EXHIBIT 4.2
GENERAL ▇▇▇▇▇, INC.
Zero Coupon Convertible Senior Debentures Due 2022
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INDENTURE
Dated as of October 28, 2002
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BNY MIDWEST TRUST COMPANY
TRUSTEE
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions......................................................................1
Section 1.02. Other Definitions................................................................5
Section 1.03. Incorporation By Reference Of Trust Indenture Act................................7
Section 1.04. Rules Of Construction............................................................7
Section 1.05. Acts Of Holders..................................................................8
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating..................................................................9
Section 2.02. Execution And Authentication....................................................10
Section 2.03. Registrar, Paying Agent, Conversion Agent And Calculation Agent.................11
Section 2.04. Paying Agent To Hold Money And Securities In Trust..............................11
Section 2.05. Securityholder Lists............................................................12
Section 2.06. Transfer And Exchange...........................................................12
Section 2.07. Replacement Securities..........................................................13
Section 2.08. Outstanding Securities; Determinations Of Holders' Action.......................14
Section 2.09. Temporary Securities............................................................15
Section 2.10. Cancellation....................................................................15
Section 2.11. Persons Deemed Owners...........................................................16
Section 2.12. Global Securities...............................................................16
Section 2.13. CUSIP Numbers...................................................................21
Section 2.14. Ranking.........................................................................21
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.01. Company's Right To Redeem; Notices To Trustee...................................22
Section 3.02. Selection Of Securities To Be Redeemed..........................................23
Section 3.03. Notice Of Redemption............................................................24
Section 3.04. Effect Of Notice Of Redemption..................................................25
Section 3.05. Deposit Of Redemption Price.....................................................25
Section 3.06. Securities Redeemed In Part.....................................................25
Section 3.07. Purchase Of Securities By The Company At Option Of The Holder...................25
Section 3.08. Purchase Of Securities At Option Of The Holder Upon Change Of Control...........27
Section 3.09. Company's Right To Elect Manner Of Payment Of Purchase Price And Change Of
Control Purchase Price For Payment..............................................32
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Section 3.10. Covenants of the Company........................................................37
Section 3.11. Taxes...........................................................................37
Section 3.12. Effect Of Purchase Notice Or Change Of Control Purchase Notice..................37
Section 3.13. Deposit Of Purchase Price Or Change Of Control Purchase Price...................39
Section 3.14. Securities Purchased In Part....................................................39
Section 3.15. Covenant To Comply With Securities Laws Upon Purchase Of Securities.............39
Section 3.16. Repayment To The Company........................................................40
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities...........................................................40
Section 4.02. SEC And Other Reports...........................................................41
Section 4.03. Compliance Certificate..........................................................41
Section 4.04. Further Instruments And Acts....................................................41
Section 4.05. Maintenance Of Office Or Agency.................................................41
Section 4.06. Delivery Of Certain Information.................................................42
Section 4.07. Liquidated Damages Notice.......................................................42
ARTICLE 5
SUCCESSOR PERSON
Section 5.01. When Company May Merge Or Transfer Assets.......................................43
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events Of Default...............................................................44
Section 6.02. Acceleration....................................................................46
Section 6.03. Other Remedies..................................................................47
Section 6.04. Waiver Of Past Defaults.........................................................47
Section 6.05. Control By Majority.............................................................48
Section 6.06. Limitation On Suits.............................................................48
Section 6.07. Rights Of Holders To Receive Payment............................................48
Section 6.08. Collection Suit By Trustee......................................................49
Section 6.09. Trustee May File Proofs Of Claim................................................49
Section 6.10. Priorities......................................................................50
Section 6.11. Undertaking For Costs...........................................................50
Section 6.12. Waiver Of Stay, Extension Or Usury Laws.........................................50
ARTICLE 7
TRUSTEE
Section 7.01. Duties Of Trustee...............................................................51
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Section 7.02. Rights Of Trustee...............................................................52
Section 7.03. Individual Rights Of Trustee....................................................54
Section 7.04. Trustee's Disclaimer............................................................54
Section 7.05. Notice Of Defaults..............................................................54
Section 7.06. Reports By Trustee To Holders...................................................54
Section 7.07. Compensation And Indemnity......................................................55
Section 7.08. Replacement Of Trustee..........................................................55
Section 7.09. Successor Trustee By Merger.....................................................56
Section 7.10. Eligibility; Disqualification...................................................56
Section 7.11. Preferential Collection Of Claims Against Company...............................56
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge Of Liability On Securities............................................57
Section 8.02. Repayment To The Company........................................................57
ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent Of Holders......................................................57
Section 9.02. With Consent Of Holders.........................................................58
Section 9.03. Compliance With Trust Indenture Act.............................................60
Section 9.04. Revocation And Effect Of Consents, Waivers And Actions..........................60
Section 9.05. Notation On Or Exchange Of Securities...........................................60
Section 9.06. Trustee To Sign Supplemental Indentures.........................................60
Section 9.07. Effect Of Supplemental Indentures...............................................61
ARTICLE 10
CONVERSIONS
Section 10.01. Conversion Privilege...........................................................61
Section 10.02. Conversion Procedure; Conversion Price; Fractional Shares......................63
Section 10.03. Adjustment of Conversion Rate..................................................65
Section 10.04. Effect of Reclassification, Consolidation, Merger or Sale......................75
Section 10.05. Taxes on Shares Issued.........................................................76
Section 10.06. Payment of Cash in Lieu of Common Stock........................................76
Section 10.07. Reservation of Shares, Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock.............................77
Section 10.08. Responsibility of Trustee......................................................78
Section 10.09. Notice To Holders Prior To Certain Actions.....................................79
Section 10.10. Rights Issued in Respect of Common Stock Issued upon Conversion................80
Section 10.11. Unconditional Right Of Holders To Convert......................................81
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ARTICLE 11
CONTINGENT CASH INTEREST
Section 11.01. Contingent Cash Interest.......................................................81
Section 11.02. Payment of Contingent Cash Interest............................................82
Section 11.03. Contingent Cash Interest Notification..........................................82
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls...................................................83
Section 12.02. Tax Treatment..................................................................83
Section 12.03. Notices........................................................................83
Section 12.04. Communication By Holders With Other Holders....................................84
Section 12.05. Certificate And Opinion As To Conditions Precedent.............................84
Section 12.06. Statements Required In Certificate Or Opinion..................................84
Section 12.07. Separability Clause............................................................85
Section 12.08. Rules By Trustee, Paying Agent, conversion Agent and Registrar.................85
Section 12.09. Legal Holidays.................................................................85
Section 12.10. GOVERNING LAW..................................................................85
Section 12.11. No Recourse Against Others.....................................................85
Section 12.12. Successors.....................................................................86
Section 12.13. Multiple Originals.............................................................86
EXHIBIT A Form of Global Security
EXHIBIT B Form of Certificated Security
EXHIBIT C Transfer Certificate
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INDENTURE dated as of October 28, 2002 between GENERAL ▇▇▇▇▇, INC., a
Delaware corporation ("COMPANY"), and BNY MIDWEST TRUST COMPANY, an Illinois
trust company ("TRUSTEE").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's Zero Coupon
Convertible Senior Debentures Due 2022:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A GLOBAL SECURITY" means a permanent Global Security in the form of
the Security attached hereto as Exhibit A, and that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A under the Securities Act.
"ACCRETED CONVERSION PRICE" as of any day means, per $1,000 principal
amount at maturity of the Securities, the sum of the Issue Price plus Accrued
Original Issue Discount to the date of determination, with such sum divided by
the Conversion Rate.
"ACCRETED VALUE" means, for any Security at any time of determination,
the Issue Price plus Accrued Original Issue Discount.
"ACCRUED ORIGINAL ISSUE DISCOUNT" of any Security represents the
accrued portion of Original Issue Discount.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or any duly authorized committee of such board.
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"BOARD RESOLUTION" means a resolution of the Board of Directors.
"BUSINESS DAY" means, with respect to any Security, a day that in the
City of
New York, is not a day on which banking institutions are authorized by
law or regulation to close.
"CALCULATION AGENT" means initially BNY Midwest Trust Company and its
successors and assigns.
"CAPITAL STOCK" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"CERTIFICATED SECURITIES" means Securities that are in the form of the
Securities attached hereto as Exhibit B.
"COMMON STOCK" means the Common Stock, $.10 par value per share, of the
Company existing on the date of this
Indenture or any other shares of Capital
Stock of the Company into which such Common Stock shall be reclassified or
changed.
"COMPANY" means the party named as the "Company" in the first Section
of this
Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any two Officers.
"CONTINGENT CASH INTEREST" means such cash interest payable as
described in Article 11.
"CONVERSION PRICE" as of any date means $1,000 divided by the
Conversion Rate as of such date.
"CONVERSION RATE" has the meaning set forth in Section 10.02(a) hereof.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at BNY Midwest Trust Company, ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other address as the
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"DEFAULT" means an Event of Default.
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"GLOBAL SECURITIES" means Securities that are in the form of the
Securities attached hereto as Exhibit A, and that are registered in the register
of Securities in the name of a Depositary or a nominee thereof, and to the
extent that such Securities are required to bear the Legend required by Section
2.06, such Securities will be in the form of a 144A Global Security.
"HOLDER" or "SECURITYHOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"ISSUE DATE" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"ISSUE PRICE" of any Security means, in connection with the original
issuance of the Security, the initial issue price per $1,000 principal amount at
maturity at which such Security is sold, as set forth on the face of the
Security.
"LIQUIDATED DAMAGES" means the interest that is payable by the Company
pursuant to the Registration Rights Agreement upon a Registration Default (as
defined in such agreement).
"MEASUREMENT PERIOD" means the six-month period from October 28 to
April 27 or from April 28 to October 27.
"NYSE" means The
New York Stock Exchange, Inc.
"OFFICER" means the Chairman of the Board, the Vice Chairman, the Chief
Executive Officer, the President, any Vice President, or the Secretary or any
Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in Sections 12.05 and 12.06, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be signed by an authorized
financial or accounting Officer of the Company but need not contain the
information specified in Sections 12.05 and 12.06.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in Sections 12.05 and 12.06, from legal counsel. The counsel may be an
employee of, or counsel to, the Company.
"ORIGINAL ISSUE DISCOUNT" of any Security means the amount that accrues
in respect of such Security daily at a rate of 2.00% per year on the Accreted
Value of such Security, beginning on the Issue Date. Original Issue Discount
will be
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calculated on a semi-annual bond equivalent basis, using a 360-day year
comprised of twelve 30-day months.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"PRINCIPAL AMOUNT AT MATURITY" or "PRINCIPAL AMOUNT AT MATURITY" of a
Security means the principal amount at maturity as set forth on the face of the
Security.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of October
23, 2002 among the Company and Banc of America Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated, as representatives of the initial purchasers named therein.
"REDEMPTION DATE" means the date specified in a notice of redemption
on which the Securities may be redeemed in accordance with the terms of the
Securities and this Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set
forth in Section 3.01.
"REGISTRATION RIGHTS AGREEMENT" means the Resale Registration Rights
Agreement, dated as of the date hereof, among the Company, Banc of America
Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as representatives of the
several initial purchasers.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant treasurer, trust officer or any
other officer associated with the corporate trust department of the Trustee who
customarily performs functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"RESTRICTED SECURITY" means a Security required to bear the restrictive
legend set forth in the form of Security set forth in Exhibits A and B of this
Indenture.
"RULE 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
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"SECURITIES" means any of the Company's Zero Coupon Convertible Senior
Debentures Due 2022, as amended or supplemented from time to time, issued under
this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITYHOLDER" or "HOLDER" means a person in whose name a Security is
registered on the Registrar's books.
"SHARE SETTLEMENT CAP" means 30 million, subject to adjustment in the
same manner as the Conversion Rate is adjusted pursuant to Section 10.03.
"STATED MATURITY", when used with respect to any Security, means
October 28, 2022.
"SUBSIDIARY" means any person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"TRADING DAY" means a day during which trading in securities generally
occurs on the NYSE or, if the Common Stock is not listed on the NYSE, on the
principal other national or regional securities exchange on which the Common
Stock then is listed or, if the Common Stock is not listed on a national or
regional securities exchange, on the National Association of Securities Dealers
Automated Quotation System or, if the Common Stock is not quoted on the National
Association of Securities Dealers Automated Quotation System, on the principal
other market on which the Common Stock is then traded.
"TRUSTEE" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"VOTING STOCK" of a person means Capital Stock of such person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
Section 1.02. Other Definitions.
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TERM SECTION: DEFINED IN:
"Accepted Purchased Shares"................................... 10.03(g)
"Adjustment Event"............................................ 10.03(l)
"Agent Members"............................................... 2.12(e)
"Applicable Stock"............................................ 3.08(c)
"beneficial owner"............................................ 3.08(a)
"cash"........................................................ 3.09(a)
"Cash Settlement Averaging Period"............................ 10.06(a)
"Cash Settlement Notice Period"............................... 10.06(b)
"Change of Control"........................................... 3.08(a)
"Change of Control Purchase Date"............................. 3.08(a)
"Change of Control Purchase Notice"........................... 3.08(c)
"Change of Control Purchase Price"............................ 3.08(a)
"Closing Price" .............................................. 10.03(h)
"Company Notice".............................................. 3.09(d)
"Company Notice Date"......................................... 3.09(b)
"Continuing Director"......................................... 3.08(a)
"Conversion Agent"............................................ 2.03
"Conversion Retraction Period"................................ 10.06(b)
"Current Market Price"........................................ 10.03(h)
"DTC" ........................................................ 2.01(a)
"Depositary".................................................. 2.01(a)
"Designated Subsidiary"....................................... 6.01
"Determination Date".......................................... 10.03(l)
"Distributed Assets".......................................... 10.03(d)
"Elected Cash Amount"......................................... 10.06(c)
"Event of Default"............................................ 6.01
"Ex-Dividend Time"............................................ 10.01(b)
"Exchange Act"................................................ 2.12(e)
"Expiration Time"............................................. 10.03(f)
"Extraordinary Cash Dividend"................................. 10.03(e)
"Fair Market Value" or "fair market value".................... 10.03(h)
"Fiscal Quarter".............................................. 10.01
"Institutional Accredited Investors".......................... 2.12(a)(iv)
"Interest Payment Date"....................................... 11.02(a)
"Interest Record Date"........................................ 11.02(a)
"Legal Holiday"............................................... 12.09
"Legend"...................................................... 2.06(f)
"Liquidated Damages Notice" .................................. 4.07
"Market Price"................................................ 3.09(c)
"non-electing share".......................................... 10.04
"Notice of Conversion"........................................ 10.02(b)
"Notice of Default"........................................... 6.01
"Offer Expiration Time"....................................... 10.03(g)
"Paying Agent"................................................ 2.03
"Purchase Date"............................................... 3.07
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TERM SECTION: DEFINED IN:
"Purchase Notice"............................................. 3.07
"Purchase Price".............................................. 3.07
"Purchased Shares"............................................ 10.03(f)
"QIB"......................................................... 2.01(a)
"Record Date"................................................. 10.03(h)
"Registrar"................................................... 2.03
"Regular Cash Dividend"....................................... 11.01(b)
"Rights"...................................................... 10.10
"Rights Agreement"............................................ 10.10
"Rule 144A Information"....................................... 4.06
"Specified Percentage"........................................ 10.01(b)
"Trading Price"............................................... 11.01(a)
"Trigger Event"............................................... 10.03(d)
Section 1.03. Incorporation By Reference Of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.04. Rules Of Construction. Unless the context otherwise
requires:
(1) a 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 as in effect from time to time;
(3) "or" is not exclusive;
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(4) "INCLUDING" means including, without limitation;
and
(5) words in the singular include the plural, and words
in the plural include the singular.
Section 1.05 . Acts Of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company, as described in Section 12.02. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Principal Amount at Maturity and serial number of any Security
and the ownership of Securities shall be proved by the register for the
Securities.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such request,
demand,
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authorization, direction, notice, consent, waiver or other Act, and for that
purpose the outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A
and B, which are a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage (provided
that any such notation, legend or endorsement required by usage is in a form
acceptable to the Company). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication.
(a) 144A Global Securities. Securities offered and sold within the
United States to qualified institutional buyers as defined in Rule 144A ("QIBS")
in reliance on Rule 144A shall be issued, initially in the form of a 144A Global
Security, which shall be deposited with the Trustee at its Corporate Trust
Office, as custodian for the Depositary (as defined below) and registered in the
name of The Depository Trust Company ("DTC") or the nominee thereof (DTC, or any
successor thereto, and any such nominee being hereinafter referred to as the
"DEPOSITARY"), duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount at maturity of the 144A
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee and the Depositary as hereinafter provided.
(b) Global Securities in General. Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, repurchases and conversions.
Any adjustment of the aggregate principal amount at maturity of a
Global Security to reflect the amount of any increase or decrease in the amount
of outstanding Securities represented thereby shall be made by the Trustee in
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accordance with instructions given by the Holder thereof as required by Section
2.12 hereof and shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply only to
Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall be substantially in the form of Exhibit A attached
hereto.
(d) Certificated Securities. Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of Exhibit B attached hereto.
Section 2.02. Execution And Authentication. The Securities shall be
executed on behalf of the Company by any Officer. The signature of the Officer
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of the execution of the Securities Officers shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver the Securities for original
issue in an aggregate principal amount at maturity of up to $2,009,975,000 (up
to $2,233,305,000 aggregate principal amount at maturity if the initial
purchaser's option set forth in the Purchase Agreement is exercised in full)
upon one or more Company Orders without any further action by the Company (other
than as contemplated in Section 12.05 and Section 12.06 hereof). The aggregate
principal amount at maturity of the Securities due at the Stated Maturity
thereof outstanding at any time may not exceed the amount set forth in the
foregoing sentence.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of principal amount and any integral
multiple of $1,000.
10
Section 2.03. Registrar, Paying Agent, Conversion Agent And Calculation
Agent. The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("REGISTRAR"), an office
or agency where Securities may be presented for purchase or payment ("PAYING
AGENT") and an office or agency where Securities may be presented for conversion
("CONVERSION AGENT"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent, including
any named pursuant to Section 4.05. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, Calculation Agent or co-registrar (in
each case, if such Registrar, agent or co-registrar is a Person other than the
Trustee). 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 such agent. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07. The Company or
any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent, Calculation Agent and Paying Agent in connection with the Securities.
Section 2.04. Paying Agent To Hold Money And Securities In Trust.
Except as otherwise provided herein, on or prior to each due date of payments in
respect of any Security, the Company shall deposit with the Paying Agent a sum
of money (in immediately available funds if deposited on the due date) or shares
of Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and shares of Common Stock held by the
Paying Agent for the making of payments in respect of the Securities and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
and shares of Common Stock so held in trust. If the Company, a Subsidiary or an
Affiliate of either of them acts as Paying Agent, it shall segregate the money
and shares of Common Stock held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent to pay all money
and shares of Common Stock held by it to the Trustee and to account for any
funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money or shares of Common Stock.
11
Section 2.05. Securityholder Lists. The Trustee shall preserve the most
recent list available to it of the names and addresses of Securityholders. If
the Trustee is not the Registrar, the Company shall cause to be furnished to the
Trustee at least semiannually on March 15 and September 15 a listing of
Securityholders dated within 15 days of the date on which the list is furnished
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
Section 2.06. Transfer And Exchange. (a) Subject to Section 2.12
hereof, upon surrender for registration of transfer of any Security, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder's attorney duly authorized
in writing, at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges that may be imposed in connection with the transfer
or exchange of the Securities from the Securityholder requesting such transfer
or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount at maturity upon surrender of the Securities to be exchanged,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Securityholder or such Securityholder's attorney duly
authorized in writing, at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change of
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in
12
accordance with Section 2.12 and this Section 2.06(b). Transfers of a Global
Security shall be limited to transfers of such Global Security in whole or in
part, to the Depositary, to nominees of the Depositary or to a successor of the
Depositary or such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the legends set
forth on the forms of Security attached hereto as Exhibits A and B setting forth
such restrictions (collectively, the "LEGEND"), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the Legend,
or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an opinion of counsel, as may be reasonably required by the
Company and the Registrar and the Trustee (if not the same Person as the
Trustee), that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A or Rule 144 under the Securities Act or that such Securities are
not "restricted" within the meaning of Rule 144 under the Securities Act. Upon
(i) provision of such satisfactory evidence, or (ii) notification by the Company
to the Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee,
at the written direction of the Company, shall authenticate and deliver a
Security that does not bear the Legend. If the Legend is removed from the face
of a Security and the Security is subsequently held by the Company or an
Affiliate of the Company, the Legend shall be reinstated.
Section 2.07. Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the
Trustee
13
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a certificate number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.07, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.08. Outstanding Securities; Determinations Of Holders'
Action. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those paid pursuant to Section
2.07, those delivered to it for cancellation and those described in this Section
2.08 as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount at maturity of
Securities have given or concurred in any request, demand, authorization,
direction, notice, consent, waiver, or other Act hereunder, Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other Act, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Subject to the
foregoing, only Securities outstanding at the time of such determination shall
be considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9).
14
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a Change of
Control Purchase Date, or on Stated Maturity, money or securities, if permitted
hereunder, sufficient to pay Securities payable on that date, then immediately
after such Redemption Date, Purchase Date, Change of Control Purchase Date or
Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and Original Issue Discount, Contingent Cash Interest and Liquidated
Damages, if any, on such Securities shall cease to accrue; provided, that if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made.
If a Security is converted in accordance with Article 10, then from and
after the time of conversion on the date of conversion, such Security shall
cease to be outstanding and Original Issue Discount, Contingent Cash Interest
and Liquidated Damages, if any, shall cease to accrue on such Security.
Section 2.09. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount at
maturity of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
Section 2.10. Cancellation. All Securities surrendered for payment,
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities
15
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article 10. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with the Trustee's customary procedure.
Section 2.11. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
the principal amount at maturity of the Security or any portion thereof,
including the Issue Price and Accrued Original Issue Discount, or the payment of
any Redemption Price, Purchase Price or Change of Control Purchase Price in
respect thereof, and Contingent Cash Interest or Liquidated Damages thereon, for
the purpose of conversion and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
Section 2.12. Global Securities. (a) Notwithstanding any other
provisions of this Indenture or the Securities, (A) transfers of a Global
Security, in whole or in part, shall be made only in accordance with Section
2.06 and Section 2.12(a)(i) below, (B) transfers of a beneficial interest in a
Global Security for a Certificated Security shall comply with Section 2.06,
Section 2.12(a)(ii) below and Section 2.12(e)(1) below, and (C) transfers of a
Certificated Security shall comply with Section 2.06 and Sections 2.12(a)(iii)
and 2.12(a)(iv) below.
(i) Transfer of Global Security. A Global Security may not be
transferred, in whole or in part, to any person other than the
Depositary or a nominee or any successor thereof, and no such transfer
to any such other person may be registered; provided that this clause
2.12(a)(i) shall not prohibit any transfer of a Security that is
issued in exchange for a Global Security but is not itself a Global
Security. No transfer of a Security to any person shall be effective
under this Indenture or the Securities unless and until such Security
has been registered in the name of such person. Nothing in this
Section 2.12(a)(i) shall prohibit or render ineffective any transfer
of a beneficial interest in a Global Security effected in accordance
with the other provisions of this Section 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a
Global Security for a Certificated Security. A beneficial interest in
a Global Security may not be exchanged for a Certificated Security
except upon satisfaction of the requirements set forth below and in
Section 2.12(e)(1)
16
below. Upon receipt by the Trustee of a transfer of a beneficial interest
in a Global Security in accordance with Applicable Procedures for a
Certificated Security in the form satisfactory to the Trustee, together
with:
(A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit C;
(B) written instructions to the Trustee to make, or direct
the Registrar to make, an adjustment on its books and records
with respect to such Global Security to reflect a decrease in the
aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information
regarding the Depositary account to be credited with such
decrease; and
(C) if the Company so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the compliance
with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount at maturity of the Securities
represented by the Global Security to be decreased by the aggregate principal
amount at maturity of the Certificated Security to be issued, shall issue such
Certificated Security and shall debit or cause to be debited to the account of
the person specified in such instructions a beneficial interest in the Global
Security equal to the principal amount at maturity of the Certificated Security
so issued.
(iii) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented to the Registrar with a request:
(y) to register the transfer of such Certificated Securities; or
(z) to exchange such Certificated Securities for an equal
principal amount at maturity of Certificated Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Certificated Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
17
(2) so long as such Securities are Restricted Securities,
such Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents, as
applicable:
(A) if such Certificated Securities are being delivered
to the Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from such
Holder to that effect; or
(B) if such Certificated Securities are being
transferred to the Company, a certification to that effect;
or
(C) if such Certificated Securities are being
transferred pursuant to an exemption from registration, (i)
a certification to that effect (in the form set forth in
Exhibit C, if applicable) and (ii) if the Company so
requests, an opinion of counsel or other evidence reasonably
satisfactory to it as to the compliance with the
restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security for a
Beneficial Interest in a Global Security. A Certificated Security may
not be exchanged for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with:
(I) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit C, that such
Certificated Security is being transferred to a QIB in accordance with
Rule 144A, or to an institutional accredited investor within the
meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D of the
Securities Act; and
(II) written instructions directing the Trustee to make, or to direct
the Registrar to make, an adjustment on its books and records with
respect to such Global Security to reflect an increase in the
aggregate principal amount at maturity of the Securities represented
by the Global Security, such instructions to contain information
regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Security and cause, or
direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate principal amount at maturity of Securities
represented by the Global Security to be increased by the aggregate
principal amount at maturity of the Certificated Security
18
to be exchanged, and shall credit or cause to be credited to the
account of the person specified in such instructions a beneficial
interest in the Global Security equal to the principal amount at
maturity of the Certificated Security so cancelled. If no Global
Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate, upon written order of the Company in the
form of an Officers' Certificate, a new Global Security in the
appropriate principal amount at maturity.
(b) Subject to the succeeding Section 2.12(c), every Security shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of an opinion of counsel, if so provided. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit C, dated the date of such surrender and signed by the Holder of
such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of
any Security shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form
acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144 or such successor provision), be exchanged
for a new Security, of like tenor and aggregate principal amount at maturity,
which shall not bear the restrictive Legend. The Company shall inform the
Trustee of the effective date of any registration statement registering the
Securities under the Securities Act. The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.
(d) As used in the preceding two paragraphs of this Section 2.12, the
term "transfer" encompasses any sale, pledge, transfer, loan, hypothecation, or
other disposition of any Security.
19
(e) The provisions of clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or
in part for a Security registered in the name of any person other
than the Depositary or one or more nominees thereof, provided
that a Global Security may be exchanged for Securities registered
in the names of any person designated by the Depositary in the
event that (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global
Security or such Depositary has ceased to be a "clearing agency"
registered under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and a successor Depositary is not appointed
by the Company within 90 days or (ii) an Event of Default has
occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to clause (i) above shall be
so exchanged in whole and not in part, and any Global Security
exchanged pursuant to clause (ii) above may be exchanged in whole
or from time to time in part as directed by the Depositary. Any
Security issued in exchange for a Global Security or any portion
thereof shall be a Global Security; provided that any such
Security so issued that is registered in the name of a person
other than the Depositary or a nominee thereof shall not be a
Global Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully registered
form, shall have an aggregate principal amount at maturity equal
to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and
shall bear the applicable legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. With regard to any
Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the Trustee
is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount at maturity
thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such surrender or
adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the registered
Holder may grant proxies and otherwise authorize any person,
including
20
Agent Members (as defined below) and persons that may hold
interests through Agent Members, to take any action which a
holder is entitled to take under this Indenture or the
Securities.
(4) In the event of the occurrence of any of the events specified in
clause (1) above, the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in
definitive, fully registered form.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "AGENT MEMBERS") nor any other persons on
whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered in
the name of the Depositary or any nominee thereof, or under any
such Global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and
holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the
case may be, or impair, as between the Depositary, its Agent
Members and any other person on whose behalf an Agent Member may
act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Security.
Section 2.13 . CUSIP Numbers. The Company may issue the Securities with
one or more "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.14 . Ranking. The indebtedness of the Company arising under
or in connection with this Indenture and every outstanding Security issued under
this Indenture from time to time constitutes and will constitute a senior
unsecured general obligation of the Company, ranking equally with other existing
and future senior unsecured Indebtedness of the Company and ranking senior in
right of payment to any future Indebtedness of the Company that is expressly
made subordinate to the Securities by the terms of such Indebtedness. For
purposes of this Section 2.14 only, "Indebtedness" means, without duplication,
the principal
21
or face amount of (i) all obligations for borrowed money, (ii) all obligations
evidenced by debentures, notes or other similar instruments, (iii) all
obligations in respect of letters of credit or bankers acceptances or similar
instruments (or reimbursement obligations with respect thereto), (iv) all
obligations to pay the deferred purchase price of property or services, (v) all
obligations as lessee which are capitalized in accordance with generally
accepted accounting principles, and (vi) all Indebtedness of others guaranteed
by the Company or any of its Subsidiaries or for which the Company or any of its
Subsidiaries is legally responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds or to invest in, others).
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.01 . Company's Right To Redeem; Notices To Trustee. Prior to
October 28, 2005, the Securities will not be redeemable at the Company's option.
Beginning on October 28, 2005, the Company, at its option, may redeem the
Securities in accordance with the provisions of Section 5 of the Securities for
cash at any time as a whole, or from time to time in part, at a redemption price
(the "REDEMPTION PRICE") equal to the Issue Price of the Securities redeemed
plus Accrued Original Issue Discount, accrued and unpaid Contingent Cash
Interest, if any, and accrued and unpaid Liquidated Damages, if any, on the
Securities redeemed to (but excluding) the Redemption Date. If the Company
elects to redeem Securities pursuant to Section 5 of the Securities, it shall
notify the Trustee in writing of the Redemption Date, the principal amount at
maturity of Securities to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 by a Company Order, at least 30 days but not more than 60 days
before the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee).
Securities called for redemption may be surrendered for conversion from
the date of notice of the redemption until the close of business on the Business
Day immediately preceding the Redemption Date.
The table below shows Redemption Prices of a Security per $1,000
Principal Amount at Maturity on the dates shown below and at Stated Maturity,
which prices reflect the Issue Price plus Accrued Original Issue Discount
calculated to each such date and assumes that no Contingent Cash Interest or
Liquidated Damages have accrued. In addition to the Redemption Price payable
with respect to all Securities or portions thereof to be redeemed as of a
Redemption Date, the Holders of such Securities (or portions thereof) shall be
entitled to receive, and the Redemption Price shall include, any accrued and
22
unpaid Contingent Cash Interest and any accrued and unpaid Liquidated Damages,
to the Redemption Date.
(2) (3)
(1) Accrued Original Redemption Price
Issue Price Issue Discount (1) + (2)
----------- ---------------- ----------------
Redemption Date:
October 28:
2005 $671.65 $41.32 $712.97
2006 $671.65 $55.65 $727.30
2007 $671.65 $70.27 $741.92
2008 $671.65 $85.19 $756.84
2009 $671.65 $100.40 $772.05
2010 $671.65 $115.92 $787.57
2011 $671.65 $131.75 $803.40
2012 $671.65 $147.89 $819.54
2013 $671.65 $164.37 $836.02
2014 $671.65 $181.17 $852.82
2015 $671.65 $198.31 $869.96
2016 $671.65 $215.80 $887.45
2017 $671.65 $233.64 $905.29
2018 $671.65 $251.83 $923.48
2019 $671.65 $270.40 $942.05
2020 $671.65 $289.33 $960.98
2021 $671.65 $308.65 $980.30
At Stated Maturity $671.65 $328.35 $1,000.00
------------ ------------ --------------
Section 3.02. Selection Of Securities To Be Redeemed. If less than all
the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed by
lot, on a pro rata basis or by another method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any stock
exchange on which the Securities are then listed). The Trustee shall make the
selection within five Business Days after it receives the notice provided for in
Section 3.01 from outstanding Securities not previously called for redemption.
The Trustee may select for redemption portions of the principal amount at
maturity of Securities that have denominations larger than $1,000.
Securities and portions of Securities that the Trustee selects shall be
in principal amounts at maturity of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of the Securities to be
redeemed.
23
Securities and portions of Securities that are to be redeemed are
convertible by the Holder until the close of business on the Business Day prior
to the Redemption Date. If any Security selected for partial redemption is
converted in part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities that have been converted during a selection of Securities to be
redeemed may be treated by the Trustee as outstanding for the purpose of such
selection.
Section 3.03 . Notice Of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any
time before the close of business on the Business Day prior to
the Redemption Date;
(6) that Holders who want to convert their Securities must satisfy
the requirements set forth in Section 8 of the Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(8) if fewer than all of the outstanding Securities are to be
redeemed, the certificate numbers, if any, and principal amounts
at maturity of the particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of such
Redemption Price, Original Issue Discount, Contingent Cash
Interest and Liquidated Damages, if any, on Securities called for
redemption will cease to accrue on and after the Redemption Date;
and
(10) the CUSIP number(s) of the Securities.
24
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least seven Business Days prior to the date by
which such notice of redemption must be given to Holders in accordance with this
Section 3.03.
Section 3.04. Effect Of Notice Of Redemption. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption ▇▇▇▇▇ stated in the notice.
Section 3.05. Deposit Of Redemption Price. Prior to 10:00 a.m. (
New
York City time), on the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient to
pay the Redemption Price of all Securities to be redeemed on that date other
than Securities or portions of Securities called for redemption which on or
prior thereto have been delivered by the Company to the Trustee for cancellation
or have been converted. The Paying Agent shall as promptly as practicable return
to the Company any money not required for that purpose because of conversion of
Securities pursuant to Article 10. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 3.06. Securities Redeemed In Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in principal amount at maturity to the unredeemed portion of
the Security surrendered.
Section 3.07. Purchase Of Securities By The Company At Option Of The
Holder. General. Securities shall be purchased by the Company pursuant to
Section 6 of the Securities at the option of the Holder on October 28, 2005,
October 28, 2007, October 28, 2012 and October 28, 2017 (each, a "PURCHASE
DATE"), at a purchase price equal to the Accreted Value of the Securities
purchased, plus accrued and unpaid Contingent Cash Interest, if any, and accrued
and unpaid Liquidated Damages, if any, on those Securities, to (but excluding)
such Purchase Date (the "PURCHASE PRICE"), subject to the provisions of Section
3.09. Purchases of Securities hereunder shall be made, 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") during the period beginning at any
time from the opening of business on the date that is 20 Business
25
Days prior to the relevant Purchase Date until the close of
business on the third Business Day prior to such Purchase Date
stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased or the appropriate Depositary procedures
if Certificated Securities have not been issued for such
Security,
(B) the portion of the principal amount at maturity of the
Security which the Holder will deliver to be purchased, which
portion must be in principal amounts at maturity of $1,000 or an
integral multiple of $1,000,
(C) that such Security shall be purchased by the Company as of
the Purchase Date pursuant to the terms and conditions specified
in Section 6 of the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to Section 3.09(c),
to pay the Purchase Price, in whole or in part, in shares of
Common Stock but such portion of the Purchase Price shall
ultimately be paid to such Holder entirely in cash because any of
the conditions to payment of the Purchase Price in shares of
Common Stock are not satisfied prior to the close of business on
the third Business Day prior to the relevant Purchase Date, as
set forth in Section 3.09, whether such Holder elects (i) to
withdraw such Purchase Notice as to some or all of the Securities
to which such Purchase Notice relates (stating the principal
amount at maturity and certificate numbers, if any, of the
Securities as to which such withdrawal shall relate), or (ii) to
receive cash in respect of the entire Purchase Price for all
Securities (or portions thereof) to which such Purchase Notice
relates; and
(2) delivery of such Security to the Paying Agent at any time after
delivery of the Purchase Notice (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 3.07 only if the Security 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 ▇▇▇▇▇▇'s Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 3.09,
fails to indicate such ▇▇▇▇▇▇'s choice with respect to the election set forth in
clause (D) of Section 3.07(1), such Holder shall be deemed to have elected to
receive cash in respect of the entire Purchase Price for all Securities subject
to such Purchase Notice in the circumstances set forth in such clause (D).
26
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.07, a portion of a Security, if the principal amount at maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.07 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 Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 3.07 shall
have the right to withdraw such Purchase Notice at any time prior to the close
of business on the Business Day immediately prior to the Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.12.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
Section 3.08. Purchase Of Securities At Option Of The Holder Upon
Change Of Control. (a) (1) If a Change of Control occurs (subject to certain
exceptions set forth below), the Securities not previously purchased by the
Company shall be purchased by the Company, at the option of the Holder thereof,
at a purchase price equal to the Accreted Value of the Securities purchased,
plus accrued and unpaid Contingent Cash Interest, if any, and accrued and unpaid
Liquidated Damages, if any, on those Securities (the "CHANGE OF CONTROL PURCHASE
PRICE"), as of the date that is 30 days after the date of a notice of Change of
Control delivered by the Company (the "CHANGE OF CONTROL PURCHASE DATE"),
subject to satisfaction by or on behalf of the Holder of the requirements set
forth in Section 3.08(c).
A "CHANGE OF CONTROL" will be deemed to have occurred at such time
after the Securities are originally issued when any of the following events
shall occur:
(i) the acquisition by any person, including any syndicate or
group deemed to be a "person" under Section 13(d)(3) of the Exchange
Act of beneficial ownership, directly or indirectly through a
purchase, merger or other acquisition transaction or series of
purchase, merger or other acquisition transactions, of shares of the
Capital Stock of the Company entitling that person to exercise 50% or
more of the total voting power of all shares of the Capital Stock of
the Company entitled to vote generally in elections of directors,
other than any acquisition by the Company, any of its subsidiaries or
any of its employee benefit plans (except that any of those persons
shall be deemed to have beneficial
27
ownership of all securities it has the right to acquire, whether the
right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition); or
(ii) the first day on which a majority of the members of the
board of directors of the Company are not Continuing Directors; or
(iii) the Company consolidates or merges with or into any other
person, any merger of another person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company's properties and assets to another
person, other than: (A) any transaction: (1) that does not result in
any reclassification, conversion, exchange or cancellation of
outstanding shares of the Company's Capital Stock; and (2) pursuant to
which holders of the Company's Capital Stock immediately prior to the
transaction have the entitlement to exercise, directly or indirectly
50% or more of the total voting power of all shares of Capital Stock
entitled to vote generally in elections of directors of the continuing
or surviving Person immediately after giving effect to such issuance;
and (B) any merger, share exchange, transfer of assets or similar
transaction solely for the purpose of changing the Company's
jurisdiction of incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of Common Stock, if at
all, solely into shares of common stock, ordinary shares or American
Depositary Shares of the surviving Person or a direct or indirect
parent of the surviving corporation.
A "CONTINUING DIRECTOR" shall mean:
(i) An individual who was a member of the Board of Directors of
the Company first elected by the stockholders or by the Board of
Directors prior to the date hereof or prior to the time that any
person becomes after the date hereof the holder of record of in excess
of 20% of the Capital Stock of the Company entitled to vote in the
election of directors; or
(ii) An individual designated (before such individual's initial
election as a director) as a Continuing Director by a majority of the
then Continuing Directors.
(2) Notwithstanding the provisions of Section 3.08(a)(1), the Company
shall not be required to purchase the Securities of the Holders
upon a Change of Control pursuant to this Section 3.08 if 100% of
the consideration in the transaction or transactions (other than
cash payments for fractional shares and cash payments made in
respect of dissenters' appraisal rights) constituting a Change of
Control consists of shares of common stock, ordinary shares or
American Depositary Shares traded or to be traded immediately
28
following a Change of Control on a national securities exchange
or the Nasdaq National Market, and, as a result of the
transaction or transactions, the Securities become convertible
into that common stock, ordinary shares or American Depositary
Shares (and any rights attached thereto).
For the purposes of this Section 3.08, (x) whether a person is a
"BENEFICIAL OWNER" shall be determined in accordance with Rule 13d-3 under the
Exchange Act and (y) the term "person" includes any syndicate or group that
would be deemed to be a "person" under Section 13(d)(3) of the Exchange Act.
(b) No later than 30 days after the occurrence of a Change of Control,
the Company shall mail a written notice of the Change of Control by first class
mail to the Trustee and to each Holder (and to beneficial owners as required by
applicable law). The notice shall include a form of Change of Control Purchase
Notice to be completed by the Holder and shall state:
(1) briefly, the events causing a Change of Control and the date of
such Change of Control;
(2) the date by which the Change of Control Purchase Notice pursuant
to this Section 3.08 must be delivered to the Paying Agent in
order for a Holder to exercise the repurchase rights;
(3) the Change of Control Purchase Date;
(4) the Change of Control Purchase Price;
(5) whether the Change of Control Purchase Price will be paid in cash
or Applicable Stock, or a combination thereof;
(6) the name and address of the Paying Agent and the Conversion
Agent;
(7) the Conversion Rate;
(8) that the Securities as to which a Change of Control Purchase
Notice has been given may be converted if they are otherwise
convertible pursuant to Article 10 hereof only if the Change of
Control Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(9) that the Securities must be surrendered to the Paying Agent to
collect payment;
(10) that the Change of Control Purchase Price for any Security as to
which a Change of Control Purchase Notice has been duly given
29
and not withdrawn will be paid promptly following the later of
the Change of Control Purchase Date and the time of surrender of
such Security as described in (9);
(11) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.08;
(12) briefly, the conversion rights, if any, on the Securities;
(13) the procedures for withdrawing a Change of Control Purchase
Notice;
(14) that, unless the Company defaults in making payment of such
Change of Control Purchase Price, Original Issue Discount,
Contingent Cash Interest and Liquidated Damages, if any, on
Securities surrendered for purchase by the Company will cease to
accrue on and after the Change of Control Purchase Date; and
(15) the CUSIP number(s) of the Securities.
(c) A Holder may exercise its rights specified in Section 3.08(a) upon
delivery of a written notice of purchase (a "CHANGE OF CONTROL PURCHASE NOTICE")
to the Paying Agent at any time on or prior to the close of business on the
Business Day immediately preceding the Change of Control Purchase Date:
(1) the certificate number of the Security which the Holder will
deliver to be purchased or the appropriate Depositary procedures
if Certificated Securities have not been issued;
(2) the portion of the principal amount at maturity of the Security
which the Holder will deliver to be purchased, which portion must
be $1,000 or an integral multiple of $1,000;
(3) that such Security shall be purchased pursuant to the terms and
conditions specified in Section 6 of the Securities and in this
Indenture; and
(4) in the event the Company elects, pursuant to Section 3.09, to pay
the Change of Control Purchase Price, in whole or in part, in
shares of Applicable Stock but such portion of the Change of
Control Purchase Price shall ultimately be paid to such Holder
entirely in cash because any of the conditions to payment of the
Change of Control Purchase Price in shares of Applicable Stock is
not satisfied prior to the close of business on the third
Business Day prior to the relevant Change of Control Purchase
Date, as set forth in Section 3.09, whether such Holder elects
(i) to withdraw such Change of Control Purchase Notice as to some
or all of the
30
Securities to which such Change of Control Purchase Notice
relates (stating the principal amount at maturity and certificate
numbers, if any, of the Securities as to which such withdrawal
shall relate), or (ii) to receive cash in respect of the entire
Change of Control Purchase Price for all Securities (or portions
thereof) to which such Change of Control Purchase Notice relates.
"APPLICABLE STOCK" means (i) the Common Stock and (ii) in the event of
a merger, consolidation or other similar transaction involving the Company that
is otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock, ordinary shares or American Depositary Shares of
such surviving corporation or its direct or indirect parent corporation.
The delivery of such Security to the Paying Agent with the Change of
Control Purchase Notice (together with all necessary endorsements) at the
offices of the Paying Agent shall be a condition to the receipt by the Holder of
the Change of Control Purchase Price therefor; provided, however, that such
Change of Control Purchase Price shall be so paid pursuant to this Section 3.08
and Section 3.09 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof set forth in the related
Change of Control Purchase Notice.
If a Holder, in such Holder's Change of Control Purchase Notice and in
any written notice of withdrawal delivered by such Holder pursuant to the terms
of Section 3.12, fails to indicate such Holder's choice with respect to the
election set forth in Section 3.08(c)(4), such Holder shall be deemed to have
elected to receive cash in respect of the entire Change of Control Purchase
Price for all Securities subject to such Change of Control Purchase Notice in
the circumstances set forth in such Section 3.08(c)(4).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08 and Section 3.09, a portion of a Security if the principal amount
at maturity of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a Security
also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 and Section 3.09 shall be consummated by the delivery of the
consideration to be received by the Holder on the Change of Control Purchase
Date.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change of Control Purchase Notice contemplated by this
Section 3.08(c) shall have the right to withdraw such Change of Control Purchase
Notice at any time prior to the close of business on the last Business Day
immediately preceding the Change of Control Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
3.12.
31
The Paying Agent shall promptly notify the Company of the receipt by it
of any Change of Control Purchase Notice or written withdrawal thereof.
Section 3.09. Company's Right To Elect Manner Of Payment Of Purchase
Price And Change Of Control Purchase Price For Payment. (a) The Securities to be
purchased on any Purchase Date or Change of Control Purchase Date, as the case
may be, pursuant to Section 3.07 and 3.08(a), respectively, may be paid for, in
whole or in part, at the election of the Company, in U.S. legal tender ("CASH")
or shares of Applicable Stock, or in any combination of cash and shares of
Applicable Stock, subject to the conditions set forth in Sections 3.09(c) and
(d). The Company shall designate, in the Company Notice delivered pursuant to
Section 3.09(d), whether the Company will purchase the Securities for cash or
shares of Applicable Stock, or, if a combination thereof, the percentages of the
Purchase Price or Change of Control Purchase Price, as the case may be, of
Securities in respect of which it will pay in cash or shares of Applicable
Stock; provided that the Company will pay cash for fractional interests in
shares of Applicable Stock. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to Section 3.07 or 3.08, as the case may be, shall receive
the same percentage of cash or shares of Applicable Stock in payment of the
Purchase Price for such Securities, except (i) as provided in this Section
3.09(a) with regard to the payment of cash in lieu of fractional shares of
Applicable Stock and (ii) in the event that the Company is unable to purchase
the Securities of a Holder or Holders for shares of Applicable Stock because any
necessary qualifications or registrations of the shares of Applicable Stock
under applicable state securities laws cannot be obtained, the Company may
purchase the Securities of such Holder or Holders for cash. The Company may not
change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has given its
Company Notice to Holders except pursuant to Section 3.09(b) or pursuant to
Section 3.09(c) in the event of a failure to satisfy, prior to the close of
business on the third Business Day immediately preceding the Purchase Date or
Change of Control Purchase Date, as the case may be, any condition to the
payment of the Purchase Price or Change of Control Purchase Price, as the case
may be, in whole or in part, in shares of Applicable Stock.
At least three Business Days before each Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.09(d) in the Company
Notice,
32
(iii) if the Company elects to pay the Purchase Price or Change
of Control Purchase Price, as the case may be, or a specified
percentage thereof, in shares of Applicable Stock, that the conditions
to such manner of payment set forth in Section 3.09(c) have been or
will be complied with, and
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 3.09(d).
(b) Purchase with Cash. At the option of the Company, the Purchase
Price or Change of Control Purchase Price, as the case may be, of Securities in
respect of which a Purchase Notice pursuant to Section 3.07(1) or Change of
Control Purchase Notice pursuant to Section 3.08(c), as the case may be, has
been given, or a specified percentage thereof, may be paid by the Company with
cash equal to the aggregate Purchase Price or Change of Control Purchase Price,
as the case may be, of such Securities. The Purchase Price or Change of Control
Purchase Price, as the case may be, of Securities in respect of which a Purchase
Notice pursuant to Section 3.07(1) or Change of Control Purchase Notice pursuant
to Section 3.08(c), as the case may be, has been given shall, for all other
Purchase Dates or Change of Control Purchase Dates, as the case may be, be paid
in cash. The Company Notice, as provided in Section 3.09(d), shall be sent to
Holders (and to beneficial owners as required by applicable law) not less than
30 Business Days prior to such Purchase Date or Change of Control Purchase Date,
as the case may be (the "COMPANY NOTICE DATE").
(c) Payment by Issuance of Shares of Common Stock. At the option of the
Company, the Purchase Price or Change of Control Purchase Price, as the case may
be, of Securities in respect of which a Purchase Notice pursuant to Section
3.07(1) or Change of Control Purchase Notice pursuant to Section 3.08(c), as the
case may be, has been given, or a specified percentage thereof, may be paid by
the Company by the issuance of a number of shares of Applicable Stock equal to
the quotient obtained by dividing (i) the portion of the Purchase Price or
Change of Control Purchase Price, as the case may be, to be paid in shares of
Applicable Stock by (ii) 100% of the Market Price determined by the Company in
the Company Notice, subject to the next succeeding paragraph. Notwithstanding
the foregoing, in no event will the Company issue a number of shares of
Applicable Stock greater than the Share Settlement Cap and upon issuing a number
of shares of Applicable Stock equal to the Share Settlement Cap, the Company
shall pay any remaining amount of the Purchase Price or Change of Control
Purchase Price, as the case may be, in cash.
The Company will not issue fractional shares of Applicable Stock in
payment of the Purchase Price or Change of Control Purchase Price, as the case
may be. Instead, the Company will pay cash based on the current market price for
all fractional shares. It is understood that if a Holder elects to have more
than one
33
Security purchased, the number of shares of Applicable Stock shall be based on
the aggregate amount of Securities to be purchased.
If the Company elects to purchase the Securities by the issuance of
shares of Applicable Stock or in any combination of cash and Applicable Stock,
the Company Notice, as provided in Section 3.09(d), shall be sent to the Holders
(and to beneficial owners as required by applicable law) not later than the
Company Notice Date.
The Company's right to exercise its election to purchase Securities
through the issuance of shares of Applicable Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of an
election to pay entirely in cash and its giving of timely Company
Notice of an election to purchase all or a specified percentage of the
Securities with shares of Applicable Stock as provided herein;
(ii) the registration of such shares of Applicable Stock under
the Securities Act and the Exchange Act, in each case, if required;
(iii) the listing of such shares of Applicable Stock on a
national securities exchange or the quotation of such shares of
Applicable Stock in an inter-dealer quotation system of any registered
United States national securities association;
(iv) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of
the shares of Applicable Stock are in conformity with this Indenture
and (B) the shares of Applicable Stock to be issued by the Company in
payment of the Purchase Price or Change of Control Purchase Price, as
the case may be, in respect of Securities have been duly authorized
and, when issued and delivered pursuant to the terms of this Indenture
in payment of the Purchase Price or Change of Control Purchase Price,
as the case may be, in respect of the Securities, will be validly
issued, fully paid and non-assessable and, to the best of such
counsel's knowledge, free from preemptive rights, and, in the case of
such Officers' Certificate, stating that the conditions above and the
condition set forth in the second succeeding sentence have been
satisfied and, in the case of such Opinion of Counsel, stating that
the conditions in clauses (i) through (iv) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Applicable Stock to be issued for each $1,000 principal amount at maturity of
34
Securities and the Closing Price of a share of Applicable Stock on each Trading
Day during the period commencing on the first Trading Day of the period during
which the Market Price is calculated and ending on the third day prior to the
applicable Purchase Date or Change of Control Purchase Date, as the case may be.
If the foregoing conditions are not satisfied with respect to a Holder or
Holders prior to the close of business on the last day prior to the Purchase
Date or Change of Control Purchase Date, as the case may be, and the Company has
elected to purchase the Securities pursuant to this Section 3.09 through the
issuance of shares of Applicable Stock, the Company shall pay the entire
Purchase Price or Change of Control Purchase Price, as the case may be, of the
Securities of such Holder or Holders in cash.
The "MARKET PRICE" means the average of the Closing Prices of the
shares of Applicable Stock for the five-Trading Day period immediately preceding
and including the third day prior to the applicable Purchase Date or Change of
Control Purchase Date, as the case may be, (if the third Business Day prior to
the applicable Purchase Date is a Trading Day, or if not, then on the last
Trading Day prior to the third Business Day), appropriately adjusted to take
into account the occurrence, during the period commencing on the first of the
Trading Days during the 20-Trading Day period and ending on the Purchase Date or
Change of Control Purchase Date, as the case may be, of any event described in
Sections 10.03 or 10.04.
Upon determination of the actual number of shares of Applicable Stock
to be issued upon redemption or repurchase of Securities, the Company shall be
required to disseminate a press release through Dow ▇▇▇▇▇ & Company, Inc. or
Bloomberg Business News containing this information or publish the information
on the Company's Web site or through such other public medium as the Company may
use at that time.
(d) Notice of Election. In connection with any purchase of Securities
pursuant to Section 6 of the Securities, the Company shall give notice to
Holders setting forth information specified in this Section 3.09(d) (the
"COMPANY NOTICE").
In the event the Company has elected to pay the Purchase Price or
Change of Control Purchase Price, as the case may be (or a specified percentage
thereof), with shares of Applicable Stock, the Company Notice shall:
(1) state that each Holder will receive a number of shares of
Applicable Stock with a value equal to 100% of the Market Price
determined as of a specified date prior to the Purchase Date or
Change of Control Purchase Date, as the case may be, equal to
such specified percentage of the Purchase Price or Change of
Control Purchase Price, as the case may be, of the Securities
held by such Holder (except any cash amount to be paid in lieu of
fractional shares);
35
(2) set forth the method of calculating the Market Price of the
shares of Applicable Stock; and
(3) state that because the Market Price of shares of Applicable Stock
will be determined prior to the Purchase Date or Change of
Control Purchase Date, as the case may be, Holders of the
Securities will bear the market risk with respect to the value of
the shares of Applicable Stock to be received from the date such
Market Price is determined to the Purchase Date or Change of
Control Purchase Date, as the case may be.
In any case, each Company Notice shall include a form of Purchase
Notice or Change of Control Purchase Notice, as the case may be, to be completed
by a Holder and shall state:
(i) the Purchase Price or Change of Control Purchase Price, as the case
may be, and the Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion Agent;
(iii) that Securities as to which a Purchase Notice or Change of
Control Purchase Notice, as the case may be, has been given may be converted if
they are otherwise convertible only in accordance with Article 10 hereof and
Section 8 of the Securities if the applicable Purchase Notice or Change of
Control Purchase Notice, as the case may be, has been withdrawn in accordance
with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent to collect
payment;
(v) that the Purchase Price or Change of Control Purchase Price, as the
case may be, for any security as to which a Purchase Notice or Change of Control
Purchase Notice, as the case may be, has been given and not withdrawn will be
paid promptly following the later of the Purchase Date or Change of Control
Purchase Date, as the case may be, and the time of surrender of such Security as
described in (iv);
(vi) the procedures the Holder must follow to exercise its put rights
under Section 3.07 or 3.08, as the case may be, and a brief description of those
rights;
(vii) briefly, the conversion rights, if any, with respect to the
Securities;
(viii) the procedures for withdrawing a Purchase Notice or Change of
Control Purchase Notice, as the case may be (including, without limitation, for
a
36
conditional withdrawal pursuant to the terms of Section 3.07(1)(D), Section
3.08(c)(4)or Section 3.12);
(ix) that, unless the Company defaults in making payment on Securities
for which a Purchase Notice or Change of Control Purchase Notice, as the case
may be, has been submitted, Original Issue Discount, Contingent Cash Interest or
Liquidated Damages, if any, on such Securities will cease to accrue on and after
the Purchase Date or Change of Control Purchase Date, as the case may be; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
Section 3.10. Covenants of the Company. All shares of Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable, and shall be free from preemptive rights and free of any lien or
adverse claim.
Section 3.11. Taxes. If a Holder of a purchased Security is paid in
shares of Applicable Stock, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on such issue of Applicable Stock. However,
the Holder shall pay any such tax which is due because the Holder requests the
Applicable Stock to be issued in a name other than the Holder's name. The Paying
Agent may refuse to deliver the certificates representing the shares of
Applicable 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 Applicable 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 3.12. Effect Of Purchase Notice Or Change Of Control Purchase
Notice. (a) Upon receipt by the Paying Agent of the Purchase Notice or Change of
Control Purchase Notice specified in Section 3.07(1) or Section 3.08(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change of Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change of Control Purchase Notice, as the case
may be, is withdrawn as specified in the following two paragraphs) thereafter be
entitled solely to receive the Purchase Price or Change of Control Purchase
Price, as the case may be, with respect to such Security. Such Purchase Price or
Change of Control Purchase Price shall be paid to such Holder, subject to
receipts of funds and/or securities by the Paying Agent, promptly following the
later of (x) the Purchase Date or the Change of Control Purchase Date, as the
case may be, with respect to such Security (provided the conditions in Section
3.07(1) or Section 3.08(c), as applicable, have been satisfied) and (y) the time
of delivery of such Security to the Paying Agent by the Holder thereof in the
manner required by
37
Section 3.07 or Section 3.08(c), as applicable. Securities in respect of which a
Purchase Notice or Change of Control Purchase Notice has been given by the
Holder thereof may not be converted pursuant to Article 10 hereof on or after
the date of the delivery of such Purchase Notice or Change of Control Purchase
Notice unless such Purchase Notice or Change of Control Purchase Notice has
first been validly withdrawn as specified in the following two paragraphs.
(b) A Purchase Notice or Change of Control Purchase Notice may be
withdrawn by means of a written notice of withdrawal delivered to the office of
the Paying Agent in accordance with the Purchase Notice or Change of Control
Purchase Notice, as the case may be, at any time prior to the close of business
on the Business Day immediately preceding the Purchase Date or Change of Control
Purchase Date, as the case may be, specifying:
(1) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted,
(2) the principal amount at maturity of the Security with respect to
which such notice of withdrawal is being submitted, and
(3) the principal amount at maturity, if any, of such Security which
remains subject to the original Purchase Notice or Change of
Control Purchase Notice, as the case may be, and which has been
or will be delivered for purchase by the Company.
(c) A written notice of withdrawal of a Purchase Notice may be in the
form set forth in Section 3.12(b) or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.07(1)(D) or (ii) a conditional withdrawal containing the information set forth
in Section 3.07(1)(D) and Section 3.12(b) and contained in a written notice of
withdrawal delivered to the Paying Agent as set forth in Section 3.12(b).
(d) A written notice of withdrawal of a Change of Control Purchase
Notice may be in the form set forth in Section 3.12(b) or may be in the form of
(i) a conditional withdrawal contained in a Purchase Notice pursuant to the
terms of Section 3.08(c)(4) or (ii) a conditional withdrawal containing the
information set forth in Section 3.08(c)(4) and Section 3.12(b) and contained in
a written notice of withdrawal delivered to the Paying Agent as set forth in
Section 3.12(b).
(e) There shall be no purchase of any Securities pursuant to Section
3.07 or 3.08 if there has occurred (prior to, on or after, as the case may be,
the giving, by the Holders of such Securities, of the required Purchase Notice
or Change of 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 of Control Purchase Price, as the case may be, with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Purchase Notice or Change of
38
Control Purchase Notice, as the case may be, has been withdrawn in compliance
with this Indenture, or (y) held by it during the continuance of an Event of
Default (other than a default in the payment of the Purchase Price or Change of
Control Purchase Price, as the case may be, with respect to such Securities) in
which case, upon such return, the Purchase Notice or Change of Control Purchase
Notice with respect thereto shall be deemed to have been withdrawn.
Section 3.13. Deposit Of Purchase Price Or Change Of Control Purchase
Price. Prior to 10:00 a.m. (local time in The City of
New York) on the Business
Day following the Purchase Date or the Change of Control Purchase Date, as the
case may be, the Company shall deposit with the Trustee or with the Paying Agent
(or, if the Company or a Subsidiary or an Affiliate of either of them is acting
as the Paying Agent, shall segregate and hold in trust as provided in Section
2.04) an amount of cash (in immediately available funds if deposited on such
Business Day) or Applicable Stock, if permitted hereunder, sufficient to pay the
aggregate Purchase Price or Change of Control Purchase Price, as the case may
be, of all the Securities or portions thereof which are to be purchased as of
the Purchase Date or Change of Control Purchase Date, as the case may be.
As soon as practicable after the Purchase Date or Change of Control
Purchase Date, as the case may be, the Company shall deliver to each Holder
entitled to receive shares of Applicable Stock through the Paying Agent, a
certificate for the number of full shares of Applicable Stock issuable in
payment of the Purchase Price or Change of Control Purchase Price, as the case
may be, and cash in lieu of any fractional interests. The person in whose name
the certificate for the shares of Applicable Stock is registered shall be
treated as a holder of record of Applicable Stock on the Business Day following
the Purchase Date or Change of Control Purchase Date, as the case may be.
Subject to Section 3.09(c), no payment or adjustment will be made for dividends
on the shares of Applicable Stock the record date for which occurred on or prior
to the Purchase Date or Change of Control Purchase Date, as the case may be.
Section 3.14. Securities Purchased In Part. Any Certificated Security
which is to be purchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or such ▇▇▇▇▇▇'s attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount at maturity equal to, and in exchange
for, the portion of the principal amount at maturity of the Security so
surrendered which is not purchased.
Section 3.15. Covenant To Comply With Securities Laws Upon Purchase Of
Securities. When complying with the provisions of Section 3.07 or 3.08 hereof
39
(provided that such offer or purchase constitutes an "issuer tender offer" for
purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), and subject to any exemptions available under applicable law, the
Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or any successor
provision) under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights and
obligations under Sections 3.07 and 3.08 to be exercised in the time and in the
manner specified in Sections 3.07 and 3.08.
Section 3.16. 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 Section 12 of the Securities, together with interest or
dividends, if any, thereon (subject to the provisions of Section 7.01(f)), held
by them for the payment of the Purchase Price or Change of 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 3.13 exceeds the aggregate Purchase Price or Change of
Control Purchase Price, as the case may be, of the Securities or portions
thereof which the Company is obligated to purchase as of the Purchase Date or
Change of Control Purchase Date, as the case may be, then, unless otherwise
agreed in writing with the Company, promptly after the Business Day following
the Purchase Date or Change of Control Purchase Date, as the case may be, the
Trustee shall return any such excess to the Company together with interest or
dividends, if any, thereon (subject to the provisions of Section 7.01(f)).
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts of cash or
shares of Applicable Stock to be given to the Trustee or Paying Agent, shall be
deposited with the Trustee or Paying Agent by 10:00 a.m.,
New York City time, by
the Company. The principal amount at maturity of, and Contingent Cash Interest
and Liquidated Damages, if any, on the Securities, and the Redemption Price,
Purchase Price and the Change of Control Purchase Price shall be considered paid
on the applicable date due if on such date (or, in the case of a Purchase Price
or Change of Control Purchase Price, on the Business Day following the
applicable Purchase Date or Change of Control Purchase Date, as the case may be)
the Trustee or the Paying Agent holds, in accordance with this Indenture, cash
or securities, if permitted hereunder, sufficient to pay all such amounts then
due.
40
Section 4.02. SEC And Other Reports. 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. In the event the Company is at any time
no longer subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be filed with
the SEC had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to provide reports had it continued to have
been subject to such reporting requirements. The Company also shall comply with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely conclusively on Officers'
Certificates).
Section 4.03. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending in May, 2003) an Officers' Certificate,
stating whether or not to the knowledge of the signers thereof, the Company is
in default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
Section 4.04. Further Instruments And Acts. The Company will execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
Section 4.05. Maintenance Of Office Or Agency. The Company will
maintain in the Borough of Manhattan, the City of
New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
41
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of the Trustee located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10286, shall initially be such office or agency
for all of the aforesaid purposes. The Company shall give prompt written notice
to the Trustee of the location, and of any change in the location, of any such
office or agency (other than a change in the location of the office of the
Trustee). If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.03.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of
New York, for such purposes.
Section 4.06. Delivery Of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock issued upon conversion thereof, or in
accordance with Section 3.08(c), the Company will promptly furnish or cause to
be furnished Rule 144A Information (as defined below) to such Holder or any
beneficial owner of Securities or holder or beneficial owner of shares of Common
Stock, or to a prospective purchaser of any such security designated by any such
holder, as the case may be, to the extent required to permit compliance by such
Holder or holder with Rule 144A under the Securities Act in connection with the
resale of any such security. "RULE 144A INFORMATION" shall be such information
as is specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a
person is a beneficial owner shall be determined by the Company to the Company's
reasonable satisfaction.
Section 4.07. Liquidated Damages Notice. In the event that the Company
is required to pay Liquidated Damages to holders of Securities pursuant to the
Registration Rights Agreement, the Company will provide written notice
("LIQUIDATED DAMAGES NOTICE") to the Trustee of its obligation to pay Liquidated
Damages no later than fifteen days prior to the proposed payment date for the
Liquidated Damages, and the Liquidated Damages Notice shall set forth the amount
of Liquidated Damages to be paid by the Company on such payment date. The
Trustee shall not at any time be under any duty to any holder of Securities to
determine the Liquidated Damages, or with respect to the nature, extent or
calculation of the amount of Liquidated Damages when made, or with respect to
the method employed in such calculation of the Liquidated Damages.
42
Section 4.08. Calculation Of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and actual periods) accrued on Outstanding Securities as of the end of such year
and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE 5
SUCCESSOR PERSON
Section 5.01. When Company May Merge Or Transfer Assets. The Company
shall not consolidate with or merge with or into any other Person or convey,
transfer, sell, lease or otherwise dispose of all or substantially all of its
properties and assets to any person, unless:
(a) either (1) the Company shall be the continuing corporation or
(2) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance, transfer or lease all or substantially all of
the properties and assets of the Company substantially as an entirety
(i) shall be a corporation organized and validly existing under the
laws of the United States or any State thereof or the District of
Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Event
of Default, and no event that, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article 5
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise) of the properties and assets of one or more Subsidiaries (other
than to the Company or another Subsidiary), which, if such assets were owned by
the Company, would constitute all or substantially all of the properties and
assets of
43
the Company, shall be deemed to be the transfer of all or substantially all of
the properties and assets of the Company.
The successor Person formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture, the Company shall be discharged from all obligations and covenants
under this Indenture and the Securities. Subject to Section 9.06, the Company,
the Trustee and the successor Person shall enter into a supplemental indenture
to evidence the succession and substitution of such successor Person and such
discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events Of Default. So long as any Securities are
outstanding, each of the following shall be an "Event of Default":
(1) the Company fails to convert any portion of the principal
amount at maturity of any Security following the exercise by the
Holder of the right to convert such Security into Common Stock
pursuant to and in accordance with Article 10 hereof;
(2) the Company defaults in its obligation to repurchase any
Security, or any portion thereof, upon the exercise by the Holder of
such Holder's right to require the Company to purchase such Securities
pursuant to and in accordance with Section 3.07 or 3.08 hereof;
(3) the Company defaults in its obligation to redeem any
Security, or any portion thereof, called for redemption by the Company
pursuant to and in accordance with Section 3.01 hereof.
(4) the Company defaults in the payment of the principal amount
at maturity of any Security when the same becomes due and payable at
its Stated Maturity or the payment of any portion of the principal
amount at maturity of any Security, including the Issue Price and
Accrued Original Discount, when the same becomes due and payable;
(5) the Company defaults in the payment of any Contingent Cash
Interest or Liquidated Damages when due and payable, and continuance
of such default for a period of 30 days;
44
(6) the Company fails to comply with any of its agreements or
covenants in the Securities or this Indenture (other than those
referred to in clause (1) through (5) above) and such failure
continues for 60 days after receipt by the Company of a Notice of
Default;
(7) a failure to pay when due at maturity or a default that
results in the acceleration of maturity of any indebtedness for
borrowed money of the Company or any Designated Subsidiary in an
aggregate amount of $50 million or more, unless the acceleration is
rescinded, stayed or annulled within 30 days after written notice of
default is given to the Company by the Trustee or Holders of not less
than 25% in aggregate principal amount at maturity of the Securities
then outstanding;
(8) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company or any of
its Subsidiaries that is a Designated Subsidiary or any group of two
or more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary, in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law
or (ii) a decree or order adjudging the Company or any of its
Subsidiaries that is a Designated Subsidiary or any group of two or
more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary, a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any of
its Subsidiaries that is a Designated Subsidiary or any group of two
or more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary, under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(9) the commencement by the Company or any of its Subsidiaries
that is a Designated Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary, of a voluntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any of its Subsidiaries that is a
Designated Subsidiary or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Designated Subsidiary, to the
entry of a decree or order for relief in respect of the Company or any
of its Subsidiaries that is a Designated Subsidiary or any group of
two or more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary, in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or insolvency case or
proceeding
45
against the Company, or the filing by the Company or any of its
Subsidiaries that is a Designated Subsidiary or any group of two or
more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary, of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by
the Company to the filing of such petition or to the appointment of or
the taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of
any substantial part of its property, or the making by the Company or
any of its Subsidiaries that is a Designated Subsidiary or any group
of two or more Subsidiaries that, taken as a whole, would constitute a
Designated Subsidiary, of an assignment for the benefit of creditors,
or the admission by the Company or any of its Subsidiaries that is a
Designated Subsidiary or any group of two or more Subsidiaries that,
taken as a whole, would constitute a Designated Subsidiary, in writing
of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or any of its Subsidiaries
that is a Designated Subsidiary or any group of two or more
Subsidiaries that, taken as a whole, would constitute a Designated
Subsidiary, expressly in furtherance of any such action.
A Default under clause (6) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount at maturity of the Securities at the time outstanding notify
the Company and the Trustee, of the Default and the Company does not cure such
Default (and such Default is not waived) within the time specified in clause (6)
above after actual receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
"DESIGNATED SUBSIDIARY" shall mean any existing or future, direct or
indirect, Subsidiary of the Company whose assets constitute 15% or more of the
total assets of the Company on a consolidated basis.
The Trustee shall, within 90 days of the occurrence of a Default, give
to the Holders of the Securities notice of all uncured Defaults known to it and
written notice of any event which with the giving of notice or the lapse of
time, or both, would become an Event of Default, its status and what action the
Company is taking or proposes to take with respect thereto; provided, however,
the Trustee shall be protected in withholding such notice if it, in good faith,
determines that the withholding of such notice is in the best interest of such
Holders, except in the case of a Default in the payment of the principal amount
at maturity of any Security, or any portion thereof, or any Contingent Cash
Interest or Liquidated Damages, if any, on any of the Securities when due or in
the payment of any redemption or purchase obligation of the Company.
Section 6.02. Acceleration. If an Event of Default (other than an Event
of Default with respect to the Company specified in Section 6.01(8) or 6.01(9))
46
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in aggregate principal amount at maturity of the Securities at
the time outstanding by notice to the Company and the Trustee, may declare the
Accreted Value of the Securities, or any portion thereof, and any accrued and
unpaid Contingent Cash Interest, if any, and accrued and unpaid Liquidated
Damages, if any, on all the Securities to be immediately due and payable. Upon
such a declaration, such accelerated amount shall be due and payable
immediately. If an Event of Default specified in Section 6.01(8) or 6.01(9) with
respect to the Company occurs and is continuing, the Accreted Value of the
Securities and any accrued and unpaid Contingent Cash Interest, if any, and
accrued and unpaid Liquidated Damages, if any, on all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate principal amount at maturity of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of the principal
amount at maturity of the Securities and any accrued and unpaid Contingent Cash
Interest, if any, and accrued and unpaid Liquidated Damages, if any, that have
become due solely as a result of acceleration and if all amounts due to the
Trustee under Section 7.07 have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
Section 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal amount at maturity of the Securities and any accrued and unpaid
Contingent Cash Interest, if any, and accrued and unpaid Liquidated Damages, if
any, on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.04. Waiver Of Past Defaults. The Holders of a majority in
aggregate principal amount at maturity of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may waive an existing Default and its consequences except (1)
an Event of Default described in Section 6.01(1) or 6.01(2), (2) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Securityholder affected or (3) a Default which constitutes a
failure to convert any Security in
47
accordance with the terms of Article 10. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right. This Section 6.04 shall be in lieu of Section
316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.05. Control By Majority. The Holders of a majority in
aggregate principal amount at maturity of the Securities at the time outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it. This Section 6.05 shall be in lieu of Section
316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.06. Limitation On Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount at
maturity of the Securities at the time outstanding make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of such notice, request and offer of security or
indemnity; and
(5) the Holders of a majority in aggregate principal amount at
maturity of the Securities at the time outstanding do not give the
Trustee a direction inconsistent with the request during such 60-day
period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
Section 6.07. Rights Of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount at maturity of the Securities and any accrued and unpaid
Contingent Cash Interest, if any, and accrued and unpaid Liquidated Damages, if
any, in respect of the Securities held by such Holder, on or after the
respective
48
due dates expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 10, or to bring suit for the enforcement
of any such payment on or after such respective dates or the right to convert,
shall not be impaired or affected adversely without the consent of such Holder.
Section 6.08. Collection Suit By Trustee. If an Event of Default
described in Section 6.01(2), 6.01(3) or 6.01(4) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Securities
and the amounts provided for in Section 7.07.
Section 6.09. Trustee May File Proofs Of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount at maturity of the Securities and any accrued
and unpaid Contingent Cash Interest, if any, and accrued and unpaid Liquidated
Damages, if any, in respect of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any such
amount) shall be entitled and empowered, by intervention in such proceeding or
otherwise.
(a) to file and prove a claim for the whole principal amount at
maturity of the Securities and any accrued and unpaid Contingent Cash Interest,
if any, and accrued and unpaid Liquidated Damages, 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 or
any other amounts due the Trustee under Section 7.07) and of the Holders allowed
in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or
49
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for the principal amount at maturity of the Securities and any accrued and
unpaid Contingent Cash Interest, if any, and accrued and unpaid Liquidated
Damages, if any, as the case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
Section 6.11. Undertaking For Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate principal amount at
maturity of the Securities at the time outstanding. This Section 6.11 shall be
in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.12. Waiver Of Stay, Extension Or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount at
maturity of the Securities and any accrued and unpaid Contingent Cash Interest,
if any, and accrued and unpaid Liquidated Damages, if any, on Securities, as
contemplated herein, or which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee,
50
but will suffer and permit the execution of every such power as though no such
law had been enacted.
ARTICLE 7
TRUSTEE
Section 7.01. Duties Of Trustee. The duties and responsibilities of the
Trustee shall be as provided by the TIA and as set forth herein.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture, but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein. This Section 7.01(b)
shall be in lieu of Section 315(a) of the TIA and such Section
315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this Section (c) does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
51
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee (acting in
any capacity hereunder) shall be under no liability for interest on any money
received by it hereunder unless otherwise agreed in writing with the Company.
(g) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(h) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 7.02. Rights Of Trustee. Subject to its duties and
responsibilities under the TIA.
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
52
(d) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other person employed to act
hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers'
53
Certificate may be signed by any person authorized to sign an Officers'
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.
Section 7.03. Individual Rights Of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in any offering
document for the Securities, the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.
Section 7.05. Notice Of Defaults. If a Default occurs and if it is
known to the Trustee, the Trustee shall give to each Securityholder notice of
the Default within 90 days after it occurs or, if later, within 15 days after it
is known to the Trustee, unless such Default shall have been cured or waived
before the giving of such notice. Notwithstanding the preceding sentence, except
in the case of a Default described in Section 6.01(1) and 6.01(2), the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the interest
of the Securityholders. The preceding sentence shall be in lieu of the proviso
to Section 315(b) of the TIA and such proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default, which notice specifically references this
Indenture and the Securities.
Section 7.06. Reports By Trustee To Holders. Within 60 days after each
May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such May 15
that complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify the Trustee promptly
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
54
Section 7.07. Compensation And Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including attorney's fees and expenses, and taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee)) incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim (whether asserted
by the Company or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay the principal
amount at maturity of, or the Redemption Price, Purchase Price, Change of
Control Purchase Price, Contingent Cash Interest or Liquidated Damages, if any,
as the case may be, on particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(5) or 6.01(6), the expenses including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any bankruptcy law.
Section 7.08. Replacement Of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.08. The Holders of a majority in aggregate principal amount at maturity of the
Securities at the time outstanding may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
55
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
If a successor ▇▇▇▇▇▇▇ does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount at maturity of the
Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Section 7.09. Successor Trustee By ▇▇▇▇▇▇. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee
(or its parent holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b).
Section 7.11. Preferential Collection Of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
56
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge Of Liability On Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced or repaid pursuant to Section 2.07) for cancellation or (ii)
all outstanding Securities have become due and payable and the Company deposits
with the Trustee cash sufficient to pay all amounts due and owing on all
outstanding Securities (other than Securities replaced pursuant to Section
2.07), and if in either case the Company pays all other sums payable hereunder
by the Company, then this Indenture shall, subject to Section 7.07, cease to be
of further effect. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
Opinion of Counsel and at the cost and expense of the Company.
Section 8.02. Repayment To The Company. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and the Trustee and the Paying
Agent shall have no further liability to the Securityholders with respect to
such money or securities for that period commencing after the return thereof.
ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent Of Holders. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder to:
(a) add to the covenants of the Company for the benefit of the Holders
of Securities;
(b) surrender any right or power herein conferred upon the Company;
(c) provide for conversion rights of Holders of Securities if any
reclassification or change of the Common Stock or any consolidation,
merger or sale of all or substantially all of the Company's assets
occurs;
(d) provide for the assumption of the Company's obligations to the
Holders of Securities in the case of a merger, consolidation,
conveyance, transfer or lease pursuant to Article 5 hereof;
57
(e) increase the Conversion Rate; provided, however, that such
increase in the Conversion Rate shall not adversely affect the
interests of the Holders of Securities (after taking into account tax
and other consequences of such increase);
(f) comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA;
(g) make any changes or modifications necessary in connection with the
registration of the Securities under the Securities Act as
contemplated in the Registration Rights Agreement; provided, however,
that such action pursuant to this clause (g) does not, in the good
faith opinion of the Board of Directors of the Company (as evidenced
by a Board Resolution) and the Trustee, adversely affect the interests
of the Holders of Securities in any material respect;
(h) add additional dates on which the Holders of Securities may
require the Company to repurchase their Securities;
(i) cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein or which is
otherwise defective; or to make any other provisions with respect to
matters or questions arising under this Indenture which the Company
may deem necessary or desirable and which shall not be inconsistent
with the provisions of the Indenture; provided, however, that such
action pursuant to this clause (h) does not, in the good faith opinion
of the Board of Directors of the Company (as evidenced by a Board
Resolution) and the Trustee, adversely affect the interests of the
Holders of Securities in any material respect; and
(j) add or modify any other provisions herein with respect to matters
or questions arising hereunder which the Company and the Trustee may
deem necessary or desirable and which will not adversely affect the
interests of the Holders of Securities.
Section 9.02. With Consent Of Holders. Except as provided below in this
Section 9.02, this Indenture or the Securities may be amended, modified or
supplemented, and noncompliance in any particular instance with any provision of
this Indenture or the Securities may be waived, in each case with the written
consent of the Holders of at least a majority of the principal amount at
maturity of the Securities at the time outstanding.
Without the written consent or the affirmative vote of each Holder of
Securities affected thereby, an amendment, supplement or waiver under this
Section 9.02 may not:
58
(a) change the maturity of any Security, or the payment date of any
installment of Contingent Cash Interest or Liquidated Damages payable
on any Security;
(b) reduce the principal amount at maturity or the Accrued Original
Issue Discount of, or the Contingent Cash Interest or Liquidated
Damages payable on, or the Redemption Price, Purchase Price or Change
of Control Purchase Price of, any Security;
(c) impair or adversely affect the conversion rights of any Holder of
Securities;
(d) reduce the rate at which Original Issue Discount accrues on the
Securities;
(e) change the currency of any amount owed or owing under the Security
or any interest thereon from U.S. Dollars;
(f) alter or otherwise modify the rate of Contingent Cash Interest and
Liquidated Damages on any Security, or the manner of calculation
thereof, or extend time for payment of any amounts due and payable to
the Holders of the Securities, except as set forth in Article 11
hereof;
(g) impair the right of any Holder to institute suit for the
enforcement of any payment or with respect to, or conversion of, any
Security;
(h) modify the obligation of the Company to maintain an office or
agency in The City of
New York pursuant to Section 4.05;
(i) adversely affect the purchase right of the Holders of the
Securities as provided in Article 3 or the right of the Holders of the
Securities to convert any Security as provided in Article 10, except
as otherwise permitted pursuant to Article 5 or Section 10.04 hereof;
(j) modify the provisions of Article 3 in a manner adverse to the
Holders of the Securities;
(k) modify any of the provisions of this Section, or reduce the
principal amount at maturity of outstanding Securities required to
waive a percentage of the aggregate Default, except to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security
affected thereby; or
(l) reduce the percentage of the aggregate principal amount at
maturity of the outstanding Securities the consent of whose Holders is
required for any such supplemental indenture entered into in
accordance
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with this Section 9.02 or the consent of whose Holders is required for
any waiver provided for in this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
Nothing in this Section 9.02 shall impair the ability of the Company
and the Trustee to amend this Indenture or the Securities without the consent of
any Securityholder to provide for the assumption of the Company's obligations to
the Holders of Securities in the case of a merger, consolidation, conveyance,
transfer or lease pursuant to Article 5 hereof.
Section 9.03. Compliance With Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA.
Section 9.04. Revocation And Effect Of Consents, Waivers And Actions.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of a Security hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
Section 9.05. Notation On Or Exchange Of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
Section 9.06. Trustee To Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.01) shall
be fully
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protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
Section 9.07. Effect Of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
CONVERSIONS
Section 10.01. Conversion Privilege. (a) Subject to and upon compliance
with the provisions of this Article 10, a Holder of a Security shall have the
right, at such Holder's option, to convert all or any portion (if the portion to
be converted is $1,000 principal amount at maturity or an integral multiple
thereof) of such Security into shares of Common Stock at the Conversion Rate in
effect on the date of conversion:
(1) during any fiscal quarter of the Company (a "FISCAL QUARTER")
commencing after November 24, 2002, if as of the last day of the
immediately preceding Fiscal Quarter, the Closing Price of the Common
Stock for at least 20 Trading Days in the 30 consecutive Trading Day
period ending on the last day of such preceding Fiscal Quarter was
more than the Specified Percentage multiplied by the Accreted
Conversion Price in effect on such 30th Trading Day;
(2) at any time prior to the close of business on the Business
Day preceding the date fixed for redemption, if such Security has been
called for redemption pursuant to Article 3 hereof;
(3) during any period in which (A) the credit rating assigned to
the Securities by both ▇▇▇▇▇'▇ Investor Services, Inc. and Standard &
Poor's Rating Services is Ba3 or lower and BB- or lower, respectively,
(B) the credit rating assigned to the Securities by both such rating
agencies is suspended or withdrawn or (C) neither of such rating
agencies is then rating the Securities; or only one rating agency is
rating the Securities and the rating is below the level specified
above;
(4) at any time following the occurrence and during the
continuance of an Event of Default; or
(5) as provided in Section (b) of this Section 10.01.
The Company or a designated agent shall determine on a daily basis
whether the Securities shall be convertible as a result of the occurrence of an
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event specified in clause (1) above and, if the Securities shall be so
convertible, the Company shall promptly deliver to the Trustee and Conversion
Agent written notice thereof. Whenever the Securities shall become convertible
pursuant to Section 10.01, the Company or, at the Company's request, the Trustee
in the name and at the expense of the Company, shall promptly notify the Holders
of the event triggering such convertibility in the manner provided in Section
12.02, and the Company shall also promptly publicly announce such information
and publish it on the Company's Web site. Any notice so given shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice.
(b) In addition, in the event that:
(1) the Company makes a distribution described in Section
10.03(d) or (e), where, in the case of a distribution described
in Section 10.03(e), the Fair Market Value (as determined by the
Board of Directors) of such distribution per share of Common
Stock exceeds 15% of the Closing Price of a share of Common Stock
on the Business Day immediately preceding the date of declaration
of such distribution, then, in each case, the Securities may be
surrendered for conversion at any time on and after the date that
the Company gives notice to the Holders of such right, which
shall be not less than 20 days prior to the Ex-Dividend Time for
such distribution, until the earlier of the close of business on
the Business Day immediately preceding the Ex-Dividend Time or
the date the Company announces that such distribution will not
take place.
(2) the Company consolidates with or merges into another
Person, or transfers, sells, leases or otherwise disposes of all
or substantially all of its assets, or is a party to a binding
share exchange pursuant to which the shares of Common Stock would
be converted into cash, securities or other property as set forth
in Section 10.04 hereof, then the Securities may be surrendered
for conversion at any time from and after the date which is 15
days prior to the date announced by the Company as the
anticipated effective time of such transaction until 15 days
after the actual date of such transaction.
"SPECIFIED PERCENTAGE" means a percentage equal to 125% for the
Measurement Period ending April 27, 2003 and declining 0.25% per Measurement
Period thereafter to 115% on October 28, 2022.
"EX-DIVIDEND TIME" means, with respect to any issuance or distribution
on shares of Common Stock, the first date on which the shares of Common Stock
trade regular way on the principal securities market on which the shares of
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Common Stock are then traded without the right to receive such issuance or
distribution.
Section 10.02. Conversion Procedure; Conversion Price; Fractional Shares.
(a) Each Security shall be convertible at the office of the Conversion
Agent into fully paid and nonassessable shares (calculated to the nearest
1/100th of a share) of Common Stock, subject to the right of the Company to
deliver cash in lieu of such Common Stock pursuant to Section 10.06. The rate at
which shares of Common Stock shall be delivered upon conversion (the "CONVERSION
RATE") shall be initially 13.0259 shares of Common Stock for each $1,000
principal amount at maturity of Securities. The Conversion Rate shall be
adjusted in certain instances as provided in Section 10.03 hereof, but shall not
be adjusted for any accrued and unpaid Contingent Cash Interest or Liquidated
Damages. Upon conversion, no payment shall be made by the Company with respect
to Accrued Original Issue Discount or any accrued and unpaid Contingent Cash
Interest. Instead, such amount shall be deemed paid by the shares of Common
Stock delivered upon conversion of any Security. In addition, no payment or
adjustment shall be made in respect of dividends on the Common Stock on a
converted Security. The Company shall not issue any fraction of a share of
Common Stock in connection with any conversion of Securities, but instead shall,
subject to Section 10.03(i) hereof, make a cash payment (calculated to the
nearest cent) equal to such fraction multiplied by the Closing Price of the
Common Stock on the last Trading Day prior to the date of conversion.
Notwithstanding the foregoing, a Security in respect of which a Holder has
delivered a Purchase Notice or Change of Control Purchase Notice exercising such
Holder's option to require the Company to repurchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with the
Section 3.12 hereof.
(b) Before any Holder of a Security shall be entitled to convert the
same into Common Stock, such Holder shall, in the case of Securities issued in
global form, comply with the procedures of the Depositary in effect at that
time, and in the case of Certificated Securities, surrender such Securities,
duly endorsed to the Company or in blank, at the office of the Conversion Agent,
and shall give written notice to the Company (a "NOTICE OF CONVERSION") at said
office or place that such Holder elects to convert the same and shall state in
writing therein the principal amount at maturity of Securities to be converted
and the name or names (with addresses) in which such Holder wishes the
certificate or certificates for Common Stock to be issued.
Before any such conversion, a Holder also shall pay all taxes or
duties, if any, as provided in Section 10.05.
If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares of Common Stock which shall
be
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deliverable upon conversion shall be computed on the basis of the aggregate
principal amount at maturity of the Securities (or specified portions thereof to
the extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable thereafter, issue and deliver
at said office or place to such Holder of a Security, or to such Holder's
nominee or nominees, certificates for the number of full shares of Common Stock
to which such Holder shall be entitled as aforesaid, together, subject to the
last sentence of Section 10.02(a) above, with cash in lieu of any fraction of a
share to which such Holder would otherwise be entitled. The Company shall not be
required to deliver certificates for shares of Common Stock while the stock
transfer books for such stock or the security register are duly closed for any
purpose, but certificates for shares of Common Stock shall be issued and
delivered as soon as practicable after the opening of such books or security
register.
(c) A Security surrendered for conversion shall be deemed to have been
converted as of the close of business on the later of (i) date of the surrender
of such Securities for conversion as provided above, (ii) the expiration of the
Cash Settlement Notice Period or (iii) if the Company elects to pay cash in lieu
of Common Stock pursuant to Section 10.06, the expiration of the Cash Settlement
Averaging Period, and the person or persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
Holder or Holders of such Common Stock as of the close of business on such date.
(d) In case any Security shall be surrendered for partial conversion,
the Company shall execute and the Trustee shall authenticate and deliver to or
upon the written order of the Holder of the Security so surrendered, without
charge to such Holder (subject to the provisions of Section 10.05 hereof), a new
Security or Securities in authorized denominations in an aggregate principal
amount at maturity equal to the unconverted portion of the surrendered
Securities.
(e) By delivering to the Holder the number of shares of Common Stock
issuable upon conversion, together with cash in lieu of any fractional shares as
provided in Section 10.02(b) hereof, the Company will satisfy its obligation
with respect to the Security, and upon such delivery Accrued Original Issue
Discount and accrued and unpaid Contingent Cash Interest, if any, with respect
to such Security will be deemed to be paid in full rather than canceled,
extinguished or forfeited.
(f) If a Securityholder delivers a Notice of Conversion after the
Interest Record Date for a payment of Contingent Cash Interest but prior to the
corresponding Interest Payment Date, such Securityholder must pay to the
Company, at the time such Securityholder surrenders Securities for Conversion,
an amount equal to the Contingent Cash Interest that has accrued and will be
paid on the related Interest Payment Date. This Section 10.02(f) shall not apply
to a Securityholder that converts Securities that are called by the Company for
64
redemption pursuant to Section 3.01 after an Interest Record Date for a payment
of Contingent Cash Interest but prior to the corresponding Interest Payment
Date. Notwithstanding the foregoing, the Company shall refund any amount paid by
a Securityholder pursuant to this section 10.02(f) if the Cash Settlement Notice
period or, if the Company elects to pay cash in lieu of Common Stock pursuant to
Section 10.06, the Cash Settlement Averaging Period, ends on or subsequent to
the Interest Payment Date immediately following the date such Securityholder
delivered a Notice of Conversion. Such refunded amount shall be paid at the time
of delivery of the Common Stock and cash deliverable to such Securityholder
pursuant to Section 10.02(b) following conversion of any Securities.
SECTION 10.03. 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 hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate shall be increased so that the same shall equal the
rate determined by dividing the Conversion Rate in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a
fraction,
(i) the numerator of which shall be the number of shares of the
Common Stock outstanding at the close of business on the date fixed
for such determination; and
(ii) the denominator of which shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purpose of this
paragraph (a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company. If any dividend or distribution of the type
described in this Section 10.03(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all holders
of its outstanding shares of Common Stock entitling them (for a period expiring
within forty-five (45) days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price (as defined below) on the date fixed for determination of
stockholders entitled to receive such rights or warrants, the Conversion Rate
shall be adjusted so that the same shall equal the rate determined by dividing
the Conversion Rate in effect immediately
65
prior to the date fixed for determination of stockholders entitled to receive
such rights or warrants by a fraction,
(i) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed
for determination of stockholders entitled to receive such rights or
warrants plus the number of shares that the aggregate offering price
of the total number of shares so offered would purchase at such
Current Market Price, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the
total number of additional shares of Common Stock offered for
subscription or purchase.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day following the date fixed for determination of 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 that 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. In the event that such rights or warrants are not so issued,
the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such date fixed 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 and any amount payable on exercise or conversion thereof, the
value of such consideration, if other than cash, to be determined by the Board
of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such combination becomes effective shall
be proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
66
(d) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock shares of any class of capital stock of the
Company or evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 10.03(b) and excluding
any dividend or distribution (x) paid exclusively in cash or (y) referred to in
Section 10.03(a) (any of the foregoing hereinafter in this Section 10.03(d)
called the "DISTRIBUTED ASSETS"), then, in each such case (unless the Company
elects to reserve such Distributed Assets for distribution to the Holders upon
the conversion of the Securities so that any such holder converting Securities
will receive upon such conversion, in addition to the shares of Common Stock to
which such holder is entitled, the amount and kind of such Distributed Assets
which such holder would have received if such holder had converted its
Securities into Common Stock immediately prior to the Record Date (as defined in
Section 10.03(h)(4) for such distribution of the Distributed Assets)), the
Conversion Rate shall be adjusted so that the same shall be equal to the rate
determined by dividing the Conversion Rate in effect on the Record Date with
respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price per
share of the Common Stock on such Record Date less 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) on the Record Date of the portion of the Distributed Assets
so distributed applicable to one share of Common Stock; and
(ii) the denominator of which shall be the Current Market Price
per share of the Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided, however, that in the event the
then fair market value (as so determined) of the portion of the Distributed
Assets 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
Holder shall have the right to receive upon conversion the amount of Distributed
Assets such holder would have received had such holder converted each Security
on the Record Date. In the event that such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been
declared. If the Board of Directors determines the fair market value of any
distribution for purposes of this Section 10.03(d) by reference to the actual or
when issued trading market for any securities, 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.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
67
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 10.03 (and no adjustment to the Conversion Rate under
this Section 10.03 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 10.03(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 10.03 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and
warrants had not been issued.
No adjustment of the Conversion Rate shall be made pursuant to this
Section 10.03(d) in respect of rights or warrants distributed or deemed
distributed on any Trigger Event to the extent that such rights or warrants are
actually distributed, or reserved by the Company for distribution to holders of
Securities upon conversion by such holders of Securities to Common Stock.
For purposes of this Section 10.03(d) and Sections 10.03(a) and (b),
any dividend or distribution to which this Section 10.03(d) is applicable that
also includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Rate adjustment required by this Section 10.03(d) with respect to
68
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Rate adjustment required by Sections
10.03(a) and (b) with respect to such dividend or distribution shall then be
made), except (A) the Record Date of such dividend or distribution shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution", "the date fixed for the
determination of stockholders entitled to receive such rights or warrants" and
"the date fixed for such determination" within the meaning of Sections 10.03(a)
and (b), and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of Section 10.03(a).
(e) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (an "EXTRAORDINARY CASH DIVIDEND")
(excluding (x) any quarterly cash dividend on the Common Stock to the extent the
aggregate cash dividend per share of Common Stock in any fiscal quarter does not
exceed the greater of (A) the amount per share of Common Stock of the next
preceding quarterly cash dividend on the Common Stock to the extent that such
preceding quarterly dividend did not require any adjustment of the Conversion
Rate pursuant to this Section 10.03(e) (as adjusted to reflect subdivisions, or
combinations of the Common Stock), and (B) 3.75% of the arithmetic average of
the Closing Price (determined as set forth in Section 10.03(h)) during the ten
Trading Days (as defined in Section 10.03(h)) immediately prior to the date of
declaration of such dividend, and (y) any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary), then, in such case, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Conversion Rate in effect immediately prior to the close of business on such
record date by a fraction,
(i) the numerator of which 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, and
(ii) the denominator of which shall be such Current Market Price
of the Common Stock,
such adjustment to be effective immediately prior to the opening of business on
the day following the record date; provided, however, that in the event 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 Holder shall have the right to receive upon conversion the
amount of cash such holder would have received had such holder converted each
Security on the
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record date. In the event that such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion Rate that
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 10.03(e)
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 10.03(e) 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.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders 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)
that as of the last time (the "EXPIRATION TIME") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) exceeds
the last reported Closing Price of the Common Stock (determined as provided in
the definition of Current Market Price) on the Trading Day next succeeding the
Expiration Time, the Conversion Rate shall be adjusted so that the same shall
equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the Expiration Time by a fraction
(i) the numerator of which 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 any maximum
specified in the terms of the tender or exchange 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) at the Expiration Time and the last reported Closing Price of
the Common Stock (determined as provided in the definition of Current
Market Price) on the Trading Day next succeeding the Expiration Time,
and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares)
at the Expiration Time multiplied by last reported Closing Price of
the Common Stock (determined as provided in the definition of the
Current Market Price) on the Trading Day next succeeding the
Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. In the event that the Company is
obligated to purchase shares pursuant to any such tender or exchange offer, but
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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 that would then be in effect if such
tender or exchange offer had not been made.
(g) In case of a tender or exchange offer made by a Person other than
the Company or any Subsidiary for an amount that increases the offeror's
ownership of Common Stock to more than twenty-five percent (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) that as of the last time (the "OFFER
EXPIRATION TIME") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it shall have been amended) that exceeds the last reported
Closing Price of the Common Stock (determined as provided in the definition of
the Current Market Price) on the Trading Day next succeeding the Offer
Expiration Time, and in which, as of the Offer Expiration Time the Board of
Directors is not recommending rejection of the offer, the Conversion Rate shall
be adjusted so that the same shall equal the rate determined by multiplying the
Conversion Rate in effect immediately prior to the Offer Expiration Time by a
fraction
(i) the numerator of which 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 any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Offer
Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "ACCEPTED PURCHASED SHARES") and (y)
the product of the number of shares of Common Stock outstanding (less
any Accepted Purchased Shares) at the Offer Expiration Time and the
last reported Closing Price of the Common Stock (determined as
provided in the definition of the Current Market Price) on the Trading
Day next succeeding the Offer Expiration Time, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares)
at the Offer Expiration Time multiplied by the last reported Closing
Price of the Common Stock (determined as provided in the definition of
the Current Market Price) on the Trading Day next succeeding the Offer
Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Offer 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
71
purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
tender or exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this Section 10.03(g) shall not be made if, as of the
Offer 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 Section 10.04.
(h) For purposes of this Section 10.03, the following terms shall have
the meaning indicated:
(1) "CLOSING PRICE" with respect to any security 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 as quoted on the
New
York Stock Exchange or, if such security is not quoted or listed or
admitted to trading on such
New York Stock Exchange, on the principal
national securities 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.
(2) "CURRENT MARKET PRICE" shall mean the average of the daily
Closing Prices per share of Common Stock for the ten consecutive
Trading Days selected by the Company commencing no more than 30
Trading Days before and ending not later than the earlier of such date
of determination and the day before the "ex" date with respect to the
issuance, distribution, subdivision or combination requiring such
computation immediately prior to the date in question. For purpose of
this paragraph, the term "ex" date, (1) when used with respect to any
issuance or distribution, means the first date on which the Common
Stock trades, regular way, on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the right to
receive such issuance or distribution, and (2) when used with respect
to any subdivision or combination of shares of Common Stock, means the
first date on which the Common Stock trades, regular way, on such
exchange or in such market after the time at which such subdivision or
combination becomes effective.
72
In the event that another issuance, distribution, subdivision,
combination or tender or exchange offer to which Section 10.03 applies
occurs during the period applicable for calculating "Current Market
Price" pursuant to the definition in the preceding paragraph, "Current
Market Price" shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such
issuance, distribution, subdivision, combination or tender or exchange
offer on the Closing Price of the Common Stock during such period.
(3) "FAIR MARKET VALUE", or "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 stockholders
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).
(i) The Company may make such increases in the Conversion Rate, in
addition to those required by Sections 10.03(a), (b), (c), (d), (e), (f) or (g)
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 from time to time may
increase the Conversion Rate by any amount for any period of time if the period
is at least twenty (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 increased pursuant to the preceding
sentence, the Company shall mail to holders of record of the Securities a notice
of the increase at least fifteen (15) days prior to the date the increased
Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.
(j) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
such rate; provided, however, that any adjustments that by reason of this
Section 10.03) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
10 shall be made by the Company and shall be made to the nearest cent or to the
nearest one-
73
hundredth of a share, as the case may be, with one half-cent and 0.005 of a
share, respectively, being rounded upward. No adjustment need be made for rights
to purchase Common Stock pursuant to a Company plan for reinvestment of
dividends or interest. To the extent the Securities become convertible into
cash, assets, property or securities (other than capital stock of the Company),
no adjustment need be made thereafter as to the cash, assets, property or such
securities.
(k) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other than
the Trustee an Officers' Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers' Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to the holder of each Security at his
last address appearing on the Security register provided for in Section 2.03 of
this Indenture, within twenty (20) days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(l) In any case in which this Section 10.03 provides that an adjustment
shall become effective immediately after (1) a record date or Record Date for an
event, (2) the date fixed for the determination of stockholders entitled to
receive a dividend or distribution pursuant to Section 10.03(a), (3) a date
fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 10.03(b), (4) the Expiration Time for any tender or
exchange offer pursuant to Section 10.03(f), or (5) the Offer Expiration Time
for a tender or exchange offer pursuant to Section 10.03(g) (each a
"DETERMINATION DATE"), the Company may elect to defer until the occurrence of
the relevant Adjustment Event (as hereinafter defined) (x) issuing to the holder
of any Security converted after such Determination Date and before the
occurrence of such Adjustment Event, the additional shares of Common Stock or
other securities issuable upon such conversion by reason of the adjustment
required by such Adjustment Event over and above the Common Stock issuable upon
such conversion before giving effect to such adjustment and (y) paying to such
holder any amount in cash in lieu of any fraction pursuant to Section 10.03(a).
For purposes of this Section 10.03(l), the term "ADJUSTMENT EVENT" shall mean:
(i) in any case referred to in clause (1) hereof, the occurrence
of such event,
74
(ii) in any case referred to in clause (2) hereof, the date any
such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date of
expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) or clause (5) hereof,
the date a sale or exchange of Common Stock pursuant to such tender or
exchange offer is consummated and becomes irrevocable.
(m) For purposes of this Section 10.03, 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 10.04. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 10.03(c) applies), (ii) any consolidation, merger,
statutory share exchange or combination of the Company with another Person as a
result of which holders of Common Stock shall be entitled to receive stock,
other securities or other property or assets (including cash) with respect to or
in exchange for such Common Stock, or (iii) any sale or conveyance of all or
substantially all of the properties and assets of the Company to any other
Person as a result of which holders of Common Stock shall be entitled to receive
stock, other securities 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 Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that each Security shall be convertible into the kind and amount of
shares of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, statutory
share exchange combination, sale or conveyance by a holder of a number of shares
of Common Stock issuable upon conversion of such Securities (assuming, for such
purposes, a sufficient number of authorized shares of Common Stock are available
to convert all such Securities) immediately prior to such reclassification,
change, consolidation, merger, statutory share exchange combination, sale or
conveyance assuming such holder of Common Stock did not exercise his rights of
election, if any, as to the kind or amount of stock, other securities or other
property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, statutory share exchange combination, sale or
conveyance (provided that, if the kind or amount of stock, other securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, statutory share exchange
75
combination, sale or conveyance is not the same for each share of Common Stock
in respect of which such rights of election shall not have been exercised
("NONELECTING SHARE"), then for the purposes of this Section 10.04 the kind and
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger, statutory
share exchange combination, sale or conveyance for each nonelecting share shall
be deemed to be the kind and amount so receivable per share by a plurality of
the nonelecting shares). 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 10.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Securities, at its address appearing on
the Security register provided for in Section 2.03 of this Indenture, within
twenty (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, statutory share
exchanges combinations, sales and conveyances.
If this Section 10.04 applies to any event or occurrence, Section 10.03
shall not apply.
SECTION 10.05. Taxes on Shares Issued. The issue of stock certificates
on conversions of Securities shall be made without charge to the converting
Holder for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of stock in any name other than that
of the holder of any Securities converted, and the Company shall not be required
to issue or deliver any such stock certificate unless and until the Person or
Persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
SECTION 10.06. Payment of Cash in Lieu of Common Stock.
(a) In lieu of delivery of shares of Common Stock upon notice of
conversion of any Securities (for all or any portion of the Securities), the
Company may elect to pay Holders surrendering Securities an amount in cash per
$1,000 Principal Amount at Maturity of Securities equal to the average Closing
Price of Common Stock during the Cash Settlement Averaging Period multiplied by
the Conversion Rate.
"CASH SETTLEMENT AVERAGING PERIOD" means the five consecutive Trading
Days immediately following (a) the expiration of the Conversion Retraction
Period (as defined below), (b) the Conversion Date, in the case of conversion
following the Company's notice of redemption specifying that the
76
Company intends to deliver cash upon conversion, in either case multiplied by
the Conversion Rate in effect on that date or (c) the Stated Maturity.
(b) The Company will inform the Holders no later than two Business Days
following the Conversion Date ("CASH SETTLEMENT NOTICE PERIOD") of its election
to pay cash in lieu of delivery of the Common Stock otherwise issuable upon
conversion, unless the Company has already informed Holders of its election in
connection with the Company's redemption of the Securities pursuant to Section
3.01 herein. Holders may retract their conversion notice at any time during the
two Business Day period beginning on the day after the final day of the Cash
Settlement Notice Period ("CONVERSION RETRACTION PERIOD"); no such retraction
can be made (and a conversion notice shall be irrevocable) if the Company does
not elect to deliver cash in lieu of Common Stock (other than cash in lieu of
fractional shares). If the conversion notice has not been retracted, then
settlement (in cash and/or Common Stock) will occur on the day following the
final day of the Cash Settlement Averaging Period. If an Event of Default (other
than a default in a cash payment upon conversion of the Securities), has
occurred and is continuing, the Company may not pay cash upon conversion of any
Securities or portion of the Security (other than cash for fractional shares).
(c) The Company may also elect to satisfy only part of its obligation
to deliver Common Stock upon conversion of Securities with cash, in which case
it must specify a fixed dollar amount of cash to deliver (the "ELECTED CASH
AMOUNT"). If the Company specifies an Elected Cash Amount the Company shall
deliver, for each $1,000 Principal Amount at Maturity of Securities converted
(i) the Elected Cash Amount specified by the Company, plus (ii) a number of
shares of Common Stock equal to the greater of (x) zero and (y) the excess, if
any, of the number of shares of Common Stock that would have otherwise been
deliverable pursuant to Section 10.02(a) over the number of shares of Common
stock equal to the sum of, for each day of the Cash Settlement Averaging Period,
(1) 20% of the Elected Cash Amount divided by (2) the Closing Price of the
Common Stock for such day.
SECTION 10.07. Reservation of Shares, Shares to Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock.
(a) The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for the conversion of the Securities from time to time
as such Securities are presented for conversion.
(b) Before taking any action which would cause an adjustment increasing
the Conversion Rate to an amount that would cause the Conversion Price to be
reduced below the then par value, if any, of the shares of Common Stock issuable
upon conversion of the Securities, the Company will take all corporate action
which may, in the opinion of its counsel, be necessary in order
77
that the Company may validly and legally issue shares of such Common Stock at
such adjusted Conversion Rate.
(c) (i) The Company covenants that all shares of Common Stock which may
be issued upon conversion of Securities or in payment of the Purchase Price or
the Change of Control Purchase Price pursuant to Section 3.09 will upon issue be
fully paid and non-assessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
(ii) The Company covenants that, if any shares of Common Stock to
be provided for the purpose of conversion of Securities hereunder or
for payment of the Purchase Price or the Change of Control Purchase
Price pursuant to Section 3.09 require registration with or approval
of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company will in
good faith and as expeditiously as possible, to the extent then
permitted by the rules and interpretations of the Securities and
Exchange Commission (or any successor thereto), endeavor to secure
such registration or approval, as the case may be.
(iii) The Company further covenants that, if at any time the
Common Stock shall be listed on the NYSE or any other national
securities exchange or automated quotation system, the Company will,
if permitted by the rules of such exchange or automated quotation
system, list and keep listed, so long as the Common Stock shall be so
listed on such exchange or automated quotation system, all Common
Stock issuable upon conversion of the Security or in payment of the
Purchase Price or the Change of Control Purchase Price pursuant to
Section 3.09; provided, however, that, if the rules of such exchange
or automated quotation system permit the Company to defer the listing
of such Common Stock until the first conversion of the Securities into
Common Stock or the first payment of the Purchase Price or the Change
of Control Purchase Price in Common Stock pursuant to Section 3.09 in
accordance with the provisions of this Indenture, the Company
covenants to list such Common Stock issuable upon conversion of the
Securities or in payment of the Purchase Price or the Change of
Control Purchase Price pursuant to Section 3.09 in accordance with the
requirements of such exchange or automated quotation system at such
time.
SECTION 10.08. 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 Securities to determine the Conversion Rate or 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 making the same. The Trustee and any other
conversion agent
78
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 Security; and
the Trustee and any other conversion agent make no representations with respect
thereto. 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 Security for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this
Article 10. 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 10.04 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 Securities after any event referred to in such
Section 10.04 or to any adjustment to be made with respect thereto, but, subject
to the provisions of Section 7.01, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, the
Officers' 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 10.09. 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 10.03; or
(b) the Company shall authorize the granting to the holders of all or
substantially all 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, merger or statutory share
exchange to which the Company is a party and for which approval of any
stockholders 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;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Securities at his address appearing on the register provided for in
Section 2.03 of this Indenture, as promptly as possible but in any event at
least ten (10) 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
79
of 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 are to be determined, or (y) the date on which such
reclassification, consolidation, merger, or statutory share exchange 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 deliverable upon such reclassification, consolidation, merger, or
statutory share exchange 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, or statutory share exchange sale, transfer, dissolution,
liquidation or winding up.
SECTION 10.10. Rights Issued in Respect of Common Stock Issued upon
Conversion. The Company has entered into a Rights Agreement, dated as of
December 31, 1995 (as amended, the "RIGHTS AGREEMENT") with ▇▇▇▇▇ Fargo Bank
Minnesota. Under the Rights Agreement, preference share purchase rights (the
"RIGHTS") have been, and may in the future be, issued in respect of shares of
Common Stock. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 10 shall be entitled to receive the appropriate number
of Rights, if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as provided
by and subject to the terms of the Rights Agreement as in effect at the time of
such conversion. If hereafter the Rights separate from the Common Stock in
accordance with the provisions of the Rights Agreement so that a Securityholder
would thereafter not be entitled to receive any Rights in respect of the Common
Stock issuable upon conversion of such Security, the Conversion Rate will be
adjusted as provided in Section 10.03(d) on the separation date. In lieu of any
such adjustment, the Company may amend the Rights Agreement to provide that upon
conversion Securityholders will receive, in addition to the Common Stock
issuable upon such conversion, the Rights which would have attached to such
shares of Common Stock if the Rights had not become separated from the Common
Stock pursuant to the provisions of the Rights Agreement.
If the Company hereafter adopts any stockholder rights plan similar to
the Rights Agreement, a Securityholder shall be entitled to receive upon
conversion of its Securities in addition to the shares of Common Stock issuable
upon conversion the related rights for the Common Stock, whether or not the
rights under the future stockholder rights plan have separated from the Common
Stock at the time of conversion, but otherwise subject to the generally
applicable terms of such plan and no additional adjustment to the Conversion
Rate shall be made for the future stockholder rights plan under Section
10.03(d).
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Section 10.11. Unconditional Right Of Holders To Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
convert its Security in accordance with this Article 10 and to bring an action
for the enforcement of any such right to convert, and such rights shall not be
impaired or affected without the consent of such Holder.
ARTICLE 11
CONTINGENT CASH INTEREST
Section 11.01. Contingent Cash Interest.
(a) The Company shall pay Contingent Cash Interest with respect to the
Securities for any Measurement Period commencing on or after October 28, 2005,
if the average Trading Price of a Security for the five Trading Days ending on
the second Trading Day immediately preceding the beginning of the relevant
Measurement Period exceeds 120% of the Accreted Value of such Security.
Notwithstanding the foregoing, if the Company declares a dividend on the Common
Stock for which the Record Date falls prior to the first day of a Measurement
Period but the payment date falls within such Measurement Period, then the five
Trading Day measuring period for determining the Trading Price will be the five
Trading Days preceding such dividend Record Date.
"TRADING PRICE" of the Securities on any date of determination means
the average of the secondary market bid quotations per Security obtained by the
Company or the Calculation Agent for $10,000,000 principal amount at maturity of
the Securities at approximately 3:30 p.m., New York City time, on such date of
determination from three independent nationally recognized securities dealers
selected by the Company; provided that if at least three such bids cannot
reasonably be obtained by the Company or the Calculation Agent, but two such
bids are obtained, then the average of the two bids shall be used, and if only
one such bid can reasonably be obtained by the Company or the Calculation Agent,
this one bid shall be used. If either the Company or the Calculation Agent
cannot reasonably obtain at least one bid for $10,000,000 principal amount at
maturity of the Securities from a nationally recognized securities dealer or, in
the reasonable judgment of the Company, the bid quotations are not indicative of
the secondary market value of the Securities, then the Trading Price of the
Securities will equal (a) the then-applicable Conversion Rate of the Securities
multiplied by (b) the Closing Price of the Common Stock on such date of
determination.
(b) The amount of Contingent Cash Interest payable per $1,000 principal
amount at maturity of Securities in respect of any Measurement Period will equal
the greater of (i) 15% of the product of (x) the sum of the Regular Cash
Dividends paid by the Company per share of Common Stock during the applicable
Measurement Period multiplied by (y) the number of shares of Common Stock
issuable upon conversion of $1,000 principal amount at maturity
81
of Securities at the then applicable Conversion Rate or (ii) $1.50; provided
that in no event shall the amount of Contingent Cash Interest exceed $2.50 per
$1,000 principal amount at maturity of Securities for any Measurement Period.
"REGULAR CASH DIVIDENDS" mean quarterly or other periodic cash
dividends that (1) have not been declared extraordinary dividends by Board of
Directors and (2) do not constitute Extraordinary Cash Dividends.
Section 11.02. Payment of Contingent Cash Interest.
(a) Contingent Cash Interest for any Measurement Period shall be paid
on April 27 and October 27 (each, an "INTEREST PAYMENT DATE") of each year, to
Securityholders of record as of the date 15 days preceding each Interest Payment
Date (the "INTEREST RECORD DATE").
(b) The Company will pay Contingent Cash Interest to a person other
than the Securityholder of record on the Interest Record Date if the Company
elects to redeem, or Securityholders elect to require us to repurchase, the
Securities on a date that is after a Interest Record Date but on or prior to the
corresponding Interest Payment Date. In that instance, the Company will pay
accrued and unpaid Contingent Cash Interest on the Securities being redeemed or
repurchased to, but not including, the Redemption Date, Purchase Date or Change
of Control Purchase Date, as the case may be, to the same person to whom it will
pay the Redemption Price, Purchase Price or Change of Control Purchase Price, as
the case may be, for those Securities.
(c) Each payment of Contingent Cash Interest shall be paid (i) if such
Security is held in the form of a Global Security, in same-day funds by transfer
to an account maintained by the payee located inside the United States, (ii) if
such Security is held in the form of a Certificated Security with an aggregate
principal amount at maturity of $5,000,000 or less, by check, mailed to the
address of such Holder as set forth in the Security Register; or (iii) if such
Security is held in the form of a Certificated Security with an aggregate
principal amount at maturity of more than $5,000,000, upon the request of the
Holder of such Certificated Security, by wire transfer in immediately available
funds to the account specified by such Holder. In the case of a Global Security,
Contingent Cash Interest payable on any Interest Payment Date will be paid to
the Depositary for the purpose of permitting DTC to credit the payment received
by it in respect of such Global Security to the accounts of the beneficial
owners thereof.
Section 11.03. Contingent Cash Interest Notification.
(a) By the first Business Day of a Measurement Period for which
Contingent Cash Interest will be payable, the Company will disseminate a press
release through Dow ▇▇▇▇▇ & Company, Inc. or Bloomberg Business News containing
this information or publish the information on its Web site or through such
other public medium as it may use may use at that time.
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(b) On any Interest Payment Date on which Contingent Cash Interest is
payable pursuant to this Article 11, the Company shall issue a press release
through Dow ▇▇▇▇▇ & Company, Inc. or Bloomberg Business News stating the amount
of such Contingent Cash Interest and setting forth the manner in which such
amount was calculated, or publish the information on its Web site or through
such other public medium as it may use may use at that time.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 12.02. Tax Treatment. The Company agrees, and by acceptance of
this Security, each Holder hereof is deemed to have agreed to treat the
Securities as indebtedness for United States federal income tax purposes that is
subject to regulations governing contingent payment debt instruments. A Holder
may obtain the comparable yield and projected payment schedule for the
Securities, as determined by the Company pursuant to Treas. Reg. Sec. 1.1275-4,
by submitting a written request to the Company at the following address: General
▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer. The comparable yield is 6.73% per annum.
Section 12.03. Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows or transmitted
by facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
if to the Company:
General ▇▇▇▇▇, Inc..
Number ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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if to the Trustee:
BNY Midwest Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Office
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
Section 12.04 . Communication By Holders With Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 12.05 . Certificate And Opinion As To Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 12.06 . Statements Required In Certificate Or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture
shall include:
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(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
Section 12.07. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.08. Rules By Trustee, Paying Agent, conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, the Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
Section 12.09. Legal Holidays. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest shall accrue with respect to such payment
for the intervening period.
Section 12.10. GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 12.11. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
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Section 12.12. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 12.13. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
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IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
GENERAL ▇▇▇▇▇, INC.
By:
-----------------------------------
Name:
Title:
BNY MIDWEST TRUST COMPANY,
As Trustee
By:
-----------------------------------
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF GLOBAL SECURITY]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR
ANY STATE SECURITIES LAWS, AND THIS SECURITY AND THE COMMON STOCK DELIVERABLE
UPON CONVERSION OF THIS SECURITY OR UPON PURCHASE OF THIS SECURITY BY THE
COMPANY MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER
IN COMPLIANCE WITH
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RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) PURSUANT TO
THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT OF 1933 (IF AVAILABLE), (D) TO ANY
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION
D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OF 1933 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
SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(E) ABOVE), A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.
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GENERAL ▇▇▇▇▇, INC.
Zero Coupon Convertible Senior Debentures Due 2022
REGISTERED
CUSIP:
ISSUE DATE: October 28, 2002
ISSUE PRICE: $671.65
(for each $1,000 principal amount at maturity)
ORIGINAL ISSUE DISCOUNT: $328.35
(for each $1,000 principal amount at maturity)
Principal Amount at Maturity: $___________
No. R-
GENERAL ▇▇▇▇▇, INC., a Delaware corporation, promises to pay to Cede &
Co. or registered assigns, the principal amount at maturity of
[__________________ dollars ($__________)], on October 28, 2022.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side of this Security, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: GENERAL ▇▇▇▇▇, INC.
By:
-----------------------------
Title:
--------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BNY MIDWEST TRUST COMPANY
(as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By
---------------------------------
Authorized Signatory
Dated:
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[FORM OF REVERSE OF GLOBAL SECURITY]
Zero Coupon Convertible Senior Debentures Due 2022
This Security is one of a duly authorized issue of Zero Coupon
Convertible Senior Debentures Due 2022 (the "SECURITIES") of General ▇▇▇▇▇,
Inc., a Delaware corporation (including any successor corporation under the
Indenture hereinafter referred to, the "COMPANY"), issued under an Indenture,
dated as of October 28, 2002 (the "INDENTURE"), between the Company and BNY
Midwest Trust Company, as trustee (the "TRUSTEE"). The terms of the Security
include those stated in the Indenture, those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended ("TIA"), and those set
forth in this Security. This Security is subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of all such terms. To
the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Security and the terms of the Indenture, the terms of
the Indenture shall control. Capitalized terms used but not defined herein have
the meanings assigned to them in the Indenture referred to below unless
otherwise indicated.
1. INTEREST; ORIGINAL ISSUE DISCOUNT.
General. The Securities shall not bear cash interest except as
otherwise set forth herein, and for Contingent Cash Interest as set forth in the
Indenture and in Section 3 hereof. If the Principal Amount at Maturity hereof or
any portion thereof, or the Purchase Price, Change of Control Purchase Price, or
accrued and unpaid Contingent Cash Interest or Liquidated Damages, if any, are
not paid when due (whether upon acceleration pursuant to Section 6.02 of the
Indenture, upon the date set for payment of the Redemption Price pursuant to
Section 5 hereof, upon the date set for payment of the Redemption Price,
Purchase Price or Change in Control Purchase Price pursuant to Section 6 hereof,
upon the Stated Maturity of the Securities, upon the Interest Payment Dates
pursuant to Section 11.03 of the Indenture or upon the Liquidated Damages
Payment Dates as defined in the Registration Rights Agreement), then in each
such case the overdue amount shall, to the extent permitted by law, bear cash
interest at the rate of 2% per annum, compounded semiannually, which interest
shall accrue from the date such overdue amount was originally due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable in cash on demand but if not so
demanded shall be paid quarterly to the Holders on the last day of each quarter.
Original Issue Discount in the period during which a Security remains
outstanding shall accrue at 2.00% per annum, on a semiannual bond equivalent
basis using a 360-day year comprised of twelve 30-day months, from the Issue
Date.
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2. METHOD OF PAYMENT.
Except as provided below, the Company shall pay Contingent Cash
Interest on (i) Global Securities, to DTC in immediately available funds, (ii)
any Certificated Security having an aggregate principal amount at maturity of
$5,000,000 or less, by check mailed to the Holder of such Security and (iii) any
Certificated Security having an aggregate principal amount at maturity of more
than $5,000,000, by wire transfer in immediately available funds at the election
of the Holder of any such Security.
At Stated Maturity, the Company will pay Contingent Cash Interest on
Certificated Securities at the Company's office or agency in New York City.
Subject to the terms and conditions of the Indenture, the Company will
make payments in cash, shares of Common Stock or a combination thereof, as the
case may be, in respect of Redemption Prices, Purchase Prices, Change of Control
Purchase Prices and at Stated Maturity to Holders who surrender Securities to a
Paying Agent to collect such payments in respect of the Securities. The Company
will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the Company
may make such cash payments by check payable in such money.
3. CONTINGENT CASH INTEREST
The Company shall pay Contingent Cash Interest under the circumstances
and in the amounts described in Article 11 of the Indenture. Such Contingent
Cash Interest, if any, shall be payable on April 27 and October 27 (each, an
"INTEREST PAYMENT DATE") of each year, in the manner described in Section 11.02
of the Indenture.
4. INDENTURE.
The Securities are general unsecured obligations of the Company limited
to $2,009,975,000 aggregate principal amount at maturity (up to $2,233,305,000
aggregate principal amount at maturity if the initial purchaser's option set
forth in the Purchase Agreement is exercised in full). The Indenture does not
limit other indebtedness of the Company, secured or unsecured.
5. REDEMPTION AT THE OPTION OF THE COMPANY.
No sinking fund is provided for the Securities. The Securities are
redeemable for cash at the option of the Company, in whole or in part, at any
time or from time to time on, or after October 28, 2005 upon not less than 30
nor more than 60 days' notice by mail for a redemption price equal to the
Accreted Value of the Securities redeemed plus accrued and unpaid Contingent
Cash Interest and Liquidated Damages, if any, on those Securities up to (but
excluding) the Redemption Date (the "REDEMPTION PRICE").
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The table below shows Redemption Prices of a Security per $1,000
principal amount at maturity, assuming that no Contingent Cash Interest or
Liquidated Damages have accrued, on the dates shown below and at Stated
Maturity, which prices reflect accrued Original Issue Discount calculated to
each such date. The Redemption Price of a Security redeemed between such dates
shall include an additional amount reflecting the additional Original Issue
Discount accrued since the next preceding date in the table. In addition, the
Redemption Prices set forth below would be increased by the amount of any
accrued and unpaid Contingent Cash Interest and Liquidated Damages.
(2) (3)
(1) Accrued Original Redemption Price
Issue Price Issue Discount (1) + (2)
----------- ---------------- ----------------
Redemption Date:
October 28:
2005 $671.65 $41.32 $712.97
2006 $671.65 $55.65 $727.30
2007 $671.65 $70.27 $741.92
2008 $671.65 $85.19 $756.84
2009 $671.65 $100.40 $772.05
2010 $671.65 $115.92 $787.57
2011 $671.65 $131.75 $803.40
2012 $671.65 $147.89 $819.54
2013 $671.65 $164.37 $836.02
2014 $671.65 $181.17 $852.82
2015 $671.65 $198.31 $869.96
2016 $671.65 $215.80 $887.45
2017 $671.65 $233.64 $905.29
2018 $671.65 $251.83 $923.48
2019 $671.65 $270.40 $942.05
2020 $671.65 $289.33 $960.98
2021 $671.65 $308.65 $980.30
At Stated Maturity $671.65 $328.35 $1,000.00
------------ ----------- --------------
In no event will any Security be redeemable before October 28, 2005.
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, all or any portion of
the Securities held by such Holder on October 28, 2005, October 28, 2007,
October 28, 2012 and October 28, 2017 in integral multiples of $1,000 at a
Purchase Price equal to the Accreted Value of those Securities plus accrued and
unpaid Contingent Cash Interest and Liquidated Damages, if any, on those
Securities up to (but excluding) the Purchase Date. To exercise such right, a
Holder shall
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deliver to the Company a Purchase Notice containing the information set forth in
the Indenture, at any time from the opening of business on the date that is 20
Business Days prior to such Purchase Date until the close of business on the
third Business Day prior to such Purchase Date, and shall deliver the Securities
to the Paying Agent as set forth in the Indenture.
The Purchase Price may be paid, at the option of the Company, in cash
or by the issuance and delivery of shares of Applicable Stock, or in any
combination thereof, subject to the terms and conditions of the Indenture.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to offer to purchase the
Securities held by such Holder within 30 days (which purchase shall occur 30
days after the date of such offer) after the occurrence of a Change of Control
of the Company for a Change of Control Purchase Price equal to the Accreted
Value of those Securities plus accrued and unpaid Contingent Cash Interest and
Liquidated Damages, if any, on those Securities up to (but excluding) the Change
of Control Purchase Date. The Change of Control Purchase Price may be paid, at
the option of the Company, in cash or by the issuance and delivery of shares of
Applicable Stock, or in any combination thereof, subject to the terms and
conditions of the Indenture.
Holders have the right to withdraw any Purchase Notice or Change of
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or Applicable Stock if permitted under the Indenture)
sufficient to pay the Purchase Price or Change of Control Purchase Price, as the
case may be, of all Securities or portions thereof to be purchased as of the
Purchase Date or the Change of Control Purchase Date, as the case may be, is
deposited with the Paying Agent, on the Business Day following the Purchase Date
or the Change of Control Purchase Date, Original Issue Discount, Contingent Cash
Interest, if any, and Liquidated Damages, if any, will cease to accrue on such
Securities (or portions thereof) immediately after such Purchase Date or Change
of Control Purchase Date, and the Holder thereof shall have no other rights as
such other than the right to receive the Purchase Price or Change of Control
Purchase Price upon surrender of such Security.
7. NOTICE OF REDEMPTION.
Notice of redemption pursuant to Section 5 of this Security will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at the Holder's registered address. If
money sufficient to pay the Redemption Price of all Securities (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent prior to or on the Redemption Date, immediately on and after such
Redemption Date, Original Issue Discount, Contingent Cash Interest, if any, and
Liquidated
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Damages, if any, will cease to accrue on such Securities or portions thereof.
Securities in denominations larger than $1,000 principal amount at maturity may
be redeemed in part but only in integral multiples of $1,000 of principal amount
at maturity.
8. CONVERSION.
Subject to and in compliance with the provisions of the Indenture
(including, without limitation, the conditions to conversion of this Security
set forth in Section 10.01 thereof), a Holder is entitled, at such Holder's
option, to convert the Holder's Security (or any portion of the principal amount
at maturity thereof that is $1,000 or an integral multiple $1,000), into fully
paid and nonassessable shares of Common Stock at the Conversion Price in effect
at the time of conversion.
The Company will notify Holders of any event triggering the right to
convert the Securities as specified above in accordance with the Indenture.
A Security in respect of which a Holder has delivered a Purchase Notice
or Change of Control Purchase Notice, as the case may be, exercising the option
of such Holder to require the Company to purchase such Security may be converted
only if such Purchase Notice or Change of Control Purchase Notice, as the case
may be, is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 13.0259 shares of Common Stock per
$1,000 principal amount at maturity, subject to adjustment in certain events
described in the Indenture. The Conversion Rate shall not be adjusted for any
accrued and unpaid Contingent Cash Interest or Liquidated Damages. Upon
conversion, no payment shall be made by the Company with respect to Accrued
Original Issue Discount and accrued and unpaid Contingent Cash Interest or
Liquidated Damages, if any. Instead, such amount shall be deemed paid by the
shares of Common Stock delivered upon conversion of any Security. In addition,
no payment or adjustment shall be made in respect of dividends on the Common
Stock, except as set forth in the Indenture.
To surrender a Security for conversion, a Holder must (1) complete and
manually sign the Notice of Conversion attached hereto (or complete and manually
sign a facsimile of such notice) and deliver such notice to the Conversion
Agent, (2) surrender the Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents and (4) pay any transfer or
similar tax, if required.
No fractional shares of Common Stock shall be issued upon conversion of
any Security. Instead of any fractional share of Common Stock that would
otherwise be issued upon conversion of such Security, the Company shall pay a
cash adjustment as provided in the Indenture.
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If the Company (i) is a party to a consolidation, merger, statutory
share exchange or combination, (ii) reclassifies the Common Stock, or (iii)
conveys, transfers or leases its properties and assets substantially as an
entirety to any Person, the right to convert a Security into shares of Common
Stock may be changed into a right to convert it into securities, cash or other
assets of the Company or such other Person, in each case in accordance with the
Indenture.
9. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Business Day prior to the Redemption Date,
may be deemed to be purchased from the Holders of such Securities at an amount
not less than the Redemption Price, by one or more investment bankers or other
purchasers who may agree with the Company to purchase such Securities from the
Holders, to convert them into shares of Common Stock and to make payment for
such Securities to the Trustee in trust for such Holders.
10. PAYING AGENT, CONVERSION AGENT AND REGISTRAR.
Initially, the Trustee will act as Paying Agent, Conversion Agent and
Registrar. The Company may appoint and change any Paying Agent, Conversion Agent
or Registrar without notice, other than notice to the Trustee; provided that the
Company will maintain at least one Paying Agent in the State of New York, City
of New York, Borough of Manhattan, which shall initially be an office or agency
of the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent or Registrar.
11. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of principal amount at maturity and integral multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Change of Control
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
12. PERSONS DEEMED OWNERS.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
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13. UNCLAIMED MONEY OR SECURITIES.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person.
14. AMENDMENT; WAIVER.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount at maturity of the
outstanding Securities and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate principal amount at maturity
of the outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities (i) to add to the covenants of
the Company for the benefit of the Holders of Securities, (ii) to surrender any
right or power conferred upon the Company in the Indenture, (iii) to provide for
conversion rights of Holders of Securities if any reclassification or change of
the Company's Common Stock or any consolidation, merger or sale of all or
substantially all of the Company's assets occurs, (iv) to provide for the
assumption of the Company's obligations to the Holders of Securities in the case
of a merger, consolidation, conveyance, transfer or lease pursuant to Article 5
of the Indenture, (v) to increase the Conversion Rate; provided, however, that
such increase in the Conversion Rate shall not adversely affect the interest of
the Holders of Securities (after taking into account tax and other consequences
of such increase), (vi) to comply with the requirements of the SEC in order to
effect or maintain the qualification of the Indenture under the TIA, (vii) to
make any changes or modifications necessary in connection with the registration
of the Securities under the Securities Act as contemplated in the Registration
Rights Agreement; provided, however, that such action pursuant to this clause
does not, in the good faith opinion of the Board of Directors of the Company (as
evidenced by a Board Resolution) and the Trustee, adversely affect the interests
of the Holders of Securities in any material respect, (viii) to cure any
ambiguity, to correct or supplement any provision in the Indenture which may be
inconsistent with any other provision therein or which is otherwise defective,
or to make any other provisions with respect to matters or questions arising
under the Indenture which the Company may deem necessary or desirable and which
shall not be inconsistent with the provisions of the Indenture; provided,
however, that such action pursuant to this clause does not, in the good faith
opinion of the Board of Directors of the Company (as evidenced by a Board
Resolution) and the Trustee, adversely affect the interests of the Holders of
Securities in any material respect, and (ix) to add or modify any other
provisions
A-10
in the Indenture with respect to matters or questions arising hereunder which
the Company and the Trustee may deem necessary or desirable and which will not
adversely affect the interests of the Holders of Securities.
15. DEFAULTS AND REMEDIES.
If any Event of Default with respect to Securities shall occur and be
continuing, the principal amount at maturity of the Securities and any accrued
and unpaid Contingent Cash Interest, if any, and accrued and unpaid Liquidated
Damages, if any, on all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
16. TRUSTEE DEALINGS WITH THE COMPANY.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. CALCULATIONS IN RESPECT OF SECURITIES.
The Company or its agents will be responsible for making all
calculations called for under the Securities including, but not limited to,
determination of the market prices for the Securities and of the Common Stock
and the amounts of Original Issue Discount, Contingent Cash Interest and
Liquidated Damages, if any, accrued on the Securities. Any calculations made in
good faith and without manifest error will be final and binding on Holders of
the Securities. The Company or its agents will be required to deliver to the
Trustee a schedule of its calculations and the Trustee will be entitled to
conclusively rely upon the accuracy of such calculations without independent
verification.
18. TAX TREATMENT.
The Company agrees, and by acceptance of this Security, each Holder
hereof is deemed to have agreed to treat the Securities as indebtedness for
United States federal income tax purposes that is subject to regulations
governing contingent payment debt instruments. A Holder may obtain the
comparable yield and projected payment schedule for the Securities, as
determined by the Company pursuant to Treas. Reg. Sec. 1.1275-4, by submitting a
written request to the Company at the following address: General ▇▇▇▇▇, Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
19. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
A-11
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
20. AUTHENTICATION.
This Security shall not be valid until an authorize signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.
23. COPY OF INDENTURE.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
GENERAL ▇▇▇▇▇, INC.
Number ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
24. REGISTRATION RIGHTS.
The Holders of the Securities are entitled to the benefits of a Resale
Registration Rights Agreement, dated as of October 28, 2002, among the Company,
Banc of America Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as
representatives of the several initial purchasers, including the receipt of
Liquidated Damages upon a Registration Default (as defined in such agreement).
The Company shall make payments of Liquidated Damages on the Liquidated Damages
Payment Dates (as defined in the Registration Rights Agreement), but otherwise
in accordance with the provisions set forth herein for the payment of Interest.
A-12
------------------------------------------------ ------ ----------------------------------------------------------
ASSIGNMENT FORM CONVERSION NOTICE
------------------------------------------------ ------ ----------------------------------------------------------
To assign this Security, fill in the form To convert this Security into Common Stock
below: of the Company, check the box [ ]
------------------------------------------------ ------ ---------------------------------------------
I or we assign and transfer this Security to To convert only part of this Security,
state the principal amount at maturity to
-------------------------------------------- be converted (which must be $1,000 or an
-------------------------------------------- integral multiple of $1,000):
(Insert assignee's soc. sec. or tax ID no.)
-----------------------------
-----------------------------
----------------------------- If you want the stock certificate made out
(Print or type assignee's name, in another person's name fill in the
address and zip code) form below:
----------------------------------------------------------
----------------------------------------------------------
and irrevocably appoint (Insert the other person's soc. sec. tax ID
no.)
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
____________________ agent to transfer this ----------------------------------------------------------
Security on the books of the Company. The (Print or type other person's name, address
agent may substitute another to act for him. and zip code)
------------------------------------------------ ------ ----------------------------------------------------------
Date: Your Signature:
----------- ---------------------------------
--------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By:
-----------------------------
Authorized Signatory
A-13
SCHEDULE OF INCREASES AND DECREASES
OF GLOBAL SECURITY
Initial Principal Amount at Maturity of Global Security: ________($________).
-----------------------------------------------------------------------------------------------------
Amount of Amount of Principal Amount
Increase in Decrease in at Maturity of
Principal Amount Principal Amount Global Security Notation by
at Maturity of at Maturity of After Increase or Registrar or
Date Global Security Global Security Decrease Security Custodian
-----------------------------------------------------------------------------------------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
--------------------- ------------------- ------------------- ------------------- -------------------
-----------------------------------------------------------------------------------------------------
A-14
EXHIBIT B
[FORM OF FACE OF CERTIFICATED SECURITY]
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933") OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933,
(C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE), (D)
TO ANY INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 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
SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(E) ABOVE), A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.
B-1
GENERAL ▇▇▇▇▇, INC.
Zero Coupon Convertible Senior Debentures Due 2022
REGISTERED
CUSIP:
ISSUE DATE: October 28, 2002
ISSUE PRICE: $671.65
(for each $1,000 principal amount at maturity)
ORIGINAL ISSUE DISCOUNT: $328.35
(for each $1,000 principal amount at maturity)
Principal Amount at Maturity: $___________
No. R-
GENERAL ▇▇▇▇▇, INC., a Delaware corporation, promises to pay to Cede &
Co. or registered assigns, the principal amount at maturity of
[__________________ dollars ($__________)], on ____________, 2022.
Reference is hereby made to the further provisions of this Security set
forth on the reverse side of this Security, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: GENERAL ▇▇▇▇▇, INC.
By:
----------------------------
Title:
-------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BNY MIDWEST TRUST COMPANY
(as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By
----------------------------------
Authorized Signatory
Dated:
B-2
[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A]
B-3
EXHIBIT C
GENERAL ▇▇▇▇▇, INC.
Zero Coupon Convertible Senior Debentures Due 2022
Transfer Certificate
In connection with any transfer of any of the Securities within the
period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) under the Securities Act of 1933, as amended (the
"SECURITIES ACT") (or any successor provision), the undersigned registered owner
of this Security hereby certifies with respect to $____________ principal amount
at maturity of the above-captioned Securities presented or surrendered on the
date hereof (the "SURRENDERED SECURITIES") for registration of transfer, or for
exchange or conversion where the securities issuable upon such exchange or
conversion are to be registered in a name other than that of the undersigned
registered owner (each such transaction being a "TRANSFER"), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered
Securities for the reason checked below:
[_] A transfer of the Surrendered Securities is made to the
Company or any subsidiaries; or
[_] The transfer of the Surrendered Securities complies with Rule
144A under the Securities Act; or
[_] The transfer of the Surrendered Securities complies with Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act; or
[_] The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act; or
[_] The transfer of the Surrendered Securities is pursuant to
another available exemption from the registration requirement
of the Securities Act;
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"AFFILIATE").
[_] The transferee is an Affiliate of the Company.
DATE:
----------------------------------
Signature(s)
C-1
(If the registered owner is a corporation, partnership or fiduciary,
the title of the person signing on behalf of such registered owner must be
stated.)
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
C-2