EXHIBIT 4.2
EXECUTION COPY
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▇▇▇▇▇ ▇▇▇▇▇ INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
AND
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
Senior Convertible Notes
due 2022
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INDENTURE
Dated as of April 16, 2002
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CROSS REFERENCE TABLE*
IA Section.................................................... Indenture Section
310(a)(1)..................................................... 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.
(a)(4)..................................................... N.A.
(b)........................................................ 7.08; 7.10
(c)........................................................ N.A.
311(a)........................................................ 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312(a)........................................................ 2.05
(b)........................................................ 14.03
(c)........................................................ 14.03
313(a)........................................................ 7.06
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.06
(c)........................................................ 14.02
(d)........................................................ 7.06
314(a)........................................................ 4.02; 4.03; 14.02
(b)........................................................ N.A.
(c)(1)..................................................... 14.04
(c)(2)..................................................... 14.04
(c)(3)..................................................... N.A.
(d)........................................................ N.A.
(e)........................................................ 14.05
(f)........................................................ N.A.
315(a)........................................................ 7.01
(b)........................................................ 7.05; 14.02
(c)........................................................ 7.01
(d)........................................................ 7.01
(e)........................................................ 6.11
316(a) (last sentence)........................................ 2.08
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ 6.07
317(a)(1)..................................................... 6.08
(a)(2)..................................................... 6.09
(b)........................................................ 2.04
318(a)........................................................ 14.01
N.A. means Not Applicable.
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* Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the
Indenture.
TABLE OF CONTENTS*
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions...........................................................................1
SECTION 1.02 Other Definitions.....................................................................7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.....................................8
SECTION 1.04 Rules of Construction.................................................................8
SECTION 1.05 Acts of Holders.......................................................................9
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating......................................................................10
SECTION 2.02 Execution and Authentication.........................................................12
SECTION 2.03 Registrar, Paying Agent and Conversion Agent.........................................12
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust...................................13
SECTION 2.05 Securityholder Lists.................................................................13
SECTION 2.06 Transfer and Exchange................................................................13
SECTION 2.07 Replacement Securities...............................................................15
SECTION 2.08 Outstanding Securities; Determinations of Holders' Action............................16
SECTION 2.09 Temporary Securities.................................................................16
SECTION 2.10 Cancellation.........................................................................17
SECTION 2.11 Persons Deemed Owners................................................................17
SECTION 2.12 Global Securities....................................................................17
SECTION 2.13 CUSIP Numbers........................................................................22
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee..................................................22
SECTION 3.02 Selection of Securities to Be Redeemed...............................................23
SECTION 3.03 Notice of Redemption.................................................................23
SECTION 3.04 Effect of Notice of Redemption.......................................................24
SECTION 3.05 Deposit of Redemption Price..........................................................24
SECTION 3.06 Securities Redeemed in Part..........................................................24
SECTION 3.07 Conversion Arrangement on Call for Redemption........................................24
SECTION 3.08 Purchase of Securities at Option of the Holder.......................................25
SECTION 3.09 Purchase of Securities at Option of the Holder upon Change in Control................32
SECTION 3.10 Effect of Purchase Notice or Change in Control Purchase Notice.......................35
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* Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the
Indenture.
i
SECTION 3.11 Deposit of Purchase Price or Change in Control Purchase Price........................36
SECTION 3.12 Securities Purchased in Part.........................................................36
SECTION 3.13 Repayment to the Company.............................................................36
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities................................................................37
SECTION 4.02 SEC and Other Reports................................................................37
SECTION 4.03 Compliance Certificate...............................................................37
SECTION 4.04 Further Instruments and Acts.........................................................38
SECTION 4.05 Maintenance of Office or Agency......................................................38
SECTION 4.06 Delivery of Certain Information......................................................38
SECTION 4.07 Limitation on Guarantees of Indebtedness by Domestic Subsidiaries....................38
SECTION 4.08 Covenant to Comply With Securities Laws Upon Purchase of Securities..................38
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets............................................39
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default....................................................................40
SECTION 6.02 Acceleration.........................................................................42
SECTION 6.03 Other Remedies.......................................................................43
SECTION 6.04 Waiver of Past Defaults..............................................................43
SECTION 6.05 Control by Majority..................................................................43
SECTION 6.06 Limitation on Suits..................................................................43
SECTION 6.07 Rights of Holders to Receive Payment.................................................44
SECTION 6.08 Collection Suit by Trustee...........................................................44
SECTION 6.09 Trustee May File Proofs of Claim.....................................................44
SECTION 6.10 Priorities...........................................................................45
SECTION 6.11 Undertaking for Costs................................................................45
SECTION 6.12 Waiver of Stay, Extension or Usury Laws..............................................46
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee....................................................................46
SECTION 7.02 Rights of Trustee....................................................................47
SECTION 7.03 Individual Rights of Trustee.........................................................49
SECTION 7.04 Trustee's Disclaimer.................................................................49
SECTION 7.05 Notice of Defaults...................................................................49
SECTION 7.06 Reports by Trustee to Holders........................................................49
SECTION 7.07 Compensation and Indemnity...........................................................49
SECTION 7.08 Replacement of Trustee...............................................................50
ii
SECTION 7.09 Successor Trustee by Merger..........................................................51
SECTION 7.10 Eligibility; Disqualification........................................................51
SECTION 7.11 Preferential Collection of Claims Against Company....................................51
ARTICLE 8
DISCHARGE OF
INDENTURE
SECTION 8.01 Discharge of Liability on Securities.................................................51
SECTION 8.02 Repayment to the Company.............................................................52
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders...........................................................52
SECTION 9.02 With Consent of Holders..............................................................52
SECTION 9.03 Compliance with Trust
Indenture Act..................................................53
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions...............................53
SECTION 9.05 Notation on or Exchange of Securities................................................54
SECTION 9.06 Trustee to Sign Supplemental
Indentures..............................................54
SECTION 9.07 Effect of Supplemental
Indentures....................................................54
ARTICLE 10
SPECIAL TAX EVENT CONVERSION
SECTION 10.01 Optional Conversion to Semiannual Coupon Note upon Tax Event........................54
ARTICLE 11
CONVERSION
SECTION 11.01 Conversion Privilege................................................................55
SECTION 11.02 Conversion Procedure................................................................55
SECTION 11.03 Fractional Shares...................................................................56
SECTION 11.04 Taxes on Conversion.................................................................57
SECTION 11.05 Company to Provide Stock............................................................57
SECTION 11.06 Adjustment for Change in Capital Stock..............................................57
SECTION 11.07 Adjustment for Rights Issue.........................................................58
SECTION 11.08 Adjustment for Other Distributions..................................................59
SECTION 11.09 When Adjustment May Be Deferred.....................................................60
SECTION 11.10 When No Adjustment Required.........................................................61
SECTION 11.11 Notice of Adjustment................................................................61
SECTION 11.12 Voluntary Increase..................................................................61
SECTION 11.13 Notice of Certain Transactions......................................................61
SECTION 11.14 Reorganization of Company; Special Distributions....................................62
SECTION 11.15 Company Determination Final.........................................................63
SECTION 11.16 Trustee's Adjustment Disclaimer.....................................................63
SECTION 11.17 Simultaneous Adjustments............................................................63
SECTION 11.18 Successive Adjustments..............................................................63
SECTION 11.19 Rights Issued in Respect of Common Stock Issued Upon Conversion.....................63
iii
SECTION 11.20 Company's Right to Elect to Pay Cash or Common Stock................................63
ARTICLE 12
PAYMENT OF INTEREST
SECTION 12.01 Interest Payments...................................................................64
SECTION 12.02 Defaulted Interest..................................................................64
SECTION 12.03 Interest Rights Preserved...........................................................65
ARTICLE 13
GUARANTEES
SECTION 13.01 Guarantees..........................................................................66
SECTION 13.02 Severability........................................................................67
SECTION 13.03 Future Subsidiaries.................................................................67
SECTION 13.04 Priority of Guarantees..............................................................68
SECTION 13.05 Limitation of Guarantors' Liability.................................................68
SECTION 13.06 Subrogation.........................................................................68
SECTION 13.07 Reinstatement.......................................................................68
SECTION 13.08 Release of the Guarantor............................................................69
SECTION 13.09 Benefits Acknowledged...............................................................69
ARTICLE 14
MISCELLANEOUS
SECTION 14.01 Trust
Indenture Act Controls........................................................69
SECTION 14.02 Notices.............................................................................69
SECTION 14.03 Communication by Holders with Other Holders.........................................70
SECTION 14.04 Certificate and Opinion as to Conditions Precedent..................................70
SECTION 14.05 Statements Required in Certificate or Opinion.......................................71
SECTION 14.06 Separability Clause.................................................................71
SECTION 14.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar......................71
SECTION 14.08 Calculations........................................................................71
SECTION 14.09 Legal Holidays......................................................................71
SECTION 14.10 GOVERNING LAW.......................................................................71
SECTION 14.11 No Recourse Against Others..........................................................71
SECTION 14.12 Successors..........................................................................72
SECTION 14.13 Multiple Originals..................................................................72
iv
INDENTURE dated as of April 16, 2002 among ▇▇▇▇▇ ▇▇▇▇▇ INC., a
Delaware corporation ("COMPANY"), the guarantors executing a signature page
hereto (each a "GUARANTOR" and collectively, the "GUARANTORS") and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts chartered trust company (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of Senior
Convertible Notes due 2022 (the "SECURITIES") having the terms, tenor, amount
and other provisions hereinafter set forth, and, to provide therefor, the
Company has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when the Securities are
duly executed by the Company and the Guarantors and authenticated and delivered
hereunder and duly issued by the Company and the Guarantors, the valid
obligations of the Company and the Guarantors, and to make this Indenture a
valid and binding agreement of the Company and the Guarantors, in accordance
with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"144A GLOBAL SECURITY" means a permanent Global Security in the form
of the Security attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A under the Securities Act.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"CONTROL" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"AVERAGE SALE PRICE" means the average of the Sale Prices of the
Common Stock for the shorter of
(i) 30 consecutive trading days ending on the last full trading day
prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average
Sale Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, warrants or options
or (b) the distribution, in each case, in respect of which the Average
Sale Price is being calculated and (y) proceeding through the last
full trading day prior to the Time of Determination with respect to
the rights, warrants or options or distribution in respect of which
the Average Sale Price is being calculated (excluding days within such
period, if any, which are not trading days), or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance
of rights, warrants or options or (b) distribution, in each case, for
which an adjustment is required by the provisions of Section 11.06(c),
11.07 or 11.08 and (y) proceeding through the last full trading day
prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average
Sale Price is being calculated (excluding days within such period, if
any, which are not trading days).
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 11.06(a), (b), (d) or (e) applies occurs
during the period applicable for calculating "AVERAGE SALE PRICE" pursuant to
the definition in the preceding sentence, "AVERAGE SALE PRICE" shall be
calculated for such period in a manner determined by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the Common Stock during such period.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any duly authorized committee of such board.
"BUSINESS DAY" means each day of the year other than a Saturday or a
Sunday or other day on which banking institutions in The City of
New York,
Hartford, Connecticut or Boston, Massachusetts are required or authorized to
close.
"CAPITAL STOCK" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock or other equity issued
by that corporation.
"CERTIFICATED SECURITIES" means any of the Securities that are in the
form of the Securities attached hereto as Exhibit A-3.
2
"COMMON STOCK" shall mean the shares of Common Stock, $0.01 par value,
of the Company as it exists on the date of this Indenture or any other shares of
Capital Stock of the Company into which the Common Stock shall be reclassified
or changed.
"COMPANY" means the party named as the "COMPANY" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any two Officers.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at ▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration,
or such other address as the Trustee may designate from time to time by notice
to the Company, or the principal corporate trust office of any successor Trustee
(or such other address as a successor Trustee may designate from time to time by
notice to the Company).
"DEBT" means with respect to the Company at any date, without
duplication, obligations (other than nonrecourse obligations) for borrowed money
or evidenced by bonds, debentures, notes or similar instruments.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DOMESTIC SUBSIDIARY" means any Subsidiary that was formed under the
laws of the United States or any state or dependency thereof or the District of
Columbia.
"GLOBAL SECURITIES" means any of the Securities that are in the form
of the Securities attached hereto as Exhibit A-1, and to the extent that such
Securities are required to bear the Legend required by Section 2.06, such
Securities will be in the form of a 144A Global Security.
"GUARANTEE" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"GUARANTEE" means any guarantee of the Securities by any domestic
Subsidiary in accordance with the provisions of Article 13.
3
"GUARANTORS" means (i) each domestic Subsidiary listed as a signatory
to this Indenture and (ii) each Person who becomes a Guarantor pursuant to
Article 13 and/or Section 4.08 of this Indenture.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security
is registered on the Registrar's books.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"INSTITUTIONAL ACCREDITED INVESTOR SECURITY" means a Security in the
form of the Security attached hereto as Exhibit A-3, representing Securities
sold to Institutional Accredited Investors.
"ISSUE DATE" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"ISSUE PRICE" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is sold
as set forth on the face of the Security.
"OFFICER" means the Chairman of the Board, the Vice Chairman, the
Chief Executive Officer, the President, any Executive Vice President, any Senior
Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 14.04 and 14.05, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be signed by the principal
executive financial or accounting Officer of the Company but need not contain
the information specified in Sections 14.04 and 14.05.
"OPINION OF COUNSEL" means a written opinion containing the
information specified in Sections 14.04 and 14.05, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"ORIGINAL ISSUE DISCOUNT" of any Security means the difference between
the Issue Price and the Principal Amount at Maturity of the Security as set
forth on the face of the Security, which shall accrue as set forth in the form
of Security.
"PERSON" or "PERSON" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof.
"PRINCIPAL AMOUNT AT MATURITY" of a Security means the principal
amount at maturity as set forth on the face of the Security.
4
"REDEMPTION DATE" or "REDEMPTION DATE" means the date specified for
redemption of the Securities in accordance with the terms of the Securities and
this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set
forth in paragraph 6 of the Securities.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, trust officer or
any other officer of the Trustee who customarily performs functions similar to
those performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such
person's knowledge of and familiarity with the particular subject and who, in
each case, shall have direct responsibility for the administration of this
Indenture.
"RESTRICTED SECURITY" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits A-1
and A-3 of this Indenture.
"RULE 144" means Rule 144 under the Securities Act (or any successor
rule having substantially similar provisions), as it may be amended from time to
time.
"RULE 144A" means Rule 144A under the Securities Act (or any successor
rule having substantially similar provisions), as it may be amended from time to
time.
"SALE PRICE" of Capital Stock on any date means (a) the closing per
share sale price (or, if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average of the
average bid and the average ask prices) on such date as reported on the NYSE or
such other United States securities exchange on which the Capital Stock is
traded or, if the Capital Stock is not listed on a United States national or
regional securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System or by the National Quotation
Bureau Incorporated or (b) in the absence of such quotation, such price as the
Company shall determine on the basis of such quotations as the Company considers
appropriate.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES" means any of the Company's Senior Convertible Notes due
2022, as amended or supplemented from time to time, issued under this Indenture.
"SECURITYHOLDER" or "HOLDER" means a person in whose name a Security
is registered on the Registrar's books.
"SIGNIFICANT SUBSIDIARY", as such term is defined in Rule 1-02 of
Regulation S-X under the Securities Act of 1933, as amended.
"SPECIAL RECORD DATE" means, with respect to, the payment of any
Defaulted Interest, the date fixed by the Trustee pursuant to Section 12.02.
5
"STATED MATURITY", when used with respect to any Security means the
date specified in such Security as the fixed date on which an amount equal to
the Principal Amount at Maturity of such Security is due and payable.
"SUBSIDIARY" means (i) a corporation, a majority of whose Capital
Stock with voting power, under ordinary circumstances, to elect directors is, at
the date of determination, directly or indirectly owned by the Company, by one
or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a corporation
or a partnership) in which the Company, a Subsidiary of the Company or the
Company and one or more Subsidiaries of the Company, directly or indirectly, at
the date of determination, has (x) at least a majority ownership interest or (y)
the power to elect or direct the election of a majority of the directors or
other governing body of such person.
"TAX EVENT" means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on or
after April 10, 2002, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to, or change in, an interpretation or application
(including through litigation or a settlement involving the Company) of such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority, in each case which amendment or change is enacted,
promulgated, issued or announced or which interpretation is issued or announced
or which action is taken, on or after April 10, 2002, there is more than an
insubstantial risk that interest (including accrued Original Issue Discount)
payable on the Securities either (i) would not be deductible on a current
accrual basis or (ii) would not be deductible under any other method, in either
case in whole or in part, by the Company (by reason of deferral, disallowance,
or otherwise) for United States federal income tax purposes.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"TIME OF DETERMINATION" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Section 11.07 or 11.08 applies
and (ii) the time ("EX-DIVIDEND TIME") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the
New York Stock Exchange or such other national or regional exchange or
market on which the Common Stock is then listed or quoted.
"TRADING DAY" means a day during which trading in securities generally
occurs on the
New York Stock Exchange or, if the Common Stock is not listed on
the
New York Stock Exchange, on the principal other national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation System or, if the
Common Stock is not quoted on the National Association of Securities Dealers
Automated Quotation System, on the principal other market on which the Common
Stock is then traded.
6
"TRUSTEE" means the party named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"ACT"............................................................................1.05(a)
"AGENT MEMBERS"..................................................................2.12(f)
"AVERAGE SALE PRICE"...............................................................11.01
"BANKRUPTCY LAW"....................................................................6.01
"BENEFICIAL OWNER"...............................................................3.09(a)
"CASH"...........................................................................3.08(b)
"CHANGE IN CONTROL"..............................................................3.09(a)
"CHANGE IN CONTROL PURCHASE DATE"................................................3.09(a)
"CHANGE IN CONTROL PURCHASE NOTICE"..............................................3.09(c)
"CHANGE IN CONTROL PURCHASE PRICE"...............................................3.09(a)
"COMPANY NOTICE".................................................................3.08(e)
"COMPANY NOTICE DATE"............................................................3.08(c)
"CONTINUING DIRECTORS"...........................................................3.09(a)
"CONVERSION AGENT"..................................................................2.03
"CONVERSION DATE"..................................................................11.02
"CONVERSION RATE"..................................................................11.01
"CUSTODIAN".........................................................................6.01
"DEFAULTED INTEREST"...............................................................12.02
"DEPOSITARY".....................................................................2.01(a)
"DTC"............................................................................2.01(a)
"EVENT OF DEFAULT"..................................................................6.01
"EXCHANGE ACT"...................................................................3.08(d)
"EX-DIVIDEND DATE"..............................................................11.08(b)
"EX-DIVIDEND TIME".................................................................11.01
"EXTRAORDINARY CASH DIVIDEND"...................................................11.08(a)
"INSTITUTIONAL ACCREDITED INVESTORS".............................................2.01(b)
"INTEREST PAYMENT DATE"............................................................10.01
"LEGAL HOLIDAY"....................................................................14.09
"LEGEND".........................................................................2.06(f)
"MARKET PRICE"...................................................................3.08(d)
"MEASUREMENT PERIOD"............................................................11.08(a)
"NONCONTINGENT BOND METHOD".........................................................4.07
"NOTICE OF DEFAULT".................................................................6.01
"OPTION EXERCISE DATE".............................................................10.01
"PAYMENT DEFAULT"................................................................6.01(4)
"PAYING AGENT"......................................................................2.03
"POST-DISTRIBUTION PRICE".......................................................11.08(b)
7
"PROTECTED PURCHASER"...............................................................2.07
"PURCHASE DATE"..................................................................3.08(a)
"PURCHASE NOTICE"................................................................3.08(a)
"PURCHASE PRICE".................................................................3.08(a)
"QIBS"...........................................................................2.01(a)
"REGISTRAR".........................................................................2.03
"REGULAR RECORD DATE"..............................................................10.01
"RELEVANT CASH DIVIDENDS".......................................................11.08(a)
"RESTATED PRINCIPAL AMOUNT"........................................................10.01
"RIGHTS"...........................................................................11.19
"RIGHTS AGREEMENT".................................................................11.19
"RULE 144A INFORMATION".............................................................4.06
"SECURITIES ACT".................................................................3.08(d)
"SPECIAL RECORD DATE"..............................................................12.02
"TAX EVENT DATE"...................................................................10.01
"TIME OF DETERMINATION"............................................................11.01
"TREASURY REGULATIONS" .............................................................4.07
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a defined term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting principles
as in effect from time to time;
(3) "OR" is not exclusive;
8
(4) "INCLUDING" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
SECTION 1.05 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments (which may
take the form of an electronic writing or messaging or otherwise be in
accordance with customary procedures of the Depositary or the Trustee) of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing (which may be in electronic form); and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, when it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "ACT" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
(either of which may be in electronic form) shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution (or electronic delivery) or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing or delivering such instrument or writing
acknowledged to such officer the execution (or electronic delivery) thereof.
When such execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date of the execution
of any such instrument or writing (electronic or otherwise), or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the register
maintained by the Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a resolution of the Board of
Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record
9
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture within six months after
the record date.
ARTICLE 2
THE SECURITIES
SECTION 2.01 FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A-1
and A-3, which are a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage (provided
that any such notation, legend or endorsement required by usage is in a form
acceptable to the Company). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication.
(a) 144A GLOBAL SECURITIES. Securities offered and sold within the
United States to "QUALIFIED INSTITUTIONAL BUYERS" as defined in Rule 144A
("QIBS") in reliance on Rule 144A shall be issued, initially in the form of a
144A Global Security, which shall be deposited with the Trustee at its Corporate
Trust Office, as custodian for the Depositary and registered in the name of The
Depository Trust Company ("DTC") or the nominee thereof (such depositary, or any
successor thereto, and any such nominee being hereinafter referred to as the
"DEPOSITARY") duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate Principal Amount at Maturity of the 144A
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary as hereinafter provided.
(b) INSTITUTIONAL ACCREDITED INVESTOR SECURITIES. Except as provided
in this Section 2.01, 2.06 or 2.12, owners of beneficial interests in Global
Securities will not be entitled to receive physical delivery of Certificated
Securities. Securities offered and sold within the United States to
institutional "ACCREDITED INVESTORS" as defined in Rule 501(a)(1), (2) (3) and
(7) under the Securities Act ("INSTITUTIONAL ACCREDITED INVESTORS") shall be
issued, initially, in the form of an Institutional Accredited Investor Security,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided.
(c) GLOBAL SECURITIES IN GENERAL. Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate Principal Amount at
Maturity of outstanding Securities from time to time endorsed thereon and that
the aggregate Principal Amount at Maturity of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and conversions.
10
Any adjustment of the aggregate Principal Amount at Maturity of a
Global Security to reflect the amount of any increase or decrease in the
Principal Amount at Maturity of outstanding Securities represented thereby shall
be made by the Trustee in accordance with instructions given by the Holder
thereof as required by Section 2.12 hereof and shall be made on the records of
the Trustee and the Depositary.
(d) BOOK-ENTRY PROVISIONS. This Section 2.01(d) shall apply only to
Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(d), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for such Depositary and (c)
shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN
WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(e) CERTIFICATED SECURITIES. Securities not issued as interests in
the Global Securities will be issued in certificated form substantially in the
form of Exhibit A-3 attached hereto.
(f) U.S. TAX LEGEND. All Securities shall bear the following legend:
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF
SECTIONS 1272, 1273 AND ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNAL REVENUE CODE OF
1986, AS AMENDED. THE ISSUE PRICE OF THIS NOTE WAS $572.76 PER $1,000 OF
PRINCIPAL AMOUNT AT MATURITY;
11
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, INCLUDING CASH INTEREST PAYABLE
THROUGH APRIL 16, 2007 TAXABLE AS ORIGINAL ISSUE DISCOUNT UNDER TREASURY
REGULATION SECTION 1.1273-1, IS $534.63 PER $1,000 OF PRINCIPAL AMOUNT AT
MATURITY; THE ISSUE DATE IS APRIL 16, 2002; AND THE YIELD TO MATURITY FOR
THE PURPOSES OF ACCRUING TAX ORIGINAL ISSUE DISCOUNT IS 3.75% PER ANNUM,
CALCULATED ON A SEMIANNUAL BOND EQUIVALENT BASIS.
SECTION 2.02 EXECUTION AND AUTHENTICATION. The Securities shall be
executed on behalf of the Company by any Officer. The signature of the Officer
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of an individual
who was at the time of the execution of the Securities the proper Officer of the
Company shall bind the Company, notwithstanding that such individual has ceased
to hold such office prior to the authentication and delivery of such Securities
or did not hold such office at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory of the
Trustee and such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate Principal Amount at Maturity of up to $381,488.000 upon a
Company Order without any further action by the Company. The aggregate Principal
Amount at Maturity of Securities outstanding at any time may not exceed the
amount set forth in the foregoing sentence, except as provided in Section 2.07.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of Principal Amount at Maturity and any
integral multiple thereof.
SECTION 2.03 REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("REGISTRAR"), an office or agency
where Securities may be presented for purchase or payment ("PAYING AGENT") and
an office or agency where Securities may be presented for conversion
("CONVERSION AGENT"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent, including
any named pursuant to Section 4.05. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement with any
Registrar or co-registrar, Paying Agent or Conversion Agent (other than the
Trustee). The
12
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion
Agent, the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07. The Company or any Subsidiary or
an Affiliate of either of them may act as Paying Agent, Registrar, Conversion
Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
SECTION 2.04 PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST.
Except as otherwise provided herein, not later than 10:00 a.m.,
New York City
time, on each due date of payments in respect of any Security, the Company shall
deposit with the Paying Agent a sum of money (in immediately available funds if
deposited on the due date) or Common Stock sufficient to make such payments when
so becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money and Common Stock held by the
Paying Agent for the making of payments in respect of the Securities and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
and Common Stock so held in trust. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it shall segregate the money and Common
Stock held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money and Common Stock
held by it to the Trustee and to account for any funds and Common Stock
disbursed by it. Upon doing so, the Paying Agent shall have no further liability
for the money or Common Stock.
SECTION 2.05 SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on May 1 and November 1 a listing of Securityholders dated within
15 days of the date on which the list is furnished and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06 TRANSFER AND EXCHANGE. Subject to Section 2.12 hereof,
(a) Upon surrender for registration of transfer of any Security,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Securityholder or such Securityholder's attorney duly
authorized in writing, at the office or agency of the Company designated as
Registrar or co-registrar pursuant to Section 2.03, the Company shall execute,
and the Trustee upon receipt of a Company Order shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount at Maturity. The Company shall not charge a service charge for
any registration of transfer or exchange, but the Company may require payment of
a sum sufficient to pay all taxes, assessments or other governmental charges
that may be imposed in connection with the registration of transfer or
13
exchange of the Securities from the Securityholder requesting such registration
of transfer or exchange.
At the option of the Holder, Certificated Securities may be exchanged
for other Securities of any authorized denomination or denominations, of a like
aggregate Principal Amount at Maturity, upon surrender of the Securities to be
exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder's attorney
duly authorized in writing, at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee upon
receipt of a Company Order shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as
a Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon registration
of transfer or exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer
or exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the registration of transfer,
exchange or replacement of Securities subject to restrictions on transfer and
bearing the legends set forth on the form of Security attached hereto as
Exhibits A-1 and A-3 setting forth such restrictions (collectively, the
"LEGEND"), or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Company and the Registrar
such satisfactory evidence, which shall include an Opinion of Counsel, as may be
reasonably required by the Company and the Registrar, that neither the Legend
nor the restrictions on transfer set forth therein are required to
14
ensure that transfers thereof comply with the provisions of Rule 144A or Rule
144 or that such Securities are not "RESTRICTED" within the meaning of Rule 144.
Upon (i) provision of such satisfactory evidence, or (ii) notification by the
Company to the Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee,
upon receipt of a Company Order, shall authenticate and deliver a Security that
does not bear the Legend. If the Legend is removed from the face of a Security
and the Security is subsequently held by an Affiliate of the Company, the
Company shall use its reasonable best efforts to reinstate the Legend.
The Trustee and the Registrar shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or
among Depositary participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
SECTION 2.07 REPLACEMENT SECURITIES. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser within the meaning of Article 8 of the Uniform Commercial
Code (a "PROTECTED PURCHASER"), the Company shall execute and upon receipt of a
Company Order, the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and Principal Amount at Maturity, bearing
a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
15
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08 OUTSTANDING SECURITIES; DETERMINATIONS OF HOLDERS'
ACTION. Securities outstanding at any time are all the Securities authenticated
by the Trustee, except for those cancelled by it, those paid pursuant to Section
2.10 and delivered to it for cancellation and those described in this Section
2.08 as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite Principal Amount at Maturity of
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, the replaced
Security ceases to be outstanding unless the Trustee and the Company receive
proof satisfactory to each of them that the replaced Security is held by a
Protected Purchaser unaware that such Security has been replaced, in which case
the replacement security shall be deemed not to be outstanding.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following the Purchase Date or a Change
in Control Purchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Purchase Date, Change in Control
Purchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Original Issue Discount or cash interest on such
Securities shall cease to accrue; provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture.
If a Security is converted in accordance with Article 11, then from
and after the time of conversion on the Conversion Date, such Security shall
cease to be outstanding and Original Issue Discount or cash interest shall cease
to accrue on such Security.
SECTION 2.09 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
16
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and upon Company Order the
Trustee shall authenticate and deliver in exchange therefor a like Principal
Amount at Maturity of definitive Securities of authorized denominations. Until
so exchanged the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 2.10 CANCELLATION. All Securities surrendered for payment,
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article 11. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of by
the Trustee.
SECTION 2.11 PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of the Security or the payment of any Redemption Price, Purchase Price
or Change in Control Purchase Price in respect thereof or cash interest thereon,
for the purpose of conversion and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.12 GLOBAL SECURITIES.
(a) Notwithstanding any other provisions of this Indenture or the
Securities, (A) transfers of a Global Security, in whole or in part, shall be
made only in accordance with Section 2.06 and Section 2.12(b)(i) below, (B)
transfer of a beneficial interest in a Global Security for a Certificated
Security shall comply with Section 2.06 and Section 2.12(b)(i) below, and (C)
transfers of a Certificated Security shall comply with Section 2.06 and Section
2.12(b)(ii) and transfer of a Certificated Security for a Beneficial Interest in
a Global Security shall comply with Section 2.06 and Section 2.12(b)(iii) below.
(b) TRANSFER OF GLOBAL SECURITY. A Global Security may not be
transferred, in whole or in part, to any Person other than the Depositary or a
nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that this Section 2.12(b)(i) shall not prohibit any
transfer of a Security that is issued in exchange for a Global Security but is
not itself a Global Security. No transfer of a Security to any Person shall be
17
effective under this Indenture or the Securities unless and until such Security
has been registered in the name of such Person. Nothing in this Section
2.12(b)(i) shall prohibit or render ineffective any transfer of a beneficial
interest in a Global Security effected in accordance with the other provisions
of this Section 2.12(b).
(i) RESTRICTIONS ON TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL
SECURITY FOR A CERTIFICATED SECURITY. A beneficial interest in a
Global Security may not be exchanged for a Certificated Security
except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a request for transfer of a beneficial
interest in a Global Security in accordance with Applicable Procedures
for a Certificated Security in the form satisfactory to the Trustee,
together with:
(A) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B-1, and, if
requested by the Company or the Registrar, certification in the
form set forth in Exhibit B-2, that such beneficial interest in
the Global Security is being transferred to an Institutional
Accredited Investor that satisfies the definitions set forth in
subparagraphs (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act;
(B) written instructions to the Trustee to make, or direct the
Registrar to make, an adjustment on its books and records with
respect to such Global Security to reflect a decrease in the
aggregate Principal Amount at Maturity of the Securities
represented by the Global Security, such instructions to contain
information regarding the Depositary account to be credited with
such decrease; and
(C) if the Company or Registrar so requests, an Opinion of Counsel or
other evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing between
the Depositary and the Registrar, the aggregate Principal Amount at
Maturity of Securities represented by the Global Security to be decreased
by the aggregate Principal Amount at Maturity of the Certificated Security
to be issued, shall authenticate and deliver such Certificated Security and
shall debit or cause to be debited to the account of the Person specified
in such instructions a beneficial interest in the Global Security equal to
the Principal Amount at Maturity of the Certificated Security so issued.
(ii) TRANSFER AND EXCHANGE OF CERTIFICATED SECURITIES. When
Certificated Securities are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Securities; or
(y) to exchange such Certificated Securities for an equal
Principal Amount at Maturity of Certificated Securities of other
authorized denominations,
18
the Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; provided,
however, that the Certificated Securities surrendered for registration of
transfer or exchange:
(A) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing; and
(B) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act or, if being
transferred pursuant to clause (1), (2) or (3) below, are accompanied
by the additional information and documents specified in each clause,
as applicable:
(1) if such Certificated Securities are being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect; or
(2) if such Certificated Securities are being transferred to the
Company, a certification to that effect; or
(3) if such Certificated Securities are being transferred
pursuant to an exemption from registration (i) a certification to
that effect (in the form set forth in Exhibit B-1 and B-2, if
applicable) and (ii) if the Company or Registrar so requests, an
opinion of counsel or other evidence reasonably satisfactory to
them as to the compliance with the restrictions set forth in the
Legend.
(iii) RESTRICTIONS ON TRANSFER OF A CERTIFICATED SECURITY FOR A
BENEFICIAL INTEREST IN A GLOBAL SECURITY. A Certificated Security may
not be exchanged for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly endorsed
or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(A) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B-1, that such
Certificated Security is being transferred to a QIB in accordance
with Rule 144A; and
(B) written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect an
increase in the aggregate Principal Amount at Maturity of the
Securities represented by the Global Security, such instructions
to contain information regarding the Depositary account to be
credited with such increase,
19
then the Trustee shall cancel such Certificated Security and cause, or
direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate Principal Amount at Maturity of Securities
represented by the Global Security to be increased by the aggregate
Principal Amount at Maturity of the Certificated Security to be
exchanged, and shall credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Global Security equal to the Principal Amount at Maturity of the
Certificated Security so cancelled. If no Global Securities are then
outstanding, the Company shall issue and the Trustee, upon receipt of
a Company Order, shall authenticate a new Global Security in the
appropriate Principal Amount at Maturity.
(c) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the Legend including the
requirement of the delivery of an Opinion of Counsel, if so provided. Whenever
any Restricted Security is presented or surrendered for registration of transfer
or for exchange for a Security registered in a name other than that of the
Holder, such Security must be accompanied by a certificate in substantially the
form set forth in Exhibit B-1, dated the date of such surrender and signed by
the Holder of such Security, as to compliance with such restrictions on
transfer. The Registrar shall not be required to accept for such registration of
transfer or exchange any Security not so accompanied by a properly completed
certificate.
(d) The restrictions imposed by the Legend upon the transferability
of any Security shall cease and terminate when such Security has been sold
pursuant to an effective registration statement under the Securities Act or
transferred in compliance with Rule 144 or, if earlier, upon the expiration of
the holding period applicable to sales thereof under paragraph (k) of Rule 144.
Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of
such Security for exchange to the Registrar in accordance with the provisions of
this Section 2.12 (accompanied, in the event that such restrictions on transfer
have terminated by reason of a transfer in compliance with Rule 144, by an
opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company, the Trustee and the Registrar and in form acceptable to the
Company, to the effect that the transfer of such Security has been made in
compliance with Rule 144), be exchanged for a new Security, of like tenor and
aggregate Principal Amount at Maturity, which shall not bear the restrictive
Legend. The Company shall inform the Trustee of the effective date of any
registration statement registering the Securities under the Securities Act. The
Trustee and the Registrar shall not be liable for any action taken or omitted to
be taken by it in good faith in accordance with the aforementioned opinion of
counsel or registration statement.
(e) As used in the preceding two paragraphs of this Section 2.12, the
term "TRANSFER" encompasses any sale, pledge, transfer, hypothecation or other
disposition of any Security.
(f) The provisions of clauses (1), (2), (3), (4) and (5) below shall
apply only to Global Securities:
20
(1) Notwithstanding any other provisions of this Indenture or
the Securities, except as provided in Section 2.12(b)(i), a
Global Security shall not be exchanged in whole or in part for a
Security registered in the name of any Person other than the
Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities registered in the
names of any person designated by the Depositary in the event
that (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global
Security or such Depositary has ceased to be a "CLEARING AGENCY"
registered under the Exchange Act, and a successor Depositary is
not appointed by the Company within 90 days; (ii) the Company
elects to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary); or (iii) an Event of
Default has occurred and is continuing with respect to the
Securities. Any Global Security exchanged pursuant to clause (i)
of this sub-section shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clause (ii)
of this sub-section may be exchanged in whole or from time to
time in part as directed by the Depositary. Any Security issued
in exchange for a Global Security or any portion thereof shall be
a Global Security; provided that any such Security so issued that
is registered in the name of a person other than the Depositary
or a nominee thereof shall not be a Global Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate Principal
Amount at Maturity equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such
names and be in such authorized denominations as the Depositary
shall designate and shall bear the applicable legends provided
for herein. Any Global Security to be exchanged in whole shall be
surrendered by the Depositary to the Trustee, as Registrar. With
regard to any Global Security to be exchanged in part, either
such Global Security shall be so surrendered for exchange or, if
the Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the Principal
Amount at Maturity thereof shall be reduced, by an amount equal
to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon
any such surrender or adjustment, the Trustee shall authenticate
and deliver the Security issuable on such exchange to or upon the
order of the Depositary or an authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the
registered Holder may grant proxies and otherwise authorize any
Person, including Agent Members (as defined below) and persons
that may hold interests through Agent Members, to take any action
which a holder is entitled to take under this Indenture or the
Securities.
21
(4) In the event of the occurrence of any of the events
specified in clause (1) above, the Company will promptly make
available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form, without interest
coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "AGENT MEMBERS") nor any other Persons on
whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered in
the name of the Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and
holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the
case may be, or impair, as between the Depositary, its Agent
Members and any other person on whose behalf an Agent Member may
act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Security.
SECTION 2.13 CUSIP NUMBERS. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 RIGHT TO REDEEM; NOTICES TO TRUSTEE. The Company, at its
option, may redeem the Securities in accordance with the provisions of
paragraphs 6 and 8 of the Securities. Prior to April 16, 2007, the Company
cannot redeem the Securities. Beginning on April 16, 2007, the Company may
redeem the Securities for cash in whole at any time, or in part from time to
time. If the Company elects to redeem Securities pursuant to paragraph 6 of the
Securities, it shall notify the Trustee in writing of the Redemption Date, the
Principal Amount at Maturity of Securities to be redeemed, the Redemption Price
and the amount of accrued and unpaid cash interest, if any, payable on the
Redemption Date.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 by a Company Order, at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee). If fewer than
all the Securities are to be redeemed, the record date
22
relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall not be less than ten days after the date of
notice to the Trustee.
SECTION 3.02 SELECTION OF SECURITIES TO BE REDEEMED. If less than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by any other method the Trustee considers fair
and appropriate (so long as such method is not prohibited by the rules of any
stock exchange on which the Securities are then listed). The Trustee shall make
the selection at least 30 days but not more than 60 days before the Redemption
Date from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the Principal Amount at Maturity
of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in
Principal Amounts at Maturity of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
SECTION 3.03 NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price and accrued and unpaid cash interest, if
any, payable on the Redemption Date;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any
time before the close of business on the second Business Day
immediately preceding the Redemption Date, even if not otherwise
convertible at such time;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 9 of the Securities;
23
(7) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price and accrued and unpaid
cash interest, if any;
(8) if fewer than all the outstanding Securities are to be redeemed,
the certificate number and Principal Amounts at Maturity of the
particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of such
Redemption Price and any cash interest which is due and payable,
Original Issue Discount or cash interest will cease to accrue on and
after the Redemption Date;
(10) the CUSIP number of the Securities; and
(11) any other information the Company wants to present.
At the Company's request, the Trustee shall give the notice of
redemption to Holders in the Company's name and at the Company's expense,
provided that the Company makes such request at least five Business Days (unless
a shorter period shall be satisfactory to the Trustee) prior to the date such
notice of redemption must be mailed.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price (together with accrued and unpaid
cash interest, if any, to but not including the date of redemption) stated in
the notice except for Securities which are converted in accordance with the
terms of this Indenture. Upon surrender to the Paying Agent, such Securities
shall be paid at the Redemption Price (together with accrued and unpaid cash
interest, if any, to but not including the date of redemption) stated in the
notice.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m. (
New
York City time), on any Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient to
pay the Redemption Price of, and any accrued and unpaid interest to but not
including the date of redemption with respect to, all Securities to be redeemed
on that date other than Securities or portions of Securities called for
redemption which on or prior thereto have been delivered by the Company to the
Trustee for cancellation or have been converted. The Paying Agent shall as
promptly as practicable return to the Company any money not required for that
purpose because of conversion of Securities pursuant to Article 11. If such
money is then held by the Company in trust and is not required for such purpose
it shall be discharged from such trust.
SECTION 3.06 SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Principal Amount at Maturity to the unredeemed portion of
the Security surrendered.
SECTION 3.07 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of
24
any Securities called for redemption by an agreement with one or more investment
banks or other purchasers to purchase such Securities by paying to the Trustee
in trust for the Securityholders, on or prior to 10:00 a.m.
New York City time
on the Redemption Date, an amount that, together with any amounts deposited with
the Trustee by the Company for the redemption of such Securities, is not less
than the Redemption Price of, and any accrued and unpaid interest with respect
to, such Securities. Notwithstanding anything to the contrary contained in this
Article 3, the obligation of the Company to pay the Redemption Prices of such
Securities shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, any
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article 11) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the Business
Day prior to the Redemption Date, subject to payment of the above amount as
aforesaid. The Trustee shall hold and pay to the Holders whose Securities are
selected for redemption any such amount paid to it for purchase and conversion
in the same manner as it would moneys deposited with it by the Company for the
redemption of Securities. Without the Trustee's prior written consent, no
arrangement between the Company and such purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Company agrees to indemnify the Trustee from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Trustee in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.08 PURCHASE OF SECURITIES AT OPTION OF THE HOLDER
(a) GENERAL. Securities shall be purchased by the Company pursuant to
paragraph 7 of the Securities as of April 16, 2007, 2012 and 2017 (each, a
"PURCHASE DATE"), at the purchase price of $572.76 per $1,000 of Principal
Amount at Maturity as of April 16, 2007, of $689.68 per $1,000 of Principal
Amount at Maturity as of April 16, 2012, and of $830.47 per $1,000 of Principal
Amount at Maturity as of April 16, 2017, in each case, plus accrued and unpaid
cash interest, if any, to the Purchase Date (each, a "PURCHASE PRICE", as
applicable), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written notice
of purchase (a "PURCHASE NOTICE") at any time from the opening of
business on the date that is 20 Business Days prior to a Purchase Date
until the close of business on such Purchase Date stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased,
(B) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased, which
portion must be a Principal Amount at Maturity of $1,000 or an
integral multiple thereof,
25
(C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in paragraph
7 of the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to
Section 3.08(b), to pay the Purchase Price to be paid as of such
Purchase Date, in whole or in part, in shares of Common Stock but
such portion of the Purchase Price shall ultimately be payable to
such Holder entirely in cash because any of the conditions to
payment of the Purchase Price in Common Stock is not satisfied
prior to the close of business on such Purchase Date, as set
forth in Section 3.08(d), whether such Holder elects (i) to
withdraw such Purchase Notice as to some or all of the Securities
to which such Purchase Notice relates (stating the Principal
Amount at Maturity and certificate numbers of the Securities as
to which such withdrawal shall relate), or (ii) to receive cash
in respect of the entire Purchase Price for all Securities (or
portions thereof) to which such Purchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on or
after the Purchase Date (together with all necessary endorsements) at
the offices of the Paying Agent, such delivery being a condition to
receipt by the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid pursuant to this
Section 3.08 only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof in the
related Purchase Notice, as determined by the Company.
If a Holder, in such Holder's Purchase Notice and in any written
notice of withdrawal delivered by such Holder pursuant to the terms of Section
3.10, fails to indicate such Holder's choice with respect to the election set
forth in clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have
elected to receive cash in respect of the Purchase Price for all Securities
subject to such Purchase Notice in the circumstances set forth in such clause
(D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder (together with accrued and unpaid cash interest, if
any) promptly following the later of the Purchase Date and the time of delivery
of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 3.08(a)
shall have the right to withdraw such Purchase Notice at any time prior to the
close of business on the business day prior to the Purchase Date by delivery of
a written notice of withdrawal to the Paying Agent in accordance with Section
3.10.
26
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
(b) COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF PURCHASE PRICE. The
Securities to be purchased pursuant to Section 3.08(a) may be paid for, at the
election of the Company, in U.S. legal tender ("CASH") or Common Stock, or in
any combination of cash and Common Stock, subject to the conditions set forth in
Sections 3.08(c) and (d). The Company shall designate, in the Company Notice
delivered pursuant to Section 3.08(e), whether the Company will purchase the
Securities for cash or Common Stock, or, if a combination thereof, the
percentages or amounts of the Purchase Price of Securities in respect of which
it will pay in cash or Common Stock; provided that the Company will pay cash for
fractional interests in Common Stock. For purposes of determining the existence
of potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to this Section 3.08 shall receive the same percentage of
cash or Common Stock in payment of the Purchase Price for such Securities,
except (i) as provided in Section 3.08(d) with regard to the payment of cash in
lieu of fractional shares of Common Stock and (ii) in the event that the Company
is unable to purchase the Securities of a Holder or Holders for Common Stock
because any necessary qualifications or registrations of the Common Stock under
applicable state securities laws cannot be obtained, the Company may purchase
the Securities of such Holder or Holders for cash. The Company may not change
its election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company Notice to
Securityholders except pursuant to this Section 3.08(b) or pursuant to Section
3.08(d) in the event of a failure to satisfy, prior to the close of business on
the Purchase Date, any condition to the payment of the Purchase Price, in whole
or in part, in Common Stock.
At least three Business Days before the Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e),
(iii) if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in Common Stock, that the conditions to such
manner of payment set forth in Section 3.08(d) have been or will be
complied with, and
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 3.08(e).
(c) PURCHASE WITH CASH. On each Purchase Date, at the option of the
Company, the Purchase Price of Securities in respect of which a Purchase Notice
pursuant to Section 3.08(a) has been given, or a specified percentage thereof,
may be paid by the Company with cash equal to the aggregate Purchase Price of
such Securities. If the Company elects to purchase Securities with cash, the
Company Notice, as provided in Section 3.08(e), shall be sent
27
to Holders (and to beneficial owners as required by applicable law) not less
than 20 Business Days prior to such Purchase Date (the "COMPANY NOTICE DATE").
(d) PAYMENT BY ISSUANCE OF COMMON STOCK. On each Purchase Date, at
the option of the Company, the Purchase Price of Securities in respect of which
a Purchase Notice pursuant to Section 3.08(a) has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a number of
shares of Common Stock equal to the quotient obtained by dividing (i) the amount
of cash to which the Securityholders would have been entitled had the Company
elected to pay all or such specified percentage, as the case may be, of the
Purchase Price of such Securities in cash by (ii) the Market Price of a share of
Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock in
payment of the Purchase Price. Instead the Company will pay cash for the current
market value of the fractional share. The current market value of a fraction of
a share shall be determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent. It is understood that if a
Holder elects to have more than one Security purchased, the number of shares of
Common Stock shall be based on the aggregate amount of Securities to be
purchased.
Upon a payment by Common Stock pursuant to the terms hereof, that
portion of accrued Original Issue Discount or cash interest attributable to the
period from the Issue Date to the Purchase Date with respect to the purchased
Security shall not be cancelled, extinguished or forfeited but rather shall be
deemed paid in full to the Holder through the delivery of the Common Stock in
exchange for the Security being purchased pursuant to the terms hereof, and the
fair market value of such Common Stock (together with any cash payments in lieu
of fractional shares of Common Stock) shall be treated as issued, to the extent
thereof, first in exchange for the accrued Original Issue Discount or cash
interest through the Purchase Date, and the balance, if any, of the fair market
value of such shares of Common Stock shall be treated as issued in exchange for
the Issue Price of the Security being purchased pursuant to the provisions
hereof. If the Company elects to purchase the Securities by the issuance of
shares of Common Stock, the Company Notice, as provided in Section 3.08(b) be
sent to the Holders (and to beneficial owners as required by applicable law) not
later than the Company Notice Date.
If the Company elects to purchase the Securities by the issuance of
shares of Common Stock, the Company Notice, as provided in Section 3.08(e),
shall be sent to the Holders (and to beneficial owners as required by applicable
law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase the
Securities pursuant to this Section 3.08 through the issuance of shares of
Common Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of an election
to pay entirely in cash and its giving of timely Company Notice of
election to purchase all or a specified percentage of the Securities
with Common Stock as provided herein;
28
(ii) the shares of Common Stock having been admitted for listing or
admitted for listing subject to notice of issuance on the principal
United States securities exchange on which the Common Stock is then
listed or, if the Common Stock is not then listed on a national or
regional securities exchange, as quoted on the National Association of
Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be issued in
respect of the payment of the Purchase Price under the Securities Act
of 1933, as amended (the "SECURITIES ACT"), or the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), in each case, if
required;
(iv) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of
the Common Stock are in conformity with this Indenture and (B) the
shares of Common Stock to be issued by the Company in payment of the
Purchase Price in respect of Securities have been duly authorized and,
when issued and delivered pursuant to the terms of this Indenture in
payment of the Purchase Price in respect of the Securities, will be
validly issued, fully paid and non-assessable and, to the best of such
counsel's knowledge, free from preemptive rights under law or material
contracts, and, in the case of such Officers' Certificate, stating
that conditions (i), (ii), (iii) and (iv) above and the condition set
forth in the second succeeding sentence have been satisfied and, in
the case of such Opinion of Counsel, stating that conditions (ii) and
(iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares
of Common Stock to be issued for each $1,000 Principal Amount at Maturity of
Securities and the Sale Price of a share of Common Stock on each trading day
during the period for which the Market Price is calculated. The Company may pay
the Purchase Price (or any portion thereof) in Common Stock only if the
information necessary to calculate the Market Price is published in a daily
newspaper of national circulation. If the foregoing conditions are not satisfied
with respect to a Holder or Holders prior to the close of business on the
Purchase Date and the Company has elected to purchase the Securities pursuant to
this Section 3.08 through the issuance of shares of Common Stock, the Company
shall pay the entire Purchase Price of the Securities of such Holder or Holders
in cash.
The "MARKET PRICE" of the Common Stock means the average of the Sale
Prices of the Common Stock for the five trading day period ending on the third
Business Day (if the third Business Day prior to the applicable Purchase Date is
a trading day or, if not, then on the last trading day) prior to the applicable
Purchase Date, appropriately adjusted to take into account the occurrence,
during the period commencing on the first of such trading days during such five
trading day period and ending on such Purchase Date, of any event described in
Section 11.06, 11.07 or 11.08; subject, however, to the conditions set forth in
Sections 11.09 and 11.10.
29
(e) NOTICE OF ELECTION. The Company's notice of election to purchase
with cash or Common Stock or any combination thereof shall be sent to the
Holders (and to beneficial owners as required by applicable law) in the manner
provided in Section 14.02 at the time specified in Section 3.08(c) or (d), as
applicable (the "COMPANY NOTICE"). Such Company Notice shall state the manner of
payment elected and shall contain the following information:
In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock with a Market
Price determined as of a specified date prior to the Purchase Date
equal to such specified percentage of the Purchase Price of the
Securities held by such Holder (except any cash amount to be paid in
lieu of fractional shares);
(2) set forth the method of calculating the Market Price of the
Common Stock; and
(3) state that because the Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the market
risk with respect to the value of the Common Stock to be received from
the date such Market Price is determined to the Purchase Date.
In any case, each Company Notice shall include a form of Purchase
Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price, the Conversion Rate and accrued and unpaid
cash interest, if any, that will be accrued and payable with respect
to the Securities as of the Purchase Date;
(ii) whether the Company will pay the Purchase Price in cash or in
Common Stock or any combination thereof, specifying the percentage of
each;
(iii) the name and address of the Paying Agent and the Conversion
Agent;
(iv) that Securities as to which a Purchase Notice has been given
may be converted pursuant to Article 11 hereof only if the applicable
Purchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(v) that Securities must be surrendered to the Paying Agent to
collect payment of the Purchase Price and interest, if any;
(vi) that the Purchase Price for any Security as to which a Purchase
Notice has been given and not withdrawn, together with any cash
interest payable with respect thereto, will be paid promptly following
the later of the Purchase Date and the time of surrender of such
Security as described in (v);
(vii) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
30
(viii) briefly, the conversion rights of the Securities and that
Holders who want to convert Securities must satisfy the requirements
set forth in paragraph 9 of the Securities;
(ix) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms
of Section 3.08(a)(1)(D) or Section 3.10);
(x) that, unless the Company defaults in making payment of such
Purchase Price and cash interest, if any, Original Issue Discount and
cash interest, if any, on Securities surrendered for purchase will
cease to accrue on and after the Purchase Date; and
(xi) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company Notice
in the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
Upon determination of the actual number of shares of Common Stock to
be issued for each $1,000 Principal Amount at Maturity of Securities, the
Company will issue a press release and publish such determination on the
Company's web site on the World Wide Web.
(f) COVENANTS OF THE COMPANY. All shares of Common Stock delivered
upon purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable and shall
be free from preemptive rights and free of any lien or adverse claim created by
the Company.
The Company shall use its reasonable efforts to list or cause to have
quoted any shares of Common Stock to be issued to purchase Securities on the
principal United States securities exchange or over-the-counter or other
domestic market on which any other shares of the Common Stock are then listed or
quoted. The Company will promptly inform the Trustee in writing of any such
listing.
(g) PROCEDURE UPON PURCHASE. The Company shall deposit cash (in
respect of a cash purchase under Section 3.08(c) or for fractional interests as
applicable) or shares of Common Stock, or a combination thereof, as applicable,
at the time and in the manner as provided in Section 3.11, sufficient to pay the
aggregate Purchase Price of, and any accrued and unpaid interest with respect to
all Securities to be purchased pursuant to this Section 3.08. As soon as
practicable after the Purchase Date, the Company shall deliver to each Holder
entitled to receive Common Stock through the Paying Agent, a certificate for the
number of full shares of Common Stock issuable in payment of the Purchase Price
and cash in lieu of any fractional interests. The person in whose name the
certificate for Common Stock is registered shall be treated as a holder of
record of shares of Common Stock on the Business Day following the Purchase
Date. Subject to Section 3.08(d), no payment or adjustment will be made for
dividends on the Common Stock the record date for which occurred on or prior to
the Purchase Date.
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(h) TAXES. If a Holder of a Security is paid in Common Stock, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
such issue of shares of Common Stock. However, the Holder shall pay any such tax
which is due because the Holder requests the shares of Common Stock to be issued
in a name other than the Holder's name. The Paying Agent may refuse to deliver
the certificates representing the Common Stock being issued in a name other than
the Holder's name until the Paying Agent receives a sum sufficient to pay any
tax which will be due because the shares of Common Stock are to be issued in a
name other than the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations.
SECTION 3.09 PURCHASE OF SECURITIES AT OPTION OF THE HOLDER UPON
CHANGE IN CONTROL.
(a) If there shall have occurred a Change in Control, Securities
shall be purchased by the Company, at the option of the Holder thereof, at a
purchase price specified in paragraph 7 of the Securities (the "CHANGE IN
CONTROL PURCHASE PRICE"), as of the date that is no later than 30 Business Days
after the occurrence of the Change in Control but in no event prior to the date
on which such Change in Control occurs (the "CHANGE IN CONTROL PURCHASE DATE"),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 3.09(c).
A "CHANGE IN CONTROL" means the occurrence of any of the following:
(a) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company and its subsidiaries,
taken as a whole, to any "person" or "group" (as such terms are used in Section
13(d) of the Exchange Act), (b) the adoption of a plan relating to the
liquidation or dissolution of the Company, (c) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" or "group" (as such terms are used in
Section 13(d) of the Exchange Act) becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries, of more than 50% of the voting
power of the outstanding voting stock of the Company, or (d) the first day on
which more than a majority of the members of the Board of Directors of the
Company are not Continuing Directors.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (a) was a member of the
Board of Directors of the Company on April 16, 2002 or (b) was nominated for
election to the Board of Directors of the Company with the approval of, or whose
election to the Board of Directors of the Company was ratified by, at least a
majority of the Continuing Directors who were members of the Board of Directors
of the Company at the time of such nomination or election.
(b) Within 15 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of Change in
Control Purchase Notice to be completed by the Securityholder and shall state:
32
(1) briefly, the events causing a Change in Control and the date of
such Change in Control;
(2) the date by which the Change in Control Purchase Notice pursuant
to this Section 3.09 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price and, to the extent known at
the time of such notice, the amount of interest, if any, that will be
accrued and payable with respect to the Securities as of the Change in
Control Purchase Date;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Rate and any adjustments thereto resulting from
the Change in Control;
(7) that Securities as to which a Change in Control Purchase Notice
has been given may be converted pursuant to Article 11 hereof only if
the Change in Control Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent to
collect payment of the Change in Control Purchase Price and accrued
and unpaid cash interest, if any;
(9) that the Change in Control Purchase Price for any Security as to
which a Change in Control Purchase Notice has been duly given and not
withdrawn, together with any accrued interest payable with respect
thereto, will be paid promptly following the later of the Change in
Control Purchase Date and the time of surrender of such Security as
described in (8);
(10) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.09;
(11) briefly, the conversion rights of the Securities;
(12) the procedures for withdrawing a Change in Control Purchase
Notice;
(13) that, unless the Company defaults in making payment of such
Change in Control Purchase Price and cash interest, if any on
Securities surrendered for purchase, Original Issue Discount or cash
interest on Securities surrendered for purchase will cease to accrue
on and after the Change in Control Purchase Date; and
(14) the CUSIP number of the Securities.
33
(c) A Holder may exercise its rights specified in Section 3.09(a)
upon delivery of a written notice of purchase (a "CHANGE IN CONTROL PURCHASE
NOTICE") to the Paying Agent at any time prior to the close of business on the
Change in Control Purchase Date, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the Principal Amount at Maturity of the Security
which the Holder will deliver to be purchased, which portion must be
$1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the terms and
conditions specified in paragraph 7 of the Securities.
The delivery of such Security to the Paying Agent prior to, on or
after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so paid
pursuant to this Section 3.09 only if the Security so delivered to the Paying
Agent shall conform in all respects to the description thereof set forth in the
related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration to
be received by the Holder (together with accrued and unpaid interest, if any)
promptly following the later of the Change in Control Purchase Date and the time
of delivery of the Security to the Paying Agent in accordance with this Section
3.09.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change in Control Purchase Notice contemplated by this
Section 3.09(c) shall have the right to withdraw such Change in Control Purchase
Notice at any time prior to the close of business on the Change in Control
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change in Control Purchase Notice or written withdrawal thereof.
The Company shall not be required to comply with this Section 3.09 if
a third party mails a written notice of Change in Control in the manner, at the
times and otherwise in compliance with this Section 3.09 and repurchases all
Securities for which a Change in Control Purchase Notice shall be delivered and
not withdrawn.
34
SECTION 3.10 EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE
NOTICE. Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08(a) or Section 3.09(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may
be, and any accrued and unpaid interest, with respect to such Security. Such
Purchase Price or Change in Control Purchase Price and any accrued and unpaid
cash interest, if any, shall be paid to such Holder, subject to receipt of funds
and/or securities by the Paying Agent, promptly following the later of (x) the
Purchase Date or the Change in Control Purchase Date, as the case may be, with
respect to such Security (provided the conditions in Section 3.08(a) or Section
3.09(c), as applicable, have been satisfied) and (y) the time of delivery of
such Security to the Paying Agent by the Holder thereof in the manner required
by Section 3.08(a) or Section 3.09(c), as applicable. Securities in respect of
which a Purchase Notice or Change in Control Purchase Notice, as the case may
be, has been given by the Holder thereof may not be converted pursuant to
Article 11 hereof on or after the date of the delivery of such Purchase Notice
or Change in Control Purchase Notice, as the case may be, unless such Purchase
Notice or Change in Control Purchase Notice, as the case may be, has first been
validly withdrawn as specified in the following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the case
may be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent in accordance with the Purchase Notice or Change
in Control Purchase Notice, as the case may be, at any time prior to the close
of business on the Purchase Date or the Change in Control Purchase Date, as the
case may be, specifying:
(1) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted,
(2) the Principal Amount at Maturity of the Security with respect to
which such notice of withdrawal is being submitted, and
(3) the Principal Amount at Maturity, if any, of such Security which
remains subject to the original Purchase Notice or Change in Control
Purchase Notice, as the case may be, and which has been or will be
delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.08(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 3.08(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Securities pursuant to Section 3.08
(other than through the issuance of Common Stock in payment of the Purchase
Price, including cash in lieu
35
of fractional shares) or 3.09 if there has occurred (prior to, on or after, as
the case may be, the giving, by the Holders of such Securities, of the required
Purchase Notice or Change in Control Purchase Notice, as the case may be) and is
continuing an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, and any
accrued and unpaid cash interest with respect to such Securities). The Paying
Agent will promptly return to the respective Holders thereof any Securities (x)
with respect to which a Purchase Notice or Change in Control Purchase Notice, as
the case may be, has been withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of an Event of Default (other than a default
in the payment of the Purchase Price or Change in Control Purchase Price, as the
case may be, and any accrued and unpaid cash interest with respect to such
Securities) in which case, upon such return, the Purchase Notice or Change in
Control Purchase Notice with respect thereto shall be deemed to have been
withdrawn.
SECTION 3.11 DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE
PRICE. Prior to 10:00 a.m.,
New York City time, on the Business Day following
the Purchase Date or the Change in Control Purchase Date, as the case may be,
the Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an
amount of money (in immediately available funds if deposited on such Business
Day) or Common Stock, if permitted hereunder, sufficient to pay the aggregate
Purchase Price or Change in Control Purchase Price, as the case may be, of, and
any accrued and unpaid cash interest with respect to, all the Securities or
portions thereof which are to be purchased as of the Purchase Date or Change in
Control Purchase Date, as the case may be.
SECTION 3.12 SECURITIES PURCHASED IN PART. Any Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate Principal Amount at Maturity equal to, and in exchange
for, the portion of the Principal Amount at Maturity of the Security so
surrendered which is not purchased.
SECTION 3.13 REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall promptly return to the Company any cash or shares of Common Stock
that remain unclaimed as provided in paragraph 15 of the Securities, together
with interest or dividends, if any, thereon (subject to the provisions of
Section 7.01(f)), held by them for the payment of the Purchase Price or Change
in Control Purchase Price, as the case may be, or contingent interest, if any;
provided, however, that to the extent that the aggregate amount of cash or
shares of Common Stock deposited by the Company pursuant to Section 3.11 exceeds
the aggregate Purchase Price or Change in Control Purchase Price, as the case
may be, of, and the accrued and unpaid contingent interest with respect to, the
Securities or portions thereof which the Company is obligated to purchase as of
the Purchase Date or Change in Control Purchase Date, as the case may be,
whether as a result of withdrawal or otherwise, then promptly after the Business
Day following the Purchase Date or Change in Control Purchase Date, as the case
may be, the Trustee
36
shall return any such excess to the Company together with interest or dividends,
if any, thereon (subject to the provisions of Section 7.01(f)).
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF SECURITIES. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts to be
given to the Trustee or Paying Agent, shall be deposited with the Trustee or
Paying Agent by 10:00 a.m.,
New York City time, by the Company. Principal Amount
at Maturity, Restated Principal Amount, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price,
and cash interest shall be considered paid on the applicable date due if on such
date (or, in the case of a Purchase Price or Change in Control Purchase Price,
on the Business Day following the applicable Purchase Date or Change in Control
Purchase Date, as the case may be) the Trustee or the Paying Agent holds, in
accordance with this Indenture, money or securities, if permitted hereunder,
sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law, pay cash interest
on overdue amounts at the rate per annum set forth in paragraph 1 of the
Securities, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in lieu of, and not in addition to, the continued accrual of
Original Issue Discount.
SECTION 4.02 SEC AND OTHER REPORTS. If requested by the Trustee, the
Company shall deliver to the Trustee, within 15 days after it files such annual
and quarterly reports, information, documents and other reports with the SEC,
copies of its annual report and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of the same shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.03 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 28, 2002) an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in
37
default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 4.04 FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05 MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of
New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of the Trustee, located at State
Street Bank and Trust Company, N.A., ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (Attention: Corporate Trust Administration), shall initially be such
office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office of the Trustee). If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 14.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.06 DELIVERY OF CERTAIN INFORMATION. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial holder of Securities or shares of Common
Stock which are restricted securities issued upon conversion thereof, the
Company will promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder or any beneficial holder of Securities or holder
of shares of Common Stock issued upon conversion of Securities, or to a
prospective purchaser of any such security designated by any such holder, as the
case may be, to the extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act in connection with the resale of
any such security. "RULE 144A INFORMATION" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.07 LIMITATION ON GUARANTEES OF INDEBTEDNESS BY DOMESTIC
SUBSIDIARIES. The Company will not permit any domestic Subsidiary to guarantee
the payment of any Debt of the Company unless such domestic Subsidiary
simultaneously executes and delivers a supplemental indenture to the indenture
providing for a Guarantee of the Securities by such domestic Subsidiary to the
extent required in Article 13 hereof.
SECTION 4.08 COVENANT TO COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES. In connection with any offer to purchase or purchase of Securities
under Section 3.08
38
or 3.09 hereof (provided that such offer or purchase constitutes an "ISSUER
TENDER OFFER" for purposes of Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act at the time of such
offer or purchase), the Company shall to the extent applicable (i) comply with
Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the related Schedule
TO (or any successor schedule, form or report) under the Exchange Act, and (iii)
otherwise comply with all Federal and state securities laws so as to permit the
rights and obligations under Sections 3.08 and 3.09 to be exercised in the time
and in the manner specified in Sections 3.08 and 3.09.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. The Company
shall not consolidate with or merge with or into any other person or convey,
transfer or lease all or substantially all of its properties and assets to any
person, nor will the Company permit any Subsidiary to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, transfer,
lease or other disposition of all or substantially all of the properties and
assets of the Company and its Subsidiaries on a consolidated basis to any other
person or persons, unless:
(a) either (1) the Company or such subsidiary shall be the surviving
corporation or (2) the person (if other than the Company) formed by such
consolidation or into which the Company or such Subsidiary is merged or the
person which acquires by conveyance, transfer or lease the properties and assets
of the Company or such Subsidiary substantially as an entirety (i) shall be
organized and validly existing under the laws of the United States or any state
thereof or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the Company or
such Subsidiary under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company or another Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
39
The successor person formed by such consolidation or into which the
Company or the applicable Subsidiary is merged or the successor person to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or the applicable
Subsidiary under this Indenture with the same effect as if such successor had
been named as the Company or the applicable Subsidiary herein; and thereafter,
except in the case of a lease and any obligations the Company or the applicable
Subsidiary may have under a supplemental indenture pursuant to Section 11.14,
the Company or the applicable Subsidiary shall be discharged from all
obligations and covenants under this Indenture and the Securities. Subject to
Section 9.06, the Company, the applicable Subsidiary, the Trustee and the
successor person shall enter into a supplemental indenture to evidence the
succession and substitution of such successor person and such discharge and
release of the Company and the applicable Subsidiary.
A Guarantor shall not consolidate with or merge into any Person or
convey, transfer or lease its properties and assets substantially as an entity
to another Person unless the surviving Person assumes the obligations of such
Guarantor and the surviving Person is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia,
except if all of the assets or all of the common stock of such Guarantor are
sold to a non-affiliate of the Company, in which case the Guarantee is released.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in payment of any interest when due under
the Securities and such default continues for 30 days;
(2) the Company defaults in the payment of the Principal Amount at
Maturity (or, if the Securities have been converted to semiannual
coupon notes following a Tax Event pursuant to Section 10.01 of the
Indenture, the Restated Principal Amount), Issue Price plus accrued
Original Issue Discount or cash interest, Redemption Price, Purchase
Price or Change in Control Purchase Price on any Security when the
same becomes due and payable at its Stated Maturity, upon redemption,
upon declaration, when due for purchase by the Company or otherwise;
(3) the Company fails to comply with any of its agreements in the
Security or this Indenture (other than those referred to in clauses
(1) and (2) above) and such failure continues for 60 days after
receipt by the Company of a Notice of Default;
(4) default under any Debt, whether such Debt now exists or is
created later, which default results in such Debt becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, and the principal amount of all Debt so
accelerated, together with all Debt due and payable but not paid prior
to the end of any grace period, is $10,000,000 or more,
40
and such acceleration has not been rescinded or annulled within a
period of 10 days after receipt by the Company of a Notice of Default
from the Trustee; PROVIDED, HOWEVER, that if any such default shall be
cured, waived, rescinded or annulled, then the Event of Default by
reason thereof shall be deemed not to have occurred;
(5) any event or circumstance that occurs which accelerates or gives
noteholders of the Company's 9 1/4% Senior Subordinated Notes due 2008
the right to accelerate the indebtedness evidenced by the Company 9
1/4% Senior Subordinated Notes due 2008;
(6) any Guarantee ceases to be in full force and effect or is
declared null and void or any Guarantor denies that it has any further
liability under any Guarantee, or gives notice to such effect (other
than by reason of the termination of this Indenture or the release of
any such Guarantee in accordance with this Indenture) and such
condition shall have continued for a period of 30 days after written
notice of such failure requiring the Guarantor and the Company to
remedy the same shall have been given (x) to the Company by the
Trustee or (y) to the Company and the Trustee by the holders of 25% in
aggregate principal amount of the Securities then outstanding
(7) the Company pursuant to or under or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding or the commencement of any case
against it;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consents to the filing of such petition or the appointment
of or taking possession by a Custodian; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;
41
(B) appoints a Custodian of the Company or for any substantial
part of its property; or
(C) orders the winding up or liquidation of the Company;
and the order or decree remains unstayed and in effect for 60
days.
"BANKRUPTCY LAW" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar
Federal or state law for the relief of debtors.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
A Default under clause (3) or clause (4) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in aggregate Principal Amount at Maturity of the Securities at the time
outstanding notify the Company and the Trustee, of the Default and the Company
does not cure such Default (and such Default is not waived) within the time
specified in clause (3) or clause (4) above after actual receipt of such notice.
Any such notice must specify the Default, demand that it be remedied and state
that such notice is a "NOTICE OF DEFAULT".
The Company shall deliver to the Trustee, within 30 days after it
becomes aware of the occurrence thereof, written notice of any event which with
the giving of notice or the lapse of time, or both, would become an Event of
Default under clause (3) or clause (4) above, its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02 ACCELERATION. If an Event of Default (other than an Event
of Default specified in Section 6.01(7) or (8) in respect of the Company) occurs
and is continuing, the Trustee by written Notice to the Company, or the Holders
of at least 25% in aggregate Principal Amount at Maturity of the Securities at
the time outstanding by notice to the Company and the Trustee, may declare the
Issue Price plus accrued Original Issue Discount or cash interest (or if the
Securities have been converted to semiannual coupon notes following a Tax Event,
the Restated Principal Amount, plus accrued interest) through the date of
declaration on all the Securities to be immediately due and payable. Upon such a
declaration, such Issue Price plus accrued Original Issue Discount, and such
accrued and unpaid interest, if any, shall be due and payable immediately. If an
Event of Default specified in Section 6.01(7) or (8) occurs in respect of the
Company and is continuing, the Issue Price plus accrued Original Issue Discount
or accrued cash interest (or, if the Securities have been converted to
semiannual coupon notes following a Tax Event, the Restated Principal Amount,
plus accrued interest) on all the Securities shall become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Securityholders. The Holders of a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding, by notice to the Trustee
(and without notice to any other Securityholder) may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of the Issue Price plus accrued Original Issue Discount or accrued
cash interest (or, if the Securities have been converted to semiannual coupon
notes following a Tax Event, the Restated Principal Amount, plus accrued
interest) that
42
have become due solely as a result of acceleration and if all amounts due to the
Trustee under Section 7.07 have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price plus accrued Original Issue Discount on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. Except as set forth in Section 2.07 hereof, no remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 WAIVER OF PAST DEFAULTS. Subject to Section 6.02, the
Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding, by notice to the Trustee (and without notice
to any other Securityholder), may waive an existing Default and its consequences
except (1) an Event of Default described in Section 6.01(1) or (2), (2) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Securityholder affected or (3) a Default which
constitutes a failure to convert any Security in accordance with the terms of
Article 11. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right.
This Section 6.04 shall be in lieu of Section 316(a)1(B) of the TIA and such
Section 316(a)1(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 6.05 CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it. This Section 6.05 shall be in lieu of Section
316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
SECTION 6.06 LIMITATION ON SUITS. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding make a written
request to the Trustee to pursue the remedy;
43
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding do not give the
Trustee a direction inconsistent with the request during such 60-day
period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the Principal Amount at Maturity (or if the Securities have been converted to
semiannual coupon notes following a Tax Event pursuant to Article 10, the
Restated Principal Amount, plus accrued cash interest), Issue Price plus accrued
Original Issue Discount, Redemption Price, Purchase Price, Change in Control
Purchase Price, or cash interest in respect of the Securities held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, and to convert the Securities in accordance with Article 11, or
to bring suit for the enforcement of any such payment on or after such
respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Securities and the
amounts provided for in Section 7.07.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Principal Amount at Maturity, Restated Principal Amount, Issue
Price plus accrued Original Issue Discount or cash interest, Redemption Price,
Purchase Price, Change in Control Purchase Price shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of any
such amount) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of the Principal
Amount at Maturity, Restated Principal Amount, Issue Price plus accrued Original
Issue Discount or cash interest, Redemption Price, Purchase Price, or Change in
Control Purchase Price (or, if the Securities have been converted to semiannual
coupon notes following a Tax Event, the Restated Principal Amount, plus accrued
interest), as the case may be, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the
44
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.07) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount at Maturity, Restated Principal
Amount, Issue Price plus accrued Original Issue Discount or cash
interest, Redemption Price, Purchase Price or Change in Control
Purchase Price (or, if the Securities have been converted to
semiannual coupon notes following a Tax Event, the Restated Principal
Amount, plus accrued cash interest), as the case may be, ratably,
without preference or priority of any kind, according to such amounts
due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding. This Section 6.11 shall
45
be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount at
Maturity, Restated Principal Amount, Issue Price plus accrued Original Issue
Discount or cash interest, Redemption Price, Purchase Price or Change in Control
Purchase Price (or, if the Securities have been converted to semiannual coupon
notes following a Tax Event, the Restated Principal Amount, plus accrued
interest), as contemplated herein, or which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, but in case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture, but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
46
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
SECTION 7.02 RIGHTS OF TRUSTEE. Subject to its duties and
responsibilities under the provisions of Section 7.01, and, except as expressly
excluded from this Indenture pursuant to said Section 7.01, subject also to its
duties and responsibilities under the TIA:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not
47
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(d) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a resolution of the
Board of Directors;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by a Responsible Officer of the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture;
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
48
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04 TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in the Indenture or the
Securities (other than its certificate of authentication), or the determination
as to which beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05 NOTICE OF DEFAULTS. If a Default occurs and if it is
known to a Responsible Officer of the Trustee, the Trustee shall give to each
Securityholder notice of the Default within 90 days after such Responsible
Officer obtains knowledge of such Default unless such Default shall have been
cured or waived before the giving of such notice. Except in the case of a
Default described in Section 6.01(1) or (2), the Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Securityholders.
The second sentence of this Section 7.05 shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after each
April 15 beginning with the April 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such April
15 that complies with TIA Section 313(a), if required by such Section 313(a).
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company agrees to promptly notify the Trustee
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited (to the extent permitted by law) by
any provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses, advances and disbursements
of its agents and counsel), except any such
49
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor, Trustee and their
agents for, and to hold them harmless against, any loss, damage,
claim, liability, cost or expense (including reasonable attorney's
fees and expenses and taxes (other than taxes based upon, measured by
or determined by the income of the Trustee)) incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.07, the
Holders shall have been deemed to have granted to the Trustee a lien prior to
the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay the Principal Amount at Maturity, Issue Price plus
accrued Original Issue Discount, Redemption Price, Purchase Price, Change in
Control Purchase Price, or cash interest, if any, as the case may be, on
particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(6) or (7), the expenses including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.08. The Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become
50
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee shall mail a
notice of its succession to Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee
(or its parent holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 DISCHARGE OF LIABILITY ON SECURITIES. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company or any
Guarantor irrevocably deposits with the Trustee, the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) or the Conversion Agent cash
or, if expressly permitted by the terms of the Securities or the Indenture,
Common Stock sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.07, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
the Company
51
accompanied by an Officers' Certificate and Opinion of Counsel and at the cost
and expense of the Company.
SECTION 8.02 REPAYMENT TO THE COMPANY. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and the Trustee and the Paying
Agent shall have no further liability to the Securityholders with respect to
such money or securities for that period commencing after the return thereof.
ARTICLE 9
AMENDMENTS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 11.14;
(3) to secure the Company's obligations under the Securities and this
Indenture;
(4) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the
Company;
(5) to make any change to comply with the TIA, or any amendment
thereto, or to comply with any requirement of the SEC in connection
with the qualification of the Indenture under the TIA, or as necessary
in connection with the registration of the Securities under the
Securities Act; or
(6) to make any change that does not adversely affect the rights of
any Holders (it being understood that any amendment described in
clause (1) above made solely to conform this Indenture to the final
offering memorandum provided to investors in connection with the
initial offering of the Securities will be deemed not to adversely
affect the rights or interests of Holders).
SECTION 9.02 WITH CONSENT OF HOLDERS. With the written consent of the
Holders of at least a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding, the Company and the Trustee may amend this
Indenture or the Securities. However, without the consent of each Securityholder
affected, an amendment to this Indenture or the Securities may not:
(1) reduce the percentage in Principal Amount at Maturity of
Securities whose Holders must consent to an amendment;
52
(2) make any change in the manner or rate of accrual of Original
Issue Discount or cash interest, reduce the rate of cash interest
referred to in paragraph 1 of the Securities, or extend the time for
payment of Original Issue Discount or cash interest on any Security;
(3) reduce the Principal Amount at Maturity, Restated Principal
Amount or accrued Original Issue Discount or cash interest, with
respect to any Security, or extend the Stated Maturity of any
Security;
(4) reduce the Redemption Price, Purchase Price or Change in Control
Purchase Price of any Security;
(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Article 10 of the Indenture, or this Section
9.02, except to increase any percentage set forth therein;
(7) make any change that adversely affects the right to convert any
Security;
(8) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms
thereof and this Indenture;
(9) impair the right to institute suit for the enforcement of any
payment with respect to, or conversion of, the Securities; or
(10) release any Guarantor from any of its obligations under its
Guarantee other than in accordance with the terms of this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND ACTIONS.
Until an amendment, consent, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the amendment, consent, waiver or other action is
not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent as to such Holder's Security or portion of the Security if
the Trustee receives the notice of revocation before the date as of which the
amendment, consent, waiver or action is made
53
effective. After an amendment, consent, waiver or action becomes effective, it
shall bind every Securityholder.
SECTION 9.05 NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
SECTION 9.06 TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.01) shall
be fully protected in relying upon, in addition to the documents required by
Section 14.04, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
SECTION 9.07 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
SPECIAL TAX EVENT CONVERSION
SECTION 10.01 OPTIONAL CONVERSION TO SEMIANNUAL COUPON NOTE UPON TAX
EVENT. From and after (i) the date (the "TAX EVENT DATE") of the occurrence of a
Tax Event and (ii) the date the Company exercises the option provided for in
this Section 10.01, whichever is later (the "OPTION EXERCISE DATE"), at the
option of the Company, interest in lieu of future Original Issue Discount or
cash interest shall accrue at the rate of 3.75% per annum, calculated on a
semiannual bond equivalent basis, on a Restated Principal Amount, per $1,000
original Principal Amount at Maturity (the "RESTATED PRINCIPAL AMOUNT") equal to
the Issue Price plus Original Issue Discount accrued through the Option Exercise
Date and shall be payable semiannually on October 16 and April 16 of each year
(each an "INTEREST PAYMENT DATE") to Holders of record at the close of business
on the October 1 or April 1 (each a "REGULAR RECORD DATE") immediately preceding
such Interest Payment Date. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months and will accrue from the most recent date
on which interest has been paid or, if no interest has been paid, from the
Option Exercise Date. Within 15 days of the occurrence of a Tax Event, the
Company shall deliver a written notice of such Tax Event by facsimile and
first-class mail to the Trustee and within 15 days of its exercise of such
option the Company shall deliver a written notice of the Option Exercise Date by
facsimile and first-class mail to the Trustee and by first class mail to the
Holders of the
54
Securities. From and after the Option Exercise Date, (i) the Company shall be
obligated to pay at Stated Maturity, in lieu of the Principal Amount at Maturity
of a Security, the Restated Principal Amount thereof plus accrued and unpaid
interest on such Security and (ii) "Issue Price and accrued Original Issue
Discount," "Issue Price plus Original Issue Discount" or similar words, as used
herein, shall mean Restated Principal Amount plus accrued and unpaid interest
with respect to any Security. Securities authenticated and delivered after the
Option Exercise Date may, and shall if required by the Trustee, bear a notation
in a form approved by the Trustee as to the conversion of the Securities to
semiannual coupon notes. No other changes to this Indenture shall result as a
result of the events described in this Section 10.01.
ARTICLE 11
CONVERSION
SECTION 11.01 CONVERSION PRIVILEGE. A Holder of a Security may convert
such Security into shares of Common Stock at any time during the periods and
subject to the conditions stated in paragraph 9 of the Securities, subject to
the provisions of this Article 11. The number of shares of Common Stock issuable
upon conversion of a Security per $1,000 of Principal Amount at Maturity thereof
(the "CONVERSION RATE") shall be determined in accordance with the provisions of
paragraph 9 of the Securities.
A Holder may convert a portion of the Principal Amount at Maturity of
a Security if the portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to conversion of all of a Security also
apply to conversion of a portion of a Security.
SECTION 11.02 CONVERSION PROCEDURE. To convert a Security, a Holder
must satisfy the requirements in paragraph 9 in the Securities. The date on
which the Holder satisfies all those requirements is the conversion date (the
"CONVERSION DATE"). As soon as practicable after the Conversion Date but in any
event no later than the seventh Business Day following the Conversion Date, the
Company shall deliver to the Holder, through the Conversion Agent, a certificate
for the number of full shares of Common Stock issuable upon the conversion and
cash in lieu of any fractional share determined pursuant to Section 11.03. The
Company shall determine such full number of shares and the amounts of the
required cash with respect to any fractional share, and shall set forth such
information in an Officer's certificate delivered to the Conversion Agent. The
Conversion Agent shall have no duties under this paragraph unless and until it
has received such certificate.
The Person in whose name the certificate is registered shall be
treated as a stockholder of record on and after the Conversion Date; PROVIDED,
HOWEVER, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the Person
or Persons entitled to receive the shares of Common Stock upon such conversion
as the record holder or holders of such shares of Common Stock on such date, but
such surrender shall be effective to constitute the Person or Persons entitled
to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which
such stock transfer books are open; such conversion shall be at the Conversion
Rate in effect on the date that such Security shall have
55
been surrendered for conversion, as if the stock transfer books of the Company
had not been closed. Upon conversion of a Security, such Person shall no longer
be a Holder of such Security.
Holders may surrender a Security for conversion by means of book-entry
delivery in accordance with paragraph 9 of the Security and the regulations of
the applicable book-entry facility.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article 11. On conversion of a Security, that portion of accrued Original Issue
Discount or cash interest attributable to the period from the Issue Date of the
Security through the Conversion Date, with respect to the converted Security
shall not be cancelled, extinguished or forfeited, but rather shall be deemed to
be paid in full to the Holder thereof through delivery of the Common Stock
(together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Security being converted pursuant to the provisions hereof; and
the fair market value of such shares of Common Stock (together with any such
cash payment in lieu of fractional shares) shall be treated as issued, to the
extent thereof, first in exchange for accrued Original Issue Discount or cash
interest through the Conversion Date, and the balance, if any, of such fair
market value of such Common Stock (and any such cash payment) shall be treated
as issued in exchange for the Issue Price of the Security being converted
pursuant to the provisions hereof. Notwithstanding the foregoing, accrued cash
interest will be payable upon conversion of Securities made concurrently with or
after acceleration of Securities following an Event of Default.
If the Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable upon the conversion shall be based on
the total Principal Amount at Maturity of the Securities converted.
A Security surrendered for conversion based on (a) the Common Stock
price may be surrendered for conversion until the close of business on
▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the Security being called for redemption may be surrendered
for conversion at any time prior to the close of business on the second Business
Day immediately preceding the Redemption Date, even if it is not otherwise
convertible at such time, and (c) upon the occurrence of certain corporate
transactions more fully described in paragraph 9 of the Security may be
surrendered for conversion at any time from and after the date which is 15 days
prior to the anticipated effective date of such transaction until 15 days after
the actual date of such transaction, and if such day is not a Business Day, the
next occurring Business Day following such day.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder, a
new Security in an authorized denomination equal in Principal Amount at Maturity
to the unconverted portion of the Security surrendered.
SECTION 11.03 FRACTIONAL SHARES. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Company will deliver cash for the current market value of the fractional share.
The current market value of a fractional share shall be determined, to the
nearest 1/1,000th of a share, by multiplying the per share Sale
56
Price of the Common Stock, on the last Trading Day prior to the Conversion Date,
by the fractional amount and rounding the product to the nearest whole cent.
SECTION 11.04 TAXES ON CONVERSION. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon the conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name and any income tax
which is imposed on the Holder as a result of the conversion. The Conversion
Agent may refuse to deliver the certificates representing the Common Stock being
issued in a name other than the Holder's name until the Conversion Agent
receives a sum sufficient to pay any tax which will be due because the shares
are to be issued in a name other than the Holder's name. Nothing herein shall
preclude the Company from any tax withholding or directing the withholding of
any tax required by law or regulations.
SECTION 11.05 COMPANY TO PROVIDE STOCK. The Company shall, prior to
issuance of any Securities under this Article 11, and from time to time as may
be necessary, reserve out of its authorized but unissued Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the
Securities.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable and shall be free from preemptive rights
and free of any lien or adverse claim created by the Company.
The Company will endeavor promptly to comply with all federal and
state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or in
the over-the-counter market or such other market on which the Common Stock is
then listed or quoted.
SECTION 11.06 ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. Except as set
forth in Section 11.14, if, after the Issue Date of the Securities, the Company:
(a) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock or other Capital Stock;
(b) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(c) pays a dividend or makes a distribution of its Common Stock in
shares of its Capital Stock (other than Common Stock or rights, warrants or
options for its Capital Stock);
(d) combines its outstanding shares of Common Stock into a smaller
number of shares; or
(e) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital Stock);
57
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares or other units of Capital
Stock of the Company which such Holder would have owned immediately following
such action if such Holder had converted the Security immediately prior to such
action.
The adjustment shall become effective immediately after the record
date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
SECTION 11.07 ADJUSTMENT FOR RIGHTS ISSUE. Except as set forth in
Sections 11.14 and 11.19, if after the Issue Date, the Company distributes any
rights, warrants or options to all holders of its Common Stock entitling them,
for a period expiring within 60 days after the record date for such
distribution, to purchase shares of Common Stock at a price per share less than
the Sale Price of the Common Stock as of the Time of Determination, the
Conversion Rate shall be adjusted in accordance with the formula:
R' = R (O + N)
------------------------
(O + [(N X P)/M)]
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date for
the distribution to which this Section 11.07 is being applied.
N = the number of additional shares of Common Stock offered pursuant to the
distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a distribution to
which Section 11.06(b) applies or (ii) a distribution to which Section 11.08
applies, for which, in each case, (x) the record date shall occur on or before
the record date for the distribution to which this Section 11.07 applies and (y)
the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 11.07 applies, the fair
market value (on the record date for the distribution to which this Section
11.07 applies) of:
(i) the Capital Stock of the Company distributed in respect of each
share of Common Stock in such Section 11.06(b) distribution; and
(ii) the assets of the Company or debt securities or any rights,
warrants or options to purchase securities of the Company
distributed in respect of each share of Common Stock in such
Section 11.08 distribution.
58
The Board of Directors shall determine fair market values for the
purposes of this Section 11.07.
The adjustment shall become effective immediately after the record
date for the determination of shareholders entitled to receive the rights,
warrants or options to which this Section 11.07 applies. If all of the shares of
Common Stock subject to such rights, warrants or options have not been issued
when such rights, warrants or options expire, then the Conversion Rate shall
promptly be readjusted to the Conversion Rate which would then be in effect had
the adjustment upon the issuance of such rights, warrants or options been made
on the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 11.07 if the
application of the formula stated above in this Section 11.07 would result in a
value of R' that is equal to or less than the value of R.
SECTION 11.08 ADJUSTMENT FOR OTHER DISTRIBUTIONS. If, after the Issue
Date of the Securities, the Company distributes to all holders of its Common
Stock any of its assets or evidence of indebtedness or any rights, warrants or
options to purchase securities of the Company (including securities or cash, but
excluding (x) distributions of Capital Stock referred to in Section 11.06 and
distributions of rights, warrants or options referred to in Section 11.07 and
(y) cash dividends or other cash distributions that are paid out of consolidated
current net earnings or earnings retained in the business as shown on the books
of the Company unless such cash dividends or other cash distributions are
Extraordinary Cash Dividends), the Conversion Rate shall be adjusted, in
accordance with the formula:
R' = R X M
-------
M - F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of a distribution to which
Section 11.06(c) applies, for which (i) the record date shall occur on or before
the record date for the distribution to which this Section 11.08 applies and
(ii) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 11.08 applies, the fair
market value (on the record date for the distribution to which this Section
11.08 applies) of any Capital Stock of the Company distributed in respect of
each share of Common Stock in such Section 11.06(c) distribution.
F = the fair market value (on the record date for the distribution to which
this Section 11.08 applies) of the assets, securities, rights, warrants or
options to be distributed in respect of each share of Common Stock in the
distribution to which this Section 11.08 is being applied
59
(including, in the case of cash dividends or other cash distributions giving
rise to an adjustment, all such cash distributed concurrently).
The Board of Directors shall determine fair market values for the
purposes of this Section 11.08.
The adjustment shall become effective immediately after the record
date for the determination of shareholders entitled to receive the distribution
to which this Section 11.08 applies.
For purposes of this Section 11.08, the term "EXTRAORDINARY CASH
DIVIDEND" shall mean any cash dividend or distribution with respect to the
Common Stock the amount of which, together with the aggregate amount of cash
dividends on the Common Stock to be aggregated with such cash dividend in
accordance with the provisions of this paragraph, equals or exceeds the
threshold percentage set forth in item (i) below. For purposes of item (i)
below, the "EX-DIVIDEND MEASUREMENT PERIOD" with respect to a cash dividend on
the Common Stock shall mean the 365 consecutive day period ending on the date
prior to the Ex-Dividend Time with respect to such cash dividend, and the
"RELEVANT CASH DIVIDENDS" with respect to a cash dividend on the Common Stock
shall mean the cash dividends on the Common Stock with Ex-Dividend Times
occurring in the Ex-Dividend Measurement Period.
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all Relevant Cash Dividends
equals or exceeds on a per share basis 5% of the Sale Price of the
Common Stock on the last Trading Day preceding the date of declaration
by the Board of Directors of the cash dividend or distribution with
respect to which this provision is being applied, then such cash
dividend together with all Relevant Cash Dividends, shall be deemed to
be an Extraordinary Cash Dividend and for purposes of applying the
formula set forth above in this Section 11.08, the value of "F" shall
be equal to (y) the aggregate amount of such cash dividend together
with the amount of all Relevant Cash Dividends, minus (z) the
aggregate amount of all Relevant Cash Dividends for which a prior
adjustment in the Conversion Rate was previously made under this
Section 11.08.
In making the determinations required by item (i) above, the amount of
cash dividends paid on a per share basis and the amount of any
Relevant Cash Dividends specified in item (i) above, shall be
appropriately adjusted to reflect the occurrence during such period of
any event described in Section 11.06.
SECTION 11.09 WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment and all adjustments that are made and carried forward shall be taken
in the aggregate in order to determine if the 1% threshold is met.
60
All calculations under this Article 11 shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be.
SECTION 11.10 WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made
for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if
Securityholders are to participate in the transaction on a basis and with notice
that the Board of Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Common Stock participate in the
transaction. Such participation by Securityholders may include participation
upon conversion provided that an adjustment shall be made at such time as the
Securityholders are no longer entitled to participate.
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
To the extent the Securities become convertible pursuant to this
Article 11 into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
No adjustment will be made pursuant to this Article 11 that would
result, through the application of two or more provisions hereof, in the
duplication of any adjustment.
SECTION 11.11 NOTICE OF ADJUSTMENT. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. Upon receipt by it of such notice, and at the written request of the
Company, the Conversion Agent will promptly mail such notice to Securityholders
at the Company's expense. The certificate shall be conclusive evidence that the
adjustment is correct. Neither the Trustee nor any Conversion Agent shall be
under any duty or responsibility with respect to any such certificate except to
exhibit the same to any Holder desiring inspection thereof.
SECTION 11.12 VOLUNTARY INCREASE. The Company from time to time may
increase the Conversion Rate by any amount for any period of time. Whenever the
Conversion Rate is increased, the Company shall mail to Securityholders and file
with the Trustee and the Conversion Agent a notice of the increase. The Company
shall mail the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or
11.08 or 11.14.
SECTION 11.13 NOTICE OF CERTAIN TRANSACTIONS. If:
61
(a) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no
adjustment is to occur pursuant to Section 11.10); or
(b) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.14; or
(c) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
SECTION 11.14 REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS. If the
Company is a party to a transaction subject to Article 5 (other than a sale of
all or substantially all of the assets of the Company in a transaction in which
the holders of Common Stock immediately prior to such transaction do not receive
securities, cash, property or other assets of the Company or any other Person)
or a merger or binding share exchange which reclassifies or changes its
outstanding Common Stock, the Person obligated to deliver securities, cash or
other assets upon conversion of Securities shall enter into a supplemental
indenture. If the issuer of securities deliverable upon conversion of Securities
is an Affiliate of the successor Company, that issuer shall join in the
supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent Person or an
Affiliate of a constituent Person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
non-electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article 11. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07 applies.
If the Company makes a distribution to all holders of its Common Stock
of any of its assets, or debt securities or any rights, warrants or options to
purchase securities of the Company that would otherwise result in an adjustment
in the Conversion Rate pursuant to the provisions of Section 11.08, then, from
and after the record date for determining the holders of Common Stock entitled
to receive the distribution, a Holder of a Security that converts such Security
in accordance with the provisions of this Indenture shall upon such conversion
be entitled to receive, in addition to the shares of Common Stock into which the
Security is convertible, the kind and amount of securities, cash or other assets
comprising the distribution
62
that such Holder would have received if such Holder had converted the Security
immediately prior to the record date for determining the holders of Common Stock
entitled to receive the distribution.
SECTION 11.15 COMPANY DETERMINATION FINAL. Any determination that the
Company or the Board of Directors must make pursuant to Section 11.03, 11.06,
11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive.
SECTION 11.16 TRUSTEE'S ADJUSTMENT DISCLAIMER. The Trustee has no duty
to determine when an adjustment under this Article 11 should be made, how it
should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 11. Each Conversion Agent (other than the Company or an Affiliate of the
Company) shall have the same protection under this Section 11.16 as the Trustee.
SECTION 11.17 SIMULTANEOUS ADJUSTMENTS. In the event that this Article
11 requires adjustments to the Conversion Rate under more than one of Sections
11.06, 11.07 or 11.08, and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 11.06, second, the provisions
of Section 11.08 and, third, the provisions of Section 11.07.
SECTION 11.18 SUCCESSIVE ADJUSTMENTS. After an adjustment to the
Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19 RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON
CONVERSION. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 11 shall be entitled to receive the appropriate number
of common stock or preferred stock purchase rights, as the case may be (the
"RIGHTS"), if any, that all shares of Common Stock are entitled to receive and
the certificates representing the Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of any
shareholder rights agreement adopted by the Company, as the same may be amended
from time to time (in each case, a "RIGHTS AGREEMENT"). Provided that such
Rights Agreement requires that each share of Common Stock issued by the Company
(including those that might be issued upon conversion of Securities) at any time
prior to the distribution of separate certificates representing the Rights be
entitled to receive such Rights, then, notwithstanding anything else to the
contrary in this Article 11, there shall not be any adjustment to the conversion
privilege or Conversion Rate or any other term or provision of the Securities as
a result of the issuance of Rights, the distribution of separate certificates
representing the Rights, the exercise or redemption of such Rights in accordance
with any such Rights Agreement, or the termination or invalidation of such
Rights.
SECTION 11.20. COMPANY'S RIGHT TO ELECT TO PAY CASH OR COMMON STOCK.
In lieu of delivery of Common Stock upon notice of conversion of any Securities
(for all or any
63
portion of the Securities), the Company may elect to pay holders surrendering
Securities an amount in cash per Security (or a portion of a Security) equal to
the Average Sale Price of Common Stock for the five consecutive trading days
immediately following either (a) the date of notice of election to deliver cash
as described below if the Company has not given notice of redemption, or (b) the
conversion date, in the case of conversion following the notice of redemption
specifying that the Company intends to deliver cash upon conversion, in either
case multiplied by the Conversion Rate in effect on that date. The Company will
inform the holders through the Trustee no later than two business days following
the conversion date of its election to deliver shares of Common Stock or to pay
cash in lieu of delivery of Common Stock, unless the Company has already
informed holders of its election in connection with its optional redemption of
the Securities pursuant to Section 3.1 herein. If the Company elects to deliver
all of such payment in Common Stock, the Common Stock will be delivered through
the Conversion Agent no later than the fifth business day following the
Conversion Date. If the Company elects to pay all or a portion of such payment
in cash, the payment, including any delivery of Common Stock, will be made to
holders surrendering Securities no later than the tenth business day following
the applicable conversion date. If an Event of Default (other than a default in
a cash payment upon conversion of the Securities) has occurred and is
continuing, the Company may not pay cash upon conversion of any Security or
portion of a Security (other than cash for fractional shares).
ARTICLE 12
PAYMENT OF INTEREST
SECTION 12.01 INTEREST PAYMENTS. Interest on any Security that is
payable in cash, and is punctually paid or duly provided for, on any applicable
payment date shall be paid to the person in whose name that Security is
registered at the close of business on the Regular Record Date or accrual date,
as the case may be, for such interest at the office or agency of the Company
maintained for such purpose. Each installment of semiannual or contingent
interest on any Security shall be paid in same-day funds by transfer to an
account maintained by the payee located inside the United States, if the Trustee
shall have received proper wire transfer instructions from such payee not later
than the related Regular Record Date or accrual date, as the case may be, or, if
no such instructions have been received, by check drawn on a bank in New York
City mailed to the payee at its address set forth on the Registrar's books. In
the case of a permanent Global Security, semiannual or contingent interest
payable on any applicable payment date will be paid to the Depositary, with
respect to that portion of such permanent Global Security held for its account
by Cede & Co. for the purpose of permitting such party to credit the interest
received by it in respect of such permanent Global Security to the accounts of
the beneficial owners thereof.
SECTION 12.02 DEFAULTED INTEREST. Except as otherwise specified with
respect to the Securities, any interest on any Security that is payable, but is
not punctually paid or duly provided for, within 30 days following any
applicable payment date (herein called "DEFAULTED INTEREST", which term shall
include any accrued and unpaid interest that has accrued on such defaulted
amount in accordance with paragraph 1 of the Securities), shall forthwith cease
to be
64
payable to the registered Holder thereof on the relevant Regular Record Date or
accrual date, as the case may be, by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the persons in whose names the Securities are registered at the
close of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security and the date of the
proposed payment (which shall not be less than 20 days after such
notice is received by the Trustee), and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date (the
"SPECIAL RECORD DATE") for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities at his address as it appears on the list of
Securityholders maintained pursuant to Section 2.05 not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
persons in whose names the Securities are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
SECTION 12.03 INTEREST RIGHTS PRESERVED. Subject to the foregoing
provisions of this Article 12 and Section 2.06, each Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Security shall carry the rights to semiannual interest accrued and
unpaid, and to accrue, which were carried by such other Security.
65
ARTICLE 13
GUARANTEES
SECTION 13.01 GUARANTEES.
The Guarantors jointly and severally, hereby absolutely,
unconditionally and irrevocably guarantee the Securities and obligations of the
Company hereunder and thereunder, and guarantee to each Holder of a Security
authenticated and delivered by the Trustee in accordance with the terms hereof,
and to the Trustee on behalf of such Holder, that: (a) the principal of and cash
interest on the Securities will be paid in full when due, whether at Stated
Maturity, by acceleration, redemption or otherwise (including, without
limitation, the amount that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Law), together with cash
interest and interest on any overdue interest, to the extent lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Securities or of any such other obligations, the same shall be
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at Stated Maturity, by acceleration redemption or otherwise.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a Guarantor.
The Guarantors hereby waive (to the extent permitted by law) the
benefits of diligence, presentment, demand for payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company or any other Person, protest,
notice and all demands whatsoever and covenants that the Guarantee of such
Guarantor shall not be discharged as to any Security except by complete
performance of the obligations contained in such Security, this Indenture and
such Guarantee. The Guarantors acknowledge that the Guarantees are a guarantee
of payment and not of collection.
The Guarantors hereby agree that, in the event of a default in payment
of principal or cash interest on such Security, whether at its Stated Maturity,
by acceleration, redemption, purchase or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Security,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Guarantors to enforce such Guarantor's Guarantee without
first proceeding against the Company or any other Guarantor. The Guarantor
agrees that if, after the occurrence and during the continuance of an Event of
Default, the Trustee or any of the Holders are prevented by applicable law from
exercising their respective rights to accelerate the maturity of the Securities,
to collect interest on the Securities, or to enforce or exercise any other right
or remedy with respect to the Securities, such Guarantor shall pay to the
Trustee for the account of
66
the Holder, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the
Guarantee of each of the Guarantors, to the extent theretofore discharged, shall
be reinstated in full force and effect. The Guarantor further agrees that as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) subject to this Article Thirteen, the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six
hereof for the purposes of the Guarantee of such Guarantor notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any acceleration of
such obligation as provided in Article Six hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of the Guarantee of such Guarantor.
Each Guarantee shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Company for
liquidation, reorganization, should the Company become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities
are, pursuant to applicable law, rescinded or reduced in amount, or must
otherwise be restored or returned by any obligee on the Securities, whether as a
"VOIDABLE PREFERENCE", "FRAUDULENT TRANSFER" or otherwise, all as though such
payment or performance had not been made. In the event that any payment or any
part thereof, is rescinded, reduced, restored or returned, for the purposes of
the amounts due under the Guarantees, the Securities shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned. The form of Guarantee
is attached hereto as Exhibit A-2.
SECTION 13.02 SEVERABILITY.
In case any provision of any Guarantee 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 13.03 FUTURE SUBSIDIARIES.
If the Company or any of its Subsidiaries acquires or forms a
Subsidiary organized under the laws of the United States or any state or
political subdivision thereof or the District of Columbia and such Subsidiary
guarantees any indebtedness or other obligations of the Company other than the
Guarantees of the Securities, the Company will cause any such domestic
Subsidiary to (i) execute and deliver to the Trustee any amendment or supplement
to this Indenture in accordance with the provisions of Article Nine of this
Indenture pursuant to which such Subsidiary shall guarantee all of the
obligations on the Securities, whether for principal,
67
cash interest, and interest accruing after the filing of, or which would have
accrued but for the filing of, a petition by or against the Company under
Bankruptcy Law, whether or not such interest is allowed as a claim after such
filing in any proceeding under such law), if any and other amounts due in
connection therewith (including any fees, expenses and indemnities), on a senior
unsecured basis and (ii) deliver to such Trustee an Opinion of Counsel
reasonably satisfactory to such Trustee to the effect that such amendment or
supplement has been duly executed and delivered by such domestic Subsidiary and
is in compliance with the terms of this Indenture. Upon the execution of any
such amendment or supplement, the obligations of the Guarantors and any such
domestic Subsidiary under their respective Guarantees shall become joint and
several and each reference to the "GUARANTOR" in this Indenture shall, be deemed
to refer to all Guarantors, including such domestic Subsidiary.
SECTION 13.04 PRIORITY OF GUARANTEES.
The Guarantee issued by any Guarantor shall be unsecured senior
obligations of such Guarantor, ranking PARI PASSU with all other existing and
future senior unsecured indebtedness of such Guarantor, if any.
SECTION 13.05 LIMITATION OF GUARANTORS' LIABILITY.
Each Guarantor and by its acceptance hereof each Holder confirms that
it is the intention of all such parties that the guarantee by the Guarantor
pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law or the
provisions of its local law relating to fraudulent transfer or conveyance. To
effectuate the foregoing intention, the Holders and the Guarantors hereby
irrevocably agree that the obligations of such Guarantor under its Guarantee
shall be limited to the maximum amount that will not, after giving effect to all
other contingent and fixed liabilities of such Guarantor result in the
obligations of such Guarantor under its Guarantee constituting such fraudulent
transfer or conveyance.
SECTION 13.06 SUBROGATION. Each Guarantor shall be subrogated to all
rights of Holders against the Company in respect of any amounts paid by any
Guarantor pursuant to the provisions of Section 13.01; PROVIDED, HOWEVER, that,
if an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such
right of subrogation until all amounts then due and payable by the Company under
this Indenture or the Securities shall have been paid in full.
SECTION 13.07 REINSTATEMENT.
The Guarantor hereby agrees (and each Person who becomes a Guarantor
shall agree) that the Guarantee provided for in Section 13.01 shall continue to
be effective or be reinstated, as the case may be, (a) if at any time, payment,
or any part thereof, of any obligations or interest thereon is rescinded or must
otherwise be restored by a Holder to the Company upon the bankruptcy or
insolvency of the Company or any Guarantor and (b) at any time any Guarantor
(and each Person who becomes a Guarantor) guarantees any indebtedness or
obligations of the Company.
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SECTION 13.08 RELEASE OF THE GUARANTOR.
Concurrently with the discharge of the Securities under Section 8.01,
each Guarantor shall be released from all its obligations under its Guarantee
under this Article Thirteen.
So long as no Default exists or with notice or lapse of time or both,
would exist, the Guarantee issued by any Guarantor shall be automatically and
unconditionally released and discharged upon (a) any sale, exchange, transfer to
any Person that is not an Affiliate of the Company of all of the Capital Stock
of such Guarantor owned by the Company, which transaction is otherwise in
compliance with the Indenture or (b) any release or discharge of all guarantees
by such Guarantor of any indebtedness or obligations of the Company other than
the Guarantees of the Securities.
SECTION 13.09 BENEFITS ACKNOWLEDGED.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
its guarantee and waivers pursuant to its Guarantee are knowingly made in
contemplation of such benefits.
ARTICLE 14
MISCELLANEOUS
SECTION 14.01 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 14.02 NOTICES. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
delivery by courier guaranteeing overnight delivery or mailed by first-class
mail, postage prepaid, addressed as follows or transmitted by facsimile
transmission (confirmed by guaranteed overnight courier) to the following
facsimile numbers:
if to the Company:
▇▇▇▇▇ ▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of any notice given pursuant to Article 6 to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
69
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
SECTION 14.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 14.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee if reasonably
requested:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
70
SECTION 14.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include to the extent
required by the Trustee:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 14.06 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 14.07 RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT AND
REGISTRAR. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 14.08 CALCULATIONS. The calculation of the Purchase Price,
Change in Control Purchase Price, Conversion Rate, Market Price, Sale Price of
the Common Stock and each other calculation to be made hereunder shall be the
obligation of the Company. All calculations made by the Company as contemplated
pursuant to this Section 14.08 shall be final and binding on the Company and the
Holders absent manifest error. The Trustee, Paying Agent and Conversion Agent
shall not be obligated to recalculate, recompute or confirm any such
calculations.
SECTION 14.09 LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is any day other than
a Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no Original Issue Discount or interest, if any, shall
accrue for the intervening period.
SECTION 14.10 GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS INDENTURE AND THE SECURITIES.
SECTION 14.11 NO RECOURSE AGAINST OTHERS. A director, officer,
employee, agent, representative, stockholder or equity holder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any
71
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 14.12 SUCCESSORS. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 14.13 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One originally signed copy is enough to
prove this Indenture.
72
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
▇▇▇▇▇ ▇▇▇▇▇ INC.
By:
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
By: ▇▇▇▇▇ ▇▇▇▇▇ INC., a general partner
By:
-----------------------------------
Name:
Title:
By:
DRI I INC., a general partner
By:
-----------------------------------
Name:
Title:
DRI I INC.
By:
---------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ REALTY, INC.
By:
----------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------------
Name:
Title: