EXHIBIT 4.1
EXECUTION COPY
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CHURCH & ▇▇▇▇▇▇ CO., INC.,
ISSUER,
TO
THE BANK OF NEW YORK,
TRUSTEE
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INDENTURE
Dated as of August 11, 2003
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5.25% Convertible Senior Debentures Due August 15, 2033
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...............................................1
SECTION 1.1 Definitions...............................................................................1
SECTION 1.2 Compliance Certificates and Opinions.....................................................10
SECTION 1.3 Form of Documents Delivered to the Trustee...............................................10
SECTION 1.4 Acts of Holders..........................................................................11
SECTION 1.5 Notices, Etc. to the Trustee and Company.................................................13
SECTION 1.6 Notice to Holders; Waiver................................................................13
SECTION 1.7 Effect of Headings and Table of Contents.................................................14
SECTION 1.8 Successors and Assigns...................................................................14
SECTION 1.9 Separability Clause......................................................................14
SECTION 1.10 Benefits of Indenture....................................................................14
SECTION 1.11 Governing Law............................................................................14
SECTION 1.12 Legal Holidays...........................................................................14
SECTION 1.13 Conflict with Trust Indenture Act........................................................15
ARTICLE II SECURITY FORMS......................................................................................15
SECTION 2.1 Forms Generally..........................................................................15
SECTION 2.2 Form of Security.........................................................................16
ARTICLE III THE SECURITIES.....................................................................................33
SECTION 3.1 Title and Terms..........................................................................33
SECTION 3.2 Denominations............................................................................33
SECTION 3.3 Execution, Authentication, Delivery and Dating...........................................34
SECTION 3.4 Global Securities; Non-Global Securities; Book-entry Provisions..........................34
SECTION 3.5 Registration; Registration of Transfer and Exchange; Restrictions on Transfer............36
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Securities..........................................39
SECTION 3.7 Payment of Interest; Interest Rights Preserved...........................................40
SECTION 3.8 Persons Deemed Owners....................................................................41
SECTION 3.9 Cancellation.............................................................................42
SECTION 3.10 Computation of Interest..................................................................42
SECTION 3.11 CUSIP Numbers............................................................................42
ARTICLE IV SATISFACTION AND DISCHARGE..........................................................................42
SECTION 4.1 Satisfaction and Discharge of Indenture..................................................42
SECTION 4.2 Application of Trust Money...............................................................43
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ARTICLE V REMEDIES.............................................................................................44
SECTION 5.1 Events of Default........................................................................44
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.......................................46
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee..........................46
SECTION 5.4 Trustee May File Proofs of Claim.........................................................47
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities..............................48
SECTION 5.6 Application of Money Collected...........................................................48
SECTION 5.7 Limitation on Suits......................................................................49
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest and to
Convert...............................................................................49
SECTION 5.9 Restoration of Rights and Remedies.......................................................49
SECTION 5.10 Rights and Remedies Cumulative...........................................................50
SECTION 5.11 Delay or Omission Not Waiver.............................................................50
SECTION 5.12 Control by Holders.......................................................................50
SECTION 5.13 Waiver of Past Defaults..................................................................50
SECTION 5.14 Undertaking for Costs....................................................................51
SECTION 5.15 Waiver of Stay, Usury or Extension Laws..................................................51
ARTICLE VI THE TRUSTEE.........................................................................................51
SECTION 6.1 Certain Duties and Responsibilities......................................................51
SECTION 6.2 Notice of Defaults.......................................................................52
SECTION 6.3 Certain Rights of Trustee................................................................53
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities...................................54
SECTION 6.5 May Hold Securities, Act as Trustee Under Other Indentures...............................55
SECTION 6.6 Money Held in Trust......................................................................55
SECTION 6.7 Compensation and Reimbursement...........................................................55
SECTION 6.8 Corporate Trustee Required; Eligibility..................................................56
SECTION 6.9 Resignation and Removal; Appointment of Successor........................................56
SECTION 6.10 Acceptance of Appointment by Successor...................................................57
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business..............................58
SECTION 6.12 Authenticating Agents....................................................................58
SECTION 6.13 Disqualification; Conflicting Interests..................................................60
SECTION 6.14 Preferential Collection of Claims Against Company........................................60
ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...............................................60
SECTION 7.1 Company May Consolidate, Etc. Only on Certain Terms......................................60
SECTION 7.2 Successor Substituted....................................................................61
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TABLE OF CONTENTS
(continued)
ARTICLE VIII SUPPLEMENTAL INDENTURES...........................................................................61
SECTION 8.1 Supplemental Indentures Without Consent of Holders.......................................61
SECTION 8.2 Supplemental Indentures with Consent of Holders..........................................63
SECTION 8.3 Execution of Supplemental Indentures.....................................................64
SECTION 8.4 Effect of Supplemental Indentures........................................................64
SECTION 8.5 Reference in Securities to Supplemental Indentures.......................................64
SECTION 8.6 Notice of Supplemental Indentures........................................................64
ARTICLE IX MEETINGS OF HOLDERS OF SECURITIES...................................................................65
SECTION 9.1 Purposes for Which Meetings May Be Called................................................65
SECTION 9.2 Call, Notice and Place of Meetings.......................................................65
SECTION 9.3 Persons Entitled to Vote at Meetings.....................................................65
SECTION 9.4 Quorum; Action...........................................................................65
SECTION 9.5 Determination of Voting Rights; Conduct and Adjournment of Meetings......................66
SECTION 9.6 Counting Votes and Recording Action of Meetings..........................................67
ARTICLE X COVENANTS 67
SECTION 10.1 Payment of Principal, Premium and Interest...............................................67
SECTION 10.2 Maintenance of Offices or Agencies.......................................................68
SECTION 10.3 Money for Security Payments to Be Held in Trust..........................................68
SECTION 10.4 Existence................................................................................69
SECTION 10.5 Statement by Officer as to Default.......................................................70
SECTION 10.6 Delivery of Certain Information..........................................................70
SECTION 10.7 Registration Rights......................................................................70
SECTION 10.8 Waiver of Certain Covenants..............................................................71
ARTICLE XI REDEMPTION OF SECURITIES............................................................................72
SECTION 11.1 Right of Redemption......................................................................72
SECTION 11.2 Applicability of Article.................................................................72
SECTION 11.3 Election to Redeem; Notice to Trustee....................................................72
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed........................................72
SECTION 11.5 Notice of Redemption.....................................................................73
SECTION 11.6 Deposit of Redemption Price..............................................................73
SECTION 11.7 Securities Payable on Redemption Date....................................................74
SECTION 11.8 Conversion Arrangement on Call for Redemption............................................74
ARTICLE XII CONVERSION OF SECURITIES...........................................................................75
SECTION 12.1 Conversion Privilege.....................................................................75
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TABLE OF CONTENTS
(continued)
SECTION 12.2 Conversion Rate..........................................................................78
SECTION 12.3 Conversion Procedure.....................................................................78
SECTION 12.4 Fractional Shares........................................................................80
SECTION 12.5 Taxes on Conversion......................................................................80
SECTION 12.6 Adjustment of Conversion Rate............................................................81
SECTION 12.7 Notice of Adjustments of Conversion Rate.................................................86
SECTION 12.8 Notice of Certain Corporate Action.......................................................86
SECTION 12.9 Company to Reserve Common Stock..........................................................87
SECTION 12.10 Covenant as to Common Stock..............................................................87
SECTION 12.11 Cancellation of Converted Securities.....................................................87
SECTION 12.12 Provision in Case of Consolidation, Merger or Sale of Assets.............................87
SECTION 12.13 Responsibility of Trustee for Conversion Provisions......................................88
ARTICLE XIII REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON CERTAIN DATES OR UPON A CHANGE
IN CONTROL...............................................................................89
SECTION 13.1 Purchase of Securities by the Company at Option of the Holder............................89
SECTION 13.2 Repurchase Notice by the Company.........................................................89
SECTION 13.3 Repurchase Deliveries by Holder..........................................................91
SECTION 13.4 Payment of Repurchase Price..............................................................92
SECTION 13.5 Purchase of Securities at the Option of the Holder upon a Change in Control..............94
SECTION 13.6 Change in Control Repurchase Notice by the Company.......................................95
SECTION 13.7 Change in Control Repurchase Deliveries by the Holder....................................97
SECTION 13.8 Payment of Change in Control Repurchase Price............................................98
SECTION 13.9 Partial Purchases.......................................................................100
SECTION 13.10 Effect of Repurchase Notice or Change in Control Repurchase Notice......................100
SECTION 13.11 Withdrawal of a Repurchase Notice or Change in Control Repurchase Notice................101
SECTION 13.12 Deposit of Repurchase Price or Change in Control Repurchase Price.......................101
SECTION 13.13 Covenant to Comply With Securities Laws Upon the Purchase of Securities.................102
SECTION 13.14 Repayment to the Company................................................................102
ARTICLE XIV HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE...................................102
SECTION 14.1 Company to Furnish Trustee Names and Addresses of Holders...............................102
SECTION 14.2 Preservation of Information.............................................................103
SECTION 14.3 Reports by Trustee......................................................................103
SECTION 14.4 Reports by Company......................................................................103
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TABLE OF CONTENTS
(continued)
ARTICLE XV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS....................................104
SECTION 15.1 Indenture and Securities Solely Corporate Obligations...................................104
CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
--------------- ---------
310(a)(1)............................................................6.8
(a)(2)...........................................................6.8
(a)(3)...........................................................n/a
(a)(4)...........................................................n/a
(a)(5)...........................................................6.8
(b).............................................................6.13
(c)..............................................................n/a
311(a)..............................................................6.14
(b).............................................................6.14
(c)..............................................................n/a
312(a)..............................................................14.1
(b).............................................................14.2
(c).............................................................14.2
313(a)..............................................................14.3
(b)(1)..........................................................14.3
(b)(2)..........................................................14.3
(c).............................................................14.3
(d).............................................................14.4
314(a)..............................................................14.4
(b)..............................................................n/a
(c)(1)...........................................................1.2
(c)(2)...........................................................1.2
(c)(3)...........................................................n/a
(d)..............................................................n/a
(e)..............................................................1.2
(f)..............................................................n/a
315(a)...............................................................6.1
(b)........................................................6.2, 10.8
(c)..............................................................6.1
(d)..............................................................6.1
(e).............................................................5.14
316(a)(last sentence)................................................1.1
(a)(1)(A).......................................................5.12
(a)(1)(B).......................................................5.13
(a)(2)...........................................................n/a
(b)..............................................................5.8
(c)..............................................................1.4
317(a)(1)............................................................5.3
(a)(2)...........................................................5.4
(b)........................................................4.2, 10.3
318(a)..............................................................1.13
(b)..............................................................n/a
(c).............................................................1.13
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"n/a" means not applicable.
*This Cross-Reference Table shall not, for any purpose, be deemed to be a part
of the Indenture.
INDENTURE, dated as of August 11, 2003, between CHURCH & ▇▇▇▇▇▇ CO.,
INC., a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee hereunder (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 5.25%
Convertible Senior Debentures due August 15, 2033 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when the Securities are
executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid agreement of the
Company, in accordance with their and its terms, have been done. Further, all
things necessary to duly authorize the issuance of the Common Stock of the
Company issuable upon the conversion of the Securities, and to duly reserve for
issuance the number of shares of Common Stock issuable upon such conversion,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such
computation; and
(3) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"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 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.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of DTC or any successor Depositary, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized pursuant to Section
6.12 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, shall have been
delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, Place
of Conversion or any other place, as the case may be, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in such Place of Payment, Place of Conversion or other place, as
the case may be, are authorized or obligated by law or executive order to close.
"Change in Control" has the meaning specified in Section 13.5.
"Change in Control Notice" has the meaning specified in Section 13.6.
"Change in Control Notice Date" has the meaning specified in Section
13.6.
"Change in Control Repurchase Date" has the meaning specified in
Section 13.5.
"Change in Control Repurchase Notice" has the meaning specified in
Section 13.7.
"Change in Control Repurchase Price" has the meaning specified in
Section 13.5.
"Code" has the meaning specified in Section 2.l.
"combined tender and cash amount" has the meaning specified in Section
12.6.
"Commission" means the United States 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 the Common Stock, par value $1.00 per share, of
the Company authorized at the date of this Indenture as originally executed or
as such stock may be constituted from time to time. Subject to the provisions of
Section 12.12, shares issuable on conversion of Securities shall include only
shares of Common Stock or shares of any class or classes of common stock
resulting from any reclassification or reclassifications thereof; provided,
however, that if at any time there shall be more than one such resulting class,
the shares so issuable on conversion of Securities shall include shares of all
such classes, and the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications and, provided
further, that all references to "Common Stock" payable in connection with the
purchase of Securities in accordance with Article XIII or payable in connection
with the redemption of the Securities in accordance with Article XI shall be
deemed to include common stock of any entity, including the parent company of
any such entity, that the Company consolidates or merges with or into, that is
merged into the Company, or to which the Company sells or transfers all or
substantially all of its assets.
"common stock" includes any stock of any class of capital stock or
common equity 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 issuer thereof, which has unrestricted voting rights and which
is not subject to redemption by the issuer thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by an Officer of the Company and delivered to
the Trustee.
"Constituent Person" has the meaning specified in Section 12.12.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article XII. The Company has initially
appointed the Trustee as its Conversion Agent pursuant to Section 10.2 hereof.
"Conversion Date" has the meaning specified in Section 12.3.
"Conversion Period" has the meaning specified in Section 12.1.
"Conversion Price" has the meaning specified in Section 12.1.
"Conversion Rate" has the meaning specified in Section 12.2.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time the trust created by this Indenture shall be principally
administered (which at the date of this Indenture is located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration.
"Current Market Price" at any Time of Determination, means the average
of the daily Sale Prices per share of Common Stock for the five consecutive
Trading Days selected by the Company commencing no more than 30 Trading Days
before and ending at such Time of Determination. If another issuance,
distribution, subdivision or combination causing an adjustment to the Conversion
Rate occurs during the period applicable for calculating the Current Market
Price, then the 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 Sale Price of Common
Stock during such period.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to any Securities (including any
Global Securities), a clearing agency that is registered as such under the
Exchange Act and is designated by the Company to act as Depositary for such
Securities (or any successor securities clearing agency so registered).
"Documents" has the meaning specified in Section 6.3.
"Dollar" or "U.S. $" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"DTC" means The Depository Trust Company, a New York corporation.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities Exchange Act of 1934
(or any successor statute), as amended from time to time.
"Expiration Time" has the meaning specified in Section 12.6.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Holder" means the Person in whose name the Security is registered in
the Security Register.
"Indenture" means this Indenture as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this Indenture and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Indenture and any such supplemental indenture,
respectively.
"Initial Purchasers" means ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇.▇. ▇▇▇▇▇▇ Securities
Inc., PNC Capital Markets, Inc., Fleet Securities, Inc., NatCity Investments,
Inc. and Scotia (USA) Capital Inc.
"Instrument" has the meaning specified in Section 5.1.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Issue Date" means August 11, 2003.
"Liquidated Damages" has the meaning specified in Section 10.7.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase rights set forth
in Article XIII, or otherwise.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Non-electing Share" has the meaning specified in Section 12.12.
"Non-Global Securities" means Securities that are not Global
Securities.
"Notice of Default" has the meaning specified in Section 5.1.
"Officer" means the Chairman of the Board of Directors, any Vice
Chairman of the Board of Directors, the President, any Vice President or the
Treasurer of the Company.
"Officer's Certificate" means a certificate signed by an Officer and
delivered to the Trustee. The Officer signing an Officer's Certificate given
pursuant to Section 10.5 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company and who shall be reasonably acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for which money in the necessary amount to pay,
repurchase or redeem such Securities has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities, provided that if
such Securities are to be repurchased or redeemed, notice of such
repurchase or redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) Securities converted into Common Stock pursuant to Article XII;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present at a meeting of Holders
for quorum purposes or have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
determination as to the presence of a quorum or upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee has been notified in writing to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor, and the Trustee shall be protected in relying upon an Officer's
Certificate to such effect.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company and, except
as otherwise specifically set forth herein, such term shall include the Company
if it shall act as its own Paying Agent. The Company has initially appointed the
Trustee as its Paying Agent pursuant to Section 10.2 hereof.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Conversion" has the meaning specified in Section 3.1.
"Place of Payment" has the meaning specified in Section 3.1.
"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 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Value Conversion" has the meaning specified in Section 12.1.
"Purchase Agreement" means the Purchase Agreement, dated as of August
5, 2003, between the Company and the Initial Purchasers, as such agreement may
be amended from time to time.
"Purchased Shares" has the meaning specified in Section 12.6.
"Purchasers" has the meaning specified in Section 11.8.
"Qualified Institutional Buyer" shall mean a "qualified institutional
buyer" as defined in Rule 144A.
"Record Date" means any Regular Record Date or Special Record Date.
"Record Date Period" means the period from the close of business of any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrable Securities" has the meaning specified in Section 10.7.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of August 11, 2003, between the Company and the Initial
Purchasers, as such agreement may be amended from time to time in accordance
with its terms.
"Regular Record Date" for interest payable in respect of any Security
on any Interest Payment Date means the close of business on February 1 or August
1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Repurchase Date" has the meaning specified in Section 13.1
"Repurchase Notice" has the meaning specified in Section 13.3.
"Repurchase Price" has the meaning specified in Section 13.1.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Office with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge and familiarity with the particular subject.
"Restricted Global Security" has the meaning specified in Section 2.1.
"Restricted Securities" means all Securities required pursuant to
Section 3.5(3) to bear any Restricted Securities Legend. Such term includes the
Restricted Global Security.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms of the legends required in the form of Security set
forth in Section 2.2 to be placed upon each Restricted Security.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section 10.6.
"S&P" means Standard & Poor's Ratings Service, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, and its successors.
"Sale Price" means, with respect to the Common Stock, for any day, (i)
the last reported per share sale price (or, if no last sale price is reported,
the average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date as reported
in composite transactions for the principal U.S. securities exchange on which
the Common Stock then is listed, or if the Common Stock is not listed on a U.S.
national or regional exchange, as reported on the Nasdaq National Market, or if
the Common Stock is not quoted on the Nasdaq National Market, as reported on the
principal other market on which the Common Stock is then traded. In the absence
of such quotations, the Company's Board of Directors will make a good faith
determination of the Sale Price.
"Securities" has the meaning ascribed to it in the first paragraph
under the caption "Recitals of the Company."
"Securities Act" means the United States Securities Act of 1933 (or any
successor statute), as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Shelf Registration Statement" means a shelf registration statement
with respect to resales of Registrable Securities to be filed with the
Commission pursuant to the Registration Rights Agreement.
"Significant Subsidiary" means, with respect to any Person, a
Subsidiary of such Person that would constitute a "significant subsidiary" as
such term is defined under Rule 1-02 of Regulation S-X under the Securities Act
and the Exchange Act.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Company pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock or
other similar interests in the corporation which ordinarily has or have voting
power for the election of directors, or persons performing similar functions,
whether at all times or only so long as no senior class of stock or other
interests has or have such voting power by reason of any contingency.
"Successor Security" of any particular Security means every Security
issued after, and 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 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Surrender Certificate" means a certificate substantially in the form
set forth in Annex B.
"Time of Determination" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, and (ii) the day ("Ex-Dividend Time")
immediately prior to the commencement of "ex" date. 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 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.
"Trading Day" means (a) if the applicable security is listed or
admitted for trading on the New York Stock Exchange, a day on which the New York
Stock Exchange is open for business; (b) if the applicable security is quoted on
the Nasdaq National Market, a day on which trades may be made on the Nasdaq
National Market; or (c) if the applicable security is not so listed or admitted
for trading on the New York Stock Exchange and not so quoted on the Nasdaq
National Market, a day on which the principal U.S. national or regional exchange
on which the applicable security is listed or admitted for trading is open for
business.
"Trading Price" has the meaning specified in Section 12.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, and the
rules and regulations thereunder, as in force at the date as of which this
Indenture was executed, provided, however, that in the event the Trust Indenture
Act of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939, and the
rules and regulations thereunder, as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction (its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands).
"Unrestricted Securities Certificate" means a certificate substantially
in the form set forth in Annex A.
SECTION 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officer's 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, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each individual, such
condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to the Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any Officer's Certificate or opinion of an Officer of the Company may
be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or
certificate or representations by, counsel, unless such Officer knows, or in the
exercise of reasonable care should know, that the certificate or Opinion of
Counsel or representations with respect to the matters upon which such
certificate or Opinion of Counsel is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an Officer or Officers
or any other Person stating that the information with respect to such factual
matters is in the possession of the Company or such other Person, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given
or taken by Holders may be embodied in and evidenced by (i) one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent or proxy duly appointed in writing by such Holders or (ii)
the record of Holders voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders duly called
and held in accordance with the provisions of Article IX. Such action shall
become effective when such instrument or instruments or record is delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Upon written request, the Trustee shall promptly deliver to the Company
copies of all such instruments and records delivered to the Trustee. Such
instrument or instruments and records (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the Company
if made in the manner provided in this Section. The record of any meeting
of Holders shall be proved in the manner provided in Section 9.6.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(3) The principal amount and serial number of any Security held by any
Person, and the date of his holding the same, shall be proved by the
Security Register.
(4) The fact and date of execution of any such instrument or writing
and the authority of the Person executing the same may also be proved in
any other manner which the Trustee deems sufficient; and the Trustee may in
any instance require further proof with respect to any of the matters
referred to in this Section 1.4.
(5) The Company may set any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted by this Indenture to be given
or taken by Holders. Promptly and in any case not later than ten days after
setting a record date, the Company shall notify the Trustee and the Holders
of such record date. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action,
or, in the case of any such vote, prior to such vote, the record date for
any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section
14.1) prior to such first solicitation or vote, as the case may be. With
regard to any record date, the Holders on such date (or their duly
appointed agents or proxies), and only such Persons, shall be entitled to
give or take, or vote on, the relevant action, whether or not such Holders
remain Holders after such record date. Notwithstanding the foregoing, the
Company shall not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any notice, declaration or
direction referred to in the next paragraph.
Upon receipt by the Trustee from any Holder of (i) any notice of default or
breach referred to in Section 5.1(4), if such default or breach has occurred and
is continuing and the Trustee shall not have given such a notice to the Company,
(ii) any declaration of acceleration referred to in Section 5.2, if an Event of
Default has occurred and is continuing and the Trustee shall not have given such
a declaration to the Company, or (iii) any direction referred to in Section
5.12, if the Trustee shall not have taken the action specified in such
direction, then, with respect to clauses (ii) and (iii), a record date shall
automatically and without any action by the Company or the Trustee be set for
determining the Holders entitled to join in such declaration or direction, which
record date shall be the close of business on the tenth day (or, if such day is
not a Business Day, the first Business Day thereafter) following the day on
which the Trustee receives such declaration or direction, and, with respect to
clause (i), the Trustee may set any day as a record date for the purpose of
determining the Holders entitled to join in such notice of default. Promptly
after such receipt by the Trustee of any such declaration or direction referred
to in clause (ii) or (iii), and promptly after setting any record date with
respect to clause (i), and as soon as practicable thereafter, the Trustee shall
notify the Company and the Holders of any such record date so fixed. The Holders
on such record date (or their duly appointed agents or proxies), and only such
Persons, shall be entitled to join in such notice, declaration or direction,
whether or not such Holders remain Holders after such record date; provided
that, unless such notice, declaration or direction shall have become effective
by virtue of Holders of the requisite principal amount of Securities on such
record date (or their duly appointed agents or proxies) having joined therein on
or prior to the 90th day after such record date, such notice, declaration or
direction shall automatically and without any action by any Person be canceled
and of no further effect. Nothing in this paragraph shall be construed to
prevent a Holder (or a duly appointed agent or proxy thereof) from giving,
before or after the expiration of such 90-day period, a notice, declaration or
direction contrary to or different from, or, after the expiration of such
period, identical to, the notice, declaration or direction to which such record
date relates, in which event a new record date in respect thereof shall be set
pursuant to this paragraph. In addition, nothing in this paragraph shall be
construed to render ineffective any notice, declaration or direction of the type
referred to in this paragraph given at any time to the Trustee and the Company
by Holders (or their duly appointed agents or proxies) of the requisite
principal amount of Securities on the date such notice, declaration or direction
is so given.
(6) Except as provided in Sections 5.12 and 5.13, any request, demand,
authorization, direction, notice, consent, election, waiver or other Act of
the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon
such Security.
(7) The provisions of this Section 1.4 are subject to the provisions
of Section 9.5.
SECTION 1.5. Notices, Etc. to the Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of Securities or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with a Responsible Officer of the Trustee and received at
its Corporate Trust Office, and
(2) the Company by the Trustee or by any Holder of Securities shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing, mailed, first-class postage prepaid, or telecopied
and confirmed by mail, first-class postage prepaid, or delivered by hand or
overnight courier, addressed to the Company at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer, or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.6. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given to Holders if in writing and mailed, first-class postage prepaid or
delivered by an overnight delivery service, or transmitted by telecopy, with
written confirmation of transmission, to each Holder of a Security affected by
such event, at the address of such Holder as it appears in the Security
Register, not earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice.
Neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security shall affect the sufficiency
of such notice with respect to other Holders. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification to Holders as
shall be made with the approval of the Trustee, which approval shall not be
unreasonably withheld, shall constitute a sufficient notification to such
Holders for every purpose hereunder.
Such notice shall be deemed to have been given three (3) days after
mailing, if by mail, one day (1) after mailing if by overnight courier, and on
the date the notice is furnished if by telecopy or by hand.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.8. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.9. Separability Clause.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns hereunder and the Holders, any benefit or legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.11. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
SECTION 1.12. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Change in
Control Repurchase Date, Repurchase Date or Stated Maturity of any Security or
the last day on which a Holder of a Security has a right to convert his Security
shall not be a Business Day at a Place of Payment or Place of Conversion, as the
case may be, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of principal of, premium, if any, or interest on, or the
payment of the Redemption Price, Change in Control Repurchase Price (whether the
same is payable in cash or in shares of Common Stock or a combination thereof in
the case of the Change in Control Repurchase Price) or Repurchase Price (whether
the same is payable in cash or in shares of Common Stock or a combination
thereof in the case of the Repurchase Price) with respect to, or delivery for
conversion of, such Security need not be made at such Place of Payment or Place
of Conversion, as the case may be, on or by such day, but may be made on or by
the next succeeding Business Day at such Place of Payment or Place of
Conversion, as the case may be, with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Change in Control Repurchase Date,
Repurchase Date or at the Stated Maturity or by such last day for conversion;
provided, however, that in the case that payment is made on such succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Change in Control
Repurchase Date, Repurchase Date, Stated Maturity or last day for conversion, as
the case may be.
SECTION 1.13. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Until such time as this Indenture shall be qualified under the Trust Indenture
Act, this Indenture, the Company and the Trustee shall be deemed for all
purposes hereof to be subject to and governed by the Trust Indenture Act to the
same extent as would be the case if this Indenture were so qualified on the date
hereof.
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Internal Revenue Code of 1986, as amended, and
regulations thereunder (the "Code"), or as may, consistent herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. All Securities shall be in fully registered form.
The Trustee's certificates of authentication shall be in substantially
the form set forth in the form of Security contained in Section 2.2.
Conversion notices shall be in substantially the form set forth in the
form of Security contained in Section 2.2.
Change in Control Repurchase Notices shall be substantially in the form
set forth in the form of Security contained in Section 2.2.
Repurchase Notices shall be substantially in the form set forth in the
form of Security contained in Section 2.2.
The Securities shall be printed, typewritten or produced by any
combination of these methods or may be produced in any other manner permitted by
the rules of any automated quotation system or securities exchange on which the
Securities may be quoted or listed, as the case may be, all as determined by the
Officer executing such Securities, as evidenced by their execution thereof.
Upon their original issuance, Securities issued as contemplated by the
Purchase Agreement to Qualified Institutional Buyers in reliance on Rule 144A
shall be issued in the form of one or more Global Securities in definitive,
fully registered form without interest coupons and bearing the Restricted
Securities Legend. Such Global Security shall be registered in the name of DTC,
as Depositary, or its nominee and deposited with the Trustee, as custodian for
DTC, for credit by DTC to the respective accounts of beneficial owners of the
Securities represented thereby (or such other accounts as they may direct). Such
Global Security, together with its Successor Securities, which are Global
Securities, are collectively herein called the "Restricted Global Security."
SECTION 2.2. Form of Security.
[FORM OF FACE]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY:
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OR REPURCHASE OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OR REPURCHASE OF
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A) (1) TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY
THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THESE RESALE RESTRICTIONS. IN ANY CASE, THE HOLDER OF
THIS SECURITY WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTIONS WITH REGARD TO THIS SECURITY OR THE SHARES OF COMMON STOCK ISSUABLE
UPON CONVERSION OR REPURCHASE OF THIS SECURITY EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY
RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY
THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS SECURITY AND ANY SUCH
SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF
RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY AND ANY SUCH SHARES
SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY AND ANY SUCH SHARES TO HAVE
AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.]
CHURCH & ▇▇▇▇▇▇ CO., INC.
5.25% CONVERTIBLE SENIOR DEBENTURE DUE AUGUST 15, 2033
No. $
-------------- ------------
CUSIP NO. 171340 AB8
Church & ▇▇▇▇▇▇ Co., Inc., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company," which term includes
any successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of ________ United States Dollars (U.S. $______ ) [if
this Security is a Global Security, then insert - (which principal amount may
from time to time be increased or decreased to such other principal amounts
(which, taken together with the principal amounts of all other Outstanding
Securities, shall not exceed $100,000,000)) by adjustments made on the records
of the Trustee hereinafter referred to in accordance with the Indenture)] on
August 15, 2033 and to pay interest thereon, from August 11, 2003, or from the
most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, semi-annually in arrears on February 15 and August 15
in each year (each, an "Interest Payment Date"), commencing February 15, 2004,
at the rate of 5.25% per annum, until the principal hereof is due, and at such
rate per annum on any overdue principal and premium, if any, and, to the extent
permitted by law, on any overdue interest. Interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be February 1
or August 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Company, notice
whereof shall be given to Holders not less than 10 days prior to the Special
Record Date, or be paid at any time 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 quoted, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture. Payments
of principal shall be made upon the surrender of this Security at the option of
the Holder at the Corporate Trust Office, or at such other office or agency of
the Company as may be designated by it for such purpose in the Borough of
Manhattan, The City of New York, in such lawful monies of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, or at such other offices or agencies as the Company
may designate, by United States Dollar check drawn on, or wire transfer to, a
United States Dollar account (such a wire transfer to be made only to a Holder
of an aggregate principal amount of Securities in excess of U.S. $2,000,000 and
only if such Holder shall have furnished wire instructions in writing to the
Trustee no later than 15 days prior to the relevant payment date). Payment of
interest on this Security may be made by United States Dollar check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register, or, upon written application by the Holder to the Security
Registrar setting forth wire instructions not later than the relevant Record
Date, by transfer to a United States Dollar account (such a wire transfer to be
made only to a Holder of an aggregate principal amount of Securities in excess
of U.S. $2,000,000 and only if such Holder shall have furnished wire
instructions in writing to the Trustee no later than 15 days prior to the
relevant payment date).
Except as specifically provided herein and in the Indenture, the
Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed.
CHURCH & ▇▇▇▇▇▇ CO., INC.
By:
-----------------------------------
Name:
Title:
Certificate of Authentication
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
--------------------------
The Bank of New York, as Trustee
By:
-----------------------------
Authorized Signatory
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the
Company designated as its "5.25% Convertible Senior Debentures due August 15,
2033" (herein called the "Securities"), limited in aggregate principal amount to
U.S. $100,000,000, issued and to be issued under an Indenture, dated as of
August 11, 2003 (herein called the "Indenture"), between the Company and The
Bank of New York, as Trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of any authorized denominations as requested by the Holder surrendering the same
upon surrender of the Security or Securities to be exchanged, at the Corporate
Trust Office. The Trustee upon such surrender by the Holder will issue the new
Securities in the requested denominations.
Subject to and in compliance with the provisions of the Indenture
(including, without limitation, the conditions to conversion of this Security
set forth in Article XII of the Indenture) (and subject to the Company's right
to deliver cash or Common Stock or a combination of cash and Common Stock in
certain circumstances), a Holder is entitled, at such Holder's option, to
convert the Holder's Security into shares of Common Stock at the applicable
Conversion Rate in effect on the Conversion Date.
The initial Conversion Rate is 21.5054 shares of Common Stock per
$1,000 principal amount, subject to adjustment in certain events described in
the Indenture. A Holder that surrenders a Security for conversion will receive
cash in lieu of any fractional share of Common Stock based on the Sale Price of
the Common Stock of the Company on the Trading Day immediately prior to the
Conversion Date.
No sinking fund is provided for the Securities.
The Securities are subject to redemption by the Company, in whole or in
part, at any time on or after August 15, 2008, upon notice as set forth in
Section 11.5 of the Indenture, at a redemption price equal to the prices set
forth below, plus all accrued and unpaid interest, if any, to but excluding the
Redemption Date:
Redemption Period Price
----------------- -----
Beginning on August 15, 2008 and ending on 101.50% of the principal amount of the
August 14, 2009 Securities
Beginning on August 15, 2009 and ending on 100.75 % of the principal amount of the
August 14, 2010 Securities
On or after August 15, 2010 100% of the principal amount of the Securities
In the event of a redemption of the Securities, the Company will not be
required (a) to issue, register the transfer of or exchange any Securities for a
period beginning at the opening of business on the date that is 15 days
immediately preceding the mailing of notice identifying the serial numbers of
the Securities called for such redemption and ending at the close of business on
the earliest date on which the relevant notice of redemption is mailed to all
Holders being redeemed, or (b) to register the transfer or exchange of any
Security, or portion thereof (other than the unredeemed portion of any Security
being redeemed in part), called for redemption.
Subject to the terms and conditions of the Indenture, the Company shall
be obligated to purchase, at the option of the Holder, all or any portion of the
Securities held by such Holder on August 15, 2010, August 15, 2013, August 15,
2018, August 15, 2023, and August 15, 2028, at a repurchase price equal to 100%
of the principal amount of the Securities to be repurchased plus accrued and
unpaid interest, if any, to, but not including, such Repurchase Date. The
Repurchase Price for repurchases on August 15, 2010 will be paid in cash only.
The Repurchase Price for repurchases on August 15, 2013, August 15, 2018, August
15, 2023, or August 15, 2028 may be paid, at the sole option of the Company, in
cash or, subject to the satisfaction of certain conditions specified in the
Indenture, by the issuance and delivery of shares of Common Stock, or in any
combination thereof.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to offer to purchase the
Securities held by such Holder upon a Change in Control at a repurchase price
equal to 100% of the principal amount of the Securities to be repurchased plus
accrued and unpaid interest, if any, to, but not including, such Change in
Control Repurchase Date. At the sole option of the Company, the Change in
Control Repurchase Price may be paid in cash, or, subject to the satisfaction of
certain conditions set forth in the Indenture, by the issuance of shares of
Common Stock, or in any combination thereof.
If money (and/or shares of Common Stock if permitted under the
Indenture) sufficient to pay the Repurchase Price or the Change in Control
Repurchase Price, as the case may be, of all Securities or portions thereof to
be purchased on the Repurchase Date or Change in Control Repurchase Date, as the
case may be, is deposited with the Paying Agent at 10:00 a.m., New York City
time, on the Business Day immediately following the Repurchase Date or the
Change in Control Repurchase Date, as the case may be, then, on such Repurchase
Date and Change in Control Repurchase Date, as the case may be, whether or not
the Securities are delivered to the Paying Agent, the Securities shall cease to
be outstanding, interest shall cease to accrue and all other rights of the
Holders in respect thereof shall terminate (other than the right to receive the
Repurchase Price or Change in Control Repurchase Price, as the case may be, upon
delivery of such Securities).
A Security in respect of which a Holder has delivered a Repurchase
Notice or Change in Control Repurchase Notice, as the case may be, exercising
the right of such Holder to require the Company to repurchase such Security may
be converted only if such Repurchase Notice or Change in Control Repurchase
Notice is withdrawn in accordance with the terms of the Indenture.
No payment or adjustment will be made for accrued and unpaid interest
or dividends on the shares of Common Stock, except as provided in the Indenture.
To surrender a Security for conversion, in the case of a Global
Security, a Holder must comply with all Applicable Procedures of the Depositary,
and in the case of a Security that is a Non-Global Security, a Holder must (1)
complete and manually sign the irrevocable conversion notice below (or complete
and manually sign a facsimile of such notice) and deliver such notice to the
Conversion Agent, (2) surrender the Security to the Conversion Agent and in any
such case furnish appropriate endorsements and transfer documents and pay any
transfer or similar taxes and all other taxes or duties, if required.
In any case where the due date for the payment of the principal of,
premium, if any, or interest, on any Security or the Repurchase Price or Change
in Control Repurchase Price or the last day on which a Holder of a Security has
a right to convert his Security shall be, at any Place of Payment or Place of
Conversion as the case may be, a day on which banking institutions at such Place
of Payment or Place of Conversion are authorized or obligated by law or
executive order to close, then payment of principal, premium, if any, interest,
Repurchase Price or Change in Control Repurchase Price, or delivery for
conversion of such Security need not be made on or by such date at such place
but may be made on or by the next succeeding day at such place which is not a
day on which banking institutions are authorized or obligated by law or
executive order to close, with the same force and effect as if made on the date
for such payment or the date fixed for redemption or repurchase, or by such last
day for conversion, and no interest shall accrue on the amount so payable for
the period after such date.
If this Security is a Registrable Security (as defined in the
Indenture), then the Holder of this Security (including any Person that has a
beneficial interest in this Security) and the Common Stock of the Company
issuable upon conversion hereof are entitled to the benefits of a Registration
Rights Agreement, dated as of August 11, 2003 (the "Registration Rights
Agreement") between the Company and the Initial Purchasers. Under certain
conditions set forth in the Registration Rights Agreement, Liquidated Damages
may accrue on this Restricted Security.
Whenever in this Security there is a reference, in any context, to the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security, such mention shall be deemed to include mention of the payment of
Liquidated Damages payable as described in the Registration Rights Agreement to
the extent that, in such context, Liquidated Damages are, were or would be
payable in respect of such Security and express mention of the payment of
Liquidated Damages (if applicable) in any provisions of this Security shall not
be construed as excluding Liquidated Damages in those provisions of this
Security where such express mention is not made.
[The following paragraph shall appear in each Global Security:
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, redemption, repurchase or conversion
of this Security in part only, the Trustee, as custodian of the Depositary,
shall make an adjustment on its records to reflect such deposit or withdrawal in
accordance with the Applicable Procedures.]
[The following paragraph shall appear in each Security that is a
Non-Global Security:
In the event of redemption, repurchase or conversion of this Security
in part, only a new Security or Securities for the unredeemed, unrepurchased or
unconverted portion hereof will be issued in the name of the Holder hereof.]
If an Event of Default shall occur and be continuing, the principal of
all the Securities, together with accrued interest to the date of declaration,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with either (1) the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding, or (2) by the adoption of a resolution, at a
meeting of Holders of the Outstanding Securities at which a quorum is present,
by the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities represented and entitled to vote at such meeting. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all the Securities, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security or such other Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee indemnity reasonably satisfactory
to the Trustee and the Trustee shall not have received from the Holders of a
majority in aggregate principal amount of the Securities Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof, premiums,
if any, or interest hereon on or after the respective due dates expressed herein
or for the enforcement of the right to convert this Security as provided in 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, premium, if any, and
interest on this Security at the times, places and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Security Register
upon surrender of this Security for registration of transfer at the Corporate
Trust Office or at such other office or agency of the Company as may be
designated by it for such purpose in the Borough of Manhattan, The City of New
York (which shall initially be an office or agency of the Trustee), or at such
other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees by the Registrar. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to recover any tax or other
governmental charge payable in connection therewith.
Prior to due presentation of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered, as the owner thereof for
all purposes, whether or not such Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal (and premium, if any) or
interest on this Security and no recourse under or upon any obligation, covenant
or agreement of the Company in the Indenture or any indenture supplemental
thereto 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 the acceptance hereof and as
part of consideration for the issue hereof, expressly waived and released.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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 tenant in common UNIF GIFT MIN ACT ____ Custodian ____
TEN ENT as tenants by the entireties (Cust) (Cust) (Minor)
JT TEN as joint tenants with right of under Uniform Gifts to
survivorship and not as tenants in common Minors Act _____
(State)
Additional abbreviations may also be used though not in the above list.
Form of Election of Holder to Require
Change of Control Repurchase
(to be appended to the Security)
(1) Pursuant to Section 13.5 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
(2) The undersigned hereby directs the Trustee or the Company to pay it
or ______________ an amount in cash or, at the Company's election, Common Stock
valued as set forth in the Indenture, equal to 100% of the principal amount to
be repurchased (less any cash payments) (as set forth below), or a combination
of cash and Common Stock, plus interest accrued to, but excluding, the Change in
Control Repurchase Date, as provided in the Indenture.
Dated:
-------------------------------------------
-------------------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
--------------------------------------------
Signature Guaranteed
Principal amount to be repurchased (at least
U.S. $1,000 or an integral multiple of $1,000
in excess thereof):
-----------------------------------------
Remaining principal amount following such
repurchase (not less than U.S. $1,000):
-------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
Form of Election of Holder to Require Repurchase
(to be appended to the Security)
(1) Pursuant to Section 13.1 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
For Repurchases occurring on August 15, 2010
(2)(a) The undersigned hereby directs the Trustee or the Company to pay
it or ______________ an amount in cash equal to 100% of the principal amount to
be repurchased, plus interest accrued to, but excluding, the Repurchase Date, as
provided in the Indenture.
For Repurchases occurring on dates other than August 15, 2010
(2)(b) The undersigned hereby directs the Trustee or the Company to pay
it or ______________ an amount in cash or, at the Company's election, Common
Stock valued as set forth in the Indenture, equal to 100% of the principal
amount to be repurchased or a combination of cash and Common Stock, plus
interest accrued to, but excluding, the Repurchase Date, as provided in the
Indenture.
Dated:
-------------------------------------------
-------------------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
--------------------------------------------
Signature Guaranteed
Principal amount to be repurchased (at least
U.S. $1,000 or an integral multiple of $1,000
in excess thereof):
-----------------------------------------
Remaining principal amount following such
repurchase (not less than U.S. $1,000):
-------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
Form of Conversion Notice
(to be appended to the Security)
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or any portion of the principal amount
hereof (which is U.S. $1,000 or an integral multiple of U.S. $1,000 in excess
thereof, provided that the unconverted portion of such principal amount is U.S.
$1,000 or any integral multiple of U.S. $1,000 in excess thereof) below
designated, into shares of Common Stock in accordance with the terms of the
Indenture referred to in this Security, and directs that such shares, together
with a check in payment for any fractional share and any Securities representing
any unconverted principal amount hereof, be delivered to and be registered in
the name of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of a
Person other than the undersigned, (a) the undersigned will pay all transfer
taxes payable with respect thereto and (b) signature(s) must be guaranteed by an
Eligible Guarantor Institution with membership in an approved signature
guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of
1934. Any amount required to be paid by the undersigned on account of interest
accompanies this Security.
Dated:
--------------------- -------------------------------------------
Signature(s)
If shares or Securities are to be registered in the name of a Person other than
the Holder, please print such Person's name and address:
----------------------------------------------
(Name)
----------------------------------------------
----------------------------------------------
(Address)
----------------------------------------------
Social Security or other Identification
Number, if any
Signature(s) must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad - 15
under the Securities Exchange Act of 1934.
----------------------------------------------
[Signature Guaranteed]
If only a portion of the Securities is to be converted, please indicate:
1. Principal amount to be converted: U.S. $ ___________
2. Principal amount and denomination of Securities representing
unconverted principal amount to be issued:
Amount: U.S. $___________ Denominations: U.S. $____________
(U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof, provided
that the unconverted portion of such principal amount is U.S. $1,000 or any
integral multiple of U.S. $1,000 in excess thereof)
Form of Assignment
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ (Please insert social security or other
identifying number of assignee) the within Security, and hereby irrevocably
constitutes and appoints ____________________as attorney to transfer the said
Security on the books of the Company, with full power of substitution in the
premises.
Dated:
--------------------- -------------------------------------------
Signature(s)
Signature(s) must be guaranteed by an
Eligible Guarantor Institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad -
15 under the Securities Exchange Act of
1934.
----------------------------------------
Signature Guaranteed
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to U.S. $100,000,000, except for
Securities authenticated and delivered pursuant to Section 3.4, 3.5, 3.6, 8.5,
12.3 or 13.9 in exchange for, or in lieu of, other Securities previously
authenticated and delivered under this Indenture.
The Securities shall be known and designated as the "5.25% Convertible
Senior Debentures due August 15, 2033" of the Company. Their Stated Maturity
shall be August 15, 2033 and they shall bear interest on their principal amount
from August 11, 2003, payable semi-annually in arrears on February 15 and August
15 in each year, commencing February 15, 2004, at the rate of 5.25% per annum
until the principal thereof is due and at the rate of 5.25% per annum on any
overdue principal and, to the extent permitted by law, on any overdue interest;
provided, however, that payments shall only be made on a Business Day as
provided in Section 1.12.
The principal of, premium, if any, and interest on the Securities shall
be payable as provided in the form of Security set forth in Section 2.2, and the
Repurchase Price and the Change in Control Repurchase Price, whether payable in
cash or in shares of Common Stock or a combination thereof, shall be payable at
such places as are identified in the notice given by the Company pursuant to
Sections 13.2 and 13.6, respectively (any city in which any Paying Agent is
located being herein called a "Place of Payment").
The Registrable Securities are entitled to the benefits of a
Registration Rights Agreement as provided by Section 10.7 and in the form of
Security set forth in Section 2.2. The Securities are entitled to the payment of
Liquidated Damages as provided by Section 10.7.
At any time on or after August 15, 2008, the Securities shall be
subject to redemption by the Company, in whole or in part, subject to the
conditions and as otherwise provided in Article XI and in the form of Security
set forth in Section 2.2.
The Securities shall be convertible as provided in Article XII (any
city in which any Conversion Agent is located being herein called a "Place of
Conversion").
The Securities shall be subject to repurchase by the Company at the
option of the Holders as provided in Article XIII.
SECTION 3.2 Denominations.
The Securities shall be issuable only in registered form, without
coupons, in denominations of U.S. $1,000 and integral multiples of U.S. $1,000
in excess thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by an Officer
of the Company. Any such signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee or to its order for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and make available for
delivery such Securities as in this Indenture provided.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.4 Global Securities; Non-Global Securities; Book-entry
Provisions.
(1) Global Securities
(i) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by
the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(ii) Except for exchanges of Global Securities for
definitive, Non-Global Securities at the sole discretion of the
Company, 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 for such Global Security or a nominee
thereof unless (A) such Depositary (x) has notified the Company
that it is unwilling, unable or no longer qualified to continue
as Depositary for such Global Security or (y) has ceased to be a
clearing agency registered as such under the Exchange Act or
announces an intention permanently to cease business or does in
fact do so or (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security. In such
event, if a successor Depositary for such Global Security is not
appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the
Company will execute, and the Trustee, upon receipt of a Company
Order directing the authentication and delivery of Securities,
will authenticate and deliver, Securities, in any authorized
denominations in an aggregate principal amount equal to the
principal amount of such Global Security in exchange for such
Global Security.
(iii) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Trustee, as
Security Registrar, for exchange or cancellation, as provided in
this Article III. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is
to be exchanged in whole or in part for a beneficial interest in
any Global Security, in each case, as provided in Section 3.5,
then either (A) such Global Security shall be so surrendered for
exchange or cancellation, as provided in this Article III, or (B)
the principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other Security
to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made on the records
of the Trustee, as Security Registrar, whereupon the Trustee, in
accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender
or adjustment of a Global Security, the Trustee shall, subject to
Section 3.5(3) and as otherwise provided in this Article III,
authenticate and deliver any Securities issuable in exchange for
such Global Security (or any portion thereof) to or upon the
order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of
the Trustee in connection with the occurrence of any of the
events specified in the preceding paragraph, the Company shall
promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The
Trustee shall be entitled to conclusively rely upon any order,
direction or request of the Depositary or its authorized
representative which is given or made pursuant to this Article
III if such order, direction or request is given or made in
accordance with the Applicable Procedures.
(iv) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Article III or otherwise, shall be authenticated and delivered in
the form of, and shall be, a registered Global Security, unless
such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof, in
which case such Security shall be authenticated and delivered in
definitive, fully registered form, without interest coupons.
(v) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for
all purposes under the Indenture and the Securities, and owners
of beneficial interests in a Global Security shall hold such
interests pursuant to the Applicable Procedures. Accordingly, any
such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or
its nominee or its Agent Members and such owners of beneficial
interests in a Global Security will not be considered the owners
or holders thereof.
(2) Non-Global Securities
Securities issued upon the events described in Section 3.4(l)(ii) shall
be in definitive, fully registered form, without interest coupons, and shall
bear the Restricted Securities Legend if and as required by this Indenture.
SECTION 3.5 Registration; Registration of Transfer and Exchange;
Restrictions on Transfer.
(1) General. The Company shall cause to be kept at the Corporate
Trust Office a register (the register maintained in such office
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
Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers and exchanges of Securities as
herein provided.
Upon surrender for registration of transfer of any Security at
an office or agency of the Company designated pursuant to Section 10.2
for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations
and of a like aggregate principal amount and bearing such restrictive
legends as may be required by this Indenture.
At the option of the Holder, and subject to the other
provisions of this Section 3.5, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered
for exchange, and subject to the other provisions of this Section 3.5,
the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled
to receive. Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee
and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
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.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities except as provided
in Section 3.6, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.4, 8.5, 12.5, 13.4 or 13.8
(other than where the shares of Common Stock are to be issued or
delivered in a name other than that of the Holder of the Security) not
involving any transfer and other than any stamp and other duties, if
any, which may be imposed in connection with any such transfer or
exchange by the United States or any political subdivision thereof or
therein, which shall be paid by the Company.
In the event of a redemption of the Securities, neither the
Company nor the Securities Registrar will be required (a) to issue,
register the transfer or exchange any Securities for a period beginning
at the opening of business on the date that is 15 days immediately
preceding the mailing of the notice identifying the serial numbers of
the Securities called for such redemption and ending at the close of
business on the earliest date on which the relevant notice of
redemption is mailed to all Holders being redeemed, or (b) to register
the transfer or exchange of any Security, or portion thereof (other
than the unredeemed portion of any Security being redeemed in part),
called for redemption.
(2) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges
of Securities and beneficial interests in a Global Security of the
kinds specified in this Section 3.5(2) shall be made only in
accordance with this Section 3.5(2).
(i) Restricted Global Security to Restricted Non-Global
Security. In the event that Non-Global Securities are to be
issued pursuant to Section 3.4(1)(ii) in connection with any
transfer of Securities, such transfer may be effected only in
accordance with the provisions of this paragraph (2)(i) and
subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (A) a Company Order from the
Company directing the Trustee, as Security Registrar, to (x)
authenticate and deliver one or more Securities of the same
aggregate principal amount as the beneficial interest in the
Restricted Global Security to be transferred, such instructions
to contain the name or names of the designated transferee or
transferees, the authorized denomination or denominations of the
Securities to be so issued and appropriate delivery instructions
and (y) decrease the beneficial interest of a specified Agent
Member's account in a Restricted Global Security by a specified
principal amount not greater than the principal amount of such
Restricted Global Security, and (B) such other certifications,
legal opinions or other information as the Company or the Trustee
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,
then the Trustee, as Security Registrar, shall decrease the
principal amount of the Restricted Global Security by the
specified amount and authenticate and deliver Securities in
accordance with such instructions from the Company as provided in
Section 3.4(1)(iii).
(ii) Restricted Non-Global Security to Restricted Global
Security. If the Holder of a Restricted Security (other than a
Global Security) wishes at any time to transfer all or any
portion of such Restricted Security to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
Restricted Global Security, such transfer may be effected only in
accordance with the provisions of this paragraph (2)(ii) and
subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of such Restricted Security as
provided in Section 3.5(1) and instructions from the Company
directing that a beneficial interest in the Restricted Global
Security in a specified principal amount not greater than the
principal amount of such Security be credited to a specified
Agent Member's account, then the Trustee, as Security Registrar,
shall cancel such Restricted Security (and issue a new Restricted
Security in respect of any untransferred portion thereof) as
provided in Section 3.5(1) and increase the principal amount of
the Restricted Global Security by the specified principal amount
as provided in Section 3.4(1)(iii).
(iii) Exchanges Between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be
exchanged for a Security that is not a Global Security only as
provided in Section 3.4 or only if such exchange occurs in
connection with a transfer effected in accordance with paragraph
2(i) above, provided that, if such interest is a beneficial
interest in the Restricted Global Security, then such interest
shall be exchanged for a Restricted Security (subject in each
case to Section 3.5(3)). A Security that is not a Global Security
may be exchanged for a beneficial interest in a Global Security
only if such exchange occurs in connection with a transfer
effected in accordance with paragraph (2)(ii) above.
(3) Securities Act Legends. All Securities issued pursuant to
this Indenture, and all Successor Securities, shall bear the
Restricted Securities Legend and shall be subject to the restrictions
on transfer specified therein, subject to the following:
(i) subject to the following paragraphs of this Section
3.5(3), a Security or any portion thereof which is exchanged,
upon transfer or otherwise, for a Global Security or any portion
thereof shall bear the Restricted Securities Legend borne by such
Global Security for which the Security was exchanged;
(ii) subject to the following paragraphs of this Section
3.5(3), a new Security that is not a Global Security and is
issued in exchange for another Security (including a Global
Security) or any portion thereof, upon transfer or otherwise,
shall bear the Restricted Securities Legend borne by the Security
for which the new Security was exchanged;
(iii) any Securities that are sold or otherwise disposed of
pursuant to an effective registration statement under the
Securities Act (including the Shelf Registration Statement),
together with their Successor Securities shall not bear a
Restricted Securities Legend; the Company shall inform the
Trustee in writing of the effective date of any such registration
statement registering the Securities under the Securities Act and
shall notify the Trustee, in writing, at any time when
prospectuses must be delivered with respect to Securities to be
sold pursuant to such registration statement. The Trustee shall
not be liable for any action taken or omitted to be taken by it
in good faith in accordance with such instructions;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or
without being subject to transfer restrictions pursuant to the
Securities Act, a new Security that does not bear a Restricted
Securities Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof
that bears such a legend if the Trustee has received an
Unrestricted Securities Certificate, satisfactory to the Trustee
and duly executed by the Holder of such Security bearing a
Restricted Securities Legend or his attorney duly authorized in
writing, and after such date and receipt of such certificate, the
Trustee shall authenticate and deliver such new Security in
exchange for or in lieu of such other Security as provided in
this Article III;
(v) a new Security that does not bear a Restricted
Securities Legend may be issued in exchange for or in lieu of a
Security or any portion thereof that bears such a legend if, in
the Company's judgment, placing such a legend upon such new
Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee,
upon receipt of a Company Order, shall authenticate and deliver
such a new Security as provided in this Article III; and
(vi) notwithstanding the foregoing provisions of this
Section 3.5(3), a Successor Security of a Security that does not
bear a Restricted Securities Legend shall not bear such legend
unless the Company has reasonable cause to believe that such
Successor Security is a "restricted security" within the meaning
of Rule 144, in which case the Trustee, upon receipt of a Company
Order, shall authenticate and deliver a new Security bearing a
Restricted Securities Legend in exchange for such Successor
Security as provided in this Article III.
(4) Any stock certificate representing shares of Common Stock
issued upon conversion of the Securities shall bear the Restricted
Securities Legend borne by such Securities, to the extent required by
this Indenture, unless such shares of Common Stock have been sold
pursuant to a registration statement that has been declared effective
under the Securities Act (and that continues to be effective at the
time of such transfer) or sold pursuant to Rule 144(k) of the
Securities Act, or unless otherwise agreed by the Company in writing
with written notice thereof to the transfer agent for the Common
Stock. With respect to the transfer of shares of Common Stock issued
upon conversion of the Securities that are restricted hereunder, any
deliveries of certificates, legal opinions or other instruments that
would be required to be made to the Security Registrar in the case of
a transfer of Securities, as described above, shall instead be made to
the transfer agent for the Common Stock.
(5) Neither the Trustee, the Paying Agent nor any of their agents
shall (i) have any duty to monitor compliance with or with respect to
any Federal or state or other securities or tax laws or (ii) have any
duty to obtain documentation on any transfers or exchanges other than
as specifically required hereunder, and if and when expressly required
to do so by the terms of the Indenture, to examine the same to
determine substantial compliance as to form with the express
requirements hereof.
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there be delivered to the Company and to the Trustee:
(1) evidence to their satisfaction of the destruction, loss or
theft of any Security, and
(2) such security or indemnity as may be satisfactory to the
Company and the Trustee to save each of them and any agent of either
of them harmless, then, in the absence of actual notice to the Company
or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security, upon satisfaction of the conditions set forth in the preceding
paragraph.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto (other than any
stamp and other duties, if any, which may be imposed in connection therewith by
the United States or any political subdivision thereof or therein, which shall
be paid by the Company) and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 3.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies of any Holder with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Subject to the last paragraph of this Section, interest or Liquidated
Damages on any Security that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest or Liquidated Damages on any Security that is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in paragraphs (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, the date of the
proposed payment and the Special Record Date, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this paragraph provided. The
Special Record Date for the payment of such Defaulted Interest shall
be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder at such Holder's address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following paragraph (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this paragraph, such manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing and following provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Interest on any Security that is converted in accordance with Section
12.3 during a Record Date Period shall be payable in accordance with the
provisions of Section 12.3.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee, any Paying Agent and any agent of the Company, the
Trustee or any Paying Agent may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of, premium, if any, and (subject to Section 3.7) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee, any Paying Agent nor any agent of
the Company, the Trustee or any Paying Agent shall be affected by notice to the
contrary.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered to the Trustee shall be canceled promptly by the Trustee (or its
agent). No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 3.9. The Trustee shall dispose
of all canceled Securities in accordance with applicable law and its customary
practices in effect from time to time.
SECTION 3.10 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 3.11 CUSIP Numbers.
The Company in issuing Securities may use CUSIP numbers (if then
generally in use) in addition to serial numbers; if so, the Trustee shall use
such CUSIP numbers in addition to serial numbers in notices of redemption and
repurchase as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such CUSIP numbers
either as printed on the Securities or as contained in any notice of a
redemption or repurchase and that reliance may be placed only on the serial or
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 CUSIP
numbers. The Company will promptly notify the Trustee in writing of any change
in the "CUSIP" or serial numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, repurchase or registration of
transfer or exchange, or replacement of Securities herein expressly provided for
and any right to receive Liquidated Damages as provided in the Registration
Rights Agreement and in the form of Security set forth in Section 2.2 and the
Company's obligations to the Trustee pursuant to Section 6.7), and the Trustee,
at the expense of the Company, shall execute proper instruments in form and
substance reasonably satisfactory to the Trustee acknowledging satisfaction and
discharge of this Indenture, when
(1) Either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or
stolen and that have been replaced or paid as provided in Section
3.6 and (B) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to
the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee or its agent for cancellation (other than Securities
referred to in paragraphs (A) and (B) of paragraph (1)(i) above)
(A) have become due and payable, or
(B) will have become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements reasonably satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
(D) and the Company, in the case of paragraphs (A), (B)
or (C) above, has deposited or caused to be deposited with
the Trustee as trust funds (immediately available to the
Holders in the case of paragraph (A)) in trust for the
purpose an amount in cash sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal,
premium, if any, and interest to the date of such deposit
(in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.12, the obligation of
the Company to pay Liquidated Damages, if money shall have been deposited with
the Trustee pursuant to paragraph (1)(ii) of this Section 4.1, the obligations
of the Trustee under Section 4.2 and the last paragraph of Section 10.3 and the
obligations of the Company and the Trustee under Section 3.5 and Article XII
shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
for the sole benefit of the Holders, and such monies shall be applied by the
Trustee, in accordance with the provisions of the Securities and this Indenture,
to the payment, either directly or through any Paying Agent, to the Persons
entitled thereto, of the principal, premium, if any, and interest for whose
payment such money has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to Section 4.1 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed or assessed against all money deposited with the Trustee
pursuant to Section 4.1 (other than income taxes and franchise taxes incurred or
payable by the Trustee and such other taxes, fees or charges incurred or payable
by the Trustee that are not directly the result of the deposit of such money
with the Trustee).
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be 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):
(1) default in the payment of the principal of or premium, if
any, on any Security at its Maturity, upon redemption, repurchase or
following change of control, when the same becomes due and payable; or
(2) default in the payment of any interest upon any Security when
it becomes due and payable, and continuance of such default for a
period of 30 days; or
(3) failure by the Company to give a Company Notice in accordance
with Sections 13.2 and 13.6; or
(4) default in the performance of the Company's conversion
obligations under this Indenture upon exercise of a Holder's right to
conversion of its Security under this Indenture, and continuance of
such default for a period of 5 Business Days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holder of such Security
surrendered for conversion a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) default in the performance of any covenant of the Company in
this Indenture (other than a covenant a default in the performance of
which is specifically dealt with elsewhere in this Section), and
continuance of such default for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) a default in the payment when due (either at its stated
maturity or upon acceleration thereof, and after expiration of any
applicable grace period) under any bonds, debentures, notes or other
evidences of indebtedness for money borrowed (or guarantee thereof) by
the Company or any Significant Subsidiary (an "Instrument") with an
aggregate principal amount in excess of U.S. $15,000,000, whether such
indebtedness now exists or shall hereafter be created, and such
indebtedness is not discharged, or such acceleration is not rescinded
or annulled, within a period of 30 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice
specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such default to be cured or
waived or such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
(7) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or (ii) a decree or order adjudging the Company or
any Significant Subsidiary a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any
Significant Subsidiary or of any substantial part of the property of
either, or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days; or
(8) the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by either to the entry of a decree or order
for relief in respect of the Company or any Significant Subsidiary in
an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against either, or the filing by either of a petition or answer or
consent seeking reorganization or similar relief under any applicable
Federal or state law, or the consent by either to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Significant Subsidiary or of any
substantial part of the property of either, or the making by either of
an assignment for the benefit of creditors, or the admission by either
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(7) or 5.1(8) with respect to the Company) occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities may declare the principal of all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal and all accrued interest thereon shall become
immediately due and payable. If an Event of Default specified in Section 5.1(7)
or 5.1(8) with respect to the Company occurs, the principal of, and accrued
interest on, all the Securities shall become immediately due and payable without
any declaration or other Act of the Holders or any act on the part of the
Trustee.
At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article V, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may, on behalf of all Holders, rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Securities,
(ii) the principal of and premium, if any, on any Securities
that have become due other than by such declaration of
acceleration and any interest thereon at the rate borne by the
Securities,
(iii) to the extent permitted by applicable law, interest
upon overdue interest at the rate borne by the Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and
the compensation, reasonable expenses, disbursements and advances
of the Trustee, its agents and counsel;
(2) all Events of Default, other than the nonpayment of the
principal of and any premium and interest on, Securities which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13; and
(3) such rescission and annulment would not conflict with any
judgment or decree issued in appropriate judicial proceedings
regarding the payment by the Trustee to the Holders of the amounts
referred to in 5.2(1).
No rescission or annulment referred to above shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when it becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and interest on any overdue principal and
premium, if any, and, to the extent permitted by applicable law, on any overdue
interest, at the rate borne by the Securities, and in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or the
creditors of either, the Trustee (irrespective of whether the principal of, and
any interest on, the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(1) to file and prove a claim for the whole amount of principal,
premium, if any, and interest owing and unpaid in respect of the
Securities and take such other actions, including participating as a
member, voting or otherwise, of any official committee of creditors
appointed in such matter, and to file such other papers or documents,
in each of the foregoing cases, as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claim and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by each Holder of Securities to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and
any other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding;
provided, however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which judgment
has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premium, if
any, or interest, upon presentation of the Securities and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for principal
of, premium, if any, or interest on, the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively; and
THIRD: Any remaining amounts shall be repaid to the Company.
SECTION 5.7 Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of an Event of Default that is continuing at the time of such
institution;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee, and if
requested, shall have provided, indemnity reasonably satisfactory to
the Trustees against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity (or if requested, receipt of indemnity)
has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a
majority in principal amount of the Outstanding Securities, it being
understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights
of any other of such Holders, or to obtain or seek to obtain priority
or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders (it being understood
that the Trustee does not have an affirmative duty to ascertain
whether or not such actions or forbearances are unduly prejudicial to
such Holders).
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
3.7) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption or repurchase, on the Redemption
Date or Change in Control Repurchase Date or Repurchase Date, as the case may
be), and to convert such Security in accordance with Article XII, and to
institute suit for the enforcement of any such payment and right to convert, and
such rights shall not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
such Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or (subject to the limitations
contained in this Indenture) by the Holders as the case may be.
SECTION 5.12 Control by Holders.
Subject to Section 6.3, the Holders of a majority in principal amount
of the Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action that might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 5.13 Waiver of Past Defaults.
The Holders, either (1) through the written consent of not less than a
majority in principal amount of the Outstanding Securities or (2) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities represented at such meeting, may
on behalf of the Holders of all the Securities waive any past default hereunder
and its consequences, except a default (i) in the payment of the principal of,
premium, if any, or interest on any Security, or (ii) in respect of a covenant
or provision hereof which under Article VIII cannot be modified or amended
without the consent of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or any suit against the Trustee for any action taken, suffered
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; but
the provisions of this Section 5.14 shall not apply to any suit instituted by
the Company, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities, or to any suit instituted by any
Holder of any Security for the enforcement of the payment of the principal of,
premium, if any, or interest on any Security on or after the respective Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption
or repurchase, on or after the Redemption Date or Change in Control Repurchase
Date or Repurchase Date, as the case may be) or for the enforcement of the right
to convert any Security in accordance with Article XII.
SECTION 5.15 Waiver of Stay, Usury or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, usury or extension law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede by reason of such law the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon 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 provision 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, but not
to verify the contents thereof (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
(2) In case an Event of Default has occurred and is continuing,
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 or her own affairs.
(3) 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
(i) this paragraph (3) shall not be construed to limit the
effect of paragraph (1) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) 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 direction of the Holders of a majority in
aggregate principal amount of the Outstanding Securities 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; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers.
(4) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder as to
which the Trustee has received written notice, the Trustee shall give to all
Holders, in the manner provided in Section 1.6, notice of such default, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of, premium, if any, or
interest on any Security the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders; and provided, further, that in the case of any default of the character
specified in Section 5.1(4), no such notice to Holders shall be given until at
least 60 days after the occurrence thereof or, if applicable, the expiration of
the cure period specified therein. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(1) the Trustee may conclusively rely, and shall be protected in
acting or refraining from acting, upon any resolution, Officer's
Certificate, other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or
document (collectively, the "Documents") believed by it to be genuine
and to have been signed or presented by the proper party or parties,
and the Trustee need not investigate any fact or matter stated in such
Documents;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be the one specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon
an Officer's Certificate or Opinion of Counsel;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered, and, if requested by the Trustee,
delivered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon, other evidence of indebtedness
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 at the
sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) No permissive power, right or remedy conferred upon the
Trustee hereinunder shall be construed to impose a duty to exercise
such power, right or remedy;
(9) The Trustee shall not be deemed to have knowledge of any
default or Event of Default hereunder unless a Responsible Officer has
actual knowledge thereof or has received written notice thereof from
the Company or any Holder. Except as otherwise expressly provided
herein, the Trustee shall not be bound to ascertain or inquire as to
the performance or observance of any of the terms, conditions,
covenants or agreements herein or of any of the documents executed in
connection with the Securities or as to the existence of an Event of
Default hereunder
(10) 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;
(11) 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; and
(12) the Trustee may request that the Company deliver an
Officer's 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 Officer's 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.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity, sufficiency or priority
of this Indenture, of the Securities or of the Common Stock issuable upon the
conversion of the Securities. The Trustee or any Authenticating Agent shall not
be accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities, Act as Trustee Under Other Indentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent or any other agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent or such other agent.
The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing
for its acceptance of this Indenture and for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee (including
costs and expenses of enforcing this Indenture and defending itself
against any claim (whether asserted by the Company, any Holder of
Securities or any other Person) or liability in connection with the
exercise of any of its powers or duties hereunder) in accordance with
any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee
and their agents for, and to hold them harmless against, any and all
loss, damage, claims, liability or expense, including taxes (other
than taxes based upon, measured by or determined by the income of the
Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
reasonable costs and expenses of defending itself against any claim
(whether asserted by the Company, or any Holder or any other Person)
or liability in connection with the exercise or performance of any of
its powers or duties hereunder, or in connection with enforcing the
provisions of this Section, except to the extent that such loss,
damage, claim, liability or expense is due to its own negligence or
bad faith.
The Trustee shall have a lien prior to the Securities on all money or
property held or controlled by the Trustee to secure the Company's payment
obligations in this Section 6.7, except that held in trust to pay principal and
interest on the Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(6) or Section 5.1(7), the expenses
(including the reasonable charges of its counsel) and the compensation for the
services are intended to constitute expenses of the administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such, and the
Trustee and its parent corporation shall have (or be part of a holding company
group with) a combined capital and surplus of at least U.S. $50,000,000, subject
to supervision or examination by Federal or state authority, and in good
standing. The Trustee or an Affiliate of the Trustee shall maintain an
established place of business in the Borough of Manhattan, The City of New York.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall either eliminate such interest or resign immediately in the manner and
with the effect hereinafter specified in this Article and a successor shall be
appointed pursuant to Section 6.9.
SECTION 6.9 Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.10.
(2) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.10 shall not have been delivered to the
Trustee within 60 days after the giving of such notice of resignation,
the resigning Trustee may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a successor
Trustee.
(3) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and the Company. If the
instrument of acceptance by a successor Trustee required by Section
6.10 shall not have been delivered to the Trustee within 60 days after
the giving of such notice of removal, the removed Trustee may
petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.
(4) The Trustee may be removed at any time by the Company and the
Company may appoint a successor Trustee pursuant to this Article,
provided, that (i) there is not an Event of Default that is continuing
at the time of removal, (ii) the successor Trustee appointed by the
Company meets the eligibility requirements of Section 6.8, and (iii)
such removal and resignation shall not become effective until the
acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 6.10. If the instrument of
acceptance by a successor Trustee required by Section 6.10 shall not
have been delivered to the Trustee within 60 days after the giving of
such notice of removal, the removed Trustee may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee.
(5) If at any time:
(i) the Trustee shall cease to be eligible under Section 6.8
and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 5.14, any Holder of a Security
who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(6) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee and shall comply with the applicable requirements
of this Section and Section 6.10. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner required by this Section and Section 6.10,
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(7) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 1.6. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section
6.7. Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture), by sale
or otherwise, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.12 Authenticating Agents.
The Trustee may, with the consent of the Company, appoint an
Authenticating Agent or Agents acceptable to the Company with respect to the
Securities, which Authenticating Agent shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon exchange or substitution
pursuant to this Indenture.
Securities authenticated by an Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder, and every reference in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be subject to acceptance
by the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent and subject to supervision or examination by government or other fiscal
authority. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.12, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section 6.12.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, by sale
or otherwise, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section 6.12, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, the Trustee may appoint a successor
Authenticating Agent which shall be subject to acceptance by the Company. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.12.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.12.
If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section 6.12, the Securities may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
The Bank of New York,
as Trustee
By:
-------------------------------------------
As Authenticating Agent
By:
-------------------------------------------
Authorized Signatory
SECTION 6.13 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.14 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer, sell or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer, sell or lease
such Person's properties and assets substantially as an entirety to the Company
unless:
(1) the Person formed by such consolidation or into or with which
the Company is merged or the Person to which the properties and assets
of the Company are so conveyed, transferred, sold or leased shall be a
corporation, limited liability company, partnership or trust organized
and existing under the laws of the United States of America, any State
thereof or the District of Columbia and, if the Company is not the
surviving entity, the surviving entity shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the payment when due of the
principal of, premium, if any, and interest on all of the Securities
as applicable, and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed
and shall have provided for conversion rights in all material respects
in accordance with Article XII;
(2) immediately after giving effect to such transaction no Event
of Default, and no event that after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be
continuing; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, sale or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with, together with any documents
required under Section 8.3.
Notwithstanding the foregoing, the requirements of paragraph (3) of
this Section shall not apply to (i) a merger or consolidation involving the
Company and a Subsidiary, in which the Company is the surviving entity, or (ii)
the conveyance, transfer, sale or lease of a Subsidiary's properties and assets
substantially as an entirety to the Company.
SECTION 7.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of the Company in accordance with
Section 7.1, the successor Person formed by such consolidation or into or with
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto for any of the following
purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities as permitted
by Article VII of this Indenture; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Securities; or
(4) to make provision with respect to the conversion rights of
Holders pursuant to Section 12.12; or
(5) to make any changes or modifications to this Indenture
necessary in connection with the registration of any Registrable
Securities under the Securities Act as contemplated by Section 10.7,
provided such action pursuant to this paragraph (5) shall not
adversely affect the interests of the Holders in any material respect;
or
(6) to modify the restrictions on resales and other transfers of
the Securities and the shares of Common Stock upon conversion thereof
to reflect changes in applicable law or regulation (or the
interpretation thereof) or in practices relating to the resale or
transfer of restricted securities generally; or
(7) to comply with the requirements of the Trust Indenture Act or
the rules and regulations of the Commission thereunder in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by this Indenture or otherwise;
(8) modify any of the provisions of this Section or Section 5.13
or 10.8, except to increase any percentage contained herein or therein
or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(10) to provide for uncertificated Securities; or
(11) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision
herein or that is otherwise defective, or to make any other provisions
with respect to matters or questions arising under this Indenture as
the Company and the Trustee may deem necessary or desirable, provided
such action pursuant to this paragraph (10) shall not adversely affect
the interests of the Holders in any material respect.
Upon Company Request, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the documents described in Section 8.3 hereof, the Trustee shall
join with the Company in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
Notwithstanding any other provision of the Indenture or the Securities,
the Registration Rights Agreement and the obligation to pay Liquidated Damages
thereunder may be amended, modified or waived in accordance with the provisions
of the Registration Rights Agreement.
SECTION 8.2 Supplemental Indentures with Consent of Holders.
Except as set forth in Section 8.1, with either (i) the written consent
of the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, by the Act of said Holders delivered to the Company and
the Trustee, or (ii) by the adoption of a resolution, at a meeting of Holders of
the Outstanding Securities at which a quorum is present, by the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent or affirmative vote of
the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount of, or the premium, if any, or the rate of interest payable
thereon, or reduce the amount payable upon a redemption or mandatory
repurchase, or change the place or currency of payment of the
principal of, premium, if any, or interest on any Security (including
any payment of Redemption Price or Repurchase Price or Change in
Control Repurchase Price in respect of such Security) or impair the
right to institute suit for the enforcement of any payment in respect
of any Security; or
(2) reduce the percentage in principal amount of the Outstanding
Securities the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in
this Indenture; or
(3) reduce the percentage required for the adoption of a
resolution or the quorum required at any meeting of Holders at which a
resolution is adopted; or
(4) modify the ranking of the Securities in a manner adverse to
the Holders; or
(5) modify the Company's right to redeem the Securities in a
manner adverse to the Holders; or
(6) modify the provisions of Article XIII in a manner adverse to
the Holders; or
(7) adversely affect a Holder's right to convert a Security other
than a modification or amendment required by the terms of this
Indenture; or
(8) modify the provisions of Section 10.6 in a manner adverse to
the Holder.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 8.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall receive, and (subject to
Sections 6.1 and 6.3) shall be fully protected in conclusively relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that such supplemental indenture
has been duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding obligation of the Company enforceable against the
Company in accordance with its terms, subject to general equity principles and
applicable bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, arrangement, dissolution, moratorium or other similar laws
relating to or affecting creditors' rights generally. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 8.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
appertaining thereto shall be bound thereby.
SECTION 8.5 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company and the
Trustee, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 8.6 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 8.2, the Company
shall give notice to all Holders of such fact, setting forth in general terms
the substance of such supplemental indenture, in the manner provided in Section
1.6. Any failure of the Company to give such notice, or any defect therein,
shall not in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE IX
MEETINGS OF HOLDERS OF SECURITIES
SECTION 9.1 Purposes for Which Meetings May Be Called.
A meeting of Holders may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders.
SECTION 9.2 Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders for any
purpose specified in Section 9.1, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of Holders, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.6, not less than 21 nor more than 180
days prior to the date fixed for the meeting.
(2) In case at any time the Company, pursuant to a Board
Resolution, or, the Holders of at least 10% in principal amount of the
Outstanding Securities shall have requested the Trustee to call a
meeting of the Holders for any purpose specified in Section 9.1, 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 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders in the amount
specified, as the case may be, may determine the time and the place in
the Borough of Manhattan, The City of New York, for such meeting and
may call such meeting for such purposes by giving notice thereof as
provided in paragraph (1) of this Section.
SECTION 9.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders, a Person shall be (1)
a Holder of one or more Outstanding Securities, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 9.4 Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders, be dissolved. In any other case,
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting
(subject to repeated applications of this sentence). Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 9.2(1), except
that such notice need be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage of the
aggregate principal amount of the Outstanding Securities that shall constitute a
quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum, the Persons entitled to vote 25% in aggregate principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 8.2 and except to the extent Section 10.8
requires a different vote) shall be effectively passed and decided if passed or
decided by the lesser of (1) the Holders of not less than a majority in
principal amount of Outstanding Securities and (2) the Persons entitled to vote
not less than a majority in aggregate principal amount of Outstanding Securities
represented and entitled to vote at such meeting.
Any resolution passed or decisions taken at any meeting of Holders duly
held in accordance with this Section shall be binding on all the Holders whether
or not present or represented at the meeting. The Trustee shall, in the name and
at the expense of the Company, notify all the Holders of any such resolutions or
decisions pursuant to Section 1.6.
SECTION 9.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders 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 deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 1.4 and the appointment of
any proxy shall be proved in the manner specified in Section 1.4 or by
having the signature of the Person executing the proxy guaranteed by
any bank, broker or other eligible institution participating in a
recognized medallion signature guarantee program.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless
the meeting shall have been called by the Company or by Holders as
provided in Section 9.2(1), in which case the Company or the Holders
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 Persons entitled to
vote a majority in principal amount of the Outstanding Securities
represented at the meeting.
(3) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each U.S. $1,000 principal amount of
Securities held or represented by him; provided, however, 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, except as a Holder of a Security or proxy.
(4) Any meeting of Holders duly called pursuant to Section 9.2 at
which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities represented at the meeting, and the meeting
may be held as so adjourned without further notice.
SECTION 9.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts at Stated
Maturity and serial numbers of the Outstanding 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, at least in duplicate, of the proceedings of each meeting of Holders
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 given as provided in Section 9.2 and, if applicable, Section
9.4. Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another 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.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay
the principal of and premium, if any, and interest on the Securities in
accordance with the terms of the Securities and this Indenture. The Company will
deposit or cause to be deposited with the Trustee or its nominee, no later than
the opening of business in New York City on the date of the Stated Maturity of
any Security or no later than the opening of business on the due date for any
installment of interest, all payments so due, which payments shall be in
immediately available funds on the date of such Stated Maturity or due date, as
the case may be.
SECTION 10.2 Maintenance of Offices or Agencies.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency 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 Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office or the office or agency of the Trustee in the Borough of
Manhattan, The City of New York.
The Company may at any time and from time to time vary or terminate the
appointment of any such agent or appoint any additional agents for any or all of
such purposes; provided, however, that until all of the Securities have been
delivered to the Trustee for cancellation, or moneys sufficient to pay the
principal of, premium, if any, and interest on the Securities have been made
available for payment and either paid or returned to the Company pursuant to the
provisions of Section 10.3, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment and conversion, which shall initially be
the Corporate Trust Office, where Securities may be surrendered for registration
of transfer or exchange 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, and notice to the Holders in
accordance with Section 1.6, of the appointment or termination of any such
agents and of the location and any change in the location of any such office or
agency.
The Company hereby initially designates the Trustee as Paying Agent,
Security Registrar and Conversion Agent, and the Corporate Trust Office as one
such office or agency of the Company for each of the aforesaid purposes.
SECTION 10.3 Money for Security Payments to Be Held in Trust.
If the Company shall act as its own Paying Agent, it will, on or before
each due date of the principal of, premium, if any, or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium, if any, or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and the Company will promptly notify the Trustee, in
writing, of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, no
later than the opening of business in New York City on each due date of the
principal of, premium, if any, or interest on any Securities, deposit with the
Trustee a sum in funds immediately payable on the payment date sufficient to pay
the principal, premium, if any, or interest so becoming due, such sum to be held
for the benefit of the Persons entitled to such principal, premium, if any, or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee, in writing, of any failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company
(or any other obligor upon the Securities) in the making of any
payment of principal, premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
In the absence of a written request from the Company to return
unclaimed funds to the Company, the Trustee shall from time to time deliver all
unclaimed funds to or as directed by applicable escheat authorities, as
determined by the Trustee in its sole discretion, in accordance with the
customary practices and procedures of the Trustee. Any unclaimed funds held by
the Trustee pursuant to this section shall be held uninvested and without any
liability for interest.
SECTION 10.4 Existence.
Subject to Article VII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
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 Holders.
SECTION 10.5 Statement by Officer as to Default.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, 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 status thereof of
which they may have knowledge.
The Company will deliver to the Trustee, forthwith upon becoming aware
of any default or any Event of Default under the Indenture, an Officer's
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. For the purpose of this Section, the term "default" means
any event that is, or after notice or lapse of time or both would become, an
Event of Default.
Any notice required to be given under this Section 10.5 shall be
delivered to the Trustee at its Corporate Trust Office.
SECTION 10.6 Delivery of Certain Information.
At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder of a Restricted Security or the
holder of shares of Common Stock issued upon conversion thereof, the Company
will promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder of Restricted Securities or such holder of shares of
Common Stock issued upon conversion of Restricted Securities, or to a
prospective purchaser of any such security designated by any such Holder or
holder, as the case may be, to the extent required to permit compliance by such
Holder or holder with Rule 144A under the Securities Act (or any successor
provision thereto) in connection with the resale of any such security; provided,
however, that the Company shall not be required to furnish such information in
connection with any request made on or after the date that is two years from the
later of (1) the date such a security (or any such predecessor security) was
last acquired from the Company or (2) the date such a security (or any such
predecessor security) was last acquired from an "affiliate" of the Company
within the meaning of Rule 144 under the Securities Act (or any successor
provision thereto). "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto).
SECTION 10.7 Registration Rights.
The Company agrees that the Holders from time to time of Registrable
Securities (as defined below) are entitled to the benefits of the Registration
Rights Agreement.
Under certain conditions set forth in the Registration Rights
Agreement, additional interest ("Liquidated Damages") may accrue on the
Securities. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security, such mention shall be deemed to include mention of the payment of
Liquidated Damages provided for in this Section to the extent that, in such
context, Liquidated Damages are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of
Liquidated Damages (if applicable) in any provisions hereof shall not be
construed as excluding Liquidated Damages in those provisions hereof where such
express mention is not made.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under this Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities; provided, however,
that a security ceases to be a Registrable Security when it is no longer a
Restricted Security.
If a Security, or the shares of Common Stock issuable upon conversion
of a Security, is a Registrable Security, and the Holder thereof elects to sell
such Registrable Security pursuant to the Shelf Registration Statement then, by
its acceptance thereof, the Holder of such Registrable Security will have agreed
to be bound by the terms of the Registration Rights Agreement relating to the
Registrable Securities which are the subject of such election.
For purposes of the Registration Rights Agreement, the term "Holder"
means any Person that is the record owner of Registrable Securities (and
includes any Person that has a beneficial interest in any Registrable Security
that is a Global Security).
If Liquidated Damages are payable under the Registration Rights
Agreement, the Company shall deliver to the Trustee no later than fifteen days
prior to the proposed payment date for the Liquidated Damages a certificate to
that effect stating (i) the amount of Liquidated Damages that is payable and
(ii) the date on which Liquidated Damages are payable. Unless and until a
Responsible Officer of the Trustee receives at the Corporate Trust Office such a
certificate, the Trustee may assume without inquiry that no Liquidated Damages
are payable. If Liquidated Damages have been paid by the Company directly to the
persons entitled to them, the Company shall deliver to the Trustee a certificate
setting forth the particulars of such payment.
The Trustee shall not at any time be under any duty or responsibility
to any Holder to determine the Liquidated Damages, or with respect to the
nature, extent, or calculation of the amount of Liquidated Damages owed, or with
respect to the method employed in such calculation of the Liquidated Damages.
SECTION 10.8 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 10.4 if the Holders shall, through
(1) the written consent of not less than a majority in aggregate principal
amount of the Outstanding Securities or (2) the adoption of a resolution at a
meeting of Holders of the Outstanding Securities at which a quorum is present by
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities represented at such meeting, either waive such compliance
in such instance or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee or any
Paying or Conversion Agent in respect of any such covenant or condition shall
remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption.
The Securities may be redeemed in accordance with the provisions of the
form of Security set forth in Section 2.2.
SECTION 11.2 Applicability of Article.
Redemption of Securities at the election of the Company or otherwise,
as permitted or required by any provision of the Securities or this Indenture,
shall be made in accordance with such provision and this Article XI.
SECTION 11.3 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of any of the Securities, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date.
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected by the Trustee within five Business
Days after it receives the notice described in 11.3, from the Outstanding
Securities not previously called for redemption, by lot or by such other method
as the Trustee may deem fair and appropriate.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities that have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as Outstanding for the purpose of such selection. The Trustee shall
promptly notify the Company and each Security Registrar in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount and certificate numbers thereof to
be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.5 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.6 to the Holders to be redeemed not less than 30 nor more than 60 days prior
to the Redemption Date, and such notice shall be irrevocable.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price, and accrued interest, if any, to, but
excluding, the Redemption Date,
(3) if less than all Outstanding Securities are to be redeemed,
the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities which will be outstanding
after such partial redemption,
(4) that on the Redemption Date the Redemption Price, and accrued
interest, if any, to, but excluding, the Redemption Date, will become
due and payable upon each such Security to be redeemed, and that
interest thereon shall cease to accrue on and after said date,
(5) the Conversion Rate, the date on which the right to convert
the Securities to be redeemed will terminate and the places where such
Securities may be surrendered for conversion, and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any, to, but excluding, the Redemption Date.
In case of a partial redemption, the notice shall specify the serial
and CUSIP numbers (if any) and the portions thereof called for redemption and
that transfers and exchanges may occur on or prior to the Redemption Date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request
(which request shall be delivered to the Trustee simultaneously with
notification of the Redemption Date pursuant to Section 11.3), by the Trustee in
the name of and at the expense of the Company. Notice of redemption of
Securities to be redeemed at the election of the Company received by the Trustee
shall be given by the Trustee to each Paying Agent in the name of and at the
expense of the Company.
SECTION 11.6 Deposit of Redemption Price.
On or prior to 10:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Trustee (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 10.3) an
amount of money (which shall be in immediately available funds on such
Redemption Date) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest to the
Redemption Date on, all the Securities which are to be redeemed on that date
other than any Securities called for redemption on that date which have been
converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or so segregated and held in trust for the redemption of such
Security shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 3.7) be paid to the Company or, if then held by the Company, shall be
discharged from such trust.
SECTION 11.7 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price, including accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
Security for redemption in accordance with said notice such Security shall be
paid by the Company at the Redemption Price together with accrued and unpaid
interest to but excluding the Redemption Date; provided, however, that
installments of interest on Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Date
according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal amount of, premium, if any, and,
to the extent permitted by applicable law, accrued interest on such Security
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security and such Security shall remain convertible until the Redemption
Price of such Security (or portion thereof, as the case may be) shall have been
paid or duly provided for.
Any Security that is to be redeemed only in part shall be surrendered
at the Corporate Trust Office or an office or agency of the Company designated
for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and make available for delivery to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 11.8 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 bankers or other purchasers (the "Purchasers") to
purchase such securities by paying to the Trustee in trust for the Holders, on
or before the Redemption Date, an amount not less than the applicable Redemption
Price, together with interest accrued and unpaid to but excluding the Redemption
Date, of such Securities. Notwithstanding anything to the contrary contained in
this Article XI, the obligation of the Company to pay the Redemption Price,
together with interest accrued and unpaid to but excluding the Redemption Date,
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
shall be filed with the Trustee prior to the close of business on the Business
Day immediately prior to the Redemption Date), any Securities called for
redemption that are 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, and consistent with any agreement or agreements with such Purchasers, to be
acquired by such Purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article XII) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (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
written direction of the Company, the Trustee shall hold and dispose of any such
amount paid to it by the Purchasers to the Holders 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, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
Purchasers, including the costs and expenses, including reasonable legal fees,
incurred by the Trustee in the defense of any claim or liability arising out of
or in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE XII
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege.
Subject to and upon compliance with the provisions of this Article, a
Holder of a Security may convert its Securities into shares of Common Stock at
the applicable Conversion Rate (as defined below) in effect on the date of
conversion under any of the following circumstances:
(1) during any Conversion Period prior to August 15, 2032, if the
Sale Price of the Common Stock for at least 20 Trading Days in the 30
consecutive Trading Day period ending on the first day of such
Conversion Period is more than 120% of the Conversion Price on the
first day of such Conversion Period. If an event set forth under
Section 12.6 shall have occurred during such 30 Trading Days ending on
the first day of such Conversion Period, the Sale Price of the Common
Stock on the Trading Day prior to such event shall be deemed for
purposes of the calculation described in the preceding sentence to
have been appropriately adjusted to reflect the occurrence of the
event. A "Conversion Period" will be the period from and including the
eleventh Trading Day in a fiscal quarter to, but not including, the
eleventh Trading Day in the immediately following fiscal quarter. The
"Conversion Price" per share of Common Stock as of any day shall equal
$1,000 divided by the Conversion Rate.
(2) at any time after the Sale Price of the Common Stock on any
date after August 15, 2032 through the Business Day immediately prior
to Maturity, is more than 120% of the then-current Conversion Price.
(3) during the five consecutive Business Day period following any
five consecutive Trading Day period in which the average of the
Trading Prices for a Security was less than 95% of the average Sale
Price of the Common Stock during such five consecutive Trading-Day
period multiplied by the applicable Conversion Rate. Notwithstanding
the foregoing, if the Holder is converting its Securities pursuant to
this paragraph (3) and on the Trading Day before the Conversion Date,
the Sale Price of the Common Stock is greater than 100% of the
Conversion Price but equal to or less than 120% of the Conversion
Price, the Holder converting its Securities shall receive, in lieu of
a number of shares of Common Stock based on the applicable Conversion
Rate, at the Company's sole option, cash or Common Stock, or a
combination of cash and Common Stock, with a value equal to the
principal amount of the Holder's converted Security (such conversion,
a "Principal Value Conversion") on the Conversion Date. Any Common
Stock to be delivered to the Holder by the Company upon a Principal
Value Conversion shall be valued at 100% of the average Sale Price for
the five consecutive Trading Days ending on the third Trading Day
preceding such Conversion Date. The Company shall notify the Trustee
and any converting Holder of Securities whose conversion is a
Principal Value Conversion of such Principal Value Conversion by the
second Trading Day following such Conversion Date and in such notice,
state whether the Company shall pay to such Holder all or a portion of
the principal amount of such Securities in cash, Common Stock or a
combination of cash and Common Stock and, if a combination, the
percentages of the principal amount in respect of which it will pay in
cash or Common Stock. Subject to the satisfaction of all requirements
for conversion hereunder, the Company shall (i) pay any portion of the
principal amount of Securities elected to be paid in cash by the
Company in a Principal Value Conversion on the third Trading Day
following the Conversion Date and (ii) deliver any portion of the
principal amount of Securities elected to be paid by the Company in
Common Stock in a Principal Value Conversion on the fourth Trading Day
following the Conversion Date.
The "Trading Price" of the Securities on any date of determination
means the average of the secondary market bid quotations per Security
obtained by the Trustee for $5,000,000 principal amount of the
Securities at approximately 3:30 p.m., New York City time, on such
determination date from two independent nationally recognized
securities dealers designated by the Company, which may include any of
the Initial Purchasers, provided that if at least two such bids cannot
reasonably be obtained by the Trustee, but one such bid can reasonably
be obtained by the Trustee, this one bid shall be used. If the Trustee
cannot reasonably obtain at least one bid for $5,000,000 principal
amount of the Securities from a nationally recognized securities dealer
or in the reasonable judgment of the Company, the bid quotations are
not indicative of the secondary market value of the Securities, then
the Trading Price of the Securities will equal (1) the then-applicable
Conversion Rate of the Securities multiplied by (2) the Sale Price of
the Common Stock on such determination date; provided that the Trustee
shall not determine the Trading Price of the Securities unless
requested by the Company; and provided, further, that the Company shall
have no obligation to make such request unless a holder of Securities
provides the Company with reasonable evidence that the Trading Price of
the Security for a five consecutive Trading-Day period may be less than
95% of the average Sale Price of the Common Stock during such five
consecutive Trading-Day period multiplied by the applicable Conversion
Rate; and at which time, the Company shall instruct the Trustee to
determine the Trading Price of the Securities for the five consecutive
Trading-Day period to determine whether the Securities are convertible
pursuant to Section 12.1(3).
(4) if, and for so long as, the credit rating assigned to the
Securities by either ▇▇▇▇▇'▇ or S&P is reduced at least two notches
below Ba3 and BB, respectively; provided, however, the Securities
shall not be convertible if the credit rating assigned to the
Securities has been suspended or withdrawn by either such rating
agency or if either of such rating agencies ceases to rate the
Securities; and provided further that the Trustee shall have no
obligation to ascertain the credit ratings assigned to the Securities,
and the Company shall promptly notify the Trustee in writing of any
such reduction.
(5) at any time prior to 5:00 p.m., New York City time, on the
Business Day immediately preceding the Redemption Date, if such
Security has been called for redemption pursuant to Article XI hereof.
(6) if the Company distributes to all holders of its Common Stock
rights entitling them to purchase for a period expiring within 60 days
of the declaration date for such distribution, Common Stock at less
than the then Current Market Price at that time, or declares a
distribution to all Holders of its Common Stock assets, debt
securities or rights to purchase Securities where the fair market
value of such distribution per share of Common Stock exceeds 10.0% of
the Sale Price of a share of Common Stock as of the Business Day prior
to the date of declaration for such distribution, the Securities may
be converted beginning on the date the Company gives notice to the
Holders of such right, which shall be not less than 20 days prior to
the Ex-Dividend Time for such dividend or distribution, and the
Securities may be converted at any time thereafter until the close of
business on the Business Day prior to the Ex-Dividend Time or until
the Company announces that such distribution will not take place;
provided, however, that a Holder shall not have the right to convert
pursuant to this paragraph (6) if the Holder will otherwise
participate in the distribution without conversion.
(7) if the Company is a party to a consolidation, merger or
binding share exchange pursuant to which all or substantially all of
the shares of Common Stock would be converted into cash, securities or
other property, the Securities may be converted at any time from and
after the date that is 15 days prior to the date the Company announces
as the anticipated effective time of the transaction until 15 days
after the actual date of such transaction. If the transaction
constitutes a Change in Control, the Holders will be entitled to
require the Company to purchase all or a portion of its Securities
pursuant to Article XIII.
A Security in respect of which a Holder has delivered a Repurchase
Notice or a Change in Control Repurchase Notice exercising the option of such
Holder to require the Company to purchase such Security may be converted only if
such notice of exercise is withdrawn in accordance with Article XIII. In case a
Security or portion thereof is called for redemption at the election of the
Company or the Holder thereof exercises his right to require the Company to
repurchase the Security in accordance with Article XIII, such conversion right
in respect of the Security, or portion thereof so called, shall expire at the
close of business on the Business Day immediately preceding the Redemption Date
or the Repurchase Date or the Change in Control Repurchase Date, as the case may
be, unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be (in each case, subject to any Applicable
Procedures with respect to any Global Security).
SECTION 12.2 Conversion Rate.
The number of shares of Common Stock issuable upon conversion of a
Security (the "Conversion Rate") shall initially be 21.5054 shares of Common
Stock per $1,000 principal amount of Securities, subject to adjustment in
certain events described Section 12.6. The Company shall notify the Trustee of
each date on which the Securities become convertible pursuant to Section 12.1
and of each date on which the Securities are no longer convertible pursuant to
Section 12.1, which notices shall set forth the calculations on which such
determination was made. Unless and until the Trustee receives an Officer's
Certificate that the Securities are convertible, the Trustee may assume without
inquiry that the Securities are not convertible and unless and until the Trustee
receives an Officer's Certificate that the Securities are no longer convertible,
the Trustee may assume without inquiry that the Securities are convertible.
SECTION 12.3 Conversion Procedure.
A Holder may convert a portion of a Security if the portion converted
is in a $1,000 principal amount or an integral multiple of $1,000 in excess
thereof. Provisions of this Section 12.3 that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
To convert a Security, a Holder must, in the case of a Global Security,
comply with the Applicable Procedures of the Depositary, and in the case of a
Non-Global Security, (1) complete and manually sign the form of irrevocable
conversion notice (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (2) surrender, if a Non-Global
Security, the Security to the Conversion Agent, and in any such case, furnish
appropriate endorsements and transfer documents and pay any transfer or similar
taxes and all other taxes or duties, if required. The first Business Day on
which the Holder satisfies all those requirements is the conversion date (the
"Conversion Date").
As promptly as practicable on or after the Conversion Date, the Company
shall issue and deliver to the Holder, through the Conversion Agent, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion, and cash in lieu of any fractional share
determined pursuant to Section 12.4 (other than in the case of Holders in
book-entry form with the Depositary, which shares shall be delivered in
accordance with the Depositary's Applicable Procedures). The Person in whose
name the certificate is registered shall be treated as a stockholder of record
as of the close of business on the Conversion Date. Upon conversion of a
Security in its entirety, such Person shall no longer be a Holder of such
Security.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time.
All shares of Common Stock delivered upon such conversion of Restricted
Securities shall bear restrictive legends substantially in the form of the
legends required to be set forth on the Restricted Securities pursuant to
Section 3.5 and shall be subject to the restrictions on transfer provided in
such legends. Neither the Trustee nor any Conversion Agent shall have any
responsibility for the inclusion or content of any such restrictive legends on
such Common Stock.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
If shares of Common Stock to be issued upon conversion of a Restricted
Security, or Securities to be issued upon conversion of a Restricted Security in
part only, are to be registered in a name other than that of the beneficial
owner of such Restricted Security, then such Holder must deliver to the
Conversion Agent a Surrender Certificate, dated the date of surrender of such
Restricted Security and signed by such beneficial owner, as to compliance with
the restrictions on transfer applicable to such Restricted Security. Neither the
Trustee nor any Conversion Agent, registrar or transfer agent shall be required
to register in a name other than that of the beneficial owner, shares of Common
Stock or Securities issued upon conversion of any such Restricted Security not
so accompanied by a properly completed Surrender Certificate.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any shares of Common Stock except as provided in
this Section. On conversion of a Security, that portion of accrued and unpaid
interest, if any, through the Conversion Date 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 shares
of Common Stock (together with the cash payment, if any, in lieu of fractional
shares) 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 accrued and unpaid interest, if any,
through the Conversion Date, and the balance, if any, of such fair market value
of such shares of Common Stock (and any such cash payment) shall be treated as
issued for the principal amount of the Securities. The Company will not adjust
the Conversion Rate to account for accrued interest, if any. If the Holder
converts more than one Security at the same time, the number of shares of Common
Stock issuable upon the conversion shall be based on the total principal amount
of the Securities, including any accrued and unpaid interest of the Securities
converted.
Except as provided in this paragraph, a Holder of Securities who
converts on a date that is not an Interest Payment Date, shall not be entitled
to receive any accrued and unpaid interest on any such Securities being
converted. If a Holder is a holder of a Security on a Regular Record Date,
including any Securities converted subsequent to the Regular Record Date
preceding an Interest Payment Date but prior to such Interest Payment Date, the
Holder of such Securities at 5:00 p.m. New York City time on such Regular Record
Date shall receive the interest payable on such Security on such Interest
Payment Date notwithstanding the conversion thereof. Securities converted during
the period from 5:00 p.m. New York City time on any Regular Record Date
preceding any Interest Payment Date to 9:00 a.m. New York City time on such
Interest Payment Date shall be accompanied by payment from converting Holders,
for the account of the Company, of an amount equal to the interest payable on
such Interest Payment Date on the Securities being surrendered for conversion;
provided, however, a Holder will not be required to make such payment if it is
converting a Security that the Company has called for redemption, or that the
Holder is entitled to require the Company to repurchase from such Holder, if the
conversion right would terminate because of the redemption or repurchase between
the Regular Record Date and the close of business on the second Business Day
following the next succeeding Interest Payment Date.
SECTION 12.4 Fractional Shares.
The Company will not issue fractional shares of Common Stock upon
conversion of a Security. Instead, the Company will pay cash based on the
current market value of the fractional shares. The current market value of a
fractional share shall be determined, to the nearest 1/1,000th of a share, by
multiplying the Sale Price, on the last Trading Day immediately prior to the
Conversion Date, of a full share of Common Stock by the fractional amount and
rounding the product to the nearest whole cent. Whether fractional shares are
issuable upon a conversion will be determined on the basis of the total number
of Securities that the Holder is then converting into Common Stock and the
aggregate number of shares of Common Stock issuable upon such conversion.
SECTION 12.5 Taxes on Conversion.
If a Holder submits a Security for conversion, the Company shall pay
all stamp and all other duties, if any, which may be imposed by the United
States or any political subdivision thereof or taxing authority thereof or
therein with respect to the issuance of shares of Common Stock upon the
conversion. However, the Holder shall pay any such tax which is due because the
Holder requests the shares to be issued in a name other than the Holder's name.
The Conversion Agent may refuse to deliver the certificates representing the
shares of Common Stock being issued in a name other than the Holder's name until
the Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or
regulations.
SECTION 12.6 Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustments from time to time
as follows:
(1) In case the Company shall pay or make a dividend or other
distribution payable exclusively in shares of Common Stock to all
holders of its Common Stock, the Conversion Rate in effect at the
opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or
other distribution shall be increased by dividing the Conversion Rate
in effect immediately prior to such date by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination.
If, after any such date fixed for determination, any dividend or
distribution is not in fact paid, the Conversion Rate shall be
immediately readjusted, effective as of the date the Board of
Directors determines not to pay such dividend or distribution, to the
Conversion Rate that would have been in effect if such determination
date had not been fixed. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants
to all holders of its Common Stock entitling them to subscribe for or
purchase shares of Common Stock at a price per share less than the
current market price per share (determined as provided in paragraph
(8) of this Section 12.6) of the Common Stock on the date of approval
by the Board of Directors of the issuance of such rights, options or
warrants (other than any rights, options or warrants that by their
terms will also be issued to any Holder upon conversion of a Security
into shares of Common Stock without any action required by the Company
or any other Person), the Conversion Rate in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such rights, options or warrants
shall be increased by dividing the Conversion Rate in effect
immediately prior to such date by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number
of shares of Common Stock that the aggregate of the offering price of
the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. If, after any such date fixed for such determination,
any such rights, options or warrants are not in fact issued, or are
not exercised prior to the expiration thereof, the Conversion Rate
shall be immediately readjusted, effective as of the date such rights,
options or warrants expire, or the date the Board of Directors
determines not to issue such rights, options or warrants, to the
Conversion Rate that would have been in effect if the unexercised
rights, options or warrants had never been granted or such
determination date had not been fixed, as the case may be. For the
purposes of this paragraph (2), the number of shares of Common Stock
at any time outstanding shall not include shares held in the treasury
of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
The Company will not issue any rights, options or warrants in respect
of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion 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.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock, or rights, options
or warrants to subscribe for or purchase shares of any class of
capital stock (other than any rights, options or warrants that by
their terms will also be issued to any Holder upon conversion of a
Security into shares of Common Stock without any action required by
the Company or any other Person) or other property (including cash or
assets or securities, but excluding (i) any rights, options or
warrants referred to in paragraph (2) of this Section, (ii) any
dividend or distribution paid exclusively in cash, (iii) any dividend
or distribution referred to in paragraph (1) of this Section and (iv)
any consideration distributed in any merger or consolidation to which
Section 12.12 applies), the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Conversion
Rate in effect immediately prior to the close of business on the date
fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in paragraph (8) of
this Section 12.6) of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) of the portion of the assets, shares
or evidences of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such current market price
per share of the Common Stock, such adjustment to become effective
immediately prior to the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive
such distribution. If after any such date fixed for determination, any
such distribution is not in fact made, the Conversion Rate shall be
immediately readjusted, effective as of the date that the Board of
Directors determines not to make such distribution, to the Conversion
Rate that would have been in effect if such determination date had not
been fixed.
In the event the then fair market value (as so determined) of the
portion of the evidences of indebtedness, shares of any class of
capital stock or other property so distributed is equal to or greater
than the current market price per share of the Common Stock on such
date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder of a Security shall have the right to receive
upon conversion the amount of such evidences of indebtedness, shares of
any class of capital stock or other property such Holder would have
received had such Holder converted each Security on such date.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding cash
distributed upon a merger or consolidation to which Section 12.12
applies) in an aggregate amount that, combined together with the
aggregate amount of any other distributions to all holders of its
Common Stock made exclusively in cash within the 365-day period
preceding the date of payment of such distribution and in respect of
which no adjustment pursuant to this paragraph (5) or paragraph (6) of
this Section 12.6 has been made exceeds $0.32 per share, then, and in
each such case, immediately after the close of business on the date
for determination of stockholders entitled to receive such dividend or
other distribution, the Conversion Rate shall be adjusted so that the
same shall equal the rate determined by multiplying the Conversion
Rate in effect immediately prior to such determination date by a
fraction, the numerator of which shall be equal to the sum of (i) the
current market price per share (determined as provided in paragraph
(8) of this Section 12.6) of the Common Stock as of the date of
approval by the Board of Directors of the Company of such dividend or
other distribution and (ii) the amount by which the cash dividends or
other distributions within such 365 day period exceeds $0.32 per share
and the denominator of which is such current market price per share of
Common Stock.
(6) In case a tender offer made by the Company or any Subsidiary
for all or any portion of the Common Stock shall expire and such
tender offer (as amended upon the expiration thereof) shall require
the payment to stockholders (based on the acceptance (up to any
maximum specified in the terms of the tender offer) of Purchased
Shares (as defined below)) of an aggregate consideration having a fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution)
that combined together with (i) the aggregate of the cash plus the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender offer, of any
non-cash consideration payable in respect of any other tender offer by
the Company or any Subsidiary for all or any portion of the Common
Stock expiring within the 365-day period preceding the expiration of
such tender offer and in respect of which no adjustment pursuant to
this paragraph (6) or paragraph (5) of this Section 12.6 has been made
and (ii) the aggregate amount of any cash distributions to all holders
of the Common Stock within 365-day period preceding the expiration of
such tender offer and in respect of which no adjustment pursuant to
paragraph (5) of this Section has been made (the "combined tender and
cash amount") exceeds 10% of the product of the current market price
per share of the Common Stock (determined as provided in paragraph (8)
of this Section 12.6) as of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender offer (as it may
be amended) times the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time, then, and
in each such case immediately prior to the opening of business on the
day after the date of the Expiration Time, the Conversion Rate shall
be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate immediately prior to the close of
business on the date of the Expiration Time by a fraction (A), the
numerator of which shall be equal to (x) the product of the current
market price per share of the Common Stock (determined as provided in
paragraph (8) of this Section 12.6) on the date of the Expiration Time
multiplied by the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time less (y) the
combined tender and cash amount, and (B) the denominator of which
shall be equal to the product of (x) the current market price per
share of the Common Stock (determined as provided in paragraph (8) of
this Section 12.6) on the date of the Expiration Time multiplied by
(y) the number of shares of Common Stock outstanding (including any
tendered shares) as of the Expiration Time less the number of all
shares validly tendered and not withdrawn as of the Expiration Time
(the shares deemed so accepted up to any such maximum, being referred
to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other
than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 12.12 applies) shall be
deemed to involve (i) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the effective date of
such reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution"
and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section 12.6), and (ii) a subdivision or
combination, as the case may be, of the number of shares of Common
Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective," as the case may be,
and "the day upon which such subdivision or combination becomes
effective" within the meaning of paragraph (3) of this Section 12.6).
(8) For the purpose of any computation under paragraph (2), (4),
(5) or (6) of this Section 12.6, the current market price per share of
Common Stock on any date shall be calculated by the Company and be the
average of the daily Sale Price for the five consecutive Trading Days
selected by the Company commencing not more than 10 Trading Days
before, and ending not later than the earlier of the day in question
and the day before the "ex date" with respect to the issuance or
distribution requiring such computation. For purposes of this
paragraph, the term "'ex date," when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades
regular way in the applicable securities market or on the applicable
securities exchange without the right to receive such issuance or
distribution.
(9) No adjustment in the Conversion Rate shall be required unless
such adjustment (plus any adjustments not previously made by reason of
this paragraph (9)) would require an increase or decrease of at least
one percent in such rate; provided, however, that any adjustments
which by reason of this paragraph (9) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case
may be.
(10) The Company may make such increases in the Conversion Rate,
for the remaining term of the Securities or any shorter term, in
addition to those required by paragraphs (1), (2), (3), (4), (5), (6)
and (7) of this Section 12.6, as it considers to be advisable in order
to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any
event treated as such for income tax purposes. The Company shall have
the power to resolve any ambiguity or correct any error in this
paragraph (10) and its actions in so doing shall, absent manifest
error, be final and conclusive.
(11) Notwithstanding the foregoing provisions of this Section
12.6, no adjustment of the Conversion Rate shall be required to be
made (i) upon the issuance of shares of Common Stock pursuant to any
present or future plan for the reinvestment of dividends, or (ii)
because of a tender or exchange offer of the character described in
Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) 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 such 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; provided, however, that no such increase shall be taken
into account for purposes of determining whether the Sale Price of the
Common Stock equals or exceeds 105% of the Conversion Price in
connection with an event which would otherwise be a Change in Control
pursuant to Section 13.5. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall give notice of
the increase to the Holders in the manner provided in Section 1.6 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.
(13) There shall be no adjustment to the Conversion Rate upon the
issuance of rights under the Company's rights agreement dated as of
August 20, 1999, or upon issuance of rights pursuant to a rights
agreement hereafter adopted that is an amendment, renewal or
replacement thereof, prior to such rights being separated from the
Common Stock. If Holders of the Securities exercise the right of
conversion prior to the rights trading separately from the Common
Stock, such Holders shall receive rights in addition to the Common
Stock upon conversion of such Securities. If Holders of the Securities
exercise the right of conversion after the date the rights issued
under the Company's rights agreement separate from the underlying
Common Stock, such Holders shall be entitled to receive the rights
that would otherwise be attributable to the shares of Common Stock
received upon conversion and the Conversion Rate, in such case, will
be adjusted as though such rights were being distributed to holders of
Common Stock on the date of such separation. If such an adjustment is
made and such rights are later redeemed, invalidated or terminated,
then a corresponding reversing adjustment will be made to the
Conversion Rate on an equitable basis.
SECTION 12.7 Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 12.6 and shall prepare an Officer's
Certificate setting forth the adjusted Conversion Rate and showing in
reasonable detail the facts upon which such adjustment is based, and
such certificate shall promptly be filed with the Trustee and with
each Conversion Agent; and
(2) upon each such adjustment, a notice stating that the
Conversion Rate has been adjusted and setting forth the adjusted
Conversion Rate shall be required, and as soon as practicable after it
is required, such notice shall be provided by the Company to all
Holders in accordance with Section 1.6.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours, and shall not be deemed to have knowledge of any adjustment in the
Conversion Rate unless and until a Responsible Officer of the Trustee shall have
received such a certificate. Until a Responsible Officer of the Trustee receives
such a certificate, the Trustee and each Conversion Agent may assume without
inquiry that the last Conversion Rate of which the Trustee has actual knowledge
remains in effect.
SECTION 12.8 Notice of Certain Corporate Action.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) other than exclusively
in cash or (ii) exclusively in cash in an amount that would require an
adjustment pursuant to Section 12.6; or
(2) the Company shall authorize the granting to all or
substantially all of the holders of its Common Stock of rights,
options or warrants to subscribe for or purchase any shares of capital
stock of any class or of any other rights (other than pursuant to a
rights agreement referred to in Section 12.6(13)); or
(3) of any reclassification of the Common Stock, or of any
consolidation, merger or share exchange to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the conveyance, sale, transfer or lease of all or
substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.2, and shall
cause to be provided to all Holders, with a copy to the Trustee and the
Conversion Agent in accordance with Section 1.6, at least 20 days prior to the
applicable record or effective date hereinafter specified, a notice stating (A)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution, rights, options or warrants are to be determined or
(B) the date on which such reclassification, consolidation, merger, conveyance,
transfer, sale, lease, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up. Neither the failure to give such notice or the notice
referred to in the following paragraph nor any defect therein shall affect the
legality or validity of the proceedings described in paragraphs (1) through (4)
of this Section 12.8. If at the time the Trustee shall not be the Conversion
Agent, a copy of such notice shall also forthwith be filed by the Company with
the Trustee.
The Company shall cause to be filed at the Corporate Trust Office and
each office or agency maintained for the purpose of conversion of Securities
pursuant to Section 10.2, and shall cause to be provided to all Holders in
accordance with Section 1.6, notice of any tender offer by the Company or any
Subsidiary for all or any portion of the Common Stock at or about the time that
such notice of tender offer is provided to the public generally.
SECTION 12.9 Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all Outstanding Securities.
SECTION 12.10 Covenant as to Common Stock.
The Company agrees that all shares of Common Stock that may be
delivered upon conversion of Securities, upon such delivery, will have been duly
authorized and validly issued and will be fully paid and nonassessable and,
except as provided in Section 12.5, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
SECTION 12.11 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee or its agent to be canceled by or at the direction of the Trustee, which
shall dispose of the same as provided in Section 3.9.
SECTION 12.12 Provision in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation or merger of the Company with or into any
other Person or any merger of another Person with or into the Company (other
than a merger that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock of the Company) or any
conveyance, sale, transfer or lease of all or substantially all of the assets of
the Company (other than a sale of all or substantially all of the assets of the
Company that does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company), the Person
formed by such consolidation or resulting from such merger or which acquires
such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 12.1, to convert such Security only
into the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, sale, transfer or lease by a holder of
the number of shares of Common Stock of the Company into which such Security
might have been converted immediately prior to such consolidation, merger,
conveyance, sale, transfer or lease, assuming such holder of Common Stock of the
Company (i) is not (A) a Person with which the Company consolidated or merged
with or into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease was made, as the case may be (a "Constituent
Person"), or (B) an Affiliate of a Constituent Person and (ii) failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, conveyance,
sale, transfer or lease (provided that if the kind or amount of securities, cash
and other property receivable upon such consolidation, merger, conveyance, sale,
transfer or lease is not the same for each share of Common Stock of the Company
held immediately prior to such consolidation, merger, conveyance, sale, transfer
or lease by others than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("Non-electing Share"), then for the purpose of this Section 12.12 the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease by the holders of
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 that, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section 12.12 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 1.6 promptly upon such execution.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or other securities or property or cash receivable by Holders upon the
conversion of their Securities after any such consolidation, merger, conveyance,
transfer, sale or lease or to any such adjustment, but may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
conclusively relying upon, an Officer's Certificate or an Opinion of Counsel
with respect thereto, which the Company shall cause to be furnished to the
Trustee upon request.
SECTION 12.13 Responsibility of Trustee for Conversion Provisions.
The Trustee, subject to the provisions of Section 6.1, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist which may require
any adjustment of the Conversion Rate, or with respect to the nature or extent
of any such adjustment when made, or with respect to the method employed, herein
or in any supplemental indenture provided to be employed, in making the same, or
whether a supplemental indenture need be entered into. Neither the Trustee,
subject to the provisions of Section 6.1, nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind or amount) of any
Common Stock, or of any other securities or property or cash, which may at any
time be issued or delivered upon the conversion of any Security; and it or they
do not make any representation with respect thereto. Neither the Trustee,
subject to the provisions of Section 6.1, nor any Conversion Agent shall be
responsible for any failure of the Company to make or calculate any cash payment
or to issue, transfer or deliver any shares of Common Stock or share
certificates or other securities or property or cash upon the surrender of any
Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 6.1, and any Conversion Agent shall not be responsible for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article.
ARTICLE XIII
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON CERTAIN DATES OR UPON A CHANGE IN CONTROL
SECTION 13.1 Purchase of Securities by the Company at Option of the Holder.
The Securities shall be subject to repurchase by the Company at the
option of the Holder on August 15, 2010, August 15, 2013, August 15, 2018,
August 15, 2023 and August 15, 2028 (each, a "Repurchase Date"), at a repurchase
price equal to 100% of the principal amount of the Securities to be repurchased
plus accrued and unpaid interest, if any, to, but not including, such Repurchase
Date (the "Repurchase Price"), subject to the satisfaction by or on behalf of
the Holder of the requirements set forth in Section 13.3.
SECTION 13.2 Repurchase Notice by the Company.
No later than 20 Business Days prior to each Repurchase Date, the
Company shall mail a written notice of the repurchase right by first class mail
to the Trustee and to each Holder. The notice shall include a form of Repurchase
Notice (as defined below) to be completed by the Holder and shall briefly state,
as applicable:
(1) the date by which the Repurchase Notice must be delivered to
the Paying Agent in order for a Holder to exercise the repurchase
right;
(2) the Repurchase Date;
(3) the Repurchase Price;
(4) whether the Repurchase Price will be paid in cash or, if
permitted hereunder, in shares of Common Stock, or a combination
thereof and, in the case of a combination, the percentage of each;
(5) if the Repurchase Date is not August 15, 2010, whether the
Company elects to pay the Repurchase Price in shares of Common Stock
or a combination of cash and shares of Common Stock pursuant to
Section 13.4, that the number of shares of Common Stock each Holder
will receive will equal the portion of the Repurchase Price to be paid
in shares of Common Stock divided by 95% of the average Sale Price of
the Common Stock for the five Trading Days immediately preceding and
including the third Business Day immediately preceding the Repurchase
Date.
(6) if the Repurchase Date is not August 15, 2010, whether the
Company elects to pay the Repurchase Price in shares of Common Stock
or a combination of cash and shares of Common Stock pursuant to
Section 13.4, the method of calculating the Sale Price of the shares
of Common Stock;
(7) that because the Sale Price of the shares of Common Stock
will be determined prior to the Repurchase Date, Holders of the
Securities will bear the market risk that the shares of Common Stock
to be received will decline in value between the date such Sale Price
is determined and the Repurchase Date;
(8) the name and address of the Paying Agent and the Conversion
Agent;
(9) the Conversion Rate and any adjustments thereto;
(10) that the Securities as to which a Repurchase Notice has been
given may be converted if they are otherwise convertible pursuant to
Article XII only if the Repurchase Notice has been withdrawn in
accordance with the terms hereof;
(11) if the Security is a Non-Global Security, that the Security
must be surrendered to the Paying Agent to collect payment;
(12) that the Repurchase Price for any Security as to which a
Repurchase Notice has been duly given and not withdrawn will be paid
promptly following the Repurchase Date, or if the Security is a
Non-Global Security the later of the Repurchase Date and the time of
surrender of such Security;
(13) the procedures the Holder must follow to exercise its right
to require the Company to repurchase its Securities under this Section
13.2;
(14) the conversion rights, if any, of the Securities;
(15) the procedures for withdrawing a Repurchase Notice;
(16) that, unless the Company defaults in making payment of such
Repurchase Price, interest on Securities subject to repurchase by the
Company will cease to accrue on and after the Repurchase Date; and
(17) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give the notice of
repurchase right in the Company's name and at the Company's expense; provided,
however, that the Company makes such request at least seven Business Days
(unless a shorter period shall be satisfactory to the Trustee) prior to the date
by which such notice of repurchase right must be given to the Holder in
accordance with this Section 13.2; provided, further, that the text of the
notice of repurchase right shall be prepared by the Company.
SECTION 13.3 Repurchase Deliveries by Holder.
Purchases of Securities under Section 13.1 shall be made, at the option
of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written
notice of purchase (a "Repurchase Notice") in the form set forth in
Section 2.2 during the period beginning at any time from 9:00 a.m.,
New York City time, on the date that is 20 Business Days immediately
preceding the relevant Repurchase Date until 5:00 p.m., New York City
time, on the Business Day immediately preceding such Repurchase Date
stating:
(i) the certificate number of the Security which the Holder
will deliver to be purchased if Non-Global Securities have been
issued,
(ii) the portion of the aggregate principal amount of the
Security which the Holder will deliver to be purchased, which
portion must be in aggregate principal amounts of $1,000 or an
integral multiple thereof,
(iii) that such Security shall be purchased by the Company
as of the Repurchase Date pursuant to the terms and conditions
specified in the Securities and in the Indenture; and
(2) delivery or book-entry transfer of such Security to the
Paying Agent prior to, on or after the Repurchase Date (together with
all necessary endorsements) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the Repurchase
Price therefor; provided, however, that such Repurchase Price shall be
so paid only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related
Repurchase Notice, as determined by the Company.
If the Securities are Global Securities, the Repurchase Notice must
comply with Applicable Procedures.
Any purchase by the Company contemplated pursuant to Section 13.1 shall
be consummated by the delivery to the Paying Agent of the cash or Common Stock,
as applicable, sufficient to pay the Repurchase Price to be received by the
Holder promptly following the later of the Repurchase Date and the time of
delivery or book-entry transfer of the Security.
If shares of Common Stock to be delivered upon repurchase of a Security
are to be registered in a name other than the Holder's name, then such Holder
must deliver to the Paying Agent a Surrender Certificate, dated the date of
surrender of such Security and signed by such Holder, as to compliance with the
restrictions on transfer applicable to such Security. Neither the Trustee nor
the Paying Agent or other agents shall be required to register in a name other
than the Holder's name shares of Common Stock issued upon repurchase of any such
Security not so accompanied by a properly completed Surrender Certificate.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Repurchase Notice contemplated by this Section 13.3
shall have the right to withdraw such Repurchase Notice at any time prior to
5:00 p.m. New York City time on the Business Day immediately preceding the
Repurchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 13.11 below.
SECTION 13.4 Payment of Repurchase Price.
If Securities are to be repurchased on August 15, 2010 pursuant to
Section 13.1, the Repurchase Price shall be paid in cash. If Securities are to
be repurchased on August 15, 2013, August 15, 2018, August 15, 2023 or August
15, 2028 pursuant to Section 13.1, the Repurchase Price may be paid, at the
election of the Company, in cash or shares of Common Stock, or in any
combination of cash and shares of Common Stock, subject to the conditions set
forth below. The Company shall designate, in the notice of repurchase right
delivered pursuant to Section 13.2 above, whether the Company will repurchase
Securities for cash or, if permitted hereunder, shares of Common Stock, or, if a
combination thereof, the percentages of the Repurchase Price in respect of which
it will pay in cash or shares of Common Stock; provided, however, that the
Company will pay cash for fractional interests in a share of Common Stock. For
purposes of determining the existence of potential fractional interests, all
Securities subject to repurchase by the Company held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented). Each Holder whose Securities are repurchased pursuant to Section
13.1 shall receive the same percentage of cash or, if permitted hereunder,
shares of Common Stock in payment of the Repurchase Price for such Security, (1)
except as provided in this Section 13.4 with regard to the payment of cash in
lieu of fractional shares of Common Stock and (2) in the event that the Company
is unable to purchase the Securities of the Holder or Holders for shares of
Common Stock because any necessary qualifications or registration of the shares
of Common Stock under applicable securities laws cannot be obtained, the Company
may purchase the Securities of such Holder or Holders for cash. The Company may
not change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has given its
notice of repurchase right to Holders except in the event of a failure to
satisfy, prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Repurchase Date, any condition to the payment of the Repurchase
Price in whole or in part, in shares of Common Stock.
If the Company elects to pay all or a portion of the Repurchase Price
of Securities in respect of which a Repurchase Notice has been given in shares
of Common Stock, the number of shares of Common Stock to be issued shall be
equal to the portion of the Repurchase Price to be paid in shares of Common
Stock divided by 95% of the average Sale Price of the Common Stock for the five
Trading Days immediately preceding and including the third Business Day
immediately preceding the Repurchase Date, subject to satisfaction of the
conditions set forth in the second succeeding paragraph.
The Company will not issue any fraction of a share of Common Stock in
payment of the Repurchase Price. Instead, the Company will make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the Sale
Price of one share of Common Stock on the last Trading Day immediately prior to
the Repurchase Date. If a Holder elects to have more than one Security
purchased, the number of shares of Common Stock shall be based on the aggregate
amount of Securities to be purchased.
The Company's right to exercise its election to repurchase Securities
through the issuance of shares of Common Stock shall be conditioned upon:
(1) the registration of such shares of Common Stock under the
Securities Act, if required;
(2) any qualification of such shares of Common Stock under
applicable state securities laws, if necessary, or the availability of
an exemption from such qualification;
(3) the listing of such shares of Common Stock on a United States
national securities exchange or the quotation of such shares of Common
Stock in an inter-dealer quotation system of any registered United
States national securities association;
(4) the receipt by the Trustee of an Officer's Certificate
stating: (i) that the terms of the issuance of the shares of Common
Stock are in conformity with the Indenture; (ii) that the shares of
Common Stock to be issued in payment of the Repurchase Price in
respect of Securities have been duly authorized and, when issued and
delivered pursuant to the terms of the Indenture in payment of the
Repurchase Price in respect of Securities, will be validly issued,
fully paid, non-assessable and free from preemptive rights; (iii) that
the conditions in this paragraph (4)(i) and 4(ii) above, the
conditions in paragraphs (1) - (3) above and the condition set forth
in the third succeeding paragraph regarding issuance of a press
release have been satisfied in all material respects; and (iv) the
number of shares of Common Stock to be issued for each $1,000
principal amount of Securities and the Sale Price of a share of Common
Stock on each Trading Day during the period the average Sale Price is
calculated; and
(5) the receipt by the Trustee of an Opinion of Counsel stating
that: (i) the shares of Common Stock to be issued in payment of the
Repurchase Price in respect of Securities have been duly authorized,
and when issued and delivered pursuant to the terms of the Indenture
in payment of the Repurchase Price in respect of Securities, will be
validly issued, fully paid and non-assessable and, to the best of such
counsel's knowledge, free from preemptive rights; and (ii) the
conditions in paragraphs (1) through (3) above have been satisfied in
all material respects.
If the foregoing conditions are not satisfied with respect to a Holder
or Holders prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Repurchase Date, and the Company has elected to
repurchase the Securities through the issuance of Common Stock, the Company
shall pay the entire Repurchase Price of the Securities of such Holder or
Holders in cash.
Upon determination of the actual number of shares of Common Stock to be
issued upon repurchase of Securities, the Company shall be required to
disseminate a press release through a public medium as is customary for such a
press release.
If a Holder of a repurchased Security is paid in shares of Common
Stock, the Company shall pay any documentary, stamp or similar issue or transfer
tax due on such issue of shares of Common Stock. However, the Holder shall pay
any such tax which is due because the Holder requests the shares of Common Stock
to be issued in a name other than the Holder's name. The Paying Agent may refuse
to deliver the certificates representing the shares of Common Stock being issued
in a name other than the Holder's name until the Paying Agent receives a sum
sufficient to pay any tax which will be due because the shares of Common Stock
are to be issued in a name other than the Holder's name. Nothing contained
herein shall preclude any income tax withholding required by law or regulations.
SECTION 13.5 Purchase of Securities at the Option of the Holder upon a
Change in Control.
If a Change in Control occurs, the Securities not previously purchased
or called for redemption by the Company shall be purchased by the Company, at
the option of the Holder thereof, at a repurchase price equal to 100% of the
principal amount of the Securities to be repurchased, plus accrued and unpaid
interest, if any, to, but not including, the Change in Control Repurchase Date
(the "Change in Control Repurchase Price"). The date the Company shall
repurchase the Securities pursuant to this Section shall be 45 days after the
Change in Control Notice Date (as defined below) delivered by the Company (the
"Change in Control Repurchase Date"), subject to satisfaction by or on behalf of
the Holder of the requirements set forth in Section 13.7.
A "Change in Control" shall be deemed to have occurred at any time
after any of the following events shall occur:
(1) Any Person acquires beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, of shares of the Company's
capital stock entitling the person to exercise 50% or more of the
total voting power of all shares of the Company's capital stock that
are entitled to vote generally in elections of directors, other than
an acquisition by the Company, any of its Subsidiaries or any of its
or its Subsidiaries' employee benefit plans; or
(2) the Company merges or consolidates with or into any other
person, any merger of another person into the Company, or the Company
conveys, sells, transfers or leases all or substantially all of its
assets to another person, other than any transaction: (i) that does
not result in any reclassification, conversion, exchange or
cancellation of the Company's outstanding shares of Common Stock, or
(ii) pursuant to which the holders of the Company's shares of Common
Stock immediately prior to the transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting
power of all shares of capital stock entitled to vote generally in the
election of directors of the continuing or surviving corporation
immediately after the transaction, or (iii) which is effected solely
to change the Company's jurisdiction of incorporation and results in a
reclassification, conversion or exchange of outstanding shares of
Common Stock solely into shares of common stock of the surviving
entity.
Notwithstanding the foregoing provisions of this Section, a Change in
Control shall not be deemed to have occurred if (A) the Sale Price of the Common
Stock for any five Trading Days within the period of 10 consecutive Trading Days
ending immediately after the later of the date of the Change in Control or the
date of the public announcement of the Change in Control (in the case of a
Change in Control under paragraph (1) above) or the period of 10 consecutive
Trading Days ending immediately before the Change in Control (in the case of a
Change in Control under paragraph (2) above) shall, in the case of each of such
five Trading Days, equal or exceed 105% of the Conversion Price of the
Securities in effect on each of such five Trading Days, or (B) all of the
consideration paid for the Common Stock (excluding cash payments for fractional
shares and cash payments made pursuant to dissenters' appraisal rights) in a
merger or consolidation otherwise constituting a Change in Control under
paragraph (2) of this Section consists of shares of common stock, depository
receipts or other certificates representing common equity instruments traded on
a national securities exchange or quoted on Nasdaq National Market or its
successor (or will be so traded immediately following the merger or
consolidation) and as a result of the merger or consolidation the Securities
become convertible into such common stock, depository receipts or other common
equity interests.
For purposes of this Section, whether a Person is a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act and
"person" includes any syndicate or group that would be deemed to be a "person"
under Section 13(d)(3) of the Exchange Act.
SECTION 13.6 Change in Control Repurchase Notice by the Company.
No later than 30 days after the occurrence of a Change in Control, the
Company shall mail a written notice of the Change in Control (the "Change in
Control Notice," the date of such mailing, the "Change in Control Notice Date")
by first-class mail to the Trustee and to each Holder (and to beneficial owners
as required by applicable law). The notice shall include a form of Change in
Control Repurchase Notice (as defined below) to be completed by the Holder and
shall state:
(1) briefly, the nature of the Change in Control and the date of
such Change in Control;
(2) the date by which the Change in Control Repurchase Notice
pursuant to this Section must be given;
(3) the Change in Control Repurchase Date;
(4) the Change in Control Repurchase Price;
(5) if the Company elects to pay the Change in Control Repurchase
Price in shares of Common Stock or a combination of cash and shares of
Common Stock pursuant to Section 13.8, that the number of shares of
Common Stock each Holder will receive will equal the portion of the
Change in Control Repurchase Price to be paid in shares of Common
Stock divided by 95% of the average Sale Price of the Common Stock for
the five Trading Days immediately preceding and including the Third
Business Day immediately preceding the Change in Control Repurchase
Date;
(6) if the Company elects to pay the Change in Control Repurchase
Price in shares of Common Stock or a combination of cash and shares of
Common Stock pursuant to Section 13.8, the method of calculating the
Sale Price of the shares of Common Stock;
(7) that because the Sale Price of the shares of Common Stock
will be determined prior to the Change in Control Repurchase Date,
Holders of the Securities will bear the market risk that the shares of
Common Stock to be received will decline in value between the date
such Sale Price is determined and the Change in Control Repurchase
Date;
(8) the name and address of the Paying Agent and the Conversion
Agent;
(9) the Conversion Rate applicable on the Change in Control
Notice Date;
(10) that the Securities as to which a Change in Control
Repurchase Notice has been given may be converted if they are
otherwise convertible pursuant to Article XII only if the Change in
Control Repurchase Notice has been withdrawn in accordance with the
terms of the Indenture;
(11) if the Security is a Non-Global Security, that the Security
must be surrendered to the Paying Agent to collect payment;
(12) that the Change in Control Repurchase Price for any Security
as to which a Change in Control Repurchase Notice has been duly given
and not withdrawn will be paid promptly following the Change in
Control Repurchase Date, or if the Security is a Non-Global Security,
the later of the Change in Control Repurchase Date and the time of
surrender of such Security;
(13) the procedures the Holder must follow to exercise its rights
under Section 13.5;
(14) the conversion rights, if any, of the Securities;
(15) the procedures for withdrawing a Change in Control
Repurchase Notice;
(16) that, unless the Company defaults in making payment of such
Change in Control Repurchase Price, interest on Securities subject to
purchase by the Company will cease to accrue on and after the Change
in Control Repurchase Date; and
(17) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give the Change in Control
Notice in the Company's name and at the Company's expense; provided, however,
that the Company makes such request at least seven Business Days (unless a
shorter period shall be satisfactory to the Trustee) prior to the date by which
such Change in Control Notice must be given to the Holder in accordance with
this Section; provided, further, that the text of the Change in Control Notice
shall be prepared by the Company.
SECTION 13.7 Change in Control Repurchase Deliveries by the Holder.
A Holder may exercise its rights specified in this Section upon
delivery of a written notice of purchase (a "Change in Control Repurchase
Notice") in the form set forth in Section 2.2 to be received by the Paying Agent
at any time on or prior to the 30th day after the Change in Control Notice Date,
stating:
(1) delivery to the Paying Agent by the Holder of a Change in
Control Repurchase Notice during the period beginning at any time from
9:00 a.m., New York City time, on the date that is 20 Business Days
immediately preceding the relevant Change in Control Repurchase Date
until 5:00 p.m., New York City time, on the Business Day immediately
preceding such Change in Control Repurchase Date stating:
(i) the certificate number of the Security which the Holder
will deliver to be purchased if Non-Global Securities have been
issued,
(ii) the portion of the aggregate principal amount of the
Security which the Holder will deliver to be purchased, which
portion must be in aggregate principal amounts of $1,000 or an
integral multiple thereof,
(iii) that such Security shall be purchased by the Company
as of the Change in Control Repurchase Date pursuant to the terms
and conditions specified in the Securities and in the Indenture;
and
(2) delivery or book-entry transfer of such Security to the
Paying Agent prior to, on or after the Change in Control Repurchase
Date (together with all necessary endorsements) at the offices of the
Paying Agent, such delivery being a condition to receipt by the Holder
of the Change in Control Repurchase Price therefor; provided, however,
that such Change in Control Repurchase Price shall be so paid only if
the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Change in Control
Repurchase Notice, as determined by the Company.
If Securities are Global Securities, the Change in Control Repurchase
Notice must comply with the Applicable Procedures.
The delivery or book-entry transfer of such Security to the Paying
Agent with the Change in Control Repurchase Notice (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Repurchase Price therefor;
provided, however, that such Change in Control Repurchase Price shall be so paid
pursuant to this Section only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof set forth in the
related Change in Control Repurchase Notice.
If shares of Common Stock to be delivered upon repurchase of a Security
are to be registered in a name other than the Holder's name, then such Holder
must deliver to the Paying Agent a Surrender Certificate, dated the date of
surrender of such Security and signed by such Holder, as to compliance with the
restrictions on transfer applicable to such Security. Neither the Trustee nor
the Paying Agent or other agents shall be required to register in a name other
than the Holder's name shares of Common Stock issued upon repurchase of any such
Security not so accompanied by a properly completed Surrender Certificate.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Change in Control Repurchase Notice contemplated by this
Section 13.7 shall have the right to withdraw such Change in Control Repurchase
Notice at any time prior to 5:00 p.m. New York City time on the Business Day
immediately preceding the Change in Control Repurchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
13.11 below.
SECTION 13.8 Payment of Change in Control Repurchase Price.
If Securities are to be repurchased pursuant to Section 13.5, the
Change in Control Repurchase Price may be paid for, at the election of the
Company, in cash or shares of Common Stock, or in any combination of cash and
shares of Common Stock, subject to the conditions set forth below. The Company
shall designate, in the notice of repurchase right delivered pursuant to Section
13.6 above, whether the Company will repurchase Securities for cash or, if
permitted hereunder, shares of Common Stock, or, if a combination thereof, the
percentages of the Change in Control Repurchase Price in respect of which it
will pay in cash or shares of Common Stock; provided, however, that the Company
will pay cash for fractional interests in a share of Common Stock. For purposes
of determining the existence of potential fractional interests, all Securities
subject to repurchase by the Company held by a Holder shall be considered
together (no matter how many separate certificates are to be presented). Each
Holder whose Securities are repurchased pursuant to Section 13.5 shall receive
the same percentage of cash or, if permitted hereunder, shares of Common Stock
in payment of the Change in Control Repurchase Price for such Security, (1)
except as provided in this Section 13.8 with regard to the payment of cash in
lieu of fractional shares of Common Stock and (2) in the event that the Company
is unable to purchase the Securities of the Holder or Holders for shares of
Common Stock because any necessary qualifications or registration of the shares
of Common Stock under applicable securities laws cannot be obtained, the Company
may purchase the Securities of such Holder or Holders for cash. The Company may
not change its election with respect to the consideration (or components or
percentages of components thereof) to be paid once the Company has given its
notice of repurchase right to Holders except in the event of a failure to
satisfy, prior to 5:00 p.m., New York City time, on the Business Day immediately
preceding the Change in Control Repurchase Date, any condition to the payment of
the Change in Control Repurchase Price in whole or in part, in shares of Common
Stock.
If the Company elects to pay all or a portion of the Change in Control
Repurchase Price of Securities in respect of which a Change in Control
Repurchase Notice has been given in shares of Common Stock, the number of shares
of Common Stock to be issued shall be equal to the portion of the Change in
Control Repurchase Price to be paid in shares of Common Stock divided by 95% of
the average Sale Price of the Common Stock for the five Trading Days immediately
preceding and including the third Business Day immediately preceding the Change
in Control Repurchase Date, subject to satisfaction of the conditions set forth
in the second succeeding paragraph.
The Company will not issue any fraction of a share of Common Stock in
payment of the Change in Control Repurchase Price. Instead, the Company will
make a cash payment (calculated to the nearest cent) equal to such fraction
multiplied by the Sale Price of one share of Common Stock. If a Holder elects to
have more than one Security purchased, the number of shares of Common Stock
shall be based on the aggregate amount of Securities to be purchased.
The Company's right to exercise its election to repurchase Securities
through the issuance of shares of Common Stock shall be conditioned upon:
(1) the registration of such shares of Common Stock under the
Securities Act, if required;
(2) any qualification of such shares of Common Stock under
applicable state securities laws, if necessary, or the availability of
an exemption from such qualification;
(3) the listing of such shares of Common Stock on a United States
national securities exchange or the quotation of such shares of Common
Stock in an inter-dealer quotation system of any registered United
States national securities association;
(4) the receipt by the Trustee of an Officer's Certificate
stating: (i) that the terms of the issuance of the shares of Common
Stock are in conformity with the Indenture; (ii) that the shares of
Common Stock to be issued in payment of the Change in Control
Repurchase Price in respect of Securities have been duly authorized
and, when issued and delivered pursuant to the terms of the Indenture
in payment of the Change in Control Repurchase Price in respect of
Securities, will be validly issued, fully paid, non-assessable and
free from preemptive rights; (iii) that the conditions in this
paragraph (4)(i) and 4(ii) above, the conditions in paragraphs (1) -
(3) above and the condition set forth in the third succeeding
paragraph regarding issuance of a press release have been satisfied in
all material respects; and (iv) the number of shares of Common Stock
to be issued for each $1,000 principal amount of Securities and the
Sale Price of a share of Common Stock on each Trading Day during the
period the average Sale Price is calculated; and
(5) the receipt by the Trustee of an Opinion of Counsel stating
that: (i) the shares of Common Stock to be issued in payment of the
Change in Control Repurchase Price in respect of Securities have been
duly authorized, and when issued and delivered pursuant to the terms
of the Indenture in payment of the Change in Control Repurchase Price
in respect of Securities, will be validly issued, fully paid and
non-assessable and, to the best of such counsel's knowledge, free from
preemptive rights; and (ii) the conditions in paragraphs (1) through
(3) above have been satisfied in all material respects.
If the foregoing conditions are not satisfied with respect to a Holder
or Holders prior to 5:00 p.m., New York City time, on the Business Day
immediately preceding the Change in Control Repurchase Date, and the Company has
elected to repurchase the Securities through the issuance of Common Stock, the
Company shall pay the entire Change in Control Repurchase Price of the
Securities of such Holder or Holders in cash.
Upon determination of the actual number of shares of Common Stock to be
issued upon repurchase of Securities, the Company shall be required to
disseminate a press release through a public medium as is customary for such a
press release.
If a Holder of a repurchased Security is paid in shares of Common
Stock, the Company shall pay any documentary, stamp or similar issue or transfer
tax due on such issue of shares of Common Stock. However, the Holder shall pay
any such tax which is due because the Holder requests the shares of Common Stock
to be issued in a name other than the Holder's name. The Paying Agent may refuse
to deliver the certificates representing the shares of Common Stock being issued
in a name other than the Holder's name until the Paying Agent receives a sum
sufficient to pay any tax which will be due because the shares of Common Stock
are to be issued in a name other than the Holder's name. Nothing contained
herein shall preclude any income tax withholding required by law or regulations.
SECTION 13.9 Partial Purchases.
The Company shall purchase from the Holder thereof, pursuant to this
Article XIII, a portion of a Security if the aggregate principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture
that apply to the purchase of all of a Security also apply to the purchase of
such portion of such Security.
Any Non-Global Security, which is to be purchased only in part, shall
be surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Security so surrendered which is not purchased.
SECTION 13.10 Effect of Repurchase Notice or Change in Control Repurchase
Notice.
Upon receipt by the Paying Agent of the Repurchase Notice or Change in
Control Repurchase Notice specified in Section 13.3 or Section 13.7, as
applicable, the Holder of the Security in respect of which such Repurchase
Notice or Change in Control Repurchase Notice, as the case may be, was given
shall (unless such Repurchase Notice or Change in Control Repurchase Notice, as
the case may be, is withdrawn as specified in Section 13.11) thereafter be
entitled to receive solely the Repurchase Price or Change in Control Repurchase
Price, as the case may be, with respect to such Security. Such Repurchase Price
or Change in Control Repurchase Price shall be paid to such Holder, subject to
receipts of funds and/or Common Stock by the Paying Agent, promptly following
the later of (1) the Repurchase Date or the Change in Control Repurchase Date,
as the case may be, with respect to such Security (provided the conditions in
Section 13.3 or Section 13.7, as applicable, have been satisfied) and (2) the
time of delivery of such Security to the Paying Agent by the Holder thereof in
the manner required by Section 13.3 or Section 13.7, as applicable. Securities
in respect of which a Repurchase Notice or Change in Control Repurchase Notice
has been given by the Holder thereof may not be converted pursuant to Article
XII on or after the date of the delivery of such Purchase Notice or Change in
Control Repurchase Notice unless such Purchase Notice or Change in Control
Repurchase Notice has first been validly withdrawn as specified in the Section
13.11 below.
SECTION 13.11 Withdrawal of a Repurchase Notice or Change in Control
Repurchase Notice.
A Repurchase Notice or Change in Control Repurchase Notice may be
withdrawn by means of a written notice of withdrawal delivered to the office of
the Paying Agent in accordance with the Repurchase Notice or Change in Control
Repurchase Notice, as the case may be, at any time prior to 5:00 p.m., New York
City time, on the Business Day immediately preceding the Repurchase Date or the
Change in Control Repurchase Date, as the case may be, specifying:
(1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted if Non-Global Securities
have been issued,
(2) the principal amount of the Security with respect to which
such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which remains
subject to the original Repurchase Notice or Change in Control
Repurchase Notice, as the case may be, and which has been or will be
delivered for purchase by the Company.
If the Securities are Global Securities, the withdrawal notice must
comply with Applicable Procedures.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Repurchase Notice or any Change in Control Repurchase Notice or written
notice of withdrawal thereof.
SECTION 13.12 Deposit of Repurchase Price or Change in Control Repurchase
Price.
Prior to 10:00 a.m., New York City time on the Repurchase Date or the
Change in Control Repurchase Date, as the case may be, the Company shall deposit
with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or
an Affiliate of any of them is acting as the Paying Agent, shall segregate and
hold in trust as provided in Section 10.3) an amount of cash (in immediately
available funds if deposited on such Business Day) and/or Common Stock, if
permitted hereunder, sufficient to pay the aggregate Repurchase Price or Change
in Control Repurchase Price, as the case may be, of all the Securities or
portions thereof which are to be purchased as of the Repurchase Date or Change
in Control Repurchase Date, as the case may be.
If the Paying Agent holds, in accordance with the terms hereof, at
10:00 a.m., New York City time, on the Business Day immediately following the
applicable Repurchase Date or Change in Control Repurchase Date, as the case may
be, money and/or shares of Common Stock, if permitted hereunder, sufficient to
pay the Repurchase Price or Change in Control Repurchase Price, as applicable,
of any Securities for which a Repurchase Notice or Change in Control Repurchase
Notice, as the case may be, has been tendered and not withdrawn pursuant to
Section 13.11, then, on such Repurchase Date and Change in Control Repurchase
Date, as the case may be, such Securities will cease to be outstanding and
interest on such Securities will cease to accrue, whether or not such Securities
are delivered to the Paying Agent, and the rights of the Holders in respect
thereof shall terminate (other than the right to receive the Repurchase Price or
Change in Control Repurchase Price, as the case may be, upon delivery of such
Securities).
SECTION 13.13 Covenant to Comply With Securities Laws Upon the Purchase of
Securities.
When complying with the provisions of this Article XIII, the Company
shall, subject to any exemption under applicable laws (1) comply with Rule 13e-4
and Rule 14e-1 (or any applicable successor provision), under the Exchange Act,
(2) file the related Schedule TO (or any successor schedule, form or report)
under the Exchange Act, as applicable and (iii) otherwise comply with any
applicable Federal and state securities laws so as to permit the rights and
obligations under this Article XIII to be exercised in the time and in the
manner specified herein. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Article XIII, the
Company's compliance with such laws and regulations shall not in and of itself
cause a breach of its obligations under this Article XIII.
SECTION 13.14 Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company any cash
or shares of Common Stock that remain unclaimed for two years, together with
interest or dividends, if any, thereon, held by them for the payment of the
Repurchase Price or Change in Control Repurchase Price, as the case may be;
provided, however, that to the extent the aggregate amount of cash or Common
Stock deposited by the Company pursuant to Section 13.12 above exceeds the
aggregate Repurchase Price or Change in Control Repurchase Price, as the case
may be, of the Securities or portions thereof which the Company is obligated to
purchase as of the Repurchase Date or Change in Control Repurchase Date, as the
case may be, then, promptly after the Business Day following the Repurchase Date
or Change in Control Repurchase Date, as the case may be, the Trustee shall
return any such excess to the Company together with interest or dividends, if
any, thereon.
ARTICLE XIV
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE
SECTION 14.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after the Regular Record
Date, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date,
and
(2) at such other times as the Trustee may reasonably request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
provided, however, that no such list need be furnished so long as the Trustee is
acting as Security Registrar.
SECTION 14.2 Preservation of Information.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in
Section 14.1 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy
any list, if any, furnished to it as provided in Section 14.1 upon
receipt of a new list so furnished.
(2) After this Indenture has been qualified under the Trust
Indenture Act, the rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights, and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 14.3 Reports by Trustee.
(1) After this Indenture has been qualified under the Trust
Indenture Act, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after each
May 15 following the date of the initial issuance of Securities under
this Indenture deliver to Holders a brief report, dated as of such May
15, which complies with the provisions of such Section 313(a).
(2) After this Indenture has been qualified under the Trust
Indenture Act, a copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee in writing when
the Securities are listed on any stock exchange and any delisting
thereof.
SECTION 14.4 Reports by Company.
After this Indenture has been qualified under the Trust Indenture Act,
the Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission.
Delivery of such reports, information and documents to the Trustee
pursuant to this Section 14.4 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 Officer's
Certificates).
ARTICLE XV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 15.1 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Security 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 past, present or future incorporator,
stockholder, employee, agent, officer, or director or subsidiary, as such, of
the Company or of 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; it being expressly understood that all such liability is
hereby waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
CHURCH & ▇▇▇▇▇▇ CO., INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
ANNEX A -- Form of Unrestricted Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Restricted Securities Legend pursuant to Section 3.5(3))
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RE: 5.25% CONVERTIBLE SENIOR DEBENTURES DUE AUGUST 15, 2033
OF CHURCH & ▇▇▇▇▇▇ CO., INC. (THE "SECURITIES")
Reference is made to the Indenture, dated as of August 11, 2003 (the
"Indenture"), from Church & ▇▇▇▇▇▇ Co., Inc. (the "Company") to The Bank of New
York, as Trustee. Terms used herein and defined in the Indenture or in Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $_______________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No. 171340 AB8
CERTIFICATE No(s). _________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Restricted Securities Legend pursuant to Section 3.5(3) of
the Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a period of at least two years has elapsed since
the Issue Date, and the Owner is not, and during the preceding three months has
not been, an affiliate of the Company. The Owner also acknowledges that any
future transfers of the Specified Securities must comply with all applicable
securities laws of the States of the United States and other jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers.
Dated: ______________
A-1
(Print the name of the Undersigned, as such term is defined in the third
paragraph of this certificate.)
By:
------------------------------------------------
Name:
------------------------------------------------
Title:
------------------------------------------------
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
A-2
ANNEX B -- Form of Surrender Certificate
In connection with the certification contemplated by Section 12.3, 13.3 or
13.7 relating to compliance with certain restrictions relating to transfers of
Restricted Securities, such certification shall be provided substantially in the
form of the following certificate, with only such changes thereto as shall be
approved by the Company and the Initial Purchasers.
CERTIFICATE
CHURCH & ▇▇▇▇▇▇ CO., INC.
5.25% CONVERTIBLE SENIOR DEBENTURES DUE AUGUST 15, 2033
This is to certify that as of the date hereof with respect to U.S.
$__________ principal amount of the above-captioned securities surrendered on
the date hereof (the "Surrendered Securities") for registration of transfer, or
for conversion or repurchase where the securities issuable upon such conversion
or repurchase are to be registered in a name other than that of the undersigned
Holder (each such transaction being a "transfer"), the undersigned Holder (as
defined in the Indenture) certifies that the transfer of Surrendered Securities
associated with such transfer complies with the restrictive legend set forth on
the face of the Surrendered Securities for the reason checked below:
_________ The transfer of the Surrendered Securities complies with Rule 144A
under the Securities Act; or
_________ The transfer of the Surrendered Securities complies with Rule 144
under the United States Securities Act of 1933, as amended (the "Securities
Act"); or
_________ The transfer of the Surrendered Securities has been made to an
institution that is an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act in a transaction exempt from
the registration requirements of the Securities Act and a signed letter
containing certain representations and agreements relating to restrictions on
transfer of the Securities has been delivered (and if such transfer is for an
aggregate principal amount less than $250,000 an opinion of counsel acceptable
to the Company if requested by the Company, that such transfer is exempt from
registration); or
_________ The transfer of the Surrendered Securities has been made pursuant to
an exemption from registration under the Securities Act and an opinion of
counsel has been delivered to the Company with respect to such transfer.
[Name of Holder]
Dated:
-----------------------
*To be dated the date of surrender