--------------------------------------------------------------------------------
▇▇▇▇▇▇ CORPORATION
To
BNY Midwest Trust Company,
as Trustee
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INDENTURE
Dated as of
August 8, 2003
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3 1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2013
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS..........................................................................1
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01. DESIGNATION AMOUNT AND ISSUE OF SECURITIES..........................................10
Section 2.02. FORM OF SECURITIES..................................................................11
Section 2.03. DATE AND DENOMINATION OF SECURITIES; PAYMENTS OF INTEREST...........................12
Section 2.04. EXECUTION OF SECURITIES.............................................................14
Section 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES; RESTRICTIONS ON TRANSFER.......14
Section 2.06. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.....................................19
Section 2.07. TEMPORARY SECURITIES................................................................20
Section 2.08. CANCELLATION OF SECURITIES..........................................................21
Section 2.09. CUSIP NUMBERS.......................................................................21
ARTICLE 3
PARTICULAR COVENANTS OF THE COMPANY
Section 3.01. PAYMENT OF PRINCIPAL AND INTEREST...................................................21
Section 3.02. MAINTENANCE OF OFFICE OR AGENCY.....................................................21
Section 3.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE..................................22
Section 3.04. PROVISIONS AS TO PAYING AGENT.......................................................22
Section 3.05. EXISTENCE...........................................................................23
Section 3.06. MAINTENANCE OF PROPERTIES...........................................................24
Section 3.07. PAYMENT OF TAXES AND OTHER CLAIMS...................................................24
Section 3.08. RULE 144A INFORMATION REQUIREMENT...................................................24
Section 3.09. STAY, EXTENSION AND USURY LAWS......................................................25
Section 3.10. COMPLIANCE CERTIFICATE..............................................................25
Section 3.11. ADDITIONAL INTEREST NOTICE..........................................................25
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 4.01. SECURITYHOLDERS' LISTS..............................................................26
Section 4.02. PRESERVATION AND DISCLOSURE OF LISTS................................................26
Section 4.03. REPORTS BY TRUSTEE..................................................................26
Section 4.04. REPORTS BY COMPANY..................................................................27
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON AN EVENT OF DEFAULT
Section 5.01. EVENTS OF DEFAULT...................................................................27
Section 5.02. PAYMENTS OF SECURITIES ON DEFAULT; SUIT THEREFOR....................................30
Section 5.03. APPLICATION OF MONIES COLLECTED BY TRUSTEE..........................................31
Section 5.04. PROCEEDINGS BY SECURITYHOLDER.......................................................32
Section 5.05. PROCEEDINGS BY TRUSTEE..............................................................33
Section 5.06. REMEDIES CUMULATIVE AND CONTINUING..................................................33
Section 5.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF SECURITYHOLDERS......34
Section 5.08. NOTICE OF DEFAULTS..................................................................34
Section 5.09. UNDERTAKING TO PAY COSTS............................................................34
ARTICLE 6
THE TRUSTEE
Section 6.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE..............................................35
Section 6.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC................................................37
Section 6.03. NO RESPONSIBILITY FOR RECITALS, ETC.................................................38
Section 6.04. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR MAY OWN SECURITIES...........38
Section 6.05. MONIES TO BE HELD IN TRUST..........................................................39
Section 6.06. COMPENSATION AND EXPENSES OF TRUSTEE................................................39
Section 6.07. OFFICERS' CERTIFICATE AS EVIDENCE...................................................40
Section 6.08. CONFLICTING INTERESTS OF TRUSTEE....................................................40
Section 6.09. ELIGIBILITY OF TRUSTEE..............................................................40
Section 6.10. RESIGNATION OR REMOVAL OF TRUSTEE...................................................40
Section 6.11. ACCEPTANCE BY SUCCESSOR TRUSTEE.....................................................42
Section 6.12. SUCCESSION BY MERGER................................................................42
Section 6.13. PREFERENTIAL COLLECTION OF CLAIMS...................................................43
Section 6.14. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.............................43
ARTICLE 7
THE SECURITYHOLDERS
Section 7.01. ACTION BY SECURITYHOLDERS...........................................................44
Section 7.02. PROOF OF EXECUTION BY SECURITYHOLDERS...............................................44
Section 7.03. WHO ARE DEEMED ABSOLUTE OWNERS......................................................44
Section 7.04. COMPANY-OWNED SECURITIES DISREGARDED................................................45
Section 7.05. REVOCATION OF CONSENTS, FUTURE SECURITYHOLDERS BOUND................................45
ii
ARTICLE 8
MEETINGS OF SECURITYHOLDERS
Section 8.01. PURPOSE OF MEETINGS.................................................................46
Section 8.02. CALL OF MEETINGS BY TRUSTEE.........................................................46
Section 8.03. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS......................................46
Section 8.04. QUALIFICATIONS FOR VOTING...........................................................47
Section 8.05. REGULATIONS.........................................................................47
Section 8.06. VOTING..............................................................................48
Section 8.07. NO DELAY OF RIGHTS BY MEETING.......................................................48
ARTICLE 9
SUPPLEMENTAL
INDENTURES
Section 9.01. SUPPLEMENTAL
INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS..........................48
Section 9.02. SUPPLEMENTAL
INDENTURE WITH CONSENT OF SECURITYHOLDERS..............................50
Section 9.03. EFFECT OF SUPPLEMENTAL
INDENTURE....................................................51
Section 9.04. NOTATION ON SECURITIES..............................................................51
Section 9.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL
INDENTURE TO BE FURNISHED TO TRUSTEE.........52
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 10.01. COMPANY MAY CONSOLIDATE ON CERTAIN TERMS............................................52
Section 10.02. SUCCESSOR TO BE SUBSTITUTED.........................................................53
Section 10.03. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE...........................................53
ARTICLE 11
SATISFACTION AND DISCHARGE OF
INDENTURE
Section 11.01. DISCHARGE OF
INDENTURE..............................................................54
Section 11.02. DEPOSITED MONIES TO BE HELD IN TRUST BY TRUSTEE.....................................54
Section 11.03. PAYING AGENT TO REPAY MONIES HELD...................................................55
Section 11.04. RETURN OF UNCLAIMED MONIES..........................................................55
Section 11.05. REINSTATEMENT.......................................................................55
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01.
INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS...............................55
ARTICLE 13
GENERAL PROVISIONS
Section 13.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS..........................................56
iii
Section 13.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION..............................................56
Section 13.03. ADDRESSES FOR NOTICES, ETC..........................................................56
Section 13.04. GOVERNING LAW.......................................................................57
Section 13.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT, CERTIFICATES TO TRUSTEE...........57
Section 13.06. LEGAL HOLIDAYS......................................................................57
Section 13.07. TRUST
INDENTURE ACT.................................................................57
Section 13.08. NO SECURITY INTEREST CREATED........................................................58
Section 13.09. BENEFITS OF INDENTURE...............................................................58
Section 13.10. TABLE OF CONTENTS, HEADINGS.........................................................58
Section 13.11. AUTHENTICATING AGENT................................................................58
Section 13.12. EXECUTION IN COUNTERPARTS...........................................................59
Section 13.13. SEVERABILITY........................................................................59
ARTICLE 14
REDEMPTION AND REPURCHASE OF SECURITIES
Section 14.01. REDEMPTION OF SECURITIES............................................................59
Section 14.02. NOTICE OF OPTIONAL REDEMPTION; SELECTION OF SECURITIES..............................60
Section 14.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION BY THE COMPANY..........................62
Section 14.04. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.......................................63
Section 14.05. REPURCHASE AT OPTION OF SECURITYHOLDERS UPON A DESIGNATED EVENT.....................63
Section 14.06. REPURCHASE OF SECURITIES BY THE COMPANY AT OPTION OF THE SECURITYHOLDER.............67
Section 14.07. COMPANY REPURCHASE NOTICE...........................................................68
Section 14.08. EFFECT OF REPURCHASE NOTICE.........................................................69
Section 14.09. DEPOSIT OF REPURCHASE PRICE.........................................................70
Section 14.10. SECURITIES REPURCHASED IN PART......................................................71
Section 14.11. REPAYMENT TO THE COMPANY............................................................71
ARTICLE 15
CONVERSION OF SECURITIES
Section 15.01. RIGHT TO CONVERT....................................................................71
Section 15.02. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON STOCK ON CONVERSION;
NO ADJUSTMENT FOR INTEREST OR DIVIDENDS....................................................74
Section 15.03. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES..........................................77
Section 15.04. CONVERSION RATE.....................................................................77
Section 15.05. ADJUSTMENT OF CONVERSION RATE.......................................................77
Section 15.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE...........................88
Section 15.07. TAXES ON SHARES ISSUED..............................................................89
Section 15.08. RESERVATION OF SHARES, SHARES TO BE FULLY PAID; COMPLIANCE
WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK....................................89
iv
Section 15.09. RESPONSIBILITY OF TRUSTEE...........................................................90
Section 15.10. NOTICE TO SECURITYHOLDERS PRIOR TO CERTAIN ACTIONS..................................91
Section 15.11. SHAREHOLDER RIGHTS PLANS............................................................91
Section 15.12. TRANSFER RESTRICTIONS...............................................................92
ARTICLE 16
SUBORDINATION OF SECURITIES
Section 16.01. AGREEMENT OF SUBORDINATION..........................................................92
Section 16.02. NO PAYMENTS TO SECURITYHOLDERS UPON DEFAULTS RELATING TO
DESIGNATED SENIOR INDEBTEDNESS.............................................................93
Section 16.03. PAYMENTS OVER TO SENIOR INDEBTEDNESS UPON DISSOLUTION...............................94
Section 16.04. PRIOR PAYMENT OF SENIOR INDEBTEDNESS UPON ACCELERATION OF SECURITIES................95
Section 16.05. PAYMENT OVER TO SENIOR INDEBTEDNESS.................................................96
Section 16.06. SUBROGATION OF SECURITIES...........................................................96
Section 16.07. PAYMENT OBLIGATIONS UNCONDITIONAL...................................................97
Section 16.08. AUTHORIZATION TO EFFECT SUBORDINATION...............................................97
Section 16.09. NOTICE TO TRUSTEE...................................................................97
Section 16.10. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS...........................................98
Section 16.11. NO IMPAIRMENT OF SUBORDINATION......................................................99
Section 16.12. CERTAIN CONVERSIONS NOT DEEMED PAYMENT..............................................99
Section 16.13. SUBORDINATION APPLICABLE TO PAYING AGENTS...........................................99
Section 16.14. SENIOR INDEBTEDNESS ENTITLED TO RELY...............................................100
Section 16.15. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.....................100
Exhibit A Form of Security A-1
v
INDENTURE
INDENTURE dated as of August 8, 2003 between ▇▇▇▇▇▇ Corporation, a Delaware
corporation (hereinafter called the "COMPANY"), having its principal office at
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and BNY Midwest Trust
Company, an Illinois trust company, as trustee hereunder (hereinafter called the
"TRUSTEE").
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issuance of its 3 1/4% Convertible Subordinated Notes Due 2013 (hereinafter
called the "SECURITIES"), in an aggregate principal amount not to exceed
$240,000,000, and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Company has duly authorized
the execution and delivery of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Securities have in
all respects been duly authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Securities
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises and of the purchase and acceptance of the Securities by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the
Securities (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. The terms defined in this Section 1.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture that are defined in the Trust Indenture Act or
which are by reference therein defined in the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context otherwise requires)
shall have the meanings assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force at the date of the execution of this Indenture.
The words "HEREIN",
"HEREOF", "HEREUNDER" and words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other Subdivision. The terms
defined in this Article include the plural as well as the singular.
"ADDITIONAL INTEREST" has the meaning specified for "ADDITIONAL INTEREST
AMOUNT" in Section 2(e) of the Registration Rights Agreement.
"ADDITIONAL INTEREST NOTICE" has the meaning specified in Section 3.11.
"ADJUSTMENT EVENT" has the meaning specified in Section 15.05(l).
"AGENT MEMBERS" has the meaning specified in Section 2.05(b).
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL", when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"APPLICABLE STOCK PRICE" means, in respect of a conversion date, the
average of the Closing Sale Prices per share of Common Stock over the
five-Trading Day period starting the third Trading Day following such conversion
date.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or a
committee of such Board duly authorized to act for it hereunder.
"BUSINESS DAY" means any day except a Saturday, Sunday or legal holiday on
which banking institutions in The City of
New York are authorized or obligated
by law, regulation or executive order to close.
"CLOSING SALE PRICE" of the shares of Common Stock on any date means the
closing sale price per share (or, if no closing sale price is reported, the
average of the closing bid and ask prices or, if more than one in either case,
the average of the average closing bid and the average closing ask prices) on
such date as reported in composite transactions for the principal United States
securities exchange on which shares of Common Stock are traded or, if the shares
of Common Stock are not listed on a United States national or regional
securities exchange, as reported by the Nasdaq or by the National Quotation
Bureau Incorporated. In the absence of such quotations, the Company shall be
entitled to determine the Closing Sale Price on the basis it considers
appropriate. The
2
Closing Sale Price shall be determined without reference to extended or after
hours trading.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMMON STOCK" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject to the provisions
of Section 15.06, however, shares issuable on conversion of Securities shall
include only shares of the class designated as common stock of the Company at
the date of this Indenture (namely, the Common Stock, par value $.01) or shares
of any class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; PROVIDED that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"COMPANY" means the corporation named as the "COMPANY" in the first
paragraph of this Indenture, and, subject to the provisions of Article 10 and
Section 15.06, shall include its successors and assigns.
"COMPANY REPURCHASE NOTICE" has the meaning specified in Section 14.07(b).
"COMPANY REPURCHASE NOTICE DATE" has the meaning specified in Section
14.07(b).
"CONVERSION PRICE" as of any day will equal $1,000 divided by the
Conversion Rate as of such date.
"CONVERSION RATE" has the meaning specified in Section 15.04.
"CORPORATE TRUST OFFICE" or other similar term, means the designated office
of the Trustee at which at any particular time its corporate trust business as
it relates to this Indenture shall be administered, which office is, at the date
as of which this Indenture is dated, located at ▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇
3
60602, Attention: Corporate Trust Administration, or such other address as the
Trustee may designate from time to time by notice to the Securityholders (or
such other address as such successor Trustee may designate from time to time by
notice to the Securityholders and the Company).
"CURRENT MARKET PRICE" has the meaning specified in Section 15.05(h).
"CUSTODIAN" means BNY Midwest Trust Company, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"DEFAULT" means any event that is, or after notice or passage of time, or
both, would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 2.03.
"DEPOSITARY" means, the clearing agency registered under the Exchange Act
that is designated to act as the Depositary for the Global Securities. The
Depository Trust Company shall be the initial Depositary, until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, "DEPOSITARY" shall mean or include such
successor.
"DESIGNATED EVENT" shall mean (a) any Fundamental Change or (b) the Common
Stock is neither listed for trading on a United States national securities
exchange nor approved for trading on the Nasdaq National Market.
"DESIGNATED EVENT NOTICE" has the meaning specified in Section 14.05(b).
"DESIGNATED EVENT EXPIRATION TIME" has the meaning specified in Section
14.05(b).
"DESIGNATED EVENT REPURCHASE DATE" has the meaning specified in Section
14.05(a).
"DESIGNATED SENIOR INDEBTEDNESS" means (i) all obligations under the Senior
Credit Facility, (ii) the Company's outstanding 9.52% Senior Notes due September
30, 2005; 6.60% Senior Notes, Series 2003-A, due November 14, 2003; 6.65% Senior
Notes, Series 2003-B, due November 14, 2007 and 6.74% Senior Notes, Series
2003-C, due November 14, 2007 and (iii) any other Senior Indebtedness of the
Company which, at the date of determination, is specifically designated by the
Company in the instrument evidencing or governing such Senior Indebtedness as
"Designated Senior Indebtedness" for purposes of this Indenture.
"DETERMINATION DATE" has the meaning specified in Section 15.05(l).
4
"DISTRIBUTED SECURITIES" has the meaning specified in Section 15.05(d).
"EVENT OF DEFAULT" means any event specified in Section 5.01 as an Event of
Default.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as in effect from time to
time.
"EX-DIVIDEND TIME" has the meaning specified in Section 15.01(e).
"EXPIRATION TIME" has the meaning specified in Section 15.05(f).
"FAIR MARKET VALUE" has the meaning specified in Section 15.05(h).
"FUNDAMENTAL CHANGE" means the occurrence of any transaction or event
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise) in connection with which all or substantially all of the Common Stock
shall be exchanged for, converted into, acquired for or constitutes solely the
right to receive consideration which is not all or substantially all common
stock that is (or, upon consummation of or immediately following such
transaction or event, which will be) listed on a United States national
securities exchange or approved (or, upon consummation of or immediately
following such transaction or event, which will be approved) for quotation on
the Nasdaq National Market or any similar United States system of automated
dissemination of quotations of securities prices.
"GLOBAL SECURITY" has the meaning specified in Section 2.02.
"INDEBTEDNESS" means, with respect to any Person, and without duplication,
(a) all indebtedness, obligations and other liabilities (contingent or
otherwise) of such Person for borrowed money (including obligations of the
Person in respect of overdrafts, foreign exchange contracts, commodity
contracts, currency exchange agreements, interest rate protection agreements,
and any loans or advances from banks, whether or not evidenced by notes or
similar instruments) or evidenced by bonds, debentures, notes or similar
instruments (whether or not the recourse of the lender is to the whole of the
assets of such Person or to only a portion thereof), the deferred purchase price
of property, including conditional sale obligations and title retention
agreements, other than any account payable or other accrued current liability or
obligation incurred in the ordinary course of business in connection with the
obtaining of materials or services; (b) all reimbursement obligations and other
liabilities (contingent or otherwise) of such Person with respect to letters of
credit, bank guarantees or bankers' acceptances; (c) all obligations and
liabilities (contingent or otherwise)
5
in respect of leases of such Person required, in conformity with generally
accepted accounting principles, to be accounted for as capitalized lease
obligations on the balance sheet of such Person and all obligations and other
liabilities (contingent or otherwise) under any lease or related document
(including a purchase agreement) in connection with the lease of real property
which provides that such Person is contractually obligated to purchase or cause
a third party to purchase the leased property and thereby guarantee a minimum
residual value of the leased property to the lessor and the obligations of such
Person under such lease or related document to purchase or to cause a third
party to purchase such leased property; (d) all obligations of such Person
(contingent or otherwise) with respect to an interest rate or other swap, cap or
collar agreement or other similar instrument or agreement or foreign currency
hedge, exchange, purchase or similar instrument or agreement; (e) all direct or
indirect guarantees or similar agreements by such Person in respect of, and
obligations or liabilities (contingent or otherwise) of such Person to purchase
or otherwise acquire or otherwise assure a creditor against loss in respect of,
indebtedness, obligations or liabilities of another Person of the kind described
in clauses (a) through (d); (f) any indebtedness or other obligations described
in clauses (a) through (e) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by such Person,
regardless of whether the indebtedness or other obligation secured thereby shall
have been assumed by such Person; and (g) any and all deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements to,
any indebtedness, obligation or liability of the kind described in clauses (a)
through (f).
"INDENTURE" means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented.
"INTEREST" means, when used with reference to the Securities, any interest
payable under the terms of the Securities, including Additional Interest, if
any, payable under the terms of the Registration Rights Agreement.
"NON-ELECTING SHARE" has the meaning specified in Section 15.06.
"NOTICE DATE" means the date of mailing of the notice of redemption
pursuant to Section 14.02.
"OFFICERS' CERTIFICATE", when used with respect to the Company, means a
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the Chief Executive Officer, the President or any Vice President (whether or not
designated by a number or numbers or word or words added before or after the
title "VICE PRESIDENT") and the Treasurer or any Assistant Treasurer, or the
Secretary or Assistant Secretary of the Company.
6
"OPINION OF COUNSEL" means an opinion in writing signed by legal counsel,
who may be an employee of or counsel to the Company, or other counsel reasonably
acceptable to the Trustee.
"OPTIONAL REDEMPTION" has the meaning specified in Section 14.02.
"OUTSTANDING", when used with reference to Securities and subject to the
provisions of Section 7.04, means, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, (i) for the redemption of which
monies in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or (ii) which shall
have been otherwise discharged in accordance with Article 11;
(c) Securities in lieu of which, or in substitution for which, other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.06; and
(d) Securities converted into Common Stock pursuant to Article 15 and
Securities deemed not outstanding pursuant to Article 14.
"PERSON" means a corporation, an association, a partnership, a limited
liability company, an individual, a joint venture, a joint stock company, a
trust, an unincorporated organization or a government or an agency or a
political subdivision thereof.
"PORTAL MARKET" means The Portal Market operated by the National
Association of Securities Dealers, Inc. or any successor thereto.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security that it replaces.
"PRINCIPAL VALUE CONVERSION" has the meaning set forth in Section 15.01.
"PURCHASED SHARES" has the meaning specified in Section 15.05(f).
"QIB" means a "QUALIFIED INSTITUTIONAL BUYER" as defined in Rule 144A.
7
"RECORD DATE" has the meaning specified in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of August 8, 2003 among the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, Banc of America Securities LLC and Citicorp Global Markets Inc.,
as representatives of the Initial Purchasers, as amended from time to time in
accordance with its terms.
"REPRESENTATIVE" means (a) the indenture trustee or other trustee, agent or
representative for holders of Senior Indebtedness or (b) with respect to any
Senior Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of
such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"REPURCHASE DATE" has the meaning specified in Section 14.06.
"REPURCHASE NOTICE" has the meaning specified in Section 14.06.
"RESPONSIBLE OFFICER" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee with direct
responsibility for the administration of this Indenture including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such person's knowledge of any familiarity with the particular
subject.
"RESTRICTED SECURITIES" has the meaning specified in Section 2.05(c).
"RESTRICTED SECURITIES LEGEND" means the legend labeled as such set forth
in Exhibit A hereto.
"RULE 144A" means Rule 144A as promulgated under the Securities Act.
"SECURITY" or "SECURITIES" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture, including any Global
Security.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
8
"SECURITY REGISTER" has the meaning specified in Section 2.05.
"SECURITY REGISTRAR" has the meaning specified in Section 2.05.
"SECURITYHOLDER" as applied to any Security, or other similar terms, means
any Person in whose name at the time a particular Security is registered on the
Security Registrar's books.
"SENIOR CREDIT FACILITY" means the Amended and Restated Credit Agreement,
dated as of December 19, 2002, among ▇▇▇▇▇▇ Corporation, as borrower, Bank of
America, N.A., as lender and administrative agent and the other financial
institutions from time to time party thereto, as amended by a First Amendment
dated as of June 30, 2003, and the Second Amendment dated August 4, 2003,
together with the documents now or hereafter related thereto (including, without
limitation, any guarantee agreements and any security documents), in each case
as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including by way of adding the Company or any Subsidiaries of the
Company as additional borrowers or guarantors thereunder) all or any portion of
the Indebtedness under such agreement or any successor or replacement agreement
and whether by the same or any other agent, lender or group of lenders (or other
institutions).
"SENIOR INDEBTEDNESS" means the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post petition
interest is allowable as a claim in any such proceeding), and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, Indebtedness of the Company, whether outstanding
on the date of this Indenture or thereafter created, incurred, assumed, or
guaranteed by the Company (including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, the foregoing);
PROVIDED that Senior Indebtedness shall not include (1) the Securities, (2) any
Indebtedness the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness is "pari passu" with
or " junior" to the Securities or (3) any obligation of the Company to any
Subsidiary.
"SIGNIFICANT SUBSIDIARY" means, as of any date of determination, a
Subsidiary of the Company that would constitute a "SIGNIFICANT SUBSIDIARY" as
such term is defined under Rule 1-02(w) of Regulation S-X of the Commission as
in effect on the date of this Indenture.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
9
power of shares of capital stock or other equity interest entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination
thereof).
"TRADING DAY" has the meaning specified in Section 15.05(h).
"TRADING PRICE" means, on any date, the average of the secondary market bid
quotations per $1,000 principal amount of Securities obtained by the Trustee for
$10,000,000 principal amount of Securities at approximately 3:30 p.m.,
New York
City time, on such date from three independent nationally recognized securities
dealers selected by the Company; PROVIDED that if at least three such bids
cannot reasonably be obtained by the Trustee, but two such bids are obtained,
then the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Trustee, one bid shall be used; PROVIDED FURTHER
that if the Trustee cannot reasonably obtain at least one bid for $10,000,000
principal amount of Securities from a nationally recognized securities dealer,
then the Trading Price per $1,000 principal amount of Securities shall be deemed
to be less than 98% of the product of (a) the Conversion Rate and (b) the
Closing Sale Price on such date.
"TRIGGER EVENT" has the meaning specified in Section 15.05(d).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended, as
it was in force at the date of this Indenture, except as provided in Sections
9.03 and 15.06; PROVIDED that if the Trust Indenture Act of 1939 is amended
after the date hereof, the term "TRUST INDENTURE ACT" shall mean, to the extent
required by such amendment, the Trust Indenture Act of 1939 as so amended.
"TRUSTEE" means BNY Midwest Trust Company, an Illinois trust company, and
its successors and any corporation resulting from or surviving any consolidation
or merger to which it or its successors may be a party and any successor trustee
at the time serving as successor trustee hereunder.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
Section 2.01. DESIGNATION AMOUNT AND ISSUE OF SECURITIES. The Securities
shall be designated as "3 1/4% Convertible Subordinated Notes Due
10
2013". Securities not to exceed the aggregate principal amount of $240,000,000
(except pursuant to Sections 2.05, 2.06, 14.03, 14.05 and 15.02 hereof) upon the
execution of this Indenture, or from time to time thereafter, may be executed by
the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Securities to or upon the written
order of the Company, signed by its Chairman of the Board, Vice Chairman of the
Board, Chief Executive Officer, President or any Vice President (whether or not
designated by a number or numbers or word or words added before or after the
title "VICE PRESIDENT"), the Treasurer or any Assistant Treasurer or the
Secretary or Assistant Secretary, without any further action by the Company
hereunder.
Section 2.02. FORM OF SECURITIES. The Securities and the Trustee's
certificate of authentication to be borne by such Securities shall be
substantially in the form set forth in Exhibit A. The terms and provisions
contained in the form of Security attached as Exhibit A hereto shall constitute,
and are hereby expressly made, a part of this Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Any of the Securities may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Securities to
be tradable on The Portal Market or as may be required for the Securities to be
tradable on any other market developed for trading of securities pursuant to
Rule 144A or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Securities may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Securities are subject.
So long as the Securities are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by
Section 2.05(a), all of the Securities will be represented by one or more
Securities in global form registered in the name of the Depositary or the
nominee of the Depositary (a "GLOBAL SECURITY"). The transfer and exchange of
beneficial interests in any such Global Security shall be effected through the
Depositary in accordance with this Indenture and the applicable procedures of
the Depositary. Except as provided in Section 2.05(b), beneficial owners of a
Global Security shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered holders of such
Global Security.
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Any Global Security shall represent such of the outstanding Securities as
shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be increased or reduced to reflect redemptions, repurchases,
conversions, transfers or exchanges permitted hereby. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the amount
of outstanding Securities represented thereby shall be made by the Trustee or
the Custodian, at the direction of the Trustee, in such manner and upon
instructions given by the holder of such Securities in accordance with this
Indenture. Payment of principal of and Interest on any Global Security shall be
made to the holder of such Security.
Section 2.03. DATE AND DENOMINATION OF SECURITIES; PAYMENTS OF INTEREST.
The Securities shall be issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. Each
Security shall be dated the date of its authentication and shall bear interest
from the date specified on the face of the form of Security attached as Exhibit
A hereto. Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The Person in whose name any Security (or its Predecessor Security) is
registered on the Security Register at the close of business on any record date
with respect to any interest payment date shall be entitled to receive the
interest payable on such interest payment date, except that the interest payable
upon redemption or repurchase will be payable to the Person to whom principal is
payable pursuant to such redemption or repurchase (unless the redemption date or
the repurchase date, as the case may be, falls after a record date and on or
prior to the corresponding interest payment date, in which case the semi-annual
payment of interest becoming due on such interest payment date shall be payable
to the Securityholders of such Securities registered as such on the applicable
record date).
Interest shall be payable at the office of the Company maintained by the
Company for such purposes in the Borough of Manhattan, City of
New York, which
shall initially be an office or agency of the Trustee. The Company shall pay
interest (i) on any Securities in certificated form by check mailed to the
address of the Person entitled thereto as it appears in the Security Register
(or upon written notice, by wire transfer in immediately available funds, if
such Person is entitled to interest on aggregate principal in excess of $2
million) or (ii) on any Global Security by wire transfer of immediately
available funds to the account of the Depositary or its nominee. The term
"rECORD DATE" with respect to any interest payment date shall mean the February
1 or August 1 preceding the applicable February 15 or August 15 interest payment
date, respectively.
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Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any February 15 or August 15 (herein called "DEFAULTED
INTEREST") shall forthwith cease to be payable to the Securityholder on the
relevant record date by virtue of his having been such Securityholder, and such
Defaulted Interest shall be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment (which shall be not less than twenty-five (25) days after the
receipt by the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit on or prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall be
not more than fifteen (15) days and not less than ten (10) days prior to the
date of the proposed payment, and not less than ten (10) days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage prepaid, to each Securityholder at his address as it appears
in the Security Register, not less than ten (10) days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such special
record date and shall no longer be payable pursuant to the following clause (2)
of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities may be listed or
designated for issuance, and upon such notice as may be required by such
exchange or automated quotation system, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
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Section 2.04. EXECUTION OF SECURITIES. The Securities shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of
its Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer,
President or any Vice President (whether or not designated by a number or
numbers or word or words added before or after the title "VICE PRESIDENT") and
attested by the manual or facsimile signature of its Secretary or any of its
Assistant Secretaries or its Treasurer or any of its Assistant Treasurers (which
may be printed engraved or otherwise reproduced thereon, by facsimile or
otherwise) . Only such Securities as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Security
attached as Exhibit A hereto, manually executed by the Trustee (or an
authenticating agent appointed by the Trustee as provided by Section 13.11),
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee (or such an authenticating
agent) upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Securityholder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company, and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.
Section 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES;
RESTRICTIONS ON TRANSFER. (a) The Company shall cause to be kept at the
Corporate Trust Office a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to Section 3.02
being herein sometimes collectively referred to as the "SECURITY REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Security Register shall be in written form or in any form capable of being
converted into written form within a reasonably prompt period of time. The
Trustee is hereby appointed "SECURITY REGISTRAR" for the purpose of registering
Securities and transfers of Securities as herein provided. The Company may
appoint one or more co-registrars in accordance with Section 3.02.
Upon surrender for registration of transfer of any Security to the Security
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees,
14
one or more new Securities of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Securities may be exchanged for other Securities of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency maintained by the
Company pursuant to Section 3.02. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Securityholder making the exchange is entitled
to receive bearing registration numbers not contemporaneously outstanding.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
All Securities presented or surrendered for registration of transfer or for
exchange, redemption, repurchase or conversion shall (if so required by the
Company or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company, and the Security shall be duly executed by the holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to any Securityholder for any registration
of transfer or exchange of Securities, but the Company may require payment by
the Securityholder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities.
Neither the Company nor the Trustee nor any Security Registrar shall be
required to exchange or register a transfer of (a) any Securities for a period
of fifteen (15) days next preceding any selection of Securities to be redeemed,
(b) any Securities or portions thereof called for redemption pursuant to Section
14.02 (c) any Securities or portions thereof surrendered for conversion pursuant
to Article 15, (d) any Securities or portions thereof tendered for repurchase
(and not withdrawn) pursuant to Section 14.05 or (e) any Securities or portions
thereof tendered for repurchase (and not withdrawn) pursuant to Section 14.06.
(b) The following provisions shall apply only to Global Securities:
(i) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary or a nominee thereof and
delivered to such Depositary or a nominee thereof or Custodian therefor,
15
and each such Global Security shall constitute a single Security for all
purposes of this Indenture.
(ii) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary or a
nominee thereof, unless (A) the Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security and a successor depositary has not been appointed by the Company
within ninety days or (ii) has ceased to be a clearing agency registered
under the Exchange Act and no successor clearing agency has been appointed
by the Company within 90 days, (B) an Event of Default has occurred and is
continuing or (C) the Company, in its sole discretion, notifies the Trustee
in writing that it no longer wishes to have all the Securities represented
by Global Securities. Any Global Security exchanged pursuant to clause (A)
or (B) above shall be so exchanged in whole and not in part and any Global
Security exchanged pursuant to clause (C) above may be exchanged in whole
or from time to time in part as directed by the Company. Any Security
issued in exchange for a Global Security or any portion thereof shall be a
Global Security; PROVIDED that any such Security so issued that is
registered in the name of a Person other than the Depositary or a nominee
thereof shall not be a Global Security.
(iii) Securities issued in exchange for a Global Security or any
portion thereof pursuant to clause (ii) above shall be issued in
definitive, fully registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall
bear any legends required hereunder. Any Global Security to be exchanged in
whole shall be surrendered by the Depositary to the Trustee, as Security
Registrar. With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for exchange or, if the
Trustee is acting as Custodian for the Depositary or its nominee with
respect to such Global Security, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by
means of an appropriate adjustment made on the records of the Trustee. Upon
any such surrender or adjustment, the Trustee shall authenticate and make
available for delivery the Security issuable on such exchange to or upon
the written order of the Depositary or an authorized representative
thereof.
16
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make available to
the Trustee a reasonable supply as the Trustee shall require of
certificated Securities in definitive, fully registered form, without
interest coupons.
(v) Neither any members of, or participants in, the Depositary
("AGENT MEMBERS") nor any other Persons on whose behalf Agent Members may
act shall have any rights under this Indenture with respect to any Global
Security registered in the name of the Depositary or any nominee thereof,
and the Depositary or such nominee, as the case may be, may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other Person on whose
behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a holder of any
Security.
(vi) At such time as all interests in a Global Security have
been redeemed, repurchased, converted, canceled or exchanged for Securities
in certificated form, such Global Security shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a Global Security is
redeemed, repurchased, converted, canceled or exchanged for Securities in
certificated form, the principal amount of such Global Security shall, in
accordance with the standing procedures and instructions existing between
the Depositary and the Custodian, be appropriately reduced, and an
endorsement shall be made on such Global Security, by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such reduction.
(c) Any certificate evidencing a Security (and all securities issued in
exchange therefore or substitution thereof) shall bear the Restricted Securities
Legend, unless (1) such Security has been sold pursuant to a registration
statement that has been declared effective under the Securities Act (and which
continues to be effective at the time of such transfer) or pursuant to Rule 144
under the Securities Act or any similar provision then in force, (2) such
Security is eligible for resale pursuant to Rule 144(k) under the Securities Act
(or any successor provision) or (3) otherwise agreed by the Company in writing,
with written notice thereof to the Trustee.
17
Every Security that bears or is required under this Section 2.05(c) to bear
the Restricted Securities Legend (the "RESTRICTED SECURITIES") shall be subject
to the restrictions on transfer set forth in this Section 2.05(c) (including
those set forth in the Restricted Securities Legend) unless such restrictions on
transfer shall be waived by written consent of the Company, and the holder of
each such Restricted Security, by such Security holder's acceptance thereof,
agrees to be bound by all such restrictions on transfer. As used in this Section
2.05(c), the term "TRANSFER" encompasses any sale, pledge, loan, transfer or
other disposition whatsoever of any Restricted Security or any interest therein.
Any Security (or Security issued in exchange or substitution therefor) as
to which the conditions for removal of the Restricted Securities Legend have
been satisfied may, upon surrender of such Security for exchange to the Security
Registrar in accordance with the provisions of this Section 2.05, be exchanged
for a new Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the Restricted Securities Legend. If the Restricted
Security surrendered for exchange is represented by a Global Security bearing
the Restricted Securities Legend, the principal amount of the Global Security so
legended shall be reduced by the appropriate principal amount and the principal
amount of a Global Security without the Restricted Securities Legend shall be
increased by an equal principal amount. If a Global Security without the
Restricted Securities Legend is not then outstanding, the Company shall execute
and the Trustee shall authenticate and deliver a Global Security without the
Restricted Securities Legend to the Depositary.
(d) Any Security issued upon the conversion of a Security that, prior to
the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), is purchased or
owned by the Company or any Affiliate thereof may not be resold by the Company
or such Affiliate unless registered under the Securities Act or resold pursuant
to an exemption from the registration requirements of the Securities Act in a
transaction which results in such Securities, as the case may be, no longer
being "rESTRICTED SECURITIES" (as defined under Rule 144).
(e) The Trustee shall have no responsibility or obligation to any Agent
Members or any other Person with respect to the accuracy of the books or
records, or the acts or omissions, of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any Agent Member or other Person
(other than the Depositary) of any notice (including any notice of redemption)
or the payment of any amount, under or with respect to such Securities. All
notices and communications to be given to the Securityholders and all payments
to be made to Securityholders under the Securities shall be given or made only
to or upon the order of the registered Securityholders (which shall be the
Depository or its nominee in the case of a Global Security). The rights of
beneficial owners in any
18
Global Security shall be exercised only through the Depository subject to the
customary procedures of the Depository. The Trustee may rely and shall be fully
protected in relying upon information furnished by the Depository with respect
to its Agent Members.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members in any
Global Indenture) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
Section 2.06. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. In case any
Security shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and upon its written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Security, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in lieu
of and in substitution for the Security so destroyed, lost or stolen. In every
case, the applicant for a substituted Security shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such substitution, and,
in every case of destruction, loss or theft, the applicant shall also furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as the case
may be, of satisfactory security or indemnity and evidence, as described in the
preceding paragraph, the Trustee or such authenticating agent may authenticate
any such substituted Security and make available for delivery such Security.
Upon the issuance of any substituted Security, the Company may require the
payment by the Securityholder of a sum sufficient to cover any tax, assessment
or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith. In case any Security which has matured or is
about to mature or has been called for redemption or has been tendered for
repurchase upon a Designated Event (and not withdrawn) or has been surrendered
for repurchase on a Repurchase Date (and not withdrawn) or is to be converted
into Common Stock shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of or convert or authorize the conversion of the same (without surrender
thereof except in the case of a mutilated Security), as the case may be, if the
19
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or in connection with such substitution,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Company, the Trustee and, if applicable, any paying agent or
conversion agent evidence to their satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security issued pursuant to the provisions of this Section
2.06 by virtue of the fact that any Security is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other
Securities duly issued hereunder. To the extent permitted by law, all Securities
shall be held and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment or conversion or
redemption or repurchase of mutilated, destroyed, lost or stolen Securities and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment or conversion or redemption or repurchase of negotiable
instruments or other securities without their surrender.
Section 2.07. TEMPORARY SECURITIES. Pending the preparation of Securities
in certificated form, the Company may execute and the Trustee or an
authenticating agent appointed by the Trustee shall, upon the written request of
the Company, authenticate and deliver temporary Securities (printed or
lithographed). Temporary Securities shall be issuable in any authorized
denomination, and substantially in the form of the Securities in certificated
form, but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. Every such
temporary Security shall be executed by the Company and authenticated by the
Trustee or such authenticating agent upon the same conditions and in
substantially the same manner, and with the same effect, as the Securities in
certificated form. Without unreasonable delay, the Company will execute and
deliver to the Trustee or such authenticating agent Securities in certificated
form and thereupon any or all temporary Securities may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant
to Section 3.02 and the Trustee or such authenticating agent shall authenticate
and make available for delivery in exchange for such temporary Securities an
equal aggregate principal amount of Securities in certificated form. Such
exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Securities shall in all respects be
entitled to the same benefits and
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subject to the same limitations under this Indenture as Securities in
certificated form authenticated and delivered hereunder.
Section 2.08. CANCELLATION OF SECURITIES. All Securities surrendered for
the purpose of payment, redemption, repurchase, conversion, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent or any Security Registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be
promptly canceled by it, and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall dispose of such canceled Securities in accordance with its
customary procedures. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption, repurchase or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
Section 2.09. CUSIP NUMBERS. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Company and the
Trustee, as applicable, shall use "CUSIP" numbers in notices of redemption or
repurchases as a convenience to Securityholders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption or a repurchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
repurchase shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE 3
PARTICULAR COVENANTS OF THE COMPANY
Section 3.01. PAYMENT OF PRINCIPAL AND INTEREST. The Company will duly and
punctually pay or cause to be paid the principal of and Interest, on each of the
Securities (including the redemption price upon redemption or the repurchase
price upon repurchase, in each case pursuant to Article 14), at the places, at
the respective times and in the manner provided herein and in the Securities.
Section 3.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain an
office or agency in the Borough of Manhattan, the City of
New York, where the
Securities may be surrendered for registration of transfer or exchange or for
presentation for payment or for conversion, redemption or repurchase and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by the Trustee. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the
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Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office or the corporate
trust office of the Trustee's
New York agent in the Borough of Manhattan which
office is located at BNY Midwest Trust Company, The Bank of
New York, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust.
The Company may also from time to time designate co-registrars and one or
more offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Trustee as paying agent,
Security Registrar, Custodian and conversion agent and each of the Corporate
Trust Office and the office of agency of the Trustee in the Borough of
Manhattan, shall be considered as one such office or agency of the Company for
each of the aforesaid purposes.
So long as the Trustee is the Security Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 6.10(a) and the
third paragraph of Section 6.11. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the holders of Securities it can identify from its records.
Section 3.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 3.04. PROVISIONS AS TO PAYING AGENT. (a) If the Company shall
appoint a paying agent other than the Trustee, or if the Trustee shall appoint
such a paying agent, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 3.04:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or interest on the Securities (whether such
sums have been paid to it by the Company or by any other obligor on the
Securities) in trust for the benefit of the holders of the Securities;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make any payment of
the principal of or Interest on the Securities when the same shall be due
and payable; and
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(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust.
The Company shall, on or before each due date of the principal of or
Interest on the Securities, deposit with the paying agent a sum (in funds which
are immediately available on the due date for such payment) sufficient to pay
such principal or Interest and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of any failure to take such action;
PROVIDED that if such deposit is made on the due date, such deposit shall be
received by the paying agent by 10:00 a.m.
New York City time, on such date.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of or Interest on the Securities, set
aside, segregate and hold in trust for the benefit of the holders of the
Securities a sum sufficient to pay such principal or Interest so becoming due
and will promptly notify the Trustee of any failure to take such action and of
any failure by the Company (or any other obligor under the Securities) to make
any payment of the principal of or Interest on the Securities when the same
shall become due and payable.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder
as required by this Section 3.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all
further liability with respect to such sums.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
The Trustee shall not be responsible for the actions of any other paying
agents (including the Company if acting as its own paying agent) and shall have
no control of any funds held by such other paying agents.
Section 3.05. EXISTENCE. Subject to Article 10, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); PROVIDED that the
Company shall not be required to preserve any such right if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in
any material respect to the Securityholders.
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Section 3.06. MAINTENANCE OF PROPERTIES. The Company will cause all
properties used or useful in the conduct of its business or the business of any
Significant Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any subsidiary and not
disadvantageous in any material respect to the Securityholders.
Section 3.07. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge, or cause to be paid or discharged, before the same may become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Significant Subsidiary or upon the income,
profits or property of the Company or any Significant Subsidiary, (ii) all
claims for labor, materials and supplies which, if unpaid, might by law become a
lien or charge upon the property of the Company or any Significant Subsidiary
and (iii) all stamp taxes and other duties, if any, which may be imposed by the
United States or any political subdivision thereof or therein in connection with
the issuance, transfer, exchange, conversion, redemption or repurchase of any
Securities or with respect to this Indenture; PROVIDED that, in the case of
clauses (i) and (ii), the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim (A) if
the failure to do so will not, in the aggregate, have a material adverse impact
on the Company and its Subsidiaries taken as a whole, or (B) if the amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
Section 3.08. RULE 144A INFORMATION REQUIREMENT. Within the period prior to
the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), the Company shall,
during any period in which it is not subject to Section 13 or 15(d) under the
Exchange Act, make available to any holder or beneficial holder of Securities or
any Common Stock issued upon conversion thereof which continue to be Restricted
Securities in connection with any sale thereof and any prospective purchaser of
Securities or such Common Stock designated by such holder or beneficial holder,
the information required pursuant to Rule 144A(d)(4) under the Securities Act
upon the request of any holder or beneficial holder of the Securities or such
Common Stock and it will take such further action as any holder or beneficial
holder of such Securities or such Common Stock may reasonably request, all to
the extent required from time to time to enable such holder or beneficial holder
to sell its Securities or Common Stock without registration under the Securities
Act within the limitation of the exemption provided by Rule
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144A, as such Rule may be amended from time to time. Upon the request of any
holder or any beneficial holder of the Securities or such Common Stock, the
Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
Section 3.09. STAY, EXTENSION AND USURY LAWS. The Company (to the extent
that it may lawfully do so) shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law or other law which would prohibit or forgive the Company from
paying all or any portion of the principal of or Interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture and the
Company (to the extent it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not, by resort
to any such law, hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 3.10. COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee, within one hundred twenty (120) days after the end of each fiscal year
of the Company, a certificate signed by either the principal executive officer,
principal financial officer or principal accounting officer of the Company,
stating whether or not to the best knowledge of the signer thereof the Company
is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and the status thereof of
which the signer may have knowledge.
The Company will promptly deliver to the Trustee, forthwith upon becoming
aware of (i) any default in the performance or observance of any covenant,
agreement or condition contained in this Indenture, or (ii) any Event of
Default, an Officers' Certificate specifying with particularity such default or
Event of Default and further stating what action the Company has taken, is
taking or proposes to take with respect thereto.
Any notice required to be given under this Section 3.10 shall be delivered
to a Responsible Officer of the Trustee at its Corporate Trust Office.
Section 3.11. ADDITIONAL INTEREST NOTICE. In the event that the Company is
required to pay Additional Interest to holders of Securities pursuant to the
Registration Rights Agreement, the Company will provide written notice
("ADDITIONAL INTEREST NOTICE") to the Trustee of its obligation to pay
Additional Interest no later than fifteen (15) days prior to the proposed
payment date for the Additional Interest, and the Additional Interest Notice
shall set forth the amount
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of Additional Interest to be paid by the Company on such payment date. The
Trustee shall not at any time be under any duty or responsibility to any holder
of Securities to determine the Additional Interest, or with respect to the
nature, extent or calculation of the amount of Additional Interest when made, or
with respect to the method employed in such calculation of the Additional
Interest.
ARTICLE 4
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 4.01. SECURITYHOLDERS' LISTS. The Company will furnish or cause to
be furnished to the Trustee, semiannually, not more than fifteen (15) calendar
days after each February 1 and August 1 in each year beginning with February 1,
2004, and at such other times as the Trustee may request in writing, within
thirty (30) days after receipt by the Company of any such request (or such
lesser time as the Trustee may reasonably request in order to enable it to
timely provide any notice to be provided by it hereunder), a list in such form
as the Trustee may reasonably require of the names and addresses of the holders
of Securities as of a date not more than fifteen (15) calendar days (or such
other date as the Trustee may reasonably request in order to so provide any such
notices) prior to the time such information is furnished, except that no such
list need be furnished by the Company to the Trustee so long as the Trustee is
acting as the sole Security Registrar.
Section 4.02. PRESERVATION AND DISCLOSURE OF LISTS. The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Securities contained in the most
recent list furnished to it as provided in Section 4.01 or maintained by the
Trustee in its capacity as Security Registrar or co-registrar in respect of the
Securities, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 4.01 upon receipt of a new list so furnished.
(a) The rights of Securityholders to communicate with other holders of
Securities with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(b) Every Securityholder, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Securityholders of Securities made
pursuant to the Trust Indenture Act.
Section 4.03. REPORTS BY TRUSTEE. (a) Within sixty (60) days after February
15 of each year commencing with the year 2004, the Trustee shall
26
transmit to Securityholders of Securities such reports dated as of February 15
of the year in which such reports are made concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. In the event that
no events have occurred under the applicable sections of the Trust Indenture Act
the Trustee shall be under no duty or obligation to provide such reports.
(b) A copy of such report shall, at the time of such transmission to
holders of Securities, be filed by the Trustee with each stock exchange and
automated quotation system upon which the Securities are listed and with the
Company. The Company will promptly notify the Trustee in writing when the
Securities are listed on any stock exchange or automated quotation system or
delisted therefrom.
Section 4.04. REPORTS BY COMPANY. The Company shall file with the Trustee
(and the Commission if at any time after the Indenture becomes qualified under
the Trust Indenture Act), and transmit to holders of Securities, such
information, documents and other reports and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act, whether or not the Securities are governed by
such Act; PROVIDED that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within fifteen (15) days after the same is so
required to be filed with the Commission. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officers'
Certificates).
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON AN EVENT OF DEFAULT
Section 5.01. EVENTS OF DEFAULT. In case one or more of the following
Events of Default (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) shall have occurred and be
continuing:
(a) default in the payment of the principal of any of the Securities as
and when the same shall become due and payable either at maturity, in connection
with any redemption or repurchase pursuant to Article 14, by acceleration or
otherwise whether or not such payment is permitted under Article 16 hereof; or
27
(b) default in the payment of any installment of Interest upon any of
the Securities as and when the same shall become due and payable, and
continuance of such default for a period of thirty (30) days, whether or not
such payment is permitted under Article 16 hereof; or
(c) default in the Company's obligation to provide a Designated Event
Notice upon a Designated Event as provided in Section 14.05; or
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities or in this Indenture (other than a covenant or agreement a default in
whose performance or whose breach is elsewhere in this Section 5.01 specifically
dealt with) continued for a period of sixty (60) days after the date on which
written notice of such failure, requiring the Company to remedy the same, shall
have been given to the Company by the Trustee, or the Company and a Responsible
Officer of the Trustee by the holders of at least twenty-five percent (25%) in
aggregate principal amount of the Securities at the time outstanding determined
in accordance with Section 7.04; or
(e) the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to the Company
or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, or shall consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against the Company, or shall
make a general assignment for the benefit of creditors, or shall fail to
generally to pay its debts as they become due; or
(f) an involuntary case or other proceeding shall be commenced against
the Company seeking liquidation, reorganization or other relief with respect to
the Company or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any
substantial part of the property of the Company, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of sixty
(60) consecutive days;
then, and in each and every such case (other than an Event of Default specified
in Section 5.01(e) or 5.01(f)), unless the principal of all of the Securities
shall have already become due and payable, either the Trustee or the holders of
not less than twenty-five percent (25%) in aggregate principal amount of the
Securities then outstanding hereunder determined in accordance with Section
7.04, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the principal of all the Securities and the
Interest accrued and unpaid
28
thereon to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding. If an
Event of Default specified in Section 5.01(e) or 5.01(f) occurs, the principal
of all the Securities and the Interest accrued and unpaid thereon shall be
immediately and automatically due and payable without necessity of further
action. This provision, however, is subject to the conditions that if, at any
time after the principal of the Securities shall have been so declared due and
payable, and before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of Interest upon all Securities and the principal of any and all
Securities which shall have become due otherwise than by acceleration (with
interest on overdue installments of Interest (to the extent that payment of such
interest is enforceable under applicable law) and on such principal at the rate
set forth on the Securities for overdue payments of principal and Interest, to
the date of such payment or deposit) and amounts due to the Trustee pursuant to
Section 6.06, and if any and all defaults under this Indenture, other than the
nonpayment of principal of and accrued and unpaid Interest on Securities which
shall have become due by acceleration, shall have been cured or waived pursuant
to Section 5.07, then and in every such case the holders of a majority in
aggregate principal amount of the Securities then outstanding, by written notice
to the Company and to the Trustee, may waive all defaults or Events of Default
and rescind and annul such declaration and its consequences; but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or Event of Default, or shall impair any right consequent thereon. The
Company shall notify in writing a Responsible Officer of the Trustee, promptly
upon becoming aware thereof, of any Event of Default.
The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a Default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case, the
Company, the holders of Securities, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Securityholders of Securities, and the
Trustee shall continue as though no such proceeding had been taken.
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Section 5.02. PAYMENTS OF SECURITIES ON DEFAULT; SUIT THEREFOR. In case
default shall be made in the payment of (a) any installment of Interest upon any
of the Securities as and when the same shall become due and payable, and such
default shall have continued for a period of thirty (30) days, or (b) the
principal of any of the Securities as and when the same shall have become due
and payable, whether at maturity of the Securities, in connection with any
redemption or repurchase pursuant to Article 14, by declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities for principal or Interest, as the
case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of Interest at the rate set forth on the Securities for overdue
payments of principal and Interest and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other amounts due the Trustee under Section 6.06. Until such demand by the
Trustee, the Company may pay the principal of and Interest on the Securities to
the registered Securityholders, whether or not the Securities are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor on the Securities wherever situated the monies
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities under Title
11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the case of any other judicial proceedings relative to
the Company or such other obligor upon the Securities, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 5.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and Interest owing and unpaid in respect of the Securities, and, in case of any
judicial proceedings, to file such proofs of claim
30
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee and of the Securityholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities, its
or their creditors, or its or their property, and to collect and receive any
monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of any amounts due the Trustee under
Section 6.06, and to take any other action with respect to such claims,
including participating as a member of any official committee of creditors, as
it reasonably deems necessary or advisable, and, unless prohibited by law or
applicable regulations, any receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, custodian or similar official is hereby authorized
by each of the Securityholders to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
the Securityholders, to pay to the Trustee any amount due it for reasonable
compensation, expenses, advances and disbursements, including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses, advances and disbursements
out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, monies, securities and other property which
the Securityholders may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Securities.
In any proceedings brought by the Trustee (and in any proceedings involving
the interpretation of any provision of this Indenture to which the Trustee shall
be a party) the Trustee shall be held to represent all the holders of the
Securities, and it shall not be necessary to make any holders of the Securities
parties to any such proceedings.
Section 5.03. APPLICATION OF MONIES COLLECTED BY TRUSTEE. Any monies
collected by the Trustee pursuant to this Article 5 shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution
of such monies, upon presentation of the several Securities, and stamping
thereon the payment, if only partially paid, and upon surrender thereof, if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.06;
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SECOND: Subject to the provisions of Article 16, in case the principal of
the outstanding Securities shall not have become due and be unpaid, to the
payment of Interest on the Securities in default in the order of the maturity of
the installments of such Interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of
Interest at the rate set forth on the Securities for overdue payments of
Interest, such payments to be made ratably to the Persons entitled thereto;
THIRD: Subject to the provisions of Article 16, in case the principal of
the outstanding Securities shall have become due, by declaration or otherwise,
and be unpaid to the payment of the whole amount then owing and unpaid upon the
Securities for principal and Interest, with Interest on the overdue principal
and (to the extent that such Interest has been collected by the Trustee) upon
overdue installments of Interest at the rate set forth on the Securities for
overdue payments of principal and Interest, and in case such monies shall be
insufficient to pay in full the whole amounts so due and unpaid upon the
Securities, then to the payment of such principal and Interest without
preference or priority of principal over Interest, or of Interest over principal
or of any installment of Interest over any other installment of Interest, or of
any Security over any other Security, ratably to the aggregate of such principal
and accrued and unpaid Interest; and
FOURTH: Subject to the provisions of Article 16, to the payment of the
remainder, if any, to the Company or any other Person lawfully entitled thereto.
Section 5.04. PROCEEDINGS BY SECURITYHOLDER. No holder of any Security
shall have any right by virtue of or by reference to any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture, or for the appointment of a
receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also holders of not less than twenty-five
percent (25%) in aggregate principal amount of the Securities then outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable security or indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for sixty (60) days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action, suit
or proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 5.07; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and Securityholder and the Trustee, that no one
or more Securityholders shall have any right in any manner whatever by virtue of
or by reference to any provision of this Indenture to affect, disturb or
prejudice the rights of any other Securityholder, or to obtain or seek to
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obtain priority over or preference to any other Securityholder, or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Securityholders (except as otherwise
provided herein). For the protection and enforcement of this Section 5.04, each
and every Securityholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any provision of
any Security, the right of any holder of any Security to receive payment of the
principal of (including the redemption price upon redemption pursuant to Article
14), and accrued and unpaid Interest on such Security, on or after the
respective due dates expressed in such Security or in the event of redemption,
or to institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without
the consent of such Securityholder.
Anything in this Indenture or the Securities to the contrary
notwithstanding, the holder of any Security, without the consent of either the
Trustee or the holder of any other Security, in its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.
Section 5.05. PROCEEDINGS BY TRUSTEE. In case of an Event of Default, the
Trustee may, in its discretion, proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity or
by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
Section 5.06. REMEDIES CUMULATIVE AND CONTINUING. Except as provided in
Section 2.06, all powers and remedies given by this Article 5 to the Trustee or
to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Securityholders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Securities to exercise any right or power
accruing upon any default or Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or any acquiescence therein, and, subject to the
provisions of Section 5.04, every power and remedy given by this Article 5 or by
law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
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Section 5.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY
OF SECURITYHOLDERS. The holders of a majority in aggregate principal amount of
the Securities at the time outstanding determined in accordance with Section
7.04 shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; PROVIDED that (a) such direction shall not be in
conflict with any rule of law or with this Indenture, (b) the Trustee may take
any other action which is not inconsistent with such direction, (c) the Trustee
may decline to take any action that would benefit some Securityholders to the
detriment of other Securityholders and (d) the Trustee may decline to take any
action that would involve the Trustee in personal liability. The holders of a
majority in aggregate principal amount of the Securities at the time outstanding
determined in accordance with Section 7.04 may, on behalf of the holders of all
of the Securities, waive any past default or Event of Default hereunder and its
consequences except (i) a default in the payment of Interest or the principal of
the Securities, (ii) a failure by the Company to convert any Securities into
Common Stock, (iii) a default in the payment of the redemption price pursuant to
Article 14, (iv) a default in the payment of the repurchase price pursuant to
Article 14 or (v) a default in respect of a covenant or provisions hereof which
under Article 9 cannot be modified or amended without the consent of the holders
of each or all Securities then outstanding or affected thereby. Upon any such
waiver, the Company, the Trustee and the Securityholders shall be restored to
their former positions and rights hereunder; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section 5.07, said default or Event of
Default shall for all purposes of the Securities and this Indenture be deemed to
have been cured and to be not continuing; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 5.08. NOTICE OF DEFAULTS. The Trustee shall, within ninety (90)
days after a Responsible Officer of the Trustee has actual knowledge of the
occurrence of a default, mail to all Securityholders, as the names and addresses
of such Securityholders appear upon the Security Register, notice of all
defaults actually known to a Responsible Officer, unless such defaults shall
have been cured or waived before the giving of such notice; PROVIDED that except
in the case of default in the payment of the principal of or Interest on any of
the Securities, the Trustee shall be protected in withholding such notice if and
so long as a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders.
Section 5.09. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Securityholder by his acceptance thereof shall be deemed to have
agreed, that any court may, in its discretion, require, in any suit for the
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enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; PROVIDED that the provisions of this Section 5.09
(to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than ten percent in principal
amount of the Securities at the time outstanding determined in accordance with
Section 7.04, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or Interest on any Security on or
after the due date expressed in such Security or to any suit for the enforcement
of the right to convert any Security in accordance with the provisions of
Article 15.
ARTICLE 6
THE TRUSTEE
Section 6.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The Trustee, prior to
the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing
or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trust Indenture
Act, and the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture and
the Trust Indenture Act against the Trustee; and
(ii) in the absence of bad faith and willful misconduct on the
part of the Trustee, the Trustee may conclusively rely as to the truth of
the
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statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such certificates
or opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless the
Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the holders of not less than 25% in principal amount of the Securities at the
time outstanding determined as provided in Section 7.04 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording protection
to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to the
correctness of amount, entitlement to receive or any other matters relating to
payment) or notice effected by the Company or any paying agent or any records
maintained by any co-registrar with respect to the Securities;
(f) if any party fails to deliver a notice relating to an event the fact
of which, pursuant to this Indenture, requires notice to be sent to the Trustee,
the Trustee may conclusively rely on its failure to receive such notice as
reason to act as if no such event occurred; and
(g) the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless it shall have been notified in writing of such Event of
Default by the Company or the holders of at least 10% in aggregate principal
amount of the Securities.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity reasonably satisfactory to it
against such risk or liability is not reasonably assured to it.
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Section 6.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its own selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney;
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(g) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
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(h) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder;
(i) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded;
(j) any permissive right or authority granted to the Trustee shall not
be construed as a mandatory duty;
(k) in no event shall the Trustee be responsible or liable for special,
indirect, or consequential loss or damage of any kind whatsoever (including, but
not limited to, loss of profit) irrespective of whether the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action; and
(l) in no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including,
without limitation strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God,
and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section 6.03. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Securities (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the accuracy or correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of any Securities or the proceeds of any
Securities authenticated and delivered by the Trustee in conformity with the
provisions of this Indenture.
Section 6.04. TRUSTEE, PAYING AGENTS, CONVERSION AGENTS OR REGISTRAR MAY
OWN SECURITIES. The Trustee, any paying agent, any conversion agent or Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Security Registrar.
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Section 6.05. MONIES TO BE HELD IN TRUST. Subject to the provisions of
Section 11.04, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
may be agreed in writing from time to time by the Company and the Trustee.
Section 6.06. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation for all services rendered by it hereunder in any
capacity (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as mutually agreed to from time
to time in writing between the Company and the Trustee, and the Company will pay
or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from the Trustee's own negligence, willful misconduct,
recklessness or bad faith. The Company also covenants to indemnify the Trustee
and any predecessor Trustee (or any officer, director or employee of the
Trustee), in any capacity under this Indenture and its agents and any
authenticating agent for, and to hold them harmless against, any and all loss,
liability, damage, claim or expense including taxes (other than taxes based on
the income of the Trustee) incurred without negligence, willful misconduct,
recklessness or bad faith on the part of the Trustee or such officers,
directors, employees and agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this
trust or in any other capacity hereunder, including the costs and expenses of
defending themselves against any claim (whether asserted by the Company, any
Securityholder or any other Person) of liability in connection with the exercise
or performance of any of its or their powers or duties hereunder. The
obligations of the Company under this Section 6.06 to compensate or indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances, shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such except funds held in
trust for the benefit of the holders of particular Securities. The obligation of
the Company under this Section shall survive the satisfaction and discharge of
this Indenture.
When the Trustee and its agents and any authenticating agent incur expenses
or render services after an Event of Default specified in Section 5.01(e) or
Section 5.01(f) with respect to the Company occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.
39
Section 6.07. OFFICERS' CERTIFICATE AS EVIDENCE. Except as otherwise
provided in Section 6.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of bad faith or willful misconduct on the part
of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee.
Section 6.08. CONFLICTING INTERESTS OF TRUSTEE. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall (i) eliminate such conflicting interest within 90 days, (ii)
apply to the Commission for permission to continue as trustee hereunder or (iii)
resign, in each case to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 6.09. ELIGIBILITY OF TRUSTEE. There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000 (or if such Person is a member of a bank holding company system, its
bank holding company shall have a combined capital and surplus of at least
$50,000,000). If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 6.10. RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign by giving written notice of such
resignation to the Company and to the Securityholders. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment sixty (60) days after the mailing of
such notice of resignation to the Securityholders, the resigning Trustee may,
upon ten (10) Business Days' notice to the Company and the Securityholders,
appoint a successor identified in such notice or may petition, at the expense of
the Company, any court of competent jurisdiction for the appointment of a
successor trustee, or, if any Securityholder who has been a bona fide
Securityholder for at least six (6) months may, subject to the provisions of
Section 5.09, on behalf of
40
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Securityholder who has
been a bona fide Securityholder for at least six (6) months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 5.09, any Securityholder who has been a bona fide
Securityholder for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee; PROVIDED that
if no successor Trustee shall have been appointed and have accepted appointment
sixty (60) days after either the Company or the Securityholders has removed the
Trustee, or the Trustee resigns, the Trustee so removed may petition, at the
expense of the Company, any court of competent jurisdiction for an appointment
of a successor trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor
trustee unless, within ten (10) days after notice to the Company of such
nomination, the Company objects thereto, in which case the Trustee so removed or
any Securityholder, or if such Trustee so removed or any Securityholder fails to
act, the Company, upon the terms and conditions and otherwise as in Section
6.10(a) provided, may petition any court of competent jurisdiction for an
appointment of a successor trustee.
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(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
(e) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 6.06 shall continue for the
benefit of the retiring Trustee.
Section 6.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 6.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amount then due it pursuant to the provisions of Section
6.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Securities, to secure any amounts then due it pursuant to the
provisions of Section 6.06.
No successor trustee shall accept appointment as provided in this Section
6.11 unless, at the time of such acceptance, such successor trustee shall be
qualified under the provisions of Section 6.08 and be eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.11, the Company (or the former trustee, at the written direction of
the Company) shall mail or cause to be mailed notice of the succession of such
trustee hereunder to the Securityholders at their addresses as they shall appear
on the Security Register. If the Company fails to mail such notice within ten
(10) days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
Section 6.12. SUCCESSION BY MERGER. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of
42
the corporate trust business of the Trustee (including any trust created by this
Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, PROVIDED that in the case of any corporation succeeding to all
or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 6.08 and eligible
under the provisions of Section 6.09.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee or authenticating agent
appointed by such predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee or any authenticating agent
appointed by such successor trustee may authenticate such Securities in the name
of the successor trustee; and in all such cases such certificates shall have the
full force that is provided in the Securities or in this Indenture; PROVIDED
that the right to adopt the certificate of authentication of any predecessor
Trustee or authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
Section 6.13. PREFERENTIAL COLLECTION OF CLAIMS. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any
such other obligor).
Section 6.14. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY. Any
application by the Trustee for written instructions from the Company (other than
with regard to any action proposed to be taken or omitted to be taken by the
Trustee that affects the rights of the Securityholders or holders of Senior
Indebtedness under this Indenture) may, at the option of the Trustee, set forth
in writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three (3) Business Days after the date any officer of the
Company actually receives such application, unless any such officer shall have
consented in writing to any earlier date) unless prior to taking any such action
(or the effective date in the case of an omission), the Trustee shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
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ARTICLE 7
THE SECURITYHOLDERS
Section 7.01. ACTION BY SECURITYHOLDERS. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Securities may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action, the holders
of such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by
Securityholders in person or by agent or proxy appointed in writing, or (b) by
the record of the Securityholders voting in favor thereof at any meeting of
Securityholders duly called and held in accordance with the provisions of
Article 8, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Securityholders. Whenever the Company or the
Trustee solicits the taking of any action by the Securityholders, the Company or
the Trustee may fix in advance of such solicitation, a date as the record date
for determining Securityholders entitled to take such action. The record date
shall be not more than fifteen (15) days prior to the date of commencement of
solicitation of such action.
Section 7.02. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the
provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the registry of such Securities or by a
certificate of the Security Registrar.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.06.
Section 7.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the Trustee, any
paying agent, any conversion agent and any Security Registrar may deem the
Person in whose name such Security shall be registered upon the Security
Register to be, and may treat it as, the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon made by any Person other than the Company
or any Security Registrar) for the purpose of receiving payment of or on account
of the principal of and Interest on such Security, for conversion of such
Security and for all other purposes; and neither the Company nor the Trustee nor
any paying agent nor any conversion agent nor any Security Registrar shall be
affected by any notice to the contrary. All such payments so made to any
Securityholder for the time being, or upon his order, shall be valid, and, to
the
44
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Security.
Section 7.04. COMPANY-OWNED SECURITIES DISREGARDED. In determining whether
the holders of the requisite aggregate principal amount of Securities have
concurred in any direction, consent, waiver or other action under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or any Affiliate of the Company or any other obligor on the
Securities shall be disregarded and deemed not to be outstanding for the purpose
of any such determination; PROVIDED that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, consent, waiver
or other action, only Securities which a Responsible Officer actually knows are
so owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of this Section 7.04
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not the Company, any other
obligor on the Securities or any Affiliate of the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee. Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of any of the above
described Persons, and, subject to Section 6.01, the Trustee shall be entitled
to accept such Officers' Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are outstanding
for the purpose of any such determination.
Section 7.05. REVOCATION OF CONSENTS, FUTURE SECURITYHOLDERS BOUND. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 7.02, revoke such
action so far as concerns such Security. Except as aforesaid, any such action
taken by the holder of any Security shall be conclusive and binding upon such
Securityholder and upon all future Securityholders and owners of such Security
and of any Securities issued in exchange or substitution therefor, irrespective
of whether any notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
45
ARTICLE 8
MEETINGS OF SECURITYHOLDERS
Section 8.01. PURPOSE OF MEETINGS. A meeting of Securityholders may be
called at any time and from time to time pursuant to the provisions of this
Article 8 for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to
give any directions to the Trustee permitted under this Indenture, or to
consent to the waiving of any default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article 5;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article 6;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Securities under any other provision of this Indenture or under applicable
law.
Section 8.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call
a meeting of Securityholders to take any action specified in Section 8.01, to be
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the Securityholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 7.01, shall
be mailed to Securityholders at their addresses as they shall appear on the
Security Register. Such notice shall also be mailed to the Company. Such notices
shall be mailed not less than twenty (20) nor more than ninety (90) days prior
to the date fixed for the meeting.
Any meeting of Securityholders shall be valid without notice if the holders
of all Securities then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all Securities
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 8.03. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least ten percent (10%) in aggregate principal amount of the
Securities then outstanding, shall have requested the Trustee to call a meeting
of
46
Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within twenty (20) days after receipt of such
request, then the Company or such Securityholders may determine the time and the
place for such meeting and may call such meeting to take any action authorized
in Section 8.01, by mailing notice thereof as provided in Section 8.02.
Section 8.04. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meeting of Securityholders a person shall (a) be a holder of one or more
Securities on the record date pertaining to such meeting or (b) be a person
appointed by an instrument in writing as proxy by a holder of one or more
Securities on the record date pertaining to such meeting. The only persons who
shall be entitled to be present or to speak at any meeting of Securityholders
shall be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 8.05. REGULATIONS. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Securities represented at the meeting and entitled to
vote at the meeting.
Subject to the provisions of Section 7.04, at any meeting each
Securityholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him; PROVIDED that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not outstanding and ruled by the chairman of the meeting to be not outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the proxy to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
may be adjourned from time to time by the holders of a majority of the aggregate
principal amount of Securities represented at the meeting, whether or not
47
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 8.06. VOTING. The vote upon any resolution submitted to any meeting
of Securityholders shall be by written ballot on which shall be subscribed the
signatures of the Securityholders or of their representatives by proxy and the
outstanding principal amount of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the principal amount of the
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 8.07. NO DELAY OF RIGHTS BY MEETING. Nothing contained in this
Article 8 shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the
Securityholders under any of the provisions of this Indenture or of the
Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may, from time to time, and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) make provision with respect to the conversion rights of the
Securityholders pursuant to the requirements of Section 15.06 and the repurchase
obligations of the Company pursuant to the requirements of Section 14.05(e);
48
(b) subject to Article 16, to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Securities, any property or assets;
(c) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article 10;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the Securityholders, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; PROVIDED that in respect of any
such additional covenant, restriction or condition, such supplemental indenture
may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture that shall not materially adversely affect the
interests of the Securityholders;
(g) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities; or
(h) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualifications of this Indenture
under the Trust Indenture Act, or under any similar federal statute hereafter
enacted.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture, the Trustee
is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and
49
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, PROVIDED that the Trustee
shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 9.02.
Notwithstanding any other provision of the Indenture or the Securities, the
Registration Rights Agreement and the obligation to pay Additional Interest
thereunder may only be amended, modified or waived in accordance with the
provisions of the Registration Rights Agreement.
Section 9.02. SUPPLEMENTAL INDENTURE WITH CONSENT OF SECURITYHOLDERS. With
the consent (evidenced as provided in Article 7) of the holders of at least a
majority in aggregate principal amount of the Securities at the time
outstanding, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or any supplemental indenture or of modifying in any manner the
rights of the Securityholders; PROVIDED that no such supplemental indenture
shall (i) extend the fixed maturity of any Security, or reduce the rate or
extend the time of payment of Interest thereon, or reduce the principal amount
thereof or reduce any amount payable on redemption or repurchase thereof, or
change the obligation of the Company to redeem any Security on a redemption date
in a manner adverse to the Securityholders, or change the obligation of the
Company to repurchase any Security at the option of a Securityholder on a
Repurchase Date in a manner adverse to the Securityholders, or change the
obligation of the Company to repurchase any Security upon the happening of a
Designated Event in a manner adverse to the Securityholders, or impair the right
of any Securityholder to institute suit for the payment thereof, or make the
principal thereof or Interest payable in any coin or currency other than that
provided in the Securities, or impair the right to convert the Securities into
Common Stock or reduce the number of shares of Common Stock or any other
property receivable by a Securityholder upon conversion subject to the terms set
forth herein, including Section 15.06, or modify the provisions of this
Indenture with respect to the subordination of Securities in a manner adverse to
the Securityholders in any material respect, in each case, without the consent
of the holder of each Security so affected, or modify any of the provisions of
this Section 9.02 or Section 5.07, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the holder
50
of each Security so affected, or change any obligation of the Company to
maintain an office or agency in the places and for the purposes set forth in
Section 3.02, or reduce the quorum or voting requirements set forth in Article 8
or (ii) reduce the aforesaid percentage of Securities, the holders of which are
required to consent to any such supplemental indenture, without the consent of
the holders of all Securities then outstanding.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 9.03. EFFECT OF SUPPLEMENTAL INDENTURE. Any supplemental indenture
executed pursuant to the provisions of this Article 9 shall comply with the
Trust Indenture Act, as then in effect, PROVIDED that this Section 9.03 shall
not require such supplemental indenture or the Trustee to be qualified under the
Trust Indenture Act prior to the time such qualification is in fact required
under the terms of the Trust Indenture Act or the Indenture has been qualified
under the Trust Indenture Act, nor shall it constitute any admission or
acknowledgment by any party to such supplemental indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 9, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Securityholders shall
thereafter be determined, exercised and enforced hereunder, subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.04. NOTATION ON SECURITIES. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article 9 may bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company or
51
the Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may, at the Company's
expense, be prepared and executed by the Company, authenticated by the Trustee
(or an authenticating agent duly appointed by the Trustee pursuant to Section
13.11) and delivered in exchange for the Securities then outstanding, upon
surrender of such Securities then outstanding.
Section 9.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TO TRUSTEE. Prior to entering into any supplemental indenture, the
Trustee shall be provided with an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
hereto complies with the requirements of this Article 9 and is otherwise
authorized or permitted by this Indenture.
ARTICLE 10
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 10.01. COMPANY MAY CONSOLIDATE ON CERTAIN TERMS. Subject to the
provisions of Section 10.02, the Company shall not consolidate or merge with or
into any other Person or Persons (whether or not affiliated with the Company),
nor shall the Company or its successor or successors be a party or parties to
successive consolidations or mergers, nor shall the Company sell, convey,
transfer or lease the property and assets of the Company substantially as an
entirety, to any other Person (whether or not affiliated with the Company),
unless: (i) the Company is the surviving Person, or the resulting, surviving or
transferee Person is a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia; (ii)
upon any such consolidation, merger, sale, conveyance, transfer or lease, the
due and punctual payment of the principal of and Interest on all of the
Securities, according to their tenor and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company, shall be expressly assumed, by supplemental indenture
satisfactory in form and substance to the Trustee, executed and delivered to the
Trustee by the Person (if other than the Company and other than a Person who is
a successor to the Company's obligations hereunder and under the Security by
operation of law) formed by such consolidation, or into which the Company shall
have been merged, or by the Person that shall have acquired or leased such
property, and such supplemental indenture shall provide for the applicable
conversion rights set forth in Section 15.06; (iii) immediately after giving
effect to the transaction described above, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing; and (iv) the Company shall have delivered
to the Trustee an Officers
52
Certificate and an Opinion of Counsel each stating that the transaction complies
with the requirements of this Section 10.01.
Section 10.02. SUCCESSOR TO BE SUBSTITUTED. In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and Interest on all of the Securities and
the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the Company. Such successor Person thereupon may cause to be signed,
and may issue either in its own name or in the name of ▇▇▇▇▇▇ Corporation any or
all of the Securities, issuable hereunder that theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor Person instead of the Company and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver, or cause to be authenticated and delivered, any Securities that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor Person
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof. In the
event of any such consolidation, merger, sale, conveyance, transfer or lease,
the Person named as the "COMPANY" in the first paragraph of this Indenture or
any successor that shall thereafter have become such in the manner prescribed in
this Article 10 may be dissolved, wound up and liquidated at any time thereafter
and such Person shall be released from its liabilities as obligor and maker of
the Securities and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance, transfer or
lease, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
Section 10.03. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
lease and any such assumption complies with the provisions of this Article 10.
53
ARTICLE 11
SATISFACTION AND DISCHARGE OF INDENTURE
Section 11.01. DISCHARGE OF INDENTURE. When (a) the Company shall deliver
to the Trustee for cancellation all Securities theretofore authenticated (other
than any Securities that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Securities shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Securities not
theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, $US funds sufficient to pay at
maturity or upon redemption of all of the Securities (other than any Securities
that shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and Interest due or to become due to such date
of maturity or redemption date, as the case may be, accompanied by a
verification report, as to the sufficiency of the deposited amount, from an
independent certified accountant or other financial professional satisfactory to
the Trustee, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, including without limitation sums payable
to the Trustee for its costs and expenses, then this Indenture shall cease to be
of further effect (except as to (i) remaining rights of registration of
transfer, substitution and exchange and conversion of Securities, (ii) rights
hereunder of Securityholders to receive payments of principal of and Interest
on, the Securities and the other rights, duties and obligations of
Securityholders, as beneficiaries hereof with respect to the amounts, if any, so
deposited with the Trustee and (iii) the rights, obligations and immunities of
the Trustee hereunder), and the Trustee, on written demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required by
Section 13.05 and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture; the
Company, however, hereby agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities.
Section 11.02. DEPOSITED MONIES TO BE HELD IN TRUST BY TRUSTEE. Subject to
Section 11.04 and the subordination provisions in Article 16, all monies
deposited with the Trustee pursuant to Section 11.01, shall be held in trust for
the sole benefit of the Securityholders, and such monies shall be applied by the
Trustee to the payment, either directly or through any paying agent (including
the Company if acting as its own paying agent), to the holders of the particular
Securities for the payment or redemption of which such monies have been
54
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest.
Section 11.03. PAYING AGENT TO REPAY MONIES HELD. Upon the satisfaction and
discharge of this Indenture, all monies then held by any paying agent of the
Securities (other than the Trustee) shall, upon written request of the Company,
be repaid to it or paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such monies.
Section 11.04. RETURN OF UNCLAIMED MONIES. Subject to the requirements of
applicable law, any monies deposited with or paid to the Trustee for payment of
the principal of Interest on Securities and not applied but remaining unclaimed
by the holders of Securities for two years after the date upon which the
principal of Interest on such Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee on demand and all
liability of the Trustee shall thereupon cease with respect to such monies; and
the holder of any of the Securities shall thereafter look only to the Company
for any payment that such holder may be entitled to collect unless an applicable
abandoned property law designates another Person.
Section 11.05. REINSTATEMENT. If the Trustee or the paying agent is unable
to apply any money in accordance with Section 11.02 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 11.01 until such time as the Trustee or
the paying agent is permitted to apply all such money in accordance with Section
11.02; PROVIDED that if the Company makes any payment of Interest on or
principal of any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Securities to
receive such payment from the money held by the Trustee or paying agent.
ARTICLE 12
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 12.01. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS. No
recourse for the payment of the principal of, or Interest on any Security, or
for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Company in this
Indenture or in any supplemental indenture or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any
55
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
ARTICLE 13
GENERAL PROVISIONS
Section 13.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
Section 13.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any Person that shall at the time be the lawful sole successor of the
Company.
Section 13.03. ADDRESSES FOR NOTICES, ETC. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Securityholders on the Company shall be deemed to have
been sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box or sent by telecopier transmission addressed as follows: to ▇▇▇▇▇▇
Corporation, ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, Telecopier
No.: (▇▇▇)-▇▇▇-▇▇▇▇, Attention: Treasurer. Any notice, direction, request or
demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being
deposited, postage prepaid, by registered or certified mail in a post office
letter box or sent by telecopier transmission addressed as follows: BNY Midwest
Trust Company, ▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Attention:
Corporate Trust Administration, with a copy to The Bank of
New York, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed to
him by first class mail, postage prepaid, at his address as it appears on the
Security Register and shall be sufficiently given to him if so mailed within the
time prescribed.
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Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 13.04. GOVERNING LAW. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of
New York, and for
all purposes shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of laws principles thereof.
Section 13.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT,
CERTIFICATES TO TRUSTEE. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include: (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 13.06. LEGAL HOLIDAYS. In any case in which the date of maturity of
interest on or principal of the Securities, the redemption date or the
repurchase date of any Security will not be a Business Day, then payment of such
interest on or principal of the Securities need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the date of maturity, the redemption date or the repurchase date,
and no interest shall accrue for the period from and after such date.
Section 13.07. TRUST INDENTURE ACT. This Indenture is hereby made subject
to, and shall be governed by, the provisions of the Trust Indenture Act required
to be part of and to govern indentures qualified under the Trust Indenture Act;
PROVIDED that unless otherwise required by law, notwithstanding the foregoing,
this Indenture and the Securities issued hereunder shall not be subject to the
provisions of subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the
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Trust Indenture Act as now in effect or as hereafter amended or modified;
PROVIDED FURTHER that this Section 13.07 shall not require this Indenture or the
Trustee to be qualified under the Trust Indenture Act prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act,
nor shall it constitute any admission or acknowledgment by any party to the
Indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act. If
any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in an indenture qualified under the
Trust Indenture Act, such required provision shall control.
Section 13.08. NO SECURITY INTEREST CREATED. Nothing in this Indenture or
in the Securities, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation, as
now or hereafter enacted and in effect, in any jurisdiction in which property of
the Company or its subsidiaries is located.
Section 13.09. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto, any paying agent, any authenticating agent, any Security Registrar and
their successors hereunder and the Securityholders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 13.10. TABLE OF CONTENTS, HEADINGS. The table of contents and the
titles and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 13.11. AUTHENTICATING AGENT. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Securities in connection
with the original issuance thereof and transfers and exchanges of Securities
hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 14.03 and 14.05, as
fully to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Securities. For all purposes of this Indenture, the authentication and
delivery of Securities by the authenticating agent shall be deemed to be
authentication and delivery of such Securities "by the Trustee" and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Securities for the Trustee's certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as trustee
hereunder pursuant to Section 6.09.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from
58
any merger, consolidation or conversion to which any authenticating agent shall
be a party, or any corporation succeeding to the corporate trust business of any
authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 13.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee
shall either promptly appoint a successor authenticating agent or itself assume
the duties and obligations of the former authenticating agent under this
Indenture and, upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all Securityholders as the names and
addresses of such Securityholders appear on the Security Register.
The Company agrees to pay to the authenticating agent from time to time
such reasonable compensation for its services as shall be agreed upon in writing
between the Company and the authenticating agent.
The provisions of Sections 6.02, 6.03, 6.04 and 7.03 and this Section 13.11
shall be applicable to any authenticating agent.
Section 13.12. EXECUTION IN COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 13.13. SEVERABILITY. In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
ARTICLE 14
REDEMPTION AND REPURCHASE OF SECURITIES
Section 14.01. REDEMPTION OF SECURITIES. The Company may not redeem any
Securities prior to August 20, 2008. At any time on or after August 20, 2008 and
prior to maturity, the Securities may be redeemed at the option of the Company,
in whole or in part, upon notice as set forth in Section 14.02, at a
59
redemption price equal to 100% of the principal amount of the Securities being
redeemed, together with accrued and unpaid Interest, if any, to, but excluding,
the date fixed for redemption; PROVIDED that if the redemption date falls after
a record date and on or prior to the corresponding interest payment date, then
the Interest payable on such interest payment date shall be paid to the holders
of record of such Securities on the applicable record date instead of the
holders surrendering such Securities for redemption on such date.
Section 14.02. NOTICE OF OPTIONAL REDEMPTION; SELECTION OF SECURITIES. In
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Securities pursuant to Section 14.01, it shall fix
a date for redemption and it or, at its written request received by the Trustee
not fewer than forty-five (45) days prior (or such shorter period of time as may
be acceptable to the Trustee) to the date fixed for redemption, the Trustee in
the name of and at the expense of the Company, shall mail or cause to be mailed
a notice of such redemption not fewer than thirty (30) nor more than sixty (60)
days prior to the redemption date to each Securityholder to be redeemed as a
whole or in part at its last address as the same appears on the Security
Register; PROVIDED that if the Company shall give such notice, it shall also
give written notice of the redemption date to the Trustee. Such mailing shall be
by first class mail. The notice, if mailed in the manner herein provided, shall
be conclusively presumed to have been duly given, whether or not the
Securityholder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security. Concurrently with the
mailing of any such notice of redemption, the Company shall issue a press
release announcing such redemption, the form and content of which press release
shall be determined by the Company in its sole discretion. The failure to issue
any such press release or any defect therein shall not affect the validity of
the redemption notice or any of the proceedings for the redemption of any
Security called for redemption.
Each such notice of redemption shall specify the aggregate principal amount
of Securities to be redeemed, the CUSIP number or numbers of the Securities
being redeemed, the date fixed for redemption (which shall be a Business Day),
the redemption price at which Securities are to be redeemed, the place or places
of payment, that payment will be made upon presentation and surrender of such
Securities, that Interest accrued and unpaid to the date fixed for redemption
will be paid as specified in said notice, and that on and after said date
Interest thereon or on the portion thereof to be redeemed will cease to accrue.
Such notice shall also state the current Conversion Rate and the date on which
the right to convert such Securities or portions thereof into Common Stock will
expire. If fewer than all the Securities are to be redeemed, the notice of
redemption shall identify the Securities to be redeemed (including CUSIP
numbers, if any). In case any Security is to be redeemed in part only, the
notice
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of redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that, on and after the redemption date, upon surrender
of such Security, a new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued.
Prior to 10:00 a.m. (New York City time) on the redemption date specified
in the notice of redemption given as provided in this Section 14.02, the Company
will deposit with the Trustee or with one or more paying agents (or, if the
Company is acting as its own paying agent, set aside, segregate and hold in
trust as provided in Section 3.04) an amount of money in immediately available
funds sufficient to redeem all the Securities (or portions thereof) so called
for redemption (other than those theretofore surrendered for conversion into
Common Stock) at the appropriate redemption price, together with accrued and
unpaid Interest to, but excluding, the redemption date. The Company shall be
entitled to retain any interest, yield or gain on amounts deposited with the
Trustee or any paying agent pursuant to this Section 14.02 in excess of amounts
required hereunder to pay the redemption price and accrued and unpaid Interest
to, but excluding, the redemption date. If any Security called for redemption is
converted pursuant hereto prior to such redemption date, any money deposited
with the Trustee or any paying agent or so segregated and held in trust for the
redemption of such Security shall be paid to the Company upon its written
request, or, if then held by the Company, shall be discharged from such trust.
Whenever any Securities are to be redeemed, the Company will give the Trustee
written notice in the form of an Officers' Certificate not fewer than forty-five
(45) days (or such shorter period of time as may be acceptable to the Trustee)
prior to the redemption date as to the aggregate principal amount of Securities
to be redeemed.
If less than all of the outstanding Securities are to be redeemed, the
Trustee shall select the Securities or portions of the Global Security or the
Securities in certificated form to be redeemed (in principal amounts of $1,000
or multiples thereof) by lot, on a pro rata basis or by another method the
Trustee deems fair and appropriate. If any Security selected for partial
redemption is submitted for conversion in part after such selection, the portion
of such Security submitted for conversion shall be deemed (so far as may be
possible) to be the portion to be selected for redemption. The Securities (or
portions thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Security is submitted for
conversion in part before the mailing of the notice of redemption.
Upon any redemption of less than all of the outstanding Securities, the
Company and the Trustee may (but need not), solely for purposes of determining
the pro rata allocation among such Securities as are unconverted and outstanding
at the time of redemption, treat as outstanding any Securities surrendered for
conversion during the period of fifteen (15) days next preceding the mailing of
a
61
notice of redemption and may (but need not) treat as outstanding any Security
authenticated and delivered during such period in exchange for the unconverted
portion of any Security converted in part during such period.
Section 14.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION BY THE COMPANY.
If notice of redemption has been given as provided in Section 14.02, the
Securities or portion of Securities with respect to which such notice has been
given shall, unless converted into Common Stock pursuant to the terms hereof,
become due and payable on the date fixed for redemption and at the place or
places stated in such notice at the applicable redemption price, together with
Interest accrued and unpaid to (but excluding) the redemption date, and on and
after said date (unless the Company shall default in the payment of such
Securities at the redemption price, together with Interest accrued and unpaid to
said date) Interest on the Securities or portion of Securities so called for
redemption shall cease to accrue and, after the close of business on the
Business Day immediately preceding the redemption date (unless the Company shall
default in the payment of such Securities at the redemption price, together with
Interest accrued and unpaid to said date) such Securities shall cease to be
convertible into Common Stock and, except as provided in Section 6.05 and
Section 11.04, to be entitled to any benefit or security under this Indenture,
and the Securityholders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
Interest to (but excluding) the redemption date. On presentation and surrender
of such Securities at a place of payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with Interest accrued and
unpaid thereon to, but excluding, the redemption date; PROVIDED that if the
redemption date falls after a record date and on or prior to the corresponding
interest payment date, then the Interest payable on such interest payment date
shall be paid to the holders of record of such Securities on the applicable
record date instead of the holders surrendering such Securities for redemption
on such date.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Security or Securities,
of authorized denominations, in principal amount equal to the unredeemed portion
of the Securities so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Securities
or mail any notice of redemption during the continuance of a default in payment
of Interest on the Securities, of which the Trustee has knowledge or has
received notice as provided in this Indenture. If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal shall, until paid or duly provided for, bear interest from the
redemption date at a rate equal to rate set forth in the Security for overdue
payments of principal and such Security
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shall remain convertible into Common Stock until the principal and Interest
shall have been paid or duly provided for.
Section 14.04. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In connection
with any redemption of Securities, the Company may arrange for the purchase and
conversion of any Securities by an agreement with one or more investment banks
or other purchasers to purchase such Securities by paying to the Trustee in
trust for the Securityholders, on or before the date fixed for redemption, an
amount not less than the applicable redemption price, together with Interest
accrued to, but excluding, the date fixed for redemption, of such Securities.
Notwithstanding anything to the contrary contained in this Article 14, the
obligation of the Company to pay the redemption price of such Securities,
together with Interest accrued to, but excluding, the date fixed for redemption,
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered into, a copy of which
will be filed with the Trustee prior to the date fixed for redemption, any
Securities not duly surrendered for conversion by the holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Securityholders and (notwithstanding
anything to the contrary contained in Article 15) surrendered by such purchasers
for conversion, all as of immediately prior to the close of business on the date
fixed for redemption (and the right to convert any such Securities shall be
extended through such time), subject to payment of the above amount as
aforesaid. At the direction of the Company, the Trustee shall hold and dispose
of any such amount paid to it in the same manner as it would monies deposited
with it by the Company for the redemption of Securities. Without the Trustee's
prior written consent, no arrangement between the Company and such purchasers
for the purchase and conversion of any Securities shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations of the Trustee
as set forth in this Indenture.
Section 14.05. REPURCHASE AT OPTION OF SECURITYHOLDERS UPON A DESIGNATED
EVENT. (a) If there shall occur a Designated Event at any time prior to maturity
of the Securities, then each Securityholder shall have the right, at such
Securityholder's option, to require the Company to repurchase all of such
Securityholder's Securities, or any portion thereof that is a multiple of $1,000
principal amount, as of the date (the "DESIGNATED EVENT REPURCHASE DATE")
specified by the Company that is not less than twenty (20) Business Days and not
more than thirty-five (35) Business Days after the date of the Designated Event
Notice (as defined in Section 14.05(b)) with respect to such Designated Event at
a repurchase price equal to 100% of the principal amount thereof, together with
accrued and unpaid Interest to, but excluding, the Designated Event Repurchase
Date; PROVIDED that if such Designated Event Repurchase Date falls after a
record date and on or prior to the corresponding interest payment date, then the
interest payable on such interest payment date shall be paid to the holders of
record of the Securities on the applicable record date instead of the holders
surrendering the
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Securities for repurchase on such date. Repurchases of Securities under this
Section 14.05 shall be made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other paying agent appointed by
the Company) by a Securityholder of a duly completed notice (the
"DESIGNATED EVENT REPURCHASE NOTICE") in the form set forth on the reverse
of the Security prior to the close of business on the Designated Event
Repurchase Date; and
(ii) delivery or book-entry transfer of the Securities to the
Trustee (or other paying agent appointed by the Company) at any time after
delivery of the Designated Event Repurchase Notice (together with all
necessary endorsements) at the Corporate Trust Office of the Trustee (or
other paying agent appointed by the Company) in the Borough of Manhattan as
provided in Section 3.02, such delivery being a condition to receipt by the
Securityholder of the repurchase price therefor; PROVIDED that such
repurchase price shall be so paid pursuant to this Section 14.05 only if
the Security so delivered to the Trustee (or other paying agent appointed
by the Company) shall conform in all respects to the description thereof in
the related Designated Event Repurchase Notice.
The Company shall purchase from the Securityholder, pursuant to this
Section 14.05, a portion of a Security, if the principal amount of such portion
is $1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to the purchase of all of a Security also apply to the purchase of such portion
of such Security.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 14.05 shall be consummated by the delivery of the consideration to be
received by the holder promptly following the later of the Designated Event
Repurchase Date and the time of the book entry transfer or delivery of the
Security.
Notwithstanding anything herein to the contrary, any Securityholder
delivering to the Trustee (or other paying agent appointed by the Company) the
Designated Event Repurchase Notice contemplated by this Section 14.05 shall have
the right to withdraw such Designated Event Repurchase Notice at any time prior
to the close of business on the Designated Event Repurchase Date by delivery of
a written notice of withdrawal to the Trustee (or other paying agent appointed
by the Company) in accordance with Section 14.05(c) below.
The Trustee (or other paying agent appointed by the Company) shall promptly
notify the Company of the receipt by it of any Designated Event Repurchase
Notice or written notice of withdrawal thereof.
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(b) On or before the fifteenth day after the occurrence of a Designated
Event, the Company or at its written request (which must be received by the
Trustee at least five (5) Business Days prior to the date the Trustee is
requested to give notice as described below, unless the Trustee shall agree in
writing to a shorter period), the Trustee, in the name of and at the expense of
the Company, shall mail or cause to be mailed to all holders of record on the
date of the Designated Event a notice (the "DESIGNATED EVENT NOTICE") of the
occurrence of such Designated Event and of the repurchase right at the option of
the Securityholders arising as a result thereof. Such mailing shall be by first
class mail. If the Company shall give such notice, the Company shall also
deliver a copy of the Designated Event Company Notice to the Trustee at such
time as it is mailed to Securityholders. Concurrently with the mailing of any
Designated Event Notice, the Company shall issue a press release announcing such
Designated Event referred to in the Designated Event Notice, the form and
content of which press release shall be determined by the Company in its sole
discretion. The failure to issue any such press release or any defect therein
shall not affect the validity of the Designated Event Notice or any proceedings
for the repurchase of any Security which any Securityholder may elect to have
the Company repurchase as provided in this Section 14.05.
Each Designated Event Notice shall specify the circumstances constituting
the Designated Event, the Designated Event Repurchase Date, the price at which
the Company shall be obligated to repurchase Securities, that the Securityholder
must exercise the repurchase right on or prior to the close of business on the
Designated Event Repurchase Date (the "DESIGNATED EVENT EXPIRATION TIME"), that
the Securityholder shall have the right to withdraw any Securities surrendered
prior to the Designated Event Expiration Time, a description of the procedure
which a Securityholder must follow to exercise such repurchase right and to
withdraw any surrendered Securities, the place or places where the
Securityholder is to surrender such Securityholder's Securities, the amount of
Interest accrued and unpaid on each Security to the Designated Event Repurchase
Date and the CUSIP number or numbers of the Securities (if then generally in
use) and include a form of Designated Event Repurchase Notice.
No failure of the Company to give the foregoing notices and no defect
therein shall limit the Securityholders' repurchase rights or affect the
validity of the proceedings for the repurchase of the Securities pursuant to
this Section 14.05.
(c) A Designated Event Repurchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Trustee (or other
paying agent appointed by the Company) in accordance with the Designated Event
Repurchase Notice at any time prior to the close of business on the Designated
Event Repurchase Date, specifying:
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(i) the certificate number, if any, of the Security in respect
of which such notice of withdrawal is being submitted, or the appropriate
Depositary information if the Security in respect of which such notice of
withdrawal is being submitted is represented by a Global Security,
(ii) the principal amount of the Security with respect to which
such notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Security which
remains subject to the original Designated Event Repurchase Notice and
which has been or will be delivered for purchase by the Company.
(d) Prior to 10:00 a.m. (New York City time) on the Designated Event
Repurchase Date, the Company will deposit with the Trustee (or other paying
agent appointed by the Company or if the Company is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) an
amount of money sufficient to repurchase on the Designated Event Repurchase Date
all the Securities to be repurchased on such date at the appropriate repurchase
price, together with accrued and unpaid Interest to, but excluding, the
Designated Event Repurchase Date. Subject to receipt of funds by the Trustee (or
other paying agent appointed by the Company), payment for Securities surrendered
for repurchase (and not withdrawn) prior to the Designated Event Expiration Time
will be made promptly (but in no event more than five (5) Business Days)
following the later of (x) the Designated Event Repurchase Date with respect to
such Security (PROVIDED the Securityholder has satisfied the conditions in this
Section 14.05) and (y) the time of delivery of such Security to the Trustee (or
other paying agent appointed by the Company) by the Securityholder thereof in
the manner required by this Section 14.05) by mailing checks for the amount
payable to the Securityholders entitled thereto as they shall appear in the
Security Register.
If the Trustee (or other paying agent appointed by the Company) holds money
sufficient to repurchase on the Designated Event Repurchase Date all the
Securities or portions thereof that are to be purchased as of the Designated
Event Repurchase Date, then as of the Designated Event Repurchase Date: (i) the
Securities will cease to be outstanding, (ii) Interest on the Securities will
cease to accrue, and (iii) all other rights of the holders of such Securities
will terminate, whether or not book-entry transfer of the Securities has been
made or the Securities have been delivered to the Trustee or paying agent, other
than the right to receive the repurchase price upon delivery of the Securities.
(e) In the case of a reclassification, change, consolidation, merger,
combination, sale or conveyance to which Section 15.06 applies, in which the
Common Stock of the Company is changed or exchanged as a result into the right
to receive stock, securities or other property or assets (including cash), which
66
includes shares of Common Stock of the Company or shares of common stock of
another Person that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute
at the time such change or exchange becomes effective in excess of 50% of the
aggregate fair market value of such stock, securities or other property or
assets (including cash) (as determined by the Company, which determination shall
be conclusive and binding), then the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (accompanied
by an Opinion of Counsel that such supplemental indenture complies with the
Indenture and the Trust Indenture Act as in force at the date of execution of
such supplemental indenture) modifying the provisions of this Indenture relating
to the right of Securityholders to cause the Company to repurchase the
Securities following a Designated Event, including without limitation the
applicable provisions of this Section 14.05 and the definitions of Common Stock
and Designated Event, as appropriate, as determined in good faith by the Company
(which determination shall be conclusive and binding), to make such provisions
apply to such other Person if different from the Company and the common stock
issued by such Person (in lieu of the Company and the Common Stock of the
Company).
(f) The Company will comply with the provisions of Rule 13e-4 and any
other tender offer rules under the Exchange Act to the extent then applicable in
connection with the repurchase rights of the Securityholders in the event of a
Designated Event.
Section 14.06. REPURCHASE OF SECURITIES BY THE COMPANY AT OPTION OF THE
SECURITYHOLDER. Securities shall be purchased by the Company pursuant to the
terms of the Securities at the option of the Securityholder on August 15, 2008
(the "REPURCHASE DATE"), at a repurchase price of 100% of the principal amount,
plus any accrued and unpaid Interest to, but excluding, the Repurchase Date,
subject to the provisions of Section 14.07; PROVIDED that no Securities may be
repurchased by the Company pursuant to this Section 14.06 if the principal
amount of the Securities has been accelerated and such acceleration has not been
rescinded on or prior to the Repurchase Date. Repurchases of Securities under
this Section 14.06 shall be made, at the option of the Securityholder thereof,
upon:
(a) delivery to the Trustee (or other paying agent appointed by the
Company) by a Securityholder of a duly completed notice (the "REPURCHASE
NOTICE") in the form set forth on the reverse of the Security during the period
beginning at any time from the opening of business on the date that is 20
Business Days prior to the Repurchase Date until the close of business on the
Repurchase Date; and
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(b) delivery or book-entry transfer of the Securities to the Trustee (or
other paying agent appointed by the Company) at any time after delivery of the
Repurchase Notice (together with all necessary endorsements) at the Corporate
Trust Office of the Trustee (or other paying agent appointed by the Company) in
the Borough of Manhattan as provided in Section 3.02, such delivery being a
condition to receipt by the Securityholder of the repurchase price therefor;
PROVIDED that such repurchase price shall be so paid pursuant to this Section
14.06 only if the Security so delivered to the Trustee (or other paying agent
appointed by the Company) shall conform in all respects to the description
thereof in the related Repurchase Notice.
The Company shall purchase from the Securityholder thereof, pursuant to
this Section 14.06, a portion of a Security, if the principal amount of such
portion is $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to the purchase of all of a Security also apply to the purchase of
such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 14.06 shall be consummated by the delivery of the consideration to be
received by the Securityholder promptly following the later of the Repurchase
Date and the time of the book-entry transfer or delivery of the Security.
Notwithstanding anything herein to the contrary, any Securityholder
delivering to the Trustee (or other paying agent appointed by the Company) the
Repurchase Notice contemplated by this Section 14.06 shall have the right to
withdraw such Repurchase Notice at any time prior to the close of business on
the Repurchase Date by delivery of a written notice of withdrawal to the Trustee
(or other paying agent appointed by the Company) in accordance with Section
14.08.
The Trustee (or other paying agent appointed by the Company) shall promptly
notify the Company of the receipt by it of any Repurchase Notice or written
notice of withdrawal thereof.
Section 14.07. COMPANY REPURCHASE NOTICE.
(a) The Securities to be repurchased on the Repurchase Date pursuant to
Section 14.06 will be paid for in cash.
At least three Business Days before the Company Repurchase Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the information required by Section 14.07(b) in the Company
Repurchase Notice, and
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(ii) whether the Company desires the Trustee to give the Company
Repurchase Notice required by Section 14.07(b).
(b) Unless the Company has elected to redeem all of the Securities on or
before the Repurchase Date in accordance with Section 14.01, the Company shall,
no less than 20 Business Days prior to the Repurchase Date (the "COMPANY
REPURCHASE NOTICE DATE"), give notice to Securityholders at their addresses
shown in the Security Register setting forth information specified in this
Section 14.07(b) (the "COMPANY REPURCHASE NOTICE"). The Company will also give
notice to beneficial owners as required by applicable law.
The Company Repurchase Notice shall:
(1) state the repurchase price and the Repurchase Date to which
the Company Repurchase Notice relates;
(2) include a form of Repurchase Notice;
(3) state the name and address of the Trustee (or other paying
agent or conversion agent appointed by the Company);
(4) state that Securities must be surrendered to the Trustee
(or other paying agent appointed by the Company) to collect the repurchase
price;
(5) if the Securities are then convertible, state that
Securities as to which a Repurchase Notice has been given may be converted
only if the Repurchase Notice is withdrawn in accordance with the terms of
this Indenture; and
(6) state the CUSIP number of the Securities.
The Company Repurchase Notice may be given by the Company or, at the Company's
request, the Trustee shall give such Company Repurchase Notice in the Company's
name and at the Company's expense.
(c) The Company will comply with the provisions of Rule 13e-4 and any
other tender offer rules under the Exchange Act (including, without limitation,
filing a Schedule TO or other schedule) to the extent then applicable in
connection with the repurchase rights of the Securityholders.
Section 14.08. EFFECT OF REPURCHASE NOTICE. Upon receipt by the Trustee (or
other paying agent appointed by the Company) of the Repurchase Notice specified
in Section 14.06, the holder of the Security in respect of which such Repurchase
Notice was given shall (unless such Repurchase Notice is validly withdrawn)
thereafter be entitled to receive solely the repurchase price with
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respect to such Security. Such repurchase price shall be paid to such
Securityholder, subject to receipt of funds and/or Securities by the Trustee (or
other paying agent appointed by the Company), promptly following the later of
(x) the Repurchase Date (PROVIDED the Securityholder has satisfied the
conditions in Section 14.06) and (y) the time of delivery of such Security to
the Trustee (or other paying agent appointed by the Company) by the
Securityholder thereof in the manner required by Section 14.06. Securities in
respect of which a Repurchase Notice has been given by the Securityholder
thereof may not be converted pursuant to Article 15 hereof on or after the date
of the delivery of such Repurchase Notice unless such Repurchase Notice has
first been validly withdrawn.
A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Trustee (or other paying agent
appointed by the Company) in accordance with the Repurchase Notice at any time
prior to the close of business on the Repurchase Date, specifying:
(a) the certificate number, if any, of the Security in respect of which
such notice of withdrawal is being submitted, or the appropriate Depositary
information if the Security in respect of which such notice of withdrawal is
being submitted is represented by a Global Security,
(b) the principal amount of the Security with respect to which such
notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Security which remains subject
to the original Repurchase Notice and which has been or will be delivered for
purchase by the Company.
Section 14.09. DEPOSIT OF REPURCHASE PRICE. (a) Prior to 10:00 a.m. (New
York City Time) on the Business Day immediately following the Repurchase Date,
the Company shall deposit with the Trustee (or other paying agent appointed by
the Company, or, if the Company or a Subsidiary or an Affiliate of either of
them is acting as the paying agent, shall segregate and hold in trust as
provided in Section 3.04) an amount of cash (in immediately available funds if
deposited on such Business Day), sufficient to pay the aggregate repurchase
price of all the Securities or portions thereof that are to be repurchased as of
the Repurchase Date.
(b) If the Trustee or other paying agent appointed by the Company, or
the Company or a Subsidiary or Affiliate of either of them, if such entity is
acting as the paying agent, holds cash sufficient to pay the aggregate
repurchase price of all the Securities, or portions thereof that are to be
repurchased as of the Repurchase Date, on or after the Repurchase Date: (i) the
Securities will cease to be outstanding, (ii) interest on the Securities will
cease to accrue, and (iii) all
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other rights of the holders of such Securities will terminate, whether or not
book-entry transfer of the Securities has been made or the Securities have been
delivered to the Trustee or paying agent, other than the right to receive the
repurchase price upon delivery of the Securities.
Section 14.10. SECURITIES REPURCHASED IN PART. Upon presentation of any
Security repurchased pursuant to Section 14.05 or 14.06, as the case may be,
only in part, the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Securityholder thereof, at the expense of the
Company, a new Security or Securities, of any authorized denomination, in
aggregate principal amount equal to the unrepurchased portion of the Securities
presented.
Section 14.11. REPAYMENT TO THE COMPANY. To the extent that the aggregate
amount of cash or money deposited by the Company pursuant to Section 14.05(d) or
Section 14.09, as the case may be, exceeds the aggregate repurchase price of the
Securities or portions thereof which the Company is obligated to purchase as of
the Designated Event Repurchase Date or the Repurchase Date, as the case may be,
then, unless otherwise agreed in writing with the Company, promptly after the
Business Day following the Designated Event Repurchase Date or the Repurchase
Date, as the case may be, the Trustee shall return any such excess to the
Company together with interest, if any, thereon.
ARTICLE 15
CONVERSION OF SECURITIES
Section 15.01. RIGHT TO CONVERT. (a) Subject to and upon compliance with
the provisions of this Indenture, prior to August 15, 2013, the holder of any
Security shall have the right, at such Securityholder's option, to convert the
principal amount of the Security, or any portion of such principal amount which
is a multiple of $1,000, into fully paid and non-assessable shares of Common
Stock (as such shares shall then be constituted) at the Conversion Rate in
effect at such time, solely upon the occurrence of one or more events described
in Sections 15.01(b), 15.01(c), 15.01(d), 15.01(e) or 15.01(f) below, by
surrender of the Security to be so converted in whole or in part, together with
any required funds, in the manner provided in Section 15.02.
Whenever the Securities shall become convertible pursuant to this Section
15.01, the Company or, at the Company's request, the Trustee in the name and at
the expense of the Company, shall notify the Securityholders of the event
triggering such convertibility and the Company shall also publicly announce such
information. Any notice so given shall be conclusively presumed to have been
duly given, whether or not the Securityholder receives such notice.
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A Security in respect of which a Securityholder is electing to exercise its
option to require the Company to repurchase such Securityholder's Securities
upon a Designated Event pursuant to Section 14.05, or at the option of the
Securityholder on the Repurchase Date pursuant to Section 14.06, may be
converted only if such Securityholder withdraws its election in accordance with
Section 14.05 or Section 14.06, respectively. A Securityholder is not entitled
to any rights of a holder of Common Stock until such Securityholder has
converted its Securities into Common Stock, and only to the extent such
Securities are deemed to have been converted into Common Stock under this
Article 15.
(b) Commencing after September 30, 2003, Securities may be converted
during any fiscal quarter of the Company (and only during such fiscal quarter),
if the Closing Sale Price exceeds 120% of the Conversion Price in effect for at
least 20 Trading Days in the 30 consecutive Trading Day period ending on the
last Trading Day of the immediately preceding fiscal quarter.
The Company (or the conversion agent appointed by the Company) shall
determine on each Trading Day during the 30 consecutive Trading Day period
specified in this Section 15.01(b) whether the Closing Sale Price exceeds 120%
of the Conversion Price and whether the Securities shall be convertible as a
result of the occurrence of the event specified in this Section 15.01(b) and, if
the Securities shall be so convertible, the Company shall promptly deliver to
the Trustee (or the conversion agent if the Trustee is not the conversion agent)
written notice thereof.
(c) Securities may be converted during the five Business Day period
after any five consecutive Trading Day period (the "MEASUREMENT PERIOD") in
which the Trading Price per $1,000 principal amount of the Securities for each
day of such Measurement Period was less than 98% of the product of the Closing
Sale Price and the then current Conversion Rate; PROVIDED that if on the date of
any conversion pursuant to this Section 15.01(c) the Closing Sale Price of the
Common Stock is greater than the Conversion Price, a holder shall receive, in
lieu of Common Stock based on the Conversion Price, cash or Common Stock or a
combination of cash and Common Stock, at the Company's option, with a value
equal to the principal amount of Securities to be converted plus accrued
Interest as of the conversion date (a "PRINCIPAL VALUE CONVERSION").
If a holder surrenders its Notes for conversion pursuant to this Section
15.01(c) and it is a Principal Value Conversion, the Company will notify the
holder by the second Trading Day following the Conversion Date whether it will
pay the principal amount plus accrued Interest in cash, Common Stock or a
combination of cash and Common Stock, and in what percentage. Any Common Stock
delivered upon a Principal Value Conversion will be valued at the greater of (x)
the Conversion Price on the conversion date and (y) the Applicable Stock Price
as of the conversion date. The Company will pay any portion of the principal
amount plus accrued interest to be paid in cash and deliver Common
72
Stock with respect to any portion of the principal amount plus accrued and
unpaid interest to be paid in Common Stock no later than the Business Day
following the Determination of the Applicable Stock Price.
The Company shall determine whether the Securities may be converted
pursuant to this Section 15.01(c) based on Trading Prices provided by the
Trustee. The Company shall provide the Trustee with the names of three
independent nationally known securities dealers to be used for determining the
Trading Price. The Trustee (or other conversion agent appointed by the Company)
shall have no obligation to determine the Trading Price under this Section
15.01(c) unless the Company has requested such a determination; and the Company
shall have no obligation to make such request unless a Securityholder provides
it with reasonable evidence that the Trading Price per $1,000 principal amount
of Securities would be less than 98% of the product of the Closing Sale Price
and the then current Conversion Rate. If such evidence is provided, the Company
shall instruct the Trustee (or other conversion agent) to determine the Trading
Price of the Securities beginning on the next Trading Day and on each successive
Trading Day until the Trading Price per $1,000 principal amount of Securities is
greater than or equal to 98% of the product of the Closing Sale Price and the
then current Conversion Rate; PROVIDED that, except for the determination of the
Trading Prices, the Trustee shall be under no duty or obligation to make the
calculations described in this Section 15.01(c) or to determine whether the
Securities are convertible pursuant to such section.
The Trustee shall be entitled at its sole discretion to consult with the
Company and to request the assistance of the Company in connection with the
Trustee's duties and obligations pursuant to this Section 15.01(c) (including
without limitation the calculation or determination of the Conversion Rate, the
Closing Sale Price and the Trading Price), and the Company agrees, if requested
by the Trustee, to cooperate with, and provide assistance to, the Trustee in
carrying out its duties under this Section 15.01(c); PROVIDED that nothing
herein shall be construed to relieve the Trustee of its duties pursuant to this
Section 15.01(c).
(d) If any Securities have been called for redemption pursuant to
Section 14.02, such Securities may be converted, at any time on or after the
date the notice of redemption has been given under Section 14.02 until the close
of business on the Business Day immediately preceding the redemption date.
(e) If (1) the Company distributes to all holders of its Common Stock
rights or warrants entitling them (for a period expiring within 45 days of the
record date for the determination of the stockholders entitled to receive such
distribution) to subscribe for or purchase shares of Common Stock, at a price
per share less than the average of the Closing Sale Prices for the ten Trading
Days immediately preceding, but not including, the date such distribution is
first
73
publicly announced by the Company, or (2) the Company distributes to all holders
of its Common Stock, assets, debt securities or rights to purchase its
securities, where the Fair Market Value of such distribution per share of Common
Stock exceeds 5% of the Closing Sale Price on the Trading Day immediately
preceding the date such distribution is first publicly announced by the Company,
then, in either case, the Securities may be converted at any time on and after
the date that the Company gives notice to the Securityholders of such
distribution, which shall be not less than 20 days prior to the Ex-Dividend Time
for such distribution, until the earlier of the close of business on the
Business Day immediately preceding, the Ex-Dividend Time or the date the Company
publicly announces that such distribution will not take place; PROVIDED that
Securities may not be converted pursuant to this Section 15.01(e) nor will any
adjustment to the Conversion Rate be made pursuant to the transactions described
in this Section 15.01(e) if the Securityholder, without conversion of the
Security, would participate, on the same basis as a holder of Common Stock, in
the distribution as if such Securityholder had converted its Securities into
Common Stock prior to the record date for such distribution.
"EX-DIVIDEND TIME" means, with respect to any distribution on shares of
Common Stock, the first date on which the shares of Common Stock trade regular
way on the principal securities market on which the shares of Common Stock are
then traded without the right to receive such distribution.
(f) If the Company consolidates with or merges with or into another
Person or is a party to a binding share exchange or conveys, transfers, sells,
leases or otherwise disposes of all or substantially all of its properties and
assets in each case pursuant to which the Common Stock is converted into cash,
securities or other property, then the Securities may be converted at any time
from and after the date fifteen (15) days prior to the anticipated effective
date of the transaction and ending on and including the date fifteen (15) days
after the consummation of the transaction (or, if such merger, consolidation or
share exchange also constitutes a Designated Event, until the corresponding
Designated Event Purchase Date). The Board of Directors shall determine the
anticipated effective date of the transaction, and such determination shall be
conclusive and binding on the Securityholders and shall be publicly announced by
the Company not later than two Business Days prior to such 15th day.
Section 15.02. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF COMMON STOCK
ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In order to exercise the
conversion privilege with respect to any Security in certificated form, the
Company must receive at the office or agency of the Company maintained for that
purpose or, at the option of a holder of such Security, the Corporate Trust
Office, such Security with the original or facsimile of the form entitled
"CONVERSION NOTICE" on the reverse thereof, duly completed and manually signed,
together with such Securities duly endorsed for transfer, accompanied by
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the funds, if any, required by this Section 15.02. Such notice shall also state
the name or names (with address or addresses) in which the certificate or
certificates for shares of Common Stock which shall be issuable on such
conversion shall be issued, and shall be accompanied by transfer or similar
taxes, if required pursuant to Section 15.07.
In order to exercise the conversion privilege with respect to any interest
in a Global Security, the beneficial holder must complete, or cause to be
completed, the appropriate instruction form for conversion pursuant to the
Depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Security, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
conversion agent, and pay the funds, if any, required by this Section 15.02 and
any transfer taxes if required pursuant to Section 15.07.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, subject to compliance with any restrictions on
transfer if shares issuable on conversion are to be issued in a name other than
that of the Securityholder (as if such transfer were a transfer of the Security
or Securities (or portion thereof) so converted), the Company shall issue and
shall deliver to such Securityholder at the office or agency maintained by the
Company for such purpose pursuant to Section 3.02, a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such Security or portion thereof as determined by the Company in accordance with
the provisions of this Article 15 and a check or cash in respect of any
fractional interest in respect of a share of Common Stock arising upon such
conversion, calculated by the Company as provided in Section 15.03. In case any
Security of a denomination greater than $1,000 shall be surrendered for partial
conversion, and subject to Section 2.03, the Company shall execute and the
Trustee shall authenticate and deliver to the Securityholder of the Security so
surrendered, without charge to him, a new Security or Securities in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Security.
Each conversion shall be deemed to have been effected as to any such
Security (or portion thereof) on the date on which the requirements set forth
above in this Section 15.02 have been satisfied as to such Security (or portion
thereof), and the Person in whose name any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become on said date the holder of record of the shares represented thereby;
PROVIDED that any such surrender on any date when the stock transfer books of
the Company shall be closed shall constitute the Person in whose name the
certificates are to be issued as the record holder thereof for all purposes on
the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Rate in effect on the date upon which such
Security shall be surrendered.
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If any Security (or portion thereof) is converted into Common Stock during
the period after a record date for the payment of interest to, but excluding,
the next succeeding interest payment date and such Security (or portion thereof)
has been called for redemption on a redemption date or tendered for repurchase
on a repurchase date which occurs during such period, the Company shall pay
interest on such interest payment date in respect of any such Security (or
portion thereof) to the holder of such Securities registered as such on the
applicable record date. Any Security or portion thereof surrendered for
conversion during the period from the close of business on the record date for
any interest payment date to the close of business on the Business Day preceding
the immediately following interest payment date shall be accompanied by payment,
in immediately available funds or other funds acceptable to the Company, of an
amount equal to the Interest otherwise payable on such interest payment date on
the principal amount being converted; PROVIDED that no such payment need be made
(1) if the Company has specified a redemption date that is after a record date
and on or prior to the next interest payment date, (2) if the Company has
specified a repurchase date following a Designated Event that is after a record
date and on or prior to the next interest payment date or (3) to the extent of
any overdue Interest, if any overdue Interest exists at the time of conversion
with respect to such Security. Except as provided above in this Section 15.02,
no payment or other adjustment shall be made for Interest accrued and unpaid on
any Security converted or for dividends on any shares issued upon the conversion
of such Security as provided in this Article 15.
Upon the conversion of an interest in a Global Security, the Trustee (or
other conversion agent appointed by the Company), or the Custodian at the
direction of the Trustee (or other conversion agent appointed by the Company),
shall make a notation on such Global Security as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in
writing of any conversions of Securities effected through any conversion agent
other than the Trustee.
Upon the conversion of a Security, that portion of the accrued but unpaid
Interest, with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
holder thereof through delivery of the Common Stock (together with the cash
payment, if any in lieu of fractional shares) in exchange for the Security being
converted pursuant to the provisions hereof; and the fair market value of such
shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for and in satisfaction of the Company's obligation to pay the
principal amount of the converted Security, the accrued but unpaid Interest, and
the balance, if any, of such fair market value of such Common Stock (and any
such cash payment) shall be treated as issued in exchange for and in
satisfaction of the right to convert the Security being converted pursuant to
the provisions hereof.
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Section 15.03. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES. No fractional
shares of Common Stock or scrip certificates representing fractional shares
shall be issued upon conversion of Securities. If more than one Security shall
be surrendered for conversion at one time by the same Securityholder, the number
of full shares that shall be issuable upon conversion shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If any fractional share
of stock would be issuable upon the conversion of any Security or Securities,
the Company shall make an adjustment and payment therefor in cash at the current
market price thereof to the Securityholder. The current market price of a share
of Common Stock shall be the Closing Sale Price on the last Trading Day
immediately preceding the day on which the Securities (or specified portions
thereof) are deemed to have been converted.
Section 15.04. CONVERSION RATE. Each $1,000 principal amount of the
Securities shall be convertible into the number of shares of Common Stock
specified in the form of Security (herein called the "CONVERSION RATE") attached
as Exhibit A hereto, subject to adjustment as provided in this Article 15.
Section 15.05. ADJUSTMENT OF CONVERSION RATE. The Conversion Rate shall be
adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a
fraction:
(i) the numerator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the date
fixed for the determination of stockholders entitled to receive such
dividend or other distribution plus the total number of shares of Common
Stock constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purpose of this
paragraph (a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company. The Company will
not pay any dividend or make any distribution on shares of Common Stock held in
the treasury of the Company. If any dividend or distribution of the type
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described in this Section 15.05(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all holders of
its outstanding shares of Common Stock entitling them (for a period expiring
within forty-five (45) days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than the average of
the Closing Sale Prices of the Common Stock for the 10 Trading Days immediately
preceding the date such distribution is first publicly announced by the Company,
the Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior to the
date fixed for determination of stockholders entitled to receive such rights or
warrants by a fraction:
(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the total
number of additional shares of Common Stock offered for subscription or
purchase, and
(ii) the denominator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the date
fixed for determination of stockholders entitled to receive such rights or
warrants plus the number of shares that the aggregate offering price of the
total number of shares so offered would purchase at a price equal to the
average of the Closing Sale Prices of the Common Stock for the 10 Trading
Days immediately preceding the date such distribution is first publicly
announced by the Company.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day following the date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in
effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares of Common Stock
actually delivered. If such rights or warrants are not so issued, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the stockholders to subscribe for or purchase shares
of Common Stock at a price less than the average of the Closing Sale Prices of
the Common
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Stock for the 10 Trading Days immediately preceding the date such distribution
is first publicly announced by the Company, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into account
any consideration received by the Company for such rights or warrants and any
amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such combination becomes effective shall
be proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock shares of any class of capital stock of the
Company or evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 15.05(b), and excluding
any dividend or distribution (x) paid in cash or (y) referred to in Section
15.05(a) (any of the foregoing hereinafter in this Section 15.05(d)) called the
"DISTRIBUTED SECURITIES")), then, in each such case (unless the Company elects
to reserve such Distributed Securities for distribution to the Securityholders
upon the conversion of the Securities so that any such Securityholder converting
Securities will receive upon such conversion, in addition to the shares of
Common Stock to which such Securityholder is entitled, the amount and kind of
such Distributed Securities which such Securityholder would have received if
such Securityholder had converted its Securities into Common Stock immediately
prior to the Record Date for such distribution of the Securities) the Conversion
Rate shall be increased so that the same shall be equal to the rate determined
by multiplying the Conversion Rate in effect on the Record Date with respect to
such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price on
such Record Date; and
(ii) the denominator of which shall be the Current Market Price
on such Record Date less the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of the portion of
the Distributed Securities so distributed applicable to one share of Common
Stock,
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such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; PROVIDED that if the then fair market
value (as so determined) of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Securityholder shall
have the right to receive upon conversion the amount of Distributed Securities
such Securityholder would have received had such Securityholder converted each
Security on the Record Date. If such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.
If the Board of Directors determines the fair market value of any distribution
for purposes of this Section 15.05(d) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in
such market over the same period used in computing the Current Market Price on
the applicable Record Date.
Notwithstanding the foregoing, if the Distributed Securities distributed by the
Company to all holders of its Common Stock consist of capital stock of, or
similar equity interests in, a Subsidiary or other business unit, the Conversion
Rate shall be increased so that the same shall be equal to the rate determined
by multiplying the Conversion Rate in effect on the Record Date with respect to
such distribution by a fraction,
(i) the numerator of which shall be the sum of (A) the average
of the Closing Sale Prices of the Common Stock for the ten (10) Trading
Days commencing on and including the fifth Trading Day after the date on
which "ex-dividend trading" commences for such dividend or distribution on
the Nasdaq National Market or such other national or regional exchange or
market on which such securities are then listed or quoted (the "EX-DIVIDEND
DATE") plus (B) the fair market value of the Distributed Securities
distributed in respect of each share of Common Stock for which this Section
15.05(d) applies and shall equal the number of Distributed Securities
distributed in respect of each share of Common Stock multiplied by the
average of the closing sale prices of those Distributed Securities
distributed for the ten (10) Trading Days commencing on and including the
fifth Trading Day after the Ex-Dividend Date; and
(ii) the denominator of which shall be the average of the
Closing Sale Prices of the Common Stock for the ten (10) Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend
Date,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; PROVIDED that the Company may in lieu of
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the foregoing adjustment make adequate provision so that each Securityholder
shall have the right to receive upon conversion the amount of Distributed
Securities such Securityholder would have received had such Securityholder
converted each Security on the Record Date with respect to such distribution.
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 15.05 (and no adjustment to the Conversion Rate under
this Section 15.05 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 15.05(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 15.05 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and
warrants had not been issued.
No adjustment of the Conversion Rate shall be made pursuant to this Section
15.05(d) in respect of rights or warrants distributed or deemed distributed on
any Trigger Event to the extent that such rights or warrants are actually
distributed, or reserved by the Company for distribution to Securityholders upon
conversion by such Securityholders of Securities to Common Stock.
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For purposes of this Section 15.05(d) and Section 15.05(a) and (b), any
dividend or distribution to which this Section 15.05(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Rate adjustment required by this Section 15.05(d) with respect to
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Rate adjustment required by Sections
15.05(a) and 15.05(b) with respect to such dividend or distribution shall then
be made), except (A) the Record Date of such dividend or distribution shall be
substituted as "the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution", "the date fixed for the
determination of stockholders entitled to receive such rights or warrants" and
"the date fixed for such determination" within the meaning of Section 15.05(a)
and 15.05(b) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of Section 15.05(a).
(e) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding any cash distribution to the
extent the aggregate cash distributed per share of Common Stock in any twelve
month period does not exceed $0.01), then, in such case, the Conversion Rate
shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the close of
business on such record date by a fraction,
(i) the numerator of which shall be the Current Market Price on
such record date; and
(ii) the denominator of which shall be the Current Market Price
on such record date less the amount of cash so distributed (including only
the amount of cash distributed in excess of the threshold set forth above)
applicable to one share of Common Stock,
such adjustment to be effective immediately prior to the opening of business on
the day following the record date; PROVIDED that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Securityholder shall
have the right to receive upon conversion the amount of cash such Securityholder
would have received had such Securityholder converted each Security on the
record date. If such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such
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dividend or distribution had not been declared. If any adjustment is required to
be made as set forth in this Section 15.05(e), such adjustment shall be based
upon the amount by which such distribution exceeds the amount permitted to be
excluded pursuant hereto.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "EXPIRATION TIME") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) exceeds
the Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so accepted up to any
such maximum, being referred to as the "PURCHASED SHARES") and (y) the product
of the number of shares of Common Stock outstanding (less any Purchased Shares)
at the Expiration Time and the Closing Sale Price of a share of Common Stock on
the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) at
the Expiration Time multiplied by the Closing Sale Price of a share of
Common Stock on the Trading Day next succeeding the Expiration Time
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.
(g) In case of a tender or exchange offer made by a Person other than
the Company or any Subsidiary for an amount that increases the offeror's
ownership of Common Stock to more than twenty-five percent (25%) of the
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Common Stock outstanding and shall involve the payment by such Person of
consideration per share of Common Stock having a Fair Market Value (as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a resolution of the Board of Directors) that as of the last
time (the "OFFER EXPIRATION TIME") tenders or exchanges may be made pursuant to
such tender or exchange offer (as it shall have been amended) that exceeds the
Closing Sale Price of a share of Common Stock on the Trading Day next succeeding
the Offer Expiration Time, and in which, as of the Offer Expiration Time the
Board of Directors is not recommending rejection of the offer, the Conversion
Rate shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the Offer
Expiration Time by a fraction
(i) the numerator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Offer Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred
to as the "ACCEPTED PURCHASED SHARES") and (y) the product of the number of
shares of Common Stock outstanding (less any Accepted Purchased Shares) at
the Offer Expiration Time and the Closing Sale Price of a share of Common
Stock on the Trading Day next succeeding the Offer Expiration Time, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) at
the Offer Expiration Time multiplied by the Closing Sale Price of a share
of Common Stock on the Trading Day next succeeding the Offer Expiration
Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Offer Expiration Time. If such Person is obligated to
purchase shares pursuant to any such tender or exchange offer, but such Person
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made. Notwithstanding the foregoing, the adjustment described
in this Section 15.05(g) shall not be made if, as of the Offer Expiration Time,
the offering documents with respect to such offer disclose a plan or intention
to cause the Company to engage in any consolidation or merger with or into any
other Person or Persons, or sale, conveyance, transfer or lease of the property
and assets of the Company substantially as an entirety to any other Person or
Persons.
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(h) For purposes of this Section 15.05, the following terms shall have
the meaning indicated:
(i) "CURRENT MARKET PRICE" shall mean the average of the daily
Closing Sale Prices per share of Common Stock for the ten consecutive
Trading Days selected by the Company commencing no more than 30 Trading
Days before and ending not later than the earlier of such date of
determination and the day before the "EX" date with respect to the
issuance, distribution, subdivision or combination requiring such
computation immediately prior to the date in question. For purpose of this
paragraph, the term "EX" date, (1) when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades,
regular way, on the relevant exchange or in the relevant market from which
the Closing Sale Price was obtained without the right to receive such
issuance or distribution, and (2) when used with respect to any subdivision
or combination of shares of Common Stock, means the first date on which the
Common Stock trades, regular way, on such exchange or in such market after
the time at which such subdivision or combination becomes effective.
If another issuance, distribution, subdivision or combination to which
Section 15.05 applies occurs during the period applicable for calculating
"CURRENT MARKET PRICE" pursuant to the definition in the preceding
paragraph, "CURRENT MARKET PRICE" shall be calculated for such period in a
manner determined by the Board of Directors to reflect the impact of such
issuance, distribution, subdivision or combination on the Closing Sale
Price of the Common Stock during such period.
(ii) "FAIR MARKET VALUE" shall mean the amount which a willing
buyer would pay a willing seller in an arm's-length transaction.
(iii) "RECORD DATE" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common
Stock have the right to receive any cash, securities or other property or
in which the Common Stock (or other applicable security) is exchanged for
or converted into any combination of cash, securities or other property,
the date fixed for determination of stockholders entitled to receive such
cash, securities or other property (whether such date is fixed by the Board
of Directors or by statute, contract or otherwise).
(iv) "TRADING DAY" shall mean (x) if the applicable security is
quoted on the Nasdaq National Market, a day on which trades may be made
thereon or (y) if the applicable security is listed or admitted for trading
on the American Stock Exchange, New York Stock Exchange or another national
securities exchange, a day on which the American Stock
85
Exchange, New York Stock Exchange or another national securities exchange
is open for business or (z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday or Sunday or
a day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
(i) The Company may make such increases in the Conversion Rate,
in addition to those required by Section 15.05(a), (b), (c), (d), (e), (f) or
(g)as the Board of Directors considers to be advisable to avoid or diminish any
income tax to Securityholders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to time
may increase the Conversion Rate by any amount for any period of time if the
period is at least twenty (20) days, the increase is irrevocable during the
period and the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to holders of record of the
Securities a notice of the increase at least fifteen (15) days prior to the date
the increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.
(j) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
such rate; PROVIDED that any adjustments that by reason of this Section 15.05(j)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article 15 shall be made
by the Company and shall be made to the nearest cent or to the nearest one-ten
thousandth (1/10,000) of a share, as the case may be. No adjustment need be made
for rights to purchase Common Stock pursuant to a Company plan for reinvestment
of dividends or interest or for any issuance of Common Stock or convertible or
exchangeable securities or rights to purchase Common Stock or convertible or
exchangeable securities. To the extent the Securities become convertible into
cash, assets, property or securities (other than capital stock of the Company),
no adjustment need be made thereafter as to the cash, assets, property or such
securities. Interest will not accrue on any cash into which the Securities are
convertible.
(k) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other than
the Trustee an Officers' Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee shall have
86
received such Officers' Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to the holder of each Security at his
last address appearing on the Security Register provided for in Section 2.05 of
this Indenture, within twenty (20) days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.
(l) In any case in which this Section 15.05 provides that an adjustment
shall become effective immediately after (1) a record date or Record Date for an
event, (2) the date fixed for the determination of stockholders entitled to
receive a dividend or distribution pursuant to Section 15.05(a), (3) a date
fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 15.05(b), (4) the Expiration Time for any tender or
exchange offer pursuant to Section 15.05(f) or (5) the Offer Expiration Time for
any tender or exchange pursuant to Section 15.05(g), (each a "DETERMINATION
DATE"), the Company may elect to defer until the occurrence of the applicable
Adjustment Event (as hereinafter defined) (x) issuing to the holder of any
Security converted after such Determination Date and before the occurrence of
such Adjustment Event, the additional shares of Common Stock or other securities
issuable upon such conversion by reason of the adjustment required by such
Adjustment Event over and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (y) paying to such Securityholder
any amount in cash in lieu of any fraction pursuant to Section 15.03. For
purposes of this Section 15.05(l), the term "ADJUSTMENT EVENT" shall mean:
(i) in any case referred to in clause (1) hereof, the occurrence
of such event,
(ii) in any case referred to in clause (2) hereof, the date any
such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date of
expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the date a
sale or exchange of Common Stock pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
(v) in the case referred to in clause (5) hereof, the date a
sale or exchange of Common Stock pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
87
(m) For purposes of this Section 15.05, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
Section 15.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.
If any of the following events occur, namely (i) any reclassification or change
of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 15.05(c) applies), (ii) any consolidation, merger
or combination of the Company with another Person as a result of which holders
of Common Stock shall be entitled to receive stock, other securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, or (iii) any sale or conveyance of all or substantially all of the
properties and assets of the Company to any other Person as a result of which
holders of Common Stock shall be entitled to receive stock, other securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Company or the successor or purchasing Person, as
the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture) providing that each Security shall be
convertible into the kind and amount of shares of stock, other securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance by a holder of a
number of shares of Common Stock issuable upon conversion of such Securities
(assuming, for such purposes, a sufficient number of authorized shares of Common
Stock are available to convert all such Securities) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
assuming such holder of Common Stock did not exercise his rights of election, if
any, as to the kind or amount of stock, other securities or other property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance (PROVIDED that, if the
kind or amount of stock, other securities or other property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance is not the same for each share of Common Stock
in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purposes of this Section 15.06 the kind and
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
non-electing shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 15.
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The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Securityholder, at its address appearing on the
Security Register provided for in Section 2.05 of this Indenture, within twenty
(20) days after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.
If this Section 15.06 applies to any event or occurrence, Section 15.05
shall not apply.
Section 15.07. TAXES ON SHARES ISSUED. The issue of stock certificates on
conversions of Securities shall be made without charge to the converting
Securityholder for any documentary, stamp or similar issue or transfer tax in
respect of the issue thereof. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the holder of any
Security converted, and the Company shall not be required to issue or deliver
any such stock certificate unless and until the Person or Persons requesting the
issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
Section 15.08. RESERVATION OF SHARES, SHARES TO BE FULLY PAID; COMPLIANCE
WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK. The Company shall
provide, free from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares of Common Stock to provide for the
conversion of the Securities from time to time as such Securities are presented
for conversion.
Before taking any action which would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be reduced
below the then par value, if any, of the shares of Common Stock issuable upon
conversion of the Securities, the Company will take all corporate action which
may, in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Common Stock at such adjusted
Conversion Rate.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Securities will upon issue be fully paid and non-assessable
by the Company and free from all taxes, liens and charges with respect to the
issue thereof.
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The Company covenants that, if any shares of Common Stock to be provided
for the purpose of conversion of Securities hereunder require registration with
or approval of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company will in good
faith and as expeditiously as possible, to the extent then permitted by the
rules and interpretations of the Commission (or any successor thereto), endeavor
to secure such registration or approval, as the case may be.
The Company further covenants that, if at any time the Common Stock shall
be listed on the New York Stock Exchange or any other national securities
exchange or automated quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so
long as the Common Stock shall be so listed on such exchange or automated
quotation system, all Common Stock issuable upon conversion of the Security;
PROVIDED that if the rules of such exchange or automated quotation system permit
the Company to defer the listing of such Common Stock until the first conversion
of the Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Securities in accordance with the requirements of such
exchange or automated quotation system at such time.
Section 15.09. RESPONSIBILITY OF TRUSTEE. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any Securityholder to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
conversion agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and the Trustee and any other conversion agent make no
representations with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Security for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 15. Without limiting the generality of the
foregoing, neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 15.06 relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Securityholders upon the conversion of their Securities after any
event referred to in such Section 15.06 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 6.01, may accept as
conclusive evidence of the correctness of any such
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provisions, and shall be protected in relying upon, any Officers' Certificate
(which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto.
Section 15.10. NOTICE TO SECURITYHOLDERS PRIOR TO CERTAIN ACTIONS. In case:
(a) the Company shall declare a dividend (or any other distribution) on
its Common Stock that would require an adjustment in the Conversion Rate
pursuant to Section 15.05; or
(b) the Company shall authorize the granting to the holders of all or
substantially all of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of the
Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
Securityholder at his address appearing on the Security Register provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least ten (10) days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
Section 15.11. SHAREHOLDER RIGHTS PLANS. Each share of Common Stock issued
upon conversion of Securities pursuant to this Article 15 shall be entitled to
receive the appropriate number of rights, if any, and the certificates
representing
91
the Common Stock issued upon such conversion shall bear such legends, if any, in
each case as may be provided by the terms of any shareholder rights plan adopted
by the Company, as the same may be amended from time to time. If at the time of
conversion, however, the rights have separated from the shares of Common Stock
in accordance with the provisions of the applicable shareholder rights agreement
so that the Securityholders would not be entitled to receive any rights in
respect of Common Stock issuable upon conversion of the Securities, the
conversion rate will be adjusted as if the Company distributed to all holders of
Common Stock shares of the Company's capital stock, evidences of indebtedness or
assets (including securities but excluding rights or warrants to purchase Common
Stock issued to all holders of Common Stock, Common Stock issued as a dividend
or distribution on Common Stock and cash distributions), subject to readjustment
in the event of the expiration, termination or redemption of the rights.
Section 15.12. TRANSFER RESTRICTIONS. (a) Shares of Common Stock issued
upon conversion of Restricted Securities (all shares of Common Stock issued in
exchange therefor or substitution thereof) shall be represented by certificates
bearing the Restricted Securities Legend and shall be subject to the
restrictions or transfer set forth in the Restricted Securities Legend.
(b) Any Common Stock as to which such restrictions on transfer as to
which the conditions for removal of the Restricted Securities Legend have been
satisfied may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer
agent for the Common Stock, be exchanged for a new certificate or certificates
for a like number of shares of Common Stock, which shall not bear the Restricted
Securities Legend.
Article 16
SUBORDINATION OF SECURITIES
Section 16.01. AGREEMENT OF SUBORDINATION. The Company covenants and
agrees, and each holder of Securities issued hereunder by its acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 16, and each Person holding any Securities,
whether upon original issue or upon registration of transfer, assignment or
exchange thereof, accepts and agrees to be bound by such provisions.
The payment of the principal of, and Interest on all Securities (including,
but not limited to, the redemption price with respect to the Securities called
for redemption in accordance with Section 14.02 or submitted for repurchase in
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accordance with Section 14.05 or Section 14.06, as the case may be, as provided
in this Indenture or any other payment payable in respect of Securities pursuant
to the provisions of this Indenture) issued hereunder shall, to the extent and
in the manner hereinafter set forth, be subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article 16 shall prevent the occurrence of any default
or Event of Default hereunder or have any effect on the rights of the holders of
the Securities or the Trustee to accelerate the maturity of the Securities.
Section 16.02. NO PAYMENTS TO SECURITYHOLDERS UPON DEFAULTS RELATING TO
DESIGNATED SENIOR INDEBTEDNESS. (a) No payment shall be made with respect to the
principal of, or interest on the Securities (including, but not limited to, the
redemption price with respect to the Securities to be called for redemption in
accordance with Section 14.02 or submitted for repurchase in accordance with
Section 14.05 or 14.06, as the case may be, as provided in this Indenture or any
other payment payable in respect of Securities pursuant to the provisions of
this Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section 16.09, if:
(i) a default in the payment of principal (including any letter
of credit reimbursement obligations), premium, if any, interest, rent or
other obligations in respect of Designated Senior Indebtedness occurs and
is continuing (or, in the case of Designated Senior Indebtedness for which
there is a period of grace, in the event of such a default that continues
beyond the period of grace, if any, specified in the instrument or lease
evidencing such Designated Senior Indebtedness) (a "PAYMENT DEFAULT"); or
(ii) a default, other than a Payment Default, on any Designated
Senior Indebtedness occurs and is continuing that permits holders of such
Designated Senior Indebtedness to accelerate its maturity without further
notice (except such notice as may be required to effect such acceleration)
(or in the case of any lease that is Designated Senior Indebtedness, a
default occurs and is continuing that permits the lessor to either
terminate the lease or require the Company to make an irrevocable offer to
terminate the lease following an event of default thereunder) and the
Trustee receives a notice of the default (a "PAYMENT BLOCKAGE NOTICE") from
a holder of Designated Senior Indebtedness or a Representative of
Designated Senior Indebtedness (a "NON-PAYMENT DEFAULT").
If the Trustee receives any Payment Blockage Notice pursuant to clause (ii)
above, no subsequent Payment Blockage Notice shall be effective for purposes of
this Section 16.02 unless and until at least 365 days shall have
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elapsed since the initial effectiveness of the immediately prior Payment
Blockage Notice. No Non-Payment Default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice.
(b) The Company may and shall resume payments on and distributions in
respect of the Securities (including, but not limited to, the redemption price
with respect to the Securities to be redeemed):
(1) in the case of a Payment Default, the date upon which any
such Payment Default is cured or waived or ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (a) the
date upon which such default is cured or waived or ceases to exist
or (b) 179 days after the applicable Payment Blockage Notice is
received by the Trustee if the maturity of such Designated Senior
Indebtedness has not been accelerated and there is no Payment
Default (or in the case of any lease, 179 days after notice is
received if the Company and the Trustee have not received notice
that the lessor under such lease has exercised its right to
terminate the lease or require the Company to make an irrevocable
offer to terminate the lease following an event of default
thereunder and there is no Payment Default), unless this Article 16
otherwise prohibits the payment or distribution at the time of such
payment or distribution.
Section 16.03. PAYMENTS OVER TO SENIOR INDEBTEDNESS UPON DISSOLUTION. Upon
any payment by the Company, or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to creditors upon any
dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due or to become due upon all Senior Indebtedness
shall first be paid in full in cash or other payment satisfactory to the holders
of such Senior Indebtedness before any payment is made on account of the
principal of or Interest on the Securities (except payments made pursuant to
Article 11 from monies deposited with the Trustee pursuant thereto prior to
commencement of proceedings for such dissolution, winding up, liquidation or
reorganization), and upon any such dissolution or winding up or liquidation or
reorganization of the Company or bankruptcy, insolvency, receivership or other
similar proceeding, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the holders of the Securities or the Trustee would be entitled, except for
the provisions of this Article 16, shall (except as aforesaid) be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Senior
94
Indebtedness (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, or as otherwise required by law or a
court order) or their Representative or Representatives, as their respective
interests may appear, to the extent necessary to pay all Senior Indebtedness in
full, in cash or other payment satisfactory to the holders of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, before any payment or distribution is
made to the holders of the Securities or to the Trustee.
For purposes of this Article 16, the words, "CASH, PROPERTY OR SECURITIES"
shall not be deemed to include shares of Common Stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 16 with respect
to the Securities to the payment of all Senior Indebtedness which may at the
time be outstanding; PROVIDED that (i) the Senior Indebtedness is assumed by the
new corporation, if any, resulting from any reorganization or readjustment, and
(ii) the rights of the holders of Senior Indebtedness (other than leases which
are not assumed by the Company or the new corporation, as the case may be) are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article 10 shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 16.02 if such
other Person shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article 10.
Section 16.04. PRIOR PAYMENT OF SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES. If the maturity of the Securities has been accelerated because of an
Event of Default, no payment or distribution shall be made to the Trustee or any
holder of Securities in respect of the principal of or interest on the
Securities (including, but not limited to, the redemption price with respect to
the Securities called for redemption in accordance with Section 14.02 or the
repurchase price with respect to the Securities submitted for repurchase in
accordance with Section 14.05 or Section 14.06 as the case may be, as provided
in this Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section 16.09, until all Senior
Indebtedness has been paid in full in cash or other payment satisfactory to the
holders of Senior Indebtedness or such acceleration is rescinded in accordance
with the terms of this Indenture. If payment of the Securities is accelerated
because of an Event of Default, the Company or, at the Company's request and
expense, the Trustee shall promptly notify holders of Senior Indebtedness of the
acceleration.
95
Section 16.05. PAYMENT OVER TO SENIOR INDEBTEDNESS. If, notwithstanding
Sections 16.02, 16.03 or 16.04, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities
(including, without limitation, by way of setoff or otherwise), prohibited by
Section 16.02, 16.03 or 16.04 shall be received by the Trustee or the holders of
the Securities before all Senior Indebtedness is paid in full in cash or other
payment satisfactory to the holders of such Senior Indebtedness, or provision is
made for such payment thereof in accordance with its terms in cash or other
payment satisfactory to the holders of such Senior Indebtedness, to the extent
that the Trustee or any holder of the Securities has acquired notice, by
whatever means, that all Senior Indebtedness has not been paid in full, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of Senior Indebtedness or their
Representative or Representatives, as their respective interests may appear, as
calculated by the Company, for application to the payment of any Senior
Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in cash or other payment satisfactory to the holders of
such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
Nothing in Section 16.02, 16.03, 16.04 or this Section shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 6.06.
Section 16.06. SUBROGATION OF SECURITIES. Subject to the payment in full of
all Senior Indebtedness, the rights of the holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article 16 (equally
and ratably with the holders of all Indebtedness of the Company which by its
express terms is subordinated to other Indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is entitled
to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal and interest on the Securities shall be paid in full, and, for the
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article 16 and no payment pursuant to the provisions of this Article 16, to
or for the benefit of the holders of Senior Indebtedness by holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior Indebtedness and the holders of the Securities, be deemed to
be a payment by the Company to or on account of the Senior Indebtedness, and no
payments or distributions of cash, property or securities to or for the benefit
of the holders of the Securities pursuant to the subrogation provisions of this
Article 16, which would otherwise have been paid to the holders of Senior
Indebtedness, shall, as among the Company and its
96
creditors other than the holders of Securities, be deemed to be a payment by the
Company to or for the account of the Securities. It is understood that the
provisions of this Article 16 are intended solely for the purposes of defining
the relative rights of the holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Section 16.07. PAYMENT OBLIGATIONS UNCONDITIONAL. Nothing contained in this
Article 16 or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors other than the holders of
Senior Indebtedness, and the holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the holders of the
Securities the principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the holders of the Securities and
creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or, subject to Section
5.04, the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 16 of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
Section 16.08. AUTHORIZATION TO EFFECT SUBORDINATION. Each holder of a
Security by the holder's acceptance thereof authorizes and directs the Trustee
on the holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 16 and appoints the
Trustee to act as the holder's attorney-in-fact for any and all such purposes.
If the Trustee does not file a proper proof of claim or proof of debt in the
form required in any proceeding referred to in the third paragraph of Section
5.02 hereof at least thirty (30) days before the expiration of the time to file
such claim, the holders of any Senior Indebtedness or their Representatives are
hereby authorized to file an appropriate claim for and on behalf of the holders
of the Securities.
Section 16.09. NOTICE TO TRUSTEE. The Company shall give prompt written
notice in the form of an Officers' Certificate to a Responsible Officer of the
Trustee and to any paying agent of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee or any paying
agent in respect of the Securities pursuant to the provisions of this Article
16. Notwithstanding the provisions of this Article 16 or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the provisions of this
Article 16, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office from the Company
(in the form of an Officers' Certificate) or a Representative or a holder or
holders of Senior Indebtedness, and before the receipt of any such written
notice, the Trustee,
97
subject to the provisions of Section 6.01, shall be entitled in all respects to
assume that no such facts exist; PROVIDED that if on a date not less than one
Business Day prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment
of the principal of, or premium, if any, or interest on any Security) the
Trustee shall not have received, with respect to such monies, the notice
provided for in this Section 16.09, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
apply monies received to the purpose for which they were received, and shall not
be affected by any notice to the contrary that may be received by it on or after
such prior date.
Notwithstanding anything in this Article 16 to the contrary, nothing shall
prevent any payment by the Trustee to the Securityholders of monies deposited
with it pursuant to Section 11.01, if a Responsible Officer of the Trustee shall
not have received written notice at the Corporate Trust Office on or before one
Business Day prior to the date such payment is due that such payment is not
permitted under Section 16.01 or 16.02.
The Trustee, subject to the provisions of Section 6.01, shall be entitled
to rely on the delivery to it of a written notice by a Representative or a
person representing himself to be a holder of Senior Indebtedness (or a trustee
on behalf of such holder) to establish that such notice has been given by a
Representative or a holder of Senior Indebtedness or a trustee on behalf of any
such holder or holders. The Trustee shall not be required to make any payment or
distribution to or on behalf of a holder of Senior Indebtedness pursuant to this
Article 16 unless it has received satisfactory evidence as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 16.
Section 16.10. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. The Trustee, in
its individual capacity, shall be entitled to all the rights set forth in this
Article 16 in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Article
16 or elsewhere in this Indenture shall deprive the Trustee of any of its rights
as such holder.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 16, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Section 6.01, the Trustee shall not be liable to any holder of
Senior Indebtedness (i) for any failure to make any payments or distributions to
such holder or (ii) if it shall pay
98
over or deliver money to holders of Securities, the Company or any other Person
in compliance with this Article 16.
Section 16.11. NO IMPAIRMENT OF SUBORDINATION. No right of any present or
future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with. Senior
Indebtedness may be created, renewed or extended and holders of Senior
Indebtedness may exercise any rights under any instrument creating or evidencing
such Senior Indebtedness, including, without limitation, any waiver of default
thereunder, without any notice to or consent from the holders of the Securities
or the Trustee. No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of the Senior Indebtedness or
any terms or conditions of any instrument creating or evidencing such Senior
Indebtedness shall in any way alter or affect any of the provisions of this
Article 16 or the subordination of the Securities provided thereby.
Section 16.12. CERTAIN CONVERSIONS NOT DEEMED PAYMENT. For the purposes of
this Article 16 only, (1) the issuance and delivery of Junior Securities upon
conversion of Securities in accordance with Article 15 and (2) the payment,
issuance or delivery of cash, property or securities upon conversion of a
Security as a result of any transaction specified in Section 15.06 shall not be
deemed to constitute a payment or distribution on account of the principal of or
interest on Securities or on account of the purchase or other acquisition of
Securities. For the purposes of this Section 16.12, the term "JUNIOR SECURITIES"
means (a) Common Stock of the Company or (b) securities of the Company that are
subordinated in right of payment to all Senior Indebtedness that may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article 16. Nothing contained in this
Article 16 or elsewhere in this Indenture or in the Securities is intended to or
shall impair, as among the Company, its creditors (other than holders of Senior
Indebtedness) and the Securityholders, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article 15.
Section 16.13. SUBORDINATION APPLICABLE TO PAYING AGENTS. If at any time
any paying agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "TRUSTEE" as used in this Article 16
shall (unless the context otherwise requires) be construed as extending to and
including such paying agent within its meaning as fully for all intents and
purposes as if such paying agent were named in this Article 16 in addition to or
in
99
place of the Trustee; PROVIDED that the first paragraph of Section 16.09 shall
not apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as paying agent.
The Trustee shall not be responsible for the actions or inactions of any
other paying agents (including the Company if acting as its own paying agent)
and shall have no control of any funds held by such other paying agents.
Section 16.14. SENIOR INDEBTEDNESS ENTITLED TO RELY. The holders of Senior
Indebtedness (including, without limitation, Designated Senior Indebtedness)
shall have the right to rely upon the provisions of this Article 16, and no
amendment or modification of the provisions contained herein shall diminish the
rights of such holders unless such holders shall have agreed in writing thereto.
Section 16.15. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT. Upon any payment or distribution of assets of the Company referred to in
this Article 16, the Trustee and the Securityholders shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 16.
100
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed.
▇▇▇▇▇▇ CORPORATION
By: /s/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
BNY MIDWEST TRUST COMPANY,
as Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
[Include the following legend only for Global Securities]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY) 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
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[Include the following legend only for Securities that are Restricted
Securities]
[THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF
THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER
RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OF THIS SECURITY, OR
ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR
(D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(D) ABOVE), IT WILL FURNISH TO THE ISSUER OF, AND THE TRANSFER AGENT
FOR, THIS SECURITY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THE ISSUER MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (4) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE
EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE
OR UPON EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE
ISSUER AND THE TRANSFER AGENT FOR THIS SECURITY SHALL NOT REGISTER ANY TRANSFER
OF THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTION.]
A-2
▇▇▇▇▇▇ CORPORATION
3 1/4% CONVERTIBLE SUBORDINATED NOTE DUE 2013
CUSIP: 034425 AA 6
No. __ $
▇▇▇▇▇▇ Corporation, a corporation duly organized and validly existing under
the laws of the State of Delaware (herein called the "COMPANY", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to__________ or its
registered assigns, [the principal sum of _________ DOLLARS](1) [the principal
sum set forth on Schedule I hereto](2) on August 15, 2013 at the office or
agency of the Company maintained for that purpose in accordance with the terms
of the Indenture, in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts, and to pay interest, semiannually on February 15 and August 15 of each
year, commencing February 15, 2004, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum of 3 1/4%, from the
February 15 or August 15, as the case may be, next preceding the date of this
Security to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in which
case from the date of this Security, or unless no interest has been paid or duly
provided for on the Securities, in which case from August 8, 2003, until payment
of said principal sum has been made or duly provided for. Notwithstanding the
foregoing, if the date hereof is after any February 1 or August 1, as the case
may be, and before the following February 15 or August 15, this Security shall
bear interest from such February 15 or August 15; PROVIDED that if the Company
shall default in the payment of interest due on such February 15 or August 15,
then this Security shall bear interest from the next preceding February 15 or
August 15 to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for on such Security, from August 8,
2003. Except as otherwise provided in the Indenture, the Interest payable on the
Security pursuant to the Indenture on any February 15 or August 15 will be paid
to the Person entitled thereto as it appears in the Security Register at the
close of business on the record date, which shall be the February 1 or August 1
(whether or not a Business Day) next preceding such February 15 or August 15, as
provided in the Indenture; PROVIDED that any such interest not punctually paid
or duly provided for shall be payable as provided in the Indenture. The Company
shall pay interest (i) on any
----------
(1) Include for definitive Securities.
(2) Include for Global Security.
A-3
Securities in certificated form by check mailed to the address of the Person
entitled thereto as it appears in the Security Register (PROVIDED that the
Securityholders with an aggregate principal amount in excess of $2,000,000
shall, at the written election of such Securityholders, be paid by wire transfer
of immediately available funds) or (ii) on any Global Security by wire transfer
of immediately available funds to the account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal, and (to the
extent that payment of such interest is enforceable under applicable law)
Interest at the rate of 4 1/4% per annum.
Reference is made to the further provisions of this Security set forth on
the reverse hereof, including, without limitation, provisions subordinating the
payment of principal of and Interest on the Securities to the prior payment in
full of all Senior Indebtedness, as defined in the Indenture, and provisions
giving the Securityholder the right to convert this Security into Common Stock
of the Company on the terms and subject to the limitations referred to on the
reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
This Security shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of the State of New York, without regard to conflicts
of laws principles thereof.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
A-4
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed.
▇▇▇▇▇▇ CORPORATION
By:
------------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-named Indenture.
BNY MIDWEST TRUST COMPANY, as Trustee
By:
---------------------------------
Authorized Signatory
Dated:
A-5
REVERSE OF SECURITY
▇▇▇▇▇▇ CORPORATION
3 1/4% CONVERTIBLE SUBORDINATED NOTE DUE 2013
This Security is one of a duly authorized issue of securities of the
Company, designated as its 3 1/4% Convertible Subordinated Notes Due 2013
(herein called the "SECURITIES"), limited in aggregate principal amount to
$240,000,000, issued and to be issued under and pursuant to an Indenture dated
as of August 8, 2003 (herein called the "INDENTURE"), between the Company and
BNY Midwest Trust Company, as trustee (herein called the "TRUSTEE"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Securityholders of the
Securities.
In case an Event of Default shall have occurred and be continuing, the
principal of and accrued and unpaid Interest on all Securities may be declared
by either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities then outstanding, and upon said declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of at least a majority in aggregate principal
amount of the Securities at the time outstanding, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Securityholders; PROVIDED that no such
supplemental indenture shall (i) extend the fixed maturity of any Security, or
reduce the rate or extend the time of payment of Interest thereon, or reduce the
principal amount thereof or reduce any amount payable upon redemption or
repurchase thereof, or change the obligation of the Company to redeem any
Security on a redemption date in a manner adverse to the Securityholders, or
change the obligation of the Company to repurchase any Security at the option of
a Securityholder on a Repurchase Date in a manner adverse to the
Securityholders, or change the obligation of the Company to repurchase any
Security upon the happening of a Designated Event in a manner adverse to the
Securityholders, or impair the right of any Securityholder to institute suit for
the payment thereof, or make the principal thereof or Interest payable in any
coin or currency other than that provided in the Securities, or impair the right
to convert the Securities into Common Stock or reduce the number of shares of
Common Stock or any other property receivable by a Securityholder upon
conversion subject to the terms set forth in the Indenture, including Section
15.06 thereof, or modify the provisions of the Indenture with
A-6
respect to the subordination of Securities in a manner adverse to the
Securityholders in any material respect, in each case, without the consent of
the holder of each Security so affected, or modify any of the provisions of
Section 9.02 or Section 5.07 thereof, except to increase any such percentage or
to provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each Security so affected, or change
any obligation of the Company to maintain an office or agency in the places and
for the purposes set forth in Section 3.01 thereof, or reduce the quorum or
voting requirements set forth in Article 8 or (ii) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any
such supplemental indenture, without the consent of the holders of all
Securities then outstanding. Subject to the provisions of the Indenture, the
holders of a majority in aggregate principal amount of the Securities at the
time outstanding may on behalf of the holders of all of the Securities waive any
past default or Event of Default under the Indenture and its consequences except
(A) a default in the payment of Interest, or the principal of, any of the
Securities, (B) a failure by the Company to convert any Securities into Common
Stock of the Company, (C) a default in the payment of the redemption price
pursuant to Article 14 of the Indenture, (D) a default in the payment of the
repurchase price pursuant to Article 14 of the Indenture, or (E) a default in
respect of a covenant or provisions of the Indenture which under Article 9 of
the Indenture cannot be modified or amended without the consent of the holders
of each or all Securities then outstanding or affected thereby. Any such consent
or waiver by the Securityholder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Securityholder and upon
all future Securityholders and owners of this Security and any Securities which
may be issued in exchange or substitution hereof, irrespective of whether or not
any notation thereof is made upon this Security or such other Securities.
The indebtedness evidenced by the Securities is, to the extent and in the
manner provided in the Indenture, expressly subordinated and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the Company,
whether outstanding at the date of the Indenture or thereafter incurred, and
this Security is issued subject to the provisions of the Indenture with respect
to such subordination. Each holder of this Security, by accepting the same,
agrees to and shall be bound by such provisions and authorizes the Trustee on
its behalf to take such action as may be necessary or appropriate to effectuate
the subordination so provided and appoints the Trustee his attorney-in-fact for
such purpose.
Subject to the subordination provisions of the Indenture, no reference
herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and Interest on this Security at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
A-7
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
The Securities are issuable in fully registered form, without coupons, in
denominations of $1,000 principal amount and any multiple of $1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration or exchange of Securities, Securities may be exchanged for a
like aggregate principal amount of Securities of any other authorized
denominations.
At any time on or after August 20, 2008 and prior to maturity, the
Securities may be redeemed at the option of the Company, in whole or in part, in
multiples of $1,000 principal amount, upon mailing a notice of such redemption
not less than 30 days but not more than 60 days before the redemption date to
the Securityholders at their last registered addresses, all as provided in the
Indenture, at a redemption price equal to 100% of the principal amount of
Securities being redeemed and accrued and unpaid Interest, to, but excluding,
the redemption date; PROVIDED that if the redemption date falls after a record
date and on or prior the corresponding interest payment date, then the Interest
payable on such interest payment date shall be paid to the holders of record of
such Securities on the applicable record date instead of the holders
surrendering such Securities for redemption on such date.
The Company may not give notice of any redemption of the Securities if a
default in the payment of Interest on the Securities has occurred and is
continuing.
The Securities are not subject to redemption through the operation of any
sinking fund.
If a Designated Event occurs at any time prior to maturity of the
Securities, the Company shall become obligated to purchase, at the option of the
Securityholder, all or any portion of the Securities held by such
Securityholder, on a date specified by the Company not less than twenty (20) and
not more than thirty-five (35) business days after notice thereof at a
repurchase price of 100% of the principal amount, plus any accrued and unpaid
Interest, on such Security up to, but excluding, the Designated Event Repurchase
Date; PROVIDED that if the repurchase date falls after a record date and on or
prior the corresponding interest payment date, then the Interest payable on such
interest payment date shall be paid to the holders of record of such Securities
on the applicable record date instead of the holders surrendering such
Securities for repurchase on such date. The Securities will be subject to
repurchase in multiples of $1,000 principal amount. The Company shall mail to
all holders of record of the Securities a notice of the occurrence of a
Designated Event and of the repurchase right arising
A-8
as a result thereof on or before the 15th day after the occurrence of such
Designated Event. To exercise such right, a Securityholder shall deliver to the
Company such Security with the form entitled "DESIGNATED EVENT REPURCHASE
NOTICE" on the reverse thereof duly completed, together with the Security, duly
endorsed for transfer, at any time prior to the close of business on the
Designated Event Repurchase Date, and shall deliver the Securities to the
Trustee (or other paying agent appointed by the Company) as set forth in the
Indenture.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Securityholder, all or any
portion of the Securities held by such Securityholder on August 15, 2008 in
multiples of $1,000 principal amount at a repurchase price of 100% of the
principal amount, plus any accrued and unpaid Interest, on such Security up to
August 15, 2008. To exercise such right, a Securityholder shall deliver to the
Company such Security with the form entitled "REPURCHASE NOTICE" on the reverse
thereof duly completed, together with the Security, duly endorsed for transfer,
at any time from the opening of business on the date that is 20 Business Days
prior to August 15, 2008 until the close of business on August 15, 2008, and
shall deliver the Securities to the Trustee (or other paying agent appointed by
the Company) as set forth in the Indenture.
Securityholders have the right to withdraw any Designated Event Repurchase
Notice or the Repurchase Notice, as the case may be, by delivering to the
Trustee (or other paying agent appointed by the Company) a written notice of
withdrawal up to the close of business on the Designated Event Repurchase Date
or the Repurchase Date, as the case may be, all as provided in the Indenture.
If money or cash, sufficient to pay the repurchase price of all Securities
or portions thereof to be purchased as of the Designated Event Repurchase Date
or the Repurchase Date, as the case may be, is deposited with the Trustee (or
other paying agent appointed by the Company), on the Business Day following the
Designated Event Repurchase Date or the Repurchase Date, as the case may be,
interest will cease to accrue on such Securities (or portions thereof)
immediately after such Repurchase Date, and the holder thereof shall have no
other rights as such other than the right to receive the repurchase price upon
surrender of such Security.
Subject to the occurrence of certain events and in compliance with the
provisions of the Indenture, prior to the final maturity date of the Securities,
the Securityholder hereof has the right, at its option, to convert each $1,000
principal amount of the Securities into 73.0482 shares of the Company's Common
Stock (a conversion price of approximately $13.69 per share), as such shares
shall be constituted at the date of conversion and subject to adjustment from
time to time as provided in the Indenture, upon surrender of this Security with
the form entitled "CONVERSION NOTICE" on the reverse thereof duly completed, to
the
A-9
Company at the office or agency of the Company maintained for that purpose in
accordance with the terms of the Indenture, or at the option of such
Securityholder, the Corporate Trust Office, and, unless the shares issuable on
conversion are to be issued in the same name as this Security, duly endorsed by,
or accompanied by instruments of transfer in form satisfactory to the Company
duly executed by, the Securityholder or by his duly authorized attorney. The
Company will notify the Securityholder thereof of any event triggering the right
to convert the Securities as specified above in accordance with the Indenture.
No adjustment in respect of Interest on any Security converted or dividends
on any shares issued upon conversion of such Security will be made upon any
conversion except as set forth in the next sentence. If this Security (or
portion hereof) is surrendered for conversion during the period from the close
of business on any record date for the payment of interest to the close of
business on the Business Day preceding the immediately following interest
payment date, this Security (or portion hereof being converted) must be
accompanied by payment, in immediately available funds or other funds acceptable
to the Company, of an amount equal to the Interest otherwise payable on such
interest payment date on the principal amount being converted; PROVIDED that no
such payment shall be required (1) if the Company has specified a redemption
date that is after a record date and prior to the next interest payment date,
(2) if the Company has specified a repurchase date following a Designated Event
that is during such period or (3) to the extent of any overdue Interest, if any
overdue Interest exists at the time of conversion with respect to such Security.
No fractional shares will be issued upon any conversion, but an adjustment
and payment in cash will be made, as provided in the Indenture, in respect of
any fraction of a share which would otherwise be issuable upon the surrender of
any Security for conversion.
A Security in respect of which a Securityholder is exercising its right to
require repurchase upon a Designated Event or repurchase on a Repurchase Date
may be converted only if such Securityholder withdraws its election to exercise
either such right in accordance with the terms of the Indenture.
Any Securities called for redemption, unless surrendered for conversion by
the Securityholders thereof on or before the close of business on the Business
Day preceding the redemption date, may be deemed to be redeemed from the holders
of such Securities for an amount equal to the applicable redemption price,
together with accrued but unpaid Interest to, but excluding, the date fixed for
redemption, by one or more investment banks or other purchasers who may agree
with the Company (i) to purchase such Securities from the holders thereof and
convert them into shares of the Company's Common Stock and (ii) to make payment
for such Securities as aforesaid to the Trustee in trust for the
Securityholders.
A-10
Upon due presentment for registration of transfer of this Security at the
office or agency of the Company maintained for that purpose in accordance with
the terms of the Indenture, a new Security or Securities of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange thereof, subject to the limitations provided in the
Indenture, without charge except for any tax, assessment or other governmental
charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent, any
conversion agent and any Security Registrar may deem and treat the registered
holder hereof as the absolute owner of this Security (whether or not this
Security shall be overdue and notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or any Security Registrar)
for the purpose of receiving payment hereof, or on account hereof, for the
conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any paying agent nor other
conversion agent nor any Security Registrar shall be affected by any notice to
the contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Security.
No recourse for the payment of the principal of or Interest on this
Security, or for any claim based hereon or otherwise in respect hereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
the Indenture or any supplemental indenture or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Terms used in this Security and defined in the Indenture are used herein as
therein defined.
A-11
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -___ Custodian ___
TEN ENT - as tenant by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as
tenants in common ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
CONVERSION NOTICE
TO: ▇▇▇▇▇▇ CORPORATION
BNY MIDWEST TRUST COMPANY
The undersigned registered owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion thereof (which is
$1,000 or a multiple thereof) below designated, into shares of Common Stock of
▇▇▇▇▇▇ Corporation in accordance with the terms of the Indenture referred to in
this Security, and directs that the shares issuable and deliverable upon such
conversion, together with any check in payment for fractional shares and any
Securities representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. If shares or any portion of
this Security not converted are to be issued in the name of a person other than
the undersigned, the undersigned will provide the appropriate information below
and pay all transfer taxes payable with respect thereto. Any amount required to
be paid by the undersigned on account of interest, accompanies this Security.
Dated:
----------------------
------------------------------
------------------------------
Signature(s)
Signature(s) must be guaranteed by an
"ELIGIBLE GUARANTOR INSTITUTION"
meeting the requirements of the
Security Registrar, which requirements
include membership or participation in
the Security Transfer Agent Medallion
Program ("STAMP") or such other
"SIGNATURE GUARANTEE PROGRAM" as may be
determined by the Security Registrar in
addition to, or in substitution for,
STAMP, all in accordance with the
Securities Exchange Act of 1934, as
amended.
------------------------------
Signature Guarantee
Fill in the registration of shares of Common Stock if to be issued, and
Securities if to be delivered, other than to and in the name of the registered
holder:
--------------------------
(Name)
------------------------------
(Street Address)
------------------------------
(City, State and Zip Code)
------------------------------
Please print name and address
Principal amount to be converted
(if less than all):
$-----------------------------
Social Security or Other Taxpayer
Identification Number:
------------------------------
DESIGNATED EVENT REPURCHASE NOTICE
TO: ▇▇▇▇▇▇ CORPORATION
BNY MIDWEST TRUST COMPANY
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from ▇▇▇▇▇▇ Corporation (the "COMPANY")
regarding the right of Securityholders to elect to require the Company to
repurchase the Securities upon the occurrence of a Designated Event with respect
to the Company and requests and instructs the Company to repurchase this
Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms and conditions of the
Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued and unpaid Interest to, but excluding, the
Designated Event Repurchase Date, to the registered Securityholder hereof.
Capitalized terms used herein but not defined shall have the meanings ascribed
to such terms in the Indenture.
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond with
the name as written upon the face of the Security in every particular without
alteration or enlargement or any change whatever.
Security Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
REPURCHASE NOTICE
TO: ▇▇▇▇▇▇ CORPORATION
BNY MIDWEST TRUST COMPANY
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from ▇▇▇▇▇▇ Corporation (the "COMPANY")
regarding the right of Securityholders to elect to require the Company to
repurchase the Securities and requests and instructs the Company to repurchase
this Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms and conditions of the
Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued and unpaid Interest to, but excluding, the
Repurchase Date, to the registered holder hereof. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.
Dated:
Signature(s):
NOTICE: The above signatures of the Securityholder(s) hereof must
correspond with the name as written upon the face of the Security in every
particular without alteration or enlargement or any change whatever.
Security Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
ASSIGNMENT
For value received ______________________________hereby sell(s) assign(s)
and transfer(s) unto ___________________________________ (Please insert social
security or other Taxpayer Identification Number of assignee) the within
Security, and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Security prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Security is being transferred:
/ / To ▇▇▇▇▇▇ Corporation or a subsidiary thereof; or
/ / To a "QUALIFIED INSTITUTIONAL BUYER" in compliance with Rule
144A under the Securities Act of 1933, as amended; or
/ / Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended; or
/ / Pursuant to a Registration Statement which has been declared effective
under the Securities Act of 1933, as amended, and which continues to
be effective at the time of transfer;
and unless the Security has been transferred to ▇▇▇▇▇▇ Corporation or a
subsidiary thereof, the undersigned confirms that such Security is not being
transferred to an "AFFILIATE" of the Company as defined in Rule 144 under the
Securities Act of 1933, as amended.
UNLESS ONE OF THE BOXES IS CHECKED, THE TRUSTEE WILL REFUSE TO REGISTER ANY
OF THE SECURITIES EVIDENCED BY THIS CERTIFICATE IN THE NAME OF ANY PERSON OTHER
THAN THE REGISTERED HOLDER THEREOF.
Dated:
----------------------
------------------------------
------------------------------
Signature(s)
Signature(s) must be guaranteed
by an "ELIGIBLE GUARANTOR
INSTITUTION" meeting the
requirements of the Security
Registrar, which requirements
include membership or
participation in the Security
Transfer Agent Medallion Program
("STAMP") or such other
"SIGNATURE GUARANTEE PROGRAM" as
may be determined by the Security
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
------------------------------
Signature Guarantee
NOTICE: The signature on the Conversion Notice, the Designated Event Repurchase
Notice, the Repurchase Notice or the Assignment must correspond with the name as
written upon the face of the Security in every particular without alteration or
enlargement or any change whatever.
Schedule I(3)
▇▇▇▇▇▇ CORPORATION
3 1/4% Convertible Subordinated Security Due 2013
No. _______
Notation Explaining Principal Authorized Signature
Date Principal Amount Amount Recorded of Trustee or
Custodian
----------
(3) Include for Global Securities only.