--------------------------------
DIMON Incorporated
TO
LASALLE NATIONAL BANK, Trustee
--------------------------------
INDENTURE
Dated as of April 1, 1997
--------------------------------
$140,000,000*
6-1/4% Convertible Subordinated Debentures due March 31, 2007
--------------------------------
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DIMON Incorporated
Certain Sections of this Indenture relating to
Sections 310 through 318 of the Trust Indenture Act
of 1939, as amended:
Trust Indenture Indenture
Act Section Section
---------------- -------------
* 310(a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 608, 610
* 311(a) . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
* 312(a) . . . . . . . . . . . . . . . . . . . 701,702(a)
(b) . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . 702(c)
* 313(a) . . . . . . . . . . . . . . . . . . . 703(a)
(b)(1) . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . 703(b)
* 314(a)(1) . . . . . . . . . . . . . . . . . . . 704
(a)(2) . . . . . . . . . . . . . . . . . . . 704
(a)(3) . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . Not Applicable
* 315(a) . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . 514
* 316(a)(1) . . . . . . . . . . . . . . . . . . . 502, 512, 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 507
* 317(a) . . . . . . . . . . . . . . . . . . . 503, 504
(b) . . . . . . . . . . . . . . . . . . . 1003
* 318(a) . . . . . . . . . . . . . . . . . . . 107
_____________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
- 71 -
TABLE OF CONTENTS
Page
------
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . 2
Cash Equivalent. . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . 3
Common Stock . . . . . . . . . . . . . . . . . . . . . 3
Company. . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request. . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . 3
corporation. . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture. . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date. . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . 4
NASD . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate. . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . 4
Outstanding. . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . 5
Redemption Date. . . . . . . . . . . . . . . . . . . . 5
- 72 -
Redemption Price . . . . . . . . . . . . . . . . . . . 5
Regular Record Date. . . . . . . . . . . . . . . . . . 5
Responsible Officer. . . . . . . . . . . . . . . . . . 5
Securities . . . . . . . . . . . . . . . . . . . . . . 6
Security Register. . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness. . . . . . . . . . . . . . . . . . 6
Special Record Date. . . . . . . . . . . . . . . . . . 6
Stated Maturity. . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . 6
Trustee. . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act. . . . . . . . . . . . . . . . . . 6
Vice President . . . . . . . . . . . . . . . . . . . . 6
SECTION 102. Compliance Certificates and Opinions . . . 7
SECTION 103. Form of Documents Delivered to Trustee.. . 7
SECTION 104. Acts of Holders; Record Dates. . . . . . . 8
SECTION 105. Notices, Etc., to Trustee and Company. . . 9
SECTION 106. Notice to Holders; Waiver. . . . . . . . . 9
SECTION 107. Conflict with Trust Indenture Act. . . . . 10
SECTION 108. Effect of Headings and Table of Contents . 10
SECTION 109. Successors and Assigns . . . . . . . . . . 10
SECTION 110. Separability Clause. . . . . . . . . . . . 10
SECTION 111. Benefits of Indenture. . . . . . . . . . . 10
SECTION 112. Governing Law. . . . . . . . . . . . . . . 10
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 11
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally. . . . . . . . . . . . . . 11
SECTION 202. Form of Face of Security . . . . . . . . . 11
SECTION 203. Form of Reverse of Security. . . . . . . . 13
SECTION 204. Form of Trustee's Certificate
of Authentication. . . . . . . . . . . . . 17
SECTION 205. Form of Conversion Notice. . . . . . . . . 17
ARTICLE THREE
The Securities
SECTION 301. Title and Terms. . . . . . . . . . . . . . 18
SECTION 302. Denominations. . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . 19
SECTION 304. Temporary Securities . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . ▇▇
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▇▇▇▇▇▇▇ ▇▇▇. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . . . . . 22
SECTION 307. Payment of Interest; Interest
Rights Preserved. . . . . . . . . . . . . . 22
SECTION 308. Persons Deemed Owners. . . . . . . . . . . 24
SECTION 309. Cancellation . . . . . . . . . . . . . . . 24
SECTION 310. Computation of Interest. . . . . . . . . . 24
ARTICLE FOR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture. . 25
SECTION 402. Application of Trust Money . . . . . . . . 26
ARTICLE FIVE
Remedies
SECTION 501. Events of Default. . . . . . . . . . . . . 26
SECTION 502. Acceleration of Maturity; Rescission
and Annulment. . . . . . . . . . . . . . . 28
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . 29
SECTION 504. Trustee May File Proofs of Claim . . . . . 30
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . 30
SECTION 506. Application of Money Collected . . . . . . 31
SECTION 507. Limitation on Suits. . . . . . . . . . . . 31
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest
and to Convert . . . . . . . . . . . . . . 32
SECTION 509. Restoration of Rights and Remedies . . . . 32
SECTION 510. Rights and Remedies Cumulative . . . . . . 33
SECTION 511. Delay or Omission Not Waiver . . . . . . . 33
SECTION 512. Control by Holders . . . . . . . . . . . . 33
SECTION 513. Waiver of Past Defaults. . . . . . . . . . 34
SECTION 514. Undertaking for Costs. . . . . . . . . . . 34
SECTION 515. Waiver of Stay or Extension Laws . . . . . 34
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities. . . . 35
SECTION 602. Notice of Defaults . . . . . . . . . . . . 35
SECTION 603. Certain Rights of Trustee. . . . . . . . . 35
SECTION 604. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . . . 36
SECTION 605. May Hold Securities. . . . . . . . . . . . 37
SECTION 606. Money Held in Trust. . . . . . . . . . . . 37
SECTION 607. Compensation and Reimbursement . . . . . . ▇▇
- ▇▇ -
▇▇▇▇▇▇▇ ▇▇▇. Disqualification; Conflicting Interests. . 38
SECTION 609. Corporate Trustee Required; Eligibility. . 38
SECTION 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . 38
SECTION 611. Acceptance of Appointment by Successor . . 40
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . 40
SECTION 613. Preferential Collection of Claims
Against Company. . . . . . . . . . . . . . 40
SECTION 614. Appointment of Authenticating Agent. . . . 41
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders. . . . . . . . . . 42
SECTION 702. Preservation of Information:
Communications to Holders . . . . . . . . . 43
SECTION 703. Reports by Trustee . . . . . . . . . . . . 43
SECTION 704. Reports by Company . . . . . . . . . . . . 43
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . . 44
SECTION 802. Successor Substituted. . . . . . . . . . . 45
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders . .. . . . . . . . . . . 45
SECTION 902. Supplemental Indentures with Consent
of Holders. . . . . . . . . . . . . . . . . 46
SECTION 903. Execution of Supplemental Indentures . . . 47
SECTION 904. Effect of Supplemental Indentures. . . . . 47
SECTION 905. Conformity with Trust Indenture Act. . . . 47
SECTION 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . 47
SECTION 907. Subordination Unimpaired . . . . . . . . . 47
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . 48
SECTION 1002. Maintenance of Office or Agency. . . . . . 48
SECTION 1003. Money for Security Payments to be
Held in Trust. . . . . . . . . . . . . . . 48
SECTION 1004. Existence. . . . . . . . . . . . . . . . . 50
SECTION 1005. Statement by Officers as to Default. . . . 50
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption. . . . . . . . . . . . 50
SECTION 1102. Applicability of Article . . . . . . . . . 50
SECTION 1103. Election to Redeem; Notice to Trust. . . . 51
SECTION 1104. Selection by Trustee of Securities
to Be Redeemed. . . . . . . . . . . . . . 51
SECTION 1105. Notice of Redemption . . . . . . . . . . . 51
SECTION 1106. Deposit of Redemption Price. . . . . . . . 52
SECTION 1107. Securities Payable on Redemption Date. . . 52
SECTION 1108. Securities Redeemed in Part. . . . . . . . 53
ARTICLE TWELVE
Conversion of Securities
SECTION 1201. Conversion Privilege and Conversion
Price. . . . . . . . . . . . . . . . . . . 53
SECTION 1202. Exercise of Conversion Privilege . . . . . 54
SECTION 1203. Fractions of Shares. . . . . . . . . . . . 55
SECTION 1204. Adjustment of Conversion Price.. . . . . . 55
SECTION 1205. Notice of Adjustments of Conversion Price. 61
SECTION 1206. Notice of Certain Corporate Action . . . . 62
SECTION 1207. Company to Reserve Common Stock. . . . . . 63
SECTION 1208. Taxes on Conversion. . . . . . . . . . . . 63
SECTION 1209. Covenant as to Common Stock. . . . . . . . 63
SECTION 1210. Cancellation of Converted Securities . . . 64
SECTION 1211. Provisions in Case of Consolidation,
Merger or Sale of Assets. . . . . . . . . . 64
ARTICLE THIRTEEN
Subordination of Securities
SECTION 1301. Securities Subordinated to Senior
Indebtedness . . . . . . . . . . . . . . . 65
SECTION 1302. Priority and Payment Over Upon
Insolvency and Dissolution. . . . . . . . . 66
SECTION 1303. Prior Payment to Senior Indebtedness
Upon Acceleration of the Securities . . . 67
SECTION 1304. Payment on Securities Suspended
When Senior Indebtedness is in Default . . 68
SECTION 1305. Obligation to Pay Securities Not
Impaired; Provisions Solely to Define
Relative Rights . . . . . . . . . . . . . . 69
SECTION 1306. Payment Permitted if No Default. . . . . . 69
SECTION 1307. Subrogation. . . . . . . . . . . . . . . . 70
SECTION 1308. Trustee to Effectuate Subordination. . . . 70
SECTION 1309. Changes. . . . . . . . . . . . . . . . . . 70
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SECTION 1310. Notice to Trustee. . . . . . . . . . . . . 71
SECTION 1311. Reliance on Judicial Order or
Certificate of Liquidating Agent . . . . . 71
SECTION 1312. Trustee Not Fiduciary for Holders of
Senior Indebtedness . . . . . . . . . . . . 72
SECTION 1313. Rights of Trustee as Holder of
Senior Indebtedness; Preservation of
Trustee's Rights. . . . . . . . . . . . . . 72
SECTION 1314. Article Applicable to Paying Agents. . . . 72
SECTION 1315. Certain Conversions Deemed Payment . . . . 73
SECTION 1316. Continued Effectiveness. . . . . . . . . . 73
SECTION 1317. Right of Holders of Senior
Indebtedness Not Impaired . . . . . . . . . 73
SECTION 1318. Continuing Agreement.. . . . . . . . . . . 73
ARTICLE FOURTEEN
Repurchase of Securities at the Option of the Holder
Upon a Change of Control
SECTION 1401. Right to Require Repurchase. . . . . . . . 74
SECTION 1402. Notices; Method of Exercising
Repurchase Right, Etc. . . . . . . . . . . 74
SECTION 1403. Deposit of Cash Sufficient to Pay
Repurchase Price . . . . . . . . . . . . . 76
SECTION 1404. Securities Not Repurchased on
Repurchase Date. . . . . . . . . . . . . . 76
SECTION 1405. Securities Repurchased in Part . . . . . . 76
SECTION 1406. Certain Definitions. . . . . . . . . . . . 76
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . . 88
ACKNOWLEDGEMENTS. . . . . . . . . . . . . . . . . . . . . . . 89
- 77 -
INDENTURE, dated as of April 1, 1997, between DIMON
Incorporated, a corporation duly organized and existing under the laws of
the Commonwealth of Virginia (herein called the "Company"), having its
principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
LaSalle National Bank, a banking corporation duly organized and existing
under the laws of the United States of America, as Trustee (herein called
the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 6-1/4% Convertible Subordinated Debentures due March 31, 2007 (herein
called the "Securities") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed
by the Company and authenticated and delivered hereunder and duly issued
by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and
its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
- 78 -
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles, and, except as
otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date
of this instrument; and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Articles Six, Thirteen
and Fifteen, are defined in those Articles.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"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, when used with respect to any specified Person,
"control" means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in
The City of Chicago are authorized or obligated by law or executive order
to close.
"Cash Equivalent" shall mean any U.S. Treasury security with
a known market value and, when acquired, a maturity of less than three
months.
- 79 -
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act
of 1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at
such time.
"Common Stock" includes any stock of any class of the
Company which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which is not subject to
redemption by the Company. However, subject to the provisions of
Section 1211, shares issuable on conversion of Securities Section 1403
shall include only shares of the class designated as Common Stock of
the Company at the date of this instrument or shares of any class or
classes resulting from any reclassification or reclassifications thereof
and which have no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such Successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business
shall be administered, which at the date hereof is located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Event of Default" has the meaning specified in Section 501.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
- 80 -
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and any
such supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, obligation to
repurchase or otherwise.
"NASD" means the National Association of Securities Dealers,
Inc.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1005
shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to
the Trustee.
"Outstanding," when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment, redemption or
repurchase money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; 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;
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
- 81 -
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations
of the Company; and
(iv) Securities converted into Common Stock pursuant to
Article 12.
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities
on behalf of the Company.
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, trust, association,
joint-stock company, unincorporated organization or government or any
agency or political subdivision thereof.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the Interest payable on any
Interest Payment Date means the March 15, June 15, September 15, or
December 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
"Responsible Officer," when used with respect to the
Trustee, means any officer assigned to and working in the corporate trust
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department of the Trustee, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to any particular
corporate matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
"Securities" shall have the meaning set forth in the
recitals hereto.
"Security Register" and "Security Registrar" shall have the
respective meanings specified in Section 305.
"Senior Indebtedness" shall have the meaning set forth in
Section 1301.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and
one or more other Subsidiaries. For the purposes of this definition,
"voting stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trading Day" shall have the meaning set forth in Section
1407.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Vice President", when used with respect to the Trustee,
means any vice president of the Trustee, whether or not designated by a
number or a word or words added before or after the title "vice
president," and when used with respect to the Company, means any
Executive Vice President, any Senior Vice President, the Vice President
and Treasurer and the Vice President-Controller of the Company.
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SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and opinions as may
be required under the Trust Indenture Act. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be
given by an officer of the Company, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust
Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
covenant or condition, including any conditions precedent, has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant, including any conditions
precedent, has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the certificate or
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opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(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 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. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the 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 (subject to Section 601) 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 acknowledgements of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his 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 Company may set a record date in the
circumstances permitted by the Trust Indenture Act for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by
Holders. If not set by the Company prior to the first solicitation of
a Holder in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote
shall be the 30th day (or, if later, the date of the most recent list
of Holders required to be provided pursuant to Section 701) prior to
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such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant
action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) 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 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.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event, and such waiver
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shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successor and assigns, whether so expressed or not.
SECTION 110. 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and
their successors hereunder, the holders of Senior Indebtedness and the
Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
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SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security or the last date on which a Holder has
the right to convert his Securities shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) or
conversion of the Securities need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, or on such last day for conversion, provided that no
interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this
Article, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by
their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed,
all as determined by the officers executing such Securities, as evidenced
by their execution of such Securities.
SECTION 202. Form of Face of Security.
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DIMON Incorporated
6-1/4% Convertible Subordinated Debenture
due March 31, 2007
No. ____________ $___________
DIMON Incorporated, a corporation duly organized and
existing under the laws of the Commonwealth of Virginia (herein called
the "Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises
to pay to _________________, or registered assigns, the principal sum
of ____________________ Dollars in cash on March 31, 2007, and to pay
interest thereon from ____________ ___, 1997 or from the most recent
Interest Payment Date to which interest has been paid or duly provided
for, quarterly on March 31, June 30, September 30 and December 31 in each
year, commencing _______________, 1997, at the rate of 6-1/4% per annum,
until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest, which shall be the March 15, June 15, September
15 or December 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security(or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities not less than 10 days
prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of (and premium, if any) and
interest on this Security will be made at the principal corporate trust
office of the Trustee and at any other office or agency maintained by the
Company for such purpose, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
DIMON Incorporated
By:
Attest:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of
Securities of the Company designated as its 6-1/4% Convertible Subordinated
Debentures due April 1, 2007 (herein called the "Securities"), limited in
aggregate principal amount to $140,000,000, issued and to be issued under
an Indenture dated as of April 1, 1997 (herein called the "Indenture"),
between the Company and LaSalle National Bank, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Indebtedness and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Subject to and upon compliance with the provisions of the
Indenture, the Holder of this Security is entitled, at his option, at any
time on or before the close of business on April 1, 2007, or in case this
Security or a portion hereof is called for redemption or is delivered for
repurchase, then in respect of this Security or such portion hereof until
and including, but (unless the Company defaults in making the payment due
upon redemption or repurchase) not after, the close of business on the
Business Day prior to the Redemption Date, or the Trading Day preceding
the Repurchase Date, as the case may be, to convert this Security (or any
portion of the principal amount hereof which is $1,000 or an integral
multiple thereof), at the principal amount hereof, or of such portion,
into fully paid and non-assessable shares (calculated as to each
conversion to the nearest 1/100 of a share) of Common Stock of the
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Company at a conversion price equal to $28.77 aggregate principal amount
of Securities for each share of Common Stock (or at the current adjusted
conversion price if an adjustment has been made as provided in the
Indenture). Such conversion shall be made by surrender of this Security,
duly endorsed or assigned to the Company or in blank, at the principal
corporate trust office of the Trustee or at any other office or agency
maintained by the Company for such purpose, accompanied by written notice
to the Company that the Holder hereof elects to convert this Security, or
if less than the entire principal amount hereof is to be converted, the
portion hereof to be converted, and, in case such surrender shall be made
during the period from the close of business on any Regular Record Date
next preceding any Interest Payment Date to the opening of business on
such Interest Payment Date (the "Interest Period"), also accompanied by
payment in New York Clearing House Funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest
Payment Date on the principal amount of this Security then being
converted. Notwithstanding the foregoing, in the case of Securities or
portions thereof that have been called for redemption and, pursuant to
Section 1301 of the Indenture, as a result of such redemption the right
to convert such Securities terminates during the Interest Period, any
such Securities surrendered for conversion during such Interest Period
shall be accompanied by payment, in New York Clearing House Funds or
other funds acceptable to the Company, of an amount equal to the
difference between (i) the interest on the principal amount of such
Securities payable on such Interest Payment Date and (ii) the amount of
accrued interest on the principal amount of such Securities to but not
including the Redemption Date. Subject to the aforesaid requirements for
payment and, in the case of a conversion after the Regular Record Date
next preceding any Interest Payment Date and on or before such Interest
Payment Date, to the right of the holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the
Indenture), no payment or adjustment is to be made on conversion for
interest accrued hereon or for dividends on the Common Stock issued upon
conversion. No fractions of shares or scrip representing fractions of
shares will be issued on conversion, but instead of any fractional
interest the Company shall pay a cash adjustment as provided in the
Indenture. The conversion price is subject to adjustment as provided in
the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture
shall be amended, without the consent of any Holders of Securities, so
that this Security, if then outstanding, will be convertible as specified
above, only into the kind and amount of securities, cash and other
property receivable upon the consolidation, merger or transfer by a
holder of the number of shares of Common Stock into which this Security
might have been converted immediately prior to such consolidation, merger
or transfer (assuming such holder of Common Stock failed to exercise any
rights of election and received per share the kind and amount of
securities, cash and other property received per share by a plurality of
non-electing shares).
The Securities are subject to redemption upon not less than
30 days' notice by mail at any time on or after April 1, 2000, as a whole
or in part, at the election of the Company, at the following Redemption
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Prices (expressed as percentages of the principal amount): If redeemed
during the 12-month period beginning April 1 of the years indicated,
Redemption Redemption
Year Price Year Price
2000 104.375% 2004 101.875%
2001 103.750 2005 101.25
2002 103.125 2006 100.625
2003 102.500
and thereafter at a Redemption Price equal to 100% of the principal
amount, together in the case of any such redemption with accrued interest
to the Redemption Date. Any interest installments having a Stated
Maturity on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture. The Redemption
Price shall be paid in cash.
In certain circumstances involving the occurrence of a
Change of Control (as defined in the Indenture), each Holder shall have the
right at such Holder's option, but subject to the conditions in the
Indenture, to require the Company to repurchase all or part of the
Securities at 100% of their principal amount plus accrued interest. The
Repurchase Price shall be paid in cash.
In the event of a redemption or conversion of this Security
in part only, a new Security or Securities for the unredeemed or
unconverted portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness, and
this Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
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obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security
and of any Security issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of
(and premium, if any) and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed or to convert
this Security as provided in the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the principal corporate trust office of the
Trustee or at any other office or agency maintained by the Company for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.
Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount
of Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this 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 this Security is registered as
the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
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All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-
mentioned Indenture.
LASALLE NATIONAL BANK,
as Trustee
By
Authorized Officer
SECTION 205. Form of Conversion Notice.
To DIMON Incorporated:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which
is $1,000 or an integral multiple thereof) below designated, into shares
of Common Stock of DIMON Incorporated in accordance with the terms of the
Indenture referred to in this Security, and directs that the certificate
or certificates for the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and
any Securities representing any unconverted principal amount hereof, be
issued in the name of and delivered to the undersigned, unless a
different name has been indicated below. If shares are to be issued in
the name of a person other than the undersigned, the undersigned will pay
any transfer taxes payable with respect thereto. Any amount required to
be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be converted
(in an integral multiple of $1,000, if less than all):
$_______________
FILL IN FOR REGISTRATION OF SHARES:
_________________________________________________________________________
Name
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_________________________________________________________________________
Address
_________________________________________________________________________
Please print name and address (including zip code)
Please Insert Social Security or
Other Taxpayer Identifying
Number
__________________
__________________
Dated:______________ Signature_________________________
(must conform in all respects
to name of Holder appearing on
face hereof)
Fill in for registration of shares of Common Stock and
Securities if to be issued otherwise than to the Holder:
_____________________________ Social Security or Other
(Name) Taxpayer Identifying Number:
_____________________________ ________________________________
(Name)
_____________________________
Please print name and address
(including zip code)
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
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The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is limited to
$140,000,000, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Sections 304, 305, 306, 906, 1108 or 1202.
The Securities shall be known and designated as the "6-1/4%
Convertible Subordinated Debentures due April 1, 2007" of the Company.
Their Stated Maturity shall be March 31, 2007, and they shall bear
interest at the rate of 6-1/4% per annum, from April 1, 1997 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly on March 31, June 30,
September 30, and December 31, commencing June 30, 1997, until the
principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the Corporate Trust Office of the Trustee
and at any other office or agency maintained by the Company for such
purpose; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall be convertible as provided in Article
Twelve.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
The Securities shall be subject to repurchase by the
Company, at the option of the Holders, as provided in Article Fourteen.
SECTION 302. Denominations.
The Securities shall be issuable only in fully registered
form without coupons and only in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers
on the Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company 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 such
Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed
by the Company to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Company Order shall authenticate and
deliver such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
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 executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered hereunder.
SECTION 304. 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 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 any office or agency of the Company designated pursuant to
Section 1002, 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 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 305. Registration, Registration of Transfer and Exchange.
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The Company shall keep or cause to be kept a register (the
register maintained either at the Corporate Trust Office of the Trustee
or in any other office or agency designated pursuant to Section 1002
being herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. Any such register shall be in written
form or in any other form capable of being converted into written form
within a reasonable time. The Trustee is hereby appointed a "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security
at an office or agency of the Company designated pursuant to Section 1002
for such purpose, 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 denominations
and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged 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.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Sections 304,
906, 1108 or 1202 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 1104 and
ending at the close of business on the day of such mailing, or (ii) to
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register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either 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 request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu
of any 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 the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent permitted by applicable law) all other rights and
remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to
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the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as
it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause
(2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the
Securities may be listed and any applicable requirements of
the NASD, and upon such notice as may be required by such
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exchange or by the NASD, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
In the case of any Security which is converted after any
Regular Record Date but on or before the next Interest Payment Date,
interest with a Stated Maturity on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion,
and such interest (whether or not punctually paid or duly provided for)
shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on such
Regular Record Date.
SECTION 308. 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 absolute owner of such Security for the purpose of receiving payment
of principal of (and premium, if any) and (subject to Section 307)
interest on such Security 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 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and
shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
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Interest on the Securities shall be computed on the basis of
a 360-day year of twelve 30-day months.
ARTICLE FOR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except
as to any surviving rights of conversion, registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee,
on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the
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case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall
be held in trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and interest for whose payment such
money has been deposited with the Trustee. All moneys deposited with the
Trustee pursuant to Section 401 (and held by it or any Paying Agent) for
the payment of Securities subsequently converted shall be returned to the
Company upon Company Request.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and
whether it shall be occasioned by the provisions of Article Thirteen or
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
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(1) default in the payment of any interest upon any
Security when it becomes due and payable, whether or not such
payment is prohibited by the provisions of Article Thirteen,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity whether or
not such payment is prohibited by the provisions of Article
Thirteen; or
(3) default in the payment of the Repurchase Price
(as defined in Section 1401) in respect of any Security on
the Repurchase Date (as defined in Section 1401) therefor in
accordance with the provisions of Article Fourteen, whether
or not such payment is prohibited by the provisions of
Article Thirteen; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a
written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State 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
(6) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
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bankruptcy or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its
property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company in
furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities may declare the
principal of all the Securities to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration, such principal shall become
immediately due and payable.
At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all Defaulted Interest on all
Securities,
(B) the principal of (and premium, if
any, on) any Securities which have become due
otherwise than by such declaration of
acceleration and interest thereon at the rate
borne by the Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
interest at the rate borne by the Securities, and
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(D) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment
of the principal of Securities which have become due solely
by such declaration of acceleration, having been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon. Upon receipt by the Trustee of written notice
declaring such an acceleration, or any rescission and annulment of any
such declaration, pursuant to this Section 502 with respect to the
Securities, a record date shall automatically and without any other
action by any Person be set for the purpose of determining the Holders of
Outstanding Securities entitled to join in such declaration, or
rescission and annulment, as the case may be, which record date shall be
the close of business on the day the Trustee receives such notice. The
Holders of Outstanding Securities on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in
such declaration, or rescission and annulment, as the case may be,
whether or not such Holders remain Holders after such record date;
provided that, unless such declaration, or rescission and annulment, as
the case may be, shall have become effective by virtue of Holders of the
requisite principal amount of Outstanding Securities on such record date,
(or their duly appointed agents) having joined therein on or prior to the
90th day after such record date, such declaration, or rescission and
annulment, as the case may be, shall automatically and without any action
by any Person be canceled and of no further effect.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, and,
to the extent that payment of such interest shall be legally enforceable,
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interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts immediately upon
such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor
upon the Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company
or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the
rights of the Holders by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its
creditors, the Trustee regardless of whether the principal 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 overdue principal
or interest shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized 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 other
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 to 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
607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder
in any such proceeding; provided that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors or other similar committee.
- ▇▇▇ -
▇▇▇▇▇▇▇ ▇▇▇. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any)
or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on
the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute
any action, suit or proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such action, suit or proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in aggregate principal
amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have
any right in any manner whatever by virtue of, or by availing itself of,
any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority
or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert.
Notwithstanding any other provision in this Indenture, but
subject to the provisions of Article Thirteen, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section
307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or repurchase,
on the Redemption Date, Repurchase Date) and to convert such Security in
accordance with Article Twelve and to institute suit for the enforcement
of any such payment and right to convert, and none of the rights
described in this Section 508 shall be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
- ▇▇▇ -
▇▇▇▇▇▇▇ ▇▇▇. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of
the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee,
provided that
(1) such direction shall not be in conflict with any
applicable rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
Upon receipt by the Trustee of any such direction with
respect to the Securities, a record date shall automatically and without
any other action by any Person be set for determining the Holders of
Outstanding Securities entitled to join in such direction, which record
date shall be the close of business on the day the Trustee receives such
direction. The Holders of Outstanding Securities on such record dates
(or their duly appointed agents), and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain
Holders after such record date; provided that, unless such direction
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shall have become effective by virtue of holders of the requisite
principal amount of Outstanding Securities on such record date (or their
duly appointed agents) having joined therein on or prior to the 90th day
after such record date, such direction shall automatically and without
any action by any Person be canceled and of no further effect.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended
without the consent of the Holder of each Outstanding
Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture, but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 514. 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,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against such party litigant, in the manner and
to the extent provided in the Trust Indenture Act; provided, that this
Section shall have no application to any suit instituted by the Company
or for the enforcement of the right to convert any Security in accordance
with Article Twelve.
SECTION 515. Waiver of Stay or Extension 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 to take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force,
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
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waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, 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
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. 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 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character
specified in Section 501(6), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default. On
the same date the Trustee gives the Holders any notice under this Section
602, the Trustee also shall give such notice to any holder of Senior
Indebtedness which has made a written request to the Trustee for notice
under this Section 602 and provided the Trustee with its address.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may 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
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believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) 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;
(c) 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, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) 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; and
(g) 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.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
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The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, 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 and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to
its negligence or bad faith;
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense 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 or liability in connection with the
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exercise or performance of any of its powers or duties
hereunder; and
(4) that the Company's obligation under this Section
607 to compensate the Trustee and to pay and reimburse the
Trustee for such expenses, disbursements and advances shall
not be subordinate to the payment of Senior Indebtedness of
the Company pursuant to Article Thirteen and shall constitute
additional indebtedness.
The Company's payment obligations pursuant to this Section 607 shall
survive the discharge of this Indenture. When the trustee incurs
expenses after the occurrence of an Event of Default specified in Section
501(6) or (7), the expenses are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by Federal, State or District
of Columbia authority. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
under Section 611.
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(b) The Trustee may resign subject to the provisions of
Section 310 of the Trust Indenture Act at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 514, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee
by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such corporation shall
be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
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If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer, partial conversion or partial redemption or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be subject to acceptance by the Company and
shall at all times be a corporation organized and doing business under
the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall (unless the agency is terminated by the
Trustee) continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
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Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be subject to
acceptance by the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of authentication
in the following form:
This is one of the Securities described in the within-
mentioned Indenture.
LASALLE NATIONAL BANK,
as Trustee
By____________________________________________________
As Authenticating Agent
By____________________________________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) quarterly, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders
as of such Regular Record Date, and
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(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses received by the Trustee
in its capacity as Security Registrar.
SECTION 702. Preservation of Information: Communications to Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. To the extent permitted by applicable
law, the Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to the names
and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company and, if required by any applicable rule or regulation, with the
NASD. The Company will notify the Trustee when the Securities are listed
on any stock exchange.
SECTION 704. Reports by Company.
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The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports,
and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
Person organized and validly existing under the laws of the
United States of America, any state thereof or the District
of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered by such Person to
the Trustee, in form satisfactory to the trustee, the due and
punctual payment of the principal of (and premium, if any)
and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Company
to be performed or observed and shall have provided for
conversion rights in accordance with Section 1211;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which, after
notice or lapses of time or both, would become an Event of
Default, shall have happened and be continuing; and
(3) the Company has 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 and that all conditions precedent
herein provided for relating to such transaction have been
complied with.
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For purposes of this Section and Section 802, a conveyance,
transfer or lease of the properties and assets of the Company
"substantially as an entirety" shall mean a conveyance, transfer of lease
of properties and assets of the Company representing 80% or more of the
fair value (as determined in good faith by the board of Directors) of all
of the properties and assets of the Company on the date of such
conveyance, transfer or lease.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or 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 Person had
been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power
herein conferred upon the Company; or
(3) to secure the Securities; or
(4) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Article
Twelve; or
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(5) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided such action pursuant to this Clause (5) shall not
adversely affect the interests of the Holders.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or change
the place of payment where, or the coin or currency in which,
any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date) or, in the case of a repurchase pursuant
to Article Fourteen, on or after the Repurchase Date, or
adversely affect the right to convert any Security as
provided in Article Twelve (except as permitted by Section
901(4)), or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner
adverse to the Holders, or
(2) reduce the percentage in aggregate principal
amount of the Outstanding Securities, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or
Section 513, except to increase any such percentage or 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.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating at the execution
of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which, in the Trustee's sole discretion,
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. 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.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
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 Company, 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 907. Subordination Unimpaired.
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No provision in any supplemental indenture which adversely
affects the superior position of the holders of Senior Indebtedness shall
be effective against holders of Senior Indebtedness who have not
consented thereto.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accordance with
the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency where
Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange, where
Securities may be surrendered for conversion and where notices and
demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company hereby initially appoints the
Trustee as its agent to receive all such presentations, surrenders,
notices and demands at its Corporate Trust Office. If at any time the
appointment of the Trustee as the Company's agent for such purposes shall
have been terminated and the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may
be made or served at the Corporate Trust Office, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
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. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Securities, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest so
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becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents,
it will, prior to each due date of the principal of (and premium, if any)
or interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the
Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so
to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (i) comply with the provisions
of the Trust Indenture Act applicable to it as a Paying Agent and (ii)
during the continuance of any default by the Company (or any other
obligor upon the Securities) in the making of any payment in respect of
the Securities, upon the written request of the Trustee, forthwith pay to
the Trustee all sums held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Security and remaining unclaimed
for two years after such principal (and premium, if any) or interest has
become due and payable shall, subject to applicable escheat and abandoned
property law, be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in
The Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
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SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect
its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous
in any material respect to the Holders.
SECTION 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
they may have knowledge.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed otherwise than at the option
of the Holder as provided in Article Fourteen at the election of the
Company, as a whole or from time to time in part, at any time on or after
April 1, 2000, at the Redemption Prices specified in the form of Security
hereinbefore set forth for redemptions, together with accrued interest to
the Redemption Date. The Redemption Price shall be paid in cash.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture,
shall be made in accordance with such provision and this Article.
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SECTION 1103. Election to Redeem; Notice to Trust.
The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of less than all the
Securities, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral
multiple thereof) of the principal amount of Securities of a denomination
larger than $1,000.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted during a selection
of Securities to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of Redemption shall be given by first-class mail,
postage prepaid, mailed not less than 10 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at his
latest address appearing in the Security Register.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are
to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on
and after said date,
(5) the conversion price, the date on which the right
to convert the principal of the Securities to be redeemed
will terminate and the place or places where such Securities
may be surrendered for conversion, and
(6) the place or places where such Securities are to
be surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the
Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date
other than any Securities called for redemption on that date which have
been converted prior to the date of such deposit.
If any Security called for redemption is converted, any
money deposited with the Trustee or with any Paying Agent or so segregated
and held in trust for the redemption of such Security shall (subject to
any right of the Holder of such Security or any Predecessor Security to
receive interest as provided in the last paragraph of Section 307) be
paid to the Company upon Company Request or, if then held by the Company,
shall be discharged from such trust.
SECTION 1107. Securities Payable on Redemption Date.
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Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and after
such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption
Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that
purpose pursuant to Section 1002 (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 his 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 equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Conversion of Securities
SECTION 1201. Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security or any portion
of the principal amount thereof which is $1,000 or an integral multiple
of $1,000 may be converted at the principal amount thereof, or of such
portion thereof, into fully paid and nonassessable shares (calculated as
to each conversion to the nearest 1/100 of a share) of Common Stock of
the Company, at the conversion price, determined as hereinafter provided,
in effect at the time of conversion. Such conversion right shall expire
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at the close of business on March 31, 2007. In case a Security or
portion thereof is called for redemption or is delivered for repurchase,
such conversion right in respect of the Security or portion so called
shall expire at the close of business on the Business Day prior to the
Redemption Date, or the Trading Day preceding the Repurchase Date (as
such terms are defined in Article Fourteen), as the case may be, unless
the Company defaults in making the payment due upon redemption or
repurchase.
The price at which shares of Common Stock shall be delivered
upon conversion (herein called the "conversion price") shall be initially
$28.77 per share of Common Stock. The conversion price shall be adjusted
in certain instances as provided in Section 1204.
SECTION 1202. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security, duly endorsed
or assigned to the Company or in blank, at any office or agency of the
Company maintained for that purpose pursuant to Section 1002, accompanied
by written notice to the Company at such office or agency that the Holder
elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted.
Securities surrendered for conversion during the period from the close of
business on any Regular Record Date next preceding any Interest Payment
Date to the opening of business on such Interest Payment Date (the
"Interest Period") shall be accompanied by payment of an amount equal to
the interest payable on such Interest Payment Date on the principal
amount of Securities being surrendered for conversion, except that in the
case of Securities or portions thereof that have been called for
redemption and, pursuant to Section 1201 hereof, as a result of such
redemption, the right to convert such Securities terminates during the
Interest Period, any such Securities surrendered for conversion during
such Interest Period shall be accompanied by payment in an amount equal
to the difference between (i) the interest on the principal amount of
such Securities payable on such Interest Payment Date and (ii) the amount
of accrued interest on the principal amount of such Securities to, but
not including, the Redemption Date. Except as provided in the preceding
sentence and subject to the fourth paragraph of Section 307, no payment
or adjustment shall be made upon any conversion on account of any
interest accrued on the Securities surrendered for conversion or on
account of any dividends on the Common stock issued upon conversion. All
payments required by this paragraph to be made by Holder upon the
surrender of Securities for conversion shall be made in New York Clearing
House funds or other funds acceptable to the Company.
Securities shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of
such Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such
Securities as Holders shall cease, and the Person or Persons entitled
to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock
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at such time. As promptly as practicable on or after the conversion
date, the Company shall issue and shall deliver at such office or agency
a certificate or certificates for the number of full shares of Common
Stock issuable upon conversion, together with payment in lieu of any
fraction of a share, as provided in Section 1203.
In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations in
aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
SECTION 1203. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon
conversion of Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares
which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issuable upon conversion of any
Security or Securities (or specified portions thereof); the Company shall
pay a cash adjustment in respect of such fraction in an amount equal to
the same fraction of the market price per share of Common Stock (as
determined by the Board of Directors or in any manner prescribed by the
Board of Directors) at the close of business on the day of conversion.
SECTION 1204. Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or
other distribution on any class of capital stock of the Company
exclusively in Common Stock, the conversion price in effect at the
opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination and the denominator 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 purposes of this paragraph (1), 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.
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(2) Subject to the last sentence of paragraph (7) of
this Section, in case the Company shall issue rights, options or
warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed for
the determination of stockholders entitled to receive such rights or
warrants, the conversion price in effect at the opening of business on
the day following the date fixed for such determination shall be reduced
by multiplying such conversion price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of the
total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the denominator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase, such
reduction to become effective immediately after the opening of business
on the day following the date fixed for such determination. For the
Purposes of this paragraph (2), 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 issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of
Common Stock shall each be combined into a smaller number of shares of
Common Stock, the conversion price in effect at the opening of business
on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase,
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.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock, cash or assets
(including securities, but excluding any (i) rights or warrants referred
to in paragraph (2) of this Section, (ii) any dividend or distribution
paid exclusively in cash, (iii) any dividend or distribution referred to
in paragraph (1) of this Section and (iv) any distribution or dividend
paid upon a merger or consolidation to which Section 1211 applies), the
conversion price shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately
prior to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction of which
the numerator shall be the current market price per share (determined as
provided in paragraph (8) of this Section) of the Common Stock on the
date fixed for such determination less the then fair market value (as
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determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee),
of the portion of the assets, shares, cash or evidences of indebtedness
so distributed applicable to one share of Common Stock and the
denominator shall be such 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 the date fixed for the
determination of stockholders entitled to receive such distribution. If
the Board of Directors determines the fair market value of any
distribution for purposes of this paragraph (4) by reference to the
actual or when issued trading market for any securities comprising such
distribution, it must in doing so consider the prices in such market over
the same period used in computing the current market price per share
pursuant to paragraph (8) of this Section if such prices are available in
such market for such period. For purposes of this paragraph (4), any
dividend or distribution that includes shares of Common Stock, rights or
warrants to subscribe for or purchase shares of Common Stock or other
securities convertible into or exchangeable for shares of Common Stock
shall be deemed instead to be (a) a dividend or distribution of the
evidences of indebtedness, cash, assets or shares of capital stock other
than such shares of Common Stock, such rights or warrants or such other
convertible or exchangeable securities (making any conversion price
reduction required by this paragraph (4)) immediately followed by (b) in
the case of such shares of Common Stock or such rights or warrants, a
dividend or distribution thereof (making any further conversion price
reduction required by paragraph (1) or (2) of this Section, except (i)
the Reference Date of such dividend or distribution as defined in this
paragraph (4) shall be substituted as "the date fixed for the
determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of paragraphs
(1) and (2) of this Section and (ii) 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 paragraph (1) of this Section) or (c) in the case of such
other convertible or exchangeable securities, a dividend or distribution
of such number of shares of Common Stock as would then be issuable upon
the conversion exchange thereof, whether or not the conversion or
exchange of such securities is subject to any conditions (making any
further conversion price reduction required paragraph (1) of this
Section, except (i) the Reference Date of such dividend or distribution
as defined in this paragraph (4) shall be substituted as "the date fixed
for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination" and (ii) the
shares deemed to constitute such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for such
determination," each within the meaning of paragraph (1) of this
Section). Notwithstanding the foregoing, in the event that the Company
shall distribute rights or warrants (other than those referred to in
paragraph (2) of this Section) ("Rights") pro rata to holders of Common
Stock, the Company shall make proper provision so that each Holder of a
Security who converts such Security (or any portion thereof) after the
record date for such distribution and prior to the expiration or
redemption of the Rights shall be entitled to receive upon such
conversion, in addition to the shares of Common Stock issuable upon such
conversion (the "Conversion Shares"), a number of Rights to be determined
as follows: (i) if such conversion occurs on or prior to the date for the
distribution to the holders of Rights of separate certificates evidencing
such Rights (the "Distribution Date"), the same number of Rights to which
a holder of a number of shares of Common Stock equal to the number of
Conversion Shares is entitled at the time of such conversion in
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accordance with the terms and provisions of and applicable to the Rights,
and (ii) if such conversion occurs after the Distribution Date, the same
number of Rights to which a holder of the number of shares of Common
Stock into which the principal amount of the Security so converted was
convertible immediately prior to the Distribution Date would have been
entitled on the Distribution Date in accordance with the terms and
provisions of and applicable to the Rights.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a merger or consolidation to which Section 1211
applies or as part of a distribution referred to in paragraph (4) of this
Section) in an aggregate amount that, combined together with (I) the
aggregate amount of any other distributions to all holders of its Common
Stock made exclusively in cash within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment
pursuant to this paragraph (5) has been made and (II) the aggregate of
any cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution) of any other consideration payable in respect of any
tender offer by the Company or any of its subsidiaries for all or any
portion of the Common Stock concluded within the 12 months preceding the
date of payment of such distribution and in respect of which no
adjustment pursuant to paragraph (6) of this Section has been made,
exceeds 12.5% of the product of the current market price per share of the
Common Stock on the Calculation Date (as defined below) times the number
of shares of Common Stock outstanding on such Calculation Date, then, and
in each such case, immediately after the close of business on such
Calculation Date, the conversion price shall be adjusted so that the same
shall equal the price determined by multiplying the conversion price in
effect immediately prior to the close of business on the Calculation Date
by a fraction (i) the numerator of which shall be equal to the current
market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on the Calculation Date less an amount equal
to the quotient of (x) the excess of such combined amount over such 12.5%
and (y) the number of shares of Common Stock outstanding on such
Calculation Date and (ii) the denominator of which shall be equal to the
current market price per share (determined as provided in paragraph (8)
of this Section) of the Common Stock on such Calculation Date. As used
in this paragraph (5), "Calculation Date" means, in the case of a
dividend, the date of declaration of such dividend and, in the case of
any other type of distribution, the date for the determination of holders
of shares of Common Stock entitled to receive such distribution.
(6) In case a tender offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and
such tender offer (as amended upon the expiration thereof) shall require
the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
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conclusive and described in a Board Resolution) that combined together
with (I) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of
such tender offer, of any other consideration payable in respect of any
other tender offer by the Company or any Subsidiary for all or any
portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to this paragraph (6) has been made and (II) the aggregate
amount of any distributions to all holders of the Company's Common Stock
made exclusively in cash within the 12 months preceding the expiration of
such tender offer and in respect of which no adjustment pursuant to
paragraph (5) of this Section has been made, exceeds 12.5% of the product
of the current market price per share of the Common Stock (determined as
provided in paragraph (8) of this Section) as of the last time (the
"Expiration Time") tenders could have been made pursuant to such tender
offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time,
then, and in each such case, immediately prior to the opening of business
on the day after the date of the Expiration Time, the conversion price
shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price immediately prior to close of business
on the date of the Expiration Time by a fraction (i) the numerator of
which shall be equal to (A) the product of (I) the current market price
per share of the Common Stock (determined as provided in paragraph (8) of
this Section) on the date of the Expiration Time and (II) the number of
shares of Common Stock outstanding (including any tendered shares) as of
the Expiration Time less (B) the amount of cash plus 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 offer) of Purchased Shares, and (ii) the denominator
of which shall be equal to the product of (A) the current market price
per share of the Common Stock (determined as provided in paragraph (8) of
this Section) as of the Expiration Time and (B) the number of shares of
Common Stock outstanding (including any tendered shares) as of the
Expiration Time less the number of all shares validly tendered 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").
(7) The reclassification of Common Stock into securities
including other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1211 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of paragraph
(4) of this Section), and (b) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
paragraph (3) of this Section). Rights or warrants issued by the Company
to all holders of its Common Stock entitling the holders thereof to
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subscribe for or purchase shares of Common Stock, which rights or
warrants (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, in each case in clauses (i) through
(iii) until the occurrence of a specified event or events ("Trigger
Event"), shall for purposes of this Section 1204 not be deemed issued
until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under this
paragraph and paragraphs [(2), (4) and (5)] of this Section, the current
market price per share of Common Stock on any date shall be deemed to be
the average of the daily Closing Prices for the 5 consecutive Trading
Days selected by the Company commencing not more than 20 Trading Days
before, and ending not later than, the date in question provided,
however, that (i) if the "ex" date for any event (other than the issuance
or distribution requiring such computation) that requires an adjustment
to the conversion price pursuant to paragraph (1), (2), (3), (4), (5)
or (6) above occurs on or after the 20th Trading Day prior to the day in
question and prior to the "ex" date for the issuance or distribution
requiring such computation, the Closing Price for each Trading Day prior
to the "ex" date for such other event shall be adjusted by multiplying
such Closing Price by the same fraction by which the conversion price is
so required to be adjusted as a result of such other event, (ii) if the
"ex" date for any event (other than the issuance of distribution
requiring such computation) that requires an adjustment to the conversion
price pursuant to paragraph (1), (2), (3), (4), (5) or (6) above occurs
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on or after the "ex" date for the issuance or distribution requiring such
computation and on or prior to the day in question, the Closing Price for
each Trading Day on and after the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the reciprocal of the
fraction by which the conversion price is so required to be adjusted as a
result of such other event, and (iii) if the "ex" date for the issuance
or distribution requiring such computation is on or prior to the day in
question, after taking into account any adjustment required pursuant to
clause (ii) of this proviso, the Closing Price for each Trading Day on or
after such "ex" date shall be adjusted by adding thereto the amount of
any cash and the fair market value on the day in question (as determined
by the Board of Directors in a manner consistent with any determination
of such value for purposes of paragraph (4), or (5) of this Section,
whose determination shall be conclusive and described in a Board
Resolution) of the evidences of indebtedness, shares of capital stock or
assets being distributed applicable to one share of Common Stock as of
the close of business on the day before such "ex" date. For the purpose
of any computation under paragraph (6) of this Section, the current
market price per share of Common Stock on any date shall be deemed to be
the average of the daily Closing Prices for the 5 consecutive Trading
Days selected by the Company commencing on or after the latest (the
"Commencement Date") of (i) the date 20 Trading Days before the date in
question, (ii) the date of commencement of the tender offer requiring
such computation and (iii) the date of the last amendment, if any, of
such tender offer involving a change in the maximum number of shares for
which tenders are sought or a change in the consideration offered, and
ending not later than the Expiration time of such tender offer; provided,
however, that if the "ex" date for any event (other than the tender offer
requiring such computation) that requires an adjustment to the conversion
price pursuant to paragraph (1), (2), (3), (4), (5) or (6) above occurs
on or after the Commencement Date and prior to the Expiration Time for
the tender offer requiring such computation, the Closing Price for each
Trading Day prior to the "ex" date, for such other event shall be
adjusted by multiplying such Closing Price by the same fraction by which
the conversion price is so required to be adjusted as a result of such
other event. For purposes of this paragraph, the term "ex" date, (i)
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, (ii)
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, and (iii) when Stock
trades regular way on such exchange or in such market after the
Expiration Time of such tender offer.
(9) The Company may make such reductions in the
conversion price, in addition to those required by paragraphs (1), (2),
(3), (4), (5) and (6) of this Section, as it considers to be advisable
in order that any event treated for Federal income tax purposes as a
dividend of stock or stock rights shall not be taxable to the
recipients.
(10) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the conversion price; provided, however, that any adjustments
which by reason of this paragraph (10) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(11) Notwithstanding any other provision of this Section
1204, no adjustment to the conversion price shall reduce the conversion
price below the then par value per share of the Common Stock, and any
such purported adjustment shall instead reduce the conversion price to
such par value. The Company hereby covenants not to take any action (i)
to increase the par value per share of the Common Stock or (ii) that
would or does result in any adjustment in the conversion price that, if
made without giving effect to the previous sentence, would cause the
conversion price to be less than the then par value per share of the
Common Stock; provided, that the covenant in this sentence shall be
suspended if within 10 days of determining in good faith that such action
would result in such adjustment (but not later than the Business Day
following the effectiveness of such adjustment), the Company gives a
notice under Section 1103 and effects the redemption referred to in such
notice on the Redemption Date referred to therein, but shall be
retroactively reinstated if such notice or redemption does not occur.
SECTION 1205. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein
provided:
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(a) the Company shall compute the adjusted conversion
price in accordance with Section 1204 and shall prepare a
certificate signed by the Treasurer of the Company setting
forth the adjusted conversion price and showing in reasonable
detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed with the Trustee
and at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 1002; and
(b) a notice stating that the conversion price has
been adjusted and setting forth the adjusted conversion price
shall forthwith be required, and as soon as practicable after
it is required, such notice shall be mailed by the Company to
all Holders at their last addresses as they shall appear in
the Security Register.
SECTION 1206. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable (i) otherwise
than exclusively in cash or (ii) exclusively in cash in an
amount that would require any adjustment pursuant to Section
1204; or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights; or
(c) of any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its
outstanding shares of Common Stock), or of any consolidation
or merger 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; or
(e) the Company or any Subsidiary shall commence a
tender offer for all or a portion of the Company's
outstanding shares of Common Stock (or shall amend any such
tender offer);
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 1002, and shall cause to be mailed to all Holders at their last
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addresses as they shall appear in the Security Register, at least 20 days
(or 10 days in any case specified in clause (a) or (b) above) prior to
the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights, options 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, rights, options or
warrants are to be determined, (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date
as of which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities, cash
or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up, or (z)
the date on which such tender offer commenced, the date on which such
tender offer is scheduled to expire unless extended, the consideration
offered and the other material terms thereof (or the material terms of
any amendment thereto). Neither the failure to give such notice nor any
defect herein shall affect the legality or validity of the proceedings
described in clauses (a) through (e) of this Section 1206.
SECTION 1207. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available,
free from pre-emptive rights, out of its authorized but unissued Common
Stock, for the purpose of effecting the conversion of Securities, the
full number of shares of Common Stock then issuable upon the conversion
of all outstanding Securities.
SECTION 1208. Taxes on Conversion.
The Company will pay any and all taxes that may be payable
in respect of the issue or delivery of shares of Common Stock on conversion
of Securities pursuant hereto. 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 shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be
converted, and no such issue or delivery shall be made unless and until
the Person requesting such issue has paid to the Company the amount of
any such tax, or has established to the satisfaction of the Company that
such tax has been paid.
SECTION 1209. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Securities will upon issue be fully paid
and nonassessable and, except as provided in Section 1208, the Company
will pay all taxes, liens and charges with respect to the issue thereof.
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SECTION 1210. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered
to the Trustee to be canceled by or at the direction of the Trustee, which
shall dispose of the same as provided in Section 309.
SECTION 1211. Provisions in Case of Consolidation, Merger or Sale of
Assets.
In case of any consolidation of the Company with or merger
of the Company into, any other Person, any merger of another Person into
the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company) or any sale or transfer of all or
substantially all of the assets of the Company, the Person formed by such
consolidation or resulting from such merger or which acquires such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 1201, to convert
such Security only into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by
a holder of the number of shares of Common Stock of the Company into
which such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer, assuming such holder of Common
Stock of the Company (i) is not a Person with which the Company
consolidated or into which the Company merged or which merged into the
Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer is not the same for each share of
Common Stock of the Company held immediately prior to such consolidation,
merger, sale or transfer by other than a constituent Person or an
Affiliate thereof and in respect of which such rights of election shall
not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by each non-
electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to
the effective date of such supplemental indenture, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
ARTICLE THIRTEEN
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Subordination of Securities
SECTION 1301. Securities Subordinated to Senior Indebtedness.
All Securities issued under this Indenture shall be issued
subject to the following provisions, and each Holder of any Security
whether upon original issue or upon transfer or assignment thereof
accepts and agrees to be bound by such provisions.
All Securities issued hereunder shall, to the extent and in
the manner hereinafter set forth, be subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness as
defined in this Section. The term "Senior Indebtedness" shall mean (a)
all indebtedness of the Company, including the principal of and premium,
if any, and interest (including interest accrued before and after the
filing of any petition seeking reorganization, arrangement, adjustment,
or composition of or in respect of the Company) on such indebtedness
whether outstanding on the date of this Indenture or thereafter created,
(i) for borrowed money, including all fees, expenses, reimbursements,
indemnities and other amounts payable under any credit document or note
evidencing money borrowed from banks, (ii) money borrowed by others and
guaranteed, directly or indirectly, by the Company, (iii) constituting
purchase money indebtedness for the payment of which the Company is
directly or contingently liable, (iv) constituting reimbursement
obligations under bank letters of credit, (v) under interest rate and
currency swaps, caps, floors, collars or similar agreements or
arrangements intended to protect the Company against fluctuations in
interest or currency rates, or (vi) under any lease of any real or
personal property, whether outstanding on the date of execution of this
Indenture or thereafter created, incurred or assumed, which obligations
are capitalized on the books of the Company in accordance with generally
accepted accounting principles, unless, in any such case, by the terms of
the instrument creating or evidencing such indebtedness it is provided
that such indebtedness is not superior in right of payment to the
Securities or to other indebtedness which is pari passu with, or
subordinated to, the Securities, and (b) any amendments, supplements,
refinancings, modifications, refundings, deferrals, renewals or
extensions of any such Senior Indebtedness, or securities, notes or other
evidences of indebtedness issued in exchange for such Senior
Indebtedness. As used in the preceding sentence the term "purchase money
indebtedness" shall mean indebtedness evidenced by a note, debenture,
bond or other similar instrument (whether or not secured by any lien or
other security interest) given in connection with the acquisition of any
business, properties or assets of any kind acquired by the Company or any
Subsidiary; provided, however, that, without limiting the generality of
the foregoing, the term "purchase money indebtedness" shall not include
any conditional sale contract or any account payable or any other
indebtedness created or assumed by the Company in the ordinary course of
business in connection with the obtaining of inventories or services
(such proviso not being intended to exclude from "Senior Indebtedness"
any indebtedness for borrowed money incurred by the Company under working
capital lines of credit).
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SECTION 1302. Priority and Payment Over Upon Insolvency and Dissolution.
In the event of (i) any insolvency or bankruptcy case' or
proceeding or any receivership, liquidation, reorganization or similar
case or proceeding in connection therewith relative to the Company or its
creditors as such or to its assets, or (ii) any liquidation, dissolution
or other winding up of the Company, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or (iii) any
assignment for the benefit' of creditors or other marshalling of assets
and liabilities of the Company, then and in any such event the holders of
the Senior Indebtedness shall be entitled to receive payment in full in
cash or Cash Equivalents of all amounts due or to become due on or in
respect of all Senior Indebtedness before the Trustee or the Holders of
the Securities shall be entitled to receive and retain any payment in
respect of the principal, premium, if any, interest or other amounts due
or to become due on the Securities, and to that end the holders of the
Senior Indebtedness shall be entitled to receive, for application to the
payment of the Senior Indebtedness (pro rata to each such holder on the
basis of the respective amounts of Senior Indebtedness held by such
holder as its interest may appear), any payment or distribution of any
kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company which is
subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event. Accordingly, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, which would otherwise
have been made to the Trustee or the Holders of the Securities but for
the provisions of this Section 1302 shall instead be made by the Company
or by the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution
of assets of the Company directly to the holders of the Senior
Indebtedness for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness
in full in cash or Cash Equivalents after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of the
Senior Indebtedness.
If, notwithstanding the foregoing provisions of this Section
1302, the Trustee or any Holder of the Securities shall have received any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company which is
subordinated to the payment of the Securities, before all amounts due or
to become due on or in respect of all Senior Indebtedness have been paid
in full in cash or Cash Equivalents, and if such fact shall, at or prior
to the time of such payment or distribution, have been made known to the
Trustee in accordance with and as required by Section 1310 or otherwise
or, as the case may be, such Holder, then and in such event such payment
or distribution shall be held in trust for the benefit of and shall, to
the extent permitted by applicable law, be paid over or delivered to the
holders of such Senior Indebtedness or their respective representatives,
or to the trustee or trustees under any indenture pursuant to which any
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instruments evidencing any of such Senior Indebtedness may have been
issued, as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid (pro rata to each
such holder on the basis of the respective amounts of Senior Indebtedness
held by such holder as its interest may appear) to the extent necessary
to pay all Senior Indebtedness in full after effect to any concurrent
payment or distribution to or for the holders of the Senior Indebtedness.
For purposes of this Article Thirteen only, the words "cash,
property or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or unsecured debt securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment which are subordinated in right of payment
to all Senior Indebtedness which may at the time be outstanding to the
same or a greater extent than the Securities are subordinated as provided
for in this Article Thirteen; provided that the rights of the holders of
Senior Indebtedness at the time outstanding are not adversely altered by
the payment or distribution of such shares of stock or unsecured debt
securities to the Trustee or the Holders of the Securities.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of its assets substantially
as an entirety to another Person upon terms and conditions set forth in
Article Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for purposes of this Section 1302
if the Person formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance or transfer such
property and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight. Notwithstanding
the foregoing, no merger in which the Company is the surviving entity
shall be deemed to be a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company within the meaning of Article
Thirteen.
SECTION 1303. Prior Payment to Senior Indebtedness Upon Acceleration of
the Securities.
If any Security is declared due and payable before the date
specified therein as the fixed date on which the principal thereof is due
and payable, then and in such event the holders of the Senior
Indebtedness shall be entitled to receive payment in full in cash or Cash
Equivalents of all amounts due or to become due on or in respect of the
Senior Indebtedness before the Trustee or the Holders of the Securities
shall be entitled to receive and retain any payment (including any such
payment which may be payable by reason of the payment of any other
indebtedness of the Company which is subordinated to the payment of the
Securities) by the Company on account of the principal of (or premium, if
any), interest on or any other amount due or to become due on the
Securities or on account of the purchase or other acquisition of the
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Securities. Accordingly, any payment by the Company of any amount which
the Trustee or the Holders of the Securities would have been entitled to
receive and retain but for the provisions of this Section 1303 shall
instead be made by the Company directly to the holders of the Senior
Indebtedness for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness
in full in cash or Cash Equivalents after giving effect to any concurrent
payment or distribution to or for the holders of the Senior Indebtedness.
If, notwithstanding the foregoing provisions of this Section
1303, the Company shall make any payment or distribution to the Trustee
or the Holder of any Security prohibited by the foregoing provisions of
this Section 1303, and if such fact shall, at or prior to the time of
such payment, have been made known to the Trustee in accordance with and
as required by Section 1310 or otherwise or, as the case may be, such
Holder, then and in every such event such payment or distribution shall
be forthwith paid over or delivered to the Company for application to the
payment of all Senior Indebtedness remaining unpaid as provided in the
immediately preceding paragraph of this Section 1303.
The provisions of this Section 1303 shall not apply to any
payment or distribution with respect to which Section 1302 would be
applicable.
SECTION 1304. Payment on Securities Suspended When Senior Indebtedness is
in Default.
In the event and during the continuation of any default in
the payment of principal of (premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto or,
in the event that any event of default with respect to any Senior
Indebtedness shall have occurred and be continuing which would permit the
holders of the Senior Indebtedness (or a Person or Persons acting on
their behalf) to declare such Senior Indebtedness to be due and payable
prior to the date on which it would otherwise have become due and
payable, then unless and until such event of default shall have been
cured or waived or shall have ceased to exist and any such acceleration,
shall have been rescinded or annulled, or in the event any judicial
proceeding shall be pending with respect to any such default, then no
payment (including any payment which may be payable by reason of the
payment of any other indebtedness of the Company which is subordinated to
the payment of the Securities) shall be made by the Company on account of
the principal of (or premium, if any) or interest or any other amount on
the Securities or on account of the purchase or other acquisition by it
of the Securities; provided, however, that nothing in this Section 1304
shall prevent the payment of the Repurchase Price of the Securities
pursuant to Article Fourteen by delivery of shares of Common Stock having
a fair market value equal to the Repurchase Price or payments in respect
of fractional shares of Common Stock pursuant to Section 1403(b).
If, notwithstanding the foregoing provisions of this Section
1304, the Company shall make any payment or distribution to the Trustee
or the Holder of any Security prohibited by the foregoing provisions of
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this Section 1304, and if such fact shall, at or prior to the time of
such payment, have been made known to the Trustee or, as the case may be,
such Holder, then and in every such event such payment or distribution
shall be held in trust for the benefit of and shall, to the extent
permitted by applicable law, be paid over or delivered to the holders of
such Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, as their
respective interests may appear.
The provisions of this Section 1304 shall not apply to any
payment with respect of which Section 1302 or 1303 would be applicable.
SECTION 1305. Obligation to Pay Securities Not Impaired; Provisions Solely
to Define Relative Rights.
The provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of the Senior Indebtedness on
the other hand. It is and shall be the intent of the parties that this
Article shall constitute a present assignment by the Holders of the
Securities of their rights to receive payments or distributions of cash,
property and securities of the Company otherwise payable to the Holders
of the Securities in the circumstances described in Sections 1302 and
1303 hereof. Nothing contained in this Article Thirteen or elsewhere in
this Indenture shall (i) impair or affect, as among the Company, its
creditors (other than the holders of the Senior Indebtedness) and the
Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and which is intended to rank equally with
all other general obligations of the Company), to pay the Holders of the
Securities the principal of (and premium, if any) and interest on the
Securities as and when the same shall become due and payable in
accordance with their terms, subject to the rights under this Article
Thirteen of the holders of the Senior Indebtedness, or (ii) affect the
relative rights against the Company of the Holders of the Securities and
the creditors of the Company (other than the holders of the Senior
Indebtedness), or (iii) prevent the Trustee or any Holder of any
Securities from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any,
under this Article Thirteen of the holders of the Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to
the Trustee or such Holder.
SECTION 1306. Payment Permitted if No Default.
Nothing contained in this Article Thirteen or elsewhere in
this Indenture shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 1302 or
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under the conditions described in Section 1303 or 1304 from making
payments at any time of principal of (and premium, if any) or interest on
the Securities.
SECTION 1307. Subrogation.
Subject to the payment in full in cash or Cash Equivalents
of all Senior Indebtedness, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the
holders of the Senior Indebtedness pursuant to the provisions of this
Article Thirteen to the rights of the holders of such Senior Indebtedness
to receive payments and distributions of cash, property and securities
applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full.
For purposes of the such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled but
for the provisions of this Article Thirteen, and no payments over
pursuant to the provisions of Sections 1302 or 1303 to the holders of the
Senior Indebtedness by the Trustee or Holders of the Securities shall, as
among the Company, its creditors (other than the holders of Senior
Indebtedness) and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1308. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such actions as
may be necessary or appropriate to effectuate the subordination provided
in this Article Thirteen and appoints the Trustee his attorney-in-fact
for any and all such purposes.
SECTION 1309. Changes.
The holders of the Senior Indebtedness or a trustee on
behalf thereof or other representative thereof may at any time, and from
time to time, without the consent of or notice to the Trustee or any
Holder of the Securities, without incurring responsibility to the
Trustee or such Holder, and without impairing or releasing any of
the rights of the holders of the Senior Indebtedness, or any of the
obligations of the Trustee or the Holders of the Securities hereunder:
(i) change the time, amount, manner, place or
terms of payment, or change or extend the time of payment of,
or renew or otherwise amend or alter, any other instrument or
agreement evidencing any Senior Indebtedness or securing
payment thereof or relating to the Senior Indebtedness in any
manner;
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(ii) sell, exchange, release or otherwise deal
with any collateral for all or any of the Senior Indebtedness
(whether or not in a commercially reasonable manner);
(iii) release anyone liable in any manner for the
payment or collection of any Senior Indebtedness;
(iv) exercise or refrain from exercising any
rights against the Company or others (including the Holders
of the Securities); and
(v) apply any sums received by them, by
whomsoever paid and however realized, to the payment of the
Senior Indebtedness in such manner as the holders thereof, in
their sole discretion, shall deem appropriate.
SECTION 1310. Notice to Trustee.
The Company shall give prompt written notice to the Trustee,
of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article Thirteen or any other
provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making
of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company, any Holder, any Paying Agent or the holder or representative of
any class of Senior Indebtedness; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee therefor). In the event that the
Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article
Thirteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article Thirteen,
and if such evidence is not furnished, the Trustee may defer any payment
to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1311. Reliance on Judicial Order or Certificate of Liquidating
Agent.
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Upon any payment or distribution of assets of the Company
referred to in this Article Thirteen, the Trustee, subject to the
provisions of Section 601, and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of
competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the
benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities,
for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Thirteen.
SECTION 1312. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not owe any duty to the holders of Senior
Indebtedness, except as expressly provided in this Article Thirteen and
subject to Section 6.01.
SECTION 1313. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article Thirteen with respect to any
Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Thirteen shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
SECTION 1314. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article Thirteen shall in such case
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article Thirteen
in addition to or in place of the Trustee; provided, however, that
Section 1313 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
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SECTION 1315. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance
with Article Twelve shall not be deemed to constitute a payment or
distribution on account of the principal or premium or interest on
Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash, property
or securities (other than junior securities) upon conversion of a
Security shall be deemed to constitute payment on account of the
principal of such Security. For the purposes of this Section, the term
"junior securities" means (a) shares of any stock of any class of the
Company and (b) securities of the Company which are subordinated in right
of payment to all Senior Indebtedness which may be outstanding at the
time of issuance or delivery of such securities to the same extent as, or
to a greater extent than, the Securities are so subordinated as provided
in this Article Thirteen. Nothing contained in this Article Thirteen or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the right, which is
absolute and unconditional, of the Holder of any Security to convert such
Security in accordance with Article Twelve.
SECTION 1316. Continued Effectiveness.
The terms of this Article Thirteen shall continue to be
effective or be reinstated, as the case may be, if at any time any
payment of any of the Senior Indebtedness is rescinded or must otherwise
be returned by any holder of the Senior Indebtedness upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, all as though
such payment had been due but not made at such time.
SECTION 1317. Right of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior
Indebtedness to enforce the subordination provisions contained in this
Article Thirteen shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by
any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.
SECTION 1318. Continuing Agreement.
The provisions of this Article Thirteen constitute a
continuing agreement and shall (i) remain in full force and effect until
the Senior Indebtedness shall have been paid in full, (ii) be binding
upon the Holders and the Trustee, the Company and each of their
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respective successors and assigns and (iii) inure to the benefit of and
be enforceable by each holder of Senior Indebtedness and its
representatives, successors, transferees and assigns. Without limiting
the generality of the foregoing clause (iii), any holder of Senior
Indebtedness may assign or otherwise transfer any note or other evidence
of indebtedness held by it to any other person, and such other person
shall thereupon become vested with all the rights in respect thereof
granted to such holder herein or otherwise.
ARTICLE FOURTEEN
Repurchase of Securities at the Option
of the Holder Upon a Change of Control
SECTION 1401. Right to Require Repurchase.
In the event that a Change of Control (as hereinafter
defined) shall occur, then each Holder shall have the right, at such
Holder's option, to require the Company to repurchase, and upon the
exercise of such right, the Company shall, subject to the provisions of
Section 1304, repurchase, all of such Holder's Securities, or any portion
of the principal amount thereof that is an integral multiple of $1,000,
on the date (the "Repurchase Date") that is 45 days after the date of the
Company Notice (as defined in Section 1402) at a purchase price equal to
100% of the principal amount of the Securities to be repurchased (the
"Repurchase Price"), together in each case with accrued and unpaid
interest to the Repurchase Date. Such right to require the repurchase of
the Securities shall not continue after a discharge of the Company from
its obligations with respect to the Securities in accordance with Article
Four, unless a Change of Control shall have occurred prior to such
discharge. The Repurchase Price shall be paid in cash.
SECTION 1402. Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company shall have theretofore called for
redemption all the outstanding Securities, on or before the 30th day
after the occurrence of a Change of Control, the Company or, at the
request of the Company, the Trustee, shall mail to all Holders a notice
(the "Company Notice") of the occurrence of the Change of Control and of
the repurchase right set forth herein arising as a result thereof. The
Company shall also deliver a copy of such Company Notice to the Trustee
prior to or promptly after the mailing of such Company Notice and cause a
copy of such Company Notice, or a summary of the information contained
therein, to be published in a newspaper of general circulation in the
Borough of Manhattan, The City of New York promptly after such mailing.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be
exercised,
(3) the Repurchase Price,
(4) a description of the procedure which a Holder
must follow to exercise a repurchase right including a form
of the irrevocable written notice referred to in Section
1402(b), and
(5) the conversion price then in effect, the date on
which the right to convert the principal amount of the
Securities to be repurchased will terminate and the place or
places where such Securities may be surrendered for
conversion.
No failure of the Company to give the foregoing notice or
defect therein shall limit any Holder's right to exercise a repurchase
right or affect the validity of the proceedings for the repurchase of
Securities.
If any of the foregoing provisions are inconsistent with
applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall
deliver to the Trustee on or before the 30th day after the date of the
Company Notice (i) irrevocable written notice of the Holder's exercise of
such right, which notice shall set forth the name of the Holder, the
principal amount of the Securities to be repurchased, a statement that an
election to exercise the repurchase right is being made thereby, and, in
the event that the Repurchase Price shall be paid in shares of Common
Stock, the name or names (with addresses) in which the certificate or
certificates for shares of Common Stock shall be issued, and (ii) the
Securities with respect to which the repurchase right is being exercised,
duly endorsed for transfer to the Company. Securities held by a
securities depositary may be delivered in such other manner as may be
agreed to by such securities depositary and the Trustee. Such written
notice shall be irrevocable, except that the right of the Holder to
convert the Securities with respect to which the repurchase right is
being exercised shall continue until the close of business on the
second Trading Day preceding the Repurchase Date.
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be
paid the Repurchase Price in cash or shares of Common Stock, as provided
above, to the Holder on the Repurchase Date (or, if shares of Common
Stock are to be paid, as promptly after the Repurchase Date as possible)
together with accrued and unpaid interest to the Repurchase Date payable
with respect to the Securities as to which the repurchase right has been
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exercised; provided, however, that installments of interest that mature
on or prior to the Repurchase Date shall be payable in cash to the
Holders of such Securities, or one or more predecessor Securities,
registered as such at the close of business on the relevant Regular
Record Date according to the terms and provisions of Article Three.
SECTION 1403. Deposit of Cash Sufficient to Pay Repurchase Price.
Prior to the Repurchase Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Repurchase Price of any
Securities which are to be repaid in cash on the Repurchase Date.
SECTION 1404. Securities Not Repurchased on Repurchase Date.
If any Security surrendered for repurchase shall not be so
paid on the Repurchase Date, such Security shall, until paid, continue to
bear interest to the extent permitted by applicable law from the
Repurchase Date at the same rate borne by the Security. The Company
shall pay to the Holder of such Security the additional amounts provided
for in this Section 1404 at the same time it pays the Repurchase Price.
Each Security shall remain convertible into Common Stock until the
Repurchase Price plus any additional amounts owing on such Security shall
have been paid or duly provided for.
SECTION 1405. Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall
be surrendered to the Trustee (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 his 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 equal to and in exchange for the
unrepurchased portion of the principal of the Security so surrendered.
SECTION 1406. Certain Definitions.
For purposes of this Article:
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(a) the term "beneficial owner" shall be determined An
accordance with Rule 13d-3, as in effect on the date of the original
execution of this Indenture, promulgated by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended;
(b) the term "Capital Stock" shall mean capital stock of
the Company that does not rank prior, as to the payment of dividends or
as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, to shares of
capital stock of any other class of the Company;
(c) a "Change of Control" shall be deemed to have
occurred at such time after the original issuance of the Securities as:
(i) any Person (other than the Company, any
Subsidiary or any current or future employee or director
benefit plan of the Company or any Subsidiary or any entity
holding capital stock of the Company for or pursuant to the
terms of such plan, or an underwriter engaged in a firm
commitment underwriting in connection with a public offering
of capital stock of the Company) is or becomes the beneficial
owner, directly or indirectly, through a purchase, merger or
other acquisition transaction or series of transactions, of
shares of capital stock of the Company entitling such Person
to exercise 50% or more of the total voting power of all
shares of capital stock of the Company entitled to vote
generally in elections of directors (any shares of voting
stock of which such person or group is the beneficial owner
that are not then outstanding being deemed outstanding for
purposes of calculating such percentage); or
(ii) any consolidation of the Company with, or merger
of the Company into, any other Person, any merger of another
Person into the Company, or any sale or transfer of all or
substantially all of the assets of the Company to another
Person (other than a merger (x) which does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Capital Stock, (y) which is effected
solely to change the jurisdiction of incorporation of the
Company and results in a reclassification, conversion or
exchange of outstanding shares of Common Stock into solely
shares of Common Stock, or (z) a transaction in which the
stockholders of the Company immediately prior to such
transaction owned, directly or indirectly, immediately
following such transactions a majority of the combined voting
power of the voting capital stock of the corporation
resulting from the transaction, such stock to be owned by
such stockholders in substantially the same proportion as
their ownership of the voting stock of the Company
immediately prior to such transaction; or
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(iii) the Common Stock is the subject of a completed
"Rule 13e-3 transaction" as defined under the Exchange Act.
(d) the term "Fair Market Value" shall mean on any date,
(i) as to any security which is listed or admitted to trading on any
national securities exchange or quoted on the National Association of
Securities Dealers Automated Quotations National Market System or traded
in the over-the-▇▇▇▇▇▇▇ market on such date, the average of the Quoted
Prices with respect to such security for the 10 consecutive Trading Days
ending on such date (or, if such date is not a Trading Day, on the next
preceding Trading Day) and (ii) as to any security not so listed,
admitted, quoted or traded on such date or any other property, the fair
value thereof on such date as determined in good faith by the Board of
Directors or any duly authorized committee thereof and evidenced by a
Board Resolution. For purposes of this Article, "Trading Day" means each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on
which securities are not traded on such exchange or in such market;
(e) the term "Person" shall include any syndicate or
group which would be deemed to be a "person" under Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, as in effect on the date of
the original execution of this Indenture; and
(f) the term "Quoted Price" of the Common Stock shall
mean: the last sale price regular way or, in case no such sale takes
place on such day, the average of the closing bid and asked prices
regular way, in each case on the Nasdaq National Market as reported by
Nasdaq, or, if the Common Stock is not authorized for quotation on the
Nasdaq National Market, on the New York Stock Exchange Composite Tape
(the "Composite Tape"), or, if the Common Stock is not listed or
admitted to trading on such Exchange, on the national securities exchange
in or nearest The City of New York on which the Common Stock is listed
or admitted to trading, or if the Common Stock is not listed or admitted
to trading on any national securities exchange, the last sale price
regular way or, in case no such sale takes place on such day, the average
of the highest reported bid and lowest reported asked prices as furnished
by the National Association of Securities Dealers, Inc. through Nasdaq
or a similar organization if Nasdaq is no longer reporting such
information, or if on any such trading day the Common Stock is not quoted
by any such organization, the fair value of a share of Common Stock on
such day, as determined by the Board of Directors of the Company.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
DIMON Incorporated
[Seal]
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice
President and Chief
Financial Officer
Attest:
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
Title: Vice President Administration-
Corporate Secretary
LASALLE NATIONAL BANK,
as Trustee
[Seal]
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
Attest:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Secretary
- 155 -
Commonwealth of Virginia) ss.:
City of Danville )
On the 26th day of March, 1997, before me personally
came ▇▇▇▇▇ ▇. ▇▇▇▇▇▇/▇▇▇▇▇ ▇. ▇▇▇▇▇▇, to me known who, being by me
duly sworn, did depose and say that he is Executive Vice Pres./Chief
Financial Officer of DIMON Incorporated, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notary Public
My Commission Expires: 06/30/97
State of Illinois) ss.:
City of Chicago)
On the ____ day of ______________, 1997, before me
personally came ____________________, to me known who, being by me
duly sworn, did depose and say that such person is a Corporate Trust
Officer of LaSalle National Bank, the Trustee under the foregoing
instrument; that such person knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and
that such person signed their name thereto by like authority.
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