EXHIBIT 4.2
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FIRST SUPPLEMENTAL INDENTURE
BETWEEN
EGL, INC.
AND
JPMORGAN CHASE BANK,
AS TRUSTEE
---------
DECEMBER 7, 2001
5% CONVERTIBLE SUBORDINATED NOTES DUE DECEMBER 15, 2006
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TABLE OF CONTENTS
ARTICLE 1 THE 2006 NOTES .................................................. 2
SECTION 1.1. Designation of 2006 Notes; Establishment of Form .......... 2
SECTION 1.2. Amount .................................................... 2
SECTION 1.3. Interest .................................................. 3
SECTION 1.4. Denominations ............................................. 3
SECTION 1.5. Method of Payment ......................................... 3
SECTION 1.6. Redemption and Repurchase ................................. 3
SECTION 1.7. Conversion ................................................ 4
SECTION 1.8. Maturity .................................................. 4
SECTION 1.9. Other Terms of 2006 Notes ................................. 4
ARTICLE 2 AMENDMENTS TO THE INDENTURE ..................................... 4
SECTION 2.1. Definitions ............................................... 4
SECTION 2.2. Consolidation, Merger and Sale ............................ 6
SECTION 2.3. Additional Events of Default .............................. 6
SECTION 2.4. Rights of Holders to Convert .............................. 6
SECTION 2.5. Supplemental Indentures Without Consent of Holders ........ 7
SECTION 2.6. Supplemental Indenture with Consent of Holders ............ 7
SECTION 2.7. Additional Interest ....................................... 7
SECTION 2.8. Redemption and Repurchase ................................. 7
SECTION 2.9. Conversion ................................................ 13
ARTICLE 3 MISCELLANEOUS PROVISIONS ........................................ 26
SECTION 3.1. Integral Part ............................................. 26
SECTION 3.2. General Definitions ....................................... 26
SECTION 3.3. Adoption, Ratification and Confirmation ................... 26
SECTION 3.4. Counterparts .............................................. 26
SECTION 3.5. Governing Law ............................................. 26
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EGL, INC.
FIRST SUPPLEMENTAL INDENTURE
THIS
FIRST SUPPLEMENTAL INDENTURE, dated as of December 7, 2001 (the
"
First Supplemental Indenture"), between EGL, Inc., a Texas corporation (the
"Company"), and JPMorgan Chase Bank, a
New York banking corporation (the
"Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of December 7, 2001 (the "Original Indenture"
and, as supplemented by this
First Supplemental Indenture, the "Indenture"),
providing for the issuance from time to time of one or more series of the
Company's Securities;
WHEREAS, Section 9.01(9) of the Indenture provides that the Company and
the Trustee may from time to time enter into one or more indentures supplemental
thereto to establish the form or terms of Securities of a new series;
WHEREAS, Sections 9.01(6) and 9.01(7) of the Indenture permit the
execution of supplemental indentures without the consent of any Holders to add
to the covenants of the Company for the benefit of, and to add any additional
Events of Default with respect to, all or any series of Securities;
WHEREAS, Section 9.01(8) of the Indenture permits the execution of
supplemental indentures without the consent of any Holders to change or
eliminate any of the provisions of the Indenture; provided that such change or
elimination does not adversely affect any outstanding Security of any series
created prior to the execution of such supplemental indenture;
WHEREAS, Section 2.01 of the Indenture provides that the Company may
enter into supplemental indentures to establish the terms and provisions of a
series of Securities issued pursuant to the Indenture;
WHEREAS, the Company desires to issue 5% Convertible Subordinated Notes
due December 15, 2006 (the "2006 Notes"), a new series of Security the issuance
of which was authorized by or pursuant to resolution of the Board of Directors
of the Company;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this
First Supplemental Indenture to supplement and amend the Indenture
insofar as it will apply only to the 2006 Notes in certain respects; and
WHEREAS, all things necessary have been done to make the 2006 Notes,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
First Supplemental Indenture a valid agreement of the Company, in accordance
with their and its terms.
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NOW THEREFORE:
In consideration of the premises provided for herein, the Company and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of all Holders of the 2006 Notes as follows:
ARTICLE 1
THE 2006 NOTES
SECTION 1.1. Designation of 2006 Notes; Establishment of Form.
There shall be a series of Securities designated "5% Convertible
Subordinated Notes due December 15, 2006" of the Company (the "2006 Notes"), and
the form thereof shall be substantially as set forth in Exhibit A hereto, which
is incorporated into and shall be deemed a part of this
First Supplemental
Indenture, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers of the Company executing such 2006 Notes, as
evidenced by their execution of the 2006 Notes.
The 2006 Notes will initially be issued in permanent global form,
substantially in the form set forth in Exhibit A hereto, as a Global Security.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Security.
The Company initially appoints the Trustee to act as Paying Agent,
Registrar and Conversion Agent with respect to the 2006 Notes.
SECTION 1.2. Amount.
(a) The Trustee shall authenticate and deliver 2006 Notes for
original issue in an aggregate principal amount of up to $85,000,000
upon Company Order for the authentication and delivery of 2006 Notes,
without any further action by the Company; provided, however, that in
the event that the Company sells any 2006 Notes pursuant to the
over-allotment option (the "Option") granted to Credit Suisse First
Boston Corporation pursuant to Section 3 of the Purchase Agreement
dated as of December 3, 2001, between the Company and Credit Suisse
First Boston Corporation then the Trustee shall authenticate and
deliver 2006 Notes for original issue in an aggregate principal amount
of up to $85,000,000 plus up to an additional aggregate principal
amount of up to $15,000,000 of 2006 Notes sold pursuant to the Option
upon a Company Order. The authorized aggregate principal amount of 2006
Notes may be increased at any time hereafter in the manner provided in
Section 2.01(b) of the Original Indenture.
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(b) The Company may not issue new 2006 Notes to replace 2006
Notes that it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article XII of the Indenture.
(c) The 2006 Notes shall be (i) Rule 144A Securities entitled
to the benefits of Section 4.03(b) of the Indenture and (ii) Restricted
Securities subject to the provisions of Sections 2.18, 2.19 and 2.20 of
the Indenture.
SECTION 1.3. Interest.
The 2006 Notes shall bear interest at the rate set forth in paragraph 1
of the 2006 Notes. Interest on the 2006 Notes shall be payable to the persons in
whose name the 2006 Notes are registered at the close of business on the regular
record date for such interest payment. The Company shall pay interest
semiannually on December 15 and June 15 of each year, commencing June 15, 2002.
Interest on the Notes shall accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from December 7, 2001; provided,
however, that if there is not an existing default in the payment of interest and
if any Note is authenticated between a record date referred to on the face
thereof and the next succeeding interest payment date, interest shall accrue
from such interest payment date.
SECTION 1.4. Denominations.
The 2006 Notes shall be in fully registered form without coupons in
denominations of $1,000 of principal amount or any integral multiple thereof.
SECTION 1.5. Method of Payment.
The Company shall pay interest on the 2006 Notes (except defaulted
interest) to the person who is the Holder of such 2006 Note at the close of
business on June 1 or December 1, as the case may be, next preceding the related
interest payment date. The Holder must surrender the 2006 Note to a Paying Agent
to collect payment of principal. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Company may, however, pay principal and
interest in respect of any Physical Security by check or wire payable in such
money; provided, however, that a Holder with an aggregate principal amount in
excess of $2,000,000 will be paid by wire transfer in immediately available
funds at the election of such Holder if such Holder has provided wire transfer
instructions to the Company. The Company may mail an interest check to the
Holder's registered address. Notwithstanding the foregoing, so long as any 2006
Note is registered in the name of a Depositary or its nominee, all payments
thereon shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee.
SECTION 1.6. Redemption and Repurchase.
(a) There shall be no sinking fund for the retirement of the
2006 Notes or other mandatory redemption obligation.
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(b) The Company, at its option, may redeem the 2006 Notes in
accordance with the provisions of and at the Redemption Prices set
forth in paragraphs 5 and 6 the 2006 Notes and in accordance with the
provisions of the Indenture, including, without limitation, Article
III.
(c) The Company, at the option of the Holders thereof, shall
repurchase the 2006 Notes in accordance with the provisions of and at
the Change in Control Purchase Prices set forth in paragraph 7 of the
2006 Notes and in accordance with the provisions of the Indenture,
including, without limitation, Article III.
SECTION 1.7. Conversion.
The 2006 Notes shall be convertible in accordance with the provisions
and at the Conversion Price set forth in paragraph 8 of the 2006 Notes and in
accordance with the provisions of the Indenture, including, without limitation,
Article XII.
SECTION 1.8. Maturity.
The Stated Maturity of the 2006 Notes shall be December 15 , 2006.
SECTION 1.9. Other Terms of 2006 Notes.
Without limiting the foregoing provisions of this Article 1, the terms
of the 2006 Notes shall be as set forth in the form of 2006 Notes set forth in
Exhibit A hereto and as provided in the Indenture.
ARTICLE 2
AMENDMENTS TO THE INDENTURE
The amendments contained herein shall apply to 2006 Notes only and not
to any other series of Securities issued under the Indenture and any covenants
provided herein are expressly being included solely for the benefit of the 2006
Notes. These amendments shall be effective for so long as there remains any 2006
Notes outstanding.
SECTION 2.1. Definitions.
Section 1.01 of the Original Indenture is amended by inserting or
restating, as the case may be, in their appropriate alphabetical position, the
following definitions:
"Additional Interest" has the meaning specified in Section 5 of the
Registration Rights Agreement. All references herein to interest accrued or
payable as of any date shall include any Additional Interest accrued or payable
as of such date as provided in the Registration Rights Agreement.
"Change in Control" has the meaning specified in Section 3.13.
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"Change in Control Purchase Date" has the meaning specified in
Section 3.13.
"Change in Control Purchase Notice" has the meaning specified in
Section 3.13.
"Change in Control Purchase Price" has the meaning specified in
Section 3.13.
"Common Stock" means the common stock of the Company, par value $0.001
per share, as it exists on the date of this
First Supplemental Indenture and any
shares of any class or classes of Capital Stock of the Company resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company; provided, however, that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable on conversion of 2006 Notes shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Conversion Date" has the meaning specified in Section 12.02.
"Conversion Price" has the meaning specified in Section 12.06.
"Registration Rights Agreement" means the Registration Rights Agreement
dated December 7, 2001, between the Company and Credit Suisse First Boston
Corporation.
"Significant Subsidiary" means, in respect of any Person, a Subsidiary
of such Person that would constitute a "significant subsidiary" as such term is
defined under Rule 1-02 of Regulation S-X under the Securities Act and the
Exchange Act.
"Trading Day" means a day during which trading in securities generally
occurs on the National Association of Securities Dealers Automated Quotation
System or, if the Common Stock is not quoted on the National Association of
Securities Dealers Automated Quotation System, on the principal other national
or regional securities exchange on which the Common Stock is then listed or, if
the Common Stock is not listed on a national or regional securities exchange, on
the principal other market on which the Common Stock is then traded.
"2006 Notes" means the 5% Convertible Subordinated Notes due December
15 , 2006 of the Company authorized by or pursuant to resolution of the Board of
Directors.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof under ordinary circumstances have the power to vote in
the election of the board of directors, managers or trustees of any Person (or
other Persons performing similar functions), irrespective of whether or not, at
the time, Capital Stock of any other class or classes shall have, or might have,
voting power by reason of the happening of any contingency.
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SECTION 2.2. Consolidation, Merger and Sale.
The Original Indenture shall be amended by inserting (i) "(A) (i) is a
corporation organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia or (ii) (a) is a
corporation organized and existing under the laws of the Cayman Islands, Bermuda
or any other jurisdiction where it is exempt from withholding or deducting
amounts for or on the account of any present or future taxes, fees, duties,
assessments or governmental charges of whatever nature with respect to the
payment of interest on the 2006 Notes, (b) its shares of Capital Stock are
listed on a national securities exchange or quoted on an interdealer automated
quotation system and (c) the Company delivers an Officers' Certificate to the
Trustee to the effect that such consolidation, merger, conversion, transfer or
disposal is not reasonably expected to be adverse in any material respect to the
Holders of the 2006 Notes taken as a whole, and (B)" immediately preceding
"expressly assumes" in Section 5.01(i) and (ii) "and provides for conversion
rights in accordance with Section 12.11" at the end of Section 5.01(1).
SECTION 2.3. Additional Events of Default.
The following two Events of Default shall be added to Section 6.01 of
the Original Indenture:
(7) the Company fails to provide a Change in Control Purchase Notice
when required by Section 3.13; or any indebtedness under any bond, debenture,
note or other evidence of indebtedness for money borrowed by the Company or any
Significant Subsidiary (all or substantially all of the outstanding Voting Stock
of which is owned, directly or indirectly, by the Company) or under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company or any Significant Subsidiary (all or substantially all of the
outstanding Voting Stock of which is owned, directly or indirectly, by the
Company) (an "Instrument") with a principal amount then outstanding in excess of
U.S. $10,000,000, whether such indebtedness now exists or shall hereafter be
created, is not paid at final maturity of the Instrument (either at its stated
maturity or upon acceleration thereof), and such indebtedness is not discharged,
or such acceleration is not rescinded or annulled, within a period of 30 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in aggregate principal amount of the outstanding 2006 Notes a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such default to be cured or waived or
such acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder.
SECTION 2.4. Rights of Holders to Convert.
The Original Indenture shall be amended by inserting in Section 6.07
the words (i) ", to convert such Security in accordance with Article XII"
immediately before the words "or to bring suit" and (ii) "or the right to
convert" immediately after the words "those respective dates."
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SECTION 2.5. Supplemental Indentures Without Consent of Holders.
Section 9.01 of the Original Indenture shall be amended by inserting
the following paragraph:
(12) to make provision with respect to the conversion rights,
if any, to Holders of 2006 Notes pursuant to the requirements of
Article XII hereof.
SECTION 2.6. Supplemental Indenture with Consent of Holders.
The Original Indenture shall be amended by inserting ", or modify the
provisions of the Indenture in a manner that adversely affects in any material
respect the right to convert any 2006 Note as provided in Article XII or to
institute suit to enforce such right" at the end of Section 9.02(4). The
Original Indenture shall be further amended by substituting the following for
Section 9.02(5):
"(5) change the provisions of Sections 3.13 through 3.16 in a manner
adverse to the Holders of the 2006 Notes in any material respect;".
SECTION 2.7. Additional Interest.
Article IV of the Original Indenture shall be amended by inserting the
following Section in its entirety:
SECTION 4.08 Payment of Additional Interest.
If Additional Interest is payable by the Company pursuant to
the Registration Rights Agreement, the Company shall deliver to the
Trustee a certificate to that effect stating (i) the amount of such
Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable. Unless and until a Trust Officer of the
Trustee receives such a certificate, the Trustee may assume without
inquiry that no such Additional Interest is payable. If the Company has
paid Additional Interest directly to the Persons entitled to it, the
Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment.
SECTION 2.8. Redemption and Repurchase.
Article III of the Original Indenture shall be amended by inserting the
following paragraph as the final paragraph of Section 3.03:
"If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed to
be the portion selected for redemption. Securities which have been converted
during such a selection of Securities to be redeemed shall be treated by the
Trustee as outstanding for the purpose of such selection."
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Article III of the Original Indenture shall be further amended by
inserting the following sections in their entirety:
SECTION 3.12 Conversion Arrangement on Call for Redemption.
In connection with any redemption of 2006 Notes, the Company
may arrange for the purchase and conversion of any 2006 Notes called
for redemption by an agreement with one or more investment banks or
other purchasers to purchase such 2006 Notes by paying to a Paying
Agent (other than the Company or `any of its Affiliates) in trust for
the Holders, on or before 11:00 a.m.
New York City time on the
Redemption Date, an amount that, together with any amounts deposited
with such Paying Agent by the Company for the redemption of such 2006
Notes, is not less than the Redemption Price, together with interest
accrued to, but not including, the Redemption Date, of such 2006 Notes.
Notwithstanding anything to the contrary contained in this Article III,
the obligation of the Company to pay the Redemption Price of such 2006
Notes, including all accrued interest, shall be deemed to be satisfied
and discharged to the extent such amount is so paid by such purchasers;
provided, however, that nothing in this Section 3.12 shall relieve the
Company of its obligation to pay the Redemption Price, plus accrued
interest to but excluding the relevant Redemption Date, on 2006 Notes
called for redemption. If such an agreement with one or more investment
banks or other purchasers is entered into, any 2006 Notes called for
redemption and not surrendered for conversion by the Holders thereof
prior to the relevant Redemption Date may, at the option of the Company
upon written notice to the Trustee, 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 XII)
surrendered by such purchasers for conversion, all as of 11:00 a.m.
New
York City time on the Redemption Date, subject to payment of the above
amount as aforesaid. The Paying Agent shall hold and pay to the Holders
whose 2006 Notes are selected for redemption any such amount paid to it
for purchase in the same manner as it would money deposited with it by
the Company for the redemption of 2006 Notes. Without the Paying
Agent's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any 2006 Notes shall
increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Paying Agent as set forth in
this Indenture, and the Company agrees to indemnify the Paying Agent
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 2006 Notes between the Company and such
purchasers, including the costs and expenses incurred by the Paying
Agent 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 3.13 Purchase of 2006 Notes at Option of the Holder Upon Change
in Control.
(a) If at any time that 2006 Notes remain outstanding there
shall occur a Change in Control, 2006 Notes shall be purchased by the
Company at the option of the Holders, as of the date that is 30
Business Days after the occurrence of the Change in Control (the
"Change
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in Control Purchase Date") at a purchase price equal to 100% of the
principal amount of the 2006 Notes, together with accrued and unpaid
interest to, but excluding, the Change in Control Purchase Date (the
"Change in Control Purchase Price"), subject to satisfaction by or on
behalf of any Holder of the requirements set forth in subsection (c) of
this Section 3.13.
A "Change in Control" shall be deemed to have occurred if any
of the following occurs after the date hereof:
(i) any "person" or "group" (as such terms are
defined below) is or becomes the "beneficial owner" (as
defined below), directly or indirectly, of shares of Voting
Stock of the Company representing 50% or more of the total
voting power of all outstanding classes of Voting Stock of the
Company or has the power, directly or indirectly, to elect a
majority of the members of the Board of Directors of the
Company; or
(ii) the Company consolidates with, or merges with or
into, another Person or the Company sells, assigns, conveys,
transfers, leases or otherwise disposes of all or
substantially all of the assets of the Company, or any Person
consolidates with, or merges with or into, the Company, in any
such event other than pursuant to a transaction in which the
Persons that "beneficially owned" (as defined below), directly
or indirectly, shares of Voting Stock of the Company
immediately prior to such transaction "beneficially own" (as
defined below), directly or indirectly, shares of Voting Stock
of the Company representing at least a majority of the total
voting power of all outstanding classes of Voting Stock of the
surviving or transferee Person; or
(iii) the holders of Capital Stock of the Company
approve any plan or proposal for the liquidation or
dissolution of the Company (whether or not otherwise in
compliance with the terms hereof).
For the purpose of the definition of "Change in Control", (i)
"person" and "group" have the meanings given such terms under Section
13(d) and 14(d) of the Exchange Act or any successor provision to
either of the foregoing, and 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 thereto), (ii) a "beneficial owner" shall be
determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on the date of this Indenture, except that the number of shares
of Voting Stock of the Company shall be deemed to include, in addition
to all outstanding shares of Voting Stock of the Company and Unissued
Shares deemed to be held by the "person" or "group" (as such terms are
defined above) or other Person with respect to which the Change in
Control determination is being made, all Unissued Shares deemed to be
held by all other Persons, and (iii) the terms "beneficially owned" and
"beneficially own" shall have meanings correlative to that of
"beneficial owner". The term "Unissued Shares" means shares of Voting
Stock not outstanding that are subject to options, warrants, rights to
purchase or
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conversion privileges exercisable within 60 days of the date of
determination of a Change in Control.
Notwithstanding anything to the contrary set forth in this
Section 3.13, a Change in Control will not be deemed to have occurred
if either:
(1) the Closing Price (determined in accordance with
Section 12.06(e) of this Indenture) of the Common Stock for
any five Trading Days during the ten Trading Days immediately
preceding the Change in Control is at least equal to 105% of
the Conversion Price in effect on such Trading Day; or
(2) in the case of a merger or consolidation, all of
the consideration (excluding cash payments for fractional
shares and cash payments pursuant to dissenters' appraisal
rights) in the merger or consolidation constituting the Change
in Control consists of common stock traded on a United States
national securities exchange or quoted on the Nasdaq National
Market (or which will be so traded or quoted when issued or
exchanged in connection with such Change in Control) and as a
result of such transaction or transactions the 2006 Notes
become convertible solely into such common stock.
(b) Within 10 Business Days after the occurrence of a Change
in Control, the Company shall mail a written notice of the Change in
Control to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include the form of a
Change in Control Purchase Notice to be completed by the Holder and
shall state:
(i) the date of such Change in Control and, briefly,
the events causing such Change in Control;
(ii) the date by which the Change in Control Purchase
Notice pursuant to this Section 3.13 must be given;
(iii) the Change in Control Purchase Date;
(iv) the Change in Control Purchase Price;
(v) the Holder's right to require the Company to
purchase the 2006 Notes;
(vi) briefly, the conversion rights of the 2006
Notes;
(vii) the name and address of each Paying Agent and
Conversion Agent;
(viii) the Conversion Price and any adjustments
thereto;
(ix) that 2006 Notes as to which a Change in Control
Purchase Notice has been given may be converted into Common
Stock pursuant to Article XII of this
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Indenture only to the extent that the Change in Control
Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(x) the procedures that the Holder must follow to
exercise rights under this Section 3.13;
(xi) the procedures for withdrawing a Change in
Control Purchase Notice, including a form of notice of
withdrawal; and
(xii) that the Holder must satisfy the requirements
set forth in the 2006 Notes in order to convert the 2006
Notes.
If any of the 2006 Notes is in the form of a Global Security,
then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to the
repurchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection
(a) of this Section 3.13 upon delivery of a written notice (which shall
be in substantially the form included in Exhibit A hereto and which may
be delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of the exercise
of such rights (a "Change in Control Purchase Notice") to any Paying
Agent at any time prior to the close of business on the Business Day
next preceding the Change in Control Purchase Date.
The delivery of such 2006 Note to any Paying Agent (together
with all necessary endorsements) at the office of such Paying Agent
shall be a condition to the receipt by the Holder of the Change in
Control Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.13, a portion of a 2006 Note if the principal amount
of such portion is $1,000 or an integral multiple of $1,000. Provisions
of the Indenture that apply to the purchase of all of a 2006 Note
pursuant to Sections 3.13 through 3.17 also apply to the purchase of
such portion of such 2006 Note.
Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Change in Control Purchase Notice
contemplated by this subsection (c) shall have the right to withdraw
such Change in Control Purchase Notice in whole or in a portion thereof
that is a principal amount of $1,000 or in an integral multiple thereof
at any time prior to the close of business on the Business Day next
preceding the Change in Control Purchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section
3.14.
A Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written
withdrawal thereof.
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Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Change in Control Purchase Notice may be
delivered or withdrawn and such 2006 Notes may be surrendered or
delivered for purchase in accordance with the applicable procedures of
the Depositary as in effect from time to time.
SECTION 3.14 Effect of Change in Control Purchase Notice.
Upon receipt by any Paying Agent of the Change in Control
Purchase Notice specified in Section 3.13(c), the Holder of the 2006
Note in respect of which such Change in Control Purchase Notice was
given shall (unless such Change in Control Purchase Notice is withdrawn
as specified below) thereafter be entitled to receive the Change in
Control Purchase Price with respect to such 2006 Note. Such Change in
Control Purchase Price shall be paid to such Holder promptly following
the later of (a) the Change in Control Purchase Date with respect to
such 2006 Note (provided the conditions in Section 3.13(c) have been
satisfied) and (b) the time of delivery of such 2006 Note to a Paying
Agent by the Holder thereof in the manner required by Section 3.13(c).
2006 Notes in respect of which a Change in Control Purchase Notice has
been given by the Holder thereof may not be converted into shares of
Common Stock pursuant to Article XII on or after the date of the
delivery of such Change in Control Purchase Notice unless such Change
in Control Purchase Notice has first been validly withdrawn.
A Change in Control Purchase Notice may be withdrawn by means
of a written notice (which may be delivered by mail, overnight courier,
hand delivery, facsimile transmission or in any other written form and,
in the case of Global Securities, may be delivered electronically or by
other means in accordance with the Depositary's customary procedures)
of withdrawal delivered by the Holder to a Paying Agent at any time
prior to the close of business on the Business Day immediately
preceding the Change in Control Purchase Date, specifying the principal
amount of the 2006 Note or portion thereof (which must be a principal
amount of $1,000 or an integral multiple of $1,000 in excess thereof)
with respect to which such notice of withdrawal is being submitted.
SECTION 3.15 Deposit of Change in Control Purchase Price.
On or before 11:00 a.m.
New York City time on the Change in
Control Purchase Date, the Company shall deposit with the Trustee or
with a Paying Agent (other than the Company or an Affiliate of the
Company) an amount of money (in immediately available funds if
deposited on such Change in Control Purchase Date) sufficient to pay
the aggregate Change in Control Purchase Price of all the 2006 Notes or
portions thereof that are to be purchased as of such Change in Control
Purchase Date. The manner in which the deposit required by this Section
3.15 is made by the Company shall be at the option of the Company,
provided that such deposit shall be made in a manner such that the
Trustee or a Paying Agent shall have immediately available funds on or
before 11:00 a.m.
New York City time on the Change in Control Purchase
Date.
12
If a Paying Agent holds, in accordance with the terms hereof,
money sufficient to pay the Change in Control Purchase Price of any
2006 Note for which a Change in Control Purchase Notice has been
tendered and not withdrawn in accordance with this Indenture then, on
the Change in Control Purchase Date, such 2006 Note will cease to be
outstanding and the rights of the Holder in respect thereof shall
terminate (other than the right to receive the Change in Control
Purchase Price as aforesaid). The Company shall publicly announce the
principal amount of 2006 Notes purchased as a result of such Change in
Control on or as soon as practicable after the Change in Control
Purchase Date.
SECTION 3.16 Compliance with Securities Laws Upon Purchase of 2006
Notes.
In connection with any offer to purchase or purchase of 2006
Notes under Section 3.13, the Company shall (a) comply with Rule 13e-4
and Rule 14e-1 (or any successor to either such Rule), if applicable,
under the Exchange Act, (b) file the related Schedule TO (or any
successor or similar schedule, form or report) if required under the
Exchange Act, and (c) otherwise comply with all federal and state
securities laws in connection with such offer to purchase or purchase
of 2006 Notes, all so as to permit the rights of the Holders and
obligations of the Company under Sections 3.13 through 3.15 to be
exercised in the time and in the manner specified therein.
SECTION 3.17 Repayment to the Company.
To the extent that the aggregate amount of cash deposited by
the Company pursuant to Section 3.15 exceeds the aggregate Change in
Control Purchase Price together with interest, if any, thereon of the
2006 Notes or portions thereof that the Company is obligated to
purchase, then promptly after the Change in Control Purchase Date the
Trustee or a Paying Agent, as the case may be, shall return any such
excess cash to the Company.
SECTION 2.9. Conversion.
The Indenture is amended by adding the following Articles XII
to the Original Indenture:
ARTICLE XII
SECTION 12.01 Conversion Privilege.
Subject to the further provisions of this Article XII and
paragraph 8 of the 2006 Notes, a Holder of a 2006 Note may convert the
principal amount of such 2006 Notes (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into
Common Stock at any time prior to the close of business on the fourth
Trading Day prior to the final maturity date, at the Conversion Price
then in effect; provided, however, that, if such 2006 Note is called
for redemption or submitted or presented for purchase pursuant to
Article III, such conversion right shall terminate at the close of
business on the Business Day immediately preceding the Redemption Date
or Change in Control Purchase Date, as the case
13
may be, for such 2006 Note or such earlier date as the Holder presents
such 2006 Note for redemption or for purchase (unless the Company shall
default in making the redemption payment or Change in Control Purchase
Price payment when due, in which case the conversion right shall
terminate at the close of business on the date such default is cured
and such 2006 Note is redeemed or purchased, as the case may be). The
number of shares of Common Stock issuable upon conversion of a 2006
Note shall be determined by dividing the principal amount of the 2006
Note or portion thereof surrendered for conversion by the Conversion
Price in effect on the Conversion Date. The initial Conversion Price is
set forth in paragraph 8 of the 2006 Notes and is subject to adjustment
as provided in this Article XII.
Provisions of this Indenture that apply to conversion of all
of a 2006 Note also apply to conversion of a portion of a 2006 Note.
A 2006 Note in respect of which a Holder has delivered a
Change in Control Purchase Notice pursuant to Section 3.13(c)
exercising the option of such Holder to require the Company to purchase
such 2006 Note may be converted only if such Change in Control Purchase
Notice is withdrawn by a written notice of withdrawal delivered to a
Paying Agent prior to the close of business on the Business Day
immediately preceding the Change in Control Purchase Date in accordance
with Section 3.14.
A Holder of 2006 Notes is not entitled to any rights of a
holder of Common Stock until such Holder has converted its 2006 Notes
to Common Stock, and only to the extent such 2006 Notes are deemed to
have been converted into Common Stock pursuant to this Article XII.
SECTION 12.02 Conversion Procedure.
To convert a 2006 Note, a Holder must (a) complete and
manually sign the conversion notice on the back of the 2006 Note and
deliver such notice to a Conversion Agent, (b) surrender the 2006 Note
to a Conversion Agent, (c) furnish appropriate endorsements and
transfer documents if required by a Registrar or a Conversion Agent,
and (d) pay any transfer or similar tax, if required. The date on which
the Holder satisfies all of those requirements is the "Conversion
Date." As soon as practicable after the Conversion Date, the Company
shall deliver to the Holder through a Conversion Agent a certificate
for the number of whole shares of Common Stock issuable upon the
conversion and cash in lieu of any fractional shares pursuant to
Section 12.03. Anything herein to the contrary notwithstanding, in the
case of Global Securities, conversion notices may be delivered and such
2006 Notes may be surrendered for conversion in accordance with the
applicable procedures of the Depositary as in effect from time to time.
The Person in whose name the Common Stock certificate is
registered shall be deemed to be a stockholder of record on the
Conversion Date; provided, however, that no surrender of a 2006 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
14
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; provided, further, that such conversion shall
be at the Conversion Price in effect on the Conversion Date as if the
stock transfer books of the Company had not been closed. Upon
conversion of a 2006 Note, such Person shall no longer be a Holder of
such 2006 Note. No payment or adjustment will be made for dividends or
distributions on shares of Common Stock issued upon conversion of a
2006 Note.
2006 Notes so surrendered for conversion (in whole or in part)
during the period from the close of business on any regular record date
to the opening of business on the next succeeding interest payment date
(excluding 2006 Notes or portions thereof called for redemption or
presented for purchase upon a Change in Control on a Redemption Date or
Change in Control Purchase Date, as the case may be, during the period
beginning at the close of business on a regular record date and ending
at the opening of business on the first Business Day after the next
succeeding interest payment date, or if such interest payment date is
not a Business Day, the second such Business Day) shall also be
accompanied by payment in funds acceptable to the Company of an amount
equal to the interest payable on such interest payment date on the
principal amount of such 2006 Note then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such 2006 Note, subject to the provisions of this
Indenture relating to the payment of defaulted interest by the Company.
Except as otherwise provided in this Section 12.02, no payment or
adjustment will be made for accrued interest on a converted 2006 Note.
If the Company defaults in the payment of interest payable on such
interest payment date, the Company shall promptly repay such funds to
such Holder.
Nothing in this Section shall affect the right of a Holder in
whose name any 2006 Note is registered at the close of business on a
record date to receive the interest payable on such 2006 Note on the
related interest payment date in accordance with the terms of this
Indenture and the 2006 Notes. If a Holder converts more than one 2006
Note at the same time, the number of shares of Common Stock issuable
upon the conversion shall be based on the aggregate principal amount of
2006 Notes converted.
Upon surrender of a 2006 Note that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver
to the Holder, a new 2006 Note equal in principal amount to the
unconverted portion of the 2006 Note surrendered.
SECTION 12.03 Fractional Shares.
The Company will not issue fractional shares of Common Stock
upon conversion of 2006 Notes. In lieu thereof, the Company will pay an
amount in cash for the current market value of the fractional shares.
The current market value of a fractional share shall be determined
(calculated to the nearest 1/1000th of a share) by multiplying the
Closing Price (determined as set forth in Section 12.06(e)) of the
Common Stock on the Trading Day
15
immediately prior to the Conversion Date by such fractional share and
rounding the product to the nearest whole cent.
SECTION 12.04 Taxes on Conversion.
If a Holder converts a 2006 Note, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of
shares of Common Stock upon such 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 certificate 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 regulation.
SECTION 12.05 Company To Provide Stock.
The Company shall, prior to issuance of any 2006 Notes
hereunder, and from time to time as may be necessary, reserve, out of
its authorized but unissued Common Stock, a sufficient number of shares
of Common Stock to permit the conversion of all outstanding 2006 Notes
into shares of Common Stock.
All shares of Common Stock delivered upon conversion of the
2006 Notes shall be newly issued 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.
The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of shares
of Common Stock upon conversion of 2006 Notes, if any, and will list or
cause to have quoted such shares of Common Stock on each national
securities exchange or on the Nasdaq National Market or other
over-the-counter market or such other market on which the Common Stock
is then listed or quoted; provided, however, that if rules of such
automated quotation system or exchange permit the Company to defer the
listing of such Common Stock until the first conversion of the 2006
Notes into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable
upon conversion of the 2006 Notes in accordance with the requirements
of such automated quotation system or exchange at such time. Any Common
Stock issued upon conversion of a 2006 Note hereunder which at the time
of conversion was a Restricted Security will also be a Restricted
Security.
SECTION 12.06 Adjustment of Conversion Price.
The conversion price as stated in paragraph 8 of the 2006
Notes (the "Conversion Price") shall be adjusted from time to time by
the Company as follows:
16
(a) In case the Company shall (i) pay a dividend on
its Common Stock in shares of Common Stock, (ii) make a
distribution on its Common Stock in shares of Common Stock,
(iii) subdivide its outstanding Common Stock into a greater
number of shares, or (iv) combine its outstanding Common Stock
into a smaller number of shares, the Conversion Price in
effect immediately prior thereto shall be adjusted so that the
Holder of any 2006 Note thereafter surrendered for conversion
shall be entitled to receive that number of shares of Common
Stock which it would have owned had such 2006 Note been
converted immediately prior to the happening of such event. An
adjustment made pursuant to this subsection (a) shall become
effective immediately after the record date in the case of a
dividend or distribution and shall become effective
immediately after the effective date in the case of
subdivision or combination.
(b) In case the Company shall issue rights or
warrants to all or substantially all holders of its Common
Stock entitling them (for a period commencing no earlier than
the record date described below and expiring not more than 60
days after such record date) to subscribe for or purchase
shares of Common Stock at a price per share less than the
Current Market Price per share of Common Stock (as determined
in accordance with subsection (e) of this Section 12.06) on
the record date for the determination of stockholders entitled
to receive such rights or warrants, the Conversion Price in
effect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record
date by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding on such record date plus
the number of shares which the aggregate offering price of the
total number of shares of Common Stock so offered would
purchase at the Current Market Price per share (as defined in
subsection (e) of this Section 12.06) of Common Stock on such
record date, and of which the denominator shall be the number
of shares of Common Stock outstanding on such record date plus
the number of additional shares of Common Stock offered. Such
adjustment shall be made successively whenever any such rights
or warrants are issued, and shall become effective immediately
after such record date. If at the end of the period during
which such rights or warrants are exercisable not all rights
or warrants shall have been exercised, the adjusted Conversion
Price shall be immediately readjusted to what it would have
been based upon the number of additional shares of Common
Stock actually issued.
(c) In case the Company shall distribute to all or
substantially all holders of its Common Stock any shares of
Capital Stock of the Company (other than Common Stock),
evidences of indebtedness or other securities or non-cash
assets (including securities of any Person other than the
Company but excluding (1) dividends or distributions paid
exclusively in cash or (2) dividends or distributions referred
to in subsection (a) of this Section 12.06), or shall
distribute to all or substantially all holders of its Common
Stock rights or warrants to subscribe for or purchase any of
its securities (excluding those rights and warrants referred
to in
17
subsection (b) of this Section 4.6 and also excluding the
distribution of rights to all holders of Common Stock pursuant
to the adoption of a stockholder rights plan or the detachment
of such rights under the terms of such stockholder rights
plan), then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by
multiplying the current Conversion Price by a fraction of
which the numerator shall be the Current Market Price per
share (as defined in subsection (e) of this Section 12.06) of
the Common Stock on the record date mentioned below less the
fair market value on such record date (as determined by the
Board of Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be
evidenced by an Officers' Certificate delivered to the
Trustee) of the portion of the Capital Stock, evidences of
indebtedness or other securities or non-cash assets so
distributed or of such rights or warrants applicable to one
share of Common Stock (determined on the basis of the number
of shares of Common Stock outstanding on the record date), and
of which the denominator shall be the Current Market Price per
share (as defined in subsection (e) of this Section 12.06) of
the Common Stock on such record date. Such adjustment shall be
made successively whenever any such distribution is made and
shall become effective immediately after the record date for
the determination of shareholders entitled to receive such
distribution.
In the event the then fair market value (as so
determined) of the portion of the Capital Stock, evidences of
indebtedness or other securities or non-cash assets so
distributed or of such rights or warrants applicable to one
share of Common Stock is equal to or greater than the Current
Market Price per share of the Common Stock on such record
date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder of a 2006 Note shall have
the right to receive upon conversion the amount of Capital
Stock, evidences of indebtedness or other securities or
non-cash assets so distributed or of such rights or warrants
such holder would have received had such Holder converted each
2006 Note on such record date. In the event that such dividend
or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would
then be in effect if such dividend or distribution had not
been declared. If the Board of Directors determines the fair
market value of any distribution for purposes of this Section
12.06(c) by reference to the actual or when issued trading
market for any securities, it must in doing so consider the
prices in such market over the same period used in computing
the Current Market Price of the Common Stock.
Upon conversion of the 2006 Notes into Common Stock,
to the extent that Company's current or any subsequent
preferred shares rights plan ("Rights Plan") is still in
effect upon such conversion, the Holders of 2006 Notes will
receive, in addition to the Common Stock, the rights described
therein (whether or not the rights have separated from the
Common Stock at the time of conversion), subject to the
limitations set forth in the Rights Plan. Any distribution of
rights or warrants pursuant to a Rights Plan complying with
the requirements set forth in the
18
immediately preceding sentence of this paragraph shall not
constitute a distribution of rights or warrants pursuant to
this Section 12.06(c).
Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to
subscribe for or purchase shares of the Company's Capital
Stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event
or events ("Trigger Event"): (i) are deemed to be transferred
with such shares of Common Stock; (ii) are not exercisable;
and (iii) are also issued in respect of future issuances of
Common Stock, shall be deemed not to have been distributed for
purposes of this Section 12.06 (and no adjustment to the
Conversion Price under this Section 12.06 will be required)
until the occurrence of the earliest Trigger Event, whereupon
such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required)
to the Conversion Price shall be made under this Section
12.06(c). If any such right or warrant, including any such
existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of
which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other
assets, then the date of the occurrence of any and each such
event shall be deemed to be the date of distribution and
record date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights
or warrants without exercise by any of the holders thereof).
In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or
other event (of the type described in the preceding sentence)
with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to
the Conversion Price under this Section 12.06 was made, (1) in
the case of any such rights or warrants which shall all have
been redeemed or repurchased without exercise by any holders
thereof, the Conversion Price shall be readjusted upon such
final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though
it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common
Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all
holders of Common Stock as of the date of such redemption or
repurchase, and (2) in the case of such rights or warrants
which shall have expired or been terminated without exercise
by any holders thereof, the Conversion Price shall be
readjusted as if such rights and warrants had not been issued.
(d) (i) In case the Company shall, by dividend or
otherwise, at any time distribute (a "Triggering
Distribution") to all or substantially all holders of its
Common Stock cash in an aggregate amount that, together with
the aggregate amount of (A) any cash and the fair market value
(as determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the
Trustee) of any other consideration payable in respect of any
tender offer by the Company or a Subsidiary
19
of the Company for Common Stock consummated within the 12
months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price
adjustment pursuant to this Section 12.06 has been made and
(B) all other cash distributions to all or substantially all
holders of its Common Stock made within the 12 months
preceding the date of payment of the Triggering Distribution
and in respect of which no Conversion Price adjustment
pursuant to this Section 12.06 has been made, exceeds an
amount equal to 10.0% of the product of the Current Market
Price per share of Common Stock (as determined in accordance
with subsection (e) of this Section 12.06) on the Business Day
(the "Determination Date") immediately preceding the day on
which such Triggering Distribution is declared by the Company
multiplied by the number of shares of Common Stock outstanding
on the Determination Date (excluding shares held in the
treasury of the Company), the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying such Conversion Price in effect immediately prior
to the Determination Date by a fraction of which the numerator
shall be the Current Market Price per share of the Common
Stock (as determined in accordance with subsection (e) of this
Section 12.06) on the Determination Date less the sum of the
aggregate amount of cash and the aggregate fair market value
(determined as aforesaid in this Section 12.06(c)(1)) of any
such other consideration so distributed, paid or payable (in
the case of amounts paid in any tender offer, including only
that portion of the aggregate amount paid in the tender offer
that was in excess of the aggregate value of the shares
purchased in the tender offer (based on the Current Market
Price per share of Common Stock as determined in accordance
with subsection (e) of this Section 12.06 on the day the
tender offer expired)) within such 12 months (including,
without limitation, the Triggering Distribution) applicable to
one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding on the
Determination Date) and the denominator shall be such Current
Market Price per share of the Common Stock (as determined in
accordance with subsection (e) of this Section 12.06) on the
Determination Date, such reduction to become effective
immediately prior to the opening of business on the day
following the date on which the Triggering Distribution is
paid.
(ii) In case any tender offer made by the Company or
any of its Subsidiaries for Common Stock shall expire and such
tender offer (as amended upon the expiration thereof) shall
involve the payment of aggregate consideration in an amount
(determined as the sum of the aggregate amount of cash
consideration and the aggregate fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the Trustee
thereof) of any other consideration) that, together with the
aggregate amount of (A) any cash and the fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the
Trustee) of any other consideration payable in respect of any
other tender offers
20
by the Company or any Subsidiary of the Company for Common
Stock consummated within the 12 months preceding the date of
the Expiration Date (as defined below) and in respect of which
no Conversion Price adjustment pursuant to this Section 12.06
has been made and (B) all cash distributions to all or
substantially all holders of its Common Stock made within the
12 months preceding the Expiration Date and in respect of
which no Conversion Price adjustment pursuant to this Section
12.06 has been made, exceeds an amount equal to 10.0% of the
product of the Current Market Price per share of Common Stock
(as determined in accordance with subsection (e) of this
Section 12.06) as of the last date (the "Expiration Date")
tenders could have been made pursuant to such tender offer (as
it may be amended) (the last time at which such tenders could
have been made on the Expiration Date is hereinafter sometimes
called the "Expiration Time") multiplied by the number of
shares of Common Stock outstanding (including tendered shares
but excluding any shares held in the treasury of the Company)
at the Expiration Time, then, immediately prior to the opening
of business on the day after the Expiration Date, the
Conversion Price shall be reduced so that the same shall equal
the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the
Expiration Date by a fraction of which the numerator shall be
(x) the product of the number of shares of Common Stock
outstanding (including tendered shares but excluding any
shares held in the treasury of the Company) at the Expiration
Time multiplied by the Current Market Price per share of the
Common Stock (as determined in accordance with subsection (e)
of this Section 12.06) on the Expiration Date minus (y) the
aggregate consideration (determined as aforesaid) payable to
stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares
validly tendered and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and the denominator
shall be the product of the number of shares of Common Stock
outstanding (less any Purchased Shares and excluding any
shares held in the treasury of the Company) at the Expiration
Time and the Current Market Price per share of Common Stock
(as determined in accordance with subsection (e) of this
Section 12.06) on the Expiration Date, such reduction to
become effective immediately prior to the opening of business
on the day following the Expiration Date. In the event that
the Company is obligated to purchase shares pursuant to any
such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any
or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would
have been in effect based upon the number of shares actually
purchased. If the application of this Section 12.06(c)(2) to
any tender offer would result in an increase in the Conversion
Price, no adjustment shall be made for such tender offer under
this Section 12.06(c)(2).
(iii) For purposes of this Section 12.06(c), the term
"tender offer" shall mean and include both tender offers and
exchange offers, all references to "purchases" of shares in
tender offers (and all similar references) shall mean and
21
include both the purchase of shares in tender offers and the
acquisition of shares pursuant to exchange offers, and all
references to "tendered shares" (and all similar references)
shall mean and include shares tendered in both tender offers
and exchange offers.
(e) For the purpose of any computation under subsections (b),
(c) and (d) of this Section 12.06, the current market price (the
"Current Market Price") per share of Common Stock on any date shall be
deemed to be the average of the daily closing prices for a period
selected by the Company of either 5 consecutive Trading Days or 30
consecutive Trading Days commencing not more than 45 Trading Days
before and ending no later than (A) the Determination Date or the
Expiration Date, as the case may be, with respect to distributions or
tender offers under subsection (c) or (d) of this Section 12.06 or (B)
the record date with respect to distributions, issuances or other
events requiring such computation under subsection (b) or (c) of this
Section 12.06. The closing price (the "Closing Price") for each day
shall be the last reported sales price or, in case no such reported
sale takes place on such date, the average of the reported closing bid
and asked prices in either case on the Nasdaq National Market (the
"NNM") or, if the Common Stock is not listed or admitted to trading on
the NNM, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if not listed or
admitted to trading on the NNM or any national securities exchange, the
last reported sales price of the Common Stock as quoted on NASDAQ or,
in case no reported sales takes place, the average of the closing bid
and asked prices as quoted on NASDAQ or any comparable system or, if
the Common Stock is not quoted on NASDAQ or any comparable system, the
closing sales price or, in case no reported sale takes place, the
average of the closing bid and asked prices, as furnished by any two
members of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose. If no such
prices are available, the Current Market Price per share shall be the
fair value of a share of Common Stock as determined by the Board of
Directors (which shall be evidenced by an Officers' Certificate
delivered to the Trustee).
(f) In any case in which this Section 12.06 shall require that
an adjustment be made following a record date or a Determination Date
or Expiration Date, as the case may be, established for purposes of
this Section 12.06, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of
the certificate described in Section 12.09) issuing to the Holder of
any 2006 Note converted after such record date or Determination Date or
Expiration Date the shares of Common Stock and other capital stock of
the Company issuable upon such conversion over and above the shares of
Common Stock and other capital stock of the Company issuable upon such
conversion only on the basis of the Conversion Price prior to
adjustment; and, in lieu of the shares the issuance of which is so
deferred, the Company shall issue or cause its transfer agents to issue
due bills or other appropriate evidence prepared by the Company of the
right to receive such shares. If any distribution in respect of which
an adjustment to the Conversion Price is required to be made as of the
record date or Determination Date or Expiration Date therefor is not
thereafter made or paid by the Company for any reason, the Conversion
Price shall be
22
readjusted to the Conversion Price which would then be in effect if
such record date had not been fixed or such effective date or
Determination Date or Expiration Date had not occurred.
SECTION 12.07 No Adjustment.
No adjustment in the Conversion Price shall be required unless
the adjustment would require an increase or decrease of at least 1% in
the Conversion Price as last adjusted; provided, however, that any
adjustments which by reason of this Section 12.07 are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article XII shall be
made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
No adjustment need be made for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or
for a change in the par value or a change to no par value of the Common
Stock.
To the extent that the 2006 Notes become convertible into the
right to receive cash, no adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
SECTION 12.08 Adjustment for Tax Purposes.
The Company shall be entitled to make such reductions in the
Conversion Price, in addition to those required by Section 12.06, as it
in its discretion shall determine to be advisable in order that any
stock dividends, subdivisions of shares, distributions of rights to
purchase stock or securities or distributions of securities convertible
into or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
SECTION 12.09 Notice of Adjustment.
Whenever the Conversion Price or conversion privilege is
adjusted, the Company shall promptly mail to Holders a notice of the
adjustment and file with the Trustee an Officers' Certificate briefly
stating the facts requiring the adjustment and the manner of computing
it. Unless and until the Trustee shall receive an Officers' Certificate
setting forth an adjustment of the Conversion Price, the Trustee may
assume without inquiry that the Conversion Price has not been adjusted
and that the last Conversion Price of which it has knowledge remains in
effect.
SECTION 12.10 Notice of Certain Transactions.
In the event that:
(i) the Company takes any action which would require
an adjustment in the Conversion Price;
23
(ii) the Company consolidates or merges with or
converts into, or transfers all or substantially all of its
property and assets to, another Person and shareholders of the
Company must approve the transaction; or
(iii) there is a dissolution or liquidation of the
Company,
the Company shall mail to Holders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be. The
Company shall mail the notice at least ten days before such date.
Failure to mail such notice or any defect therein shall not affect the
validity of any transaction referred to in clause (i), (ii) or (iii) of
this Section 12.10.
SECTION 12.11 Effect of Reclassification, Consolidation, Merger or Sale
on Conversion Privilege.
If any of the following shall occur, namely: (a) any
reclassification or change of shares of Common Stock issuable upon
conversion of the 2006 Notes (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination, or any other change for which
an adjustment is provided in Section 12.06); (b) any consolidation or
merger or conversion to which the Company is a party other than a
merger in which the Company is the continuing corporation and which
does not result in any reclassification of, or change (other than in
par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination) in,
outstanding shares of Common Stock; or (c) any sale or conveyance of
all or substantially all of the property and assets of the Company,
directly or indirectly, to any Person, then the Company, or such
successor, purchasing or transferee corporation, as the case may be,
shall, as a condition precedent to such reclassification, change,
consolidation, merger, conversion, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture providing that the
Holder of each 2006 Note then outstanding shall have the right to
convert such 2006 Note into the kind and amount of shares of stock and
other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, conversion, sale or
conveyance by a holder of the number of shares of Common Stock
deliverable upon conversion of such 2006 Note immediately prior to such
reclassification, change, consolidation, merger, conversion, sale or
conveyance assuming such holder of Common Stock (i) is not a Person
party to such transaction and (ii) failed to exercise his rights of an
election, if any, as to the kind or amount of stock and other
securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, conversion, sale or
conveyance (provided, however, that if the kind or amount of stock and
other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, conversion, sale or
conveyance is not the same for each share of Common Stock held
immediately prior to such reclassification, change, consolidation,
merger, conversion, sale or conveyance in respect of which such rights
of election shall not have been exercised ("non-electing share"), then
for the purpose of this Section 12.11 the kind and amount of stock and
other securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, conversion, sale or
conveyance by each
24
non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments of the Conversion
Price which shall be as nearly equivalent as may be practicable to the
adjustments of the Conversion Price provided for in this Article XII.
If, in the case of any such consolidation, merger, conversion, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock include shares of
stock or other securities and property of a Person other than the
successor, purchasing or transferee Person, as the case may be, in such
consolidation, merger, conversion, sale or conveyance, then such
supplemental indenture shall also be executed by such other Person and
shall contain such additional provisions to protect the interests of
the Holders of the 2006 Notes as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The
provisions of this Section 12.11 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, conversions, sales
or conveyances.
In the event the Company shall execute a supplemental
indenture pursuant to this Section 12.11, the Company shall promptly
file with the Trustee (x) an Officers' Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or other
securities or property (including cash) receivable by Holders of the
2006 Notes upon the conversion of their 2006 Notes after any such
reclassification, change, consolidation, merger, conversion, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of
Counsel that all conditions precedent have been complied with, and
shall promptly mail notice thereof to all Holders.
SECTION 12.12 Trustee's Disclaimer.
The Trustee shall have no duty to determine when an adjustment
under this Article XII should be made, how it should be made or what
such adjustment should be, but may accept as conclusive evidence of
that fact or the correctness of any such adjustment, and shall be
protected in relying upon, an Officers' Certificate including the
Officers' Certificate with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 12.09. The
Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of 2006 Notes, and the
Trustee shall not be responsible for the Company's failure to comply
with any provisions of this Article XII.
The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any supplemental
indenture executed pursuant to Section 12.11, but may accept as
conclusive evidence of the correctness thereof, and shall be fully
protected in relying upon, the Officers' Certificate with respect
thereto which the Company is obligated to file with the Trustee
pursuant to Section 12.11.
SECTION 12.13 Voluntary Reduction.
The Company from time to time may reduce the Conversion Price
by any amount for any period of time if the period is at least 20 days
and if the reduction is irrevocable during
25
the period if the Company's Board of Directors determines that such
reduction would be in the best interest of the Company or to avoid or
diminish income tax to holders of shares of the Company's Common Stock
in connection with a dividend or distribution of stock or similar
event, and the Company provides 15 days prior notice of any reduction
in the Conversion Price; provided, however, that in no event may the
Company reduce the Conversion Price to be less than the par value of a
share of Common Stock.
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.1. Integral Part.
This
First Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 3.2. General Definitions.
For all purposes of this First Supplemental Indenture:
(a) capitalized terms used herein without definition shall
have the meanings specified in the Original Indenture; and
(b) the terms "herein", "hereof", "hereunder" and other words
of similar import refer to this Fourth Supplemental Indenture.
SECTION 3.3. Adoption, Ratification and Confirmation.
The Original Indenture, as supplemented and amended by this First
Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.4. Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed an original; and
all such counterparts shall together constitute but one and the same instrument.
SECTION 3.5. Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
26
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first written
above.
EGL, INC.
By: /s/ ββββββ β. βββββββ
---------------------------------------
Name: ββββββ β. βββββββ
--------------------------------
Title: Chief Financial Officer
--------------------------------
JPMORGAN CHASE BANK, as Trustee
By: /s/ βββββ β. βββββ
---------------------------------------
Name: βββββ β. βββββ
--------------------------------
Title: Vice President and Trust Officer
--------------------------------
27
EXHIBIT A
[FORM OF FACE OF SECURITY]
[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 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. 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
SECURITIES 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.](1)
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE
UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.](2)
[THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
---------
(1) These paragraphs should be included only if the Security is a Global
Security.
(2) These paragraphs to be included only if the Security is a Restricted
Security.
A-1
(III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH
(IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.](2)
[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.](2)
---------
(2) These paragraphs to be included only if the Security is a Restricted
Security.
A-2
EGL, INC.
CUSIP: R-
----------- ------
5% CONVERTIBLE SUBORDINATED NOTE DUE DECEMBER 15, 2006
EGL, Inc., a Texas corporation (the "Company", which term shall include any
successor corporation under the Indenture referred to on the reverse hereof),
promises to pay to___________ _________________, or registered assigns, the
principal sum of _____________________________ Dollars ($__________) on December
15, 2006 [or such greater or lesser amount as is indicated on the Schedule of
Exchanges of Notes on the other side of this Note].(3)
Interest Payment Dates: December 15 and June 15
Record Dates: December 1 and June 1
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.
SIGNATURE PAGE FOLLOWS
---------
(3) This phrase should be included only if the Security is a Global Security.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
EGL, INC.
[CORPORATE SEAL] By:
-----------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
Dated:
Trustee's Certificate of Authentication: This is one of the
Securities of the series designated therein referred to in the
within-mentioned Indenture.
JPMorgan Chase Bank,
as Trustee
By:
-----------------------------
Authorized Officer
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[FORM OF REVERSE SIDE OF SECURITY]
EGL, INC.
5% CONVERTIBLE SUBORDINATED NOTE DUE DECEMBER 15, 2006
1. INTEREST
EGL, Inc., a Texas corporation (the "Company", which term shall include
any successor corporation under the Indenture hereinafter referred to), promises
to pay interest on the principal amount of this Note at the rate of 5% per
annum. The Company shall pay interest semiannually on December 15 and June 15 of
each year, commencing June 15, 2002. Interest on the Notes shall accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from December 7, 2001; provided, however, that if there is not an existing
default in the payment of interest and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding interest
payment date, interest shall accrue from such interest payment date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. Any
reference herein to interest accrued or payable as of any date shall include any
Additional Interest accrued or payable on such date as provided in the
Registration Rights Agreement.
2. METHOD OF PAYMENT
The Company shall pay interest on this Note (except defaulted interest)
to the person who is the Holder of this Note at the close of business on
December 1 or June 1, as the case may be, next preceding the related interest
payment date. The Holder must surrender this Note to a Paying Agent to collect
payment of principal. The Company will pay principal and interest in money of
the United States that at the time of payment is legal tender for payment of
public and private debts. The Company may, however, pay principal and interest
in respect of any Physical Security by check or wire payable in such money;
provided, however, that a Holder with an aggregate principal amount in excess of
$2,000,000 will be paid by wire transfer in immediately available funds at the
election of such Holder if such Holder has provided wire transfer instructions
to the Company at least 10 Business Days prior to the payment date. The Company
may mail an interest check to the Holder's registered address. Notwithstanding
the foregoing, so long as this Note is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, JPMorgan Chase Bank (the "Trustee", which term shall include
any successor trustee under the Indenture hereinafter referred to) will act as
Paying Agent, Registrar and Conversion Agent. The Company may change any Paying
Agent, Registrar or Conversion Agent without notice to the Holder. The Company
or any of its Subsidiaries may, subject to certain limitations set forth in the
Indenture, act as Paying Agent, Registrar or Conversion Agent.
A-5
4. INDENTURE, LIMITATIONS
This Note is one of a duly authorized issue of Securities of the
Company designated as its 5% Convertible Subordinated Notes due December 15,
2006 (the "Notes"), issued under an Indenture dated as of December 7, 2001, as
amended by the First Supplemental Indenture thereto dated as of December 7, 2001
(together with any additional supplemental indentures thereto, the "Indenture"),
between the Company and the Trustee. The terms of this Note include those stated
in the Indenture and those required by or made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended, as in effect on the
date of the Indenture. This Note is subject to all such terms, and the Holder of
this Note is referred to the Indenture and said Act for a statement of them.
The Notes are subordinated unsecured obligations of the Company,
initially limited to $85,000,000 aggregate principal amount (or up to
$100,000,000 aggregate principal amount if the over allotment option granted to
the initial purchaser of the Notes is exercised in full) but subject to future
increase as provided in the Indenture. The Indenture does not limit other debt
of the Company, secured or unsecured, including Senior Indebtedness.
5. OPTIONAL REDEMPTION
The Notes are subject to redemption, at any time on or after December
20, 2004, as a whole or from time to time in part, at the election of the
Company. The Redemption Prices (expressed as percentages of the principal
amount) are as follows for Notes redeemed during the periods set forth below:
PERIOD REDEMPTION PRICE
------ ----------------
Beginning on December 20, 2004 through December 14, 2005 101.25%
Beginning on December 15, 2005 and thereafter 100.00%
in each case together with accrued interest up to but not including the
Redemption Date; provided that if the Redemption Date falls after an interest
payment record date and on or before an interest payment date, then the interest
will be payable to the Holders in whose names the Notes are registered at the
close of business on the relevant interest payment record dates.
No sinking fund or other mandatory redemption obligation is provided
for the Notes.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 20
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. Notes in denominations larger
than $1,000 may be redeemed in part, but only in whole multiples of $1,000. On
and after the Redemption Date, subject to the deposit with the Paying Agent of
funds sufficient to pay the Redemption Price plus accrued interest, if any,
accrued to, but excluding, the Redemption Date, interest shall cease to accrue
on Notes or portions of them called for redemption.
A-6
7. PURCHASE OF NOTES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
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 any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Notes held by such
Holder on the date that is 30 Business Days after the occurrence of a Change in
Control, at a purchase price equal to 100% of the principal amount thereof
together with accrued interest up to, but excluding, the Change in Control
Purchase Date. The Holder shall have the right to withdraw any Change in Control
Purchase Notice (in whole or in a portion thereof that is $1,000 or an integral
multiple of $1,000 in excess thereof) at any time prior to the close of business
on the Business Day next preceding the Change in Control Purchase Date by
delivering a written notice of withdrawal to the Paying Agent in accordance with
the terms of the Indenture.
8. CONVERSION
A Holder of a Note may convert the principal amount of such Note (or
any portion thereof equal to $1,000 or any integral multiple of $1,000 in excess
thereof) into shares of Common Stock at any time prior to the close of business
on the fourth Trading Day preceding December 15, 2006; provided, however, that
if the Note is called for redemption or subject to purchase upon a Change in
Control, the conversion right will terminate at the close of business on the
Business Day immediately preceding the Redemption Date or the Change in Control
Purchase Date, as the case may be, for such Note or such earlier date as the
Holder presents such Note for redemption or purchase (unless the Company shall
default in making the redemption payment or Change in Control Purchase Price, as
the case may be, when due, in which case the conversion right shall terminate at
the close of business on the date such default is cured and such Note is
redeemed or purchased).
The initial Conversion Price is $17.4335 per share, subject to
adjustment under certain circumstances as provided in the Indenture. The number
of shares of Common Stock issuable upon conversion of a Note is determined by
dividing the principal amount of the Note or portion thereof converted by the
Conversion Price in effect on the Conversion Date. No fractional shares will be
issued upon conversion; in lieu thereof, an amount will be paid in cash based
upon the Closing Price (as defined in the Indenture) of the Common Stock on the
Trading Day immediately prior to the Conversion Date.
To convert a Note, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Note to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. Notes so
surrendered for conversion (in whole or in part) during the period from the
close of business on any regular record date to the opening of business on the
next succeeding interest payment date (excluding Notes or portions thereof
called for redemption or subject to purchase upon a Change in Control on a
Redemption Date or Change in Control Purchase Date, as the case may be, during
the period beginning at the close of business on a regular record date and
ending at the opening of business on the first Business Day after the next
succeeding interest payment date, or if such interest payment date is not a
Business Day, the second such Business Day) shall also be accompanied by payment
in
A-7
funds acceptable to the Company of an amount equal to the interest payable on
such interest payment date on the principal amount of such Note then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Note, subject to the provisions of the
Indenture relating to the payment of defaulted interest by the Company. If the
Company defaults in the payment of interest payable on such interest payment
date, the Company shall promptly repay such funds to such Holder. A Holder may
convert a portion of a Note equal to $1,000 or any integral multiple thereof.
A Note in respect of which a Holder had delivered a Change in Control
Purchase Notice exercising the option of such Holder to require the Company to
purchase such Note may be converted only if the Change in Control Purchase
Notice is withdrawn in accordance with the terms of the Indenture.
9. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Notes called for redemption, unless surrendered for conversion
before the close of business on the Business Day immediately preceding the
Redemption Date, may be deemed to be purchased from the Holders of such Notes at
an amount not less than the Redemption Price, together with accrued interest, if
any, to, but not including, the Redemption Date, by one or more investment
bankers or other purchasers who may agree with the Company to purchase such
Notes from the Holders, to convert them into Common Stock of the Company and to
make payment for such Notes to the Paying Agent in trust for such Holders.
10. SUBORDINATION
The indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company. Any Holder
by accepting this Note agrees to and shall be bound by such subordination
provisions and authorizes the Trustee to give them effect. In addition to all
other rights of Senior Indebtedness described in the Indenture, the Senior
Indebtedness shall continue to be Senior Indebtedness and entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any terms of any instrument relating to the Senior
Indebtedness or any extension or renewal of the Senior Indebtedness.
11. DENOMINATIONS, TRANSFER, EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
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 transfer taxes or similar governmental charges that may
be imposed in relation thereto by law or permitted by the Indenture.
12. PERSONS DEEMED OWNERS
The Holder of a Note may be treated as the owner of it for all
purposes.
A-8
13. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Company at
its written request, subject to applicable unclaimed property law. After that,
Holders entitled to money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
14. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Notes then outstanding, and an existing
default or Event of Default and its consequence or compliance with any provision
of the Indenture or the Notes may be waived in a particular instance with the
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without the consent of or notice to any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Notes to, among
other things, cure any ambiguity, defect or inconsistency or make any other
change that does not adversely affect the rights of any Holder in any material
respect.
15. SUCCESSOR ENTITY
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture in accordance with the terms and
conditions of the Indenture, the predecessor corporation (except in certain
circumstances specified in the Indenture) be released from those obligations.
16. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) default for 30
days in payment of any interest or Additional Interest on any Notes; (ii)
default in payment of any principal (including, without limitation, any premium,
if any) on the Notes when due; (iii) failure by the Company to provide timely
notice of a Change in Control; (iv) failure by the Company for 90 days after
notice to it to comply with any of its other agreements contained in the
Indenture or the Notes; (v) default in the payment of certain indebtedness of
the Company or a Significant Subsidiary; and (vi) certain events of bankruptcy,
insolvency or reorganization of the Company or any Significant Subsidiary. If an
Event of Default (other than as a result of certain events of bankruptcy,
insolvency or reorganization of the Company) occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding may declare all unpaid principal to the date of
acceleration on the Notes then outstanding to be due and payable immediately,
all as and to the extent provided in the Indenture. If an Event of Default
occurs as a result of certain events of bankruptcy, insolvency or reorganization
of the Company, unpaid principal of the Notes then outstanding shall become due
and payable immediately without any declaration or other act on the part of the
Trustee or any Holder, all as and to the extent provided in the Indenture.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain
A-9
limitations, Holders of a majority in aggregate principal amount of the Notes
then outstanding may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Company is required to file periodic reports
with the Trustee as to the absence of default.
17. TRUSTEE DEALINGS WITH THE COMPANY
JPMorgan Chase Bank, the Trustee under the Indenture, in its individual
or any other capacity, may make loans to, accept deposits from and perform
services for the Company or an Affiliate of the Company, and may otherwise deal
with the Company or an Affiliate of the Company, as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Note by accepting this Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of this Note.
19. AUTHENTICATION
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Note.
20. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder 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 UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Note but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
21. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Note and the
Indenture, the provisions of the Indenture shall control. This Note shall be
governed by, and construed in accordance with, the laws of the State of
New
York.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: EGL, Inc.,
βββββ βββββββ βββββ, βββββββ, βββββ βββββ, Attention: Investor Relations.
A-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:
------------------------------ ------------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
*Signature guaranteed by:
By:
--------------------------------
* The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guaranty programs:
(i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the
New York Stock Exchange Medallion Program (MSP); (iii) the Stock
Exchange Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.
A-11
CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the box: [ ]
To convert only part of this Note, state the principal amount to be converted
(must be $1,000 or a integral multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name, fill in the
form below:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your Signature:
Date:
------------------------------ ------------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
*Signature guaranteed by:
By:
--------------------------------
* The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guaranty programs:
(i) the Securities Transfer Agent Medallion Program (STAMP); (ii) the
New York Stock Exchange Medallion Program (MSP); (iii) the Stock
Exchange Medallion Program (SEMP); or (iv) such other guaranty program
acceptable to the Trustee.
A-12
OPTION TO ELECT REPURCHASE
UPON A CHANGE OF CONTROL
To: EGL, Inc.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from EGL, Inc. (the "Company") as to the
occurrence of a Change in Control with respect to the Company and requests and
instructs the Company to repurchase the entire principal amount of this
Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Security at the Change in Control Purchase Price, together
with accrued interest to, but excluding, such date, to the registered Holder
hereof.
Dated:
---------------------- ------------------------------------------
------------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
------------------------------------------
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
-------------------------------------
NOTICE: The signature to the foregoing election must correspond to the name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
A-13
SCHEDULE OF EXCHANGES OF NOTES(4)
The following exchanges, redemptions, repurchases or conversions of a part of
this global Note have been made:
PRINCIPAL AMOUNT
OF THIS GLOBAL NOTE AUTHORIZED AMOUNT OF
FOLLOWING SUCH SIGNATORY OF AMOUNT OF DECREASE IN INCREASE IN
DECREASE DATE TRUSTEE OR SECURITY PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF EXCHANGE (OR INCREASE) CUSTODIAN OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE
------------------------- ------------------- ---------------------- -------------------
---------
(4) This schedule should be included only if the Security is a Global Security.
A-14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES(5)
Re: 5% Convertible Subordinated Notes due December 15, 2006 (the "Notes")
of EGL, Inc.
This certificate relates to $_______ principal amount of Notes owned in (check
applicable box)
[ ] book-entry or [ ] definitive form by ___________________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or register
the transfer of such Notes.
In connection with such request and in respect of each such Note, the Transferor
does hereby certify that the Transferor is familiar with transfer restrictions
relating to the Notes as provided in Section 2.20 of the Indenture dated as of
December 7, 2001 between EGL, Inc. and JPMorgan Chase Bank, as trustee (the
"Indenture"), and the transfer of such Note is being made pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "Securities Act") (check applicable box) or the transfer or exchange, as
the case may be, of such Note does not require registration under the Securities
Act because (check applicable box):
[ ] Such Note is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] Such Note is being acquired for the Transferor's own account,
without transfer.
[ ] Such Note is being transferred to the Company or a Subsidiary
(as defined in the Indenture) of the Company.
[ ] Such Note is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as
defined in Rule 144A or any successor provision thereto ("Rule
144A") under the Securities Act) that is purchasing for its
own account or for the account of a "qualified institutional
buyer", in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in
each case in reliance on Rule 144A.
[ ] Such Note is being transferred pursuant to and in compliance
with an exemption from the registration requirements under the
Securities Act in accordance with Rule 144 (or any successor
thereto) ("Rule 144") under the Securities Act.
[ ] Such Note is being transferred pursuant to and in compliance
with an exemption from the registration requirements of the
Securities Act (other than an exemption referred to above) and
as a result of which such Note will, upon such transfer, cease
to be a "restricted security" within the meaning of Rule 144
under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee will hold any
such Notes in the form of beneficial interests in a global Note which is a
"restricted security" within the meaning of Rule 144 under the Securities Act,
then such transfer can only be made pursuant to Rule 144A
---------
(5) This certificate should only be included if this Security is a Transfer
Restricted Security.
A-15
under the Securities Act and such transferee must be a "qualified institutional
buyer" (as defined in Rule 144A).
Date:
----------------------------- -----------------------------------
(Insert Name of Transferor)
A-16