Exhibit 99.2
------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 31, 2001
------------------------------------------------------------
between
AVAYA INC.
and
THE BANK OF NEW YORK
as Trustee
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Supplemental to Indenture
Dated as of October 31, 2001
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Creating a series of Notes designated
Liquid Yield OptionTM Notes due 2021 (Zero Coupon - Senior)
--------------------------------------------
TM Trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
CROSS REFERENCE TABLE*
TIA SECTION INDENTURE SECTION
----------- -----------------
310(a)(1)...................................................... 7.10
(a)(2).................................................... 7.10
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(b)....................................................... 7.08; 7.10
(c)....................................................... N.A.
311(a)......................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312(a)......................................................... 2.05
(b)....................................................... 12.03
(c)....................................................... 12.03
313(a)......................................................... 7.06
(b)(1).................................................... N.A.
(b)(2).................................................... 7.06
(c)....................................................... 13.02
(d)....................................................... 7.06
314(a)......................................................... 4.02; 4.03; 12.02
(b)....................................................... N.A.
(c)(1).................................................... 12.04
(c)(2).................................................... 12.04
(c)(3).................................................... N.A.
(d)....................................................... N.A.
(e)....................................................... 12.05
(f)....................................................... N.A.
315(a)......................................................... 7.01
(b)....................................................... 7.05; 12.02
(c)....................................................... 7.01
(d)....................................................... 7.01
(e)....................................................... 6.11
316(a) (last sentence)......................................... 2.08
(a)(1)(A)................................................. 6.05
(a)(1)(B)................................................. 6.04
(a)(2).................................................... N.A.
(b)....................................................... 6.07
317(a)(1)...................................................... 6.08
(a)(2).................................................... 6.09
(b)....................................................... 2.04
318(a)......................................................... 12.01
N.A. means Not Applicable.
----------
* Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.........................................................2
SECTION 1.02 Other Definitions...................................................5
SECTION 1.03 Incorporation by Reference of Trust Indenture Act...................6
SECTION 1.04 Rules of Construction...............................................6
SECTION 1.05 Acts of Holders.....................................................7
ARTICLE II
THE NOTES
SECTION 2.01 Title of the Notes..................................................8
SECTION 2.02 Amount..............................................................8
SECTION 2.03 Stated Maturity.....................................................8
SECTION 2.04 Forms; Denominations................................................8
SECTION 2.05 Transfer and Exchange..............................................10
SECTION 2.06 Registrar, Paying Agent and Conversion Agent.......................10
SECTION 2.07 Paying Agent to Hold Money and Notes in Trust......................10
SECTION 2.08 Restrictions on Transfers..........................................11
ARTICLE III
AMENDMENT OF CERTAIN PROVISIONS
OF THE ORIGINAL INDENTURE
SECTION 3.01 Amendments Relating to the Notes...................................14
ARTICLE IV
SPECIAL TAX EVENT CONVERSION
SECTION 4.01 Optional Conversion to Semiannual Coupon Note upon Tax Event.......36
SECTION 4.02 Payment of Interest; Interest Rights Preserved.....................37
ARTICLE V
CONVERSION
SECTION 5.01 Conversion Privilege...............................................38
SECTION 5.02 Conversion Procedure...............................................39
SECTION 5.03 Fractional Shares..................................................40
SECTION 5.04 Taxes on Conversion................................................40
SECTION 5.05 Company to Provide Stock...........................................40
SECTION 5.06 Adjustment for Change in Capital Stock.............................41
SECTION 5.07 Adjustment for Rights Issue........................................41
i
SECTION 5.08 Adjustment for Other Distributions.................................42
SECTION 5.09 When Adjustment May Be Deferred....................................44
SECTION 5.10 When No Adjustment Required........................................44
SECTION 5.11 Notice of Adjustment...............................................45
SECTION 5.12 Voluntary Increase.................................................45
SECTION 5.13 Notice of Certain Transactions.....................................45
SECTION 5.14 Reorganization of Company; Special Distributions...................45
SECTION 5.15 Company Determination Final........................................46
SECTION 5.16 Trustee's Adjustment Disclaimer....................................46
SECTION 5.17 Simultaneous Adjustments...........................................46
SECTION 5.18 Successive Adjustments.............................................46
SECTION 5.19 Rights Issued in Respect of Common Stock Issued upon Conversion....47
ARTICLE VI
MISCELLANEOUS
EXHIBITS
Exhibit A-1 Form of Face of Global Note
Exhibit A-2 Form of Certificated Note
ii
FIRST
SUPPLEMENTAL INDENTURE, dated as of the 31st day of October, 2001,
between
AVAYA INC., a corporation duly organized and existing under the laws of
the State of Delaware, having its principal executive office located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and THE BANK
OF
NEW YORK, a banking corporation duly organized and existing under the laws of
the State of
New York, having its Corporate Trust Office located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ 21 West,
New York,
New York 10286, as trustee (the "Trustee").
R E C I T A L S
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture, dated as of October 31, 2001 (the "Original Indenture," as amended
by this
Supplemental Indenture, the "Indenture"), providing for the issuance by
the Company from time to time of its unsecured debentures, notes or other
evidences of indebtedness (in the Original Indenture and herein called the
"Notes"), unlimited as to principal amount, to bear such rates of interest, to
mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed in accordance with the terms of the
Original Indenture;
WHEREAS, the Company, in the exercise of the power and authority
conferred upon and reserved to it under the provisions of the Original Indenture
and pursuant to appropriate resolutions of its board of directors, has duly
determined to make, execute and deliver to the Trustee this
Supplemental
Indenture to the Original Indenture in order to establish the form and terms of,
and to provide for the creation and issuance of, a new series of Notes
designated as its "Liquid Yield Option(TM) Notes due 2021 (Zero Coupon --
Senior)" in the aggregate Principal Amount at Maturity (as defined herein) of up
to $943,632,000;
WHEREAS, Section 9.01 of the Original Indenture provides that the Company
and the Trustee, at any time and from time to time, without the consent of any
Holder (as defined in the Original Indenture), may enter into an indenture
supplemental to the Original Indenture to, among other things (a) establish the
form or terms of Notes of any series as permitted by Section 2.02 of the
Original Indenture and (b) cure any ambiguity or to correct or supplement any
provision in the Original Indenture which may be defective or inconsistent with
any other provision in the Original Indenture, or to make any other change that
does not adversely affect the interests of any Holders of Notes of any series
then Outstanding (as defined in the Original Indenture) in any material respect;
and
WHEREAS, all things necessary to make the Liquid Yield Option(TM) Notes
due 2021 (Zero Coupon -- Senior), when executed by the Company and authenticated
and delivered by the Trustee or any Authenticating Agent (as defined in the
Original Indenture) and issued upon the terms and subject to the conditions of
this
Supplemental Indenture and the Original Indenture against payment therefor,
the valid, binding and legal obligations of the Company and to make this
Supplemental Indenture a valid, binding and legal agreement of the Company have
been done.
NOW, THEREFORE, in order to establish the form and terms of the series of
the Liquid Yield Option(TM) Notes due 2021 (Zero Coupon -- Senior) and for and
in consideration of the premises and of the covenants contained in the Original
Indenture and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS. For all purposes of the Original Indenture and
this First
Supplemental Indenture relating to the series of Notes (consisting of
Notes) created hereby, except as otherwise expressly provided or unless the
context otherwise requires, the terms used in this First
Supplemental Indenture
have the meanings assigned to them in this Article. Each capitalized term that
is used in the Original Indenture and this First
Supplemental Indenture but not
defined herein shall have the meaning specified in the Indenture.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Note, in each case to the extent
applicable to such transaction and as in effect from time to time.
"BUSINESS DAY" means each day of the year other than a Saturday or a
Sunday or other day on which banking institutions in The City of
New York are
required or authorized to close.
"CAPITAL STOCK" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"CERTIFICATED NOTES" means Notes that are in the form of the Notes
attached hereto as Exhibit A-2.
"COMMON STOCK" shall mean the shares of Common Stock, par value $1.00, of
the Company as it exists on the date of this Indenture or any other shares of
Capital Stock of the Company into which the Common Stock shall be reclassified
or changed.
"COMPANY" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any two Officers.
2
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West,
New
York,
New York 10286, Attention: Corporate Trust Administration, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time to
time by notice to the Holders and the Company).
"DEBT" means with respect to the Company at any date, without
duplication, obligations for borrowed money or evidenced by bonds, debentures,
notes or similar instruments.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"GLOBAL NOTES" means Notes that are in the form of the Notes attached
hereto as Exhibit A-1.
"HOLDER" or "NOTEHOLDER" means a person in whose name a Note is
registered on the Registrar's books.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"ISSUE DATE" of any Note means the date on which the Note was originally
issued or deemed issued as set forth on the face of the Note.
"ISSUE PRICE" of any Note means, in connection with the original issuance
of such Note, the initial issue price at which the Note is sold as set forth on
the face of the Note.
"NOTEHOLDER" or "HOLDER" means a person in whose name a Note is
registered on the Registrar's books.
"NOTES" means any of the Company's Liquid Yield Option NotesTM due 2021
(Zero Coupon-Senior) created hereby.
"OFFICERS' CERTIFICATE" means a written certificate containing the
information specified in the Original Indenture.
"OPINION OF COUNSEL" means a written opinion containing the information
specified in the Original Indenture, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company or the
Trustee.
"ORIGINAL ISSUE DISCOUNT" of any Note means the difference between the
Issue Price and the Principal Amount at Maturity of the Note as set forth on the
face of the Note.
3
"PERSON" or "PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"PRINCIPAL AMOUNT AT MATURITY" of a Note means the principal amount at
maturity as set forth on the face of the Note.
"REDEMPTION DATE" or "REDEMPTION DATE" means the date specified for
redemption of the Notes in accordance with the terms of the Notes and this
Indenture.
"REDEMPTION PRICE" or "REDEMPTION PRICE" shall have the meaning set forth
in paragraph 5 of the Notes.
"SALE PRICE" of Capital Stock on any date means the closing per share
sale price (or, if no closing sale price is reported, the average of the bid and
ask prices or, if more than one in either case, the average of the average bid
and the average ask prices) on such date as reported in the composite
transactions for the principal United States notes exchange on which the Common
Stock is traded or, if the Common Stock is not listed on a United States
national or regional notes exchange, as reported by the National Association of
Notes Dealers Automated Quotation System or by the National Quotation Bureau
Incorporated. In the absence of such quotation, the Company shall be entitled to
determine the Sale Price on the basis of such quotations as it considers
appropriate.
"SIGNIFICANT SUBSIDIARY" shall have the meaning set forth in Rule 1-02 of
Regulation S-X under the Securities Act of 1933, as amended.
"SPECIAL RECORD DATE" means, for the payment of any Defaulted Interest,
the date fixed by the Trustee pursuant to Section 4.02(b).
"STATED MATURITY" means, when used with respect to any Note, the date
specified in such Note as the fixed date on which an amount equal to the
Principal Amount at Maturity of such Note is due and payable.
"TAX EVENT" means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect that, on or
after October 31, 2001, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment to, or change in, an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority, in each case which
amendment or change is enacted, promulgated, issued or announced or which
interpretation is issued or announced or which action is taken, on or after
October 31, 2001, there is more than an insubstantial risk that interest
(including Original Issue Discount) payable on the Notes either (i) would not be
deductible on a current accrual basis or (ii) would not be deductible under any
other method, in either case in whole or in part, by the Company (by reason of
deferral, disallowance, or otherwise) for United States federal income tax
purposes.
4
"TRADING DAY" means a day during which trading in notes generally occurs
on the
New York Stock Exchange or, if the Common Stock is not listed on the
New
York Stock Exchange, on the principal other national or regional notes exchange
on which the Common Stock is then listed or, if the Common Stock is not listed
on a national or regional notes exchange, on the National Association of Notes
Dealers Automated Quotation System or, if the Common Stock is not quoted on the
National Association of Notes Dealers Automated Quotation System, on the
principal other market on which the Common Stock is then traded.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture; provided, HOWEVER, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated October
25, 2001, between the Company and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, as supplemented by the Terms Agreement, dated as of October 25,
2001, between the Company and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.
SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Act" ..............................................1.05(a)
"Agent Members".....................................2.12(e)
"Associate".........................................3.09(a)
"Average Sale Price"................................5.01
"Bankruptcy Law"....................................6.01
"beneficial owner"..................................3.09(a)
"cash"..............................................3.08(b)
"Change in Control".................................3.09(a)
"Change in Control Purchase Date"...................3.09(a)
"Change in Control Purchase Notice".................3.09(c)
"Change in Control Purchase Price"..................3.09(a)
"Company Notice"....................................3.08(e)
"Company Notice Date"...............................3.08(c)
"Conversion Agent"..................................2.06
"Conversion Date"...................................5.02
"Conversion Rate"...................................5.01
"Custodian".........................................6.01
"Defaulted Interest"................................4.02(b)
"Depositary"........................................2.01(a)
"DTC"...............................................2.01(a)
"Event of Default"..................................6.01
"Exchange Act"......................................3.08(d)
"Ex-Dividend Date"..................................5.08(b)
"Ex-Dividend Time"..................................5.01
"Extraordinary Cash Dividend".......................5.08(a)
5
"Interest Payment Date".............................10.01
"Legend"............................................2.06(f)
"Market Price"......................................3.08(d)
"Measurement Period"................................5.08(a)
"Notice of Default".................................6.01
"Optional Exercise Date"............................4.01
"Paying Agent"......................................2.03
"Purchase Date".....................................3.08(a)
"Purchase Notice"...................................3.08(a)
"Purchase Price"....................................3.08(a)
"Registrar".........................................2.03
"Regular Record Date"...............................4.01
"Relevant Cash Dividends............................5.08(a)
"Restated Principal Amount".........................4.01
"Rights"............................................5.19
"Rights Agreement"..................................5.19
"Notes Act".........................................3.08(d)
"Special Record Date"...............................4.02
"Tax Event Date"....................................4.01
"Time of Determination".............................5.01
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture notes" means the Notes.
"indenture note holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture notes means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
6
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with United States generally accepted accounting principles as
in effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the plural
include the singular.
SECTION 1.05 ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by their 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 Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the register maintained by
the Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of the Board of Directors, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act
7
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for
purposes of determining whether Holders of the requisite proportion of
outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Notes shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
ARTICLE II
THE NOTES
SECTION 2.01 TITLE OF THE NOTES. The Notes shall be known and designated
as the "Liquid Yield Option(TM) Notes due 2021 (Zero Coupon -- Senior)" of the
Company.
SECTION 2.02 AMOUNT. The aggregate Principal Amount at Maturity of Notes
that may be authenticated and delivered under this
Supplemental Indenture is
limited to $820,550,000, if any, and Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 9.05 of the Original Indenture and Sections 2.11, 2.08, or
Article Three of the Original Indenture, as amended by Article 3 of this
Supplemental Indenture, or upon surrender in part of any Notes for conversion or
exchange into Common Stock pursuant to the terms of the Notes and the terms of
the Indenture.
SECTION 2.03 STATED MATURITY. The Stated Maturity of the Notes shall be
October 31, 2021.
SECTION 2.04 FORMS; DENOMINATIONS. The Notes shall be Registered Notes.
The certificate for the Notes shall be in substantially the forms attached
hereto as Exhibit A-1 and Exhibit A-2. The Notes are being offered and sold by
the Company pursuant to the Underwriting Agreement.
(a) GLOBAL NOTES. (i) Notes offered and sold as provided in the
Underwriting Agreement shall be issued initially in the form of one or more
Global Notes in definitive fully registered form without interest coupons,
deposited on behalf of the subscribers for the Notes represented thereby with
The Bank of New York, at its Corporate Trust Office, as custodian for the
Depositary and registered in the name of DTC or a nominee thereof, duly executed
by the Company and authenticated by the Trustee as provided in the Indenture.
The aggregate Principal Amount at Maturity of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depositary as hereinafter provided.
Each Global Note shall represent such of the Outstanding Notes as shall
be specified therein and each shall provide that it shall represent the
aggregate Principal Amount at Maturity of Outstanding Notes from time to time
endorsed thereon and that the aggregate Principal Amount at Maturity of
Outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect conversions and redemptions.
8
Any adjustment of the aggregate Principal Amount at Maturity of a Global
Note to reflect the amount of any increase or decrease in the Principal Amount
at Maturity of Outstanding Notes represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as required
by Section 2.08 or pursuant to a Company Order delivered pursuant to Section
2.03 of the Original Indenture or Section 2.11 of the Original Indenture, and
shall be made on the records of the Trustee and the Depositary.
(ii) BOOK-ENTRY PROVISIONS. This Section 2.04(a)(ii) shall apply only to
Global Notes. The Company shall execute and the Trustee shall, in accordance
with this Section 2.04(a)(ii) and Sections 2.06 and 3.03 of the Original
Indenture, authenticate and deliver initially one or more Global Notes that (a)
shall be registered in the name of the Depositary, (b) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instructions and (c)
shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS, IN WHOLE BUT
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN ARTICLE 2 OF THE SUPPLEMENTAL INDENTURE
REFERRED TO ON THE REVERSE HEREOF."
(b) CERTIFICATED NOTES. Except as otherwise set forth in this
Supplemental Indenture, owners of beneficial interests in Global Notes will not
be entitled to receive physical delivery of Certificated Notes. Beneficial
interests in a Global Note transferred to the beneficial holders thereof
pursuant to Section 2.08(b) will be issued in certificated, registered form
without interest coupons.
(c) U.S. TAX LEGEND. All Notes shall bear the following legend:
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF
SECTIONS 1272, 1273 AND ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNAL REVENUE CODE
OF 1986, AS AMENDED. THE ISSUE PRICE OF THIS NOTE WAS $487.48 PER $1,000
OF PRINCIPAL AMOUNT AT
9
MATURITY; THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $512.52 PER $1,000 OF
PRINCIPAL AMOUNT AT MATURITY; THE ISSUE DATE IS OCTOBER 31, 2001; AND THE
YIELD TO MATURITY FOR THE PURPOSES OF ACCRUING TAX ORIGINAL ISSUE
DISCOUNT IS 3.625% PER ANNUM.
SECTION 2.05 TRANSFER AND EXCHANGE. (a) Notwithstanding any provision to
the contrary herein, so long as a Global Note remains Outstanding and is held by
or on behalf of the Depositary, transfers of a Global Note, in whole or in part,
shall be made only in accordance with Section 2.08(a)(i) and this Section 2.05.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, or in part, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
SECTION 2.06 REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The Company
shall maintain an office or agency where Notes may be presented for registration
of transfer or for exchange ("Registrar"), an office or agency where Notes may
be presented for purchase or payment ("Paying Agent") and an office or agency
where Notes may be presented for conversion ("Conversion Agent"). The Registrar
shall keep a register of the Notes and of their registration of transfer and
exchange. The Company may have one or more co-registrars, one or more additional
paying agents and one or more additional conversion agents. The term Paying
Agent includes any additional paying agent. The term Conversion Agent includes
any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or co-registrar, Paying Agent or Conversion Agent (other than the
Trustee). The agency agreement shall implement the provisions of the Indenture
that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefore pursuant to Section 7.07 of the Original
Indenture. The Company or any Subsidiary or an Affiliate of either of them may
act as Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent, and Paying Agent in connection with the Notes.
SECTION 2.07 PAYING AGENT TO HOLD MONEY AND NOTES IN TRUST. Except as
otherwise provided herein, by no later than 10:00 a.m. (New York City time) on
or prior to each due date of payments in respect of any Notes, the Company shall
deposit with the Paying Agent a sum of money (in immediately available funds if
deposited on the due date) or Common Stock sufficient to make such payments when
so becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Noteholders or the Trustee all money and Common Stock held by the
Paying Agent for the making of payments in respect of the Notes and shall notify
the Trustee of any default by the Company in making any such payment. At any
time during the continuance of any such default, the Paying Agent shall, upon
the written request of the Trustee, forthwith
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pay to the Trustee all money and Common Stock so held in trust. If the Company,
a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money and Common Stock held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money and Common Stock held by it to the Trustee and to account for any
funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money or Common Stock.
SECTION 2.08 RESTRICTIONS ON TRANSFERS. (a) Notwithstanding any other
provisions of this Supplemental Indenture or the Notes, (A) transfers of a
Global Note, in whole or in part, shall be made only in accordance with Sections
2.05 and 2.08(a)(i), (B) transfer of a beneficial interest in a Global Note for
a Certificated Note shall comply with Section 2.08(a)(ii) below, and (C)
transfers of a Certificated Note shall comply with Section 2.08(a)(iii) and (iv)
below.
(i) TRANSFER OF GLOBAL NOTE. A Global Note may not be transferred, in
whole or in part, to any Person other than the Depositary or a nominee
thereof, and no such transfer to any such other Person may be registered;
PROVIDED that this clause (i) shall not prohibit any transfer of a Note
that is issued in exchange for a Global Note but is not itself a Global
Note. No transfer of a Note to any Person shall be effective under the
Indenture or the Notes unless and until such Note has been registered in
the name of such Person. Nothing in this Section 2.08(a)(i) shall
prohibit or render ineffective any transfer of a beneficial interest in a
Global Note effected in accordance with the other provisions of this
Section 2.08(a).
(ii) RESTRICTIONS ON TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE
FOR A CERTIFICATED NOTE. A beneficial interest in a Global Note may not
be exchanged for a Certificated Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a request
for transfer of a beneficial interest in a Global Note in accordance with
Applicable Procedures for a Certificated Note in the form satisfactory to
the Trustee, together with written instructions to the Trustee to make,
or direct the Registrar to make, an adjustment on its books and records
with respect to such Global Note to reflect a decrease in the aggregate
Principal Amount at Maturity of the Notes represented by the Global Note,
such instructions to contain information regarding the Depositary account
to be credited with such decrease, then the Trustee shall cause, or
direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate Principal Amount at Maturity of Notes
represented by the Global Note to be decreased by the aggregate Principal
Amount at Maturity of the Certificated Note to be issued, shall issue
such Certificated Note and shall debit or cause to be debited to the
account of the Person specified in such instructions a beneficial
interest in the Global Note equal to the Principal Amount at Maturity of
the Certificated Note so issued.
(iii) TRANSFER AND EXCHANGE OF CERTIFICATED NOTES. When Certificated
Notes are presented to the Registrar with a request:
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(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal Principal
Amount at Maturity of Certificated Notes of other authorized
denominations, the Registrar shall register the transfer or make the
exchange as requested if its reasonable requirements for such transaction
are met; PROVIDED, HOWEVER, that the Certificated Notes surrendered for
registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
(iv) RESTRICTIONS ON TRANSFER OF A CERTIFICATED NOTE FOR A BENEFICIAL
INTEREST IN A GLOBAL NOTE. A Certificated Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Trustee,
together with written instructions directing the Trustee to make, or to direct
the Registrar to make, an adjustment on its books and records with respect to
such Global Note to reflect an increase in the aggregate Principal Amount at
Maturity of the Notes represented by the Global Note, such instructions to
contain information regarding the Depositary account to be credited with such
increase, then the Trustee shall cancel such Certificated Note and cause, or
direct the Registrar to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the aggregate
Principal Amount at Maturity of Notes represented by the Global Note to be
increased by the aggregate Principal Amount at Maturity of the Certificated Note
to be exchanged, and shall credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the Global Note
equal to the Principal Amount at Maturity of the Certificated Note so cancelled.
If no Global Notes are then outstanding, the Company shall issue and the Trustee
shall authenticate, upon receipt of a Company Order, a new Global Note in the
appropriate Principal Amount at Maturity.
(b) The provisions of clauses (i), (ii), (iii), (iv) and (v) below shall
apply only to Global Notes:
(i) Notwithstanding any other provisions of the Indenture or the Notes,
except as provided in Section 2.08(a)(ii), a Global Note shall not be
exchanged in whole or in part for a Note registered in the name of any
Person other than the Depositary or one or more nominees thereof,
PROVIDED that a Global Note may be exchanged for Notes registered in the
names of any person designated by the Depositary in the event that (A)
the Depositary has notified the Company that it is unwilling or unable to
continue as depositary for such Global Note or the Depositary has ceased
to be a "clearing agency" registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days, (B)
an Event of Default has occurred and is continuing with respect to the
Notes or (C) if the Company executes and delivers a Company Order to the
effect that
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the Global Note shall be exchangeable. Any Global Note exchanged pursuant
to clause (A) above shall be so exchanged in whole and not in part, and
any Global Note exchanged pursuant to clause (B) above may be exchanged
in whole or from time to time in part as directed by the Depositary.
(ii) Notes issued in exchange for a Global Note or any portion thereof
shall be issued in definitive, fully registered form, without interest
coupons, shall have an aggregate Principal Amount at Maturity equal to
that of such Global Note or portion thereof to be so exchanged and shall
be registered in such names and be in such authorized denominations as
the Depositary shall designate. Any Global Note to be exchanged in whole
shall be surrendered by the Depositary to the Trustee, as Registrar. With
regard to any Global Note to be exchanged in part, either such Global
Note shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Note, the Principal Amount at Maturity thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the
Note issuable on such exchange to or upon the order of the Depositary or
an authorized representative thereof.
(iii) Subject to the provisions of clause (v) below, the registered
Holder may grant proxies and otherwise authorize any Person, including
Agent Members (as defined below) and persons that may hold interests
through Agent Members, to take any action which a Holder is entitled to
take under the Indenture or the Notes.
(iv) In the event of the occurrence of any of the events specified in
clause (i) above, the Company will promptly make available to the Trustee
a reasonable supply of Certificated Notes.
(v) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose behalf
Agent Members may act shall have any rights under the Indenture with
respect to any Global Note registered in the name of the Depositary or
any nominee thereof, or under any such Global Note, and the Depositary or
such nominee, as the case may be, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner
and holder of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by
the Depositary or such nominee, as the case may be, or impair, as between
the Depositary, its Agent Members and any other Person on whose behalf an
Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a Holder of any Note.
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ARTICLE III
AMENDMENT OF CERTAIN PROVISIONS
OF THE ORIGINAL INDENTURE
SECTION 3.01 AMENDMENTS RELATING TO THE NOTES. The Original Indenture is
hereby amended, solely with respect to the Notes (and not with respect to any
other series of Securities that may be issued under the Original Indenture), as
follows:
(a) Article Three of the Original Indenture is hereby amended by
replacing it in its entirety with the following:
"ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 RIGHT TO REDEEM; NOTICES TO TRUSTEE. The Company, at its
option, may redeem the Notes in accordance with the provisions of paragraphs 5
and 7 of the Notes. If the Company elects to redeem Notes pursuant to paragraph
5 of the Notes, it shall notify the Trustee in writing of the Redemption Date,
the Principal Amount at Maturity of Notes to be redeemed and the Redemption
Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 by a Company Order, at least 40 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee)."
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED. If less than all the
Notes are to be redeemed, the Trustee shall select the Notes to be redeemed pro
rata or by lot or by any other method the Trustee considers fair and appropriate
(so long as such method is not prohibited by the rules of any stock exchange on
which the Notes are then listed). The Trustee shall make the selection at least
30 days but not more than 60 days before the Redemption Date from outstanding
Notes not previously called for redemption. The Trustee may select for
redemption portions of the Principal Amount at Maturity of Notes that have
denominations larger than $1,000.
Notes and portions of them the Trustee selects shall be in Principal
Amounts at Maturity of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption. The Trustee shall notify the Company promptly of
the Notes or portions of Notes to be redeemed.
If any Note selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Note so
selected, the converted portion of such Note shall be deemed (so far as may be)
to be the portion selected for redemption. Notes which have been converted
during a selection of Notes to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection.
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SECTION 3.03 NOTICE OF REDEMPTION. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail, postage prepaid, to each Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Notes called for redemption may be converted at any time
before the close of business on the second Business Day
immediately preceding the Redemption Date;
(6) that Holders who want to convert Notes must satisfy the
requirements set forth in paragraph 8 of the Notes;
(7) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(8) if fewer than all the outstanding Notes are to be redeemed, the
certificate number and Principal Amounts at Maturity of the
particular Notes to be redeemed;
(9) that, unless the Company defaults in making payment of such
Redemption Price, Original Issue Discount and interest, if any, on
Notes called for redemption will cease to accrue on and after the
Redemption Date;
(10) the CUSIP number of the Notes; and
(11) any other information the Company wants to present.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; PROVIDED that the Company
makes such request at least three Business Days prior to the date such notice of
redemption must be mailed.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is
given, Notes called for redemption become due and payable on the Redemption Date
and at the Redemption Price stated in the notice, except for Notes which are
converted in accordance with the terms of this Indenture. Upon surrender to the
Paying Agent, such Notes shall be paid at the Redemption Price stated in the
notice.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m. (New York
City time), on the Redemption Date, the Company shall deposit with the Paying
Agent (or
15
if the Company or a Subsidiary or an Affiliate of either of them is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the Redemption
Price of all Notes to be redeemed on that date other than Notes or portions of
Notes called for redemption which on or prior thereto have been delivered by the
Company to the Trustee for cancellation or have been converted. The Paying Agent
shall as promptly as practicable return to the Company any money, not required
for that purpose because of conversion of Notes pursuant to Article 11. If such
money is then held by the Company in trust and is not required for such purpose,
it shall be discharged from such trust.
SECTION 3.06 NOTES REDEEMED IN PART. Upon surrender of a Note that is
redeemed in part, the Company shall execute and the Trustee, upon receipt of a
Company Order, shall authenticate and deliver to the Holder a new Note in an
authorized denomination equal in Principal Amount at Maturity to the unredeemed
portion of the Note surrendered.
SECTION 3.07 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In connection
with any redemption of Notes, the Company may arrange for the purchase and
conversion of any Notes called for redemption by an agreement with one or more
investment banks or other purchasers to purchase such Notes by paying to the
Trustee in trust for the Noteholders, on or prior to 10:00 a.m. New York City
time on the Redemption Date, an amount that, together with any amounts deposited
with the Trustee by the Company for the redemption of such Notes, is not less
than the Redemption Price of such Notes. Notwithstanding anything to the
contrary contained in this Article 3, the obligation of the Company to pay the
Redemption Price of such Notes shall be deemed to be satisfied and discharged to
the extent such amount is so paid by such purchasers. If such an agreement is
entered into, any Notes not duly surrendered for conversion by the Holders
thereof may, at the option of the Company, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 11) surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the Business Day prior to the Redemption Date, subject to payment of
the above amount as aforesaid. The Trustee shall hold and pay to the Holders
whose Notes are selected for redemption any such amount paid to it for purchase
and conversion in the same manner as it would moneys deposited with it by the
Company for the redemption of Notes. Without the Trustee's prior written
consent, no arrangement between the Company and such purchasers for the purchase
and conversion of any Notes shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Company agrees to indemnify the Trustee from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Notes between the Company and such purchasers, including the costs and expenses
incurred by the Trustee in the defense of any claim or liability arising out of
or in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
SECTION 3.08. PURCHASE OF NOTES AT OPTION OF THE HOLDER.
(a) GENERAL. Notes shall be purchased by the Company pursuant to
paragraph 6 of the Notes as of October 31, 2004, October 31, 2006 and October
31, 2011 (each, a "Purchase Date"), at the purchase price of $542.95 per $1,000
of Principal Amount at Maturity as of October 31, 2004, of $583.40 per $1,000 of
Principal Amount at Maturity as of October 31,
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2006 and of $698.20 per $1,000 of Principal Amount at Maturity as of October 31,
2011 (each, a "Purchase Price", as applicable), at the option of the Holder
thereof, upon:
(1) (delivery to the Paying Agent, by the Holder of a written notice of
purchase (a "Purchase Notice") at any time from the opening of business
on the date that is at least 20 Business Days prior to a Purchase Date
until the close of business on the Business Day immediately prior to such
Purchase Date stating:
(A) the certificate number of the Note which the Holder will
deliver to be purchased,
(B) the portion of the Principal Amount at Maturity of the Note
which the Holder will deliver to be purchased, which portion must
be a Principal Amount of Maturity of $1,000 or an integral
multiple thereof,
(C) that such Note shall be purchased as of the Purchase Date
pursuant to the terms and conditions specified in paragraph 6 of
the Notes and in this Indenture, and
(D) in the event the Company elects, pursuant to Section 3.08(b),
to pay the Purchase Price to be paid as of such Purchase Date, in
whole or in part, in shares of Common Stock but such portion of
the Purchase Price shall ultimately be payable to such Holder
entirely in cash because any of the conditions to payment of the
Purchase Price in Common Stock is not satisfied prior to the close
of business on such Purchase Date, as set forth in Section
3.08(d), whether such Holder elects (i) to withdraw such Purchase
Notice as to some or all of the Notes to which such Purchase
Notice relates (stating the Principal Amount at Maturity and
certificate numbers of the Notes as to which such withdrawal shall
relate), or (ii) to receive cash in respect of the entire Purchase
Price for all Notes (or portions thereof) to which such Purchase
Notice relates; and
(2) delivery of such Note to the Paying Agent prior to, on or after the
Purchase Date (together with all necessary endorsements) at the offices
of the Paying Agent, such delivery being a condition to receipt by the
Holder of the Purchase Price therefor; PROVIDED, HOWEVER, that such
Purchase Price shall be so paid pursuant to this Section 3.08 only if the
Note so delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Purchase Notice, as determined by
the Company.
If a Holder, in such Holder's Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 3.10,
fails to indicate such Holder's choice with respect to the election set forth in
clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have elected to
receive cash in respect of the Purchase Price for all Notes subject to such
Purchase Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Note if the Principal Amount at Maturity of such
portion is $1,000 or an
17
integral multiple of $1,000. Provisions of this Indenture that apply to the
purchase of all of a Note also apply to the purchase of such portion of such
Note.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
the time of delivery of the Note.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 3.08(a) shall
have the right to withdraw such Purchase Notice at any time prior to the close
of business on the Business Day immediately prior to the Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
(b) COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF PURCHASE PRICE. The
Notes to be purchased pursuant to Section 3.08(a) may be paid for, at the
election of the Company, in U.S. legal tender ("cash") or Common Stock, or in
any combination of cash and Common Stock, subject to the conditions set forth in
Sections 3.08(c) and (d). The Company shall designate, in the Company Notice
delivered pursuant to Section 3.08(e), whether the Company will purchase the
Notes for cash or Common Stock, or, if a combination thereof, the percentages of
the Purchase Price of Notes in respect of which it will pay in cash or Common
Stock; PROVIDED that the Company will pay cash for fractional interests in
Common Stock. For purposes of determining the existence of potential fractional
interests, all Notes subject to purchase by the Company held by a Holder shall
be considered together (no matter how many separate certificates are to be
presented). Each Holder whose Notes are purchased pursuant to this Section 3.08
shall receive the same percentage of cash or Common Stock in payment of the
Purchase Price for such Notes, except (i) as provided in Section 3.08(d) with
regard to the payment of cash in lieu of fractional shares of Common Stock and
(ii) in the event that the Company is unable to purchase the Notes of a Holder
or Holders for Common Stock because any necessary qualifications or
registrations of the Common Stock under applicable state notes laws cannot be
obtained, the Company may purchase the Notes of such Holder or Holders for cash.
The Company may not change its election with respect to the consideration (or
components or percentages of components thereof) to be paid once the Company has
given its Company Notice to Noteholders, except pursuant to this Section 3.08(b)
or pursuant to Section 3.08(d) in the event of a failure to satisfy, prior to
the close of business on the Purchase Date, any condition to the payment of the
Purchase Price, in whole or in part, in Common Stock.
At least three Business Days before the Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e),
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(iii) if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in Common Stock, that the conditions to such manner
of payment set forth in Section 3.08(d) have been or will be complied
with, and
(iv) whether the Company desires the Trustee to give the Company Notice
required by Section 3.08(e).
(c) PURCHASE WITH CASH. On each Purchase Date, at the option of the
Company, the Purchase Price of Notes in respect of which a Purchase Notice
pursuant to Section 3.08(a) has been given, or a specified percentage thereof,
may be paid by the Company with cash equal to the aggregate Purchase Price of
such Notes. If the Company elects to purchase Notes with cash, the Company
Notice, as provided in Section 3.08(e), shall be sent to Holders (and to
beneficial owners as required by applicable law) not less than 20 Business Days
prior to such Purchase Date (the "Company Notice Date").
(d) PAYMENT BY ISSUANCE OF COMMON STOCK. On each Purchase Date, at the
option of the Company, the Purchase Price of Notes in respect of which a
Purchase Notice pursuant to Section 3.08(a) has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a number of
shares of Common Stock equal to the quotient obtained by dividing (i) the amount
of cash to which the Noteholders would have been entitled had the Company
elected to pay all or such specified percentage, as the case may be, of the
Purchase Price of such Notes in cash by (ii) the Market Price of a share of
Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock in payment
of the Purchase Price. Instead the Company will pay cash for the current market
value of the fractional share. The current market value of a fraction of a share
shall be determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent. It is understood that if a
Holder elects to have more than one Note purchased, the number of shares of
Common Stock shall be based on the aggregate amount of Notes to be purchased.
If the Company elects to purchase the Notes by the issuance of shares of
Common Stock, the Company Notice, as provided in Section 3.08(e), shall be sent
to the Holders (and to beneficial owners as required by applicable law) not
later than the Company Notice Date.
The Company's right to exercise its election to purchase the Notes
pursuant to Section 3.08 through the issuance of shares of Common Stock shall be
conditioned upon:
(i) the Company's not having given its Company Notice of an election to
pay entirely in cash and its giving of timely Company Notice of election
to purchase all or a specified percentage of the Notes with Common Stock
as provided herein;
(ii) the shares of Common Stock having been admitted for listing or
admitted for listing subject to notice of issuance on the principal
United States notes exchange on which the Common Stock is then listed or,
if the Common Stock is not then listed on a national or regional notes
exchange, as quoted on the National Association of Notes Dealers
Automated Quotation System;
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(iii) the registration of the shares of Common Stock to be issued in
respect of the payment of the Purchase Price under the Notes Act of 1933,
as amended (the "Notes Act"), or the Notes Exchange Act of 1934, as
amended (the "Exchange Act"), in each case, if required;
(iv) any necessary qualification or registration under applicable state
notes laws or the availability of an exemption from such qualification
and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an Opinion
of Counsel each stating that (A) the terms of the issuance of the Common
Stock are in conformity with this Indenture and (B) the shares of Common
Stock to be issued by the Company in payment of the Purchase Price in
respect of Notes have been duly authorized and, when issued and delivered
pursuant to the terms of this Indenture in payment of the Purchase Price
in respect of the Notes, will be validly issued, fully paid and
non-assessable and, to the best of such counsel's knowledge, free from
preemptive rights, and, in the case of such Officers' Certificate,
stating that conditions (i), (ii), (iii) and (iv) above and the condition
set forth in the second succeeding sentence have been satisfied and, in
the case of such Opinion of Counsel, stating that conditions (ii), (iii)
and (iv) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 Principal Amount at Maturity of Notes
and the Sale Price of a share of Common Stock on each trading day during the
period for which the Market Price is calculated. The Company may pay the
Purchase Price (or any portion thereof) in Common Stock only if the information
necessary to calculate the Market Price is published in THE WALL STREET JOURNAL
or another daily newspaper of national circulation. If the foregoing conditions
are not satisfied with respect to a Holder or Holders prior to the close of
business on the Purchase Date and the Company has elected to purchase the Notes
pursuant to this Section 3.08 through the issuance of shares of Common Stock,
the Company shall pay the entire Purchase Price of the Notes of such Holder or
Holders in cash.
The "Market Price" of the Common Stock means the average of the Sale
Prices of the Common Stock for the five trading day period ending on the third
Business Day prior to the applicable Purchase Date (or if such Business Day is
not a trading day, then on the last trading day prior to such Business Day),
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such trading days during such five trading day period
and ending on such Purchase Date, of any event described in Section 5.06, 5.07
or 5.08; subject, however, to the conditions set forth in Sections 5.09 and
5.10.
(e) NOTICE OF ELECTION. The Company's notice of election to purchase with
cash or Common Stock or any combination thereof shall be sent to the Holders
(and to beneficial owners as required by applicable law) in the manner provided
in Section [ ] at the time specified in Section 3.08(c) or (d), as applicable
(the "Company Notice"). Such Company Notice shall state the manner of payment
elected and shall contain the following information:
20
In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock with a Market Price
determined as of a specified date prior to the Purchase Date equal to
such specified percentage of the Purchase Price of the Notes held by such
Holder (except any cash amount to be paid in lieu of fractional shares);
(2) set forth the method of calculating the Market Price of the Common
Stock; and
(3) state that because the Market Price of Common Stock will be
determined prior to the Purchase Date, Holders will bear the market risk
with respect to the value of the Common Stock to be received from the
date such Market Price is determined to the Purchase Date.
In any case, each Company Notice shall include a form of Purchase Notice
to be completed by a Noteholder and shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion Agent;
(iii) that Notes as to which a Purchase Notice has been given may be
converted pursuant to Article 11 hereof only if the applicable Purchase
Notice has been withdrawn in accordance with the terms of this Indenture;
(iv) that Notes must be surrendered to the Paying Agent to collect
payment of the Purchase Price;
(v) that the Purchase Price for any Note as to which a Purchase Notice
has been given and not withdrawn will be paid promptly following the
later of the Purchase Date and the time of surrender of such Note as
described in clause (iv) above;
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Notes;
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 3.08(a)(1)(D) or Section 3.10);
(ix) that, unless the Company defaults in making payment of such Purchase
Price, Original Issue Discount and interest, if any, on Notes surrendered
for purchase will cease to accrue on and after the Purchase Date; and
21
(x) the CUSIP number of the Notes.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; PROVIDED, HOWEVER, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
Upon determination of the actual number of shares of Common Stock to be
issued for each $1,000 Principal Amount at Maturity of Notes, the Company will
issue a press release and publish such determination in THE WALL STREET JOURNAL
or another daily newspaper of national circulation.
(f) COVENANTS OF THE COMPANY. All shares of Common Stock delivered upon
purchase of the Notes shall be newly issued shares or treasury shares, shall be
duly authorized, validly issued, fully paid and nonassessable and shall be free
from preemptive rights and free of any lien or adverse claim.
(g) PROCEDURE UPON PURCHASE. The Company shall deposit cash (in respect
of a cash purchase under Section 3.08(c) or for fractional interests, as
applicable) or shares of Common Stock, or a combination thereof, as applicable,
at the time and in the manner as provided in Section 3.11, sufficient to pay the
aggregate Purchase Price of all Notes to be purchased pursuant to this Section
3.08. As soon as practicable after the Purchase Date, the Company shall deliver
to each Holder entitled to receive Common Stock through the Paying Agent, a
certificate for the number of full shares of Common Stock issuable in payment of
the Purchase Price and cash in lieu of any fractional interests. The person in
whose name the certificate for Common Stock is registered shall be treated as a
holder of record of shares of Common Stock on the Business Day following the
Purchase Date. Subject to Section 3.08(d), no payment or adjustment will be made
for dividends on the Common Stock the record date for which occurred on or prior
to the Purchase Date.
(h) TAXES. If a Holder of a Note is paid in Common Stock, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on such
issue of shares of Common Stock. However, the Holder shall pay any such tax
which is due because the Holder requests the shares of Common Stock to be issued
in a name other than the Holder's name. The Paying Agent may refuse to deliver
the certificates representing the Common Stock being issued in a name other than
the Holder's name until the Paying Agent receives a sum sufficient to pay any
tax which will be due because the shares of Common Stock are to be issued in a
name other than the Holder's name. Nothing herein shall preclude any income tax
withholding required by law or regulations.
SECTION 3.09 PURCHASE OF NOTES AT OPTION OF THE HOLDER UPON CHANGE IN
CONTROL. (i) If on or prior to October 31, 2004 there shall have occurred a
Change in Control, all or a portion of the Notes of any Holder shall be
purchased by the Company, at the option of such Holder, at a purchase price
specified in paragraph 6 of the Notes (the "Change in Control Purchase Price"),
as of a date that is no later than 35 Business Days after the occurrence of the
Change in Control (the "Change in Control Purchase Date"), subject to
satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.09(c).
22
A "Change in Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There is a report filed on Schedule 13D or TO (or any successor
schedule, form or report) pursuant to the Exchange Act, disclosing that
any person, including its Affiliates or Associates (for the purposes of
this Section 3.09 only, as the term "person" is used in Section 13(d)(3)
or Section 14(d)(2) of the Exchange Act), has become the beneficial owner
(as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of 50%
or more of the aggregate voting power of the Common Stock and other
capital stock of the Company with equivalent voting rights then
outstanding; PROVIDED, HOWEVER, that a person -------- ------- shall not
be deemed beneficial owner of, or to own beneficially, (A) any notes
tendered pursuant to a tender or exchange offer made by or on behalf of
such person or any of such person's Affiliates or Associates until such
tendered notes are accepted for purchase or exchange thereunder, or (B)
any notes if such beneficial ownership (1) arises solely as a result of a
revocable proxy delivered in response to a proxy or consent solicitation
made pursuant to the applicable rules and regulations under the Exchange
Act, and (2) is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act.
(ii) There shall have occurred any change in the composition of a
majority of our board of directors which is not supported by our
incumbent board of directors.
(iii) There shall be consummated any reorganization, consolidation,
merger, share exchange or similar business combination involving us with
any person or any sale, assignment, conveyance, transfer or other
disposition of all or substantially all of our assets unless, following
the transaction, the persons that beneficially own the voting stock of
Avaya immediately prior to the transaction beneficially own, directly or
indirectly, a majority of the combined voting power of all classes of
voting securities of Avaya or the entity resulting from the transaction
or that acquired all or substantially all of our assets immediately after
the transaction.
For purposes in defining a change in control:
(i) the term "person" and the term "group" have the meanings given by
Section 13(d) and 14(d) of the Exchange Act or any successor provisions;
(ii) the term "group" includes any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act or any successor provision; and
(iii) the term "beneficial owner" is determined in accordance with Rules
13d-3 and 13d-5 under the Exchange Act or any successor provision, except
that a person will be deemed to have beneficial ownership of all shares
that person has
23
the right to acquire irrespective of whether that right is exercisable
immediately or only after the passage of time.
Notwithstanding the foregoing provisions of this Section 3.09, a Change in
Control shall not be deemed to have occurred by virtue of the Company, any
Subsidiary, any employee stock ownership plan or any other employee benefit plan
of the Company or any Subsidiary, or any person holding Common Stock for or
pursuant to the terms of any such employee benefit plan, filing or becoming
obligated to file a report under or in response to Schedule 13D or Schedule TO
(or any successor schedule, form or report) under the Exchange Act disclosing
beneficial ownership by it of shares of Common Stock, whether in excess of 50%
or otherwise.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
(j) Within 15 days after the occurrence of a Change in Control, the
Company shall mail a written notice of Change in Control by first-class mail to
the Trustee and to each Holder (and to beneficial owners as required by
applicable law). In addition, the Company shall cause a copy of such notice of
Change in Control to be published in THE WALL STREET JOURNAL or another daily
newspaper of national circulation. The notice shall include a form of Change in
Control Purchase Notice to be completed by the Noteholder and shall state:
(4) briefly, the events causing a Change in Control and the date of such
Change in Control;
(5) the date by which the Change in Control Purchase Notice pursuant to
this Section 3.09 must be given;
(6) the Change in Control Purchase Date;
(7) the Change in Control Purchase Price;
(8) the name and address of the Paying Agent and the Conversion Agent;
(9) the Conversion Rate and any adjustments thereto;
(10) that Notes as to which a Change in Control Purchase Notice has been
given by a Holder may be converted pursuant to Article 11 hereof only if
the Change in Control Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(11) that Notes must be surrendered to the Paying Agent to collect
payment of the Change in Control Purchase Price;
(12) that the Change in Control Purchase Price for any Note as to which a
Change in Control Purchase Notice has been duly given and not withdrawn
will be paid promptly following the later of the Change in Control
Purchase Date and the time of surrender of such Note as described in
clause (8) above;
24
(13) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.09;
(14) briefly, the conversion rights of the Notes;
(15) the procedures for withdrawing a Change in Control Purchase Notice;
(16) that, unless the Company defaults in making payment of such Change
in Control Purchase Price, Original Issue Discount and interest, if any,
on Notes surrendered for purchase will cease to accrue on and after the
Change in Control Purchase Date; and
(17) the CUSIP number of the Notes.
(k) A Holder may exercise its rights specified in Section 3.09(a) hereof
upon delivery of a written notice of purchase (a "Change in Control Purchase
Notice") to the Paying Agent at any time prior to the close of business on the
Business Day immediately prior to the Change in Control Purchase Date, stating:
(18) the certificate number of the Note which the Holder will deliver to
be purchased;
(19) the portion of the Principal Amount at Maturity of the Note which
the Holder will deliver to be purchased, which portion must be $1,000 or
an integral multiple thereof; and
(20) that such Note shall be purchased pursuant to the terms and
conditions specified in paragraph 6 of the Notes.
The delivery of such Note to the Paying Agent prior to, on or after the
Change in Control Purchase Date (together with all necessary endorsements) at
the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Change in Control Purchase Price therefor; PROVIDED, HOWEVER, that
such Change in Control Purchase Price shall be so paid pursuant to this Section
3.09 only if the Note so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Change in Control
Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.09, a portion of a Note if the Principal Amount at Maturity of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.09 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Note to the Paying Agent in
accordance with this Section 3.09.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Change in Control Purchase Notice contemplated by this
Section 3.09(c) shall
25
have the right to withdraw such Change in Control Purchase Notice at any time
prior to the close of business on the Business Day immediately prior to the
Change in Control Purchase Date by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Purchase Notice or written withdrawal thereof.
The Company shall not be required to comply with this Section 3.09 if a
third party mails a written notice of Change in Control in the manner, at the
times and otherwise in compliance with this Section 3.09 and repurchases all
Notes for which a Change in Control Purchase Notice shall be delivered and not
withdrawn.
SECTION 3.10 EFFECT OF PURCHASE NOTICE OR CHANGE IN CONTROL PURCHASE
NOTICE. Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.08(a) or Section 3.09(c), as
applicable, the Holder of the Note in respect of which such Purchase Notice or
Change in Control Purchase Notice, as the case may be, was given shall (unless
such Purchase Notice or Change in Control Purchase Notice is withdrawn as
specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Change in Control Purchase Price, as the case may
be, with respect to such Note. Such Purchase Price or Change in Control Purchase
Price shall be paid to such Holder, subject to receipts of funds and/or notes by
the Paying Agent, promptly following the later of (x) the Purchase Date or the
Change in Control Purchase Date, as the case may be, with respect to such Note
(provided the conditions in Section 3.08(a) or Section 3.09(c), as applicable,
have been satisfied) and (y) the time of delivery of such Note to the Paying
Agent by the Holder thereof in the manner required by Section 3.08(a) or Section
3.09(c), as applicable. Notes in respect of which a Purchase Notice or Change in
Control Purchase Notice, as the case may be, has been given by the Holder
thereof may not be converted pursuant to Article 11 hereof on or after the date
of the delivery of such Purchase Notice or Change in Control Purchase Notice, as
the case may be, unless such Purchase Notice or Change in Control Purchase
Notice, as the case may be, has first been validly withdrawn as specified in the
following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Purchase Notice or Change in
Control Purchase Notice, as the case may be, at any time prior to the close of
business on the Business Day immediately prior to the Purchase Date or the
Change in Control Purchase Date, as the case may be, specifying:
(21) the certificate number of the Note in respect of which such notice
of withdrawal is being submitted,
(22) the Principal Amount at Maturity of the Note with respect to which
such notice of withdrawal is being submitted, and
(23) the Principal Amount at Maturity, if any, of such Note which remains
subject to the original Purchase Notice or Change in Control Purchase
Notice, as the case may be, and which has been or will be delivered for
purchase by the Company.
26
A written notice of withdrawal of a Purchase Notice may be in the form
set forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.08(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 3.08(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
There shall be no purchase of any Notes pursuant to Section 3.08 (other
than through the issuance of Common Stock in payment of the Purchase Price,
including cash in lieu of fractional shares) or 3.09 if there has occurred
(prior to, on or after, as the case may be, the giving, by the Holders of such
Notes, of the required Purchase Notice or Change in Control Purchase Notice, as
the case may be) and is continuing an Event of Default (other than a default in
the payment of the Purchase Price or Change in Control Purchase Price, as the
case may be, with respect to such Notes). The Paying Agent will promptly return
to the respective Holders thereof any Notes (x) with respect to which a Purchase
Notice or Change in Control Purchase Notice, as the case may be, has been
withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, with
respect to such Notes) in which case, upon such return, the Purchase Notice or
Change in Control Purchase Notice with respect thereto shall be deemed to have
been withdrawn.
SECTION 3.11 DEPOSIT OF PURCHASE PRICE OR CHANGE IN CONTROL PURCHASE
PRICE. Prior to 10:00 a.m. (New York City time) on the Business Day following
the Purchase Date or the Change in Control Purchase Date, as the case may be,
the Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an
amount of money (in immediately available funds if deposited on such Business
Day) or Common Stock, if permitted hereunder, sufficient to pay the aggregate
Purchase Price or Change in Control Purchase Price, as the case may be, of all
the Notes or portions thereof which are to be purchased as of the Purchase Date
or Change in Control Purchase Date, as the case may be.
SECTION 3.12 NOTES PURCHASED IN PART. Any Note which is to be purchased
only in part shall be surrendered at the office of the Paying Agent (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing) and the Company shall execute, and the Trustee, upon receipt of a
Company Order, shall authenticate and deliver to the Holder of such Note,
without service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder in aggregate Principal Amount at Maturity equal to, and
in exchange for, the portion of the Principal Amount at Maturity of the Note so
surrendered which is not purchased.
SECTION 3.13 COVENANT TO COMPLY WITH NOTES LAWS UPON PURCHASE OF NOTES.
In connection with any offer to purchase or purchase of Notes under Section 3.08
or 3.09 hereof, the Company shall (i) comply with Rule 13e-4, Rule 14e-1 and any
other tender offer rules under the Exchange Act which may then be applicable,
(ii) file the related Schedule TO (or any successor schedule, form or report) or
any other schedule required under the Exchange Act,
27
and (iii) otherwise comply with all Federal and state notes laws so as to permit
the rights and obligations under Sections 3.08 and 3.09 to be exercised in the
time and in the manner specified in Sections 3.08 and 3.09.
SECTION 3.14 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company any cash or shares of Common Stock that remain
unclaimed as provided in paragraph 13 of the Notes, together with interest or
dividends, if any, thereon (subject to the provisions of Section [7.01(f)]),
held by them for the payment of the Purchase Price or Change in Control Purchase
Price, as the case may be; PROVIDED, HOWEVER, that to the extent that the
aggregate amount of cash or shares of Common Stock deposited by the Company
pursuant to Section 3.11 exceeds the aggregate Purchase Price or Change in
Control Purchase Price, as the case may be, of the Notes or portions thereof
which the Company is obligated to purchase as of the Purchase Date or Change in
Control Purchase Date, as the case may be, then promptly after the Business Day
following the Purchase Date or Change in Control Purchase Date, as the case may
be, the Trustee shall return any such excess to the Company together with
interest or dividends, if any, thereon (subject to the provisions of [Section
7.01(f)]).
(b) Section 4.01 of the Original Indenture is hereby supplemented with
the following:
"ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES. The Company shall promptly make all
payments in respect of the Notes on the dates and in the manner provided in the
Notes or pursuant to this Indenture. Any amounts to be given to the Trustee or
Paying Agent shall be deposited with the Trustee or Paying Agent, by 10:00 a.m.
New York City time by the Company. Principal Amount at Maturity, Restated
Principal Amount, Issue Price plus accrued Original Issue Discount, Redemption
Price, Purchase Price, Change in Control Purchase Price and interest, if any,
shall be considered paid on the applicable date due if on such date (or, in the
case of a Purchase Price or Change in Control Purchase Price, on the Business
Day following the applicable Purchase Date or Change in Control Purchase Date,
as the case may be) the Trustee or the Paying Agent holds, in accordance with
this Indenture, money or notes, if permitted hereunder, sufficient to pay all
such amounts then due.
The Company shall, to the extent permitted by law, pay interest on
overdue amounts at the rate per annum set forth in paragraph 1 of the Notes,
compounded semiannually, which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
on demand. The accrual of such interest on overdue amounts shall be in lieu of,
and not in addition to, the continued accrual of Original Issue Discount."
(c) Article 6 of the Original Indenture is hereby amended by replacing it
in its entirety with the following:
28
"ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT. An "Event of Default" occurs if:
(1) the Company defaults in payment of any interest which becomes payable
after the Notes have been converted to semiannual coupon notes following the
occurrence of a Tax Event pursuant to Article 10 and such default continues for
30 days;
(2) the Company defaults in the payment of the Principal Amount at
Maturity (or, if the Notes have been converted to semiannual coupon notes
following a Tax Event pursuant to Article 10, the Restated Principal Amount),
Issue Price plus accrued Original Issue Discount, Redemption Price, Purchase
Price or Change in Control Purchase Price on any Note when the same becomes due
and payable at its Stated Maturity, upon redemption, upon declaration, when due
for purchase by the Company or otherwise;
(3) the Company fails to comply with any of its agreements in the Notes
or this Indenture (other than those referred to in clauses (1) and (2) above)
and such failure continues for 60 days after receipt by the Company of a Notice
of Default;
(4) default under any Debt, whether such Debt now exists or is created
later, which default results in such Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, and the principal amount of all Debt so accelerated, together with all
Debt due and payable but not paid prior to the end of any grace period, is
$100,000,000 or more, and such acceleration has not been rescinded or annulled
within a period of 30 days after receipt by the Company of a Notice of Default
from the Trustee; provided, HOWEVER, that if any such default shall be cured,
waived, rescinded or annulled, then the Event of Default by reason thereof shall
be deemed not to have occurred;
(5) the Company pursuant to or under or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding or the commencement of any case against
it;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) files a petition in bankruptcy or answer or consent seeking
reorganization or relief; or
(F) consents to the filing of such petition or the appointment of
or taking possession by a Custodian; or
29
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case or
proceeding, or adjudicates the Company insolvent or bankrupt;
(B) appoints a Custodian of the Company or for any substantial
part of its property; or
(C) orders the winding up or liquidation of the Company; and the
order or decree remains unstayed and in effect for 60 days.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar
Federal or state law for the relief of debtors.
"Custodian" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
A Default under clause (3) or clause (4) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate Principal Amount at Maturity of the Notes at the time outstanding
notify the Company and the Trustee, of the Default and the Company does not cure
such Default (and such Default is not waived) within the time specified in
clause (3) or clause (4) above after actual receipt of such notice. Any such
notice must specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company will deliver to the Trustee, within five Business Days of
becoming aware of the occurrence of an Event of Default, written notice thereof.
In addition, the Company shall deliver to the Trustee, within 30 days after it
becomes aware of the occurrence thereof, written notice of any event which with
the giving of notice or the lapse of time, or both, would become an Event of
Default under clause (3) or clause (4) above, its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02 ACCELERATION. If an Event of Default (other than an Event of
Default specified in Section 6.01(5) or (6)) occurs and is continuing, the
Trustee by Notice to the Company, or the Holders of at least 25% in aggregate
Principal Amount at Maturity of the Notes at the time outstanding by notice to
the Company and the Trustee, may declare the Issue Price plus accrued Original
Issue Discount (or if the Notes have been converted to semiannual coupon notes
following a Tax Event, the Restated Principal Amount, plus accrued interest)
through the date of declaration on all the Notes to be immediately due and
payable. Upon such a declaration, such Issue Price plus accrued Original Issue
Discount shall be due and payable immediately. If an Event of Default specified
in Section 6.01(5) or (6) occurs and is continuing, the Issue Price plus accrued
Original Issue Discount (or if the Notes have been converted to semiannual
coupon notes following a Tax Event, the Restated Principal Amount, plus accrued
interest) on all the Notes shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Noteholders. The Holders of a majority in aggregate Principal Amount at Maturity
of the Notes at the time outstanding, by notice to the
30
Trustee (and without notice to any other Noteholder) may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of the Issue Price plus accrued Original Issue Discount (or if the
Notes have been converted to semiannual coupon notes following a Tax Event, the
Restated Principal Amount, plus accrued interest) that have become due solely as
a result of acceleration and if all amounts due to the Trustee under Section
7.07 have been paid. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price plus accrued Original Issue Discount (or if the Notes have
been converted to semiannual coupon notes following a Tax Event, the Restated
Principal Amount, plus accrued interest) on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Notes or does not produce any of the Notes in the proceeding.
A delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 WAIVER OF PAST DEFAULTS. Subject to Section 6.02, the
Holders of a majority in aggregate Principal Amount at Maturity of the Notes at
the time outstanding, by notice to the Trustee (and without notice to any other
Noteholder), may waive an existing Default and its consequences except (1) an
Event of Default described in Section 6.01(1) or (2), (2) a Default in respect
of a provision that under Section 9.02 cannot be amended without the consent of
each Noteholder affected or (3) a Default which constitutes a failure to convert
any Note in accordance with the terms of Article 11. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right. This Section 6.04 shall be in lieu of
Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 6.05 CONTROL BY MAJORITY. The Holders of a majority in aggregate
Principal Amount at Maturity of the Notes at the time outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Noteholders or would involve the Trustee in
personal liability unless the Trustee is offered indemnity satisfactory to it.
This Section 6.05 shall be in lieu of Section 316(a)1(A) of the TIA and such
Section 316(a)1(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 6.06 LIMITATION ON SUITS. A Noteholder may not pursue any remedy
with respect to this Indenture or the Notes unless:
(24) the Holder gives to the Trustee written notice stating that an Event
of Default is continuing;
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(25) the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Notes at the time outstanding make a written request to
the Trustee to pursue the remedy;
(26) such Holder or Holders offer to the Trustee note or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(27) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of note or indemnity; and
(28) the Holders of a majority in aggregate Principal Amount at Maturity
of the Notes at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Noteholder may not use this Indenture to prejudice the rights of any
other Noteholder or to obtain a preference or priority over any other
Noteholder.
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the Principal Amount at Maturity, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price or Change in Control Purchase Price
(or, if the Notes have been converted to semiannual coupon notes following a Tax
Event, the Restated Principal Amount, plus accrued interest) in respect of the
Notes held by such Holder, on or after the respective due dates expressed in the
Notes or any Redemption Date, and to convert the Notes in accordance with
Article 11, or to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE. If an Event of Default described
in Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Notes and the amounts provided
for in Section 7.07.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Notes or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the Principal Amount at Maturity, Issue Price plus accrued Original
Issue Discount, Redemption Price, Purchase Price or Change in Control Purchase
Price (or, if the Notes have been converted to semiannual coupon notes following
a Tax Event, the Restated Principal Amount, plus accrued interest), if any, in
respect of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any such amount) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
Principal Amount at Maturity, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price or Change in Control Purchase
Price, (or, if the Notes have been converted to
32
semiannual coupon notes following a Tax Event, the Restated Principal
Amount, plus accrued interest) and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel or any
other amounts due the Trustee under Section 7.07) and of the Holders
allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Noteholders for amounts due and unpaid on the Notes for the
Principal Amount at Maturity, Issue Price plus accrued Original Issue Discount,
Redemption Price, Purchase Price or Change in Control Purchase Price (or, if the
Notes have been converted to semiannual coupon notes following a Tax Event, the
Restated Principal Amount, plus accrued interest) as the case may be, ratably,
without preference or priority of any kind, according to such amounts due and
payable on the Notes; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. At least 15 days before such record
date, the Trustee shall mail to each Noteholder and the Company a notice that
states the record date, the payment date and the amount to be paid.
SECTION 6.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a
33
suit by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10%
in aggregate Principal Amount at Maturity of the Notes at the time outstanding.
This Section 6.11 shall be in lieu of Section 315(e) of the TIA and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
SECTION 6.12 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount at
Maturity, Issue Price plus accrued Original Issue Discount, Redemption Price,
Purchase Price or Change in Control Purchase Price in respect of Notes (or, if
the Notes have been converted to semiannual coupon notes following a Tax Event,
the Restated Principal Amount, plus accrued interest), as contemplated herein,
or which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted."
(d) Article 8 of the Original Indenture is hereby amended by replacing it
in its entirety with the following:
"ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 DISCHARGE OF LIABILITY ON NOTES. When (i) the Company
delivers to the Trustee all outstanding Notes (other than Notes replaced
pursuant to Section 2.07) for cancellation or (ii) all outstanding Notes have
become due and payable and the Company deposits with the Trustee cash or, if
expressly permitted by the terms of the Notes or the Indenture, Common Stock
sufficient to pay all amounts due and owing on all outstanding Notes (other than
Notes replaced pursuant to Section 2.07), and if in either case the Company pays
all other sums payable hereunder by the Company, then this Indenture shall,
subject to [Section 7.07], cease to be of further effect. The Trustee shall join
in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and Opinion of Counsel and at the cost
and expense of the Company.
SECTION 8.02 REPAYMENT TO THE COMPANY. The Trustee and the Paying Agent
shall return to the Company upon written request any money or notes held by them
for the payment of any amount with respect to the Notes that remains unclaimed
for two years, subject to applicable unclaimed property law. After return to the
Company, Holders entitled to the money or notes must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person and the Trustee and the Paying Agent shall have no
further liability to the Noteholders with respect to such money or notes for
that period commencing after the return thereof."
34
(e) Sections 9.01 and 9.02 of the Original Indenture are herby
supplemented with the following:
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the Notes without the consent of any Noteholder:
(29) to cure any ambiguity, omission, defect or inconsistency; PROVIDED,
HOWEVER, that such amendment does not materially adversely affect the
rights of any Noteholder;
(30) to comply with Article 5 or Section 5.14;
(31) to secure the Company's obligations under the Notes and this
Indenture;
(32) to add to the Company's covenants for the benefit of the Noteholders
or to surrender any right or power conferred upon the Company;
(33) to make any change to comply with the TIA, or any amendment thereto,
or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA, or as necessary in
connection with the registration of the Notes under the Notes Act; or
(34) to make any change that does not adversely affect the rights of any
Holder.
SECTION 9.02 WITH CONSENT OF HOLDERS. With the written consent of the
Holders of at least a majority in aggregate Principal Amount at Maturity of the
Notes at the time outstanding, the Company and the Trustee may amend this
Indenture or the Notes. However, without the consent of each Noteholder
affected, an amendment to this Indenture or the Notes may not:
(35) make any change to the provisions of this Indenture that relate to
modifying or amending this Indenture;
(36) make any change in the manner of calculation or rate of accrual in
connection with Original Issue Discount, reduce the rate of interest
referred to in paragraph 1 of the Notes, reduce the rate of interest
referred to in Section 4.01 upon the occurrence of a Tax Event, or extend
the time for payment of Original Issue Discount or interest, if any, on
any Note;
(37) reduce the Principal Amount at Maturity, Restated Principal Amount
or the Issue Price of or change the Stated Maturity of any Note;
(38) reduce the Redemption Price, Purchase Price or Change in Control
Purchase Price of any Note;
(39) make any Note payable in money or notes other than that stated in
the Note;
35
(40) make any change in Section 6.04, Section 6.07 or this Section 9.02,
except to increase any percentage set forth therein;
(41) make any change that adversely affects the right to convert any
Note;
(42) make any change that adversely affects the right to require the
Company to purchase the Notes in accordance with the terms thereof and
this Indenture; or
(43) impair the right to institute suit for the enforcement of any
payment with respect to, or conversion of, the Notes.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.
ARTICLE IV
SPECIAL TAX EVENT CONVERSION
SECTION 4.01 OPTIONAL CONVERSION TO SEMIANNUAL COUPON NOTE UPON TAX
EVENT. From and after (i) the date (the "Tax Event Date") of the occurrence of a
Tax Event and (ii) the date the Company exercises the option provided for in
this Section 4.01, whichever is later (the "Option Exercise Date"), at the
option of the Company, interest in lieu of future Original Issue Discount shall
accrue at the rate of 3.625% per annum on a Restated Principal Amount, per
$1,000 original Principal Amount at Maturity (the "Restated Principal Amount")
equal to the Issue Price plus Original Issue Discount accrued through the Option
Exercise Date and shall be payable semiannually on April 30 and October 31 of
each year (each an "Interest Payment Date") to Holders of record at the close of
business on the April 15 or October 16 (each a "Regular Record Date")
immediately preceding such Interest Payment Date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date on which interest has been paid or, if no interest has
been paid, from the Option Exercise Date. Within 15 days of the occurrence of a
Tax Event, the Company shall deliver a written notice of such Tax Event by
facsimile and first-class mail to the Trustee and within 15 days of its exercise
of such option the Company shall deliver a written notice of the Option Exercise
Date by facsimile and first-class mail to the Trustee and by first class mail to
the Holders of the Notes. From and after the Option Exercise Date, (i) the
Company shall be obligated to pay at Stated Maturity, in lieu of the Principal
Amount at Maturity of a Note, the Restated Principal Amount thereof plus accrued
and unpaid interest on such Note and (ii) "Issue Price and accrued Original
Issue Discount," "Issue Price plus Original Issue Discount" or similar words, as
used herein, shall mean Restated Principal Amount plus accrued and unpaid
interest with respect to any Note. Notes authenticated and delivered after the
Option Exercise Date may, and shall if required by the Trustee, bear a notation
in a form approved by the Trustee as to the conversion of the Notes to
semiannual coupon notes. No other changes to this Indenture shall result as a
result of the events described in this Section 4.01.
36
SECTION 4.02 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. (a) Interest
on any Note that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the person in whose name that Note is
registered at the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose. Each
installment of interest on any Note shall be paid in same-day funds by transfer
to an account maintained by the payee located inside the United States. In the
case of a permanent Global Note, interest payable on any Interest Payment Date
will be paid to the Depositary, with respect to that portion of such permanent
Global Note held for its account by Cede & Co. for the purpose of permitting
such party to credit the interest received by it in respect of such permanent
Global Note to the accounts of the beneficial owners thereof.
(b) Except as otherwise specified with respect to the Notes, any interest
on any Note that is payable on any Interest Payment Date, but is not punctually
paid or duly provided for within 30 days following such Interest Payment Date
(herein called "Defaulted Interest", which term shall include any accrued and
unpaid interest that has accrued on such defaulted amount in accordance with
paragraph 1 of the Notes), shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, as its election
in each case, as provided in clause (1) or (2) below:
(44) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Notes 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 Note and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by
the Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Notes at his address as it
appears on the list of Noteholders maintained pursuant to Section 2.05 of
this Supplemental Indenture not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the persons in whose names the
Notes are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
37
(45) The Company may make payment of any Defaulted Interest on the Notes
in any other lawful manner not inconsistent with the requirements of any
notes exchange on which such Notes may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 2.06 of
this Supplemental Indenture, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Note
shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Note.
ARTICLE V
CONVERSION
SECTION 5.01 CONVERSION PRIVILEGE. A Holder of a Note may convert such
Note into Common Stock at any time during the period stated in paragraph 8 of
the Notes. The number of shares of Common Stock issuable upon conversion of a
Note per $1,000 of Principal Amount at Maturity thereof (the "Conversion Rate")
shall be that set forth in paragraph 8 of the Notes, subject to adjustment as
herein set forth.
A Holder may convert a portion of the Principal Amount at Maturity of a
Note if the portion is $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to conversion of all of a Note also apply to
conversion of a portion of a Note.
"Average Sale Price" means the average of the Sale Prices of the Common
Stock for the shorter of:
(i) 30 consecutive trading days ending on the last full trading
day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average Sale
Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding the
first public announcement of (a) the issuance of rights, warrants or
options or (b) the distribution, in each case, in respect of which the
Average Sale Price is being calculated and (y) proceeding through the
last full trading day prior to the Time of Determination with respect to
the rights, warrants or options or distribution in respect of which the
Average Sale Price is being calculated (excluding days within such
period, if any, which are not trading days), or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next preceding (a)
issuance of rights, warrants or options or (b) distribution, in each
case, for which an adjustment is required by the provisions of Section
5.06(4), 5.07 or 5.08 and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights,
warrants or options or
38
distribution in respect of which the Average Sale Price is being
calculated (excluding days within such period, if any, which are not
trading days).
In the event that the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect thereto) with
respect to a dividend, subdivision, combination or reclassification to which
Section 5.06(1), (2), (3) or (5) applies occurs during the period applicable for
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such dividend,
subdivision, combination or reclassification on the Sale Price of the Common
Stock during such period.
"Time of Determination" means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants or options or
a distribution, in each case, to which Section 5.07 or 5.08 applies and (ii) the
time ("Ex-Dividend Time") immediately prior to the commencement of "ex-dividend"
trading for such rights, warrants or options or distribution on the New York
Stock Exchange or such other principal national or regional exchange or market
on which the Common Stock is then listed or quoted.
SECTION 5.02 CONVERSION PROCEDURE. To convert a Note a Holder must
satisfy the requirements in paragraph 8 of the Notes. The date on which the
Holder satisfies all those requirements is the conversion date (the "Conversion
Date"). As soon as practicable after the Conversion Date but in any event no
later than the seventh Business Day following the Conversion Date, the Company
shall deliver to the Holder, through the Conversion Agent, a certificate for the
number of full shares of Common Stock issuable upon the conversion and cash in
lieu of any fractional share determined pursuant to Section 5.03. The person in
whose name the certificate is registered shall be treated as a stockholder of
record on and after the Conversion Date; PROVIDED, HOWEVER, that no surrender of
a Note on any date when the stock transfer books of the Company shall be closed
shall be effective to constitute the person or persons entitled to receive the
shares of Common Stock upon such conversion as the record holder or holders of
such shares of Common Stock on such date, but such surrender shall be effective
to constitute the person or persons entitled to receive such shares of Common
Stock as the record holder or holders thereof for all purposes at the close of
business on the next succeeding day on which such stock transfer books are open;
such conversion shall be at the Conversion Rate in effect on the date that such
Note shall have been surrendered for conversion, as if the stock transfer books
of the Company had not been closed. Upon conversion of a Note, such person shall
no longer be a Holder of such Note.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article 5. On conversion of a Note, that portion of accrued Original Issue
Discount (or interest, if the Company has exercised its option provided for in
Section 4.01) attributable to the period from the Issue Date (or, if the Company
has exercised the option provided for in Section 4.01, the later of (x) the date
of such exercise and (y) the date on which interest was last paid) of the Note
through the Conversion Date with respect to the converted Note shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through delivery of the Common Stock (together with
the cash payment, if any, in lieu of fractional shares) in exchange for the Note
being converted pursuant to the provisions hereof; and the fair market value of
such shares
39
of Common Stock (together with any such cash payment in lieu of fractional
shares) shall be treated as issued, to the extent thereof, first in exchange for
Original Issue Discount (or interest, if the Company has exercised its option
provided for in Section 4.01) accrued through the Conversion Date, and the
balance, if any, of such fair market value of such Common Stock (and any such
cash payment) shall be treated as issued in exchange for the Issue Price of the
Note being converted pursuant to the provisions hereof.
If the Holder converts more than one Note at the same time, the number of
shares of Common Stock issuable upon the conversion shall be based on the total
Principal Amount at Maturity of the Notes converted.
If the last day on which a Note may be converted is a Legal Holiday, the
Note may be surrendered on the next succeeding day that is not a Legal Holiday.
Upon surrender of a Note that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Note in an authorized denomination equal in Principal Amount at Maturity to the
unconverted portion of the Note surrendered.
SECTION 5.03 FRACTIONAL SHARES. The Company will not issue a fractional
share of Common Stock upon conversion of a Note. Instead, the Company will
deliver cash for the current market value of the fractional share. The current
market value of a fractional share shall be determined, to the nearest 1/1,000th
of a share, by multiplying the Sale Price of the Common Stock, on the last
trading day prior to the Conversion Date, of a full share by the fractional
amount and rounding the product to the nearest whole cent.
SECTION 5.04 TAXES ON CONVERSION. If a Holder converts a Note, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
the issue of shares of Common Stock upon the conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder's name. The Conversion Agent may refuse
to deliver the certificates representing the Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulations.
SECTION 5.05 COMPANY TO PROVIDE STOCK. The Company shall, prior to
issuance of any Notes under this Article 5, and from time to time as may be
necessary, reserve out of its authorized but unissued Common Stock a sufficient
number of shares of Common Stock to permit the conversion of the Notes.
All shares of Common Stock delivered upon conversion of the Notes shall
be newly issued shares or treasury shares, shall be duly and validly issued and
fully paid and nonassessable and shall be free from preemptive rights and free
of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal and state
notes laws regulating the offer and delivery of shares of Common Stock upon
conversion of Notes, if any, and will list or cause to have quoted such shares
of Common Stock on each national notes
40
exchange or in the over-the-counter market or such other market on which the
Common Stock is then listed or quoted.
SECTION 5.06 ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If, after the Issue
Date of the Notes, the Company:
(46) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock or other Capital Stock;
(47) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(48) combines its outstanding shares of Common Stock into a smaller
number of shares;
(49) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock (other than Common Stock or rights, warrants
or options for its Capital Stock); or
(50) issues by reclassification of its Common Stock any shares of its
Capital Stock (other than rights, warrants or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Note thereafter
converted may receive the number of shares of Capital Stock of the Company which
such Holder would have owned immediately following such action if such Holder
had converted the Note immediately prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Note upon conversion of such Note
may receive shares of two or more classes of Capital Stock of the Company, the
Conversion Rate shall thereafter be subject to adjustment upon the occurrence of
an action taken with respect to any such class of Capital Stock as is
contemplated by this Article 5 with respect to the Common Stock, on terms
comparable to those applicable to Common Stock in this Article 5.
SECTION 5.07 ADJUSTMENT FOR RIGHTS ISSUE. If after the Issue Date of the
Notes, the Company distributes any rights, warrants or options to all holders of
its Common Stock entitling them, for a period expiring within 60 days after the
record date for such distribution, to purchase shares of Common Stock at a price
per share less than the Sale Price of the Common Stock as of the Time of
Determination, the Conversion Rate shall be adjusted in accordance with the
formula:
R' = R x (O + N)
---------------
(O + (N x P)/M)
41
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record
date for the distribution to which this Section 5.07 is being
applied.
N = the number of additional shares of Common Stock offered pursuant
to the distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a distribution
to which Section 5.06(4) applies or (ii) a distribution to which
Section 5.08 applies, for which, in each case, (x) the record date
shall occur on or before the record date for the distribution to
which this Section 5.07 applies and (y) the Ex-Dividend Time shall
occur on or after the date of the Time of Determination for the
distribution to which this Section 5.07 applies, the fair market
value (on the record date for the distribution to which this
Section 5.07 applies) of the
(51) Capital Stock of the Company distributed in respect of each share of
Common Stock in such Section 5.06(4) distribution and
(52) assets of the Company or debt notes or any rights, warrants or
options to purchase notes of the Company distributed in respect of each
share of Common Stock in such Section 5.08 distribution.
The Board of Directors shall determine fair market values for the
purposes of this Section 5.07.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 5.07 applies. If all of the shares of Common
Stock subject to such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 5.07 if the application of
the formula stated above in this Section 5.07 would result in a value of R' that
is equal to or less than the value of R.
SECTION 5.08 ADJUSTMENT FOR OTHER DISTRIBUTIONS. (a) If, after the Issue
Date of the Notes, the Company distributes to all holders of its Common Stock
any of its assets, or evidences of indebtedness of the Company or any rights,
warrants or options to purchase notes
42
of the Company (including notes or cash, but excluding (x) distributions of
Capital Stock referred to in Section 5.06 and distributions of rights, warrants
or options referred to in Section 5.07 and (y) cash dividends or other cash
distributions that are paid out of consolidated current net earnings or earnings
retained in the business as shown on the books of the Company unless such cash
dividends or other cash distributions are Extraordinary Cash Dividends) the
Conversion Rate shall be adjusted, subject to the provisions of the last
paragraph of this Section 5.08, in accordance with the formula:
R' = R X M
------
M-F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of a distribution to
which Section 5.06(4) applies, for which (i) the record date shall
occur on or before the record date for the distribution to which
this Section 5.08 applies and (ii) the Ex-Dividend Time shall
occur on or after the date of the Time of Determination for the
distribution to which this Section 5.08 applies, the fair market
value (on the record date for the distribution to which this
Section 5.08 applies) of any Capital Stock of the Company
distributed in respect of each share of Common Stock in such
Section 5.06(4) distribution.
F = the fair market value (on the record date for the distribution to
which this Section 5.08 applies) of the assets, notes, rights,
warrants or options to be distributed in respect of each share of
Common Stock in the distribution to which this Section 5.08 is
being applied (including, in the case of cash dividends or other
cash distributions giving rise to an adjustment, all such cash
distributed concurrently).
The Board of Directors shall determine fair market values for the
purposes of this Section 5.08.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 5.08 applies.
For purposes of this Section 5.08, the term "Extraordinary Cash Dividend"
shall mean any cash dividend with respect to the Common Stock the amount of
which, together with the aggregate amount of cash dividends on the Common Stock
to be aggregated with such cash dividend in accordance with the provisions of
this paragraph, equals or exceeds the threshold percentage set forth in item (i)
below. For purposes of item (i) below, the "Measurement Period" with respect to
a cash dividend on the Common Stock shall mean the 365 consecutive day period
ending on the date prior to the Ex-Dividend Time with respect to such cash
dividend, and the "Relevant Cash Dividends" with respect to a cash dividend on
the Common Stock shall mean the
43
cash dividends on the Common Stock with Ex-Dividend Times occurring in the
Measurement Period.
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Common Stock, the aggregate amount of such cash
dividend together with the amounts of all Relevant Cash Dividends equals
or exceeds on a per share basis 5% of the Sale Price of the Common Stock
on the last trading day preceding the date of declaration by the Board of
Directors of the cash dividend with respect to which this provision is
being applied, then such cash dividend together with all Relevant Cash
Dividends, shall be deemed to be an Extraordinary Cash Dividend and for
purposes of applying the formula set forth above in this Section 5.08,
the value of "F" shall be equal to (y) the aggregate amount of such cash
dividend together with the amount of all Relevant Cash Dividends, minus
(z) the aggregate amount of all Relevant Cash Dividends for which a prior
adjustment in the Conversion Rate was previously made under this Section
5.08.
In making the determinations required by item (i) above, the amount of
cash dividends paid on a per share basis and the amount of any Relevant
Cash Dividends specified in item (i) above, shall be appropriately
adjusted to reflect the occurrence during such period of any event
described in Section 5.06.
SECTION 5.09 WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 5 shall be made to the nearest cent
or to the nearest 1/1,000th of a share, as the case may be.
SECTION 5.10 WHEN NO ADJUSTMENT REQUIRED. No adjustment need be made for
a transaction referred to in Section 5.06, 5.07, 5.08 or 5.14 if Noteholders are
to participate in the transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of Common Stock participate in the transaction. Such
participation by Noteholders may include participation upon conversion provided
that an adjustment shall be made at such time as the Noteholders are no longer
entitled to participate.
No adjustment need be made for rights to purchase Common Stock pursuant
to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par value
of the Common Stock.
To the extent the Notes become convertible pursuant to this Article 5
into cash, no adjustment need be made thereafter as to the cash. Interest will
not accrue on the cash.
44
SECTION 5.11 NOTICE OF ADJUSTMENT. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Noteholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
SECTION 5.12 VOLUNTARY INCREASE. The Company from time to time may
increase the Conversion Rate by any amount for any period of time. Whenever the
Conversion Rate is increased, the Company shall mail to Noteholders and file
with the Trustee and the Conversion Agent a notice of the increase. The Company
shall mail the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust the
Conversion Rate otherwise in effect for purposes of Section 5.06, 5.07 or 5.08.
SECTION 5.13 NOTICE OF CERTAIN TRANSACTIONS. If:
(53) the Company takes any action that would require an adjustment in the
Conversion Rate pursuant to Section 5.06, 5.07 or 5.08 (unless no
adjustment is to occur pursuant to Section 5.10); or
(54) the Company takes any action that would require a supplemental
indenture pursuant to Section 5.14; or
(55) there is a liquidation or dissolution of the Company;
then the Company shall mail to Noteholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
SECTION 5.14 REORGANIZATION OF COMPANY; SPECIAL DISTRIBUTIONS. If the
Company is a party to a transaction subject to Section 5.01 of the Original
Indenture (other than a sale of all or substantially all of the assets of the
Company in a transaction in which the holders of Common Stock immediately prior
to such transaction do not receive notes, cash or other assets of the Company or
any other person) or a merger or binding share exchange which reclassifies or
changes the outstanding Common Stock, the person obligated to deliver notes,
cash or other assets upon conversion of Notes shall enter into a supplemental
indenture. If the issuer of notes deliverable upon conversion of Notes is an
Affiliate of the successor Company, that issuer shall join in the supplemental
indenture.
45
The supplemental indenture shall provide that the Holder of a Note may
convert it into the kind and amount of notes, cash or other assets which such
Holder would have received immediately after the consolidation, merger, binding
share exchange or transfer if such Holder had converted the Note immediately
before the effective date of the transaction, assuming (to the extent
applicable) that such Holder (i) was not a constituent person or an Affiliate of
a constituent person to such transaction; (ii) made no election with respect
thereto; and (iii) was treated alike with the plurality of non-electing Holders.
The supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Article 5. The successor Company shall mail to Noteholders a notice briefly
describing the supplemental indenture.
If this Section applies, neither Section 5.06 nor 5.07 applies.
If the Company makes a distribution to all holders of its Common Stock of
any of its assets, or debt notes or any rights, warrants or options to purchase
notes of the Company that, but for the provisions of Section 5.08(c) hereof,
would otherwise result in an adjustment in the Conversion Rate pursuant to the
provisions of Section 5.08, then, from and after the record date for determining
the holders of Common Stock entitled to receive the distribution, a Holder of a
Note that converts such Note in accordance with the provisions of this Indenture
shall upon such conversion be entitled to receive, in addition to the shares of
Common Stock into which the Note is convertible, the kind and amount of notes,
cash or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Note immediately prior to the record
date for determining the holders of Common Stock entitled to receive the
distribution.
SECTION 5.15 COMPANY DETERMINATION FINAL. Any determination that the
Company or the Board of Directors must make pursuant to Section 5.03, 5.06,
5.07, 5.08, 5.09, 5.10, 5.14 or 5.17 is conclusive.
SECTION 5.16 TRUSTEE'S ADJUSTMENT DISCLAIMER. The Trustee has no duty to
determine when an adjustment under this Article 5 should be made, how it should
be made or what it should be. The Trustee has no duty to determine whether a
supplemental indenture under Section 5.14 need be entered into or whether any
provisions of any supplemental indenture are correct. The Trustee shall not be
accountable for and makes no representation as to the validity or value of any
notes or assets issued upon conversion of Notes. The Trustee shall not be
responsible for the Company's failure to comply with this Article 5. Each
Conversion Agent shall have the same protection under this Section 5.16 as the
Trustee.
SECTION 5.17 SIMULTANEOUS ADJUSTMENTS. In the event that this Article 5
requires adjustments to the Conversion Rate under more than one of Sections
5.06(4), 5.07 or 5.08, and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 5.06, second, the provisions
of Section 5.08 and, third, the provisions of Section 5.07.
SECTION 5.18 SUCCESSIVE ADJUSTMENTS. After an adjustment to the
Conversion Rate under this Article 5, any subsequent event requiring an
adjustment under this Article 5 shall cause an adjustment to the Conversion Rate
as so adjusted.
46
SECTION 5.19 RIGHTS ISSUED IN RESPECT OF COMMON STOCK ISSUED UPON
CONVERSION. Each share of Common Stock issued upon conversion of Notes pursuant
to this Article 5 shall be entitled to receive such number of shares of Series A
junior participating preferred stock, par value $1.00 per share of the Company
that is specified in the Company's Shareholder Rights Agreement adopted by the
Company with the Bank of New York as rights agent in relation to each share of
Common Stock. Each share of Common Stock issued upon conversion of the Notes
pursuant to this Article 5 shall be further entitled to such number of shares of
Common Stock or preferred stock purchase rights, as the case may be (together
with the right to receive shares of stock, the "Rights"), if any, that all
shares of Common Stock are entitled to receive and the certificates representing
the Common Stock issued upon such conversion shall bear such legends, if any, in
each case as may be provided by the terms of any existing or future shareholder
rights agreement adopted by the Company, as the same may be amended from time to
time (in each case, a "Rights Agreement"). Provided that such Rights Agreement
requires that each share of Common Stock issued upon conversion of Notes at any
time prior to the distribution of separate certificates representing the Rights
be entitled to receive such Rights, then, notwithstanding anything else to the
contrary in this Article 5, there shall not be any adjustment to the conversion
privilege or Conversion Rate as a result of the issuance of Rights, the
distribution of separate certificates representing the Rights, the exercise or
redemption of such Rights in accordance with any such Rights Agreement, or the
termination or invalidation of such Rights.
ARTICLE VI
MISCELLANEOUS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall continue
in full force and effect in accordance with the provisions thereof and the
Original Indenture is in all respects hereby ratified and confirmed. This
Supplemental Indenture and all its provisions shall be deemed a part of the
Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Supplemental Indenture 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.
47
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this First Supplemental Indenture on behalf of the respective parties hereto as
of the date first above written.
AVAYA INC.
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Name:
Title:
EXHIBIT A-1
AVAYA INC.
Liquid Yield Option(TM) Note due 2021
(Zero Coupon-Senior)
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT AT
MATURITY OF THIS NOTE IS $487.48, THE ISSUE DATE IS OCTOBER 31, 2001, THE YIELD
TO MATURITY IS 3.625%.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
AVAYA INC.
Liquid Yield Option(TM) Note due 2021
(Zero Coupon-Senior)
No. R CUSIP:
Issue Date: October 31, 2001 Original Issue Discount: $512.52
Issue Price: $487.48 (for each $1,000 Principal
(for each $1,000 Principal Amount at Maturity)
Amount at Maturity)
AVAYA INC., a corporation incorporated under the laws of the State of
Delaware, promises to pay to Cede & Co. or registered assigns, the Principal
Amount at Maturity of ______________________ ($___________) on October 31, 2021.
This Note shall not bear interest except as specified on the other side
of this Note. Original Issue Discount will accrue as specified on the other side
of this Note. This Note is convertible as specified on the other side of this
Note.
Additional provisions of this Note are set forth on the other side of
this Note.
Dated: _____________
AVAYA INC.
By:
------------------------------------
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this
is one of the Notes referred
to in the within-mentioned Indenture
(as defined on the other side of
this Note).
By
------------------------------
Authorized Signatory
Dated:
---------------------------
A-1-2
[FORM OF REVERSE SIDE OF LYON]
Liquid Yield OptionTM Note due 2021
(Zero Coupon-Senior)
1. Interest.
This Note shall not bear interest, except as specified in this paragraph
or in paragraph 10 hereof. If the Principal Amount at Maturity hereof or any
portion of such Principal Amount at Maturity is not paid when due (whether upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date
set for payment of the Purchase Price or Change in Control Purchase Price
pursuant to paragraph 6 hereof or upon the Stated Maturity of this Note) or if
interest due hereon or any portion of such interest is not paid when due in
accordance with paragraph 10 hereof, then in each such case the overdue amount
shall, to the extent permitted by law, bear interest at the rate of 3.625% per
annum, compounded semiannually, which interest shall accrue from the date such
overdue amount was originally due to the date payment of such amount, including
interest thereon, has been made or duly provided for. All such interest shall be
payable on demand. The accrual of such interest on overdue amounts shall be in
lieu of, and not in addition to, the continued accrual of Original Issue
Discount.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Note), in the period during which a Note
remains outstanding, shall accrue at 3.625% per annum, on a semiannual bond
equivalent basis using a 360-day year composed of twelve 30-day months, from the
Issue Date of this Note.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Principal Amount at Maturity, Restated Principal
Amount, Issue Price plus accrued Original Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price and interest, if any, to
Holders who surrender Notes to a Paying Agent to collect such payments in
respect of the Notes. The Company will pay any cash amounts in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may make such cash payments by check
payable in such money. Any payment required to be made on any day that is not a
Business Day will be made on the next succeeding Business Day.
3. Paying Agent, Conversion Agent and Registrar.
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent, Conversion Agent and Registrar. The
Company may appoint and change any Paying Agent, Conversion Agent, Registrar or
co-registrar without notice, other than notice to the Trustee except that the
Company will maintain at least one Paying Agent in the State of New York, City
of New York, Borough of Manhattan, which shall initially be an office or
A-1-3
agency of the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of October 31,
2001 (the "Original Indenture"), between the Company and the Trustee as
supplemented by a first supplemental indenture, dated as of October 31, 2001
(the "Supplemental Indenture" and together with the Original Indenture, the
"Indenture"). The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as in effect from time to time (the "TIA"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the Indenture. The
Notes are subject to all such terms, and Noteholders are referred to the
Indenture and the TIA for a statement of those terms.
The Notes are general unsecured obligations of the Company limited to
$943,632,000 aggregate Principal Amount at Maturity (subject to Section 2.07 of
the Indenture). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Notes. The Notes are redeemable as a
whole at any time, or in part from time to time, at the option of the Company at
the Redemption Prices set forth below, PROVIDED that the Notes are not
redeemable prior to October 31, 2004.
The table below shows Redemption Prices of a Note per $1,000 Principal
Amount at Maturity on the dates shown below and at Stated Maturity, which prices
reflect accrued Original Issue Discount calculated to each such date. The
Redemption Price of a Note redeemed between such dates shall include an
additional amount reflecting the additional Original Issue Discount accrued
since the preceding date in the table.
(1) (2) (3)
LYON Accrued Original Redemption Price
Redemption Date Issue Price Issue Discount (1) + (2)
--------------- ----------- -------------- ---------
October 31, 2004............ $487.48 $55.47 $542.95
October 31, 2005............ $487.48 $75.33 $562.81
October 31, 2006............ $487.48 $95.92 $583.40
October 31, 2007............ $487.48 $117.26 $604.74
October 31, 2008............ $487.48 $139.38 $626.86
October 31, 2009............ $487.48 $162.31 $649.79
October 31, 2010............ $487.48 $186.08 $673.56
October 31, 2011............ $487.48 $210.72 $698.20
October 31, 2012............ $487.48 $236.26 $723.74
October 31, 2013............ $487.48 $262.73 $750.21
October 31, 2014............ $487.48 $290.17 $777.65
A-1-4
October 31, 2015............ $487.48 $318.62 $806.10
October 31, 2016............ $487.48 $348.10 $835.58
October 31, 2017............ $487.48 $378.67 $866.15
October 31, 2018............ $487.48 $410.35 $897.83
October 31, 2019............ $487.48 $443.19 $930.67
October 31, 2020............ $487.48 $447.23 $964.71
At Stated Maturity.......... $487.48 $512.52 $1,000.00
If converted to a semiannual coupon note following the occurrence of a
Tax Event, the Redemption Price will be equal to the Restated Principal Amount,
plus accrued and unpaid interest from the date of such conversion to the
Redemption Date; but in no event will this Note be redeemable before October 31,
2004.
6. Purchase by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Notes held by
such Holder on the following Purchase Dates and at the following Purchase Prices
per $1,000 Principal Amount at Maturity, upon delivery of a Purchase Notice
containing the information set forth in the Indenture, at any time from the
opening of business on the date that is 20 Business Days prior to such Purchase
Date until the close of business on the Business Day immediately preceding such
Purchase Date and upon delivery of the Notes to the Paying Agent by the Holder
as set forth in the Indenture.
Purchase Date Purchase Price
October 31, 2004 $542.95
October 31, 2006 $583.40
October 31, 2011 $698.20
The Purchase Price (equal to the Issue Price plus accrued Original Issue
Discount to the Purchase Date) may be paid, at the option of the Company, in
cash or shares of Common Stock, or any combination thereof in accordance with
the Indenture.
If prior to a Purchase Date this Note has been converted to a semiannual
coupon note following the occurrence of a Tax Event, the Purchase Price will be
equal to the Restated Principal Amount, plus accrued and unpaid interest from
the date of conversion to the Purchase Date.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or a portion
of the Notes held by such Holder as of a date no later than 35 Business Days
after the occurrence of a Change in Control of the Company occurring on or prior
to October 31, 2004 for a Change in Control Purchase Price equal to the Issue
Price plus accrued Original Issue Discount to the Change in Control Purchase
Date, which Change in Control Purchase Price shall be paid in cash. If prior to
a Change in Control Purchase Date this Note has been converted to a semiannual
coupon note following the occurrence of a Tax Event, the Change in Control
Purchase Price shall be equal to the Restated
A-1-5
Principal Amount, plus accrued and unpaid interest from the date of conversion
to the Change in Control Purchase Date.
A third party may make the offer and purchase of the Notes in lieu of the
Company in accordance with the Indenture.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or notes if permitted under the Indenture) sufficient to pay
the Purchase Price or Change in Control Purchase Price, as the case may be, of
all Notes or portions thereof to be purchased as of the Purchase Date or the
Change in Control Purchase Date, as the case may be, is deposited with the
Paying Agent on the Business Day following the Purchase Date or the Change in
Control Purchase Date, as the case may be, such Notes (or portions thereof)
shall cease to be outstanding and Original Issue Discount and interest, if any,
on such Notes shall cease to accrue (or portions thereof) on such Purchase Date
or Change in Control Purchase Date, as the case may be, and the Holder thereof
shall have no other rights as such (other than the right to receive the Purchase
Price or Change in Control Purchase Price, as the case may be, upon surrender of
such Note).
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at the
Holder's registered address. If money sufficient to pay the Redemption Price of
all Notes (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, immediately
after such Redemption Date, Original Issue Discount and interest, if any, shall
cease to accrue on such Notes or portions thereof. Notes in denominations larger
than $1,000 of Principal Amount at Maturity may be redeemed in part but only in
integral multiples of $1,000 of Principal Amount at Maturity.
8. Conversion.
Subject to the next two succeeding sentences, a Holder of a Note may
convert it into Common Stock of the Company at any time before the close of
business on October 31 , 2021. If the Note is called for redemption, the Holder
may convert it at any time before the close of business on the Redemption Date.
A Note in respect of which a Holder has delivered a Purchase Notice or Change in
Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Note may be converted only if such notice of exercise
is withdrawn in accordance with the terms of the Indenture.
The Conversion Rate is 37.4437 shares of Common Stock per $1,000
Principal Amount at Maturity, subject to adjustment in certain events described
in the Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Common Stock.
In the event the Company exercises its option pursuant to Section 4.01 of
the Indenture to have interest in lieu of Original Issue Discount accrue on the
Note following a Tax Event, the
A-1-6
Holder will be entitled on conversion to receive the same number of shares of
Common Stock such Holder would have received if the Company had not exercised
such option. Accrued and unpaid interest in lieu of Original Issue Discount will
not be paid on Notes that are converted; PROVIDED, HOWEVER, that if the Company
exercises such option, Notes surrendered for conversion during the period, in
the case of interest in lieu of Original Issue Discount, 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 (and with respect to which
the Company has mailed a notice of redemption). Notes surrendered for conversion
must be accompanied by payment of an amount equal to the interest in lieu of
Original Issue Discount with respect thereto that the registered Holder is to
receive. Except where Notes surrendered for conversion must be accompanied by
payment as described above, no interest on converted Notes will be payable by
the Company on any Interest Payment Date subsequent to the date of conversion.
To convert a Note, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the Note
to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Conversion Agent, the Company or the Trustee and
(4) pay any transfer or similar tax, if required.
A Holder may convert a portion of a Note if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the Common Stock except as provided
in the Indenture. On conversion of a Note, that portion of accrued Original
Issue Discount (or interest if the Company has exercised its option provided for
in paragraph 10 hereof) attributable to the period from the Issue Date (or, if
the Company has exercised the option referred to in paragraph 10 hereof, the
later of (x) the date of such exercise and (y) the date on which interest was
last paid) through the Conversion Date with respect to the converted Note shall
not be cancelled, extinguished or forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through the delivery of the Common Stock
(together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Note being converted pursuant to the terms hereof; and the fair
market value of such shares of Common Stock (together with any such cash payment
in lieu of fractional shares) shall be treated as issued, to the extent thereof,
first in exchange for Original Issue Discount (or interest, if the Company has
exercised its option provided for in paragraph 10 hereof) accrued through the
Conversion Date, and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the Issue Price of the Note being converted pursuant to the provisions
hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days at less than the Sale Price at the Time of
Determination; and distributions to such holders of assets or debt notes of the
Company or certain rights to purchase notes of the Company (excluding certain
cash dividends or distributions). However, no adjustment need be made if
Noteholders may participate in the transaction or in certain other cases. The
Company from time to time may voluntarily increase the Conversion Rate.
A-1-7
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a Note
into Common Stock may be changed into a right to convert it into notes, cash or
other assets of the Company or another person.
9. Conversion Arrangement on Call for Redemption.
Any Notes called for redemption, unless surrendered for conversion before
the close of business on the Redemption Date, may be deemed to be purchased from
the Holders of such Notes at an amount not less than the Redemption Price, by
one or more investment banks or other purchasers who may agree with the Company
to purchase such Notes from the Holders, to convert them into Common Stock and
to make payment for such Notes to the Trustee in trust for such Holders.
10. Tax Event
(a) From and after (i) the date (the "Tax Event Date") of the occurrence
of a Tax Event and (ii) the date the Company exercises the option provided for
in this paragraph 10, whichever is later (the "Option Exercise Date"), at the
option of the Company, interest in lieu of future Original Issue Discount shall
accrue at the rate of 3.625% per annum on a principal amount per Note (the
"Restated Principal Amount") equal to the Issue Price plus Original Issue
Discount accrued through the Option Exercise Date and shall be payable
semiannually on April 30 and October 31 of each year (each an "Interest Payment
Date") to Holders of record at the close of business on the April 15 or October
16 (each a "Regular Record Date") immediately preceding such Interest Payment
Date. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months and will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the Option Exercise Date.
(b) Interest on any Note that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Note is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose. Each installment of interest on any Note shall be paid in same-day
funds by transfer to an account maintained by the payee located inside the
United States.
(c) Except as otherwise specified with respect to the Notes, any
Defaulted Interest on any Note shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section [ ] of the Indenture.
11. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons, in denominations
of $1,000 of Principal Amount at Maturity and integral multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Notes selected for redemption (except, in the case of a Note to be redeemed
in
A-1-8
part, the portion of the Note not to be redeemed) or any Notes in respect of
which a Purchase Notice or Change in Control Purchase Notice has been given and
not withdrawn (except, in the case of a Note to be purchased in part, the
portion of the Note not to be purchased) or any Notes for a period of 15 days
before the mailing of a notice of redemption of Notes to be redeemed.
12. Persons Deemed Owners.
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
13. Unclaimed Money or Notes.
The Trustee and the Paying Agent shall return to the Company upon written
request any money or notes held by them for the payment of any amount with
respect to the Notes that remains unclaimed for two years, subject to applicable
unclaimed property laws. After return to the Company, Holders entitled to the
money or notes must look to the Company for payment as general creditors unless
an applicable abandoned property law designates another person.
14. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate Principal Amount at Maturity of the Notes at
the time outstanding and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate Principal Amount at Maturity
of the Notes at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Noteholder, the Company and the
Trustee may amend the Indenture or the Notes to cure any ambiguity, omission,
defect or inconsistency, or to comply with Article 5 or Section [ ] of the
Indenture, to secure the Company's obligations under this Note or to add to the
Company's covenants for the benefit of the Noteholders or to surrender any right
or power conferred, to comply with any requirement of the SEC in connection with
the qualification of the Indenture under the TIA, or as necessary in connection
with the registration of the Notes under the Notes Act or to make any change
that does not adversely affect the rights of any Holders.
15. Defaults and Remedies.
Under the Indenture, Events of Default include (i) the Company defaults
in payment of interest which becomes payable after the Notes have been converted
to semiannual coupon notes following the occurrence of a Tax Event pursuant to
Article 10 of the Indenture and such default continues for 30 days (whether or
not such payment shall be prohibited by the terms of the Indenture); (ii)
default in payment of the Principal Amount at Maturity (or, if the Notes have
been converted to semiannual coupon notes following a Tax Event, the Restated
Principal Amount), Issue Price plus accrued Original Issue Discount, Redemption
Price, Purchase Price or Change in Control Purchase Price, as the case may be,
in respect of the Notes when the same becomes due and payable (whether or not
such payment shall be prohibited by the terms of the Indenture); (iii) failure
by the Company to comply with other agreements in the Indenture or the Notes,
subject to notice and lapse of time; (iv) default in the payment of any
principal when due or resulting in acceleration of other indebtedness of the
Company for borrowed money where the aggregate principal amount with respect to
which the default or acceleration has occurred
A-1-9
exceeds $100,000,000, and such acceleration has not been rescinded or annulled
within a period of 30 days after receipt by the Company of a Notice of Default,
subject to notice and lapse of time; and (v) certain events of bankruptcy or
insolvency. If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate Principal Amount at Maturity of the Notes
at the time outstanding, may declare all the Notes to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Notes becoming due and payable immediately upon the
occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes
unless it receives indemnity or note reasonably satisfactory to it. Subject to
certain limitations, Holders of a majority in aggregate Principal Amount at
Maturity of the Notes at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Noteholders notice
of any continuing Default (except a Default in payment of amounts specified in
clause (i) or (ii) above) if it determines that withholding notice is in their
interests.
16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. Authentication.
This Note shall not be valid until an authorized signatory of the Trustee
manually signs the Trustee's Certificate of Authentication on the other side of
this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW.
THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
----------------------
A-1-10
The Company will furnish to any Noteholder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Avaya Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Note, fill in the form below: To convert this Note into Common Stock of the Company,
check the box:
I or we assign and transfer this Note to |_|
---------------------------------
_________________________________ To convert only part of this Note, state the Principal
Amount at Maturity to be converted (which must be
(Insert assignee's soc. sec. or tax ID no.) $1,000 or an integral multiple of $1,000):
---------------------------------
$------------------------
---------------------------------
If you want the stock certificate made out in another
_________________________________ person's name, fill in the form below:
(Print or type assignee's name, address and zip code) _____________________________________
-------------------------------------
(Insert's other person's soc.sec. or tax ID no.)
and irrevocably appoint _____________________________________
_____________________ agent to transfer this Note on the _____________________________________
books of the Company. The agent may substitute another to
act for him _____________________________________
. -------------------------------------
(Print or type other person's name, address and zip)
------------------------------------------------------------------------------
Date: _____________________ Your Signature:_________________________________
------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
EXHIBIT A-2
Form of Certificated Note
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT AT
MATURITY OF THIS NOTE IS $512.52, THE ISSUE DATE IS OCTOBER 31, 2001, AND THE
YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT IS 3.625% PER
ANNUM.
A-2-1