222 North Detroit Avenue
Tulsa, Oklahoma 74120
Attention: Chief Legal Officer
E-mail: investor.relations@hpinc.com
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to:
(Insert assignee’s social security or tax
I.D. number)
(Print or type assignee’s name, address
and zip code)
and irrevocably appoint _______________ as agent to transfer this
Security on the books of the Company. The agent may substitute another to act for him.
Date: _________________________________________________________
Your Signature:
(Sign exactly as your name appears on the face
of this Security)
Signature Guarantee:
(Participant in a Recognized Signature Guaranty
Medallion Program)
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
SECURITY6
The following increases or decreases in the principal
amount of this Global Security have been made:
Date of
Transaction |
Amount of
Decrease in
Principal Amount
of Global Security |
Amount of
Increase in
Principal Amount
of Global Security |
Principal Amount
of Global Security
Following Such
Decrease (or
Increase) |
Signature of
Authorized
Signatory, Trustee
or Securities
Custodian |
|
|
|
|
|
6 This Schedule should be included only if the Note is
a Global Security.
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased
by the Company pursuant to Section 4.05 of the Fourth Supplemental Indenture, check the box below:
¨
If you want to elect to have only part of the
Security purchased by the Company pursuant to Section 4.05 of the Fourth Supplemental Indenture, state the amount you elect to have
purchased:
$_________
Date:
|
Your Signature: |
|
|
|
(Sign exactly as your name appears on the face of this Security) |
|
|
|
Tax Identification No.: |
|
|
Signature Guarantee:7
7
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
Exhibit 4.4
HELMERICH & PAYNE, INC.
as Issuer
and
COMPUTERSHARE TRUST COMPANY, N.A. (AS SUCCESSOR
TO WELLS FARGO BANK, NATIONAL ASSOCIATION)
as Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of September 17, 2024
to
INDENTURE
Dated as of December 20, 2018
Providing for Issuance of
5.500% SENIOR NOTES DUE 2034
TABLE
OF CONTENTS
Page |
|
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE |
|
Section 1.01 |
Definitions |
1 |
Section 1.02 |
Rules of Construction |
5 |
|
|
|
Article 2
THE NOTES |
|
Section 2.01 |
Creation and Form |
5 |
Section 2.02 |
Execution and Authentication |
5 |
Section 2.03 |
Issuance of Additional Notes |
6 |
|
|
|
Article 3
REDEMPTION AND PURCHASE |
|
Section 3.01 |
Redemption and Purchase |
6 |
Section 3.02 |
Optional Redemption |
6 |
Section 3.03 |
Conditional Redemption |
7 |
Section 3.04 |
Special Mandatory Redemption |
7 |
|
|
|
Article 4
COVENANTS |
|
Section 4.01 |
Covenants |
8 |
Section 4.02 |
Limitation on Liens |
8 |
Section 4.03 |
Limitations on Sale and Lease-Back Transactions |
10 |
Section 4.04 |
Reports |
11 |
Section 4.05 |
Change of Control Offer |
11 |
|
|
|
Article 5
SUPPLEMENTAL INDENTURES |
|
Section 5.01 |
Amending Without Consent of Holders to Conform to the
Description of Notes |
12 |
|
|
|
Article 6
MISCELLANEOUS |
|
Section 6.01 |
Fifth Supplemental Indenture Controls |
13 |
Section 6.02 |
No Recourse Against Others |
13 |
Section 6.03 |
Governing Law |
13 |
Section 6.04 |
No Adverse Interpretation of Other Agreements |
13 |
Section 6.05 |
Successors |
13 |
Section 6.06 |
Severability |
13 |
Section 6.07 |
Counterparts |
13 |
Section 6.08 |
Force Majeure |
14 |
Section 6.09 |
Table of Contents and Headings |
14 |
Section 6.10 |
The Trustee |
14 |
APPENDIX
APPENDIX |
Rule 144A/Regulation S Appendix |
Appendix - 1 |
EXHIBIT
EXHIBIT A |
Form of Global Note |
Exhibit A – 1 |
This Fifth Supplemental Indenture, dated as of
September 17, 2024 (this “Fifth Supplemental Indenture”), between Helmerich & Payne, Inc., a Delaware
corporation (the “Company”), and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association),
a national banking association organized under the laws of the United States of America, as trustee (the “Trustee”), supplements
and amends the Indenture, dated as of December 20, 2018 (the “Original Indenture,” and together with this Fifth Supplemental
Indenture, the “Indenture”).
RECITATIONS OF THE COMPANY
WHEREAS, the Company and the Trustee have heretofore
executed and delivered the Original Indenture to provide for the issuance of the Company’s senior debt securities to be issued
in one or more series;
WHEREAS, Section 8.01 of the Original Indenture
provides, among other things, that the Company and the Trustee may without the consent of Holders enter into indentures supplemental
to the Original Indenture to, among other things, (a) add to, change or eliminate any of the provisions of the Original Indenture
in respect of one or more series of Securities provided that any such addition, change or elimination (i) shall neither (A) apply
to any Security of any series created prior to the execution of such supplemental Indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective
only when there is no such Security outstanding and (b) establish the form or terms of Securities of any series as permitted by
Section 2.01 and Section 2.02 of the Original Indenture;
WHEREAS, the Company desires to provide and has
determined to authorize the issuance of (i) its 5.500% Senior Notes due 2034, and currently desires to issue Notes (defined below)
in the aggregate amount of $550,000,000 (the Initial Notes, as such term is defined below), and (ii) if and when issued pursuant
to a registered exchange offer for the Initial Notes or the filing of a shelf registration statement by the Company with the Securities
and Exchange Commission (the “SEC”), the Company’s 5.500% Senior Notes due 2034 (the Exchange Notes, as such term is
defined below, and together with the Initial Notes, the “Notes”), which for the avoidance of doubt, will constitute a single
new series of Securities, and to set forth the form and terms thereof;
WHEREAS, the Company proposes in and by this Fifth
Supplemental Indenture to supplement and amend the Original Indenture, but only insofar as it will apply to the Notes; and
WHEREAS, all action on the part of the Company
necessary to authorize the creation and issuance of the Notes has been duly taken.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE
WITNESSETH:
That, in order to establish the designation, form
and terms of, and to authorize the authentication and delivery of the Notes, and in consideration of the acceptance of the Notes by the
Holders thereof and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
Article 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
(a) Capitalized
terms used herein and not otherwise defined shall have the respective meanings assigned thereto in the Original Indenture.
(b) Section 1.01
of the Original Indenture is amended and supplemented, with respect to the Notes, by inserting or restating, as the case may be, in their
appropriate alphabetical position, the following definitions:
“Additional Notes” means 5.500% Senior
Notes due 2034 of the Company as may be originally issued from time to time after the Initial Issuance Date under the terms of the Indenture
in addition to the Initial Notes and the Exchange Notes. The Additional Notes are “Additional Securities” within the meaning
of the Indenture, and shall be subject to the further provisions of the Indenture with respect thereto.
“Change of Control” means the occurrence
of any one of the following:
(a) the
sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series
of related transactions, of all or substantially all of the assets of the Company and the Subsidiaries taken as a whole to any “person”
(as that term is used in Rule 13d-3 under the Exchange Act) other than to the Company or one or more of the Subsidiaries or a combination
thereof or a person controlled by the Company or one or more of the Subsidiaries or a combination thereof; or
(b) the
consummation of any transaction (including without limitation, any merger, amalgamation or consolidation) the result of which is that
any “person” (as that term is used in Rule 13d-3 under the Exchange Act) (other than any Subsidiary) becomes the “beneficial
owner”(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding
Voting Stock of the Company, measured by voting power rather than number of shares (excluding a redomestication of the Company).
Notwithstanding the preceding or any provision
of Rule 13d-3 under the Exchange Act, a person or group shall not be deemed to beneficially own Voting Stock subject to a stock
or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar
agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated
by such agreement.
Notwithstanding the foregoing, a transaction will
not be deemed to involve a Change of Control if (1)(A) the Company becomes a direct or indirect wholly owned Subsidiary of a holding
company (which shall include a parent company) and (B) the direct or indirect holders of the Voting Stock of such holding company
immediately following that transaction are substantially the same as, and hold in substantially the same proportions as, the holders
of the Company’s Voting Stock immediately prior to that transaction or (2) immediately following that transaction no person
(other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more
than 50% of the then-outstanding Voting Stock, measured by voting power rather than number of shares, of (A) a holding company (which
shall include a parent company) of which the Company is a direct or indirect wholly owned subsidiary, (B) a person to whom all or
substantially all of the assets of the Company and its Subsidiaries has been sold, leased, transferred, or otherwise conveyed, or (C) the
surviving person in a merger, consolidation or combination of the Company.
“Change of Control Offer” has the
meaning set forth in Section 4.05 of this Fifth Supplemental Indenture.
“Change of Control Price” has the
meaning set forth in Section 4.05 of this Fifth Supplemental Indenture.
“Change of Control Triggering Event”
means the occurrence of both a Change of Control and a Ratings Event. Notwithstanding the foregoing, no Change of Control Triggering
Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has
actually been consummated.
“Exchange Notes” means (1) the
5.500% Senior Notes due 2034 issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration
Rights Agreement and (2) Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities
Act.
“Fitch” means Fitch Ratings Inc.,
or any successor thereof which is a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62)
of the Exchange Act.
“Initial Issuance Date” means September 17,
2024.
“Initial Notes” means (1) $550,000,000
aggregate principal amount of 5.500% Senior Notes due 2034 issued pursuant to the Indenture on the Initial Issuance Date and (2) Additional
Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act.
“Investment Grade” means a rating
of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); a rating of BBB- or
better by S&P (or its equivalent under any successor rating category of S&P); a rating of BBB- or better by Fitch (or its
equivalent under any successor rating category of Fitch); and the equivalent investment grade rating from any replacement Rating
Agency or Agencies appointed by the Company.
“Joint Venture” means any partnership,
corporation or other entity in which up to and including 50% of the partnership interests, outstanding Capital Stock or other equity
interests is owned, directly or indirectly, by the Company and/or one or more Subsidiaries. A Joint Venture is not treated as a Subsidiary.
“KCA
Deutag Acquisition” means the acquisition by the Purchaser of the entire share capital of KCA Deutag International Limited,
a private company limited by shares incorporated in Jersey (“KCA Deutag”), from the Majority Sellers and all other shareholders
of KCA Deutag pursuant to the Purchase Agreement.
“Moody’s” means Moody’s
Investors Service, Inc., a subsidiary of Moody’s Corporation, or any successor thereof which is a “nationally recognized
statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Purchase
Agreement” means the Sale and Purchase Agreement, dated as of July 25, 2024, by and among the Company, the majority
sellers named therein (the “Majority Sellers”), the management seller named therein, Ocorian Limited, a private company limited
by shares incorporated in Jersey, HP Global Holdings Limited, a private company limited by shares incorporated in Jersey and a wholly
owned subsidiary of the Company (the “Purchaser”), and, for certain purposes set forth therein, KCA Deutag, as it may be
amended from time to time.
“Rating Agency” means each of Moody’s,
S&P and Fitch; provided, that if any of Moody’s, S&P and Fitch ceases to rate the Notes or fails to make a rating
of the Notes publicly available, the Company will appoint a replacement for such Rating Agency that is a “nationally recognized
statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Ratings Event” means the ratings
of the Notes are downgraded by one or more gradations (including gradations within ratings categories as well as between rating categories)
and immediately following such downgrading, the Notes are rated below Investment Grade by any two Rating Agencies, on any date during
the period commencing upon the earlier of (a) the occurrence of a Change of Control and (b) the first public announcement
by the Company of the occurrence of any Change of Control or the Company’s intention to effect a Change of Control and ending 60
days following consummation of such Change of Control; provided, however, that a particular reduction in rating will not be deemed to
have occurred in respect of a particular Change of Control (and thus will not constitute a Change of Control Triggering Event) if the
Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or
inform the Trustee in writing at the Company’s or the Trustee’s request that the reduction was the result, in whole or in
part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether
or not the applicable Change of Control has occurred at the time of such reduction in rating); provided, further, that no Change of Control
Triggering Event shall occur if following such downgrade, the ratings of the Notes by two or more Rating Agencies are equal to or better
than their respective ratings on the date hereof.
“Registered Exchange Offer” means
the offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver to such
Holders, in exchange for the Initial Notes, a like aggregate principal amount of Exchange Notes registered under the Securities Act.
“S&P” means S&P Global Ratings,
a division of S&P Global, Inc., or any successor thereof which is a “nationally recognized statistical rating organization”
within the meaning of Section 3(a)(62) of the Exchange Act.
“Special Interest” means all Special
Interest then owing pursuant to Section 4 of the Registration Rights Agreement referred to in clause (1) of the definition
of “Registration Rights Agreement” in the Appendix. Unless the context indicates otherwise, all references to “interest”
in the Indenture or the Notes shall be deemed to include any Special Interest to the extent then applicable.
“Special Mandatory Redemption” has
the meaning specified in Section 3.04 of this Fifth Supplemental Indenture.
“Special Mandatory Redemption Date”
has the meaning specified in Section 3.04 of this Fifth Supplemental Indenture.
“Special Mandatory Redemption Outside Date”
has the meaning specified in Section 3.04 of this Fifth Supplemental Indenture.
“Special Mandatory Redemption Price”
has the meaning specified in Section 3.04 of this Fifth Supplemental Indenture.
“Special Mandatory Redemption Trigger Date”
has the meaning specified in Section 3.04 of this Fifth Supplemental Indenture.
“Treasury Rate” means, with respect
to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted each Business Day by the Board
of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for
the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors
of the Federal Reserve System designated as “Selected Interest Rates (Daily) — H.15” (or any successor
designation or publication) (“H.15”) under the caption “U.S. government securities — Treasury constant
maturities — Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury
Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period
from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity
on H.15 exactly equal to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity
on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining
Life — and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using
such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter
than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For
purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal
to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semiannual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the United
States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United
States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date
equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the
Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there
are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting
the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United
States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semiannual
yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed
as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three
decimal places. The Company will, prior to such Redemption Date, deliver to the Trustee an Officers’ Certificate setting forth
the Treasury Rate and showing the calculation of such in reasonable detail. The Trustee shall have no duty to verify the Company’s
calculation of the Treasury Rate.
“Voting Stock” of any specified person
as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of
directors of such person.
Other
Definitions.
Term |
|
Defined in Section |
“Alternate Offer” |
|
Section 4.05(e) |
“Change of Control Offer” |
|
Section 4.05(a) |
“Change of Control Payment
Date” |
|
Section 4.05(a) |
“Change of Control Price” |
|
Section 4.05 |
“Signature Law” |
|
Section 6.07 |
Section 1.02 Rules of
Construction.
Unless the context otherwise requires: (1) a
term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance
with U.S. GAAP; (3) “or” is not exclusive; (4) words in the singular include the plural, and in the plural
include the singular; (5) words implying any gender shall apply to all genders; (6) the term “merger”
includes an amalgamation, a statutory compulsory share exchange or a conversion of a corporation into a limited liability company, a
partnership or other entity and vice versa; and (7) provisions apply to successive events and transactions. All references
in this Fifth Supplemental Indenture to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections
of this Fifth Supplemental Indenture; and the term “herein,” “hereof,” “hereunder”
and any other word of similar import refers to this Fifth Supplemental Indenture.
Article 2
THE NOTES
Section 2.01 Creation
and Form.
Pursuant to Sections 2.01 and 2.02 of the Original
Indenture, there is hereby created a new series of Securities designated as the Company’s “5.500% Senior Notes due 2034.”
The Notes shall be subject to the provisions of the Rule 144A/Regulation S Appendix attached hereto (the “Appendix”),
shall be substantially in the form specified in Exhibit A to this Fifth Supplemental Indenture, shall have the terms set forth therein
and shall be entitled to the benefits of the other provisions of the Original Indenture as modified by this Fifth Supplemental Indenture
and specified herein.
Section 2.02 Execution
and Authentication.
On the Initial Issuance Date, the Trustee shall
authenticate and deliver (i) up to $550,000,000 of Initial Notes, (ii) at any time and from time to time thereafter, the Trustee
shall authenticate and deliver Additional Notes for original issue, and (iii) shall issue Exchange Notes in an exchange for Initial
Notes pursuant to a Registration Rights Agreement (as defined in the Appendix), in each case upon the Trustee’s receipt of an Issuer
Order in accordance with Section 2.03 of the Original Indenture. Such Issuer Order shall specify the amount of the Notes to be authenticated
and the date on which the issue of Notes is to be authenticated and either detail or attach the information from Section 2.02 and,
in the case of an issuance of Additional Notes pursuant to Section 2.03 of this Fifth Supplemental Indenture after the Initial Issuance
Date, shall certify that such issuance is in compliance with such Section 2.03 hereof. The Notes shall be issued initially in the
form of Global Securities, for which The Depository Trust Company shall act as Depositary. Notes in the form of Global Securities shall
bear the legends set forth on the form of Note attached hereto and such other legends as may be specified in the Appendix. The Notes
may be guaranteed by Subsidiaries as provided in Article IX of the Original Indenture in the future.
Section 2.03 Issuance
of Additional Notes.
After the Initial Issuance Date, the Company shall
be entitled to issue Additional Notes under the Indenture which shall have identical terms as the Notes issued on the Initial Issuance
Date, other than with respect to the size, issue date, issue price and first interest payment; provided that if the Additional
Notes are not fungible with the Notes for U.S. federal income tax purposes, then they must be issued with a different CUSIP number. The
Notes issued on the Initial Issuance Date and any Additional Notes under the Indenture shall be treated as a single class for all purposes
under the Indenture, including, without limitation, waivers, amendments and redemptions.
With respect to any Additional Notes, the Company
shall set forth in a resolution of the Board of Directors of the Company and an Officers’ Certificate, a copy of each which shall
be delivered to the Trustee, the following information:
(a) the
aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture;
(b) the
issue date, the issue price and the CUSIP number of such Additional Notes; provided, however, that if the Additional Notes are not fungible
with the Notes for U.S. federal income tax purposes, then they must be issued with a different CUSIP number;
(c) the
date from which interest shall accrue on such Additional Notes; and
(d) the
other statements required by Section 2.02 of the Original Indenture.
In addition to the foregoing, the Company shall
deliver to the Trustee an Issuer Order as described in Section 2.02, an Opinion of Counsel as to enforceability of the Additional
Notes, together with an Opinion of Counsel that all conditions precedent to the issuance and authentication of the Additional Notes have
been satisfied.
Article 3
REDEMPTION AND PURCHASE
Section 3.01 Redemption
and Purchase.
The Notes shall be subject to redemption by the
Company pursuant to the provisions of Article X of the Original Indenture and this Article 3 and Section 4.05(d).
Section 3.02 Optional
Redemption.
(a) Prior
to September 1, 2034 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at
any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of:
(i) (a) the
sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming
the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 30 basis points less (b) interest accrued to, but not including, the Redemption Date; and
(ii) 100%
of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest
thereon to, but not including, the Redemption Date.
The Company’s actions and determinations
in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall not be
responsible for calculating the Redemption Price or any component thereof.
Unless the Company defaults in payment of the
Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
The Company also may from time to time purchase
Notes in tender offers, open market purchases or negotiated transactions without prior notice to the holders of the Notes.
(b) On
or after the Par Call Date, the Company may redeem the Notes in whole or in part, at any time and from time to time, at a Redemption
Price equal to 100% of the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including,
the Redemption Date.
Section 3.03 Conditional
Redemption.
Any redemption of Notes or notice thereof may,
at the Company’s discretion, be subject to the satisfaction of one or more conditions precedent, including, but not limited to,
completion of a corporate transaction, consummation of a financing transaction or equity issuance, the proceeds of which are used to
fund such redemption, or other event. If any redemption is so subject to the satisfaction of one or more conditions precedent, the notice
thereof shall describe each such condition and, if applicable, shall state that, in the Company’s sole discretion, the Redemption
Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion),
and/or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been
satisfied (or waived by the Company in its sole discretion) by the Redemption Date, or by the Redemption Date as so delayed, and/or that
such notice may be rescinded at any time by the Company if the Company determines in its sole discretion that any or all of such conditions
will not be satisfied (or waived). If any Redemption Date shall be delayed as contemplated by this Section 3.03 and the terms of
the applicable notice of redemption, such Redemption Date as so delayed may occur at any time after the original Redemption Date set
forth in the applicable notice of redemption and after the satisfaction (or waiver) of any applicable conditions precedent, including,
without limitation, on a date that is less than 10 days after the original Redemption Date or more than 60 days after the date of the
applicable notice of redemption. The Company shall provide written notice of the delay of such Redemption Date or the rescission of such
notice of redemption (and rescission and cancellation of the redemption of the Notes) to the Trustee no later than 10:00 a.m. Eastern
Time (subject to DTC procedures) on the Redemption Date or the Redemption Date as so delayed that all conditions to the redemption have
been satisfied or if any such redemption has been rescinded or delayed. Upon receipt of such notice of delay of such Redemption Date
or rescission of such notice of redemption, such Redemption Date shall be automatically delayed or such notice of redemption shall be
automatically rescinded, as applicable, and the redemption of the Notes shall be automatically delayed or rescinded and cancelled, as
applicable, as provided in such notice. In addition, the Company may provide in such notice that payment of the Redemption Price and
performance of the Company’s obligations with respect to such redemption may be performed by another Person.
Section 3.04 Special
Mandatory Redemption.
If (i) the consummation of the KCA Deutag
Acquisition does not occur on or before the later of (x) October 25, 2025 and (y) such date to which the Company may agree
to extend the “Long Stop Date” under the Purchase Agreement (the “Special Mandatory Redemption Outside Date”),
(ii) prior to the Special Mandatory Redemption Outside Date, the Purchase Agreement is terminated without the consummation of the
KCA Deutag Acquisition or (iii) the Company otherwise notifies the Trustee that it will not pursue the consummation of the KCA Deutag
Acquisition (the earlier of the date of delivery of such notice described in clause (iii), the Special Mandatory Redemption Outside Date
and the date the Purchase Agreement is terminated without consummation of the KCA Deutag Acquisition (the “Special Mandatory Redemption
Trigger Date”)), the Company will be required to redeem the Notes then outstanding (such redemption, the “Special Mandatory
Redemption”), at a special mandatory redemption price equal to 101% of the principal amount of the Notes to be redeemed plus accrued
and unpaid interest to, but excluding, the Special Mandatory Redemption Date (as defined below) (the “Special Mandatory Redemption
Price”).
In the event that the Company becomes obligated
to redeem the Notes pursuant to the Special Mandatory Redemption, it will promptly, and in any event not more than ten Business Days
after the Special Mandatory Redemption Trigger Date, cause notice to be delivered electronically or mailed to each holder of the Notes
at its registered address (such date of notification to the holders, the “redemption notice date”). The notice will inform
holders that the Notes will be redeemed no earlier than the third Business Day and no later than 30 days following the redemption notice
date (the “Special Mandatory Redemption Date”) and that all of the outstanding Notes to be redeemed will be redeemed at the
Special Mandatory Redemption Price on the Special Mandatory Redemption Date automatically and without any further action by the holders
of the Notes. No later than 10:00 a.m., New York City time, on the Special Mandatory Redemption Date, the Company will deposit with the
Trustee funds sufficient to pay the Special Mandatory Redemption Price. Unless the Company defaults in payment of the Special Mandatory
Redemption Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Notes to be redeemed.
Upon the occurrence of the closing of the KCA
Deutag Acquisition, this Section 3.04 shall terminate and cease to be of no further force or effect.
Article 4
COVENANTS
Section 4.01 Covenants.
The Company shall be subject to the covenants
pursuant to the provisions of Article III of the Original Indenture and this Article 4.
Section 4.02 Limitation
on Liens.
(a) So long as any Notes are outstanding,
the Company will not, nor will it permit any Subsidiary to, issue, assume or guarantee any Debt, if such Debt is secured by a mortgage
upon any properties of the Company or any Subsidiary or upon any securities or Debt of any Subsidiary (whether such properties, securities
or Debt is now owned or hereafter acquired) without in any such case effectively providing that the Notes shall be secured equally and
ratably with (or prior to) such Debt, except that the foregoing restrictions shall not apply to:
(i) mortgages on any property
acquired (and related contracts, intangibles and other assets incidental thereto or arising therefrom (including improvements and accessions
thereto and replacements or proceeds thereof)), constructed, developed, operated, altered, repaired or improved by the Company or any
Subsidiary (or mortgages on the securities of, or equity interests in, a special purpose Subsidiary which holds no material assets other
than the property being acquired, constructed, developed, operated, altered, repaired or improved) after the date of the Indenture which
are created within 360 days after such acquisition (or in the case of property constructed, developed, operated, altered, repaired or
improved, after the completion and commencement of commercial operation of such property, whichever is later), to secure or provide for
all or any part of the payment of the purchase price or cost thereof (including to secure indebtedness to finance all or any part of
such purchase price or cost); provided that in the case of such construction, development, operation, alteration, repair or improvement,
the mortgages shall not apply to any property owned by the Company or any Subsidiary before such construction, development, operation,
alteration, repair or improvement other than (1) unimproved real property on which the property so constructed, or the development,
operation, alteration, repair or improvement, is located or (2) personal property which is so improved (and related contracts, intangibles
and other assets incidental thereto or arising therefrom (including improvements and accessions thereto and replacements or proceeds
thereof));
(ii) (1) mortgages
existing on the Initial Issuance Date, (2) existing mortgages on property acquired (including mortgages on any property acquired
from a person which is consolidated with or merged with or into the Company or a Subsidiary) or (3) mortgages outstanding at the
time any corporation, partnership or other entity becomes a Subsidiary or is consolidated with or merged with or into the Company or
a Subsidiary, including mortgages on the securities of, or equity interests in, such corporation, partnership or other entity; provided
that in the case of (3) such mortgages shall only apply to property owned by, or securities of or equity interests in, such corporation,
partnership or other entity at the time it becomes a Subsidiary or that is acquired thereafter other than from the Company or another
Subsidiary;
(iii) mortgages
in favor of the Company or any Subsidiary;
(iv) mortgages
in favor of domestic or foreign governmental bodies to secure advances or other payments or performance pursuant to any contract or statute
or to secure indebtedness incurred to finance the purchase price or cost of constructing, developing, operating, altering, repairing
or improving the property subject to such mortgages (and related contracts, intangibles and other assets incidental thereto or arising
therefrom (including improvements and accessions thereto and replacements or proceeds thereof)), including mortgages to secure Debt of
the pollution control or industrial revenue bond type;
(v) mortgages
consisting of pledges or deposits by the Company or any Subsidiary under workers’ compensation laws, unemployment insurance laws
or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases
to which the Company or any Subsidiary is a party, or deposits to secure public or statutory obligations or regulatory obligations of
the Company or any Subsidiary or deposits of cash or United States of America government bonds to secure surety or appeal bonds to which
it is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case incurred
in the ordinary course of business;
(vi) mortgages
imposed by law, including materialmen’s, carriers’, warehousemen’s, repairman’s, builders’, workmen’s,
landlords’ and mechanics’ liens, in each case for sums not overdue for a period of more than 45 days or being contested in
good faith by appropriate proceedings;
(vii) mortgages
for taxes, assessments or other governmental charges that are not yet delinquent or which are being contested in good faith by appropriate
proceedings or which thereafter can be paid without penalty;
(viii) mortgages
in favor of issuers of surety or performance and return of money bonds or letters of credit or bankers’ acceptances issued pursuant
to the request of and for the account of the Company or any Subsidiary in the ordinary course of its business;
(ix) mortgages consisting of encumbrances,
easements or reservations of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines,
roads, pipe lines, water mains and other similar purposes, or mortgages consisting of zoning or other restrictions as to the use of real
properties or mortgages incidental to the conduct of the business of the Company or a Subsidiary or to the ownership of its properties
which do not materially adversely affect the value of said properties or materially impair their use in the operation of the business
of the Company or a Subsidiary;
(x) mortgages
arising by virtue of any statutory or common law provisions or included in any customary deposit account agreements or related or similar
documentation relating to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depository institution;
(xi) mortgages
on the stock, partnership or other equity interest in any Joint Venture of the Company or any of its Subsidiaries, or in any Subsidiary
of the Company that owns an equity interest in a Joint Venture of the Company to secure Debt contributed and/or advanced solely to that
Joint Venture;
(xii) mortgages
on insurance policies and the proceeds thereof incurred in connection with the financing of insurance premiums;
(xiii) any
mortgage over goods (or any documents relating thereto) arising either in favor of a bank issuing a form of documentary credit in connection
with the purchase of such goods or by way of retention of title by the supplier of such goods where such goods are supplied on credit,
subject to such retention of title, and in both cases where such goods are acquired in the ordinary course of business;
(xiv) mortgages
in favor of a seller on any segregated cash earnest money deposits made by the Company or any of its Subsidiaries in connection with
any executed letter of intent or purchase agreement for a purchase of property or assets not prohibited by the indenture;
​(xv) any
mortgage on the funds and accounts securing any Debt of the Company or any Subsidiary pursuant to customary escrow arrangements
pending the release thereof, or pursuant to customary discharge, redemption or defeasance provisions; or
(xvi) any
extension, renewal, substitution, refinancing or replacement (or successive extensions, renewals, substitutions, refinancings or replacements),
in whole or in part, of any mortgage referred to in the foregoing clauses (a) through (o), inclusive; provided that (1) such
extension, renewal, substitution, refinancing or replacement mortgage shall not extend beyond the property or assets that secured
or were of the type that secured the mortgage extended, renewed, substituted, refinanced or replaced, plus improvements, accessions to
and replacements or proceeds thereof on such property or assets, unless otherwise permitted by this covenant, and (2) the Debt secured
by such mortgage is not greater in principal amount than the Debt secured by the mortgage extended, renewed, substituted, refinanced
or replaced plus the amount of fees and expenses and any prepayment premiums or breakage costs incurred in connection therewith.
(b) In addition to the foregoing exceptions
to the limitations set forth in Section 4.02(a), the Company and any Subsidiary may, without securing the Notes, issue, assume or
guarantee Debt secured by a mortgage that, taken together with certain Attributable Debt described in the following sentence, does not
in the aggregate exceed 15.0% of Consolidated Net Tangible Assets determined at the time of incurrence. The Attributable Debt to be aggregated
for purposes of this exception is all Attributable Debt in respect of Sale and Lease-Back Transactions of the Company and its Subsidiaries
under the exception in clause (2) of Section 4.03(e) existing at such time.
Section 4.03 Limitations
on Sale and Lease-Back Transactions. So long as any Notes are outstanding, the Company will not, nor will it permit any Subsidiary
to, enter into any Sale and Lease-Back Transaction, other than any Sale and Lease-Back Transaction:
(a) entered into within 360 days of the
later of the acquisition, construction, development, operation, alteration, repair, improvement or placing into service of the property
subject thereto by the Company or such Subsidiary;
(b) involving a lease of less than five
years;
(c) entered into in connection with an industrial
revenue bond or pollution control financing;
(d) between or among the Company and/or
one or more Subsidiaries;
(e) as to which the Company or such Subsidiary
would be entitled to incur Debt secured by a mortgage on the property to be leased in an amount equal to the Attributable Debt with respect
to such Sale and Lease-Back Transaction without equally and ratably securing the Notes (1) under clauses (i) through (xvi) of
Section 4.02(a) or (2) under Section 4.02(b); or
(f) as to which the Company will apply an
amount equal to the net proceeds from the sale of the property so leased to (1) the retirement (other than any mandatory retirement),
within 360 days of the effective date of any such Sale and Lease-Back Transaction, of Notes or of Funded Debt of the Company or a Subsidiary
or (2) the acquisition, construction, development, operation, alteration, repair or improvement of other property, provided that
such property is owned by the Company or a Subsidiary free and clear of all mortgages.
Section 4.04 Reports.
The Company covenants to furnish to the Trustee,
within 15 days after the Company files the same with the SEC, copies of the annual reports and of the information, documents and other
reports that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange
Act or pursuant to Section 314 of the Trust Indenture Act; provided, however, that the Company will be deemed to have furnished
such reports to the Trustee if they have filed such reports with the SEC using the EDGAR filing system (or any successor thereto) and
such reports are publicly available.
At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act and the Notes are not freely transferrable under the Securities Act, upon the request
of a Holder of the Notes, the Company will promptly furnish or cause to be furnished the information specified under Rule 144A(d)(4) of
the Securities Act to such Holder, or to a prospective purchaser of a Note designated by such Holder, in order to permit compliance with
Rule 144A under the Securities Act.
Delivery of such reports, information and documents
to the Trustee is for informational purposes only, and the Trustee’s receipt thereof shall not constitute actual or constructive
knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s
or any other Person’s compliance with any of the covenants under the Indenture or the Notes (as to which the Trustee is entitled
to rely exclusively on Officers’ Certificates). The Trustee shall have no duty or obligation whatsoever to monitor or confirm,
on a continuing basis or otherwise, the Company’s or any other Person’s compliance with any of the covenants described herein
or to determine whether such reports, information or documents have been posted on any website or other online data system or filed with
the SEC through EDGAR (or other applicable system), to examine such reports, information, documents and other reports to ensure compliance
with the provisions of the Indenture, to ascertain the correctness or otherwise of the information or the statements contained therein
or to participate in any conference calls.
Section 4.05 Change
of Control Offer.
Upon the occurrence of a Change of Control Triggering
Event, each Holder of Notes will have the right to require the Company to purchase all or any part (equal to a minimum of $2,000 or an
integral multiple of $1,000 in excess thereof) of the Holder’s Notes at a purchase price in cash equal to 101% (the “Change
of Control Price”) of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase
(subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date),
except to the extent that the Company has exercised its right to redeem the Notes as described under Section 3.02 or as otherwise
set forth in this section.
(a) Within
60 days following the date upon which the Change of Control Triggering Event has occurred, or at the Company’s option, prior to
any Change of Control but after the public announcement of the transaction that constitutes or may constitute the Change of Control,
except to the extent that the Company has exercised its right to redeem the Notes as described under Section 3.02 or as otherwise
set forth in this section, the Company will send a notice (a “Change of Control Offer”) to each holder of Notes with a copy
to the Trustee, which notice will govern the terms of the Change of Control Offer, stating:
(i) that
a Change of Control Triggering Event with respect to Notes has occurred and that such holder has the right to require the Company to
purchase such holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to, but excluding, the date of purchase (subject to the right of holders of record on the relevant record date to receive
interest on the relevant Interest Payment Date);
(ii) the
circumstances regarding such Change of Control Triggering Event;
(iii) the
purchase date (which shall be (i) no earlier than 30 days nor later than 60 days from the date such notice is sent, if sent after
consummation of the Change of Control and (ii) on the date of the Change of Control, if sent prior to consummation of the Change
of Control, in each case, other than as may be required by law) (such date, the “Change of Control Payment Date”); and
(iv) the
instructions that a holder must follow in order to have its Notes purchased.
(b) Holders
of Notes electing to have Notes purchased pursuant to a Change of Control Offer will be required to surrender their Notes, with the form
entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified
in the notice, or transfer their Notes to the paying agent by book-entry transfer pursuant to the applicable procedures of the Paying
Agent and DTC, prior to the close of business on the third Business Day prior to the Change of Control Payment Date.
(c) The
Company may make a Change of Control Offer in advance of a Change of Control and the Change of Control Payment Date, and the Company’s
Change of Control Offer may be conditioned upon such Change of Control, if a definitive agreement is in place for the Change of Control
at the time of making the Change of Control Offer.
(d) If
Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw the Notes in a
Change of Control Offer, Alternate Offer or any other tender offer and the Company (or any third party making a Change of Control Offer,
Alternate Offer or other tender offer in lieu of the Company, as described below) purchases all of the Notes validly tendered and not
withdrawn by such Holders pursuant to such Change of Control Offer, Alternate Offer or other tender offer, as applicable, the Company
will have the right, upon not less than 10 nor more than 60 days’ prior notice, given not more than 10 days following such purchase
pursuant to the Change of Control Offer, Alternate Offer or other tender offer described above, as the case may be, to redeem all Notes
that remain outstanding following such purchase at a Redemption Price in cash equal to 101% of the principal amount thereof, plus accrued
and unpaid interest, if any, to, but excluding, the Redemption Date (subject to the right of holders of record on the relevant record
date to receive interest on the relevant Interest Payment Date). Any such redemption pursuant to this Section 4.05(d) shall
be made in accordance with Article X of the Original Indenture.
(e) The
Company will not be required to make a Change of Control Offer if (1) a third party makes such an offer in the manner, at the times
and otherwise in compliance with the requirements for such an offer made by the Company and such third party purchases all Notes properly
tendered and not withdrawn under its offer or (2) in connection with or in contemplation of any Change of Control, the Company has
made an offer to purchase (an “Alternate Offer”) any and all Notes validly tendered at a cash price equal to or higher than
the Change of Control Price and purchases all Notes properly tendered in accordance with the terms of such Alternate Offer.
(f) The
Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer.
(g) The
Holders of a majority in principal amount of the outstanding Notes may, on behalf of the holders of all Notes, in accordance with Section 8.02
of the Original Indenture, amend or waive the right of the Holders to require the Company to purchase all or any part of each holder’s
Notes as a consequence of a Change of Control Triggering Event.
Article 5
SUPPLEMENTAL INDENTURES
Section 5.01 Amending
Without Consent of Holders to Conform to the Description of Notes.
With respect to the Notes, in addition to the
circumstances described in Section 8.01 of the Original Indenture, the Company and the Trustee may amend or supplement the Indenture
as it relates to the Notes without the consent of any Holder of outstanding Notes to conform the text of the Indenture or the Notes to
the “Description of the Notes” set forth in the offering memorandum of the Company, dated September 10, 2024, relating
to the initial offering of the Notes.
Article 6
MISCELLANEOUS
Section 6.01 Fifth
Supplemental Indenture Controls.
To the extent that there is any conflict or inconsistency
between the Original Indenture and this Fifth Supplemental Indenture, the provisions of this Fifth Supplemental Indenture shall control.
Section 6.02 No
Recourse Against Others.
A director, officer, employee or stockholder of
the Company, as such, shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release shall be part of the consideration for the issue of the Notes.
Section 6.03 Governing
Law.
This Fifth Supplemental Indenture and the Notes
shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 6.04 No
Adverse Interpretation of Other Agreements.
This Fifth Supplemental Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company. Any such indenture, loan or debt agreement may not be used to
interpret the Indenture.
Section 6.05 Successors.
All agreements of the Company in the Indenture
and the Securities shall bind its successor. All agreements of the Trustee in the Indenture shall bind its successor.
Section 6.06 Severability.
In case any provision in this Fifth Supplemental
Indenture, Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 6.07 Counterparts.
This Fifth Supplemental Indenture shall be valid,
binding and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means
of (i) in the case of this Fifth Supplemental Indenture and any certificate, agreement or other document to be signed in connection
with this Fifth Supplemental Indenture and the transactions contemplated hereby, other than any Notes, any electronic signature permitted
by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act,
and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively,
“Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature.
Each electronic signature (except in the case of any Notes) or faxed, scanned, or photocopied manual signature shall for all purposes
have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled
to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other
electronic signature (except in the case of any Notes), of any party and shall have no duty to investigate, confirm or otherwise verify
the validity or authenticity thereof. This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. The exchange of copies
of this Fifth Supplemental Indenture and of signature pages by facsimile, PDF or other electronic transmission shall constitute
effective execution and delivery of this Fifth Supplemental Indenture as to the parties hereto and may be used in lieu of the original
Fifth Supplemental Indenture for all purposes. Notwithstanding the foregoing, original manual signatures shall be used for authentication
by the Trustee of any Notes, and execution or indorsement of writings when required under the UCC or other Signature Law due to the character
or intended character of the writings.
Section 6.08 Force
Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, (i) any act or provision of present or future law or regulation or governmental
authority, (ii) labor disputes, strikes or work stoppages, (iii) accidents, (iv) acts of war or terrorism, (v) civil
or military disturbances, (vi) nuclear or natural catastrophes or acts of God, (vii) epidemics or pandemics, (viii) disease,
(ix) quarantine, (x) national emergency, (xi) interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, (xii) communications system failure, (xiii) malware or ransomware, (xiv) the unavailability
of the Federal Reserve Bank wire, telex or other communication or wire facility, or (xv) unavailability of any securities clearing
system; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section 6.09 Table
of Contents and Headings.
The Table of Contents and headings of the Articles
and Sections of this Fifth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
Section 6.10 The
Trustee.
The recitals contained herein shall be taken as
statements of the Company, and the Trustee does not assume any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Fifth Supplemental Indenture, except that the Trustee represents that it is duly authorized
to execute and deliver this Fifth Supplemental Indenture and perform its obligations hereunder. This Fifth Supplemental Indenture is
executed and accepted by the Trustee subject to all the terms and conditions set forth in the Original Indenture with the same force
and effect as if those terms and conditions were repeated at length herein and made applicable to the Trustee with respect hereto.
[Signatures on following page]
IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental Indenture to be duly executed as of the day and year
first above written.
| Company: |
| | |
| HELMERICH & PAYNE, INC. |
| | |
| By: | /s/ J. Kevin
Vann |
| | Name: |
J. Kevin Vann |
| | Title: |
Senior Vice President and Chief Financial Officer |
[Signature Page to
Fifth Supplemental Indenture]
| Trustee: |
| | |
| COMPUTERSHARE TRUST COMPANY, N.A. |
| | |
| By: | /s/ Corey J.
Dahlstrand |
| Name: |
Corey J. Dahlstrand |
| Title: |
Vice President |
[Signature Page to
Fifth Supplemental Indenture]
RULE 144A/REGULATION S APPENDIX
Article 1
PROVISIONS RELATING TO INITIAL NOTES AND EXCHANGE NOTES
Section 1.01 Definitions
(a) Definitions.
For the purposes of this Appendix the following terms shall have the meanings indicated below:
“Depository” means The Depository
Trust Company, its nominees and their respective successors.
“Exchange Notes” means (1) the
5.500% Senior Notes due 2034 issued pursuant to the Indenture in connection with a Registered Exchange Offer pursuant to a Registration
Rights Agreement and (2) Additional Notes, if any, issued pursuant to a registration statement filed with the SEC under the Securities
Act.
“IAI”
means an institution that is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
“Initial Notes” means (1) $550,000,000
aggregate principal amount of the Company’s 5.500% Senior Notes due 2034 issued pursuant to the Indenture on the Initial Issuance
Date and (2) Additional Notes, if any, issued in a transaction exempt from the registration requirements of the Securities Act.
“Notes” means the Initial Notes,
the Additional Notes, if any, and the Exchange Notes, treated as a single class.
“Notes Custodian” means the
custodian with respect to a Global Note (as appointed by the Depository), or any successor Person thereto and shall initially be the
Trustee.
“Notes Purchase Agreement”
means (1) with respect to the Initial Notes issued on the Initial Issuance Date, the purchase agreement dated September 10,
2024 among the Company and the Initial Purchasers named therein, and (2) with respect to each issuance of Additional Notes, the
purchase agreement or underwriting agreement among the Company and the Persons purchasing such Additional Notes.
“QIB” means a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act.
“Registered Exchange Offer”
means the offer by the Company, pursuant to a Registration Rights Agreement, to certain Holders of Initial Notes, to issue and deliver
to such Holders, in exchange for the Initial Notes, a like aggregate principal amount of Exchange Notes registered under the Securities
Act.
“Registration Rights Agreement”
means (1) with respect to the Initial Notes issued on the Initial Issuance Date, the Registration Rights Agreement dated September 17,
2024 among the Company and the Initial Purchasers named therein and (2) with respect to each issuance of Additional Notes issued
in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, among the
Company and the Persons purchasing such Additional Notes under the related Notes Purchase Agreement.
“Shelf Registration Statement”
means a “shelf” registration statement of the Company filed with the SEC pursuant to a Registration Rights Agreement and
providing for the sales of Notes.
“Transfer Restricted Securities”
means Notes that bear or are required to bear the legend set forth in Section 2.03(b) hereof.
Section 1.02 Other
Definitions.
Term |
|
Defined in Section |
“Agent Members” |
|
2.01(b) |
“Distribution Compliance Period” |
|
2.01(b) |
“Global Notes” |
|
2.01(a) |
“IAI Notes” |
|
2.01(a) |
“Regulation S” |
|
2.01(a) |
“Regulation S Notes” |
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2.01(a) |
“Restricted Global Note” |
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2.01(a) |
“Rule 144A” |
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2.01(a) |
“Rule 144A Notes” |
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2.01(a) |
Article 2
THE NOTES
Section 2.01
(a) Form and
Dating. Initial Notes offered and sold to (i) QIBs in reliance on Rule 144A (“Rule 144A Notes”) under
the Securities Act (“Rule 144A”) or in reliance on Regulation S (“Regulation S Notes”) under the Securities
Act (“Regulation S”), and (ii) IAIs in reliance on an exemption from the registration requirements of the Securities
Act other than Rule 144A (“IAI Notes”), in each case as provided in a Notes Purchase Agreement, shall be issued initially
in the form of one or more permanent Notes in definitive, fully registered form without interest coupons with the Notes legend and restricted
Notes legend set forth in Exhibit A to this Fifth Supplemental Indenture (each, a “Restricted Global Note”), which shall
be deposited on behalf of the purchasers of the Initial Notes represented thereby with the Trustee, as custodian for the Depository (or
with such other custodian as the Depository may direct), and registered in the name of the Depository or a nominee of the Depository,
duly executed by the Company and authenticated by the Trustee as hereinafter provided. Beneficial interests in a Restricted Global Note
representing Initial Notes sold in reliance on either Rule 144A or Regulation S may be held through Euroclear or Clearstream, as
indirect participants in the Depository. The aggregate principal amount of the Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the Depository or its nominee as hereinafter provided. Additional Notes or other
Notes (including Exchange Notes), in each case that are not Transfer Restricted Notes, shall be issued in global form (with the global
Notes legend set forth in Exhibit A) or in certificated form as provided in the Indenture. Notes issued in global form and Restricted
Global Notes are sometimes referred to in this Appendix as “Global Notes.” The Global Notes are “Global Securities”
within the meaning of the Indenture, and shall be subject to the further provisions of the Indenture with respect thereto.
(b) Book-Entry
Provisions. This Section 2.01(b) shall apply only to a Global Note deposited with or on behalf of the Depository. The Company
shall execute and the Trustee shall, in accordance with this Section 2.01(b) and the Indenture, authenticate and deliver initially
one or more Global Notes that (a) shall be registered in the name of the Depository for such Global Note or Global Notes or the
nominee of such Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such Depository’s instructions
or held by the Trustee as custodian for the Depository. If such Global Notes are Restricted Global Notes, then separate Global Notes
shall be issued to represent Rule 144A Notes, Regulation S Notes and IAI Notes so long as required by law or the Depository.
Members of, or participants in, the Depository
(“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depository
or by the Trustee as the custodian of the Depository or under such Global Note, and the Company, the Trustee and any agent of the Company
or the Trustee shall be entitled to treat the Depository as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent
Members, the operation of customary practices of such Depository governing the exercise of the rights of a holder of a beneficial interest
in any Global Note.
Until the 40th day after the later of the commencement
of the offering of any Initial Notes and the original issue date of such Initial Notes (such period, the “Distribution Compliance
Period”), a beneficial interest in a Restricted Global Note representing Regulation S Notes may be transferred to a Person who
takes delivery in the form of an interest in a Restricted Global Note representing Rule 144A Notes only if the transferor first
delivers to the Trustee a written certificate (in the form provided in the form of Note in Exhibit A) to the effect that such transfer
is being made to a Person who the transferor reasonably believes is purchasing for its own account or accounts as to which it exercises
sole investment discretion and that such Person is a QIB, in each case in a transaction meeting the requirements of Rule 144A and
in accordance with any applicable securities laws of any state of the United States or any other jurisdiction. After the expiration of
the Distribution Compliance Period, such certification requirements shall not apply to such transfers of beneficial interests in a Restricted
Global Note representing Regulation S Notes.
Beneficial interests in a Restricted Global Note
representing Rule 144A Notes may be transferred to a Person who takes delivery in the form of an interest in a Restricted Global
Note representing Regulation S Notes, whether before or after the expiration of the Distribution Compliance Period, only if the transferor
first delivers to the Trustee a written certificate (in the form provided in the form of Note in Exhibit A) to the effect that such
transfer is being made in accordance with Rule 904 of Regulation S or Rule 144 (if available).
(c) Certificated
Notes. Except as provided in the Indenture, owners of beneficial interests in Restricted Global Notes shall not be entitled to receive
physical delivery of certificated Notes. Certificated Notes shall not be exchangeable for beneficial interests in Global Notes.
Section 2.02 Authentication.
The Trustee shall authenticate and deliver Notes as provided in the Indenture.
Section 2.03 Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes.
(1) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depository, in accordance with the
Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depository therefor. A transferor
of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depository’s
procedures containing information regarding the participant account of the Depository to be credited with a beneficial interest in the
Global Note. The Registrar shall, in accordance with such instructions instruct the Depository to credit to the account of the Person
specified in such instructions a beneficial interest in the Global Note and to debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(2) Notwithstanding
any other provisions of this Appendix, a Global Note may not be transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such successor Depository.
(3) In
the event that a Restricted Global Note is exchanged for Notes in certificated form pursuant to the Indenture, prior to the effectiveness
of a Shelf Registration Statement with respect to such Notes, such Notes may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.03 (including the certification requirements set forth on the
reverse of the Initial Notes intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case may be) and
such other procedures as may from time to time be adopted by the Company.
(b) Restricted
Notes Legend.
(1) Except
as permitted by the following paragraphs (2) and (3), each Note certificate evidencing the Restricted Global Notes (and all Notes
issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.”
(2) Upon
any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Restricted Global
Note) pursuant to Rule 144 under the Securities Act, the Registrar shall permit the transferee thereof to exchange such Transfer
Restricted Security for a certificated Note that does not bear the legend set forth above and rescind any restriction on the transfer
of such Transfer Restricted Security, if the transferor thereof certifies in writing to the Registrar that such sale or transfer was
made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Note).
(3) After
a transfer of any Initial Note pursuant to and during the period of the effectiveness of a Shelf Registration Statement with respect
to such Initial Note, all requirements pertaining to legends on such Initial Note will cease to apply, any requirement that any such
Initial Note issued to certain Holders be issued in global form will cease to apply, and a certificated Initial Note or an Initial Note
in global form, in each case without restrictive transfer legends, will be available to the transferee of the Holder of such Initial
Note upon exchange of such transferring Holder’s certificated Initial Note or directions to transfer such Holder’s interest
in the Global Note, as applicable.
(c) Exchange
of Initial Notes for Exchange Notes. The Initial Notes may be exchanged for Exchange Notes pursuant to the terms of the Registered
Exchange Offer. The Trustee shall make the exchange as follows:
(1) The
Company shall present the Trustee with an Officers’ Certificate certifying the following:
(A) upon
issuance of the Exchange Notes, the transactions contemplated by the Registered Exchange Offer have been consummated; and
(B) the
principal amount of Initial Notes properly tendered in the Registered Exchange Offer that are represented by a Global Note or by Global
Notes and the principal amount of Initial Notes properly tendered in the Registered Exchange Offer that are represented by individual
Initial Notes, the name of each Holder of such individual Initial Notes, the principal amount properly tendered in the Registered Exchange
Offer by each such Holder and the name and address to which individual Registered Exchange Notes shall be registered and sent for each
such Holder.
The Trustee, upon receipt of (i) such Officers’
Certificate, (ii) an Opinion of Counsel to the Company addressed to the Trustee of the Notes to the effect that the Exchange Notes
have been registered under Section 5 of the Securities Act, and the Indenture has been qualified under the Trust Indenture Act and
(iii) an Issuer Order, shall authenticate a Global Note or Global Notes for Exchange Notes in aggregate principal amount equal to
the aggregate principal amount of Initial Notes represented by a Global Note or by Global Notes indicated in such Officers’ Certificate
as having been properly tendered.
If the principal amount of the Global Note or
Global Notes for the Exchange Notes is less than the principal amount of the Global Note or Global Notes for the Initial Notes, the Trustee
shall make an endorsement on such Global Note or Global Notes for Initial Notes indicating a reduction in the principal amount represented
thereby.
EXHIBIT A
FACE OF 2034 NOTE
[GLOBAL SECURITY LEGEND]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND
IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE REGISTRAR MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.07(a) OF THE INDENTURE AND (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.1
1 These paragraphs should be included only if the
Security is a Global Security
[RESTRICTED NOTES LEGEND]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.2
2 These paragraphs should be included only if the Security
is a Restricted Global Note.
HELMERICH & PAYNE, INC.
5.500% SENIOR NOTE DUE 2034
No.
Helmerich & Payne, Inc., a Delaware
corporation (the “Company”), for value received promises to pay to ____________________, or registered assigns, the principal
sum of ____________________ Dollars [or such greater or lesser amount as is indicated on the Schedule of Exchanges of Interests in the
Global Securities on the other side of this Note]3 on December 1, 2034.
Interest Payment Dates: June 1 and December 1,
commencing June 1, 2025
Record Dates: May 15 and November 15
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.
3 To be included only if the Note is a Global Security.
[Signature Page Follows]
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by one of its duly authorized officers.
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HELMERICH & PAYNE, INC. |
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By: |
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Name: |
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Title: |
Dated:
Certificate of Authentication:
This is one of
the Notes referred to in the within-
mentioned Indenture.
COMPUTERSHARE
TRUST COMPANY, N.A., as Trustee
Dated:
REVERSE OF NOTE
HELMERICH & PAYNE, INC.
5.500% SENIOR NOTE DUE 2034
This Security is one of a duly authorized issue
of 5.500% Senior Notes due 2034 (the “Notes”) of Helmerich & Payne, Inc., a Delaware corporation (the “Company”),
issued under the Indenture referred to herein.
1. Interest.
The Company promises to pay interest on the unpaid principal amount of this Note at a rate of 5.500% per annum. [In addition, the Company
will pay Special Interest if and to the extent required by the Registration Rights Agreement, dated as of September 17, 2024, among
the Company and the other parties named on the signature pages thereof.]4 The Company will pay interest semi-annually
on June 1 and December 1 of each year (each an “Interest Payment Date”), beginning June 1, 2025, or if any
such day is not a Business Day, on the next succeeding Business Day. Interest on this Note will accrue from the most recent Interest
Payment Date on which interest has been paid or, if no interest has been paid, from September 17, 2024; provided that if there
is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof
and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date. Further, to the
extent lawful, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and interest (without regard to any applicable grace period), at the same rate. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
2. Method
of Payment. The Company will pay interest on this Note (except defaulted interest) to the Persons who are registered Holders of this
Note at the close of business on the record date next preceding the Interest Payment Date, even if this Note is canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender this Note to a Paying Agent to collect payments of principal.
The Company will pay the principal of and interest on this Note in money of the United States of America that at the time of payment
is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Security (including
principal and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust
Company. The Company will make all payments in respect of a certificated Security (including principal and interest) at the Corporate
Trust Office of the Trustee or at the office or agency of the Paying Agent maintained for such purpose in The City of New York or, at
its option, by mailing a check to the registered address of each Holder thereof; provided, however, that payments on a certificated
Security of not less than $1,000,000 aggregate principal amount of Securities will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date
for payment (or such other date as the Trustee may accept in its discretion).
3. Ranking
and Guarantees. This Note is a senior unsecured obligation of the Company, and may in the future be guaranteed by Subsidiaries of
the Company as provided in the Indenture (a “Guarantee”). A Guarantee may be released in accordance with the terms of the
Indenture. References herein to the Indenture or the Securities shall be deemed also to refer to the Guarantees, if any, set forth in
the Indenture except where the context otherwise requires.
4. Optional
Redemption; Special Mandatory Redemption; Purchases upon Change of Control Triggering Event.
(a) Prior
to September 1, 2034 (the “Par Call Date”), the Company may redeem the Notes at its option, in whole or in part, at
any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places)
equal to the greater of: (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points less (b) interest accrued to, but not including,
the Redemption Date; and (ii) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid
interest thereon to, but not including, the Redemption Date.
4 To be included for Initial Notes
The Company’s actions and determinations
in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall not be
responsible for calculating the Redemption Price or any component thereof.
Unless the Company defaults in payment of the
Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
The Company also may from time to time purchase
Notes in tender offers, open market purchases or negotiated transactions without prior notice to the holders of the Notes.
On or after the Par Call Date, the Company may
redeem the Notes in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount
of the Notes being redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
The Notes may also be redeemed in certain circumstances
described in Section 4.05(d) of the Fifth Supplemental Indenture.
(b) Upon
the occurrence of a Change of Control Triggering Event, each holder of Notes will have the right to require the Company to purchase all
or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of the holder’s Notes at a purchase price in
cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase
(subject to the right of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date),
subject to the limitations set forth in the Indenture.
(c) The
Notes are subject to redemption pursuant to Section 3.04 of the Fifth Supplemental Indenture.
5. Paying
Agent and Registrar. Initially, Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of the Company’s Subsidiaries may act in any such capacity.
6. Indenture.
The Company issued this Note under an Indenture dated as of December 20, 2018 (the “Original Indenture”) and the Fifth
Supplemental Indenture thereto dated as of September 17, 2024 (the “Fifth Supplemental Indenture”, together with the
Original Indenture and as amended, supplemented or otherwise modified from time to time, the “Indenture”) between the Company
and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association) (the “Trustee”). The terms
of this Note include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb). This Note is subject to all such terms, and Holders are referred to the Indenture and
the Trust Indenture Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions
of the Indenture, the provisions of the Indenture shall govern and be controlling (to the extent permitted by law). The Company initially
has issued $550,000,000 aggregate principal amount of Notes. The Company may issue Additional Notes of the same series as this Note under
the Indenture, provided that if the Additional Notes are not fungible with the Notes for U.S. federal income tax purposes, then they
must be issued with a different CUSIP number. Capitalized terms used but not defined in this Security have the respective meanings given
to such terms in the Indenture.
7. Denominations,
Transfer, Exchange. The Securities are issuable only in registered form without coupons in minimum denominations of $2,000 and integral
multiples of $1,000 in excess thereof. The transfer of this Security may be registered and this Security may be exchanged only as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any transfer tax or similar governmental charge or other fee required by law and payable in connection therewith.
The Registrar need not exchange or register the transfer of this Security during the period between a record date and the corresponding
Interest Payment Date.
8. Persons
Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
9. Amendments
and Waivers. Subject to certain exceptions and limitations, the Indenture or this Security may be amended or supplemented with the
consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes, and compliance in a particular instance
by the Company with any provision of the Indenture with respect to the Notes may be waived (other than certain provisions, including
any continuing Default or Event of Default in the payment of the principal of or interest on the Notes) by the Holders of a majority
in aggregate principal amount of the Notes then outstanding in accordance with the terms of Section 8.02 of the Indenture. Without
the consent of any Holder, the Company and the Trustee may amend or supplement this Security as provided in Section 8.01 of the
Indenture.
The right of any Holder to participate in any
consent required or sought pursuant to any provision of the Indenture (and the obligation of the Company to obtain any such consent otherwise
required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of this Note as of
a record date fixed by the Company in accordance with the terms of the Indenture.
10. Defaults
and Remedies. If an Event of Default (other than certain Events of Default relating to bankruptcy events as provided in the Indenture)
occurs and is continuing, either the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes may declare
the principal amount of the Notes to be due and payable immediately. If any Event of Default relating to bankruptcy events as provided
in the Indenture occurs, the principal amount of the Notes will be automatically due and payable immediately. However, any time after
an acceleration with respect to the Notes has occurred, but before a judgment or decree based on such acceleration has been obtained,
the Holders of a majority in principal amount of outstanding Notes may, under some circumstances, rescind and annul such acceleration.
The majority-holders, however, may not annul or waive a continuing default in payment of principal of, premium, if any, or interest on
the Notes.
11. No
Recourse Against Others. A director, officer, employee or stockholder of the Company, as such, shall not have any liability for any
obligations of the Company under this Security or the Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Holder by accepting this Note waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
12. Authentication.
This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that this Note has been authenticated
under the Indenture.
13. CUSIP
Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has
caused a CUSIP number to be printed on this Note as a convenience to the Holders of this Note. No representation is made as to the correctness
of such number either as printed on this Note or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on this Note.
14. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants
by the entireties), JT TEN (=joint tenants with right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform
Gifts to Minors Act).
15. [Additional
Rights of Holders of Restricted Global Securities and Restricted Definitive Securities. In addition to the rights provided to Holders
of Securities under the Indenture, Holders of Securities will have the rights set forth in the Registration Rights Agreement, dated as
of September 17, 2024, among the Company and the other parties named on the signature pages thereof.]5
16. Governing
Law. The Indenture and this Note shall be governed by and construed in accordance with, the laws of the State of New York.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Request may be made to it at:
Helmerich & Payne, Inc.
222 North Detroit Avenue
Tulsa, Oklahoma 74120
Attention: Chief Legal Officer
E-mail: investor.relations@hpinc.com
5 Delete for Exchange Note
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we)
assign and transfer this Security to:
(Insert assignee’s social security or tax
I.D. number)
(Print or type assignee’s name, address
and zip code)
and irrevocably appoint _______________ as agent to transfer this
Security on the books of the Company. The agent may substitute another to act for him.
Your Signature:
(Sign exactly as your name
appears on the face of this Security)
Signature Guarantee:
(Participant in a Recognized Signature Guaranty
Medallion Program)
SCHEDULE OF EXCHANGES
OF INTERESTS IN THE GLOBAL SECURITY6
The following increases
or decreases in the principal amount of this Global Security have been made:
Date of
Transaction |
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Amount of
Decrease in
Principal Amount
of Global Security |
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Amount of
Increase in
Principal Amount
of Global Security |
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Principal
Amount
of Global Security
Following Such
Decrease (or
Increase) |
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Signature
of
Authorized
Signatory, Trustee
or Securities
Custodian |
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6 This Schedule should be included only if the Note is a Global Security.
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased
by the Company pursuant to Section 4.05 of the Fifth Supplemental Indenture, check the box below:
¨
If you want to elect to have only part of the
Security purchased by the Company pursuant to Section 4.05 of the Fifth Supplemental Indenture, state the amount you elect to have
purchased:
$_________
Date:
| Your Signature: |
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| (Sign exactly as your name appears on the face of this Security) |
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| Tax Identification No.: |
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Signature Guarantee:7
7
Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
Exhibit 4.5
HELMERICH &
PAYNE, INC.
$350,000,000 4.650% Senior Notes due 2027
$350,000,000 4.850% Senior Notes due 2029
$550,000,000 5.500% Senior Notes due 2034
REGISTRATION
RIGHTS AGREEMENT
September 17, 2024
MORGAN STANLEY & CO. LLC
GOLDMAN SACHS & CO. LLC
HSBC SECURITIES (USA) INC.
WELLS FARGO SECURITIES, LLC
As Representatives of the Initial Purchasers named
in Schedule A hereto
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282-2198
c/o HSBC Securities (USA) Inc.
66 Hudson Boulevard
New York, New York 10001
c/o Wells Fargo Securities
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Helmerich & Payne, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell to the several initial purchasers named in Schedule A hereto
(the “Initial Purchasers”), upon the terms set forth in that certain Purchase Agreement, dated September 10, 2024,
by and between the Company and Morgan Stanley & Co. LLC, Goldman Sachs & Co. LLC, HSBC Securities (USA) Inc. and Wells
Fargo Securities, LLC, as representatives of the Initial Purchasers (the “Purchase Agreement”), (i) $350,000,000
aggregate principal amount of its 4.650% Senior Notes due 2027 (the “2027 Notes”), (ii) $350,000,000 aggregate
principal amount of its 4.850% Senior Notes due 2029 (the “2029 Notes”) and (iii) $550,000,000 aggregate principal
amount of its 5.500% Senior Notes due 2034 (the “2034 Notes” and, together with the 2027 Notes and 2029 Notes, the
“Securities”) relating to the initial placement of the Securities (the “Initial Placement”). Each
of the 2027 Notes, the 2029 Notes and the 2034 Notes are sometimes referred to herein as a “Series” of Securities.
To satisfy a condition to the obligations of the Initial Purchasers under the Purchase Agreement, the Company agrees with the Initial
Purchasers for the benefit of the holders from time to time of the Securities (including the Initial Purchasers) and the Exchange Securities
(as defined herein) (each a “Holder” and, together, the “Holders”), as follows:
1. Definitions.
Capitalized terms used herein without definition shall have their respective meanings set forth in the Purchase Agreement. As used in
this Registration Rights Agreement (this “Agreement”), the following capitalized defined terms shall have the following
meanings:
“Act” shall mean the Securities
Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Affiliate” of any specified
Person shall have the same meaning as in Rule 405 of the Act.
“Agreement” shall have the meaning
set forth in this Section 1.
“Broker-Dealer” shall mean any
broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any
day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Commission” shall mean the
Securities and Exchange Commission.
“Company” shall have the meaning
set forth in the preamble hereto.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Exchange Offer Registration Period”
shall mean the 180-day period following the effective date of the Exchange Offer Registration Statement, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the Exchange Offer Registration Statement, or such shorter period
as will terminate when (i) all Exchange Securities held by Exchanging Dealers or the Initial Purchasers have been sold pursuant thereto
or (ii) Exchanging Dealers are no longer required to deliver a Prospectus in connection with market-making or other trading activities,
whichever occurs first.
“Exchange Offer Registration Statement”
shall mean a registration statement of the Company on an appropriate form under the Act with respect to the Registered Exchange Offer,
all amendments and supplements to such registration statement, including post- effective amendments thereto, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Exchange Securities” shall
mean, with respect to the Securities of each Series, debt securities of the Company, identical in all material respects to the Securities
of such Series (except that the Special Interest provisions and the transfer restrictions shall be modified or eliminated, as appropriate)
and to be issued under the Indenture or the Exchange Securities Indenture.
“Exchange Securities Indenture”
shall mean an indenture between the Company and the Exchange Securities Trustee, identical in all material respects to the Indenture (except
that the Special Interest provisions and the transfer restrictions shall be modified or eliminated, as appropriate).
“Exchange Securities Trustee”
shall mean a bank or trust company reasonably satisfactory to the Initial Purchasers, as trustee with respect to the Exchange Securities
under the Exchange Securities Indenture.
“Exchanging Dealer” shall mean
any Holder (which may include any of the Initial Purchasers) that is a Broker-Dealer and elects to exchange for Exchange Securities any
Securities that it acquired for its own account as a result of market-making activities or other trading activities (but not directly
from the Company or any Affiliate of the Company).
“Free Writing Prospectus” shall
mean each free writing prospectus (as defined in Rule 405 under the Act) prepared by or on behalf of the Company (or any of its agents
or representatives) or used or referred to by the Company (or any of its agents or representatives) in connection with the sale of the
Securities or the Exchange Securities.
“Holder” and “Holders”
shall have the meaning set forth in the preamble hereto.
“Indemnified Holder” shall have
the meaning set forth in Section 7(a) hereof.
“Indemnified Person” shall have
the meaning set forth in Section 7(d) hereof.
“Indemnifying Person” shall
have the meaning set forth in Section 7(d) hereof.
“Indenture”
shall mean the Indenture, dated as of December 20, 2018, as amended and supplemented by the Third Supplemental Indenture, dated as
of September 17, 2024, the Fourth Supplemental Indenture, dated as of September 17, 2024, and the Fifth Supplemental Indenture,
dated as of September 17, 2024, each between the Company and Computershare Trust Company, N.A. (as successor to Wells Fargo
Bank, National Association), as trustee, relating to the Securities, as the same may be amended from time to time in accordance with the
terms thereof.
“Initial Placement” shall have
the meaning set forth in the preamble hereto.
“Initial Purchasers” shall have
the meaning set forth in the preamble hereto.
“Losses” shall have the meaning
set forth in Section 7(a) hereof.
“Majority Holders” shall mean,
with respect to the Securities and/or Exchange Securities of each Series, the Holders of a majority of the aggregate principal amount
of Securities and/or Exchange Securities of such Series, as applicable, registered under a Registration Statement.
“Managing Underwriters” shall
mean the investment banker or investment bankers and manager or managers that shall administer an underwritten offering.
“Person” shall mean a corporation,
limited liability corporation, association, partnership, organization, business, individual, government or political subdivision thereof
or governmental agency.
“Prospectus” shall mean the
prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any portion of the Securities or the Exchange Securities covered
by such Registration Statement, and all amendments and supplements thereto and all material incorporated by reference therein.
“Purchase Agreement” shall have
the meaning set forth in the preamble hereto.
“Registered Exchange Offer”
shall mean the proposed offer by the Company to issue and deliver to the Holders of Securities that are not prohibited by any law or policy
of the Commission from participating in such offer, in exchange for such Securities, a like aggregate principal amount of the Exchange
Securities.
“Registration Default” shall
have the meaning set forth in Section 4 hereof.
“Registration Statement” shall
mean any Exchange Offer Registration Statement or Shelf Registration Statement that covers any of the Securities or the Exchange Securities
pursuant to the provisions of this Agreement, any amendments and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all exhibits thereto and all material incorporated by reference
therein.
“Securities” shall have the
meaning set forth in the preamble hereto.
“Shelf Registration” shall mean
a registration effected pursuant to Section 3 hereof.
“Shelf Registration Period”
has the meaning set forth in Section 3(b) hereof.
“Shelf Registration Statement”
shall mean a “shelf” registration statement of the Company on an appropriate form, pursuant to the provisions of Section 3
hereof, which covers some or all of the Securities and/or Exchange Securities, as applicable, providing for sales of such Securities or
Exchange Securities, as applicable, on a delayed or continuous basis pursuant to Rule 415 under the Act, or any similar rule that
may be adopted by the Commission, any amendments and supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Special Interest” shall have
the meaning set forth in Section 4 hereof.
“Trust Indenture Act” shall
mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder and any
successor act, rules and regulations.
“Trustee” shall mean the trustee
with respect to the Securities and Exchange Securities under the Indenture.
“Underwriter” shall mean any
underwriter of Securities or Exchange Securities in connection with an offering thereof under a Registration Statement.
2. Registered
Exchange Offer.
(a) Except
as set forth in Section 3 below, the Company shall prepare, at its cost, and shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Company shall use commercially reasonable efforts to cause the Exchange Offer
Registration Statement to become effective under the Act not later than the later of (i) the 30th day (or if such 30th
day is not a Business Day, the next succeeding Business Day) following the Company’s filing of a Form 8-K or an amendment thereto
including the financial statements of KCA Deutag International Limited (“KCA Deutag”) and pro forma financial information
related to the Company’s acquisition of KCA Deutag required by Items 9.01(a) and 9.01(b) of Form 8-K (the “KCAD
Financials Form 8-K”) and (ii) the 270th day following the Initial Placement (or if such 270th
day is not a Business Day, the next succeeding Business Day) (the “Exchange Offer Registration Statement Effectiveness Deadline”).
(b) Upon
the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer.
(c) In
connection with the Registered Exchange Offer, the Company shall:
(i) mail
or otherwise furnish in accordance with Commission rules to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) commence
and use commercially reasonable efforts to complete the Registered Exchange Offer promptly, but no later than the later of (i) the
60th day (or if such 60th day is not a Business Day, the next succeeding Business Day) following the Company’s
filing of the KCAD Financials Form 8-K and (ii) the 300th day following the Initial Placement (or if such 300th
day is not a Business Day, the next succeeding Business Day) (the “Exchange Offer Closing Deadline”), and hold the
Registered Exchange Offer open for not less than 20 Business Days after the date the Company mails notice of the Registered Exchange Offer
to the Holders;
(iii) use
commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective under the Act, supplemented and
amended as required under the Act to ensure that it is available for sales of Exchange Securities by Exchanging Dealers or the Initial
Purchasers during the Exchange Offer Registration Period;
(iv) utilize
the services of a depositary for the Registered Exchange Offer, which may be the Trustee, the Exchange Securities Trustee or an Affiliate
of either of them;
(v) permit
Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day on which the
Registered Exchange Offer is open; and
(vi) comply
in all material respects with all applicable laws.
(d) As
soon as practicable after the close of the Registered Exchange Offer, the Company shall:
(i) accept
for exchange all Securities tendered and not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver
to the Trustee for cancellation in accordance with Section 5(r) hereof all Securities so accepted for exchange; and
(iii) cause
the Trustee or Exchange Securities Trustee, as the case may be, promptly to authenticate and deliver to each Holder of Securities a principal
amount of Exchange Securities equal to the principal amount of the Securities of such Holder so accepted for exchange.
(e) Each
Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Registered Exchange Offer to participate in
a distribution of the Exchange Securities (i) could not under Commission policy as in effect on the date of this Agreement rely on
the position of the Commission in Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling
dated July 2, 1993 and similar no-action letters; and (ii) must comply with the registration and prospectus delivery requirements
of the Act in connection with any secondary resale transaction which must be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act if the resales are
of Exchange Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company or one of
its Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company
that, at the time of the consummation of the Registered Exchange Offer:
(i) any
Exchange Securities received by such Holder will be acquired in the ordinary course of business;
(ii) such
Holder will have no arrangement or understanding with any Person to participate in the distribution of the Securities or the Exchange
Securities within the meaning of the Act;
(iii) such
Holder is not an Affiliate of the Company or if it is an Affiliate, such Holder will comply with the registration and prospectus delivery
requirements of the Act to the extent applicable;
(iv) if
such Holder is not a Broker-Dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities;
and
(v) if
such Holder is a Broker-Dealer, that it will receive Exchange Securities for its own account in exchange for Securities that were acquired
as a result of market-making activities or other trading activities and that it will deliver a Prospectus in connection with any resale
of such Exchange Securities.
3. Shelf
Registration.
(a) If
(i) due to any change in law or applicable interpretations thereof by the Commission’s staff, the Company determines upon advice
of its outside counsel that it is not permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof;
(ii) for any other reason the Exchange Offer Registration Statement is not declared effective by the Exchange Offer Registration
Statement Effectiveness Deadline, or the Registered Exchange Offer is not consummated by Exchange Offer Closing Deadline; (iii) an
Initial Purchaser determines upon advice of its counsel that a Shelf Registration Statement must be filed in connection with any public
offering or sale of Securities that are not eligible to be exchanged for Exchange Securities in the Registered Exchange Offer and that
are held by it following consummation of the Registered Exchange Offer; or (iv) any Holder (other than the Initial Purchasers)
is not eligible to participate in the Registered Exchange Offer or does not receive freely tradeable Exchange Securities in the Registered
Exchange Offer other than by reason of such Holder being an Affiliate of the Company (it being understood that the requirement that a
participating Broker-Dealer deliver the Prospectus contained in the Exchange Offer Registration Statement in connection with sales of
Exchange Securities shall not result in such Exchange Securities being not “freely tradeable”), but solely with respect to
Securities held by such Holder, and in each case contemplated by this clause (iv), such Holder notified the Company prior to the 20th
Business Day following the Exchange Offer Registration Period, the Company shall effect a Shelf Registration Statement in accordance with
subsection (b) below.
(b) If
required pursuant to subsection (a) above,
(i) the
Company, at its cost, shall as promptly as practicable, but in no event later than 90 days after such obligation to file arises, file
with the Commission and use commercially reasonable efforts to cause to become effective under the Act as soon as practicable, but in
no event later than 120 days after such obligation to file arises, a Shelf Registration Statement relating to the offer and sale of the
Securities or the Exchange Securities, as applicable, by the Holders thereof from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement; provided, however, that no Holder (other
than the Initial Purchasers) shall be entitled to have the Securities or Exchange Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder;
and provided further, that with respect to Exchange Securities received by the Initial Purchasers in exchange for Securities constituting
any portion of an unsold allotment, the Company may, if permitted by current interpretations by the Commission’s staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the information required by Item 507 or 508 of Regulation S-K, as applicable,
in satisfaction of their obligations under this subsection with respect thereto, and any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and governed by the provisions herein applicable to, a Shelf Registration Statement;
(ii) the
Company shall use commercially reasonable efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended
as required by the Act, in order to permit the Prospectus forming part thereof to be usable by Holders until the earliest of (A) the
time when all of the Securities or Exchange Securities, as applicable, covered by the Shelf Registration Statement can be sold pursuant
to Rule 144 without limitation by non-Affiliates of the Company under clause (d) of Rule 144, (B) the date on which
all the Securities or Exchange Securities, as applicable, covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement and (C) one year from the date the Shelf Registration Statement is declared effective by the Commission (in
any such case, such period being called the “Shelf Registration Period”); it being understood that the Company
shall be deemed not to have used commercially reasonable efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders of Securities or Exchange Securities covered thereby not being
able to offer and sell such Securities or Exchange Securities during that period, unless (A) such action is required by applicable
law or (B) such action is taken by the Company in good faith and for valid business reasons (not including avoidance of the Company’s
obligations hereunder), including, but not limited to, the acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 5(k) hereof, if applicable; and
(iii) the
Company shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement or such amendment or supplement, (A) to comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission and (B) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
4. Special
Interest. If, with respect to the Securities or Exchange Securities of a Series, as applicable, (a) any Registration Statement
required to be filed pursuant to Section 2 or 3 of this Agreement is not declared effective within the timeframe required by this
Agreement, (b) the Registered Exchange Offer is not completed by the Exchange Offer Closing Deadline, or (c) after either the
Exchange Offer Registration Statement or the Shelf Registration Statement has become effective, such Registration Statement thereafter
ceases to be effective or usable in connection with resales of Securities or Exchange Securities of such Series in accordance with
and during the periods specified in this Agreement (each such event referred to in clauses (a), (b) and (c) of this Section 4
with respect to the Securities and Exchange Securities of a Series, a “Registration Default”), then, as liquidated
damages, interest (“Special Interest”) will accrue on the principal amount of the Securities and the Exchange Securities
of such Series (in addition to the stated interest on the Securities and Exchange Securities of such Series) from and including the
date on which any such Registration Default shall occur to but excluding the date on which all Registration Defaults have been cured with
respect to the Securities and Exchange Securities of such Series. Special Interest will accrue at a rate of 0.25% per annum; provided,
however, that, with respect to the Securities and Exchange Securities of a Series, as applicable, (i) upon the effectiveness
of the Registration Statement (in the case of clause (a) above), (ii) upon the consummation of the Registered Exchange Offer
(in the case of clause (b) above) or (iii) upon reinstatement of the effectiveness or the resumption of the ability to use the
Exchange Offer Registration Statement or the Shelf Registration Statement that had ceased to be effective or usable (in the case of clause
(c) above), Special Interest on the Securities or Exchange Securities of such Series as a result of such clause shall cease
to accrue.
All obligations of the Company set forth in the
preceding paragraph that are outstanding with respect to any Security at the time such Security is exchanged for an Exchange Security
shall survive until such time as all such obligations with respect to such Security have been satisfied in full.
5. Additional
Registration Procedures. In connection with any Shelf Registration Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply.
(a) The
Company shall:
(i) furnish
to the Initial Purchasers, not less than five Business Days prior to the filing thereof with the Commission, a draft copy of any Exchange
Offer Registration Statement and any Shelf Registration Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein (including all documents incorporated by reference therein after the initial filing) and shall use
commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as the Initial Purchasers
reasonably propose;
(ii) include
the information to the effect of that set forth in:
(A) Annex A
and Annex B hereto in the forepart of the Prospectus contained in the Exchange Offer Registration Statement,
(B) Annex C
hereto in the underwriting or plan of distribution section of the Prospectus contained in the Exchange Offer Registration Statement, and
(C) Annex D
hereto in the letter of transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if
requested by the Initial Purchasers, include the information required by Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus
contained in the Exchange Offer Registration Statement; and
(iv) in
the case of a Shelf Registration Statement, include the names of the Holders that propose to sell Securities or Exchange Securities, as
applicable, pursuant to the Shelf Registration Statement as selling security holders.
(b) The
Company shall ensure that:
(i) any
Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement thereto complies
in all material respects with the Act and the rules and regulations thereunder; and
(ii) any
Registration Statement and any amendment thereto does not, when it becomes effective (within the meaning of Rule 430B under the Act),
contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) The
Company shall advise the Initial Purchasers, the Holders of Securities or Exchange Securities covered by any Shelf Registration Statement
and any Exchanging Dealer under any Exchange Offer Registration Statement that has provided in writing to the Company a telephone or facsimile
number and address for notices, and, if requested by the Initial Purchasers or any such Holder or Exchanging Dealer shall confirm such
advice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of
the Prospectus until the Company shall have remedied the basis for such suspension):
(i) when
a Registration Statement and any amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of
any request by the Commission for any amendment or supplement to the Registration Statement or the Prospectus or for additional information;
(iii) of
the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose;
(iv) of
the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities or Exchange Securities
included therein for sale in any jurisdiction or the initiation of any proceeding for such purpose; and
(v) of
the happening of any event that requires any change in the Registration Statement or the Prospectus so that, as of such date, the statements
therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(d) The
Company shall use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the Securities or Exchange Securities therein for sale in any jurisdiction at the earliest possible
time.
(e) The
Company shall furnish to each Holder of Securities or Exchange Securities covered by any Shelf Registration Statement, without charge,
at least one copy of such Shelf Registration Statement and any post-effective amendment thereto, and, if the Holder so requests in writing,
all material incorporated therein by reference and all exhibits thereto (including exhibits incorporated by reference therein).
(f) The
Company shall, during the Shelf Registration Period, furnish to each Holder of Securities or Exchange Securities covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder may reasonably request. The Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the selling Holders of Securities or Exchange Securities in connection
with the offering and sale of the Securities or Exchange Securities covered by the Prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The
Company shall furnish to each Exchanging Dealer or Initial Purchaser that so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, including all material incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits thereto (including exhibits incorporated by reference therein).
(h) The
Company shall promptly deliver to the Initial Purchasers, each Exchanging Dealer and each other Person required to deliver a Prospectus
during the Exchange Offer Registration Period, without charge, as many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such Person may reasonably request. The Company consents to the use of the Prospectus
or any amendment or supplement thereto by the Initial Purchasers, any Exchanging Dealer and any such other Person that may be required
to deliver a Prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered
by the Prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration Statement.
(i) Prior
to the Registered Exchange Offer or any other offering of Securities or Exchange Securities pursuant to any Registration Statement, the
Company shall arrange, if necessary, for the qualification of the Securities or the Exchange Securities for sale under the laws of such
jurisdictions as any Holder shall reasonably request and will maintain such qualification in effect so long as required; provided
that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not then so qualified or to
take any action that would subject it to service of process in suits or to taxation, other than those arising out of the Initial Placement,
the Registered Exchange Offer or any offering pursuant to a Shelf Registration Statement, in any such jurisdiction where it is not then
so subject.
(j) The
Company shall cooperate with the Holders of Securities and Exchange Securities to facilitate the timely preparation and delivery of certificates
representing Securities or Exchange Securities to be issued or sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations (to the extent permitted under the Indenture) and registered in such names as Holders may request.
(k) Upon
the occurrence of any event contemplated by subsections (c)(ii) through (v) above, the Company shall promptly prepare a post-effective
amendment to the applicable Registration Statement or an amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to the Initial Purchasers or Exchanging Dealers, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading. In such circumstances, the period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 hereof and the Shelf Registration Statement provided for in Section 3(b) hereof shall each be
extended by the number of days from and including the date of the giving of a notice of suspension, pursuant to subsection (c) above,
to and including the date when the Initial Purchasers, the Holders of the Securities or Exchange Securities and any known Exchanging Dealer
shall have received such amended or supplemented Prospectus pursuant to this Section 5(k).
(l) Not
later than the effective date of any Registration Statement, the Company shall provide a CUSIP number for the Securities or the Exchange
Securities, as the case may be, registered under such Registration Statement and provide the Trustee with printed certificates for such
Securities or Exchange Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The
Company shall comply in all material respects with all applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act.
(n) The
Company shall cause the Indenture or the Exchange Securities Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner.
(o) The
Company may require each Holder of Securities or Exchange Securities to be sold pursuant to any Shelf Registration Statement to furnish
to the Company such information regarding the Holder and the distribution of such Securities as the Company may from time to time reasonably
require for inclusion in such Registration Statement. The Company may exclude from such Shelf Registration Statement the Securities or
Exchange Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request, and, for
the avoidance of doubt, the exclusion of such Holder shall not impact the cessation of the accrual of Special Interest under Section 4
with respect to such Holder. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish to the Company
all information with respect to such Holder necessary to make any information previously furnished to the Company by such Holder not materially
misleading.
(p) In
the case of any Shelf Registration Statement, the Company shall enter into such agreements and take all other appropriate actions (including
if requested an underwriting agreement in customary form) in order to expedite or facilitate the registration or the disposition of the
Securities or Exchange Securities, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if any, with respect to all parties to be indemnified pursuant
to Section 7 hereof).
(q) In
the case of any Shelf Registration Statement, the Company shall use commercially reasonable efforts to:
(i) (A) make
reasonably available for inspection by the Holders of Securities or Exchange Securities to be registered thereunder, any Underwriter participating
in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by the Holders or any
such Underwriter, all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries
and (B) cause the Company’s officers, directors and employees to supply all relevant information reasonably requested by the
Holders or any such Underwriter, attorney, accountant or agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information that is designated in writing by the Company,
in good faith, as confidential at the time of inspection or delivery of such information shall be kept confidential by the Holders or
any such Underwriter, attorney, accountant or agent, unless such Person shall be required so to disclose such information pursuant to
a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements
of such order, and only after such Person shall have given the Company, as applicable, prompt prior written notice of such requirement),
or such Person is otherwise required by law to disclose such information or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;
(ii) make
such representations and warranties to the Holders of Securities or Exchange Securities registered thereunder and the Underwriters, if
any, in form, substance and scope as are customarily made by issuers to Underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iii) obtain
opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed to each selling Holder and the Underwriters, if any, covering such matters
as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such
Holders and Underwriters;
(iv) obtain
“cold comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are required to be, included in the Registration Statement), addressed to each selling Holder
of Securities or Exchange Securities registered thereunder and the Underwriters, if any, in customary form and covering matters of the
type customarily covered in “cold comfort” letters in connection with primary underwritten offerings; and
(v) deliver
such documents and certificates as may be reasonably requested by the Majority Holders and the Managing Underwriters, if any, including
those to evidence compliance with subsection (k) above and with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
(vi) The
actions set forth in clauses (ii), (iii), (iv) and (v) of this subsection shall be performed at (A) the effectiveness of
such Registration Statement and each post-effective amendment thereto; and (B) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(r) If
a Registered Exchange Offer is to be consummated, upon delivery of the Securities by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the Exchange Securities, the Company shall mark, or caused to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the Exchange Securities. In no event shall the Securities be marked
as paid or otherwise satisfied.
(s) If
any Broker-Dealer shall underwrite any Securities or Exchange Securities or participate as a member of an underwriting syndicate or selling
group or “assist in the distribution” (within the meaning of the Rules and the By-Laws of the Financial Industry Regulatory
Authority, Inc.) thereof, whether as a Holder of such Securities or Exchange Securities or as an Underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, will assist such Broker-Dealer in complying with the requirements of such
Rules and By-Laws, including, without limitation, by:
(i) if
such Rules or By-Laws shall so require, engaging a “qualified independent underwriter” (as defined in such Rules) to
participate in the preparation of the Registration Statement, to exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration Statement is an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Securities or Exchange Securities;
(ii) indemnifying
any such qualified independent underwriter to the extent of the indemnification of Underwriters provided in Section 7 hereof;
and
(iii) providing
such information to such Broker-Dealer as may be required in order for such Broker-Dealer to comply with the requirements of such Rules.
(t) The
Company shall use commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities or the
Exchange Securities, as the case may be, covered by a Registration Statement.
6. Registration
Expenses. The Company shall bear all expenses incurred in connection with the performance of its obligations under Sections 2, 3 and
5 hereof, excluding any underwriting or brokerage fees, discounts or commissions, pursuant to this Agreement, and, in the event of any
Shelf Registration Statement, will reimburse the Holders for the reasonable fees and disbursements of not more than one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in connection therewith, but excluding fees and expenses of counsel
to the Initial Purchasers, all agency fees and commissions, underwriting discounts and commissions and transfer taxes attributable to
the sale or disposition of Securities by a Holder.
7. Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless (i) the Initial Purchasers, (ii) each Holder of Securities or Exchange Securities,
as the case may be, covered by any Registration Statement (including with respect to any Prospectus delivery as contemplated in Section 5(h) hereof,
each Exchanging Dealer), (iii) each Person, if any, who controls (within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act) any of the foregoing (any of the Persons referred to in this clause (iii) being hereinafter referred to as a
“controlling person”), and (iv) the respective officers, directors, partners, employees, representatives and agents
of the Initial Purchasers, such Holders (including predecessor Holders) or any controlling person (any Person referred to in clause (i),
(ii), (iii) or (iv) may hereinafter be referred to as an “Indemnified Holder”), from and against any and
all losses, claims, damages, and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) (collectively “Losses”) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration Statement, preliminary Prospectus, Prospectus, Free Writing
Prospectus or any “issuer information” (as defined in Rule 433 of the Act) filed or required to be filed pursuant to
Rule 433(d) under the Act, or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Indemnified Holder furnished to the Company in writing by such Indemnified Holder
expressly for use therein.
(b) Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, each of its directors and officers and each Person
who controls the Company within the meaning of either Section 15 of the 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, preliminary Prospectus
or Prospectus, or any amendment or supplement thereto. This indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Each
of the Initial Purchasers, severally and not jointly, agrees to indemnify and hold harmless the Company, each of its directors and officers
and each Person who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company to the Initial Purchasers, but only with reference to such losses, claims,
damages or liabilities which are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon
and in conformity with information relating to the Initial Purchaser furnished to the Company in writing by such Initial Purchaser expressly
for use in any Registration Statement, preliminary Prospectus or Prospectus, or any amendment or supplement thereto. This indemnity agreement
will be in addition to any liability which the Initial Purchasers may otherwise have.
(d) If
any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the three preceding paragraphs, such Person (the “Indemnified
Person”) shall promptly notify the Person or Persons against whom such indemnity may be sought (each an “Indemnifying
Person”) in writing (but the omission so to notify the Indemnifying Person shall not relieve it from any liability which it
may have to any Indemnified Person unless the Indemnifying Person is actually prejudiced by such omission), and such Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding
and shall pay the fees and expenses of such counsel related to such proceeding. In any such proceeding, the Indemnifying Person shall
be able to participate in such proceeding and, to the extent that it so elects, jointly with any other similarly situated Indemnifying
Person, to assume the defense thereof. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) such Indemnifying Person
and the Indemnified Person shall have mutually agreed to the contrary or (ii) the named parties in any such proceeding (including
any impleaded parties) include an Indemnifying Person and an Indemnified Person and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between them. It is understood that an Indemnifying Person shall
not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Indemnified Holders shall be designated in writing by the Majority Holders, and any
such separate firm for the Company, its directors and 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
(i) includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such
proceeding and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf
of any Indemnified Person.
(e) If
the indemnification provided for in the first, second and third paragraphs of this Section 7 is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person on the one hand and the Indemnified Person on the other hand pursuant to the Purchase Agreement
or from the offering of the Securities or Exchange Securities pursuant to any Registration Statement which resulted in such losses, claims,
damages or liabilities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Indemnifying
Person on the one hand and the Indemnified Person on the other in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and any Indemnified Holder on the other shall be deemed to be in the same proportion as the total net proceeds from the
Initial Placement received by the Company bear to the total net proceeds received by such Indemnified Holder from sales of Securities
or Exchange 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.
(f) Each
of the Company and the Initial Purchasers agrees that it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall any Holder of any Securities or Exchange Securities
be required to contribute any amount in excess of the amount by which the net proceeds received by such Holder from the sale of the Security
or Exchange Security pursuant to a Registration Statement exceeds the amount of damages which such Holder would have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(g) The
remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available
to any indemnified party at law or in equity.
(h) The
indemnity and contribution agreements contained in this Section 7 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Holder or any Person controlling
any Holder or by or on behalf of the Company, its officers or directors or any other Person controlling the Company and (iii) acceptance
of and payment for any of the Securities or Exchange Securities.
8. Underwritten
Registrations.
(a) If
any of the Securities or Exchange Securities, as the case may be, covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority Holders and shall be reasonably satisfactory to the Company.
(b) No
Person may participate in any underwritten offering pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person’s Securities or Exchange Securities, as the case may be, on the basis reasonably provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements; and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting
arrangements.
9. No
Inconsistent Agreements. The Company has not, as of the date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the rights granted to the Holders herein or otherwise conflicts
with the provisions hereof.
10. Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, qualified, modified
or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the
written consent of the Majority Holders of the Securities (or, after the consummation of any Registered Exchange Offer in accordance with
Section 2 hereof, of the Exchange Securities) affected by amendment, qualification, modification, supplement, waiver or consent;
provided, however, that, with respect to any matter that directly or indirectly affects the rights of the Initial Purchasers
hereunder, the Company shall obtain the written consent of the Initial Purchasers. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with respect to a matter that relates exclusively to the rights
of Holders whose Securities or Exchange Securities, as the case may be, are being sold pursuant to a Registration Statement and that does
not directly or indirectly affect the rights of other Holders may be given by the Majority Holders, determined on the basis of Securities
or Exchange Securities, as the case may be, being sold rather than registered under such Registration Statement.
11. Notices.
All notices and other communications (including without limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, next-day air courier, facsimile or electronic
transmission:
(a) if
to a Holder, at the most current address of such Holder set forth on the records of the registrar under the Indenture and the stock ledger
of the Company;
(b) if
to the Initial Purchasers:
Morgan Stanley &
Co. LLC
Goldman Sachs &
Co. LLC
HSBC Securities (USA)
Inc.
Wells Fargo Securities,
LLC
As Representatives of the Initial Purchasers named on Schedule A hereto
c/o Morgan Stanley &
Co. LLC
1585 Broadway, New York, New York 10036
Attention: Investment Banking Division
c/o Goldman Sachs &
Co. LLC
200 West Street, New York, New York 10282-2198
Attention: Registration Department
c/o HSBC Securities
(USA) Inc.
66 Hudson Boulevard, New York, New York 10001
Attention: Transaction Management Group
c/o Wells Fargo Securities,
LLC
550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202
Attention: Transaction Management
with copies (which shall
not constitute notice) to:
Paul Hastings LLP
515 South Flower Street, Twenty-Fifth Floor
Los Angeles, California 90071
Attention: Jonathan Ko
(c) if
to the Company:
Helmerich &
Payne, Inc.
222 North Detroit Avenue
Tulsa, Oklahoma 74120
Attention: General Counsel
with copies (which shall
not constitute notice) to:
Kirkland &
Ellis LLP
609 Main Street
Houston, Texas 77002
Attention:
Julian J. Seiguer, P.C.
Ieuan A. List
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.
The Initial
Purchasers or the Company, by notice to the other parties, may designate additional or different addresses for subsequent notices or communications.
12. Successors.
This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including, without
the need for an express assignment or any consent by the Company thereto, subsequent Holders of Securities or Exchange Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of Securities and the Exchange Securities, and any such Holder
may specifically enforce the provisions of this Agreement as if an original party hereto.
13. Counterparts;
Signatures. This Agreement may be executed (including by facsimile) in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. The words “execution,” “signed,” “signature,” “delivery” and words
of like import in this Agreement or in any instruments, agreements, certificates, opinions of counsel or other documents entered into
or delivered pursuant to or in connection with this Agreement shall include images of manually executed signatures transmitted by facsimile
or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic
signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including,
without limitation, any contract or other record created, generated, sent, communicated, received or stored by electronic means) shall
be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system
to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the
New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based
on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
14. Headings.
The headings used herein are for convenience only and shall not affect the construction hereof.
15. Applicable
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
16. Severability.
If any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
17. Securities
Held by the Company, etc. Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities, as applicable, held by the Company or its Affiliates
(other than subsequent Holders of Securities or Exchange Securities if such subsequent Holders are deemed to be Affiliates solely by reason
of their holdings of such Securities or Exchange Securities) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
18. No
Fiduciary Duty. The Company hereby acknowledges that (a) the Initial Purchasers are acting as principal and not as an agent or
fiduciary of the Company and (b) the Company’s engagement of the Initial Purchasers in connection with the offering and the
process leading up to the offering pursuant to the Purchase Agreement is as independent contractors and not in any other capacity. Furthermore,
the Company agrees that it is solely responsible for making its own judgments in connection with the offering, the Registered Exchange
Offer or a Shelf Registration (irrespective of whether any of the Initial Purchasers has advised or is currently advising the Company
on related or other matters). The Company agrees that it will not claim that the Initial Purchasers have rendered advisory services of
any nature or respect, or owe an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
[Remainder
of This Page is Intentionally Left Blank]
If the foregoing
is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement among the Company and you.
|
Very truly yours, |
|
|
|
HELMERICH & PAYNE, INC. |
|
|
|
By: |
/s/ J. Kevin Vann |
|
Name: |
J. Kevin Vann |
|
Title: |
Senior Vice President and Chief Financial Officer |
The foregoing
Agreement is hereby confirmed and accepted as of the date first above written.
MORGAN STANLEY & CO. LLC |
|
|
|
By: |
/s/ Andrew Pocius |
|
Name: |
Andrew Pocius |
|
Title: |
Managing Director |
|
|
|
GOLDMAN SACHS & CO. LLC |
|
|
|
By: |
/s/ George Graf Von Waldersee |
|
Name: |
George Graf Von Waldersee |
|
Title: |
Managing Director |
|
|
|
HSBC SECURITIES (USA) INC. |
|
|
|
By: |
/s/ Patrice Altongy |
|
Name: |
Patrice Altongy |
|
Title: |
Managing Director |
|
|
|
WELLS FARGO SECURITIES, LLC |
|
|
|
By: |
/s/ Carolyn Hurley |
|
Name: |
Carolyn Hurley |
|
Title: |
Managing Director |
|
Acting as Representatives of
the Initial Purchasers named in Schedule A hereto
SCHEDULE
A
Initial Purchasers
Morgan Stanley & Co.
LLC
Goldman Sachs & Co.
LLC
HSBC Securities (USA) Inc.
Wells Fargo Securities, LLC
SMBC Nikko Securities America, Inc.
Academy Securities, Inc.
PEP Advisory LLC
Piper Sandler & Co.
ANNEX A
Each Broker-Dealer
that receives new notes for its own account in exchange for old notes that were acquired as a result of market-making or other trading
activities must acknowledge that it will comply with the registration and prospectus delivery requirements of the Act in connection with
any offer, resale, or other transfer of the new notes issued in the exchange offer, including information with respect to any selling
holder required by the Act in connection with any resale of the new notes.
Furthermore,
any Broker-Dealer that acquired any of its old notes directly from us:
| · | may not rely on the applicable interpretation of the staff of the Commission’s position
contained in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co., Inc. (pub.
avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and |
| · | must also be named as a selling noteholder in connection with the registration and prospectus
delivery requirements of the Act relating to any resale transaction. See “Plan of Distribution” and “The Exchange Offer
—Purpose and Effect of Exchange Offer Registration Rights.” |
ANNEX B
Each Broker-Dealer that receives new notes for
its own account in exchange for old notes, where such old notes were acquired by such Broker-Dealer as a result of market-making activities
or other trading activities, must acknowledge that it will comply with the registration and prospectus delivery requirements of the Act
in connection with any offer, resale or other transfer of such new notes, including information with respect to any selling holder required
by the Act in connection with the resale of the new notes. We have agreed that for a period of 180 days after the effective date of the
registration statement of which this prospectus forms a part (or for such shorter period during which Broker-Dealers are required by law
to deliver such prospectus), we will make this prospectus available to any Broker-Dealer for use in connection with any such resale. See
“Plan of Distribution.”
ANNEX C
PLAN
OF DISTRIBUTION
Each Broker-Dealer
that receives Exchange Securities for its own account pursuant to this exchange offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Securities. This prospectus, as it may be amended or supplemented from time to time, may
be used by a Broker-Dealer in connection with resales of Exchange Securities received in exchange for Securities where such Securities
were acquired as a result of market-making activities or other trading activities. We have agreed that, starting on the effective date
of the registration statement of which this prospectus is a part and ending on the close of business 180 days after such date or such
shorter period as will terminate when all Exchange Securities held by Exchanging Dealers or Initial Purchasers have been sold pursuant
hereto (or for such shorter period during which Broker-Dealers are required by law to deliver such prospectus), we will make this prospectus,
as amended or supplemented, available to any Broker-Dealer for use in connection with any such resale. In addition, until __________,
202__, all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus.
We will not
receive any proceeds from any sale of Exchange Securities by Broker-Dealers. Exchange Securities received by Broker-Dealers for their
own account pursuant to the Registered Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions
from any such Broker-Dealer and/or the purchasers of any such Exchange Securities. Any Broker-Dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Registered Exchange Offer and any Broker-Dealer that participates in a distribution
of such Exchange Securities may be deemed to be an “underwriter” within the meaning of the Act and any profit of any such
resale of Exchange Securities and any commissions or concessions received by any such Persons may be deemed to be underwriting compensation
under the Act. The letter of transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a Broker-Dealer
will not be deemed to admit that it is an “underwriter” within the meaning of the Act.
Furthermore,
any Broker-Dealer that acquired any of the old notes directly from us:
| · | may not rely on the applicable interpretation of the staff of the Commission’s position
contained in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co., Inc. (pub.
avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and |
| · | must also be named as a selling noteholder in connection with the registration and prospectus
delivery requirements of the Act relating to any resale transaction. |
For a period
of 180 days after the effective date of the registration statement of which this prospectus is a part or such shorter period as will terminate
when all Exchange Securities held by Exchanging Dealers or Initial Purchasers have been sold pursuant hereto (or for such shorter period
during which Broker-Dealers are required by law to deliver such prospectus), we will promptly send additional copies of this prospectus
and any amendment or supplement to this prospectus to any Broker-Dealer that requests such documents in the letter of transmittal. We
have agreed to pay all expenses incident to the Registered Exchange Offer (including the expenses of one counsel for the holder of the
Securities) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the Securities (including
any Broker-Dealers) against certain liabilities, including liabilities under the Act.
[If applicable,
add information required by Regulation S-K Items 507 and/or 508.]
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER
AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
If the undersigned is not a Broker-Dealer,
the undersigned represents that it is acquiring the Exchange Securities in the ordinary course of its business, that it has no arrangement
or understanding with any Person to participate in a distribution of the Exchange Securities and that it is not an affiliate of the Company
as such terms are interpreted by the Commission. If the undersigned is a Broker-Dealer, then it has a prospectus delivery requirement
with respect to resales of the Exchange Securities and the Commission has taken the position that Broker-Dealers may fulfill their prospectus
delivery requirements with respect to resales of the Exchange Securities (other than a resale of an unsold allotment from the original
sale of the notes) with the prospectus contained in the Exchange Offer Registration Statement relating to such Exchange Securities.
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Helmerich and Payne (NYSE:HP)
過去 株価チャート
から 9 2024 まで 10 2024
Helmerich and Payne (NYSE:HP)
過去 株価チャート
から 10 2023 まで 10 2024