Exhibit 4.2
--------------------------------------------------------------------------------
4.625% NOTES DUE 2015
SECOND SUPPLEMENTAL INDENTURE
between
▇▇▇▇▇▇ INTERNATIONAL INC.
and
BANK ONE TRUST COMPANY, N.A.
as Trustee
Dated as of March 10, 2003
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions
Section 1.01. Definition of Terms...........................................2
ARTICLE 2
The Notes
Section 2.01. Designation...................................................4
Section 2.02. Principal Amount; Series Treatment............................4
Section 2.03. Maturity......................................................5
Section 2.04. Interest......................................................5
Section 2.05. Form of Notes.................................................5
Section 2.06. Restrictive Legends...........................................7
Section 2.07. Transfer Restrictions.........................................9
Section 2.08. Transfers and Exchanges......................................11
Section 2.09. Additional Interest..........................................12
ARTICLE 3
Redemption Of The Notes
Section 3.01. Optional Redemption by Company...............................12
ARTICLE 4
Execution Of The Notes
Section 4.01. Execution; Certificates......................................12
ARTICLE 5
Miscellaneous
Section 5.01. Rule 144A Information; No Resales by Affiliates..............13
Section 5.02. Ratification of Indenture....................................13
Section 5.03. Trustee Not Responsible for Recitals.........................13
Section 5.04. Governing Law................................................14
Section 5.05. Separability.................................................14
Section 5.06. Counterparts.................................................14
i
SECOND SUPPLEMENTAL INDENTURE dated as of March 10, 2003 (the "Supplemental
Indenture") between ▇▇▇▇▇▇ International Inc., a Delaware corporation (the
"Company"), and Bank One Trust Company, N.A., a national banking association, as
trustee (the "Trustee") under the Indenture dated as of April 26, 2002 (the
"Indenture") between the Company and the Trustee.
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide, among other things, for the future issuance of the Company's notes,
bonds, debentures or other evidences of indebtedness to be issued from time to
time in one or more series as might be authorized by the Company under the
Indenture;
WHEREAS, Section 901(4) of the Indenture provides that the Company and the
Trustee may enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities (as defined in the Indenture) of any series as
provided by Sections 201 and 301 of the Indenture;
WHEREAS, the Board of Directors of the Company has duly adopted resolutions
authorizing the Company to issue the Securities provided for in this
Supplemental Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
enter into this Supplemental Indenture and to provide for the establishment of a
new series of its Securities to be known as its 4.625% Notes due 2015 (the
"Notes due 2015"), the form, substance, terms, provisions and conditions of
which shall be set forth in the Indenture and this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture and satisfy all requirements necessary to make (i)
this Supplemental Indenture a valid instrument in accordance with its terms, and
(ii) the Notes provided for hereby, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company:
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes
by the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and terms of the Notes, the Company covenants and agrees
with the Trustee as follows:
ARTICLE 1
Definitions
Section 1.01. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
Supplemental Indenture unless the definition of such term is amended and
supplemented pursuant to this Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the same
meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in this Section
1.01(f):
"Additional Interest" means Additional Interest as defined in the
Registration Rights Agreement.
"Closing Date" means March 10, 2003.
"Clearstream" means Clearstream Banking SA.
"Depositary" means the clearing agency registered under the Exchange Act
that is designated to act as the Depositary for the Global Notes. The Depository
Trust Company shall be the initial Depositary, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
"Euroclear" means Euroclear Bank S.A./N.V., and its successors or assigns,
as operator of the Euroclear system.
"Exchange Offer" means the exchange offer by the Company of Exchange Notes
for Initial Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means a registration statement
relating to an Exchange Offer as provided for, and in accordance with,
2
the Registration Rights Agreement including the prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"Exchange Notes" means the debt securities of the Company to be offered to
Holders in exchange for the Initial Notes pursuant to the Exchange Offer or
otherwise pursuant to a Registration of the Exchange Notes containing terms
identical to the Notes for which they are exchanged (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the
corresponding series of Notes or, if no such interest has been paid, from the
first date that the corresponding series of Notes was originally issued under
the Indenture as supplemented by this Supplemental Indenture, (ii) the
provisions relating to Additional Interest (other than any Additional Interest
accrued through that date of issuance of such Exchange Notes) will be eliminated
and (iii) the Exchange Notes will be registered under the Securities Act and
will not be subject to transfer restrictions or bear the Restricted Legend).
"Global Note" shall have the meaning set forth in Section 2.05(b).
"Initial Notes" means (i) all Notes issued on the first date that Notes
were originally issued under this Supplemental Indenture, (ii) any additional
Notes issued under Section 2.02 in any offering not registered under the
Securities Act and (iii) any Notes issued in replacement therefor, but not
including any Exchange Notes issued in exchange therefor.
"Initial Purchasers" means the Initial Purchasers as defined in the
Registration Rights Agreement.
"Note" or "Notes" means any Security or Securities, as the case may be,
authenticated and delivered under this Supplemental Indenture, including any
Global Note.
"Notes due 2015" shall have the meaning set forth in the recitals above.
"Offshore Global Note" shall have the meaning set forth in Section 2.05(b)
hereof.
"Registration" means a registered exchange offer for the Notes by the
Company or other registration of the Notes under the Securities Act pursuant to
and in accordance with the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of March 10, 2003, among the Company and Deutsche Bank Securities Inc.,
▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, as representatives of the
Initial Purchasers.
"Registration Statement" means the Registration Statement pursuant to and
as defined in the Registration Rights Agreement.
3
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the form of
Exhibit C hereto.
"Restricted Legend" means the legend set forth in Section 2.06(a) hereof.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Certificate" means (i) a certificate substantially in the form
of Exhibit B hereto or (ii) a written certification addressed to the Company and
the Trustee to the effect that the Person making such certification (x) is
acquiring such Note (or beneficial interest) for its own account or one or more
accounts with respect to which it exercises sole investment discretion and that
it and each such account is a qualified institutional buyer within the meaning
of Rule 144A, (y) is aware that the transfer to it or exchange, as applicable,
is being made in reliance upon the exemption from the provisions of Section 5 of
the Securities Act provided by Rule 144A and (z) acknowledges that it has
received such information regarding the Company as it has requested pursuant to
Rule 144A(d)(4) or has determined not to request such information.
"U.S. Global Note" shall have the meaning set forth in Section 2.05(b)
hereof.
ARTICLE 2
The Notes
Section 2.01. Designation.
The Company hereby establishes a series of Securities designated the
"4.625% Notes due 2015" for issuance under the Indenture.
Section 2.02. Principal Amount; Series Treatment.
(a) The Notes due 2015 shall be initially limited to an aggregate principal
amount of $600,000,000. The Company may, without notice to or the consent of the
Holders of the outstanding Notes due 2015, issue additional Notes due 2015 by
Company Order, so that such additional notes and the outstanding Notes due 2015
shall form a single series of Securities under the Indenture as supplemented by
this Supplemental Indenture.
(b) Any additional Notes issued under Section 2.02(a) shall have the same
terms in all respects as the corresponding series of outstanding Notes, except
that interest will accrue on the additional Notes from the most recent date to
which interest has been paid on the corresponding series of Notes (other than
4
the additional Notes) or if no interest has been paid on the corresponding
series of Notes from the first date that the corresponding series of Notes was
originally issued under the Indenture as supplemented by this Supplemental
Indenture.
(c) For all purposes of the Indenture and the Supplemental Indenture, all
Notes due 2015, whether Initial Notes, Exchange Notes or additional Notes due
2015 issued under Section 2.02(a), shall constitute one series of Securities and
shall vote together as one series of Securities.
Section 2.03. Maturity.
The Notes due 2015 will become due and payable on March 15, 2015.
Section 2.04. Interest.
The Notes due 2015 will bear interest at the rate of 4.625% per annum from
March 10, 2003 until the principal thereof becomes due and payable or to the
date of redemption (if any) of the Notes due 2015, such interest to be payable
semi-annually on March 15 and September 15 of each year, commencing on September
15, 2003.
Section 2.05. Form of Notes.
(a) The Notes due 2015 shall be substantially in the form of Exhibit A
hereto, provided that Exchange Notes (i) shall contain the alternative seventh
paragraph appearing on the reverse of the Notes in the form and (ii) shall not
contain the Restricted Legend. The terms and provisions contained in the form of
Notes set forth in Exhibit A shall constitute, and are hereby expressly made, a
part of the Indenture as supplemented by this Supplemental Indenture.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
the Indenture as supplemented by this Indenture Supplement, or as may be
required by the Depositary or as may be required for the Initial Notes to be
tradeable on any other market developed for trading of securities pursuant to
Rule 144A or Regulation S or as may be required to comply with any applicable
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any securities exchange or automated quotation system on which the
Notes may be listed, or to conform to usage, or to indicate any special
limitations or restrictions to which any particular Notes are subject.
(b) So long as the Notes of a series of Securities are eligible for
book-entry settlement with the Depositary, or unless otherwise required by law,
or otherwise contemplated herein, all of the Notes of that series of Securities
shall be
5
represented by one or more Notes of that series of Securities in global form
registered in the name of the Depositary or the nominee of the Depositary.
Initial Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Exhibit A (the "U.S. Global Notes"),
registered in the name of the nominee of the Depositary, deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, in accordance with the instructions given by the
Holder thereof, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Notes in registered form substantially in the form set forth in Exhibit A
(the "Offshore Global Notes"), registered in the name of the nominee of the
Depositary, deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Offshore Global Notes may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
The U.S. Global Notes and the Offshore Global Notes are collectively
referred to herein as the "Global Notes." The transfer and exchange of
beneficial interests in any such Global Notes shall be effected through the
Depositary in accordance with the Indenture and the applicable procedures of the
Depositary. Except as provided in the Indenture, beneficial owners of a Global
Note shall not be entitled to have certificates registered in their names, will
not receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered holders of such Global Note.
Any Global Note shall represent such of the outstanding Notes of a series
of Securities as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Notes of that series of Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Notes represented thereby may from time to time be increased or reduced to
reflect redemptions, transfers or exchanges permitted hereby. Any endorsement of
a Global Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee in such
manner and upon instructions given by the holder of such Notes in accordance
with the Indenture and this Supplemental Indenture. Payment of principal of and
interest and premium, if any, on any Global Note shall be made to the holder of
such Note.
6
Section 2.06. Restrictive Legends. (a) Except as otherwise provided in
paragraph (c) below, each Global Note shall bear the following legend on the
face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF ▇▇▇▇▇▇ INTERNATIONAL INC. THAT (a) THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1)
TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE l44A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (4) OUTSIDE THE UNITED STATES IN
A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES
ACT, (5) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT, SUBJECT, IN THE CASE OF CLAUSES (2), (4) OR (5), TO THE
RECEIPT BY ▇▇▇▇▇▇ INTERNATIONAL INC. OF AN OPINION OF COUNSEL OR SUCH OTHER
EVIDENCE ACCEPTABLE TO ▇▇▇▇▇▇ INTERNATIONAL INC. THAT SUCH RESALE, PLEDGE
OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND THAT (b) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN AND
DELIVER TO THE TRANSFEREE (OTHER THAN A QUALIFIED INSTITUTIONAL BUYER)
PRIOR TO THE SALE A COPY OF THE TRANSFER RESTRICTIONS APPLICABLE HERETO
(COPIES OF WHICH MAY BE OBTAINED FROM THE TRUSTEE).
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON
THE
7
REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO
COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
(b) (i) In addition, each Offshore Global Note shall bear the following
legend on the face thereof until at least the 41st day after the Closing Date:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THE HOLDER
HEREOF, BY ACQUIRING THIS SECURITY, AGREES FOR THE BENEFIT OF ▇▇▇▇▇▇
INTERNATIONAL INC. THAT NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS.
ANY OFFER, SALE, TRANSFER, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION OF THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WITHIN FORTY DAYS AFTER
THE LATER OF THE COMMENCEMENT OF THE OFFERING OF THIS SECURITY OR THE DATE
OF CLOSING OF SUCH OFFERING MAY BE MADE ONLY IN COMPLIANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT.
(ii) Each Global Note shall also bear the following legend on the face
thereof:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
8
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") 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 such other name as requested
by an authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is required by an authorized representative of DTC), 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.
(c) (i) If the Company determines (upon the advice of counsel and such
other certifications and evidence as the Company may reasonably require) that
any Note is eligible for resale pursuant to Rule 144(k) under the Securities Act
(or a successor provision) and that the Restricted Legend is no longer necessary
or appropriate in order to ensure that subsequent transfers of such Note (or a
beneficial interest therein) are effected in compliance with the Securities Act,
or
(ii) after an Initial Note is (x) sold pursuant to an effective
registration statement under the Securities Act, pursuant to the Registration
Rights Agreement or otherwise, or (y) exchanged for an Exchange Note,
the Company may instruct the Trustee to cancel such Note and issue to the Holder
thereof (or to its transferee) a new Note of like tenor and amount, registered
in the name of the Holder thereof (or its transferee), that does not bear the
Restricted Legend, and the Trustee will comply with such instruction. If a Note
to be reissued under this Section 2.06(c) without a Restricted Legend is
represented by a Global Note bearing the Restricted Legend, the principal amount
of the legended Global Note shall be reduced by the principal amount of the Note
to be reissued without the Restricted Legend and the principal amount of a
Global Note without the Restricted Legend of the appropriate series of
Securities shall be increased by an equal principal amount. If a Global Note
without the Restricted Legend of the appropriate series of Securities is not
then outstanding, the Company shall execute and the Trustee shall authenticate
and deliver a Global Note of the appropriate series of Securities without the
Restricted Legend to the Depositary.
Section 2.07. Transfer Restrictions. (a) By its acceptance of any Note
bearing the Restricted Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Supplemental Indenture
and in the Restricted Legend and agrees that it will transfer such Note only as
provided in this Supplemental Indenture and the Restricted Legend. The Company
and the Trustee as Note registrar shall not register a transfer of any Note
unless such transfer complies with the restrictions on transfer of such Note set
forth in this Supplemental Indenture and the Restricted Legend. In connection
with any transfer of Notes, each Holder agrees by its acceptance of the Notes to
furnish the Trustee as Note registrar or the Company such certifications, legal
9
opinions or other information as either of them may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities Act;
provided that the Trustee shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The transfer or exchange of a beneficial interest in an Offshore Global
Note for a beneficial interest in a U.S. Global Note may only be made upon
receipt by the Trustee of a duly completed Rule 144A Certificate.
The transfer or exchange of a beneficial interest in a U.S. Global Note for
a beneficial interest in an Offshore Global Note may only be made upon receipt
by the Trustee of a duly completed Registration S Certificate.
During the Restricted Period, beneficial interests in an Offshore Global
Note may be held through the Depositary only through Euroclear and Clearstream,
and their respective direct and indirect participants.
The Trustee shall retain copies of all letters, notices and other written
communications received pursuant to the Indenture or this Section 2.07(a). The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Trustee.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Supplemental Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or among members of,
or participants in, the Depositary or beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Supplemental Indenture, and to examine
the same to determine substantial compliance as to form with the express
requirements hereof.
(b) The following provisions shall apply only to Global Notes:
(i) Each Global Note authenticated under this Supplemental Indenture
shall be registered in the name of the Depositary or a nominee thereof and
delivered to such Depositary or a nominee thereof or Trustee if the Trustee
is acting as custodian for the Depositary or its nominee with respect to
such Global Note, and each such Global Note shall constitute a single Note
for all purposes of the Indenture and this Supplemental Indenture.
(ii) Notwithstanding any other provision in this Supplemental
Indenture, no Global Note may be exchanged in whole or in part for Notes
10
registered, and no transfer of a Global Note in whole or in part may be
registered, in the name of any Person other than the Depositary or a
nominee thereof except as provided in Section 305 of the Indenture. Any
Note issued in exchange for a Global Note or any portion thereof shall be a
Global Note; provided that any such Note so issued that is registered in
the name of a Person other than the Depositary or a nominee thereof shall
not be a Global Note.
(iii) Securities issued in exchange for a Global Note or any portion
thereof pursuant to clause (ii) above shall be issued pursuant to Section
305 of the Indenture.
(iv) At such time as all interests in a Global Note have been
redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Trustee. At any time
prior to such cancellation, if any interest in a Global Note is redeemed,
repurchased, converted, canceled or exchanged for Notes in certificated
form, the principal amount of such Global Note shall, in accordance with
the standing procedures and instructions existing between the Depositary
and the Trustee, be appropriately reduced, and an endorsement shall be made
on such Global Note, by the Trustee, at the direction of the Trustee, to
reflect such reduction.
Section 2.08. Transfers and Exchanges. (a) A Holder may transfer a Note (or
a beneficial interest therein) to another Person or exchange a Note (or a
beneficial interest therein) for another Note or Notes of any authorized
denomination by presenting to the Trustee a written request therefor stating the
name of the proposed transferee or requesting such an exchange, accompanied by
any certification, opinion or other document required by Section 2.07. The
Trustee will promptly register any such transfer or exchange that meets the
requirements of this Section by noting the same in the register maintained by
the Trustee for the purpose; provided that (x) no transfer or exchange will be
effective until the transfer or exchange is registered in such register and (y)
the Trustee will not be required (i) to issue, register the transfer of or
exchange any Note for a period of 15 days before a selection of Notes to be
redeemed, (ii) to register the transfer of or exchange any Note so selected for
redemption in whole or in part, except, in the case of a partial redemption,
that portion of any such Note not being redeemed, or (iii) if a redemption is to
occur after a Regular Record Date but on or before the corresponding Interest
Payment Date, to register the transfer of or exchange any Note on or after such
Regular Record Date and before the date of redemption. Prior to the registration
of any transfer, the Company, the Trustee and their agents will treat the person
in whose name the Note is registered as the owner and Holder thereof for all
purposes (whether or not the Note is overdue), and will not be affected by
notice to the contrary.
11
From time to time the Company will execute and the Trustee will
authenticate additional Notes as necessary in order to permit the registration
of a transfer or exchange in accordance with this Section.
No service charge will be imposed in connection with any transfer or
exchange of any Note, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or other similar governmental charge
payable upon exchange pursuant to Section 305 of the Indenture.
(b) Procedures to Be Followed by the Trustee. If a beneficial interest in a
Global Note is transferred or exchanged for a beneficial interest in another
Global Note, the Trustee will (x) record a decrease in the principal amount of
the Global Note being transferred or exchanged equal to the principal amount of
such transfer or exchange and (y) record a like increase in the principal amount
of the other Global Note. Any beneficial interest in one Global Note that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note, or exchanged for an interest in another Global Note, will, upon
transfer or exchange, cease to be an interest in such Global Note and become an
interest in the other Global Note and, accordingly, will thereafter be subject
to all transfer and exchange restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
Section 2.09. Additional Interest.
If a Registration Default (as defined in the Registration Rights Agreement)
occurs with respect to a series of Notes, the interest rate borne by the Notes
of such series shall be increased as provided in the Registration Rights
Agreement.
ARTICLE 3
Redemption Of The Notes
Section 3.01. Optional Redemption by Company. The Notes may be redeemed at
the option of the Company on the terms and conditions set forth in the form of
Note set forth as Exhibit A.
ARTICLE 4
Execution Of The Notes
Section 4.01. Execution; Certificates. Notwithstanding the requirements of
Section 303 of the Indenture, the Notes due 2015 may be executed on behalf of
the Company by its Treasurer and its Secretary. In addition, any Officers'
Certificate to be delivered under the Indenture in connection with a Company
Order for the authentication and delivery of the Notes due 2015 may be signed by
the Company's Treasurer and its Secretary.
12
ARTICLE 5
Miscellaneous
Section 5.01. Rule 144A Information; No Resales by Affiliates. (a) Within
the period prior to the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision),
the Company covenants and agrees that it shall, during any period in which it is
not subject to Section 13 or 15(d) under the Securities Exchange Act of 1934,
make available to any holder or beneficial holder of Initial Notes in connection
with any sale thereof and any prospective purchaser of Initial Notes designated
by such holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder or beneficial
holder of the Initial Notes and it will take such further action as any holder
or beneficial holder of such Initial Notes may reasonably request, all to the
extent required from time to time to enable such holder or beneficial holder to
sell its Initial Notes without registration under the Securities Act within the
limitation of the exemption provided by Rule 144A, as such Rule may be amended
from time to time. Upon the request of any holder or any beneficial holder of
the Initial Notes, the Company will deliver to such holder a written statement
as to whether it has complied with such requirements.
(b) Any Initial Note that, prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), is purchased or owned by the Company or any affiliate
thereof (within the meaning of Rule 144) may not be resold by the Company or
such affiliate unless registered under the Securities Act or resold pursuant to
an exemption from the registration requirements of the Securities Act in a
transaction which results in such Initial Note no longer being "restricted
securities" (as defined under Rule 144).
Section 5.02. Ratification of Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all
respects ratified and confirmed, and this Supplemental Indenture shall be deemed
part of the Indenture in the manner and to the extent herein and therein
provided.
Section 5.03. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
13
Section 5.04. Governing Law.
This Supplemental Indenture and each Note shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
Section 5.05. Separability.
In case any one or more of the provisions contained in this Supplemental
Indenture or in the Notes shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Supplemental Indenture or of the
Notes, but this Supplemental Indenture and the Notes shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
Section 5.06. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
14
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
▇▇▇▇▇▇ INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[Seal]
Attest:
By: /s/ ▇▇▇ ▇. ▇▇▇▇
----------------------------
▇▇▇ ▇. ▇▇▇▇
Secretary
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: /s/ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇. ▇▇▇▇▇▇
Title: Vice President
15
EXHIBIT A
[FACE OF NOTE]
[Unless and until a Security is exchanged for an Exchange Note or sold in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement the U.S. Global Notes shall bear the legend set forth below on
the face thereof :]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF ▇▇▇▇▇▇ INTERNATIONAL INC. THAT (a) THIS
SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1)
TO THE COMPANY, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE l44A (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (4) OUTSIDE THE UNITED STATES IN
A TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES
ACT, (5) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT, SUBJECT, IN THE CASE OF CLAUSES (2), (4) OR (5), TO THE
RECEIPT BY ▇▇▇▇▇▇ INTERNATIONAL INC. OF AN OPINION OF COUNSEL OR SUCH OTHER
EVIDENCE ACCEPTABLE TO ▇▇▇▇▇▇ INTERNATIONAL INC. THAT SUCH RESALE, PLEDGE
OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND THAT (b) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN AND
DELIVER TO THE
A-1
TRANSFEREE (OTHER THAN A QUALIFIED INSTITUTIONAL BUYER) PRIOR TO THE SALE A
COPY OF THE TRANSFER RESTRICTIONS APPLICABLE HERETO (COPIES OF WHICH MAY BE
OBTAINED FROM THE TRUSTEE).
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON
THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
[Unless and until a Security is exchanged for an Exchange Note or sold in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement the Offshore Global Notes shall bear the following legend on
the face thereof until at least the 41st day after the Closing Date:]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THE HOLDER
HEREOF, BY ACQUIRING THIS SECURITY, AGREES FOR THE BENEFIT OF ▇▇▇▇▇▇
INTERNATIONAL INC. THAT NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, RESOLD, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS.
ANY OFFER, SALE, TRANSFER, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION OF THIS
SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WITHIN FORTY DAYS AFTER
THE LATER OF THE COMMENCEMENT OF THE OFFERING OF THIS SECURITY OR THE DATE
OF CLOSING OF SUCH OFFERING MAY BE MADE ONLY IN COMPLIANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT.
[Each Global Note shall bear the following legend:]
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
A-2
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") 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 such other name as requested
by an authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is required by an authorized representative of DTC), 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.]
A-3
CUSIP No.
----------
ISIN
----------
▇▇▇▇▇▇ INTERNATIONAL INC.
4.625% Note due 2015
No. A-1 $600,000,000
▇▇▇▇▇▇ INTERNATIONAL INC., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to Cede & Co. or registered assigns, at
the office or agency of the Company in the City of New York, the principal sum
of SIX HUNDRED MILLION DOLLARS ($600,000,000) on March 15, 2015, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semiannually on March 15 and September 15 of each year, commencing September 15,
2003, on said principal sum at said office or agency, in like coin or currency,
at the rate per annum specified in the title of this Note, from the March 15 or
the September 15, as the case may be, next preceding the date of this Note to
which interest has been paid, unless the date hereof is a date to which interest
has been paid, in which case from the date of this Note, or unless no interest
has been paid on these Notes, in which case from March 10, 2003 until payment of
said principal sum has been made or duly provided for; provided, that payment of
interest may be made at the option of the Company by check mailed to the address
of the person entitled thereto as such address shall appear on the Security
register. Notwithstanding the foregoing, if the date hereof is after the 1st day
of March or September, as the case may be, and before the following March 15 or
September 15, this Note shall bear interest from such March 15 or September 15;
provided, that if the Company shall default in the payment of interest due on
such March 15 or September 15, then this Note shall bear interest from the next
preceding March 15 or September 15, to which interest has been paid or, if no
interest has been paid on these Notes, from March 10, 2003. The interest so
payable on any March 15 or September 15, will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Note is registered at the close of business on the
March 1 or September 1, as the case may be, preceding such March 15 or September
15.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
A-4
IN WITNESS WHEREOF, ▇▇▇▇▇▇ International Inc. has caused this instrument to
be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
Dated: March 10, 2003
▇▇▇▇▇▇ INTERNATIONAL INC.
By:
-------------------------------
Name:
Title:
[Seal]
By:
-------------------------------
Name:
Title:
Attest:
----------------------------
By:
Title:
A-5
(FORM OF CERTIFICATION OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:
-------------------------------
Authorized Officer
A-6
REVERSE OF NOTE
▇▇▇▇▇▇ INTERNATIONAL INC.
4.625% Note due 2015
This Note is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of April 26, 2002 and a second
supplemental indenture dated March 10, 2003 (both together herein called the
"Indenture"), between the Company and Bank One Trust Company, N.A., a national
banking association, Trustee (herein called the "Trustee" which term includes
any successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities. The Securities
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary as in the Indenture provided. This Note is
one of a series designated as the 4.625% Notes due 2015 (the "Notes") of the
Company, limited in aggregate principal amount to $600,000,000.
The Indenture contains provisions for the defeasance at any time of the
entire indebtedness of this Note upon compliance by the Company of certain
conditions set forth therein, which provisions apply to this Note.
This Note is redeemable in whole or in part, at the option of the Company,
at any time (an "Optional Redemption"), at a redemption price (the "Optional
Redemption Price") equal to the greater of:
(i) 100% of the principal amount of the Notes to be redeemed plus accrued
and unpaid interest thereon to the date of redemption, or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 20 basis points, plus accrued interest thereon to the date of
redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
A-7
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (1)
the average of four Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (2) if the Company obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealers" means (1) Deutsche Bank Securities Inc., ▇.▇
▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
Primary Treasury Dealer, the Company shall substitute another nationally
recognized investment banking firm that is a Primary Treasury Dealer, and (2) at
the option of the Company, additional primary U.S. Government securities dealers
("Primary Treasury Dealers") selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Company by such Reference Treasury Dealer at 5:00 p.m. New York
time on the third business day preceding such redemption date.
Any redemption pursuant to the preceding paragraph will be made upon not
less than 30 nor more than 60 days prior notice before the Redemption Date to
the Holders, at the Optional Redemption Price. If the Notes are only partially
redeemed by the Company pursuant to an Optional Redemption, the Notes will be
redeemed by such method as the Trustee shall deem fair and appropriate and in
accordance with the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date interest will cease to accrue on the Notes or portions
thereof called for redemption.
A-8
[TO BE INCLUDED IN INITIAL NOTES, NOT EXCHANGE NOTES: In the event that a
Registration Default (as defined in the Registration Rights Agreement) occurs,
then the Company shall pay Additional Interest (in addition to the interest
otherwise due hereon) to the Holder as provided in the Registration Rights
Agreement.
[TO BE INCLUDED IN EXCHANGE NOTES: There shall also be payable in respect
of this Note all Additional Interest that may have accrued on the Note for which
this Note was exchanged (as defined in such Note) pursuant to the Exchange
Offer, such Additional Interest to be calculated in accordance with the terms of
such Note and payable at the same time and in the same manner as periodic
interest on this Note.]
In case an Event of Default, as defined in the Indenture, other than an
Event of Default relating to events of bankruptcy, insolvency or reorganization,
with respect to the Notes, shall have occurred and be continuing, either the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then Outstanding may declare the principal hereof, and accrued and unpaid
interest, if any, hereon due and payable immediately, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding (as defined in the
Indenture) of each series to be affected to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the Holders of the Securities of each such series;
provided, however, that no such supplemental indenture shall (i) reduce the
principal amount of any Security or any premium thereon, or reduce the rate of
interest thereon, or reduce any amount payable on redemption thereof, or change
the currency of payments of principal, premium, if any, or interest, relating to
any Security, or impair or affect the rights of any Holder to institute suit for
the payment thereof, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected or (iii) reduce the percentage
of Securities of this series outstanding necessary to consent to waive any past
default under the Indenture to less than a majority, without the consent of the
Holder of each Security so affected, or (iv) modify the provisions of the
sections of the Indenture dealing with supplementary indentures or waivers of
covenants, except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each Security affected thereby. It is also provided in
the Indenture that, with respect to certain defaults or Events of Default
regarding the Securities of any series, the Holders of a majority in
A-9
aggregate principal amount Outstanding of the Securities of such series may on
behalf of the Holders of all the Securities of such series waive any such past
default or Event of Default and its consequences. The preceding sentence shall
not, however, apply to a default in the payment of the principal of or premium,
if any, or interest on any of the Securities. Any such consent or waiver by the
Holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Note and any Notes which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note in the manner and at the respective times herein provided.
The Notes are issuable in registered form without coupons in denominations
of $1,000 and any multiple of $1,000 at the office or agency of the Trustee in
the City of New York, and in the manner and subject to the limitations provided
in the Indenture, but without the payment of any service charge, Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized
denominations.
There is no sinking fund for the retirement of the Notes.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Trustee in the City of New York, a new Note or Notes of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
Prior to due presentment for registration or transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the registered
Holder hereof as the owner of this Note (whether or not this Note shall be
overdue), for the purpose of receiving payment of the principal hereof and
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or any indenture supplemental thereto or in any Note, or
because of any indebtedness evidenced thereby, shall be had against any past,
present or future stockholder, employee, officer or director, as such, of the
Company or of any predecessor or successor, either directly or through the
A-10
Company or any predecessor or successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
This Security is a Global Security within the meaning of the Indenture and
is registered in the name of the Depository or a nominee of the Depository. This
Security is exchangeable for Securities registered in the name of a person other
than the Depository or its nominee only in the limited circumstances as
permitted by the Indenture and may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository.
Terms used herein which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture.
A-11
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing attorney to transfer said Note on the books of
--------------------
the Company with full power of substitution in the premises.
By:
-------------------------------------
Date:
-----------------------------------
A-12
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of an effective Registration or (ii) two
years (or such lesser period as may be provided in any amendment to Rule 144(k)
under the Securities Act) after the later of the original issuance of this Note
or the last date on which this Note was held by the Company or an Affiliate of
the Company, the undersigned confirms that without utilizing any general
solicitation or general advertising that this Note is being transferred in
accordance with its terms:
[Check One]
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] to a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its own account or
for the account of a qualified institutional buyer to whom notice
is given that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933.
A-13
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any Person other than
the registered holder thereof, provided, however, that if box (4) is checked,
the Trustee may require, prior to registering any such transfer of the Notes,
such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
Signature
Signature Guarantee:
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
A-14
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
---------------- ------------------------------
NOTICE: To be executed by an
executive officer
A-15
Schedule I
[Include as Schedule I only for a Global Note]
▇▇▇▇▇▇ INTERNATIONAL INC.
4.625% Notes due 2015
No.
-------
===================================================================================
Notation Explaining Principal Authorized Signature of
Date Principal Amount Amount Recorded Trustee or Custodian
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
-----------------------------------------------------------------------------------
A-16
EXHIBIT B
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Rule 144A
, 200
---------- -
Bank One Trust Company, N.A.
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Institutional Trust Services
Re: ▇▇▇▇▇▇ International Inc. (the "Company") 4.625% Notes due 2015
(the "Notes")
Dear Sirs:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $ principal amount of Notes issued
----
under the Indenture.
[ ] B. Our proposed exchange of $ principal amount of Notes issued
----
under the Indenture for an equal principal amount of Notes to be
held by us.
We and, if applicable, each account for which we are acting in the
aggregate owned and invested more than $100,000,000 in securities of issuers
that are not affiliated with us (or such accounts, if applicable), as of
, 200 , which is a date on or since close of our most recent fiscal
---------- -
year. We and, if applicable, each account for which we are acting, are a
qualified institutional buyer within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"). If we are
acting on behalf of an account, we exercise sole investment discretion with
respect to such account. We are aware that the transfer of Notes to us, or such
exchange, as applicable, is being made in reliance upon the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A. Prior to
the date of this Certificate we have received such information regarding the
Company as we have requested pursuant to Rule 144A(d)(4) or have determined not
to request such information.
B-1
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Holder]
By:
------------------------
Authorized Signature
B-2
EXHIBIT C
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
, 200
---------- -
Bank One Trust Company, N.A.
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Institutional Trust Services
Attention:
Re: ▇▇▇▇▇▇ International Inc. (the "Company") 4.625% Notes due 2015
(the "Notes")
Dear Sirs:
Terms are used in this Certificate as used in Regulation S ("Regulation S")
under the Securities Act of 1933, as amended (the "Securities Act"), except as
otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
[ ] A. This Certificate relates to our proposed transfer of $ principal
----
amount of Notes issued under the Indenture. We hereby certify as follows:
1. The offer and sale of the Notes was not and will not be made to a
person in the United States (unless such person is excluded from the
definition of "U.S. person" pursuant to Rule 902(k)(2)(vi) or the
account held by it for which it is acting is excluded from the
definition of "U.S. person" pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3)) and such offer and sale was
not and will not be specifically targeted at an identifiable group of
U.S. citizens abroad.
2. Unless the circumstances described in the parenthetical in paragraph 1
above are applicable, either (a) at the time the buy order was
originated, the buyer was outside the United States or we and any
person acting on our behalf reasonably believed that the buyer was
outside the United States or (b) the transaction was
C-1
executed in, on or through the facilities of a designated offshore
securities market, and neither we nor any person acting on our behalf
knows that the transaction was pre-arranged with a buyer in the United
States.
3. Neither we, any of our affiliates, nor any person acting on our or
their behalf has made any directed selling efforts in the United
States with respect to the Notes.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession, fee or
other remuneration in respect of the Notes, and the proposed transfer
takes place during the Restricted Period (as defined in the
Indenture), or we are an officer or director of the Company or an
Initial Purchaser (as defined in the Indenture), we certify that the
proposed transfer is being made in accordance with the provisions of
Rule 904(b) of Regulation S.
[ ] B.This Certificate relates to our proposed exchange of $ principal
----
amount of Notes issued under the Indenture for an equal principal amount of
Notes to be held by us. We hereby certify as follows:
1. At the time the offer and sale of the Notes was made to us, either (i)
we were not in the United States or (ii) we were excluded from the
definition of "U.S. person" pursuant to Rule 902(k)(2)(vi) or the
account held by us for which we were acting was excluded from the
definition of "U.S. person" pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3); and we were not a member of
an identifiable group of U.S. citizens abroad.
2. Unless the circumstances described in paragraph 1(ii) above are
applicable, either (a) at the time our buy order was originated, we
were outside the United States or (b) the transaction was executed in,
on or through the facilities of a designated offshore securities
market and we did not pre-arrange the transaction in the United
States.
3. The proposed exchange of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
C-2
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------
Authorized Signature
C-3