EXHIBIT 4.2
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WHOLE FOODS MARKET, INC.
$268,507,000
ZERO COUPON CONVERTIBLE SUBORDINATED DEBENTURES DUE 2018
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INDENTURE
DATED AS OF MARCH 2, 1998
___________________
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
TRUSTEE
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INDENTURE dated as of March 2, 1998, between Whole Foods Market, Inc., a
Texas corporation (hereinafter sometimes called the "Company," as more fully set
forth in Section 1.1), and Chase Bank of Texas, National Association, a national
banking association, as trustee hereunder (hereinafter sometimes called the
"Trustee," as more fully set forth in Section 1.1).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its Zero Coupon Convertible Subordinated Debentures due 2018
(hereinafter sometimes called the "Debentures"), in an aggregate principal
amount not to exceed $268,507,000 ($308,807,000 if the overallotment option is
exercised in full) and, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture;
WHEREAS, the Debentures, the certificate of authentication to be borne by
the Debentures, a form of assignment, a form of option to elect repurchase upon
a Change in Control and a form of conversion notice to be borne by the
Debentures are to be substantially in the forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute these presents a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Debentures have in
all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Debentures
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Debentures by the Holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective Holders from time to time of the
Debentures (except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
The terms defined in this Section 1.1 (except as herein otherwise expressly
provided or unless the context otherwise requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the respective
meanings specified in this Section 1.1. All other terms used in this Indenture
that are defined in the Trust Indenture Act or which are by reference therein
defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings assigned to such
terms in said Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this Indenture.
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The words "herein," "hereof," "hereunder," and words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the
singular.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Debenture Registrar, Paying Agent or Conversion Agent or
any successor thereto.
"Board of Directors" means either the Board of Directors of the Company or
any committee of such Board duly authorized to act for it hereunder.
"Business Day" means any day other than (i) a Saturday or Sunday or (ii) a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed.
"Capitalized Lease Obligation" means indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with generally accepted accounting principles;
the amount of such indebtedness shall be the capitalized amount of such
obligations determined in accordance with such principles.
"Cash" or "cash" means such coin or currency of the United States as at any
time of payment is legal tender for the payment of public and private debts.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Stock" means the common stock, no par value per share, of the
Company.
"Company" means Whole Foods Market, Inc. until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman,
its, Chief Executive Officer, its President, its Chief Financial Officer or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal offices of the Trustee at
which at any particular time its corporate trust business shall be administered,
which offices as of the date of this Indenture are located at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
"Custodian" means Chase Bank of Texas, National Association, as custodian
with respect to the Debentures in global form, or any successor entity thereto.
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"Default" means any event which is, or after notice or passage of time, or
both, would be, an Event of Default.
"Depositary" means, with respect to the Debentures issued or issuable in
whole or in part in global form, the Person designated as Depositary by the
Company pursuant to Section 2.8 with respect to such Debentures (or any
successor thereto).
"Designated Senior Indebtedness" means the Company's Indebtedness
outstanding from time to time under its revolving credit facility and any
particular Senior Indebtedness in which the instrument creating or evidencing
the same or the assumption or guarantee thereof (or related agreements or
documents to which the Company is a party) expressly provides that such Senior
Indebtedness shall be "Designated Senior Indebtedness" for purposes of the
Indenture (provided that such instrument, agreement or other document may place
limitations and conditions on the right of such Senior Indebtedness to exercise
the rights of Designated Senior Indebtedness).
"Event of Default" means any event specified in Section 7.1(a), (b), (c),
(d), (e), (f), or (g).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Final Maturity" or "Final Maturity Date" means March 2, 2018.
"Holder" or "Debentureholder" means a Person in whose name a Debenture is
registered on the Debenture Register.
"Indebtedness" means, with respect to any Person, and without duplication,
(a) the principal of and premium, if any, and interest on, and fees, costs,
enforcement expenses, collateral protection expenses and other reimbursement or
indemnity obligations in respect to all indebtedness or obligations of the
Company to any Person, including but not limited to banks and other lending
institutions, for money borrowed that is evidenced by a note, bond, loan
agreement, or similar instrument or agreement (including purchase money
obligations with original maturities in excess of one year and noncontingent
reimbursement obligations in respect of amounts paid under letters of credit),
(b) all reimbursement obligations and other liabilities (contingent or
otherwise) of such Person with respect to letters of credit, bank guarantees or
bankers' acceptances, (c) all obligations and liabilities (contingent or
otherwise) in respect of Capitalized Lease Obligations on the balance sheet of
such Person, (d) all obligations of such Person (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar agreement or other
similar instrument or agreement or foreign currency hedge, exchange, purchase or
similar instrument or agreement, (e) all direct or indirect guaranties or
similar agreements by such Person in respect of, and obligations or liabilities
(contingent or otherwise) of such Person to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect of indebtedness, obligations
or liabilities of another Person of the kind described in clauses (a) through
(d), (f) any indebtedness or other obligations, excluding any operating leases
the Company is currently (or may become) a party to, described in clauses (a)
through (d) secured by any mortgage, pledge, lien or other encumbrance existing
on property which is owned or held by such Person, regardless of whether the
indebtedness or other obligation secured thereby shall have been assumed by such
Person and (g) any and all deferrals, renewals,
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extensions and refundings of, or amendments, modifications or supplements to,
any indebtedness, obligation or liability of the kind described in clauses (a)
through (f).
"Indenture" means this instrument as originally executed or, if
supplemented or amended as herein provided, as so supplemented or amended.
"Initial Purchasers" means BT Alex. ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Issue Date" of any Debenture means the date on which the Debenture was
originally issued or deemed issued as set forth on the face of the Debenture.
"Issue Price" of any Debenture means, in connection with the original
issuance of such Debenture, the initial issue price at which the Debenture is
issued as set forth on the face of the Debenture.
"Liquidated Damages" shall have the meaning specified in the Registration
Rights Agreement.
"Officer" means the Chairman of the Board, the President, the Chief
Financial Officer, the Controller, the Secretary, any Assistant Secretary or any
Vice President of the Company.
"Officer's Certificate" means a certificate signed by two Officers, one of
whom must be the Chairman of the Board, the President, the Chief Financial
Officer or a Vice President of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount" of any Debenture means the difference between the
Issue Price and the Principal Amount of the Debenture as set forth on the face
of the Debenture. For purposes of this Indenture and the Debentures, accrual of
Original Issue Discount shall be calculated on the basis of a 360 day year of
twelve 30 day months.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, trust, association, joint stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and Trading through
Automated Linkages Market operated by the National Association of Securities
Dealers, Inc. or any successor thereto.
"Principal" "Principal Amount" or "principal" of a debt security, including
the Debentures, means the principal of the security plus, when appropriate, the
premium, if any, on the security.
"QIB" shall mean a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
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"Redemption Date," when used with respect to any Debenture to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Debenture to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated as of March 2, 1998, between the Company and the Initial
Purchasers.
"Regulation D" means Regulation D promulgated under the Securities Act (or
any successor provision), as it may be amended from time to time.
"Representative" means the indenture trustee or other trustee, agent or
representative for the holders of any Senior Indebtedness.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Senior Indebtedness" means the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, Indebtedness of the Company, whether outstanding
on the date of this Indenture or thereafter created, incurred, assumed,
guaranteed or in effect guaranteed by the Company (including all deferrals,
renewals, extensions or refundings of, or amendments, modifications or
supplements to, the foregoing), unless in the case of any particular
Indebtedness the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness shall not be senior
in right of payment to the Debentures or expressly provides that such
Indebtedness is "pari passu" with or "junior" to the Debentures.
Notwithstanding the foregoing, the term Senior Indebtedness shall not include
any Indebtedness of the Company to any Subsidiary of the Company.
"Subsidiary" means with respect to any Person, (i) any corporation, limited
liability company, association or other business entity of which more than 50%
of the total voting power of shares of capital stock or other ownership
interests entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by such person or one or more
Subsidiaries of such person (or a combination thereof) and (ii) any partnership
(a) the sole general partner or managing general partner of which is such person
or a Subsidiary of such person or (b) the only general partners of which are
such person or one or more Subsidiaries of such Person (or any combination
thereof).
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C. (SS) 77aaa-77666), as amended by the Trust Indenture Reform Act of 1990,
and as in effect on the date of this Indenture, except as provided in Sections
11.3 and 15.12 of this Indenture, and except
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to the extent any amendment to the Trust Indenture Act expressly provides for
application of the Trust Indenture Act as in effect on another date.
"Trading Day" or "trading day" means, with respect to any security, each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on the exchange or market in which such security is
traded.
"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture, and thereafter
means the successor.
"Trust Officer" means any officer or corporate trust officer or assistant
corporate trust officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"U.S. Government Obligations" means direct noncallable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States is pledged.
"Vice President" when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 1.2. Other Definitions.
TERM DEFINED IN SECTION
"Change in Control" Section 3.9
"Change in Control Purchase Date" Section 3.9
"Change in Control Purchase Notice" Section 3.9
"Change in Control Purchase Price" Section 3.9
"Closing Price" Section 15.6
"Conversion Agent" Section 2.5
"Conversion Rate" Section 15.1
"Current Market Price" Section 15.6
"Debenture Registrar" Section 2.8
"Distributed Securities" Section 15.6
"Expiration Time" Section 15.6
"Global Debenture" Section 2.8(b)
"Investment Letter" Section 2.8(b)
"Legal Holiday" Section 16.6
"Paying Agent" Section 2.5
"Payment Blockage Notice" Section 4.2
"Purchase Date" Section 3.8
"Purchase Note" Section 3.8
"Purchase Price Section 3.8
"Purchased Shares" Section 15.6
"Record Date" Section 15.6
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"Regulation D Global Debenture" Section 2.8(b)
"Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇" Section 2.8(b)
Section 1.3. Rules of Construction.
Unless the context otherwise requires:
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(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect on
the date hereof, and any reference in this Indenture to "generally accepted
accounting principles" refers to generally accepted accounting principles in
effect on the date hereof;
(3) words in the singular include the plural, and words in the plural
include the singular;
(4) provisions apply to successive events and transactions; and
(5) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
THE DEBENTURES
Section 2.1. Designation, Amount and Issue of Debentures.
The Debentures shall be designated as "Zero Coupon Convertible
Subordinated Debentures due 2018." Debentures not to exceed the aggregate
principal amount of $268,507,000 (or $308,807,000 if the over-allotment option
set forth in Section 2(b) of the Purchase Agreement, dated February 25, 1998, by
and between the Company and the Initial Purchasers is exercised in full, the
"Over-Allotment Option") upon the execution of this Indenture, or (except
pursuant to Sections 2.8, 2.9, 3.9 and 15.2 hereof) from time to time
thereafter, may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its (a)
Chairman of the Board, President or any Vice President (whether or not
designated by a number or numbers or word or words added before or after the
title "Vice President") and (b) Treasurer or Assistant Treasurer or its
Secretary or Assistant Secretary, without any further action by the Company
hereunder.
Section 2.2. Form of Debentures.
The Debentures and the Trustee's certificate of authentication to be borne
by such Debentures shall be substantially in the form set forth in Exhibit A,
which is incorporated in and part of this Indenture.
Any of the Debentures may have such letters, numbers or other marks of
identification
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and such notations, legends and endorsements as the Officers executing the same
may approve (execution thereof to be conclusive evidence of such approval) and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange or automated
quotation system on which the Debentures may be listed, or to conform to usage.
Any Debenture in global form shall represent such of the outstanding
Debentures as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Debentures from time to time
endorsed thereon and that the aggregate amount of outstanding Debentures
represented thereby may from time to time be increased or reduced to reflect
transfers or exchanges permitted hereby. Any endorsement of a Debenture in
global form to reflect the amount of any increase or decrease in the amount of
outstanding Debentures represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in such manner and upon instructions
given by the Holder of such Debentures in accordance with this Indenture.
Payment of Principal, Issue Price, accrued Original Issue Discount, accrued
Liquidated Damages, if any, Redemption Price, Purchase Price, and Change in
Control Purchase Price on any Debenture in global form shall be made to the
Holder of such Debenture.
The terms and provisions contained in the form of Debenture attached as
Exhibit A hereto shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
Neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Debenture, check, advice of
payment or redemption notice, and any such document may contain a statement to
the effect that CUSIP numbers have been assigned by an independent service for
convenience of reference and that neither the Company nor the Trustee shall be
liable for any inaccuracy in such numbers.
Section 2.3. Date and Denomination of Debentures.
The Debentures shall be issuable in registered form in denominations of
$1,000 principal amount at the Final Maturity Date. Every Debenture shall be
dated March 2, 1998.
Section 2.4. Execution of Debentures.
The Debentures shall be signed in the name and on behalf of the Company by
the manual or facsimile signage of its Chairman of the Board, the Chief
Executive Officer, President, the Chief Financial Officer, or any Vice President
(whether or not designated by a number or numbers or word or words added before
or after the title "Vice President") and attested by the manual or facsimile
signature of its Secretary or any of its Assistant Secretaries (which may be
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise).
Only such Debentures as shall bear thereon a certificate of authentication
substantially in the form set forth on the form of Debenture attached as Exhibit
A hereto, manually executed by the Trustee (or an authenticating agent appointed
by the Trustee as provided by Section 16.11), shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate
by the Trustee (or such an authenticating agent) upon any Debenture executed by
the Company shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and delivered hereunder and that the Holder is entitled
to the benefits of this Indenture.
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In case any Officer who shall have signed any of the Debentures shall cease
to be such Officer before the Debentures so signed shall have been authenticated
and delivered by the Trustee, or disposed of by the Company, such Debentures
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debentures had not ceased to be such Officer and any
Debenture may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debenture, shall be the proper Officers,
although at the date of the execution of this Indenture any such Person was not
such an Officer.
The Trustee shall authenticate and deliver Debentures for original issue in
an aggregate Principal Amount of up to $268,507,000 upon a Company Order without
any further action by the Company; provided, however, that if the Company sells
any Debentures pursuant to the Over-Allotment Option, then the Trustee shall
also authenticate and deliver additional Debentures for original issue in an
aggregate Principal Amount of up to $40,300,000 or such lesser amount of
Debentures sold pursuant to the Over-Allotment Option upon a Company Order
without any further action by the Company. The aggregate Principal Amount of
Debentures outstanding at any time may not exceed the amount set forth in the
foregoing sentence, except as provided in Section 2.9 hereof.
Section 2.5. Debenture Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Debentures may be
presented for registration of transfer or for exchange (the "Debenture
Registrar"), an office or agency where Debentures may be presented for payment
(the "Paying Agent"), an office or agency where Debentures may be presented for
conversion (the "Conversion Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Debentures and this Indenture
may be served. The Debenture Registrar shall keep a register of the Debentures
and of their transfer and exchange.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture. The agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall notify the Trustee
of the name and address of any Agent not a party to this Indenture. If the
Company fails to maintain a Debenture Registrar, Paying Agent, Conversion Agent
or agent for service of notices and demands, or fails to give the foregoing
notice, the Trustee shall act as such. Subject to the provisions of this
Indenture, the Company or any Affiliate of the Company may act as Paying Agent,
Debenture Registrar or Conversion Agent. The Company may appoint one or more
co-Debenture Registrars, acceptable to the Trustee, in accordance with Section
5.3.
The Company initially appoints the Trustee as Debenture Registrar, Paying
Agent, Conversion Agent and agent for service of notices and demands in
connection with the Debentures.
Section 2.6. Paying Agent to Hold Money in Trust.
Except as otherwise provided herein, prior to or on each due date of
payments in respect of any Security, the Company shall deposit with the Paying
Agent a sum of money or securities sufficient to make such payments when such
payments are 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 Holders or the Trustee all money and securities 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
securities so held in trust. If the Company or an Affiliate of the Company
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acts as Paying Agent, it shall segregate the money and securities 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 securities held by it to the Trustee
and to account for any funds and securities disbursed by it. Upon doing so, the
Paying Agent shall have no further liability for the money or securities.
Section 2.7. Debentureholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Debenture Registrar, the Company shall cause
to be furnished to the Trustee at least semiannually on April 1 and October 1 a
listing of Holders 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 Holders, and the Company shall otherwise comply with TIA
Section 312(a).
Section 2.8. Exchange and Registration of Transfer of Debentures;
Restrictions on Transfer; Depositary.
(a) The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 5.3 being herein sometimes
collectively referred to as the "Debenture Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Debentures and of transfers of Debentures. The Debenture
Register shall be in written form or in any form capable of being converted into
written form within a reasonably prompt period of time.
Upon surrender for registration of transfer of any Debenture to
the Debenture Registrar or any co-Debenture Registrar, and satisfaction of the
requirements for such transfer set forth in this Section 2.8, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Debentures of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.
Debentures may be exchanged for other Debentures of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Debentures to be exchanged at any such office or agency
maintained by the Company pursuant to Section 5.3. Whenever any Debentures are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Debentures which the Debentureholder making the
exchange is entitled to receive bearing registration numbers not
contemporaneously outstanding.
All Debentures issued upon any registration of transfer or
exchange of Debentures shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Debentures surrendered upon such registration of transfer or exchange.
All Debentures presented or surrendered for registration of
transfer or for exchange, redemption, repurchase or conversion shall (if so
required by the Company or the Debenture Registrar) be duly endorsed, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee, and the Debentures shall be duly
executed by the Debentureholder thereof or his attorney duly authorized in
writing.
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No service charge shall be made for any registration of transfer
or exchange of Debentures, but the Company may require payment of a sum
sufficient to cover any tax, assessment or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Debentures.
Neither the Company nor the Trustee nor any Debenture Registrar
nor any co-Debenture Registrar shall be required to exchange or register a
transfer of (a) any Debentures for a period of 15 days next preceding any
selection of Debentures to be redeemed or (b) any Debentures or portions thereof
called for redemption pursuant to Article III or (c) any Debentures or portions
thereof surrendered for conversion pursuant to Article XV or (d) any Securities
or portion thereof surrendered for purchase or redemption (and not withdrawn)
pursuant to Sections 3.08 or 3.09, respectively.
(b) So long as the Debentures are eligible for book-entry
settlement with the Depositary, unless otherwise required by law, all Debentures
to be traded (i) on the PORTAL Market shall be represented by a Debenture in
global form (the "Rule 144A Global Debenture") or (ii) to an Institutional
Accredited Investor that, prior to such transfer, is required to furnish to the
Trustee a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the Debentures ("Investment
Letter"), shall be represented by a Debenture in global form (the "Regulation D
Global Debenture") (the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Regulation D Global
Debenture are collectively referred to in this Indenture as the "Global
Debenture"), the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Regulation D Global
Debenture being registered in the name of the Depositary or the nominee of the
Depositary. The transfer and exchange of beneficial interests in the Global
Debenture, which does not involve the issuance of a Debenture in certificated
form, shall be effected through the Depositary, in accordance with this
Indenture (including restrictions on transfer set forth herein) and the
procedures of the Depositary therefor.
At any time at the request of the beneficial Holder of an
interest in the Global Debenture to obtain a Debenture in certificated form,
such beneficial Holder shall be entitled to obtain a Debenture in certificated
form upon written request to the Trustee and the Custodian in accordance with
the standing instructions and procedures existing between the Custodian and
Depositary for the issuance thereof. Upon receipt of any such request, the
Trustee, or the Custodian at the discretion of the Trustee, will cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Custodian, the aggregate principal amount of the Rule ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or the Regulation D Global Debenture, as appropriate, to be
reduced by the principal amount of the Debenture in certified form issued upon
such request to such beneficial Holder and, following such reduction, the
Company will execute and the Trustee will authenticate and deliver to such
beneficial Holder (or its nominee) a Debenture or Debentures in certificated
form in the appropriate aggregate principal amount in the name of such
beneficial Holder (or its nominee) and bearing such restrictive legends as may
be required by this Indenture.
Any transfer of a beneficial interest in the Global Debenture
which cannot be effected through book-entry settlement must be effected by the
delivery to the transferee (or its nominee) of a Debenture or Debentures in
certificated form registered in the name of the transferee (or its nominee) on
the books maintained by the Debenture Registrar in accordance with the transfer
restrictions set forth herein. With respect to any such transfer, the Trustee,
or the Custodian at the direction of the Trustee, will cause, in accordance with
the standing instructions and procedures existing between the Depositary and the
Custodian, the aggregate principal amount of the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or
the Regulation D Global Debenture, as appropriate, to be reduced by the
principal amount of the respective beneficial interest in the
12
Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or the Regulation D Global Debenture, respectively,
being transferred and, following such reduction, the Company will execute and
the Trustee will authenticate and deliver to the transferee (or such
transferee's nominee, as the case may be), a Debenture or Debentures in
certificated form in the appropriate aggregate principal amount in the name of
such transferee (or its nominee) bearing such restrictive legends as may be
registered by this Indenture.
(c) So long as the Debentures are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
Debenture in certificated form to a QIB in accordance with Rule 144A or an
Institutional Accredited Investor that is required to deliver a Investment
Letter, and upon receipt of the Debenture or Debentures in certificated form
being so transferred, together with a certification from the transferor that the
transferee is a QIB or an Institutional Accredited Investor (and, in the case of
an Institutional Accredited Investor, that such transferee has delivered an
Investment Letter) the Trustee shall make, or direct the Custodian to make, an
endorsement on the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or the Regulation D Global
Debenture, as appropriate, to reflect an increase in the aggregate principal
amount of the Debentures represented by the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or the
Regulation D Global Debenture, and the Trustee shall cancel such Debenture or
Debentures in certificated form and cause, or direct the Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Custodian, the aggregate principal amount of Debentures
represented by the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or the Regulation D Global
Debenture, as appropriate, to be increased accordingly provided that no
Debenture in certificated form, or portion thereof, in respect of which the
Company or an Affiliate of the Company held any beneficial interest shall be
included in the Global Debenture until such Debenture in certificated form is
freely tradable in accordance with Rule 144(k) provided further that the Trustee
shall issue Debentures in certificated form upon any transfer of a beneficial
interest in the Global Debenture to the Company or an Affiliate of the Company.
Any Global Debenture may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Custodian, the Depositary
or by the National Association of Securities Dealers, Inc. in order for the
Debentures to be tradable on the PORTAL Market or as may be required for the
Debentures to be tradable on any other market developed for trading of
securities pursuant to Rule 144A under the Securities Act or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
the Debentures may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Debentures are subject.
(d) Every Debenture that bears or is required under this Section
2.8(d) to bear the legend set forth in this Section 2.8(d) (together with any
Common Stock issued upon conversion of the Debentures and required to bear the
legend set forth in Section 2.8(e), collectively, the "Restricted Debentures")
shall be subject to the restrictions on transfer set forth in this Section
2.8(d) (including those set forth in the legend set forth below) unless such
restrictions on transfer shall be waived by written consent of the Company (with
written notice to the Trustee), and the Holder of each such Restricted
Debenture, by such Debentureholder's acceptance thereof, agrees to be bound by
all such restrictions on transfer. As used in Section 2.8(d) and 2.8(e), the
term "transfer" encompasses any sale, pledge, transfer or other disposition
whatsoever of any Restricted Debenture.
13
Until the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision),
any certificate evidencing such Debenture (and all securities issued in exchange
therefor or substitution thereof, other than Common Stock, if any, issued upon
conversion therefor, which shall bear the legend set forth in Section 2.8(e), if
applicable) shall bear a legend in substantially the following form, unless such
Debenture has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and which continues to be effective
at the time of such transfer), or unless otherwise agreed by the Company in
writing, with written notice thereof to the Trustee:
THE DEBENTURE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT IT WILL NOT PRIOR TO
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION) (THE "RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THE
DEBENTURE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH
DEBENTURES EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
DEBENTURE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE OR A SUCCESSOR TRUSTEE, AS APPLICABLE), (D) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF
SUCH TRANSFER); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
DEBENTURE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE DEBENTURE EVIDENCED
HEREBY BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS DEBENTURE TO CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS
PURSUANT TO CLAUSE (C) OR (D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLE REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
14
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
UPON ANY TRANSFER OF THE DEBENTURE EVIDENCED HEREBY UPON THE RESTRICTION
TERMINATION DATE.
Any Debenture (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have expired in
accordance with their terms or as to which the conditions for removal of the
foregoing legend set forth therein have been satisfied may, upon surrender of
such Debenture for exchange to the Debenture Registrar in accordance with the
provisions of this Section 2.8, be exchanged for a new Debenture or Debentures,
of like tenor and aggregate principal amount, which shall not bear the
restrictive legend required by this Section 2.8(d).
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in the second paragraph of Section 2.8(b) and in
this Section 2.8(d), a Global Debenture may not be transferred as a whole or in
part except by the Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
The Depositary shall be a clearing agency registered under the
Exchange Act. The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Debenture. Initially, the Rule
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Regulation D Global Debenture shall be issued to
the Depositary, registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Custodian for Cede & Co.
The Trustee is hereby authorized and requested to execute and
deliver a Letter of Representation to the Depositary and, in connection with any
successor nominee for the Depositary or any successor Depositary, enter into
comparable arrangements, and shall have the same rights with respect to its
actions thereunder as it has with respect to its action under this Indenture.
If at any time the Depositary for the Global Debenture notifies
the Company that it is unwilling or unable to continue as Depositary for the
Global Debenture, the Company may appoint a successor Depositary with respect to
such Global Debenture. If a successor Depositary is not appointed by the Company
within 90 days after the Company receives such notice, the Company will execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of Debentures, will authenticate and deliver, Debentures in
certificated form, in an aggregate principal amount equal to the principal
amount of the Global Debenture, in exchange for the Global Debenture.
Debentures in certificated form issued in exchange for all or a
part of a Global Debenture pursuant to this Section 2.8 shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instruction from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. Upon execution and authentication, the Trustee
shall deliver such Debentures in certificated form to the Persons in whose names
such Debentures in certificated form are so registered.
At such time as all interests in a Global Debenture have been
redeemed, repurchased, converted, canceled, exchanged for Debentures in
certificated form, or transferred
15
to a transferee who receives Debentures in certificated form, such Global
Debenture shall, upon receipt thereof, be canceled by the Trustee in accordance
with standing procedures and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in a
Global Debenture is exchanged for Debentures in certificated form, redeemed,
converted, repurchased or canceled, or transferred to a transferee who receives
Debentures in certificated form therefor or any Debenture in certificated form
is exchanged or transferred for part of a Global Debenture, the principal amount
of such Global Debenture shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately
reduced or increased, as the case may be, and an endorsement shall be made on
such Global Debenture, by the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction or increase. In the event of any transfer of
any beneficial interest between the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the
Regulation D Global Debenture in accordance with the standing procedures and
instruction between the Depositary and the Custodian and the transfer
restrictions set forth herein, the aggregate principal amount of each of the
Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Regulation D Global Debenture shall be
appropriately increased or decreased, as the case may be, and an endorsement
shall be made on each of the Rule ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Regulation D
Global Debenture by the Trustee or the Custodian, at the direction of the
Trustee, to reflect such reduction or increase.
(e) Until the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision), any stock certificate representing Common Stock issued upon
conversion of a Security shall bear a legend in substantially the following
form, unless such Common Stock has been sold pursuant to a registration
statement that has been declared effective under the Securities Act (and which
continues to be effective at the time of such transfer) or such Common Stock has
been issued upon conversion of Securities that have been transferred pursuant to
a registration statement that has been declared effective under the Securities
Act, or unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent for the Common Stock:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT", OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED
HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION)
(THE "RESTRICTION TERMINATION DATE"); (1) IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY, OR ANY
SUBSIDIARY THEREOF, (B) TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO
SECURITIES TRANSFER CORP., AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS IN TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRANSFER AGENT (OR A
SUCCESSOR TRANSFER AGENT, AS APPLICABLE)), (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(E)
16
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); (2) PRIOR TO SUCH TRANSFER BEFORE THE RESTRICTION TERMINATION DATE
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(E) ABOVE), IT WILL FURNISH
SECURITIES TRANSFER CORP., AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO EACH PERSON TO
WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 1(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
COMMON STOCK EVIDENCED HERE PURSUANT TO CLAUSE 1(E) ABOVE OR UPON THE
RESTRICTION TERMINATION DATE.
Any such Common Stock as to which such restrictions on transfer
shall have expired in accordance with their terms or as to which the conditions
for removal of the foregoing legend set forth therein have been satisfied may,
upon surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the restrictive legend required by
this Section 2.8(e).
(f) Any Debenture or Common Stock issued upon the conversion or
exchange of a Debenture that, prior to the expiration of the holding period
applicable to sales thereof under Rule l44(k) under the Securities Act (or any
successor provision), is purchased or owned by the Company or any Affiliate
thereof may not be resold by the Company or such Affiliate unless registered
under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction which results
in such Securities or Common Stock, as the case may be, no longer being
"restricted securities" (as defined under Rule 144).
Section 2.9. Mutilated, Destroyed, Lost or Stolen Debentures.
In case any Debenture shall become mutilated or be destroyed, lost or
stolen, the Company in its discretion may execute and upon its written request
the Trustee or an authenticating agent appointed by the Trustee shall
authenticate and deliver, a new Debenture, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debenture, or in lieu of and in substitution for the Debenture so destroyed,
lost or stolen. In every case the applicant for a substituted Debenture shall
furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by each of
them to save each of them harmless for any loss, liability, cost or expense
caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating
17
agent evidence to their satisfaction of the destruction, loss or theft of such
Debenture and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such
substituted Debenture and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Debenture, 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 connected therewith. In case any Debenture which has matured or is
about to mature or has been called for redemption or is about to be converted
into Common Stock shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Debenture, pay or authorize the
payment of or convert or authorize the conversion of the same (without surrender
thereof except in the case of a mutilated Debenture), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such substitution, and,
in case of destruction, loss or theft, evidence satisfactory to the Company, the
Trustee and, if applicable, any Paying Agent or Conversion Agent of the
destruction, loss or theft of such Debenture and of the ownership thereof.
Every substitute Debenture issued pursuant to the provisions of this
Section 2.9 by virtue of the fact that any Debenture is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debenture shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all
the limitations set forth in) this Indenture equally and proportionally with any
and all other Debentures duly issued hereunder. To the extent permitted by law,
all Debentures shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment or
conversion of mutilated, destroyed, lost or stolen Debentures and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
or conversion of negotiable instruments or other securities without their
surrender.
Section 2.10. Treasury Debentures.
In determining whether the Holders of the required principal amount of
Debentures have concurred in any notice, direction, waiver or consent,
Debentures owned by the Company or any other obligor on the Debentures or by any
Affiliate of the Company or of such other obligor on the Debentures shall be
disregarded, except that, for purposes of determining whether the Trustee shall
be protected in relying on any such notice, direction, waiver or consent, only
Debentures which the Trustee knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Debentures and that the pledgee is
not the Company or any other obligor on the Debentures or any Affiliate of the
Company or of such other obligor.
Section 2.11. Temporary Debentures.
Until definitive Debentures are ready for delivery, the Company may prepare
and execute, and, upon the order of the Company, the Trustee shall authenticate
and deliver temporary Debentures. Temporary Debentures shall be substantially
in the form of definitive Debentures but may have variation that the Company
with the consent of the Trustee considers appropriate for temporary Debentures.
Without unreasonable delay, the Company shall prepare
18
and the Trustee shall authenticate and deliver definitive Debentures in exchange
for temporary Debentures.
Section 2.12. Cancellation.
All Debentures surrendered for the purpose of payment, redemption,
repurchase, conversion, exchange or registration of transfer, shall, if
surrendered to the Company or any paying agent or any Debenture Registrar or any
conversion agent, be surrendered to the Trustee and promptly canceled by it, or,
if surrendered to the Trustee, shall be promptly canceled by it, and no
Debentures shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture provided that any Debenture or portion
thereof surrendered for repurchase shall only be canceled at such time as such
Debenture or portion thereof has been repurchased pursuant to Article III
hereof. The Trustee shall destroy canceled Debentures (unless the Company
directs it to do otherwise) and, after such destruction, shall, if requested by
the Company, deliver a certificate of such destruction to the Company. If the
Company shall acquire any of the Debentures, such acquisitions shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Debentures unless and until the same are delivered to the Trustee for
cancellation.
Section 2.13. Persons Deemed Owners.
Prior to due presentment of a Debenture 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 Debenture is registered as the owner of such Security
for the purpose of receiving payment of Principal, Issue Price, accrued Original
Issue Discount, accrued Liquidated Damages, if any, Redemption Price, Purchase
Price, Change in Control Purchase Price in respect thereof, for the purpose of
conversion and for all other purposes whatsoever, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
19
ARTICLE III
REDEMPTION OF DEBENTURES
Section 3.1. Right to Redeem; Notice to Trustee.
The Company, at its option, may redeem the Debentures in accordance with
the provisions of paragraphs 5 and 7 of the Debentures. If the Company elects
to redeem Debentures pursuant to paragraph 5 of the Debentures, it shall notify
the Trustee in writing of the Redemption Date, the Principal of Debentures to be
redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 30 days but not more than 60 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee). If fewer
than all the Debentures are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the Trustee.
Section 3.2. Selection of Debentures to Be Redeemed.
If fewer than all of the Debentures are to be redeemed, the Trustee shall,
at least 30 days but not more than 60 days prior to the Redemption Date, select
the Debentures to be redeemed by lot or, in the Trustee's discretion, on a pro
rata basis; provided, however, that such method is not prohibited by any stock
exchange or automated quotations system on which the Debentures are then listed
or traded, and if both of such methods are so prohibited, the Trustee shall
select the Debentures to be redeemed in a manner that (i) the Trustee considers
fair and appropriate and (ii) is not so prohibited. The Trustee shall make the
selection from the Debentures outstanding and not previously called for
redemption. The Trustee shall select for redemption Debentures and portions of
Debentures that have Principal Amounts at Final Maturity of $1,000 or in
integral multiples of $1,000. Provisions of this Indenture that apply to
Debentures called for redemption also apply to portions of Debentures called for
redemption. The Trustee shall notify the Company promptly of the Debentures or
portions of Debentures to be redeemed.
If any Debenture selected for partial redemption is thereafter surrendered
for conversion in part before termination of the conversion right with respect
to the portion of the Debenture so selected, the converted portion of such
Debenture shall be deemed (so far as may be), solely for purposes of determining
the aggregate Principal Amount of Debentures to be redeemed by the Company, to
be the portion selected for redemption. Debentures which have been converted
during a selection of Debentures to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection. Nothing in this Section 3.2
shall affect the right of any Holder to convert any Debenture pursuant to
Article XV before the termination of the conversion right with respect thereto.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first-class
mail to the Trustee and to each Holder of Debentures to be redeemed at such
Holder's address as it appears on the Debenture register.
The notice shall identify the Debentures to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
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(4) the name and address of the Paying Agent and the Conversion Agent;
(5) that Debentures called for redemption must be presented and
surrendered to the Paying Agent to collect the Redemption Price;
(6) that the Debentures called for redemption may be converted at any time
before the close of business on the Redemption Date;
(7) that Holders who wish to convert Debentures must satisfy the
requirements in paragraph 9 of the Debentures;
(8) that, unless the Company defaults in making the redemption payment,
the only remaining right of the Holder shall be to receive payment of the
Redemption Price upon presentation and surrender to the Paying Agent of the
Debentures;
(9) if fewer than all the outstanding Debentures are to be redeemed, the
certificate number and Principal Amounts of the particular Debentures to be
redeemed;
(10) that Original Issue Discount on Debentures called for redemption will
cease to accrue on and after the Redemption Date; and
(10) the CUSIP number or numbers for the Debentures called for redemption.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed, Debentures called for redemption
become due and payable on the Redemption Date and at the Redemption Price stated
in the notice, except for Debentures that are converted in accordance with the
provisions of Article XV. Upon presentation and surrender to the Paying Agent,
Debentures called for redemption shall be paid at the Redemption Price.
Section 3.5. Deposit of Redemption Price.
On or before 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 an Affiliate
of the Company is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Debentures to be redeemed on that
date, other than Debentures or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall promptly return to the Company any
money not required for that purpose because of the conversion of Debentures
pursuant to Article XV or otherwise. If such money is instead held by the
Company or an Affiliate of the Company in trust and is not required for such
purpose because of the conversion of Debentures pursuant to Article XV or
otherwise, it shall be discharged from the trust.
Section 3.6. Debentures Redeemed in Part.
Upon presentation and surrender of a Debenture that is redeemed in part,
the Company shall execute and the Trustee shall authenticate for and deliver to
the Holder a new Debenture equal in principal amount to the unredeemed portion
of the Debenture surrendered.
Section 3.7. Conversion Arrangement on Call for Redemption.
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In connection with any redemption of Debentures, the Company may arrange
for the purchase and conversion of any Debentures by an agreement with one or
more investment bankers or other purchasers to purchase such Debentures by
paying to the Trustee in trust for the Holders, on or before the date fixed for
redemption, an amount not less than the applicable Redemption Price of such
Debentures. Notwithstanding anything to the contrary contained in this Article
III, the obligation of the Company to pay the Redemption Price of such
Debentures 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 (a
copy of which shall be filed with the Trustee prior to the date fixed for
redemption), any Debentures 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 surrendered
by such purchasers for conversions, all as of immediately prior to the close of
business on the date fixed for redemption (and the right to convert any such
Debentures shall be extended through such time), subject to payment of the above
amount as aforesaid. At the written direction of the Company, the Trustee shall
hold and dispose of any such amount paid to it in the same manner as it would
monies deposited with it by the Company for the redemption of Debentures.
Without the Trustee's prior written consent, no arrangement between the Company
and such purchasers for the purchase and conversion of any Debentures 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 and defend the Trustee from, and hold it harmless against,
any claim, action, damage, penalty, judgment, loss, liability or expense arising
out of or in connection with any such arrangement for the purchase and
conversion of any Debentures between the Company and such purchasers to which
the Trustee has not consented in writing, including the costs and expenses,
including reasonable legal fees, 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 3.8. Purchase of Debentures at Option of the Holder.
(a) General. Debentures shall be purchased by the Company pursuant
to paragraph 6 of the Debentures as of March 2, 2003, March 2, 2008 and March 2,
2013 (each, a "Purchase Date"), at the purchase price specified therein (each, a
"Purchase Price") 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 numbers of the Debentures which the Holder will
deliver to be purchased;
(B) the portion of the Principal Amount at Final Maturity of the
Debentures which the Holder will deliver to be purchased, which portion must be
$1,000 in Principal Amount or a multiple thereof;
(C) that such Debentures shall be purchased as of the Purchase Date
pursuant to the terms and conditions specified in paragraph 6 of the Debentures
and in this Indenture; and
(D) if the Company elects, pursuant to a Company Notice, to pay the
Purchase Price to be paid as of such Purchase Date, in whole or in part, in
Common Stock but such portion of the Purchase Price shall ultimately be payable
to such Holder in Cash because
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any of the conditions to the payment of the Purchase Price in Common Stock are
not satisfied prior to or on the Purchase Date, as set forth in Section 3.8(d),
whether such Holder elects (x) to withdraw such Purchase Notice as to some or
all of the Debentures to which such Purchase Notice relates (stating the
Principal Amount and certificate numbers of the Debentures as to which such
withdrawal shall relate), or (y) to receive Cash in respect of the entire
Purchase Price for all Debentures (or portions thereof) to which such Purchase
Notice relates; and
(2) delivery of such Debenture 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 3.8 only if the Debenture so
delivered to the Paying Agent shall conform in all respects to the description
thereof in the related Purchase Notice.
If a Holder, in such Holder's Purchase Notice (and in any written notice of
withdrawal of a portion of a Holder's Debentures previously submitted for
purchase pursuant to a Purchase Notice, the portion that remains subject to the
Purchase Notice), fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 3.8(a)(1), such Holder shall be
deemed to have elected to receive Cash in respect of all Debentures 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 3.8, a portion of a Debenture if the Principal Amount of such portion is
$1,000 at Final Maturity or a multiple of $1,000. Provisions of this Indenture
that apply to the purchase of all of a Debenture also apply to the purchase of
such portion of such Debenture.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 3.8 shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Purchase Date and the
time of delivery of the Debenture.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 3.8(a) shall
have the right at any time prior to the close of business on the Purchase Date
to withdraw such Purchase Notice (in whole or in part) 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 Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price.
The Company may elect with respect to any Purchase Date to pay the Purchase
Price in respect of the Debentures to be purchased pursuant to Section 3.8(a) as
of such Purchase Date, 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 3.8(c) and (d). The Company shall designate, in the Company Notice
delivered pursuant to Section 3.8(e), whether the Company will purchase the
Debentures for Cash or Common Stock, or, if a combination thereof, the
percentages of the Purchase Price of Debentures in respect of which it will pay
in Cash and/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 Debentures subject to purchase by the
Company
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held by a Holder shall be considered together (no matter how many separate
certificates are to be presented). Each Holder whose Debentures are purchased
pursuant to this Section 3.8 shall receive the same percentage of Cash and/or
Common Stock in payment of the Purchase Price for such Debentures, except (i) as
provided in Section 3.8(d) with regard to the payment of Cash in lieu of
fractional interests in Common Stock and (ii) in the event that the Company is
unable to purchase the Debentures of a Holder or Holders for Common Stock
because any necessary qualifications or registrations of the Common Stock under
applicable federal or state securities laws cannot be obtained, the Company may
purchase the Debentures of such Holder or Holders for Cash. Once the Company has
given its Company Notice to Holders the Company may not change its election with
respect to the consideration (or components or percentages of components
thereof) to be paid except pursuant to this Section 3.8(b) or Section 3.8(d).
At least five Business Days before the Company Notice Date (as defined in
Section 3.8(c)), 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 3.8(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 3.8(d) have been or will be complied with, and
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 3.8(e).
(c) Purchase with Cash. At the option of the Company, the Purchase
Price of Debentures in respect of which a Purchase Notice pursuant to Section
3.8(a) has been given, or a specified percentage thereof, may be paid by the
Company with Cash equal to the aggregate Purchase Price, or such specified
percentage thereof, as the case may be, of such Debentures. No Debentures may be
purchased at the option of the Holders with Cash if there has occurred and is
continuing an Event of Default (other than a default in the payment of the
Purchase Price with respect to such Debentures).
(d) Payment by Issuance of Common Stock. At the option of the
Company, the Purchase Price of Debentures in respect of which a Purchase Notice
pursuant to Section 3.8(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
Holders 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
Debentures 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 Debenture purchased, the number of shares of
Common Stock shall be based on the aggregate amount of Debentures to be
purchased.
The Company's right to exercise its election to purchase the Debentures
pursuant to Section 3.8 through the issuance of shares of Common Stock shall be
conditioned upon:
(i) the Company having given timely Company Notice of election to
purchase all or a specified percentage of the Debentures with Common Stock as
provided herein;
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(ii) the registration of the shares of Common Stock to be issued in
respect of the payment of the specified percentage of the Purchase Price under
the Securities Act and the Securities Exchange Act of 1934, as amended; unless
the shares of Common Stock so issued can be resold by the Debentureholder
receiving such shares without registration under the Securities Act pursuant to
Rule 144 under the Securities Act or otherwise (unless such Debentureholder is
the Company or an Affiliate of the Company);
(iii) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(iv) 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 specified percentage of the
Purchase Price in respect of Debentures have been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture in payment of the
specified percentage of the Purchase Price in respect of Debentures, will be
validly issued, fully paid and nonassessable, and, in the case of such Officers'
Certificate, stating that conditions (i), (ii) and (iii) above 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 Final Maturity of
Debentures and the Sale Price of a share of Common Stock on each Trading Day
during the period during which the Market Price is calculated and ending on the
Purchase Date. The Company may elect to pay the Purchase Price (or any portion
thereof) in Common Stock only if the information necessary to calculate the
Market Price is reported in a daily newspaper of national circulation. If any
of the conditions set forth in this Section 3.8(d) are not satisfied with
respect to a Holder or Holders prior to or on the Purchase Date and the Company
elected to purchase the Debentures to be purchased as of such Purchase Date
pursuant to this Section 3.8 through the issuance of shares of Common Stock, the
Company shall pay the entire Purchase Price in respect of such Debentures of
such Holder or Holders in Cash.
The "Market Price" means the average of the Sale Prices of the Common Stock
for the five Trading Day period ending on (if the third Business Day prior to
the applicable Purchase Date is a Trading Day or, if it is not a Trading Day
then on the last Trading Day prior to) the third Business 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 15.6, subject, however, to the conditions set forth
in Sections 15.7 and 15.8. The "Sale Price" of the Common Stock on any date
means 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 average ask prices) on such date as reported in
the composite transactions for the principal United States securities exchange
on which the Common Stock is traded or, if the Common Stock is not listed on a
United States national or regional stock exchange, as reported by the NASDAQ
National Market.
Upon determination of the actual number of shares of Common Stock which the
Holder of each $1,000 Principal Amount at Final Maturity of the Debentures will
receive, the Company shall publish such determination in a daily newspaper of
national circulation.
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(e) Notice of Election. The Company's notices of election to purchase
with Cash or Common Stock, or any combination thereof (each a "Company Notice"),
shall be sent to the Holders (and to beneficial owners as required by applicable
law) in the manner provided in Section 12 and shall be sent to Holders (and to
beneficial owners as required by applicable law) not less than 20 Business Days
prior to the Purchase Date (the "Company Notice Date"). Such Company Notices
shall state the manner of payment elected and shall contain the following
information:
In the event the Company has elected to pay a 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 Debentures held by such Holder
(except any Cash amount to be paid in lieu of fractional share); and
(2) set forth the method of calculating the Market Price and state
that because the Market Price of Common Stock will be determined prior to the
Purchase Date, the 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 Debentureholder and shall state:
(i) the Purchase Price and Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) that Debentures as to which a Purchase Notice has been given may
be converted only if the applicable Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(iv) that Debentures must be surrendered to the Paying Agent to
collect payment;
(v) that the Purchase Price for any Debenture as to which a Purchase
Notice has been given and not withdrawn will be paid promptly following the
later of the Purchase Date and the time of surrender of such Debenture as
described in (iv);
(vi) the procedures the Holder must follow under Section 3.8;
(vii) briefly, the conversion rights of the Debentures; and
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 3.8 (a) (1) (D) or Section 3.10).
At the Company's request and at the Company's expense, the Trustee shall
give the Company Notice in the Company's name; provided, however, that, in all
cases, the text of the Company Notice shall be prepared by the Company.
(f) Covenants of the Company. All shares of Common Stock delivered
upon conversion or purchase of the Debentures shall be newly issued shares or
treasury shares, shall be fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
26
The Company shall cause to have listed or quoted all such shares of Common
Stock on each United States national securities exchange or over-the counter or
other domestic market on which the Common Stock is then listed or quoted.
(g) Procedure Upon Purchase. On or before 10:00 a.m. New York City
time on the Purchase Date, the Company shall deposit with the Paying Agent Cash
(in respect of a Cash purchase under Section 3.8(c) or for fractional interests,
as applicable), or shares of Common Stock, or a combination thereof, as
applicable, sufficient to pay the aggregate Purchase Price of the Debentures to
be purchased pursuant to this Section 3.8. 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, as applicable, issuable in payment of such 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 following the Purchase Date. Subject to Section 3.8(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.
(h) Taxes. If a Holder of a Debenture 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 3.9. Repurchase at Option of the Holder Upon a Change in Control.
(a) If a Change in Control shall occur at any time prior to the Final
Maturity Date, each Holder of Debentures shall have the right, at such Holder's
option, to require the Company to purchase such Holder's Debentures on the date
(the "Change in Control Purchase Date") (or if such date is not a Business Day,
the next succeeding Business Day) that is 20 days after the date of the Company
Change in Control Notice. The Debentures will be repurchased in part in integral
multiples of $l,000 of Principal Amount at the Final Maturity Date. The Company
shall purchase such Debentures for Cash at a price (the "Change in Control
Purchase Price") equal to the Issue Price plus accrued Original Issue Discount
to the Change in Control Purchase Date. No Debentures may be repurchased at the
option of the Holders due to a Change in Control if there has occurred and is
continuing an Event of Default (other than a default in the payment of the
Change in Control Purchase Price with respect to such Debentures).
(b) The Company, or at its request (which must be received by the
Trustee at least three Business Days prior to the date the Trustee is requested
to give such notice as described below) the Trustee in the name of and at the
expense of the Company, shall mail to all Holders of record of the Debentures a
notice (a "Company Change in Control Notice") of the occurrence of a Change in
Control and of the repurchase right arising as a result thereof on or before the
fifteenth day after the occurrence of such Change in Control. The Company shall
promptly furnish to the Trustee a copy of such notice.
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(c) For a Debenture to be so repurchased at the option of the Holder,
the Paying Agent must receive such Debenture with the form entitled "Change in
Control Purchase Notice" on the reverse thereof duly completed, together with
such Debenture duly endorsed for transfer, on or before the Change in Control
Purchase Date. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Debenture for redemption shall be determined by
the Company, whose determination shall be final and binding.
(d) A "Change in Control" shall be deemed to have occurred at such
time after the original issuance of the Debentures as:
(i) any Person, other than the Company, any subsidiary of the Company
or any entity Controlled (as defined below) by the foregoing, or any employee
benefit plan of the Company or any such subsidiary, is or becomes the beneficial
owner, directly or indirectly, through a purchase or other acquisition
transaction or series of transactions (other than a merger or consolidation
involving the Company), of shares of capital stock of the Company entitling such
Person to exercise in excess of 50% of the total voting power of all shares of
capital stock of the Company entitled to vote generally in the election of
directors;
(ii) there occurs any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company, or any sale or transfer of the assets of the Company as, or
substantially as, an entirety to another Person (other than (i) any such
transaction pursuant to which the Holders of the Common Stock immediately prior
to such transaction have, directly or indirectly, shares of capital stock of the
continuing or surviving corporation immediately after such transaction which
entitle such Holders to exercise in excess of 50% of the total voting power of
all shares of capital stock of the continuing or surviving corporation entitled
to vote generally in the election of directors and (ii) any merger (1) which
does not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock or (2) which is effected solely to change the
jurisdiction of incorporation of the Company and results in a reclassification,
conversion or exchange of outstanding shares of Common Stock solely into shares
of Common Stock and separate series of Common Stock carrying substantially the
same relative rights as the Common Stock); or
(iii) a change in the Board of Directors of the Company in which the
individuals who constituted the Board of Directors of the Company at the
beginning of the two-year period immediately preceding such change (together
with any other director whose election by the Board of Directors of the Company
or whose nomination for election by the stockholders of the Company was approved
by a vote of at least a majority of the directors then in office either who were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the directors then in office;
provided, however, that a Change in Control shall not be deemed to have
occurred if either (a) the Closing Price per share of the Common Stock for any
ten (10) Trading Days (each, a "Pricing Trading Date") within the period of 20
consecutive Trading Days ending immediately before the Change in Control shall
equal or exceed 105% of the price determined by dividing (i) the sum of the
Issue Price plus Original Issue Discount accrued to such Trading Day, by (ii)
the Conversion Rate, provided that at least five Pricing Trading Days occur
within the 10 consecutive Trading Days ending immediately before the Change in
Control, or (b) (i) at least 90% of the consideration (excluding cash payments
for fractional shares) in the transaction or transactions constituting the
Change in Control consists of shares of Common Stock with full voting rights
traded on a national securities exchange or quoted on the NASDAQ National Market
(or which will be so traded or quoted when issued or exchanged in connection
with such
28
Change in Control) (such securities being referred to as "Publicly
Traded Securities") and as a result of such transaction or transactions such
Debentures become convertible solely into such Publicly Traded Securities and
(ii) the consideration in the transaction or transactions constituting the
Change of Control consists of cash, Publicly Traded Securities or a combination
of cash and Publicly Traded Securities with an aggregate fair market value
(which, in the case of Publicly Traded Securities, shall be equal to the average
Closing Price of such Publicly Traded Securities during the ten (10) consecutive
Trading Days, commencing with the sixth Trading Day, following consummation of
the transaction or transactions constituting the Change in Control) which is at
least 105% of the price determined by dividing (i) the sum of the Issue Price
plus Original Issue Discount accrued to such Trading Day, by (ii) the Conversion
Rate.
(iv) For purposes of this Article III,
(A) the term "beneficial owner" shall be determined in accordance
with Rule 13d-3 promulgated by the Commission pursuant to the Exchange Act;
(B) the term "Person" shall include any syndicate or group which
would be deemed to be a "Person" under Section 13(d)(3) of the Exchange Act; and
(C) The term "Controlled" shall mean ownership or control of more
than 50% of the voting power of such entity.
Section 3.10. Effect of Purchase Notice or Change in Control Purchase
Notice.
Upon receipt by the Company of the Purchase Notice or Change in Control
Purchase Notice specified in Section 3.8(a) or Section 3.9(b), as applicable,
the Holder of the Debenture 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, with
respect to such Debenture. Such Purchase Price or Change in Control Purchase
Price shall be paid to such Holder 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 Debenture (provided the conditions in Section 3.8(a) or Section
3.9(c), as applicable, have been satisfied) and (y) the time of delivery of such
Debenture to the Paying Agent by the Holder thereof in the manner required by
Section 3.8(a) or Section 3.9(c), as applicable. Debentures 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 for shares of Common Stock
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 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, to
which it relates specifying;
(1) the certificate number of the Debenture in respect of which such
notice of withdrawal is being submitted,
29
(2) the Principal Amount at the Final Maturity Date of the Debenture with
respect to which such notice of withdrawal is being submitted, and
(3) the Principal Amount at the Final Maturity Date , if any, of such
Debenture which remains subject to the original Purchase Notice or Company
Change in Control 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 of
(i) a conditional withdrawal contained in a Purchase Notice pursuant to the
terms of Section 3.8(a)(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 3.8(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 Debentures pursuant to Section 3.8 (other
than through the issuance of Common Stock in payment of the Purchase Price,
including Cash in lieu of any fractional shares) or redemption pursuant to
Section 3.9 if there has occurred prior to, on or after, as the case may be, the
giving, by the Holders of such Debentures, 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, with respect to such
Debentures).
Section 3.11. Deposit of Purchase Price or Change in Control Purchase
Price.
On or before 10:00 a.m. New York City time on a Purchase Date or a 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 an Affiliate of the
Company is acting as the Paying Agent, shall segregate and hold in trust as
provided in Section 2.4) an amount of money and/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 all the Debentures or portions thereof
which are to be purchased as of such Purchase Date or Change in Control
Redemption Date, as the case may be.
Section 3.12. Debentures Purchased in Part.
Any Debenture that is to be purchased, or redeemed upon a Change in
Control, 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 Debenture, without service
charge, a new Debenture or Debentures, of any authorized denomination as
requested by such Holder in aggregate Principal Amount equal to, and in exchange
for, the portion of the Principal Amount of the Debenture so surrendered which
is not purchased or redeemed.
Section 3.13. Covenant to Comply with Securities Laws Upon Purchase of
Debentures.
In connection with any offer to purchase Debentures
under Section 3.8 or 3.9 hereof, the Company shall (i)
comply with Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act, if
applicable, (ii) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act,
if applicable, and (iii) otherwise comply with all Federal
and state Securities laws so as to permit the rights and
obligations under
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Section 3.8 and 3.9 to be exercised in the time and in the
manner specified in Section 3.8 and 3.9.
Section 3.14. Repayment to the Company.
The Trustee and the Paying Agent shall return to the
Company any cash or shares of Common Stock that remain
unclaimed as provided in paragraph 14 of the Debentures,
together with interest that the Trustee has agreed to pay
pursuant to Section 8.5, if any, or dividends, if any, paid
thereon while such shares are held by the Trustee or the
Paying Agent, held by them for the payment of a Purchase
Price or Change in Control Purchase Price, as the case may
be; 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 the Debentures 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, then
promptly after the Business Day following the Purchase Date
or Change in Control Purchase Date, as the case may be, the
Trustee and the Paying Agent shall return any such excess to
the Company together with interest that the Trustee has
agreed to pay pursuant to Section 8.5, if any, or dividends,
if any, paid thereon while such shares are held by the
Trustee or the Paying Agent.
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ARTICLE IV
SUBORDINATION OF DEBENTURES
Section 4.1. Debentures Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of
Debentures issued hereunder by his or her acceptance thereof
likewise covenants and agrees, that all Debentures shall be
issued subject to the provisions of this Article IV; and
each Person holding any Debenture, whether upon original
issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment of the Principal Amount, Issue Price,
accrued Original Issue Discount, accrued Liquidated Damages,
if any, Redemption Price, Purchase Price, Change in Control
Purchase Price, interest and any other amounts payable, if
any, in respect of all Debentures issued hereunder shall, to
the extent and in the manner hereinafter set forth, be
subordinated and subject in right of payment to the prior
payment in full in cash or other payment satisfactory to the
holders of Senior Indebtedness of all Senior Indebtedness of
the Company, whether outstanding at the date of this
Indenture or thereafter incurred, or thereafter created,
assumed or guaranteed.
No provision of this Article IV shall prevent the
occurrence of any Default or Event of Default hereunder.
Section 4.2. Payments to Holders.
No payment shall be made with respect to the payment of
Principal Amount, Issue Price, accrued Liquidated Damages,
if any, accrued Original Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price, interest
and any other amounts payable, if any, on the Debentures
except payments and distributions made by the Trustee as
permitted by Section 4.6, if:
(a) a default in the payment of principal, premium,
interest, rent or other obligations due on any Senior
Indebtedness occurs and is continuing (or, in the case of
Senior Indebtedness for which there is a period of grace, in
the event of such a default that continues beyond the period
of grace, if any, specified in the instrument or lease
evidencing such Senior Indebtedness), unless and until such
default shall have been cured or waived or shall have ceased
to exist, or
(b) a default, other than a payment default, on any
Designated Senior Indebtedness occurs and is continuing that
then permits holders of such Designated Senior Indebtedness
to accelerate its maturity and the Trustee receives a
written notice of the default (a "Payment Blockage Notice")
from a Representative or the Company.
If the Trustee receives any Payment Blockage Notice
pursuant to clause (b) above, no subsequent Payment Blockage
Notice shall be effective for purposes of this Section
unless and until (A) at least 365
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days shall have elapsed since the initial effectiveness of
the immediately prior Payment Blockage Notice, and (B) all
scheduled payments of the Principal Amount due at the Final
Maturity Date, Purchase Price, Redemption Price, or Change
in Control Purchase Price, as applicable, on the Debentures
that have come due have been paid in full in cash. No
nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice.
The Company, after providing written notice to the
Trustee, shall resume payments on and distributions in
respect of the Debentures upon the earlier of:
(a) the date upon which the default is cured or waived
or ceases to exist, or
(b) in the case of a default referred to in clause (b)
above, 179 days pass after notice is received if the
maturity of such Designated Senior Indebtedness has not been
accelerated;
unless this Article IV otherwise prohibits the payment
or distribution at the time of such payment or distribution.
Upon any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any
dissolution or winding up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings,
all amounts due or to become due upon all Senior
Indebtedness shall first be paid in full in cash or other
payment satisfactory to the holders of such Senior
Indebtedness, or payment thereof in accordance with its
terms provided for in cash or other payment satisfactory to
the holders of such Senior Indebtedness, before any payment
is made on account of the Principal Amount due at the Final
Maturity Date, Purchase Price, Redemption Price, or Change
in Control Purchase Price, as applicable, on the Debentures
(except payments made pursuant to Article XIII from monies
deposited with the Trustee pursuant thereto prior to
commencement of proceedings for such dissolution, winding
up, liquidation or reorganization) and upon any such
dissolution or winding up or liquidation or reorganization
of the Company or bankruptcy, insolvency, receivership or
other proceeding, any payment by the Company, or
distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which
the holders of the Debentures or the Trustee would be
entitled, except for the provision of this Article IV, shall
(except as aforesaid) be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by
the holders of the Debentures or by the
33
Trustee under this Indenture if received by them or it,
directly to the holders of Senior Indebtedness (pro rata to
such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, or as otherwise
required by law or a court order) or their representative or
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to
pay all Senior Indebtedness in full, in cash or other
payment satisfactory to the holders of such Senior
Indebtedness, after giving effect to any concurrent payment
or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution or
provision therefor is made to the holders of the Debentures
or to the Trustee.
For purposes of this Article IV, the words "cash,
property or securities" shall not be deemed to include
shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment,
the payment of which is subordinated at least to the extent
provided in this Article IV with respect to the Debentures
to the payment of all Senior Indebtedness which may at the
time be outstanding provided that (i) the Senior
Indebtedness is assumed by the new corporation, if any,
resulting from any reorganization or readjustment, and (ii)
the rights of the holders of Senior Indebtedness (other than
leases which are not assumed by the Company or the new
corporation, as the case may be) are not, without the
consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon
the terms and conditions provided for in Article XII shall
not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 4.2 if such
other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions
stated in Article XII.
In the event of the acceleration of the Debentures
because of an Event of Default, no payment or distribution
shall be made to the Trustee or any holder of Debentures in
respect of the Debentures (including, but not limited to,
the Redemption Price, Purchase Price or Change in Control
Purchase Price ), except payments and distributions made by
the Trustee as permitted by Section 4.6, until all Senior
Indebtedness has been paid in full in cash or other payment
satisfactory to the holders of Senior Indebtedness or such
acceleration is rescinded in accordance with the terms of
this Indenture. If payment of the Debentures is accelerated
because of an Event of Default, the Company shall promptly
notify holders of Senior Indebtedness of the acceleration.
34
In the event that, notwithstanding the foregoing
provisions, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property
or securities (including, without limitation, by way of
setoff or otherwise), prohibited by the foregoing, shall be
received by the Trustee or the Holders before all Senior
Indebtedness is paid in full in cash or other payment
satisfactory to the holders of such Senior Indebtedness, or
provision is made for such payment thereof in accordance
with its terms in cash or other payment satisfactory to the
holders of such Senior Indebtedness, such payment or
distribution shall be held in trust for the benefit of and
shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may
have been issued, as their respective interests may appear,
as calculated by the Company, for application to the payment
of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in cash or
other payment satisfactory to the holders of such Senior
Indebtedness, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior
Indebtedness.
Nothing in this Section 4.2 shall apply to claims of,
or payments to, the Trustee under or pursuant to Section
8.6. This Section 4.2 shall be subject to the further
provisions of Section 4.6, and the right to rescind and
annul acceleration of any notice given pursuant to Section
7.1.
Section 4.3. Debentures to Be Subrogated to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full in cash or other payment
satisfactory to the holders of Senior Indebtedness of all
Senior Indebtedness of the Company, the rights of the
Holders of the Debentures shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or Debentures of
the Company applicable to such Senior Indebtedness until the
Principal Amount, Issue Price, accrued Original Issue
Discount, accrued Liquidated Damages, if any, Redemption
Price, Purchase Price, Change in Control Purchase Price in
respect of the Debentures shall be paid in full, and, for
purposes of such subrogation, no payments or distributions
to the holders of Senior Indebtedness of assets, whether in
cash, property or securities, distributable to the holders
of Senior Indebtedness under the provisions hereof to which
the Holders would be entitled except for the provisions of
this Article IV, and no payment pursuant to the provisions
of this Article IV to the holders of Senior Indebtedness by
the Holders shall, as among the Company, its creditors other
than the holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Company to or on account of
Senior Indebtedness, it being understood that the provisions
of this Article IV are, and are intended, solely for the
purpose of
35
defining the relative rights of the Holders, on the one
hand, and the holders of Senior Indebtedness, on the other
hand.
Upon any payment or distribution of assets of the
Company referred to in this Article IV, the Trustee and the
Holders of the Debentures shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction
in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of
the receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution,
delivered to the Trustee, to the Holders of the Debentures
for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent
thereto or to this Article IV.
Section 4.4. Obligations of the Company Unconditional.
Nothing contained in this Article IV or elsewhere in
this Indenture or in any Debenture is intended to or shall
impair, as among the Company, its creditors other than the
holders of Senior Indebtedness, and the Holders, the
obligation of the Company, which is absolute and
unconditional, to pay to the Holders the Principal Amount,
Issue Price, accrued Original Issue Discount, accrued
Liquidated Damages, if any, Redemption Price, Purchase
Price, Change in Control Purchase Price on the Debentures,
as the same shall become due and payable in accordance with
the terms of the Debentures, or to affect the relative
rights of the Holders and other creditors of the Company
other than the holders of Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder
from exercising all remedies otherwise permitted by
applicable law upon the happening of an Event of Default
under this Indenture, subject to the provisions of Article
VIII, and the rights, if any, under this Article IV of the
holders of Senior Indebtedness in respect of assets, whether
in cash, property or securities, of the Company received
upon the exercise of any such remedy.
Section 4.5. Notice to Trustee.
The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in
respect of the Debentures. Notwithstanding the provisions of
this Article IV or any other provision of this Indenture,
the Trustee shall not at any time be charged with knowledge
of the existence of any facts which would prohibit the
making of any payment to or by the Trustee, unless and until
the Trustee shall have received written notice thereof from
the Company or from the holder or holders of Senior
Indebtedness or from their Representative or
Representatives; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of
Sections 8.1 and 8.2, shall be entitled to assume
conclusively that such facts do not exist.
36
The Trustee shall be entitled to rely on the delivery
to it of a written notice by a Person representing himself
or herself to be a holder of Senior Indebtedness (or a
Representative of such holder) to establish that such notice
has been given by a holder of Senior Indebtedness or a
Representative of any such holder. In the event that the
Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article IV, the Trustee may
request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of
each Person under this Article IV, and, if such evidence is
not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of
such Person to receive such payment.
Section 4.6. Application by Trustee of Monies Deposited With It.
Money or U.S. Government Obligations deposited with the
Trustee or any Paying Agent (whether or not in trust) for
the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, accrued Liquidated Damages, if any,
Redemption Price, Purchase Price, and Change in Control
Purchase Price on any Debentures shall be subject to the
provisions of Sections 4.1, 4.2, 4.3 and 4.4; except that,
if two (2) Business Days prior to the date on which by the
terms of this Indenture any such monies or U.S. Government
Obligations may become payable for any purpose (including,
without limitation, the payment of the Principal Amount,
Issue Price, accrued Original Issue Discount, accrued
Liquidated Damages, if any, Redemption Price, Purchase
Price, and Change in Control Purchase Price on any
Debenture) the Trustee shall not have received with respect
to such monies or U.S. Government Obligations the notice
provided for in Section 4.5, then the Trustee or any Paying
Agent shall have full power and authority to receive such
monies and to apply such monies to the purpose for which
they were received, and shall not be affected by any notice
to the contrary which may be received by it on or after such
date. This Section 4.6 shall be construed solely for the
benefit of the Trustee and the Paying Agent and shall not
otherwise affect the rights that holders of Senior
Indebtedness may have to recover any such payments from the
Holders in accordance with the provisions of this Article
IV.
Section 4.7. Subordination Rights Not Impaired by Acts or Omissions of
Company or holders of Senior Indebtedness.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination, as herein provided,
shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or by
any act or failure to act, in good faith,
37
by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder
may have or be otherwise charged with. The holders of any
Senior Indebtedness may extend, renew, modify or amend the
terms of such Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise
deal freely with the Company, all without affecting the
liabilities and obligations of the parties to this Indenture
or the Holders. No provision in any supplemental indenture
which affects the superior position of the holders of the
Senior Indebtedness shall be effective against the holders
of the Senior Indebtedness unless the holders of such Senior
Indebtedness (required pursuant to the terms of such Senior
Indebtedness to give such consent) have consented thereto.
Section 4.8. Trustee to Effectuate Subordination.
Each Holder of a Debenture by his or her acceptance
thereof authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this
Article IV and appoints the Trustee his or her attorney-in-
fact for any and all such purposes.
Section 4.9. Right of Trustee to Hold Senior Indebtedness.
The Trustee, in its individual capacity, shall be
entitled to all of the rights set forth in this Article IV
in respect of any Senior Indebtedness at any time held by it
(including without limitation the Senior Indebtedness held
by it as of the date of this Indenture) to the same extent
as any other holder of Senior Indebtedness, and nothing in
this Indenture shall be construed to deprive the Trustee of
any of its rights as such holder.
Section 4.10. Article IV Not to Prevent Events of Default.
The failure to make a payment on account of the
Principal Amount due at the Final Maturity Date, Purchase
Price, Redemption Price, or Change in Control Purchase
Price, as applicable, on the Debentures by reason of any
provision in this Article IV shall not be construed as
preventing the occurrence of an Event of Default under
Section 7.1.
Section 4.11. No Fiduciary Duty Created to Holders of Senior Indebtedness.
Notwithstanding any other provision in this Article IV,
the Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness by virtue of the
provisions of this Article IV.
Section 4.12. Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
IV shall in such case (unless the context shall otherwise
require) be construed as extending to and including such
Paying Agent within its meaning as
38
fully for all intents and purposes as if such Paying Agent
were named in this Article IV in addition to or in place of
the Trustee.
Section 4.13. Treatment of Conversion Payments.
Notwithstanding anything in this Indenture to the
contrary, neither the issuance and delivery of junior
Debentures upon conversion of the Debentures in accordance
with Article XV nor the payment of cash in lieu of
fractional shares of Common Stock in accordance with Article
XV shall be deemed to constitute a payment or distribution
on account of the Principal Amount, Issue Price, accrued
Original Issue Discount, accrued Liquidated Damages, if any,
Redemption Price Purchase Price or Change in Control
Purchase Price in respect of the Debentures. For the
purposes of this paragraph, the term "junior Debentures"
means (a) shares of any stock of any class of the Company,
(b) Debentures of the Company which are subordinated in
right of payment to all Senior Indebtedness of the Company
which may be outstanding at the time of issuance or delivery
of such Debentures to substantially the same extent as, or
to a greater extent than, the Debentures are so subordinated
as provided in this Article IV, and (c) any Debentures into
which the Debentures become convertible pursuant to Section
12.1 which are Debentures of a Person required to enter into
a supplemental indenture pursuant to such Section 12.1 and
are either (x) shares of any stock of any class of such
Person, or (y) Debentures of such Person which are
subordinated in right of payment to all Senior Indebtedness
of such Person which may be outstanding at the time of
issuance or delivery of such Debentures to substantially the
same extent as, or to a greater extent than, the Debentures
or, are so subordinated as provided in this Article IV.
Nothing contained in this Article or elsewhere in this
Indenture or in the Debentures is intended to or shall
impair, as among the Company, its creditors other than the
holders of Senior Indebtedness, and the holders of the
Debentures, the right, which is absolute and unconditional,
of the holder of any Debenture to convert such Debenture in
accordance with Article XV.
Section 4.14. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article IV, the Trustee and the
Holders of Debentures shall be entitled to rely upon any
order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating
trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of
Debentures, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon,
39
the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article IV.
ARTICLE V
COVENANTS
Section 5.1. Payment of Debentures.
The Company shall promptly make all payments in respect
of the Debentures on the dates and in the manner provided in
the Debentures or pursuant to this Indenture. Principal
Amount, Issue Price, accrued Original Issue Discount,
accrued Liquidated Damages, if any, Redemption Price,
Purchase Price, Change in Control Purchase Price and
interest, if any, shall be considered paid on the applicable
date due 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, if on such date the Trustee or the
Paying Agent holds, in accordance with this Indenture, money
or Debentures, if permitted hereunder, sufficient to pay all
such amount then due.
The Company shall pay interest on overdue amounts at
the rate set forth in paragraph 1 of the Debentures and it
shall pay interest on overdue interest at the same rate
compounded semiannually (to the extent that the payment of
such interest shall be legally enforceable), which interest
on overdue interest shall accrue from the date such amounts
became overdue and shall be in lieu of, and not in addition
to, the continued accrual of Original Issue Discount.
Section 5.2. SEC Reports.
So long as the Debentures or the Common Stock issued
upon conversion of the Debentures are Restricted Securities,
if the Company is not subject to either Section 13 or 15(d)
of the Exchange Act, the Company shall at the request of any
Holder of Debentures (or holders of Common Stock issued upon
conversion of the Debentures) provide to such Holder of
Debentures (or holders of such Common Stock) and any
prospective purchaser designated by such Holders (or holders
of such Common Stock), as the case may be, such information,
if any, required by Rule 144A(d)(4) under the Securities
Act.
The Company shall file with 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.
Section 5.3. Maintenance of Office or Agency.
40
The Company will maintain in the Borough of Manhattan, the City of New York
office or agency (which may be the Corporate Trust Office) where the Debentures
may be surrendered for registration of transfer or exchange or for presentation
for payment or for conversion or redemption and where notices and demands to or
upon the Company in respect of the Debentures and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency not designated or appointed
by 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 Corporate Trust Office or the office or agency of the Trustee in
the Borough of Manhattan, the City of New York.
The Company may also from time to time designate one or more other offices
or agencies where the Debentures may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations provided that
no such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in New York, New York, for such
purposes. The Company will give prompt written notice to the holders of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates each of the Corporate Trust Office
of the Trustee and the office or agency of the Trustee in New York, New York as
one such office or agency of the Company for each of the aforesaid purposes.
Section 5.4. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claims or
take the benefit or advantage of, any stay, extension, usury law or other law
which would prohibit or forgive the Company from paying all or any portion of
any amounts due on or with respect to the Debentures as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture, and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefits or advantage of any
such law, and covenants that it will not, by resort to any such law, 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
has been enacted.
Section 5.5. Liquidation.
Subject to the provisions of Article IV, so far as they may be applicable
hereto, the Board of Directors or the shareholders of the Company may not adopt
a plan of liquidation, which plan provides for, contemplates or the effectuation
of which is preceded by (a) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company otherwise than
substantially as an entirety (any such sale, lease, conveyance or other
disposition substantially as an entirety being governed by Article VII) and (b)
the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and of the remaining assets of the
Company to the holders of the capital stock of the Company, unless the Company
shall in connection with the adoption of such plan make provision for, or agree
that prior to making any liquidating distributions it will make provision for,
the satisfaction of the
41
Company's obligations hereunder and under the Debentures as to the payment of
the Principal Amount at the Final Maturity Date. The Company shall be deemed to
make provision for such payments only if (1) the Company irrevocably deposits in
trust with the Trustee money or U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as are sufficient,
without consideration of any reinvestment of such interest, to pay the Principal
Amount of the Debentures then outstanding and to pay all other sums payable by
it hereunder or (2) there is an express assumption of the due and punctual
payment of the Company's obligations hereunder and under the Debentures and the
performance and observance of all covenants and conditions to be performed by
the Company hereunder, by the execution and delivery of a supplemental indenture
in form satisfactory to the Trustee by a Person who acquires, or will acquire
(otherwise than pursuant to a lease), all or substantially all of the assets of
the Company, and which Person will have assets (immediately after the
acquisition) and aggregate earnings (for such Person's four full fiscal quarters
immediately preceding such acquisition) at least equal to the assets of the
Company (immediately preceding such acquisition) and the aggregate earnings of
the Company (for its four (4) full fiscal quarters immediately preceding the
acquisition), respectively, and which is a corporation organized under the laws
of the United States, any State thereof or the District of Columbia; provided,
however, that the Company shall not make any liquidating distribution until
after the Company (x) has certified to the Trustee with an Officers' Certificate
at least five (5) days prior to the making of any liquidating distribution that
it has complied with the provisions of this Section 5.5 and (y) delivered to the
Trustee an Opinion of Counsel that all conditions precedent to such liquidation
have been complied with.
Section 5.6. Compliance Certificates.
The Company shall deliver to the Trustee, within 90 days after the end of
each fiscal year of the Company, an Officers' Certificate as to the signer's
knowledge of the Company's compliance with all conditions and covenants on its
part contained in this Indenture and stating whether or not the signer knows of
any Default or Event of Default. If such signer knows of such a Default or Event
of Default, the Officers' Certificate shall describe the Default or Event of
Default and the efforts to remedy the same. For the purposes of this Section
5.6, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
Section 5.7. Notice of Defaults.
In the event (a) that Indebtedness of the Company in an aggregate amount in
excess of $25,000,000 is declared due and payable before its maturity because of
the occurrence of any default under such Indebtedness, or (b) of the occurrence
of any event which, with the giving of notice or the passage of time, or both,
would entitle the holder or holders of such Indebtedness to declare such
Indebtedness due and payable before its maturity, the Company will promptly give
written notice to the Trustee of such declaration.
Section 5.8. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company, directly or by reason
of its ownership of any Subsidiary, or upon the income, profits or property of
the Company and (b) all material lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of the
Company; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which adequate provision has been made.
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Section 5.9. Corporate Existence.
Subject to Article XII, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and rights (charter and statutory); provided, however, that the Company shall
not be required to preserve any right if the Board of Directors shall determine
in good faith that the preservation is no longer desirable in the conduct of the
Company's business and that the loss thereof is not, and will not be, adverse in
any material respect to the Holders.
Section 5.10. Maintenance of Properties.
Subject to Section 5.5, the Company and its Subsidiaries will cause all
material properties (real and personal) owned, leased or licensed in the conduct
of their business to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof and thereto, all as in the reasonable judgment of the Board of Directors
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times while any Debentures are
outstanding, provided, however, that nothing in this Section 5.10 shall prevent
the Company and its Subsidiaries from discontinuing the maintenance of any such
properties if, in the reasonable judgment of the Board of Directors, such
discontinuance is desirable in the conduct of the Company's business and is not,
and will not be, adverse in any material respect to the Holders.
Section 5.11. 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.
ARTICLE VI
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE TRUSTEE
Section 6.1. Holders' Lists.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee, semiannually, not more than 15 days after each April 1
and October 1 in each year beginning with 1998, and at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request (or such lesser time as the Trustee may reasonably request in
order to enable it to timely provide any notice to be provided by it hereunder),
a list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of Debentures as of a date not more than 15 days (or
such other date as the Trustee may reasonably request in order to so provide any
such notices) prior to the time such information is furnished, except that no
such list need be furnished so long as the Trustee is acting as Debenture
Registrar.
Section 6.2. Preservation and Disclosure of Lists.
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(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Debentures contained in the most recent list furnished to it as provided in
Section 6.1 or maintained by the Trustee in its capacity as Debenture Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 6.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders of Debentures
with respect to their rights under this Indenture or under the Debentures, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Debentureholder, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders of Debentures made pursuant to
the Trust Indenture Act.
Section 6.3. Reports by Trustee.
(a) Within 60 days after December 31 of each year commencing with the year
1998, the Trustee shall transmit to Holders of Debentures such reports dated as
of December 31 of the year for which such reports are made concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such transmission to
Holders of Debentures, be filed by the Trustee with each stock exchange or
automated quotation system upon which the Debentures may be listed or traded and
with the Company. The Company will notify the Trustee in writing within a
reasonable time if the Debentures are listed on any stock exchange or automated
quotation system.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON AN EVENT OF DEFAULT
Section 7.1. Events of Default.
In case one or more of the following Events of Default (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body) shall have occurred and be continuing:
(a) default in the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, accrued Liquidated Damages, if any, Redemption Price,
Purchase Price or Change in Control Purchase Price on any Debenture when the
same becomes due and payable at its Stated Maturity, upon redemption, upon
declaration, when due for purchase by the Company or otherwise (provided that in
the case of a default in the payment of Liquidated Damages, such default in
payment of Liquidated Damages continues for a period of 30 days), whether or not
such payment is permitted under Article IV hereof; or
44
(b) failure on the part of the Company or any Subsidiary with respect to
its obligation to pay principal of or interest on Indebtedness for borrowed
money which default shall have resulted in the acceleration of Indebtedness in
an amount in excess of $25,000,000; or
(c) default by the Company with respect to any Indebtedness for borrowed
money of the Company, which default results in acceleration of any such
Indebtedness in an amount of in excess of $25,000,000 without such Indebtedness
having been discharged, or such acceleration having been rescinded or annulled
for a period of 10 days; or
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Debentures or in this Indenture (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section 7.1 specifically
dealt with) for a period of 60 days after the date on which written notice of
such failure, requiring the Company to remedy the same, shall have been given to
the Company by the Trustee, or to the Company and a Trust Officer of the Trustee
by the Holders of at least 25% in aggregate principal amount of the Debentures
at the time outstanding determined in accordance with Section 9.4; or
(e) the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due; or
(f) an involuntary case or other proceeding shall be commenced against the
Company seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 consecutive days; or
(g) the entry by a court having jurisdiction in the premises of a final
judgment, decree or order against the Company or any Subsidiary which shall
require the payment by the Company or any Subsidiary of an amount (to the extent
not covered by insurance) in excess of $25,000,000 and the continuance of any
such judgment, decree or order unstayed or unsatisfied and in effect for a
period of 60 consecutive days which is not being contested in good faith by
appropriate proceedings;
then, and in each and every such case (other than an Event of Default
specified in Section 7.1(e) or (f)), the Trustee by notice to the Company, or
the Holders of at least 25% in aggregate Principal Amount of the Debentures at
the time outstanding by notice to the Company and the Trustee, may declare the
Issue Price and accrued Original Issue Discount to the date of declaration on
all the Debentures to be immediately due and payable. Upon such a declaration,
such Issue Price and accrued Original Issue Discount shall be due and payable
immediately. If an Event of Default specified in Section 7.1(e) or (f) occurs
and is continuing, the Issue Price and
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accrued Original Issue Discount on all the Debentures shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. The Holders of a majority in aggregate Principal
Amount of the Debentures at the time outstanding, by notice to the Company and
the Trustee (and without notice to any other Debentureholder), 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 and accrued Original Issue Discount
that have become due solely as a result of acceleration and if all amounts due
to the Trustee under Section 8.6 have been paid. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Holders of Debentures, and the Trustee shall be restored
respectively to their several positions and rights hereunder and all rights,
remedies and powers of the Company, the Holders of Debentures, and the Trustee
shall continue as though no such proceeding had been taken.
Section 7.2. Collection Suit by Trustee; Trustee May File Proofs of
Claim.
(a) If an Event of Default described in Section 7.1(a) 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 Debentures and the amounts provided for in Section 8.6.
(b) 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
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the Principal Amount, Issue
Price, accrued Original Issue Discount, accrued Liquidated Damages, if any,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest,
if any, in respect of the Debentures 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,
(i) to file and prove a claim for the whole amount of the Principal
Amount, Issue Price, accrued Original Issue Discount, accrued Liquidated
Damages, if any, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, 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 Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) 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
46
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 8.6.
If the Trustee does not file a claim or proof of debt in the form required
in such proceedings prior to 30 days before the expiration of the time to file
such claims or proofs, then any holder or holders of Senior Indebtedness or
their representative or representatives shall have the right to demand, ▇▇▇ for,
collect, receive and receipt for the payments and distributions in respect of
the Debentures which are required to be paid or delivered to the holders of
Senior Indebtedness as provided in this Article and to file and prove all claims
therefor and to take all such other action in the name of the holders or
otherwise, as such holders of Senior Indebtedness or representative thereof may
determine to be necessary or appropriate for the enforcement of the provisions
of this Article.
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 Debentures
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claims of any Holder in any such proceeding.
Section 7.3. Application of Monies Collected by Trustee.
If the Trustee collects any money pursuant to this Article VII, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 8.6;
Second: to holders of Senior Indebtedness to the extent required by
Article IV;
Third: subject to the provisions of Article IV, to Holders for amounts due
and unpaid on the Debentures for the Principal Amount, Issue Price, accrued
Original Issue Discount, accrued Liquidated Damages, if any, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, as the
case may be, ratably, without preference or priority of any kind, according to
such amounts due and payable on the Debentures; and
Fourth: subject to the provisions of Article IV, the balance, if any, to
the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 7.3. At least 15 days before such record date,
the Trustee shall, at the Company's expense, mail to each Debentureholder and
the Company a notice that states the record date, the payment date and amount to
be paid.
Section 7.4. Proceedings by Holders.
No Holder shall have any right by virtue of or by availing of any provision
of this Indenture to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof, as
47
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding determined in
accordance with Section 9.4 shall have made written request upon the Trustee to
institute such action, suit or proceedings in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 7.7, it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Debenture with every other taker and Holder of the Debentures and the
Trustee, that no one or more Holders shall have any right in any manner whatever
by virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Debentures, or to obtain
or seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders (except as otherwise
provided herein). For the protection and enforcement of this Section 7.4, each
and every Debentureholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of
any Debenture, the right of any Holder of any Debenture to receive payment of
the Principal Amount, Issue Price, accrued Original Issue Discount, accrued
Liquidated Damages, if any, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, as the case may be on or after the
respective due dates therefor as set forth in such Debenture or in this
Indenture, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company shall not be impaired or
affected without the consent of such Holder.
Anything in this Indenture or the Debentures to the contrary
notwithstanding, the Holder of any Debenture, without the consent of either the
Trustee or the Holder of any other Debenture, in his own behalf and for his own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, his rights of conversion as provided herein.
Section 7.5. Proceedings by Trustee.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of the Issue Price, Original Issue
Discount, accrued Liquidated Damages, if any, Redemption Price, Purchase Price,
Change in Control Purchase Price, or interest, if any, as the case may be on the
Debentures or to enforce the performance of any provision of the Debentures or
this Indenture.
In case of an Event of Default, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Section 7.6. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section 2.9, all powers and
remedies given by this Article VII to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed
48
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
Holder of any of the Debentures to exercise any right or power accruing upon any
default or Event of Default occurring and continuing as aforesaid shall impair
any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein and, subject to the provisions of Section
7.4, every power and remedy given by this Article VII or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Holders.
Section 7.7. Control by Majority of Holders.
The Holders of a majority in aggregate Principal Amount of the Debentures
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 Holders or
would involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it.
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Section 7.8. Notice of Defaults.
The Trustee shall, within 90 days after a Trust Officer has knowledge of
the occurrence of a Default or any Event of Default, mail to all Holders, as the
names and addresses of such Holders appear upon the Debenture register, notice
of all Defaults or Events of Default known to a Trust Officer, unless such
Defaults or Events of Default shall have been cured or waived before the giving
of such notice and provided that, except in the case of default in the payment
of the Principal Amount, Issue Price, accrued Original Issue Discount, accrued
Liquidated Damages, if any, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, as the case may on any of the Debentures,
the Trustee shall be protected in withholding such notice if and so long as a
trust committee of directors and/or officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders.
Section 7.9. Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Debenture by
his acceptance thereof shall be deemed to have agreed, that any court may, in
its discretion, require, 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, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, provided that
the provisions of this Section 7.9 (to the extent permitted by law) shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Holders, holding in the aggregate more than ten
percent in principal amount of the Debentures at the time outstanding determined
in accordance with Section 9.4, or to any suit instituted by any Debentureholder
for the enforcement of the payment of the Principal Amount due at the Final
Maturity Date, Purchase Price, Redemption Price, or Change in Control Purchase
Price, as applicable, on any Debenture on or after the due date therefor or to
any suit for the enforcement of the right to convert any Debenture in accordance
with the provisions of Article XV or to require the Company to repurchase any
Debenture in accordance with Section 3.8.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1. Duties and Responsibilities of Trustee.
The Trustee, prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured
or waived), the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred:
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(1) the duties and obligations of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trust Indenture Act, and the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture or the Trust
Indenture Act against the Trustee; and
(2) in the absence of bad faith and willful misconduct on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture but, in the case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer or Officers, unless the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a majority in Principal Amount of the Debentures at the
time outstanding determined as provided in Section 9.4 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording protection
to, the Trustee as Trustee, Paying Agent, Debenture Registrar, Custodian or
Conversion Agent shall be subject to the provisions of this Section.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers.
Section 8.2. Reliance on Documents, Opinions, Etc.
Except as otherwise provided in Section 8.1,
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, coupon or other paper or document believed
by it in good faith to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed) and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel, and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or omitted by it thereunder in good faith and in accordance
with such advice or Opinion of Counsel;
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(d) 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 reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(e) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, Debenture 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, provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liability as a condition to so
proceeding and the reasonable expenses of every such examination shall be paid
by the Company or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Company upon demand;
(f) 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 be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(g) the Trustee shall not be deemed to have notice of an Event of Default
or of any event or condition which, with the giving of notice, the passage of
time, or both, might constitute an Event of Default unless (i) the Trustee has
received written notice thereof from the Company or any Debentureholder or (ii)
a Trust Officer shall have actual knowledge thereof;
(h) the Trustee shall not be liable for any action it takes in good faith
which it believes to be authorized or within its rights or powers;
(i) in the absence of bad faith on its part, the Trustee shall be
protected in acting upon any notice, request, consent, certificate, order,
affidavit, letter, telegram or other paper or document reasonably believed by it
to be genuine and correct and to have been signed or sent by the proper Person
or Persons. Any action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of any Person who at the time of making such
request or giving such authority or consent is the owner of any Debenture shall
be conclusive and binding upon all future owners of the same Debenture and upon
Debentures issued in exchange therefor or in place thereof;
(j) the Trustee shall be responsible only for performing those duties of
the Trustee specifically provided for herein and no implied duties or
liabilities shall be read into this Indenture against the Trustee;
(k) the Trustee shall not be responsible or liable for any loss suffered
in connection with any investment of funds made by it in accordance with this
Indenture; and
(l) the Trustee shall not be required to give any bond or surety in
respect of the execution of its rights and duties under this Indenture.
Section 8.3. No Responsibility for Recitals, Etc.
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The recitals contained herein and in the Debentures (except in the
Trustee's certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Debentures. The Trustee shall not be accountable for
the use or application by the Company of any Debentures or the proceeds of any
Debentures authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.
Section 8.4. Trustee, Paying Agents, Conversion Agents or Debenture
Registrar May Own Debentures.
The Trustee, any Paying Agent, any Conversion Agent or Debenture Registrar,
in its individual or any other capacity, may become the owner or pledgee of
Debentures and may otherwise deal with the Company and its Affiliates with the
same rights it would have if it were not Trustee, Paying Agent, Conversion Agent
or Debenture Registrar.
Section 8.5. Monies to Be Held in Trust.
Subject to the provisions of Section 13.4, all monies received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received. Money held by the Trustee in trust
thereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as may be agreed from time to time in writing by
the Company and the Trustee.
Section 8.6. Compensation and Indemnity of Trustee.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation for all services
rendered by it hereunder in any capacity (which shall not be limited by any
provision of law in regard to the compensation of a Trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances reasonably incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including without limitation the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its employ),
except any such expense, disbursement or advance as may arise from the Trustee's
negligence, willful misconduct or bad faith. The Company also covenants to
indemnify and defend the Trustee in any capacity under this Indenture and its
agents and any authenticating agent for, and to hold them harmless against, any
claim, action, damage, penalty, judgment, loss, liability or expense incurred
without negligence, willful misconduct, or bad faith on the part of the Trustee
or such Agent or authenticating agent, as the case may be, and arising out of or
in connection with this Indenture or any action or failure within the
discretion, rights or powers conferred upon the Trustee hereunder or with the
acceptance or administration of this trust or in any other capacity hereunder,
including without limitation the costs and expenses of defending themselves
against any claim of liability in the premises. All indemnifications and
releases from liability granted under this Indenture to the Trustee shall extend
to its Officers, directors, employees, agents, successors and assigns and to the
Trustee in any capacity, including without limitation, Trustee, Debenture
Registrar, Paying Agent, Conversion Agent or Custodian. The obligations of the
Company under this Section 8.6 to compensate or indemnify the Trustee and to pay
or reimburse the Trustee for expenses, disbursements and advances shall be
secured by a lien prior to that of the Debentures upon all
53
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Debentures. The obligation
of the Company under this Section 8.6 shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the Trustee.
When the Trustee and its agents and any authenticating agent incur expenses
or render services after an Event of Default specified in Section 7.1(e) or (f)
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy, insolvency or
similar laws.
Section 8.7. Officers' Certificate as Evidence.
Except as otherwise provided in Section 8.1, wherever in the administration
of the provisions of this Indenture, the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence, willful
misconduct, recklessness, or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers' Certificate delivered to
the Trustee.
Section 8.8. Conflicting Interests of Trustee.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 8.9. Eligibility of Trustee.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and which
shall have (or, in the case of a corporation included in a bank holding company
system, the related bank holding company shall have) a combined capital and
surplus of at least $50,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or
examining authority, then for the purposes of this Section 8.9, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.9, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VIII.
Section 8.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of
such resignation to the Company and to the Holders of Debentures. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor Trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed and have accepted appointment within 60
days after the mailing of such notice of resignation to the Holders, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee, or any Debentureholder who has been a bona
fide Holder of a Debenture or Debentures for at least six months may, subject to
the provisions of Section 7.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
54
(1) the Trustee shall fail to comply with Section 8.8 after written
request therefor by the Company or by any Debentureholder who has been a bona
fide Holder of a Debenture or Debentures for at least six (6) months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.9 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor Trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee, or, subject to the
provisions of Section 7.9, any Debentureholder who has been a bona fide Holder
of a Debenture or Debentures for at least six (6) months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may at any time remove the Trustee and
nominate a successor Trustee which shall be deemed appointed as successor
Trustee unless within ten (10) days after notice to the Company of such
nomination, the Company objects thereto, in which case the Trustee so removed or
any Debentureholder, upon the terms and conditions and otherwise as in Section
8.10(a) provided, may petition any court of competent jurisdiction for an
appointment of a successor Trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 8.11.
Section 8.11. Acceptance by Successor Trustee.
Any successor Trustee appointed as provided in Section 8.10 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as Trustee herein but, nevertheless, on
the written request of the Company or of its successor Trustee, the Trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.6, execute and deliver an instrument transferring to
such successor Trustee all the rights and powers of the Trustee so ceasing to
act. Upon request of any such successor Trustee, the Company shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor Trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a lien upon all property and funds
held or collected by such Trustee as such,
55
except for funds held in trust for the benefit of Holders of particular
Debentures, to secure any amounts then due it pursuant to the provisions of
Section 8.6.
No successor Trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance, such successor Trustee shall be
qualified under the provisions of Section 8.8 and be eligible under the
provisions of Section 8.9.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.11, the Company (or the former Trustee, at the written direction of
the Company) shall mail or cause to be mailed notice of the succession of such
Trustee hereunder the Holders of Debentures at their addresses as they shall
appear on the Debenture register. If the Company fails to mail such notice
within ten (10) days after acceptance of appointment by the successor Trustee,
the successor Trustee shall cause such notice to be mailed at the expense of the
Company.
Section 8.12. Succession by Merger, Etc.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including any trust created by this Indenture), shall
be the successor to the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that
in the case of any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, such corporation shall be qualified
under the provisions of Section 8.8 and eligible under the provisions of Section
8.9.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Debentures shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee or authenticating agent
appointed by such predecessor Trustee, and deliver such Debentures so
authenticated and in case at that time any of the Debentures shall not have been
authenticated, any successor to the Trustee or an authenticating agent appointed
by such successor Trustee may authenticate such Debentures either in the name of
any predecessor Trustee hereunder or in the name of the successor Trustee and in
all such cases such certificates shall have the full force which it is anywhere
in the Debentures or in this Indenture provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 8.13. Limitation on Rights of Trustee as Creditor.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of the claims
against the Company (or any such other obligor).
ARTICLE IX
CONCERNING THE DEBENTUREHOLDERS
Section 9.1. Action by Holders.
When in this Indenture it is provided that the Holders of a specified
percentage in aggregate principal amount of the Debentures may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action, the Holders of such specified percentage have
56
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in Person or by agent or proxy
appointed in writing, or (b) by the record of the Holders of Debentures voting
in favor thereof at any meeting of Holders duly called and held in accordance
with the provisions of Article X, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Holders. Whenever the
Company or the Trustee solicits the taking of any action by the Holders, the
Company or the Trustee may fix in advance of such solicitation, a date as the
record date for determining Holders entitled to take such action. The record
date shall be not more than 15 days prior to the date of commencement of
solicitation of such action.
Section 9.2. Proof of Execution by Holders.
Subject to the provisions of Sections 8.1, 8.2 and 10.5, proof of the
execution of any instrument by a Debentureholder or his Agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. Evidence of the holding of Debentures shall be provided by the
registry of such Debentures or by a certificate of the Debenture Registrar.
The record of any Holders' meeting shall be proved in the manner provided
in Section 10.6.
Section 9.3. Who are Deemed Absolute Owners.
The Company, any other obligor on the Debentures, the Trustee, any
authenticating agent, any Paying Agent, any Conversion Agent and any Debenture
Registrar may deem the Person in whose name such Debenture shall be registered
upon the Debenture register to be, and may treat him as, the absolute owner of
such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the Principal Amount, Issue
Price, accrued Original Issue Discount, accrued Liquidated Damages, if any,
Redemption Price, Purchase Price, Change in Control Purchase Price, or interest,
if any, on any such Debenture, for conversion of such Debenture and for all
other purposes and none of the Company, the Trustee or any authenticating agent
nor any Debenture Registrar shall be affected by any notice to the contrary.
All such payments so made to any Holder for the time being, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for monies payable upon such Debenture.
Section 9.4. Company-Owned Debentures Disregarded.
In determining whether the Holders of the requisite aggregate principal
amount of Debentures have concurred in any direction, consent, waiver or other
action under this Indenture, Debentures which are owned by the Company or any
other obligor on the Debentures or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Debentures shall be disregarded and deemed
not to be outstanding for the purpose of any such determination, provided that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent, waiver or other action, only Debentures
which a Trust Officer knows are so owned shall be so disregarded. Debentures so
owned which have been pledged in good faith may be regarded as outstanding for
the purpose of this Section 9.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Debentures and that
the pledgee is not the
57
Company, any other obligor on the Debentures or an Affiliate of the Company or
any other obligor on the Debentures. In the case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Debentures, if any, known by the Company to be owned or held by or for the
account of any of the above-described Persons and, subject to Section 8.1, the
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Debentures not
listed therein are outstanding for the purpose of any determination under this
Section 9.4.
Section 9.5. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 9.1, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Debentures specified in this
Indenture in connection with such action, any Holder of a Debenture which is
shown by the evidence to be included in the Debentures the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
Corporate Trust Office and upon proof of holding as provided in Section 9.2,
revoke such action so far as it concerns such Debenture. Except as aforesaid,
any such action taken by the Holder of any Debenture shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such
Debenture and of any Debentures issued in exchange or substitution therefor,
irrespective of whether any notation in regard thereto is made upon such
Debenture or any Debenture issued in exchange or substitution therefor.
ARTICLE X
DEBENTUREHOLDERS' MEETINGS
Section 10.1. Purpose of Meetings.
A meeting of Holders may be called at any time and from time to time
pursuant to the provisions of this Article X for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give
any directions to the Trustee permitted under this Indenture, or to consent to
the waiving of any Default or Event of Default hereunder and its consequences,
or to take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article VII;
(b) to remove the Trustee and nominate a successor Trustee pursuant
to the provisions of Article VIII;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(d) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the Debentures
under any other provision of this Indenture or under applicable law.
Section 10.2. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders to take any action
specified in Section 10.1, to be held at such time and at such place at a
location within ten (10) miles of the Corporate Trust Office or in New York, New
York, as the Trustee shall determine. Notice of every meeting of the Holders,
setting forth the time and the place of such meeting and in general
58
terms the action proposed to be taken at such meeting and the establishment of
any record date pursuant to Section 9.1, shall be mailed to Holders of
Debentures at their addresses as they shall appear on the Debenture register.
Such notice shall also be mailed to the Company. Such notices shall be mailed
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Holders shall be valid without notice if the Holders of all
Debentures then outstanding are present in Person or by proxy or if notice is
waived before or after the meeting by the Holders of all Debentures outstanding,
and if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
Section 10.3. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a resolution of its Board of
Directors, or the Holders of at least ten percent in aggregate principal amount
of the Debentures then outstanding, shall have requested the Trustee to call a
meeting of Holders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Holders may determine the time and the place at any
location within 10 miles of the Corporate Trust Office or New York, New York for
such meeting and may call such meeting to take any action authorized in Section
10.1, by mailing notice thereof as provided in Section 10.2.
Section 10.4. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a
Holder of one or more Debentures on the record date pertaining to such meeting
or (b) be a Person appointed by an instrument in writing as proxy by such a
Holder of one or more Debentures. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 10.5. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders, in regard to proof of the holding of Debentures and of the appointment
of proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 10.3, in which case the Company or
the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Holders of a majority in Principal
Amount at the Final Maturity Date of the Debentures represented at the meeting
and entitled to vote at the meeting.
Subject to the provisions of Section 9.4, at any meeting each
Debentureholder or proxy Holder shall be entitled to one vote for each $1,000
principal amount of Debentures at the Final
59
Maturity Date then outstanding and held or represented by him, provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Debenture challenged as not outstanding and ruled by the chairman of the meeting
to be not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Debentures held by him or instruments in writing as
aforesaid duly designating him as the proxy vote on behalf of other Holders. Any
meeting of Holders duly called pursuant to the provisions of Section 10.2 or
10.3 may be adjourned from time to time by the Holders of a majority of the
aggregate principal amount of Debentures represented at the meeting, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 10.6. Voting.
The vote upon any resolution submitted to any meeting of Holders shall be
by written ballot on which shall be subscribed the signatures of the Holders of
Debentures or of their representative by proxy and the principal amount of the
Debentures held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 10.2. The record
shall show the principal amount of the Debentures voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 10.7. No Delay of Rights by Meeting.
Nothing in this Article X shall be deemed or construed to authorize or
permit, by reason of any call of a meeting of Holders or any rights expressly or
impliedly conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee or to
the Holders under any of the provisions of this Indenture or of the Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1. Supplemental Indentures Without Consent of Holders.
The Company, when authorized by resolutions of the Board of Directors
certified by its Secretary or an Assistant Secretary, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to make any change that does not adversely affect the right of
any Debentureholder ;
(b) subject to Article IV, to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Debentures, any property or assets;
60
(c) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
XII;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the Holders of Debentures, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth provided, however, that in
respect of any such additional covenants, restrictions or conditions such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(e) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture which shall not materially adversely affect the
interests of the Holders;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debentures; or
(g) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect comply with the Trust Indenture Act,
or under any similar federal statue hereafter enacted.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise. In signing or refusing to sign such supplemental
indenture, the Trustee shall be entitled to receive and, subject to Section 8.1,
shall be fully protected in relying upon, an Opinion of Counsel stating that
such supplemental indenture is authorized or permitted by this Indenture.
Every amendment to or supplement of this Indenture or the Debentures shall
comply with the Trust Indenture Act as then in effect.
Any supplemental indenture authorized by the provisions of this Section
11.1 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debentures at the time outstanding, notwithstanding any of
the provisions of Section 11.2.
Section 11.2. Supplemental Indentures with Consent of Holders.
With the consent (evidenced as provided in Article IX) of the Holders of
not less than a majority in aggregate principal amount of the Debentures at the
time outstanding determined in accordance with Section 9.4, the Company, when
authorized by the resolutions of the Board of Directors, and the Trustee may
from time to time and at any time enter into an indenture or
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indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or of modifying in any manner the rights of the
Holders, provided, however, that no such supplemental indenture shall (i) extend
the fixed maturity of any Debenture, reduce the Principal Amount at the Final
Maturity Date, Issue Price, Purchase Price, Change in Control Purchase Price,
Redemption Price or amount of cash paid in lieu of shares of Common Stock,
change the obligation of the Company to repurchase any Debenture upon the
occurrence of a Change in Control in a manner adverse to the Holder of
Debentures, impair the right of any Debentureholder to institute suit for the
payment thereof, change the currency in which the Debentures are payable, or
impair the right to convert the Debentures in any material respect, or modify
the provisions of this Indenture with respect to the subordination of the
Debentures in a manner adverse to the Holders in any material respect, without
the consent of the Holder of each Debenture so affected, or (ii) reduce the
aforesaid percentage of Debentures, the Holders of which are required to consent
to any such supplemental indentures, without the consent of the Holders of all
Debentures then outstanding.
Upon the request of the Company, accompanied by a copy of the resolutions
of the Board of Directors certified by its Secretary or an Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
11.2 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
Section 11.3. Effect of Supplemental Indenture.
Any supplemental indenture executed pursuant to the provisions of this
Article XI shall comply with the Trust Indenture Act, as then in effect,
provided that this Section 11.3 shall not require such supplemental indenture or
the Trustee to be qualified under the Trust Indenture Act prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to such supplemental
indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article XI, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Holders of Debentures shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 11.4. Notation on Debentures.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article XI may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental
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indenture may, at the Company's expense, be prepared and executed by the
Company, authenticated by the Trustee (or an authenticating agent duly appointed
by the Trustee pursuant to Section 16.11) and delivered in exchange for the
Debentures then outstanding, upon surrender of such Debentures then outstanding.
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Section 11.5. Evidence of Compliance of Supplemental Indenture to Be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 8.1 and 8.2, may require
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the
requirements of this Article XI.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1. Company May Consolidate Etc. on Certain Terms.
Subject to the provisions of Sections 3.9 and 12.2, nothing contained in
this Indenture or in any of the Debentures shall prevent any consolidation or
merger of the Company with or into any other corporation or corporations
(whether or not affiliated with the Company), or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance or lease (or successive sales,
conveyances or leases) of the property of the Company, substantially as an
entirety, to any other corporation (whether or not affiliated with the Company),
authorized to acquire and operate the same and which, in each case, shall be
organized under the laws of the United States of America, any state thereof or
the District of Columbia, provided, that upon any such consolidation, merger,
sale, conveyance or lease, if the Company is not the surviving entity, the due
and punctual payment of the Principal Amount at the Final Maturity Date, Issue
Price, Purchase Price, Change in Control Purchase Price, Redemption Price on all
of the Debentures, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation (if other than the Company) formed
by such consolidation, or into which the Company shall have been merged, or by
the corporation which shall have acquired or leased such property, and such
supplemental indenture shall provide for the applicable conversion rights set
forth in Section 15.12, provided, further, immediately after giving effect to
such transaction, no Default or Event of Default shall have occurred and be
continuing.
Section 12.2. Successor Corporation to Be Substituted.
In case of any such consolidation, merger, sale, conveyance or lease
referenced in Section 12.1 and upon the assumption by any successor corporation,
by supplemental indenture required by Section 12.1, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the Principal Amount at the Final Maturity Date, Issue Price,
Purchase Price, Change in Control Purchase Price, Redemption Price on any
Debenture and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as such. Such successor corporation
thereupon may cause to be signed and may issue either in its own name or in the
name of Whole Foods Market, Inc. any or all of the Debentures issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee and, upon the order of such successor corporation instead of the Company
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Debentures which previously shall have been
signed and
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delivered by the Officers of the Company to the Trustee for
authentication, and any Debentures which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Debentures so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debentures had
been issued at the date of the execution hereof. In the event of any such
consolidation, merger, sale or conveyance (but not in the event of any such
lease), the Person named as the "Company" in the first paragraph of this
Indenture or any successor which shall thereafter have become such in the manner
prescribed in this Article XII shall be released from its liabilities as obligor
and maker of the Debentures and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
Section 12.3. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to Sections 8.1 and 8.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Debentures theretofore authenticated (other than any Debentures which have been
destroyed, lost or stolen and in lieu of or in substitution for which other
Debentures shall have been authenticated and delivered) and not theretofore
canceled, or (b) all the Debentures not theretofore canceled or delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be canceled upon
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, monies sufficient to pay at the Final Maturity Date or upon
redemption all of the Debentures (other than any Debentures which shall have
been mutilated, destroyed, lost or stolen and in lieu of or in substitution for
which other Debentures shall have been authenticated and delivered) not
theretofore canceled or delivered to the Trustee for cancellation, including the
Principal Amount, including Original Issue Discount due or to become due to such
Final Maturity Date or Redemption Date, as the case may be, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect (except as to (i) remaining rights of registration of transfer,
substitution and exchange and conversion of Debentures, (ii) rights hereunder of
Holders to receive payments of the Principal Amount, including Original Issue
Discount due with respect to the Debentures and the other rights, duties and
obligations of Holders, as beneficiaries hereof with respect to the amounts, if
any, so deposited with the Trustee and (iii) the rights, obligations and
immunities of the Trustee hereunder), and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required by
Section 16.5 and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture; the
Company,
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however, hereby agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Debentures.
Section 13.2. Deposited Monies to Be Held in Trust by Trustee.
Subject to Section 13.4, all monies deposited with the Trustee pursuant to
Section 13.1 and not in violation of Article IV shall be held in trust for the
sole benefit of the Holders and shall not to be subject to the subordination
provisions of Article IV, and such monies shall be applied by the Trustee to the
payment, either directly or through any Paying Agent (including the Company if
acting as its own Paying Agent), to the Holders of the particular Debentures for
the payment or redemption of which such monies have been deposited with the
Trustee, of all sums due and to become due thereon for the Principal Amount,
including Original Issue Discount.
Section 13.3. Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture, all monies then held
by any Paying Agent for the Debentures (other than the Trustee) shall, upon
written request of the Company, be repaid to the Company or paid to the Trustee,
and thereupon such Paying Agent shall be released from all further liability
with respect to such monies.
Section 13.4. Return of Unclaimed Monies.
Subject to the requirements of applicable law, any monies deposited with or
paid to the Trustee for payment of the Principal Amount at the Final Maturity
Date, including Original Issue Discount on Debentures, and not applied but
remaining unclaimed by the Holders of Debentures for two years after the date
upon which the Principal Amount at the Final Maturity Date, including Original
Issue Discount on such Debentures, shall have become due and payable, shall be
repaid to the Company by the Trustee on demand and all liability of the Trustee
shall thereupon cease with respect to such monies, and the Holder of any of the
Debentures shall thereafter look only to the Company for any payment which such
Holder may be entitled to collect, except if an applicable abandoned property
law does not so permit.
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Section 13.5. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.2 by reason of any order or judgment of any court of
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Debentures
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 13.1 until such time as the Trustee or the Paying Agent is permitted to
apply all such money in accordance with Section 13.2, provided, however, that if
the Company makes any payment of Principal Amount or Original Issue Discount of
any Debenture following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Debentures to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.1. Indenture and Debentures Solely Corporate Obligations.
No recourse for the payment of the Principal Amount or any Original Issue
Discount on any Debenture, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture or
in any Debenture, or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent,
Officer, director or subsidiary, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise, it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Debentures.
ARTICLE XV
CONVERSION OF DEBENTURES
Section 15.1. Right to Convert.
A Holder of a Debenture may convert such Debenture for Common Stock at any
time during the period stated in paragraph 9 of the Debentures. The number of
shares of Common Stock issuable upon conversion of a Debenture per $1,000 of
Principal Amount at the Final Maturity Date (the "Conversion Rate") shall be
that set forth in paragraph 9 in the Debentures, subject to adjustment as herein
set forth.
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A Holder may convert a portion of the Principal Amount at the Final
Maturity Date of a Debenture if the portion is $1,000 or a multiple of $1,000.
Provisions of this Indenture that apply to conversion of all of a Debenture also
apply to conversion of a portion of a Debenture.
Section 15.2. Conversion Procedures.
To convert a Debenture a Holder must satisfy the requirements in paragraph
9 of the Debentures. The date on which the Holder of Debentures satisfies all
those requirements is the conversion date (the "Conversion Date"). As soon as
practicable, but in no event later than the seventh Business Day, after 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 15.3. 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 Debenture 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 Debenture shall have been surrendered for
conversion, as if the stock transfer books of the Company had not been closed.
Upon conversion of a Debenture, such Person shall no longer be a Holder of such
Debenture.
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 XV. On conversion of a Debenture, that portion of accrued Original
Issue Discount attributable to the period from the Issue Date of the Debenture
to the Conversion Date with respect to the converted Debenture shall not be
canceled, 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
Debenture being converted pursuant to the provisions hereof.
If a Holder converts more than one Debenture at the same time, the number
of shares of Common Stock issuable upon the conversion shall be based on the
total Principal Amount of the Debentures converted.
Upon surrender of a Debenture that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Debenture in an authorized denomination equal in Principal Amount to the
unconverted portion of the Debenture surrendered.
If the last day on which a Debenture may be converted is a Legal Holiday in
a place where a Conversion Agent is located, the Debenture may be surrendered to
that Conversion Agent on the next succeeding day that it is not a Legal Holiday.
Section 15.3. Cash Payments in Lieu of Fractional Shares.
The Company will not issue a fractional share of Common Stock upon
conversion of a Debenture. 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 1/10,000th of a share by
multiplying the last reported sale price (determined as set forth in the
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definition of Current Market Price) on the last Trading Day prior to the
Conversion Date of a full share by the fractional amount and rounding the
product to the nearest whole cent.
Section 15.4. Taxes on Conversion.
If a Holder converts a Debenture, 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. 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 any tax withholding required by
law or regulations.
Section 15.5. Company to Provide Stock.
The Company shall, prior to issuance of any Debentures hereunder, 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 Debentures.
All shares of Common Stock delivered upon conversion of the Debentures
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.
The Company will endeavor promptly to comply with all Federal and state
Securities laws regulating the order and delivery of shares of Common Stock upon
conversion of Debentures, if any, and will endeavor promptly, if permitted by
the rules of such exchange, over-the-counter market or other market, to 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 15.6. Adjustment of Conversion Rate.
The Conversion Rate shall be adjusted from time to time by the Company as
follows:
(a) In case the Company shall (i) pay a dividend, or make a distribution,
in shares of its Common Stock, on its Common Stock, (ii) subdivide its
outstanding Common Stock into a greater number of shares, or (iii) combine its
outstanding Common Stock into a smaller number of shares, the Conversion Rate in
effect immediately prior thereto shall be adjusted so that the holder of any
Debenture thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock of the Company which such holder would have
owned or have been entitled to receive after the happening of any of the events
described above had such Debenture been converted immediately prior to the
happening of such event. If any dividend or distribution of the type described
in clause (i) above is not so paid or made, the Conversion Rate shall again be
adjusted to the Conversion Rate which would then be in effect if such dividend
or distribution had not been declared. An adjustment made pursuant to this
Section 15.6(a) shall become effective immediately after the Record Date in the
case of a dividend and shall become effective immediately after the effective
date in the case of subdivision or combination.
(b) In case the Company shall issue rights or warrants to all holders of
its Common Stock entitling them (for a period expiring within 45 days after the
date fixed for determination of stockholders entitled to receive such rights or
warrants) to subscribe for or purchase Common
69
Stock at a price per share less than the Current Market Price per share of
Common Stock at the Record Date for the determination of stockholders entitled
to receive such rights or warrants, the Conversion Rate in effect immediately
prior thereto shall be adjusted so that the same shall equal the Conversion Rate
determined by multiplying the Conversion Rate in effect immediately prior to the
date of issuance of such rights or warrants by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of
Common Stock offered for subscription or purchase, and of which the denominator
shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered would purchase
at such Current Market Price. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately after the opening of business on the day following the Record Date
for the determination of the stockholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock are not delivered after the
expiration of such rights or warrants, the Conversion Rate shall be readjusted
to the Conversion Rate which would then be in effect had the adjustments made
upon the issuance of such rights or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered. If such rights
or warrants are not so issued, the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such Record Date for the
determination of stockholders entitled to receive such rights or warrants had
not been fixed. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock (excluding any distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary) any shares of any class of capital stock of the Company (other than
Common Stock) or evidences of its indebtedness or assets (other than cash) or
rights or warrants to subscribe for or purchase any of its Debentures (excluding
those referred to in Section 15.6(b) hereof) (any of the foregoing hereinafter
in this Section 15.6(c) called the "Distributed Securities"), then, the
Conversion Rate shall be adjusted so that the same shall equal the Conversion
Rate determined by multiplying the Conversion Rate in effect immediately prior
to the date of such distribution by a fraction of which the denominator shall be
the Current Market Price per share of the Common Stock on the Record Date
mentioned below, and the denominator shall be the Current Market Price per share
of the Common Stock on such Record Date less the fair market value on such
Record Date (as determined by the Board of Directors of the Company, whose
determination shall be conclusive, and described in a certificate filed with the
Trustee) of the Distributed Securities so distributed applicable to one share of
Common Stock. Such adjustment shall become effective immediately after the
Record Date for the determination of stockholders entitled to receive such
distribution. Notwithstanding the foregoing, in the event the then fair market
value (as so determined) of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price of the Common Stock on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so that each
Debentureholder shall have the right to receive upon conversion the amount of
Distributed Securities such Holder would have received had such Holder converted
each Debenture on such Record Date. In the event that such distribution is not
so paid or made, the Conversion Rate shall again be adjusted to the Conversion
Rate which would then be in effect if such distribution had not been declared.
If the Board of Directors determines the fair market value of any distribution
for purposes of this
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Section 15.6(c) by reference to the actual or when issued trading market for any
Debentures, it must in doing so consider the prices in such market over the same
period used in computing the Current Market Price of the Common Stock.
Notwithstanding the foregoing provisions of this Section 15.6(c), no
adjustment shall be made thereunder for any distribution of Distributed
Securities if the Company makes proper provision so that each Holder of a
Debenture who converts such Debenture (or any portion thereof) after the Record
Date for such distribution shall be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable upon such conversion, the amount
and kind of Distributed Securities that such Holder would have been entitled to
receive if such Holder had, immediately prior to such Record Date, converted
such Debenture for Common Stock; provided that, with respect to any Distributed
Securities that are convertible, exchangeable or exercisable, the foregoing
provision shall only apply to the extent (and so long as) the Distributed
Securities receivable upon conversion of such Debenture would be convertible,
exchangeable or exercisable, as applicable, without any loss of rights or
privileges for a period of at least 60 days following conversion of such
Debenture.
In the event the Company implements a stockholder rights plan, such rights
plan shall provide that upon conversion of the Debentures the Holders will
receive, in addition to the Common Stock issuable upon such conversion, the
rights issued under such rights plan (notwithstanding the occurrence of an event
causing such rights to separate from the Common Stock at or prior to the time of
conversion).
(d) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock cash (excluding any cash that is distributed upon a
merger or consolidation to which Section 15.12 applies or as part of a
distribution referred to in Section 15.6(c)) in an aggregate amount that,
combined together with (1) the aggregate amount of any other such distributions
to all holders of its Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution, and in respect of which no
adjustment pursuant to this Section 15.6(d) has been made, and (2) the aggregate
of any cash plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors) of consideration payable in respect of any tender offer by
the Company for all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of such distribution, and in respect of
which no adjustment pursuant to Section 15.6(e) has been made, exceeds 10% of
the product of the Current Market Price (determined as provided in Section
15.6(g)) on the Record Date with respect to such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date, the Conversion Rate shall
be increased so that the same shall equal the Conversion Rate determined by
multiplying the Conversion Rate in effect immediately prior to the record date
by a fraction of which the numerator shall be such Current Market Price of the
Common Stock and the denominator shall be the Current Market Price of the Common
Stock on the record date less the amount of cash so distributed (and not
excluded as provided above) applicable to one share of Common Stock, such
increase to be effective immediately prior to the opening of business on the day
following the record date and (y) the number of shares of Common Stock
outstanding on the Record Date and provided, however, that, if the portion of
the cash so distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on the Record Date, in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Debentureholder shall have the right to receive upon conversion the amount of
cash
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such Holder would have received had such Holder converted such Debenture
immediately prior to such Record Date. If such dividend or distribution is not
so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such dividend or distribution
had not been declared. If any adjustment is required to be made as set forth in
this Section 15.6(d) as a result of a distribution that is a quarterly dividend,
such adjustment shall be based upon the amount by which such distribution
exceeds the amount of the quarterly cash dividend permitted to be excluded
pursuant hereto. If an adjustment is required to be made as set forth in this
Section 15.6(d) above as a result of a distribution that is not a quarterly
dividend, such adjustment shall be based upon the full amount of the
distribution.
(e) In case a tender offer made by the Company or any of its subsidiaries
for all or any portion of the Common Stock expires and such tender offer (as
amended upon the expiration thereof) requires the payment to stockholders (based
on the acceptance (up to any maximum specified in the terms of the tender offer)
of Purchased Shares (as defined below)) of an aggregate consideration having a
fair market value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that, combined together with (1) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors), as of the
expiration of such tender offer, of consideration payable in respect of any
other tender offers, by the Company or any of its subsidiaries for all or any
portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to this Section 15.6(e) has been made, and (2) the aggregate amount of any
distributions to all holders of the Common Stock made exclusively in cash within
12 months preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to Section 15.6(d) has been made, exceeds 10% of the
product of the Current Market Price (determined as provided in Section 15.6(g))
as of the last time (the "Expiration Time") tenders could have been made
pursuant to such tender offer (as it may be amended) times the number of shares
of Common Stock outstanding (including any tendered shares) at the Expiration
Time, then, and in each such case, immediately prior to the opening of business
on the day after the date of the Expiration Time, the Conversion Rate shall be
increased so that the same shall equal the Conversion Rate determined by
multiplying the Conversion Rate in effect immediately prior to the Expiration
Time by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) on the
Expiration Time multiplied by the Current Market Price of the Common Stock on
the Trading Day next succeeding the Expiration Time and the denominator shall be
the sum of (x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to an maximum
specified in the terms of the tender or exchanged offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Common Stock outstanding
(less any Purchased Shares) on the Expiration Time and the Current Market Price
of the Common Stock on the Trading Day next succeeding the Expiration Time such
reduction (if any) to become effective immediately prior to the opening of
business on the day following the Expiration Time. If the Company is obligated
to purchase shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any such purchases or all
such purchases are rescinded, the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such tender offer had not
been made.
(f) In case of a tender or exchange offer by a Person other than the
Company or any Subsidiary for an amount which increases the offeror's ownership
of Common Stock to more
72
than 25% of the Common Stock outstanding and shall involve the payment by such
Person of consideration per share of Common Stock having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a resolution of the Board of Directors at the last time (the
"Tender Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended)) at the Tender
Expiration Time that exceeds the Current Market Price of the Common Stock on the
Trading Day next succeeding the Tender Expiration Time, and in which, as of the
Tender Expiration Time the Board of Directors is not recommending rejection of
the offer, the Conversion Rate shall be increased so that the same shall equal
the Conversion Rate determined by multiplying the Conversion Rate in effect
immediately prior to the Tender Expiration Time by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) on the Tender Expiration Time multiplied by
the Current Market Price of the Common Stock on the Trading Day next succeeding
the Tender Expiration Time and the denominator shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to an maximum specified in the terms of
the tender or exchanged offer) of all shares validly tendered or exchanged and
not withdrawn as of the Tender Expiration Time (the shares deemed so accepted,
up to any such maximum, being referred to as the "Tender Purchased Shares") and
(y) the product of the number of shares of Common Stock outstanding (less any
Tender Purchased Shares) on the Tender Expiration Time and the Current Market
Price of the Common Stock on the Trading Day next succeeding the Tender
Expiration Time, such reduction to become effective immediately prior to the
opening of business on the day following the Tender Expiration Time. In the
event that such Person is obligated to purchase shares pursuant to any such
tender or exchange offer, but such Person is permanently prevented by applicable
law from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjustment described in this Section 15.6(f)
shall not be made if as of the Tender Expiration Time, the offering documents
with respect to such offer disclose a plan or intention to cause the Company to
engage in any transaction described in Article XII.
(g) For purposes of this Section 15.6, the following terms shall have the
meaning indicated:
(1) "Closing Price" with respect to any securities on any day shall mean
the closing sale price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, in each case on the New York Stock Exchange, or, if such security
is not listed or admitted to trading on such Exchange, on the principal national
security exchange or quotation system on which such security is quoted or listed
or admitted to trading, or, if not quoted or listed or admitted to trading on
any national securities exchange or quotation system, the average of the closing
bid and asked prices of such security on the over-the-counter market on the day
in question as reported by the National Quotation Bureau Incorporated, or a
similar generally accepted reporting service, or if not so available, in such
manner as furnished by any New York Stock Exchange member firm selected from
time to time by the Board of Directors for that purpose, or a price determined
in good faith by the Board of Directors or, to the extent permitted by
applicable law, a duly authorized committee thereof, whose determination shall
be conclusive.
73
(2) "Current Market Price" shall mean the average of the daily Closing
Prices per share of Common Stock for the ten consecutive Trading Days
immediately prior to the date in question provided, however, that if the "ex -
dividend" trading for such rights, options warrants or distribution on the New
York Stock Exchange or such other national or regional exchange or market on
which the shares of Common Stock are then listed (or the effective date in the
case of any subdivision, combination, or reclassification) occurs during such
ten consecutive Trading Days, the "Current Market Price" shall be calculated for
such period in a manner determined in good faith by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Closing Price of the Common Stock during such period.
(3) "fair market value" shall mean the amount which a willing buyer would
pay a willing seller in an arm's length transaction.
(4) "Record Date" shall mean, with respect to any dividend, distribution or
other transaction or event in which the holders of Common Stock have the right
to receive any cash, securities or other property or in which the Common Stock
(or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable security is listed or
admitted for trading on the New York Stock Exchange, the NASDAQ Stock Market
(National Market) or another national security exchange, a day on which the New
York Stock Exchange, the NASDAQ Stock Market (National Market) or another
national security exchange is open for business or (y) if the applicable
security is quoted on the NASDAQ National Market, a day on which trades may be
made thereon or (z) if the applicable security is not so listed, admitted for
trading or quoted, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law
or executive order to close.
(i) For purposes of this Section 15.6, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
Section 15.7. 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 then
in effect. Any adjustments that are made shall be carried forward and taken
into account any subsequent adjustment.
All calculations under this Article XV shall be made to the nearest cent or
to the nearest 1/10,000th of a share, as the case may be.
Section 15.8. When No Adjustment Required.
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.
74
To the extent the Debentures become convertible into cash, assets, property
or Debentures (other than capital stock of the Company), no adjustment need be
made thereafter as to the cash, assets, property or such Debentures. Interest
will not accrue on the cash.
Section 15.9 Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly mail
to Holders a notice of the adjustment. The Company shall file with the Trustee
and the Conversion Agent such notice. The certificate shall, absent manifest
error, 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 15.10. Voluntary Increase.
The Company may make such increases in the Conversion Rate, in addition to
those required by Sections 15.6, as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of Common Stock or
rights to purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such for income
tax purposes. To the extent permitted by applicable law, the Company may from
time to time increase the Conversion Rate by any amount for any period of time
if the period is at least 20 days, the increase is irrevocable during the period
and the Board of Directors shall have made a determination that such increase
would be in the best interests of the Company, which determination shall be
conclusive. Whenever the Conversion Rate is so increased, the Company shall
mail to Holders and file with the Trustee and the Conversion Agent a notice of
such increase. 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. Such 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.
Section 15.11. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an adjustment in the
Conversion Rate pursuant to Section 15.6; or
(b) the Company shall authorize the granting to all or
substantially all the Holders of its Common Stock of rights or warrants to
subscribe for or purchase any share of any class or any other rights or
warrants; or
(c) of any reclassification or reorganization of the Common
Stock of the Company (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par value, or
from no par value to par value), or of any consolidation or merger to which the
Company is a party and for which approval of any shareholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
75
the Company shall cause to be filed with the Trustee and to be mailed to
each Holder of Debentures at his address appearing on the Debenture register
provided for in Section 2.5 of this Indenture, as promptly as possible but in
any event at least 15 days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, or rights or warrants are to be determined, or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up is expected to become effective
or occur, and the date as of which it is expected that Holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property deliver-able upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding-up. Failure to give such
notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
Section 15.12. Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or
change of outstanding shares of Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation, merger or
combination of the Company with another corporation as a result of which holders
of Common Stock shall be entitled to receive stock, Debentures or other property
or assets (including cash) with respect to or in exchange for such Common Stock,
or (iii) any sale or conveyance of the properties and assets of the Company as,
or substantially as, an entirety to any other corporation as a result of which
holders of Common Stock shall be entitled to receive stock, Debentures or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, then the Company or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental indenture,
providing that each Debenture shall be convertible into the kind and amount of
shares of stock and other Debentures or property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Debentures immediately prior to such
reclassification, change, consolidation, merger, combination, sale or
conveyance. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder of Debentures, at his address appearing on
the Debenture register provided for in Section 2.5 of this Indenture, within 20
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.
If this Section 15.12 applies to any event or occurrence, Section 15.6
shall not apply.
Section 15.13. Responsibility of Trustee.
The Trustee and any other Conversion Agent shall not at any time be under
any duty or responsibility to any Holder of Debentures to either calculate the
Conversion Rate or determine whether any facts exist which may require any
adjustment of the Conversion Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
76
making the same and shall be protected in relying upon an Officer's Certificate
with respect to the same. The Trustee and any other Conversion Agent shall not
be accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Debenture and the Trustee
and any other Conversion Agent make no representations with respect thereto.
Subject to the provisions of Section 8.1, neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Debenture for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 15.12 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Debentures after any event
referred to in such Section 15.12 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Section 8.1, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officer's Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
Section 15.13. Simultaneous Adjustments.
In the event that this Article XV requires adjustments to the Conversion
Rate under more than one of Sections 15.6(a), (b), (c) or (d), 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 15.6(c), second, the provisions of Section 15.6(d), third,
the provisions of Section 15.6(a), and fourth, the provisions of 15.6(b).
Section 15.14. Successive Adjustments.
After an adjustment to the Conversion Rate under this Article XV, any
subsequent event requiring an adjustment under this Article XV shall cause an
adjustment to the Conversion Rate as so adjusted.
Section 15.15. General Considerations.
Whenever successive adjustments to the Conversion Rate are called for
pursuant to this Article XV, such adjustments shall be made to the Current
Market Price as may be necessary or appropriate to effectuate the intent of this
Article XV and to avoid unjust or inequitable results as determined in good
faith by the Board of Directors.
77
ARTICLE XVI
MISCELLANEOUS PROVISIONS
Section 16.1. Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements by the Company
contained in this Indenture shall bind its successors and assigns whether so
expressed or not.
Section 16.2. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or Officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or Officer of any corporation that shall at the time be
the lawful sole successor of the Company.
Section 16.3. Addresses for Notices, Etc.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Trustee or by the Holders of
Debentures on the Company shall be deemed to have been sufficiently given or
made, for all purposes, if given or served by being deposited postage prepaid by
registered or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee) to Whole Foods Market,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ # ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Vice President and Chief Financial Officer. Any notice, direction,
request or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed to the Corporate Trust Office, which office is, at the date
as of which this Indenture is dated, located at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust Services.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Debentureholder shall be mailed to
him by first class mail, postage prepaid, at his address as it appears on the
Debenture register and shall be sufficiently given to him if so mailed within
the time prescribed.
Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 16.4. Governing Law.
This Indenture and each Debenture shall be deemed to be a contract made
under the laws of the State of Texas and for all purposes shall be construed in
accordance with the laws of the State of Texas.
Section 16.5. Evidence of Compliance with Conditions Precedent
Certificates to Trustee.
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to
78
the proposed action have been complied with, and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.
Each certificate or Opinion of Counsel provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is
based, (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 16.6. Legal Holidays.
In any case where the Final Maturity Date of the Debentures or the date (a
"Legal Holiday") fixed for redemption or repurchase of any Debenture will not be
a Business Day, then payment of such interest on or principal of the Debentures
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Final Maturity Date or the
date fixed for redemption or repurchase, and no interest or Original Issue
Discount shall accrue for the period from and after such date.
Section 16.7. Trust Indenture Act.
This Indenture is hereby made subject to, and shall be governed by, the
provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act provided, however, that,
unless otherwise required by law, notwithstanding the foregoing, this Indenture
and the Debentures issued hereunder shall not be subject to the provisions of
subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the Trust Indenture Act
as now in effect or as hereafter amended or modified provided, further, that
this Section 16.7 shall not require this Indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to this Indenture that
any such qualification is required prior to the time such qualification is in
fact required under the terms of the Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in an indenture qualified under the Trust Indenture Act,
such required provision shall control.
79
Section 16.8. No Security Interest Created.
Nothing in this Indenture or in the Debentures, expressed or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction where property of the Company or its subsidiaries is located.
Section 16.9. Benefits of Indenture.
Nothing in this Indenture or in the Debentures, expressed or implied, shall
give to any Person, other than the parties hereto, any Paying Agent, any
authenticating agent, any Custodian, any Conversion Agent, any Debenture
Registrar and their successors hereunder, the Holders of Debentures and the
Holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 16.10. Table of Contents, Headings, Etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 16.11. Authenticating Agent.
The Trustee may appoint an authenticating agent which shall be authorized
to act on its behalf and subject to its direction in the authentication and
delivery of Debentures in connection with the original issuance thereof and
transfers and exchanges of Debentures hereunder, including under Sections 2.4,
2.5, 2.6, 2.7, 3.3, and 15.2, as fully to all intents and purposes as though the
authenticating agent had been expressly authorized by this Indenture and those
Sections to authenticate and deliver Debentures. For all purposes of this
Indenture, the authentication and delivery of Debentures by the authenticating
agent shall be deemed to be authentication and delivery of such Debentures "by
the Trustee" and a certificate of authentication executed on behalf of the
Trustee by an authenticating agent shall be deemed to satisfy any requirement
hereunder or in the Debentures for the Trustee's certificate of authentication.
Such authenticating agent shall at all times be a Person eligible to serve as
Trustee hereunder pursuant to Section 8.9.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 16.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any authenticating agent shall cease to be eligible under this Section, the
Trustee shall either promptly appoint a successor authenticating agent or itself
assume the duties and obligations of the former authenticating agent under this
Indenture, and upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a
80
successor authenticating agent to all Holders of Debentures as the names and
addresses of such Holders appear on the Debenture register.
The Trustee agrees to pay to the authenticating agent from time to time
reasonable compensation for its services (to the extent pre-approved by the
Company in writing), and the Trustee shall be entitled to be reimbursed for such
pre-approved payments, subject to Section 8.6.
The provisions of Sections 8.1, 8.2, 8.3, 8.4, 8.7, 9.3 and this Section
16.11 shall be applicable to any authenticating agent.
Section 16.12. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
shall be an original, but such countervails shall together constitute but one
and the same instrument.
81
Chase Bank of Texas, National Association hereby accepts the trusts in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed, all as of the date first written above.
Attest: WHOLE FOODS MARKET, INC.
/s/ Authorized Officer By: /s/ Authorized Officer
-------------------------------- ----------------------------
Attest: CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, AS TRUSTEE
/s/ Authorized Officer By: /s/ Authorized Officer
--------------------------------- -----------------------------
82
EXHIBIT A
A-83
TABLE OF CONTENTS
Page
Number
------
ARTICLE I DEFINITIONS i
-
Section 1.1. Definitions. i
-
Section 1.2. Other Definitions. i
-
Section 1.3. Rules of Construction. i
-
ARTICLE II THE DEBENTURES i
-
Section 2.1. Designation, Amount and Issue of Debentures. i
-
Section 2.2. Form of Debentures. i
-
Section 2.3. Date and Denomination of Debentures. i
-
Section 2.4. Execution of Debentures. i
-
Section 2.5. Debenture Registrar, Paying Agent and Conversion Agent. i
-
Section 2.6. Paying Agent to Hold Money in Trust. i
-
Section 2.7. Debentureholder Lists. i
-
Section 2.8. Exchange and Registration of Transfer of Debentures; Restrictions
on Transfer; Depositary. i
-
Section 2.9. Mutilated, Destroyed, Lost or Stolen Debentures. i
-
Section 2.10. Treasury Debentures. i
-
Section 2.11. Temporary Debentures. i
-
Section 2.12. Cancellation. i
-
Section 2.13. Persons Deemed Owners. i
-
i
ARTICLE III REDEMPTION OF DEBENTURES ii
--
Section 3.1. Right to Redeem; Notice to Trustee. ii
--
Section 3.2. Selection of Debentures to Be Redeemed. ii
--
Section 3.3. Notice of Redemption. ii
--
Section 3.4. Effect of Notice of Redemption. ii
--
Section 3.5. Deposit of Redemption Price. ii
--
Section 3.6. Debentures Redeemed in Part. ii
--
Section 3.7. Conversion Arrangement on Call for Redemption. ii
--
Section 3.8. Purchase of Debentures at Option of the Holder. ii
--
Section 3.9. Repurchase at Option of the Holder Upon a Change in Control. ii
--
Section 3.10. Effect of Purchase Notice or Change in Control Purchase Notice. ii
--
Section 3.11. Deposit of Purchase Price or Change in Control Purchase Price ii
--
Section 3.12. Debentures Purchased in Part ii
--
Section 3.13. Covenant to Comply with Securities Laws Upon Purchase of
Debentures. ii
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Section 3.14. Repayment to the Company. ii
--
ARTICLE IV SUBORDINATION OF DEBENTURES ii
--
Section 4.1. Debentures Subordinated to Senior Indebtedness. ii
--
Section 4.2. Payments to Holders. ii
--
Section 4.3. Debentures to Be Subrogated to Rights of Holders of Senior
Indebtedness. ii
--
Section 4.4. Obligations of the Company Unconditional. ii
--
Section 4.5. Notice to Trustee. ii
--
Section 4.6. Application by Trustee of Monies Deposited With It. ii
--
Section 4.7. Subordination Rights Not Impaired by Acts or Omissions of Company
or holders of Senior Indebtedness. ii
--
Section 4.8. Trustee to Effectuate Subordination. ii
--
Section 4.9. Right of Trustee to Hold Senior Indebtedness. ii
--
Section 4.10. Article IV Not to Prevent Events of Default. ii
--
ii
Section 4.11. No Fiduciary Duty Created to Holders of Senior Indebtedness. iii
---
Section 4.12. Article Applicable to Paying Agent. iii
---
Section 4.13. Treatment of Conversion Payments iii
---
Section 4.14. Reliance on Judicial Order or Certificate of Liquidating Agent iii
---
ARTICLE V COVENANTS iii
---
Section 5.1. Payment of Debentures. iii
---
Section 5.2. SEC Reports. iii
---
Section 5.3. Maintenance of Office or Agency. iii
---
Section 5.4. Waiver of Stay, Extension or Usury Laws. iii
---
Section 5.5. Liquidation. iii
---
Section 5.6. Compliance Certificates. iii
---
Section 5.7. Notice of Defaults. iii
---
Section 5.8. Payment of Taxes and Other Claims. iii
---
Section 5.9. Corporate Existence. iii
---
Section 5.10. Maintenance of Properties. iii
---
Section 5.11. Further Instruments and Acts. iii
---
ARTICLE VI DEBENTUREHOLDERS' LISTS AND REPORTS BY THE TRUSTEE iii
---
Section 6.1. Holders' Lists. iii
---
Section 6.2. Preservation and Disclosure of Lists. iii
---
Section 6.3. Reports by Trustee. iii
---
ARTICLE VII REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON AN EVENT OF
DEFAULT iii
---
Section 7.1. Events of Default. iii
---
Section 7.2. Collection Suit by Trustee; Trustee May File Proofs of Claim. iii
---
Section 7.3. Application of Monies Collected by Trustee. iii
---
iii
Section 7.4. Proceedings by Holders. iv
--
Section 7.5. Proceedings by Trustee. iv
--
Section 7.6. Remedies Cumulative and Continuing. iv
--
Section 7.7. Control by Majority of Holders. iv
--
Section 7.8. Notice of Defaults. iv
--
Section 7.9. Undertaking to Pay Costs. iv
--
ARTICLE VIII CONCERNING THE TRUSTEE iv
--
Section 8.1. Duties and Responsibilities of Trustee. iv
--
Section 8.2. Reliance on Documents, Opinions, Etc. iv
--
Section 8.3. No Responsibility for Recitals, Etc. iv
--
Section 8.4. Trustee, Paying Agents, Conversion Agents or Debenture Registrar
May Own Debentures. iv
--
Section 8.5. Monies to Be Held in Trust. iv
--
Section 8.6. Compensation and Indemnity of Trustee. iv
--
Section 8.7. Officers' Certificate as Evidence. iv
--
Section 8.8. Conflicting Interests of Trustee. iv
--
Section 8.9. Eligibility of Trustee. iv
--
Section 8.10. Resignation or Removal of Trustee. iv
--
Section 8.11. Acceptance by Successor Trustee. iv
--
Section 8.12. Succession by Merger, Etc. iv
--
Section 8.13. Limitation on Rights of Trustee as Creditor. iv
--
ARTICLE IX CONCERNING THE DEBENTUREHOLDERS iv
--
Section 9.1. Action by Holders. iv
--
Section 9.2. Proof of Execution by Holders. iv
--
Section 9.3. Who are Deemed Absolute Owners. iv
--
Section 9.4. Company-Owned Debentures Disregarded. iv
--
Section 9.5. Revocation of Consents; Future Holders Bound. iv
--
iv
ARTICLE X DEBENTUREHOLDERS' MEETINGS v
-
Section 10.1. Purpose of Meetings. v
-
Section 10.2. Call of Meetings by Trustee. v
-
Section 10.3. Call of Meetings by Company or Holders. v
-
Section 10.4. Qualifications for Voting. v
-
Section 10.5. Regulations. v
-
Section 10.6. Voting. v
-
Section 10.7. No Delay of Rights by Meeting. v
-
ARTICLE XI SUPPLEMENTAL INDENTURES v
-
Section 11.1. Supplemental Indentures Without Consent of Holders. v
-
Section 11.2. Supplemental Indentures with Consent of Holders. v
-
Section 11.3. Effect of Supplemental Indenture. v
-
Section 11.4. Notation on Debentures. v
-
Section 11.5. Evidence of Compliance of Supplemental Indenture to Be Furnished
Trustee. v
-
ARTICLE XII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE v
-
Section 12.1. Company May Consolidate Etc. on Certain Terms. v
-
Section 12.2. Successor Corporation to Be Substituted. v
-
Section 12.3. Opinion of Counsel to Be Given Trustee. v
-
ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE v
-
Section 13.1. Discharge of Indenture. v
-
Section 13.2. Deposited Monies to Be Held in Trust by Trustee. v
-
Section 13.3. Paying Agent to Repay Monies Held. v
-
Section 13.4. Return of Unclaimed Monies. v
-
Section 13.5. Reinstatement. v
-
v
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS vi
--
Section 14.1. Indenture and Debentures Solely Corporate Obligations. vi
--
ARTICLE XV CONVERSION OF DEBENTURES vi
--
Section 15.1. Right to Convert. vi
--
Section 15.2. Conversion Procedures. vi
--
Section 15.3. Cash Payments in Lieu of Fractional Shares. vi
--
Section 15.4. Taxes on Conversion. vi
--
Section 15.5. Company to Provide Stock. vi
--
Section 15.6. Adjustment of Conversion Rate. vi
--
Section 15.7. When Adjustment May be Deferred. vi
--
Section 15.8. When No Adjustment Required. vi
--
Section 15.9 Notice of Adjustment vi
--
Section 15.10. Voluntary Increase vi
--
Section 15.11. Notice to Holders Prior to Certain Actions. vi
--
Section 15.12. Effect of Reclassification, Consolidation, Merger or Sale. vi
--
Section 15.13. Responsibility of Trustee. vi
--
Section 15.13. Simultaneous Adjustments. vi
--
Section 15.14. Successive Adjustments vi
--
Section 15.15. General Considerations. vi
--
ARTICLE XVI MISCELLANEOUS PROVISIONS vi
--
Section 16.1. Provisions Binding on Company's Successors. vi
--
Section 16.2. Official Acts by Successor Corporation. vi
--
Section 16.3. Addresses for Notices, Etc. vi
--
Section 16.4. Governing Law. vi
--
Section 16.5. Evidence of Compliance with Conditions Precedent Certificates to
Trustee. vi
--
vi
Section 16.6. Legal Holidays. vii
---
Section 16.7. Trust Indenture Act. vii
---
Section 16.8. No Security Interest Created. vii
---
Section 16.9. Benefits of Indenture. vii
---
Section 16.10. Table of Contents, Headings, Etc. vii
---
Section 16.11. Authenticating Agent. vii
---
Section 16.12. Execution in Counterparts. vii
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vii