Exhibit 4.1
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VENATOR GROUP, INC.
and
THE BANK OF NEW YORK
as
Trustee
INDENTURE
Dated as of June 8, 2001
$125,000,000 Principal Amount(1)
5.50% CONVERTIBLE SUBORDINATED NOTES DUE 2008
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(1) Plus an additional $25,000,000 issuable at the option of the Initial
Purchasers as described herein.
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1)............................................. 7.10
(a)(2).......................................... 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... N.A.
(b)............................................. 7.08; 7.10; 13.02
(c)............................................. N.A.
311(a)................................................ 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312(a)................................................ 2.05
(b)............................................. 13.03
(c)............................................. 13.03
313(a)................................................ 7.06
(b)(1).......................................... N.A.
(b)(2).......................................... 7.06
(c)............................................. 7.06; 13.02
(d)............................................. 7.06
314(a)................................................ 4.02
(b)............................................. N.A.
(c)(1).......................................... 13.04
(c)(2).......................................... 13.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 13.05
(f)............................................. N.A.
315(a)................................................ 7.01(b)
(b)............................................. 7.05; 13.02
(c)............................................. 7.01(a)
(d)............................................. 7.01(c)
(e)............................................. 6.11
316(a)(last sentence)................................. 2.09
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
317(a)(1)............................................. 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.04
318(a)................................................ 13.01
__________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of the Indenture
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..............................................1
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SECTION 1.02. Other Definitions........................................6
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act........6
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SECTION 1.04. Rules of Construction....................................7
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ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating..........................................7
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SECTION 2.02. Execution and Authentication.............................8
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SECTION 2.03. Registrar, Paying Agent and Conversion Agent.............9
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SECTION 2.04. Paying Agent to Hold Money in Trust......................9
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SECTION 2.05. Securityholder Lists.....................................9
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SECTION 2.06. Transfer and Exchange...................................10
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SECTION 2.07. Replacement Securities..................................10
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SECTION 2.08. Outstanding Securities..................................10
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SECTION 2.09. Securities Held by the Company or an Affiliate..........11
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SECTION 2.10. Temporary Securities....................................11
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SECTION 2.11. Cancellation............................................11
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SECTION 2.12. Defaulted Interest......................................11
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SECTION 2.13. CUSIP Numbers...........................................12
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SECTION 2.14. Deposit of Moneys.......................................12
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SECTION 2.15. Book-Entry Provisions for Global Securities.............12
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SECTION 2.16. Special Transfer Provisions.............................13
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SECTION 2.17. Restrictive Legends.....................................16
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ARTICLE THREE
REDEMPTION; REPURCHASE
SECTION 3.01. Notices to Trustee......................................16
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SECTION 3.02. Selection of Securities to Be Redeemed..................16
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SECTION 3.03. Notice of Redemption....................................17
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SECTION 3.04. Effect of Notice of Redemption..........................18
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SECTION 3.05. Deposit of Redemption Price.............................18
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SECTION 3.06. Securities Redeemed in Part.............................18
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SECTION 3.07. Repurchase at Option of Holder upon a Repurchase Event..18
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities...................................23
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SECTION 4.02. Maintenance of Office or Agency.........................23
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SECTION 4.03. Reports to Holders......................................23
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SECTION 4.04. Compliance Certificate..................................24
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SECTION 4.05. Stay, Extension and Usury Laws..........................24
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SECTION 4.06. Corporate Existence.....................................24
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SECTION 4.07. Notice of Default.......................................25
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ARTICLE FIVE
CONSOLIDATION, MERGER AND SALE OF ASSETS
SECTION 5.01. When Company May Merge, etc.............................25
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SECTION 5.02. Successor Substituted...................................25
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ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.......................................26
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SECTION 6.02. Acceleration............................................27
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SECTION 6.03. Other Remedies..........................................27
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SECTION 6.04. Waiver of Past Defaults.................................28
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SECTION 6.05. Control by Majority.....................................28
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SECTION 6.06. Limitation on Suits.....................................28
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SECTION 6.07. Rights of Holders to Receive Payment or Convert.........29
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SECTION 6.08. Collection Suit by Trustee..............................29
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SECTION 6.09. Trustee May File Proofs of Claim........................29
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SECTION 6.10. Priorities..............................................29
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SECTION 6.11. Undertaking for Costs...................................30
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.......................................30
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SECTION 7.02. Rights of Trustee.......................................31
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SECTION 7.03. Individual Rights of Trustee............................32
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SECTION 7.04. Trustee's Disclaimer....................................32
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SECTION 7.05. Notice of Defaults......................................32
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SECTION 7.06. Reports by Trustee to Holders...........................33
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SECTION 7.07. Compensation and Indemnity..............................33
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SECTION 7.08. Replacement of Trustee..................................33
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SECTION 7.09. Successor Trustee by Merger, etc........................34
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SECTION 7.10. Eligibility; Disqualification...........................34
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SECTION 7.11. Preferential Collection of Claims Against Company.......35
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ARTICLE EIGHT
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations....................35
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SECTION 8.02. Application of Trust Money..............................36
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SECTION 8.03. Repayment to Company....................................36
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SECTION 8.04. Reinstatement...........................................37
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ARTICLE NINE
AMENDMENTS
SECTION 9.01. Without Consent of Holders..............................37
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SECTION 9.02. With Consent of Holders.................................37
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SECTION 9.03. Compliance with Trust Indenture Act.....................38
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SECTION 9.04. Revocation and Effect of Consents.......................38
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SECTION 9.05. Notation on or Exchange of Securities...................39
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SECTION 9.06. Trustee Protected.......................................39
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ARTICLE TEN
CONVERSION
SECTION 10.01 Conversion Privilege; Restrictive Legends...............39
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SECTION 10.02 Conversion Procedure....................................40
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SECTION 10.03 Fractional Shares.......................................40
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SECTION 10.04 Taxes on Conversion.....................................41
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SECTION 10.05 Company to Provide Stock................................41
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SECTION 10.06 Adjustment of Conversion Price..........................41
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SECTION 10.07 Effect of Reclassification, Consolidation, Merger
or Sale.................................................49
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SECTION 10.08 Notice of Certain Transactions..........................50
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SECTION 10.09 Company Determination Final.............................50
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SECTION 10.10 Trustee's Disclaimer....................................50
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ARTICLE ELEVEN
[RESERVED]
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01 Securities Subordinated to Senior Indebtedness..........51
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SECTION 12.02 Subrogation.............................................53
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SECTION 12.03 Obligation of Company Unconditional.....................53
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SECTION 12.04 Modification of Terms of Senior Indebtedness............54
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SECTION 12.05 [Reserved]..............................................54
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SECTION 12.06 Effectuation of Subordination by Trustee................54
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SECTION 12.07 Knowledge of Trustee....................................54
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SECTION 12.08 Trustee's Relation to Senior Indebtedness...............55
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SECTION 12.09 Rights of Holders of Senior Indebtedness Not Impaired...55
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SECTION 12.10 Certain Conversions Not Deemed Payment..................55
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls............................56
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SECTION 13.02 Notices.................................................56
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SECTION 13.03 Communication by Holders with Other Holders.............57
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SECTION 13.04 Certificate and Opinion as to Conditions Precedent......57
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SECTION 13.05 Statements Required in Certificate or Opinion...........57
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SECTION 13.06 Rules by Trustee and Agents.............................58
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SECTION 13.07 Legal Holidays..........................................58
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SECTION 13.08 No Recourse Against Others..............................58
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SECTION 13.09 Duplicate Originals.....................................58
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SECTION 13.10 Governing Law...........................................58
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SECTION 13.11 No Adverse Interpretation of Other Agreements...........58
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SECTION 13.12 Successors..............................................58
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SECTION 13.13 Separability............................................59
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SECTION 13.14 Table of Contents, Headings, etc........................59
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SIGNATURES............................................................S-1
EXHIBITS
Exhibit A - Form of Security
Exhibit B - Form of Legends
Exhibit C - Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit D - Form of Notice of Transfer Pursuant to Registration Statement
Exhibit E - Form of Opinion of Counsel in Connection with Registration
of Securities
INDENTURE dated as of June 8, 2001 between VENATOR GROUP,
INC., a New York corporation (the "Company"), and THE BANK OF NEW YORK, a
New York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
5.50% Convertible Subordinated Notes Due 2008:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
-----------
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Company. For this purpose, "control" shall mean the power to
direct the management and policies of a Person through the ownership of
securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, Conversion
Agent or co-registrar.
"Board of Directors" means the Board of Directors of the
Company or any committee of the Board authorized to act for it hereunder.
"Board Resolution" means a copy of a resolution 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, and delivered to the Trustee.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock
of the Company and all warrants or options to acquire such capital stock.
"Common Stock" means the common stock, par value $.01 per
share, of the Company.
"Company" means the party named as such above until a
successor replaces it pursuant to the applicable provision hereof and
thereafter means the successor.
"Company Request" or "Company Order" means a written
request or order signed on behalf of the Company by its Chairman of the
Board, its President or any Senior Vice President or Vice President and by
its Treasurer or an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Price" means $15.806per share of Common
Stock, as adjusted pursuant to Article Ten.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 or such other address as
the Trustee may give notice of to the Company.
"Credit Facility" means the credit agreement dated as of
April 9, 1997, as amended and restated on or about the date hereof among
the Company, the lenders and co-agents party thereto and The Bank of New
York, as administrative agent, together with any related documents
(including any security documents and guarantee agreements), as such
agreement may be amended, modified, supplemented, extended, renewed,
refinanced or replaced or substituted from time to time.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its
nominees and successors.
"Designated Senior Indebtedness" means (i) all
Indebtedness under the Credit Facility, and (ii) after payment in full in
cash of all Senior Indebtedness under the Credit Facility, any particular
Senior Indebtedness in which the instrument creating or evidencing the
Senior Indebtedness or the assumption or guarantee thereof (or related
documents or agreements to which the Company is a party) expressly provides
that such Indebtedness shall be "Designated Senior Indebtedness" (provided
that such instrument may place limitations and conditions on the right of
such Senior Indebtedness to exercise the rights of Designated Senior
Indebtedness), the aggregate principal amount of which is equal to or
greater than $50.0 million.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Holder" means a Person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" means, with respect to the Company:
(1) all indebtedness, obligations and other liabilities,
contingent or otherwise, for borrowed money,
including obligations
(a) in respect of overdrafts , foreign exchange
contracts, currency exchange agreements,
interest rate protection agreements and any
loans or advance from banks, whether or not
evidenced by notes or similar instruments,
or
(b) evidenced by bonds, debentures, notes or
similar instruments, whether or not the
recourse of the lender is to all assets or
to only a portion thereof, other than any
account payable or other secured current
liability or obligation incurred in the
ordinary course of business in connection
with the obtaining of materials or services,
(2) all reimbursement obligations and other liabilities,
contingent or otherwise, with respect to letters of
credit, bank guarantees or bankers' acceptances,
(3) all obligations and liabilities, contingent or
otherwise, in respect of leases required, in
conformity with generally accepted accounting
principles, to be accounted for as capitalized lease
obligations on the balance sheet,
(4) all obligations and other liabilities, contingent or
otherwise, under any lease or related document,
including a purchase agreement, in connection with
the lease of real property or improvements thereon
(or any personal property included as part of any
such lease) which provides for a contractual
obligation to purchase or cause a third party to
purchase the leased property and thereby guarantee
the residual value of leased property to the lessor
and all of the obligations under such lease or
related documents to purchase the leased property
(whether or not such lease transaction is
characterized as an operating lease or a capitalized
lease in accordance with generally accepted
accounting principles),
(5) all obligations, contingent or otherwise, with
respect to an interest rate, currency or other swap,
cap, floor or collar agreement, hedge agreement,
forward contract, or other similar instrument or
agreement or foreign currency hedge, exchange,
purchase or similar instrument or agreement,
(6) all direct or indirect guarantees or similar
agreements to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect
of indebtedness, obligations or liabilities or
another person of the kind described in clauses (1)
through (5) above,
(7) any indebtedness or other obligations described in
clauses (1) through (6) above secured by any
mortgage, pledge, lien or other encumbrance existing
on property which owned or held, regardless of
whether the indebtedness or other obligation secured
thereby has been assumed, and
(8) any and all deferrals, renewals, extensions and
refundings of, or amendments, modifications
supplements to, any indebtedness, obligation or
liability of the kind described in clauses (1)
through (7) above.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"interest" means, with respect to any Security, interest
on the Security plus liquidated damages, if any.
"Issue Date" means (i) June 8, 2001 with respect to the
$125,000,000 aggregate principal amount of Securities issued on such date,
and (ii) with respect to any of up to $25,000,000 aggregate principal
amount of Securities that may be issued after June [ ], 2001 pursuant to
the option described in Section 2.02, the respective issue date of such
Securities.
"liquidated damages" has the meaning provided in the
Registration Rights Agreement.
"Maturity Date" means June 1, 2008.
"Non-U.S. Person" means a Person who is not a U.S.
Person, as defined in Regulation S under the Securities Act.
"obligations" means with respect to any Indebtedness, all
obligations (whether in existence on the date hereof or arising afterwards,
absolute or contingent, direct or indirect) for or in respect of principal
(when due, upon acceleration, upon redemption, upon mandatory repayment or
repurchase pursuant to a mandatory offer to purchase, or otherwise),
premium, interest, penalties, fees, indemnification, reimbursement and
other amounts payable and liabilities with respect to such Indebtedness,
including, without limitation, all interest accrued or accruing after, or
which would accrue but for, the commencement of any bankruptcy, insolvency
or reorganization or similar case or proceeding at the contract rate
(including, without limitation, any contract rate applicable upon default)
specified in the relevant documentation, whether or not the claim for such
interest is allowed as a claim in such case or proceeding.
"Officer" means the Chairman of the Board, the President,
any Senior Vice President, any Vice President, the Chief Financial Officer,
the Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer or an Assistant
Secretary of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who may be an employee of or counsel for the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or other agency or
political subdivision thereof.
"principal" of a debt security means the principal of the
security plus the premium, if any, on the security.
"QIB" means a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act.
"Registration Rights Agreement" means the Registration
Rights Agreement dated as of June 8, 2001 by and among the Company and the
Initial Purchasers.
"Regulation S" means Regulation S under the Securities
Act.
"Regulation S Global Security" means a permanent Global
Security in registered form representing the aggregate principal amount of
Securities sold in reliance on Regulation S.
"Restricted Security" means a Security that constitutes a
"Restricted Security" within the meaning of Rule 144(a)(3) under the
Securities Act; provided, however, that the Trustee shall be entitled to
request and conclusively rely on an Opinion of Counsel with respect to
whether any Security constitutes a Restricted Security.
"Rule 144A Global Security" means a permanent Global
Security in registered form representing the aggregate principal amount of
Securities sold in reliance on Rule 144A.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 5.50% Convertible Subordinated
Notes Due 2008 issued by the Company pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Indebtedness" means all obligations with respect
to Indebtedness of the Company whether outstanding on the date hereof or
thereafter created, incurred, assumed guaranteed, or in effect guaranteed,
by the Company, including, without limitation, all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements
to, the foregoing, unless in the case of any particular Indebtedness the
instrument creating or evidencing the same or the assumption or guarantee
thereof expressly provides that such Indebtedness shall not be senior in
right of payment to the Securities or expressly provides that such
Indebtedness ranks equal in right of payment or junior to, the Securities;
provided, however, that Senior Indebtedness does not include (i)
Indebtedness evidenced by the Securities, (ii) Indebtedness of the Company
to any subsidiary of the Company, (iii) any obligations for federal, state,
local or other taxes and (iv) accounts payable of the Company to trade
creditors arising in the ordinary course of business.
"subsidiary" means (i) a corporation a majority of whose
capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by
one or more subsidiaries of the Company or by the Company and one or more
subsidiaries thereof or (ii) any other Person (other than a corporation) in
which the Company, one or more subsidiaries thereof or the Company and one
or more subsidiaries thereof, directly or indirectly, at the date of
determination thereof, have at least majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
▇▇.▇▇. 77aaa-77bbbb) as in effect on the date of this Indenture, except as
provided in Section 9.03.
"Trust Officer" means any officer of the Trustee assigned
by the Trustee to administer this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions hereof and
thereafter means the successor.
SECTION 1.02. Other Definitions.
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Term Defined in Section
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"Bankruptcy Law".............................................. 6.01
"Business Day"................................................ 13.07
"Change in Control"........................................... 3.07(l)
"Closing Price"............................................... 10.06(g)
"Common Dividend Amount"...................................... 10.06(e)
"Company Notice".............................................. 3.07(b)
"Conversion Agent"............................................ 2.03
"Current Market Price"........................................ 10.06(g)
"Custodian"................................................... 6.01
"Event of Default"............................................ 6.01
"fair market value"........................................... 10.06(g)
"Global Security"............................................. 2.01
"Initial Purchasers".......................................... 2.02
"Legal Holiday"............................................... 13.07
"Market Capitalization"....................................... 10.06(e)
"Participants"................................................ 2.15(a)
"Paying Agent"................................................ 2.03
"Payment Blockage Notice"..................................... 12.01(b)
"Payment Blockage Period"..................................... 12.01(b)
"Payment Default"............................................. 12.01(b)
"Physical Securities"......................................... 2.15(b)
"Private Placement Legend".................................... 2.17
"Record Date"................................................. 10.06(g)
"Registrar"................................................... 2.03
"Repurchase Date"............................................. 3.07(a)
"Repurchase Event"............................................ 3.07(l)
"Repurchase Price"............................................ 3.07(a)
"Subject Securities".......................................... 10.06(d)
"Trading Day"................................................. 10.06(g)
"Trigger Event"............................................... 10.06(d)
"U.S. Government Obligations"................................. 8.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC
rule under the TIA and not otherwise defined herein have the meanings so
assigned to them.
SECTION 1.04. Rules of Construction.
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Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with
generally accepted accounting principles in
effect on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural and in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) "herein", "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
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The Securities and the Trustee's certificate of
authentication shall be substantially in the form set forth in Exhibit A,
which is incorporated in and forms a part of this Indenture. The Securities
may have notations, legends or endorsements required by law, stock exchange
rule or usage. Each Security shall be dated the date of its authentication.
Securities offered and sold in reliance on Rule 144A,
Securities offered and sold in reliance on Regulation S and Securities
subsequently transferred to Institutional Accredited Investors shall be
issued initially in the form of one or more Global Securities,
substantially in the form set forth in Exhibit A (the "Global Security").
The aggregate principal amount of the Global Security may from time to time
be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary, as hereinafter provided.
SECTION 2.02. Execution and Authentication.
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Two Officers shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security
shall nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
Upon a written order of the Company signed by two
Officers or by an Officer and an Assistant Treasurer of the Company, the
Trustee shall authenticate Securities for original issue in the principal
amount of $125,000,000 and such additional principal amounts, if any, as
shall be determined pursuant to the next sentence of this Section 2.02.
Upon receipt by the Trustee of an Officers' Certificate stating that the
Initial Purchasers have elected to purchase from the Company a specified
principal amount of additional Securities, not to exceed $25,000,000,
pursuant to Section l of the Purchase Agreement dated June 4, 2001 by and
among the Company, as issuer, and ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc of
America Securities LLC, BNY Capital Markets, Inc., First Union Securities,
Inc., Fleet Securities, Inc. and Scotia Capital (USA) Inc., as initial
purchasers (the "Initial Purchasers"), the Trustee shall authenticate and
deliver such specified principal amount of additional Securities to or upon
the written order of the Company signed as provided in the immediately
preceding sentence. Such Officers' Certificate must be received by the
Trustee at least two full Business Days prior to the proposed date for
delivery of such additional Securities, but, in any case, not later than
July [ ], 2001. The aggregate principal amount of Securities outstanding at
any time may not exceed $150,000,000 except as provided in Section 2.07.
Upon a written order of the Company signed by two
Officers or by an Officer and an Assistant Treasurer of the Company, the
Trustee shall authenticate Securities not bearing the Private Placement
Legend to be issued to the transferee when sold pursuant to an effective
registration statement under the Securities Act.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such Agent. An authenticating agent has the same rights
as an Agent to deal with the Company or an Affiliate.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 principal amount and
any integral multiple thereof. The Securities shall bear interest at the
rate, calculated and paid, as provided in the form of Security set forth in
Exhibit A.
SECTION 2.03. Registrar, Paying Agent and Conversion Agent.
--------------------------------------------
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities may be presented for
payment ("Paying Agent") and an office or agency where Securities may be
presented for conversion ("Conversion Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company
may appoint or change one or more co-registrars, one or more additional
paying agents and one or more additional conversion agents without notice
and may act in any such capacity on its own behalf. The term "Registrar"
includes any co-registrar; the term "Paying Agent" includes any additional
paying agent; the term "Conversion Agent" includes any additional
conversion agent.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to maintain a Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Paying
Agent, Registrar and Conversion Agent.
SECTION 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all moneys held by the Paying Agent for the
payment of principal of or interest on the Securities, and shall notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over
to the Trustee, the Paying Agent shall have no further liability for the
money. If the Company acts as Paying Agent, it shall segregate and hold as
a separate trust fund all money held by it as Paying Agent.
SECTION 2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names
and addresses of Holders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee on or before each interest payment date and at
such other times as the Trustee may request in writing a list, in such form
and as of such date as the Trustee may reasonably require, of the names and
addresses of Holders.
SECTION 2.06. Transfer and Exchange.
---------------------
Where Securities are presented to the Registrar with a
request to register their transfer or to exchange them for an equal
principal amount of Securities of other authorized denominations, the
Registrar shall register the transfer or make the exchange if its
requirements for such transaction are met. To permit registrations of
transfer and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request. The Company or the
Trustee, as the case may be, shall not be required (a) to issue or
authenticate, register the transfer of or exchange any Security during a
period beginning at the opening of business 10 Business Days before the
mailing of a notice of redemption of the Securities selected for redemption
under Section 3.03 and ending at the close of business on the day of such
mailing, or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of Securities being redeemed in part.
No service charge shall be made for any registration of
transfer, exchange or conversion of Securities, 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 transfer, registration of
transfer or exchange of Securities, other than exchanges pursuant to
Sections 2.10, 3.06, 9.05 or 10.02 not involving any transfer.
SECTION 2.07. Replacement Securities.
----------------------
If the Holder of a Security claims that the Security has
been mutilated, lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security if the
Trustee's requirements are met and, in the case of a mutilated Security,
such mutilated Security is surrendered to the Trustee. In the case of lost,
destroyed or wrongfully taken Securities, if required by the Trustee or the
Company, an indemnity bond must be provided by the Holder that is
sufficient in the judgment of both to protect the Company, the Trustee or
any Agent from any loss that any of them may suffer if a Security is
replaced. The Company or the Trustee may charge for its expenses in
replacing a Security.
In case any such mutilated, lost, destroyed or wrongfully
taken Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security when due.
Every replacement Security is an additional obligation of
the Company.
SECTION 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those converted, those cancelled by
it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding
because the Company or one of its subsidiaries or Affiliates holds the
Security.
If a Security is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee receives proof satisfactory to
it, or a court holds, that the replaced Security is held by a protected
purchaser.
If the Paying Agent (other than the Company) holds on a
redemption date or the Maturity Date money sufficient to pay Securities
payable on that date, then on and after that date, such Securities shall be
deemed to be no longer outstanding and interest on them shall cease to
accrue.
SECTION 2.09. Securities Held by the Company or an Affiliate.
----------------------------------------------
In determining whether the Holders of the required
aggregate principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or a subsidiary or an
Affiliate shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities that a Trust Officer actually knows are
so owned shall be so disregarded.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive
Securities in exchange for temporary Securities.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar, Paying Agent and Conversion Agent
shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange, payment or conversion. The Trustee
shall cancel all Securities surrendered for registration of transfer,
exchange, payment, conversion or cancellation and the Trustee shall dispose
of such cancelled Securities in its customary manner. The Company may not
issue new Securities to replace Securities that it has paid or delivered to
the Trustee for cancellation or that any Holder has converted pursuant to
Article Ten.
SECTION 2.12. Defaulted Interest.
------------------
If and to the extent the Company defaults in a payment of
interest on the Securities, it shall pay the defaulted interest in any
lawful manner plus, to the extent not prohibited by applicable statute or
case law, interest payable on the defaulted interest. It may pay the
defaulted interest to the Persons who are Holders on a subsequent special
record date. The Company shall fix such record date and payment date. At
least 15 days before a special record date, the Company shall mail to
Holders a notice that states the record date, payment date and amount of
interest to be paid.
SECTION 2.13. CUSIP Numbers.
-------------
The Company in issuing the Securities may use one or more
"CUSIP" numbers, and if so, the Trustee shall use the CUSIP numbers in
notices of redemption or exchange as a convenience to Holders; provided,
however, that no representation is hereby deemed to be made by the Trustee
as to the correctness or accuracy of the CUSIP numbers printed in the
notice or on the Securities, and that reliance may be placed only on the
other identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., New York City time, on each interest
payment date, redemption date, Repurchase Date and the Maturity Date, the
Company shall have deposited with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due on such interest
payment date, redemption date, Repurchase Date and the Maturity Date, as
the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such interest payment date, maturity date,
redemption date and Repurchase Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) The Global Securities initially shall (i) be
registered in the name of the Depositary or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii)
bear the legend for Global Securities as set forth in Exhibit B(II).
Members of, or participants in, the Depositary
("Participants") shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary, or the Trustee
as its custodian, or under the Global Security, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and Participants,
the operation of customary practices governing the exercise of the rights
of a Holder of any Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depositary, its successors or
their respective nominees. In addition, permanent certificated Securities
in registered form, in the form set forth in Exhibit A (the "Physical
Securities"), shall be transferred to all beneficial owners in exchange for
their beneficial interests in Global Securities if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as
Depositary for any Global Security and a successor Depositary is not
appointed by the Company within 90 days of such notice or (ii) an Event of
Default has occurred and is continuing and the Registrar has received a
written request from the Depositary to issue Physical Securities.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in a Global Security to beneficial
owners pursuant to paragraph (b), the Registrar shall (if one or more
Physical Securities are to be issued) reflect on its books and records the
date and a decrease in the aggregate principal amount of such Global
Security in an amount equal to the aggregate initial aggregate principal
amount of the beneficial interest in the Global Security to be transferred,
and the Company shall execute and the Trustee shall authenticate and
deliver one or more Physical Securities of authorized denominations in an
aggregate principal amount equal to the aggregate principal amount of the
beneficial interest in the Global Security so transferred.
(d) In connection with the transfer of a Global Security
in its entirety to beneficial owners pursuant to paragraph (b) of this
Section 2.15, such Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee
shall upon written instructions from the Company authenticate and deliver,
to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Security, an equal aggregate principal
amount of Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted
Security delivered in exchange for an interest in a Global Security
pursuant to paragraph (b) or (c) of this Section 2.15 shall, except as
otherwise provided by Section 2.16, bear the Private Placement Legend.
(f) The Holder of any Global Security may grant proxies
and otherwise authorize any Person, including Participants and Persons that
may hold interests through Participants, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
SECTION 2.16. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-U.S. Persons. The following
provisions shall apply with respect to the registration of any
proposed transfer of a Restricted Security to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any
Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after
the second anniversary of the Issue Date for such Security;
provided, however, that the transferor shall represent to the
Registrar that, to the transferor's knowledge, neither the Company
nor any Affiliate of the Company has held any beneficial interest
in such Security, or portion thereof, at any time on or prior to
the second anniversary of the Issue Date for such Security or (y)
in the case of a transfer to a Non-U.S. Person, the proposed
transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto;
(ii) if the proposed transferee is a Participant and the
Securities to be transferred consist of Physical Securities that
after transfer are to be evidenced by an interest in the Global
Security, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depositary's and the
Registrar's procedures and (y) the appropriate certificate, if
any, required by clause (y) of paragraph (i) above, the Registrar
shall register the transfer and reflect on its books and records
the date and an increase in the aggregate principal amount of the
Global Security in an amount equal to the aggregate principal
amount of Physical Securities to be transferred, and the Trustee
shall cancel the Physical Securities so transferred; and
(iii) if the proposed transferor is a Participant seeking
to transfer an interest in the Rule 144A Global Security, upon
receipt by the Registrar of (x) written instructions given in
accordance with the Depositary's and the Registrar's procedures
and (y) the appropriate certificate, if any, required by clause
(y) of paragraph (i) above, the Registrar shall register the
transfer and reflect on its books and records the date and (A) a
decrease in the aggregate principal amount of the Rule 144A Global
Security in an amount equal to the aggregate principal amount of
the Securities to be transferred and (B) an increase in the
aggregate principal amount of the Regulation S Global Security, in
an amount equal to the aggregate principal amount of the
Securities to be transferred.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of a
Restricted Security to a QIB:
(i) the Registrar shall register the transfer of any
Restricted Security, whether or not such Security bears the
Private Placement Legend, if (x) the requested transfer is after
the second anniversary of the Issue Date for such Security;
provided, however, that the transferor shall represent to the
Registrar that, to the transferor's knowledge, neither the Company
nor any Affiliate of the Company has held any beneficial interest
in such Security, or portion thereof, at any time on or prior to
the second anniversary of the Issue Date for such Security or (y)
such transfer is being made by a proposed transferor who has
checked the box provided for on the form of Security stating, or
has otherwise advised the Company and the Registrar in writing,
that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise
advised the Company and the Registrar in writing, that it is
purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that
it and any such account is a QIB within the meaning of Rule 144A,
and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or
has determined not to request such information and that it is
aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) if the proposed transferee is a Participant and the
Securities to be transferred consist of Physical Securities which
after transfer are to be evidenced by an interest in the Global
Security, upon receipt by the Registrar of written instructions
given in accordance with the Depositary's and Registrar's
procedures, the Registrar shall register the transfer and reflect
on its books and records the date and an increase in the principal
amount of the Global Security in an amount equal to the principal
amount of Physical Securities to be transferred, and the Trustee
shall cancel the Physical Security so transferred; and
(iii) if the proposed transferor is a Participant seeking
to transfer an interest in the Regulation S Global Security upon
receipt by the Registrar of written instructions given in
accordance with the Depositary's and the Registrar's procedures,
the Registrar shall register the transfer and reflect on its books
and records the date and (A) a decrease in the aggregate principal
amount of the Regulation S Global Security in an amount equal to
the aggregate principal amount of the Securities to be transferred
and (B) an increase in the aggregate principal amount of the Rule
144A Global Security in an amount equal to the aggregate principal
amount of the Securities to be transferred.
(c) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture, a
Global Security may not be transferred as a whole except 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.
(d) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver Securities
that do not bear the Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Securities bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) the requested
transfer is after the second anniversary of the Issue Date for such
Security (provided, however, that neither the Company nor any Affiliate of
the Company has held any beneficial interest in such Security, or portion
thereof, at any time prior to or on the second anniversary of the Issue
Date for such Security), (ii) there is delivered to the Trustee an Opinion
of Counsel reasonably satisfactory to the Company to the effect that
neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act
or (iii) such Security has been sold pursuant to an effective registration
statement under the Securities Act and the Holder selling such Securities
has delivered to the Registrar or co-Registrar a notice in the form of
Exhibit D hereto. Upon the effectiveness of the Shelf Registration
Statement (as defined in the Registration Rights Agreement) the Company
shall deliver to the Trustee a notice of effectiveness, a Security or
Securities, an authentication order in accordance with Section 2.02 and an
Opinion of Counsel in the form of Exhibit E hereto and, if required by the
Depositary, the Company shall deliver to the Depositary a letter of
representations in a form reasonably acceptable to the Depositary.
(e) General. By its acceptance of any Security bearing
the Private Placement Legend, each Holder of such a Security acknowledges
the restrictions on transfer of such Security set forth in this Indenture
and in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture.
The Registrar shall retain, in accordance with its
customary procedures, copies of all letters, notices and other written
communications received pursuant to Section 2.15 or this Section 2.16. The
Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time
upon the giving of reasonable notice to the Registrar.
(f) Transfers of Securities Held by Affiliates. Any
certificate (i) evidencing a Security that has been transferred to an
Affiliate of the Company within two years after the Issue Date for such
Security, as evidenced by a notation on the Assignment Form for such
transfer or in the representation letter delivered in respect thereof or
(ii) evidencing a Security that has been acquired from an Affiliate (other
than by an Affiliate) in a transaction or a chain of transactions not
involving any public offering, shall, until two years after the last date
on which either the Company or any Affiliate of the Company was an owner of
such Security, in each case, bear the Private Placement Legend, unless
otherwise agreed by the Company (with written notice thereof to the
Trustee).
SECTION 2.17. Restrictive Legends.
-------------------
Each Global Security and Physical Security that
constitutes a Restricted Security shall bear the private placement legend
(the "Private Placement Legend") as set forth in Exhibit B(I) on the face
thereof until after the second anniversary of the later of the Issue Date
for such Securities and the last date on which the Company or any Affiliate
of the Company was the owner of such Security (or any predecessor security)
(or such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) (or such longer
period of time as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Company, unless
otherwise agreed by the Company and the Holder thereof).
ARTICLE THREE
REDEMPTION; REPURCHASE
SECTION 3.01. Notices to Trustee.
------------------
If the Company wants to redeem Securities pursuant to
paragraph 6 of the Securities, it shall notify the Trustee at least 45 days
prior to the redemption date (unless a shorter notice period shall be
satisfactory to the Trustee) of the redemption date and the aggregate
principal amount of Securities to be redeemed. If the Company wants to
credit against any such redemption Securities it has not previously
delivered to the Trustee for cancellation (other than Securities
repurchased pursuant to Section 3.07), it shall deliver the Securities with
the notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
--------------------------------------
If less than all the outstanding Securities are to be
redeemed, the Trustee shall select the Securities to be redeemed on either
a pro rata basis or by lot or such other method as the Trustee shall deem
fair and equitable. The Trustee shall make the selection from Securities
outstanding not previously called for redemption. The Trustee may select
for redemption portions of the principal of Securities that have
denominations larger than $1,000 principal amount. Securities and portions
of them it selects shall be in amounts of $1,000 principal amount or
integral multiples of $1,000 principal amount. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
The Registrar need not register the transfer of or
exchange any Securities selected for redemption. Also, the Registrar need
not transfer or exchange any Securities for a period of 10 days before
selecting Securities to be redeemed.
SECTION 3.03. Notice of Redemption.
--------------------
At least 20 days but not more than 60 days before a
redemption date, the Company shall mail by first-class mail or cause to be
mailed a notice of redemption to each Holder whose Securities are to be
redeemed.
The notice shall identify the Securities and the
aggregate principal amount thereof to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price, plus the amount of accrued and
unpaid interest to be paid on the Securities called for
redemption;
(3) the then current conversion rate;
(4) the name and address of the Paying Agent and
Conversion Agent;
(5) the date on which the right to convert the principal
of the Securities called for redemption will terminate and the
place or places where such Securities may be surrendered for
conversion;
(6) that Holders who want to convert Securities must
satisfy the requirements in Article Ten;
(7) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(8) that interest on Securities called for redemption
ceases to accrue on and after the redemption date; and
(9) the CUSIP number of the Securities.
The date on which the right to convert the principal of
the Securities called for redemption will terminate shall be at the close
of business on the date prior to the redemption date, or, if the day before
the redemption date is a Legal Holiday, the close of business on the next
preceding day which is not a Legal Holiday.
At the Company's request (which request shall be
furnished to the Trustee at least 40 days prior to the redemption date
(unless a shorter period shall be acceptable to the Trustee)), the Trustee
shall give the notice of redemption in the Company's name and at the
Company's expense; provided that the form and content of such notice shall
be prepared by the Company.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed, Securities called
for redemption become due and payable on the redemption date at the
redemption price plus accrued and unpaid interest to, but excluding, the
date of redemption, and, on and after such date (unless the Company shall
default in the payment of the redemption price), such Securities shall
cease to bear interest. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price plus accrued interest to the
redemption date, unless the redemption date is an interest payment date, in
which case the accrued interest will be paid in the ordinary course.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or before the redemption date, the Company shall
deposit with the Paying Agent pursuant to Section 2.14 money in funds
immediately available on the redemption date sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed
on that date. The Paying Agent shall return to the Company, as soon as
practicable, any money not required for that purpose because of conversion
of Securities.
SECTION 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part,
the Company shall execute and the Trustee shall authenticate for the Holder
a new Security equal in principal amount to the unredeemed portion of the
Security surrendered.
If a portion of a Holder's Securities is selected for
partial redemption and that Holder converts a portion of that Holder's
Securities, the converted portion shall be deemed (as far as may be) to be
the portion selected for redemption.
SECTION 3.07. Repurchase at Option of Holder upon a Repurchase Event.
------------------------------------------------------
(a) If there shall occur a Repurchase Event, then each
Holder shall have the right, at such Holder's option, to require the
Company to repurchase all of such Holder's Securities, or any portion
thereof (in principal amounts of $1,000 or integral multiples thereof), on
the date (the "Repurchase Date") that is thirty (30) Business Days after
the date of such Repurchase Event. Such repurchase shall be made in cash at
a price equal to 100% of the principal amount of Securities such Holder
elects to require the Company to repurchase, together with accrued
interest, if any, to but excluding the Repurchase Date (the "Repurchase
Price") (or, at the option of the Company, by delivery of Common Stock in
accordance with the provisions of Section 3.07(k)); provided, however, that
if such Repurchase Date is an interest payment date, then the interest
payable on such date shall be paid to the holder of record of the Security
on the preceding record date for the payment of interest. No Securities may
be repurchased at the option of Holders upon a Repurchase Event if there
has occurred and is continuing an Event of Default, other than a default in
the payment of the Repurchase Price with respect to such Securities on the
Repurchase Date.
(b) Unless the Company shall have theretofore called for
redemption all of the outstanding Securities, on or before the tenth (10th)
Business Day after the occurrence of a Repurchase Event, the Company or, at
the written request of the Company, the Trustee shall mail to all holders
of record of the Securities a notice (the "Company Notice") in the form
prepared by the Company of the occurrence of the Repurchase Event and of
the repurchase right set forth herein arising as a result thereof. The
Company shall also deliver a copy of such Company Notice to the Trustee.
The Company Notice shall contain the following information:
(1) the Repurchase Date;
(2) the date by which the repurchase right must be
exercised;
(3) the last date by which the election to require
repurchase, if submitted, must be revoked;
(4) the Repurchase Price and whether the Repurchase Price
shall be payable in cash or Common Stock and, if payable in Common
Stock, the method of calculating the amount of the Common Stock to
be delivered upon the repurchase as provided in Section 3.07(k);
(5) a description of the procedure that a Holder must
follow to exercise a repurchase right;
(6) the Conversion Price then in effect, the date on
which the right to convert the principal amount of the Securities
to be repurchased will terminate and the place or places where
Securities may be surrendered for conversion; and
(7) the CUSIP numbers of the Securities.
No failure of the Company to give the foregoing notices
or defect therein shall limit any Holder's right to exercise a repurchase
right or affect the validity of the proceedings for the repurchase of
Securities.
If any of the foregoing provisions are inconsistent with
applicable law, such law shall govern.
(c) To exercise a repurchase right, a Holder shall
deliver to the Trustee on or before the close of business on the Business
Day preceding the Repurchase Date (i) written notice to the Company (or
agent designated by the Company for such purpose) of the Holder's exercise
of such right, which notice shall set forth the name of the Holder, the
principal amount of the Securities to be repurchased, a statement that an
election to exercise the repurchase right is being made thereby, and, in
the event that the Repurchase Price shall be paid in shares of Common
Stock, the name or names (with addresses) in which the certificate or
certificates for shares of Common Stock shall be issued, and (ii) the
Securities with respect to which the repurchase right is being exercised,
duly endorsed for transfer to the Company. Election of repurchase by a
Holder shall be revocable at any time prior to, but excluding, the
Repurchase Date, by delivering written notice to that effect to the Trustee
prior to the close of business on the Business Day prior to the Repurchase
Date.
(d) If the Company fails to repurchase on the Repurchase
Date any Securities (or portions thereof) as to which the repurchase right
has been properly exercised, then the principal of such Securities shall,
until paid, bear interest to the extent permitted by applicable law from
the Repurchase Date at the rate borne by the Securities and each such
Security shall be convertible into Common Stock in accordance with this
Indenture until the principal of such Security shall have been paid or duly
provided for.
(e) Any Security that is to be repurchased only in part
shall be surrendered to the Trustee duly endorsed for transfer to the
Company and accompanied by appropriate evidence of genuineness and
authority 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 deliver to
the Holder of such Security without service charge, a new Security or
Securities, containing identical terms and conditions, of any authorized
denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unrepurchased portion of the principal of
the Security so surrendered.
(f) On or prior to the Repurchase Date, the Company shall
deposit with the Trustee or with a Paying Agent, pursuant to Section 2.14,
the Repurchase Price in cash for payment to the Holder on the Repurchase
Date; provided that if payment is to be made in cash and such cash payment
is made on the Repurchase Date it must be received by the Trustee or paying
agent, as the case may be, by 10:00 a.m., New York City time, on such date;
provided, further, that if the Repurchase Price is to be paid in shares of
Common Stock, such shares of Common Stock are to be paid as promptly after
the Repurchase Date as practicable.
(g) Any issuance of shares of Common Stock in respect of
the Repurchase Price shall be deemed to have been effected immediately
prior to the close of business on the Repurchase Date and the Person or
Persons in whose name or names any certificate or certificates for shares
of Common Stock shall be issuable upon such repurchase shall be deemed to
have become on the Repurchase Date the holder or holders of record of the
shares represented thereby; provided, however, that any surrender for
repurchase on a date when the stock transfer books of the Company shall be
closed shall constitute the Person or Persons in whose name or names the
certificate or certificates for such shares are to be issued as the record
holder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open. No
payment or adjustment shall be made for dividends or distributions on any
Common Stock issued upon repurchase of any Security declared prior to the
Repurchase Date.
(h) No fractions of shares shall be issued upon
repurchase of Securities. If more than one Security shall be repurchased
from the same Holder and the Repurchase Price shall be payable in shares of
Common Stock, the number of full shares which shall be issuable upon such
repurchase shall be computed on the basis of the aggregate principal amount
of the Securities so repurchased. Instead of any fractional share of Common
Stock otherwise issuable on the repurchase of any Security or Securities,
the Company will deliver to the applicable Holder its check for the current
market value of such fractional share. The current market value of a
fraction of a share is determined by multiplying the current market price
of a full share by the fraction, and rounding the result to the nearest
cent. For purposes of this Section, the current market price of a share of
Common Stock is the Closing Price of the Common Stock on the Trading Day
immediately preceding the Repurchase Date.
(i) Any issuance and delivery of certificates for shares
of Common Stock on repurchase of Securities shall be made without charge to
the Holder of Securities being repurchased for such certificates or for any
tax or duty in respect of the issuance or delivery of such certificates or
the securities represented thereby; provided, however, that the Company
shall not be required to pay any tax or duty which may be payable in
respect of (i) income of the Holder or (ii) any transfer involved in the
issuance or delivery of certificates for shares of Common Stock in a name
other than that of the Holder of the Securities being repurchased, and no
such issuance or delivery shall be made unless and until the Person
requesting such issuance or delivery has paid to the Company the amount of
any such tax or duty or has established, to the satisfaction of the
Company, that such tax or duty has been paid.
(j) All Securities delivered for repurchase shall be
delivered to the Trustee to be canceled in accordance with the provisions
of Section 2.11.
(k) The Company may elect to pay the Repurchase Price by
delivery of shares of Common Stock if and only if the following conditions
shall have been satisfied:
(i) the shares of Common Stock deliverable in payment of
the Repurchase Price shall have a fair market value as of the
Repurchase Date of not less than the Repurchase Price. For
purposes of this Section 3.07, the fair market value of shares of
Common Stock shall be determined by the Company and shall be equal
to 95% of the average of the Closing Prices of the Common Stock
for the five consecutive Trading Days immediately preceding and
including the third Trading Day prior to the Repurchase Date;
(ii) such shares have been registered under the Securities
Act or are freely transferable without such registration;
(iii) the issuance of such Common Stock does not require
registration with or approval of any governmental authority under
any state law or any other federal law, which registration or
approval has not been made or obtained;
(iv) such shares have been approved for quotation on the
New York Stock Exchange or listing on a national securities
exchange; and
(v) such shares will be issued out of the Company's
authorized but unissued stock and, upon issuance, will be duly and
validly and fully paid and non-assessable and free of any
preemptive rights.
(l) For purposes of this Section 3.07:
(i) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3 and 13d-5, as in effect on the date of
the original execution of this Indenture, promulgated by the SEC
pursuant to the Exchange Act;
(ii) the term "Person" or "group" shall include any
syndicate or group which would be deemed to be a "person" under
Section 13(d) and 14(d) of the Exchange Act as in effect on the
date of this Indenture;
(iii) the term "Repurchase Event" means a Change in
Control defined as follows:
A "Change in Control" shall be deemed to have
occurred when (i) any "person" or "group" is or becomes
the "beneficial owner" of shares representing more than
50% of the combined voting power of the then outstanding
securities entitled to vote generally in elections of
directors of the Company (the "Voting Stock"); (ii) there
shall occur the liquidation or dissolution of the
Company; or (iii) the Company consolidates with or merges
into any other Person or any other Person merges into the
Company or conveys, transfers or leases all or
substantially all of its assets to any Person other than
a subsidiary or subsidiaries, and in the case of any such
transaction, the outstanding Common Stock of the Company
is changed or exchanged into other assets or securities
as a result, unless the shareholders of the Company
immediately before such transaction own, directly or
indirectly immediately following such transaction, more
than 50% of the combined voting power of the outstanding
voting securities of the Person resulting from such
transaction or the transferee Person; provided that a
Change in Control shall not be deemed to have occurred if
either (x) the Closing Price of the Common Stock for any
five (5) Trading Days (1) in the case of a Change in
Control described in clause (i) above, during the ten
(10) consecutive Trading Days after the later of the
Change in Control or the public announcement of the
Change in Control or (2) in the case of a Change of
Control described in clause (ii) or (iii) above, during
the ten (10) Trading Days immediately preceding the
Change in Control, in each such case, is at least equal
to 105% of the Conversion Price in effect on the date on
which the Change in Control occurs or (y) in the case of
a merger or consolidation otherwise constituting a Change
in Control, all of the consideration (excluding cash
payments for fractional shares) in such merger or
consolidation constituting the Change in Control consists
of common stock traded on a United States national
securities exchange or quoted on the Nasdaq National
Market (or which will be so traded or quoted when issued
or exchanged in connection with such Change in Control)
and as a result of such transaction or transactions the
Securities become convertible solely into such common
stock.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
---------------------
The Company shall pay the principal amount, premium, if
any, of and any accrued and unpaid interest on the Securities on the dates
and in the manner provided in the Securities. The principal, premium, if
any, and any accrued and unpaid interest thereon shall be considered paid
on the date due if the Paying Agent holds (or, if the Company is acting as
Paying Agent, if the Company has segregated and holds in trust in
accordance with Section 2.04) on that date money sufficient to pay the
principal, premium, if any, and any accrued and unpaid interest thereon.
The Company shall pay interest on any overdue principal
at the rate borne by the Securities. The Company shall pay interest on
overdue installments of interest at the same rate to the extent not
prohibited by applicable law.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where Securities may be
surrendered for registration of transfer or exchange or conversion 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. 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 of the
Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of New
York for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The Company hereby designates the Corporate Trust Office
of the Trustee as an agency of the Company in accordance with Section 2.03.
The Company also shall comply with the provisions of TIA
ss. 314(a).
SECTION 4.03. Reports to Holders.
------------------
(a) The Company (at its own expense) will deliver to the
Trustee within 15 days after the filing of the same with the SEC, copies of
the quarterly and annual reports and of the information, documents and
other reports, if any, the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act.
(b) Notwithstanding that the Company may not be subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act,
the Company will promptly provide the information required by Rule
144A(d)(4) to any Holder that so requests.
(c) In addition, if and when this Indenture becomes
subject to the TIA, the Company will file a copy of all such information
with the SEC for public availability (unless the Commission will not accept
such a filing) and make such information available to investors who request
it in writing. The Company will also comply with the other provisions of
TIA ss. 314(a).
Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.04. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company an Officers' Certificate
stating whether or not the signers know of any Default or Event of Default
by the Company in performing any of its obligations under this Indenture or
the Securities. If they do know of any such Default or Event of Default,
the certificate shall describe the Default or Event of Default and its
status.
SECTION 4.05. Stay, Extension and Usury Laws.
------------------------------
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not,
by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.06. Corporate Existence.
-------------------
Subject to Article Five, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect
its corporate existence and the corporate existence of each subsidiary in
accordance with the respective organizational documents of each subsidiary
and the rights (charter and statutory), licenses and franchises of the
Company and its subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the
corporate existence of any subsidiary, if in the judgment of the Company,
(i) such preservation or existence is not material to the conduct of
business of the Company and (ii) the loss of such right, license or
franchise or the dissolution of such subsidiary does not have a material
adverse impact on the Holders.
SECTION 4.07. Notice of Default.
-----------------
In the event that any Default under Section 6.01 hereof
shall occur the Company will give prompt written notice of such Default to
the Trustee.
ARTICLE FIVE
CONSOLIDATION, MERGER AND SALE OF ASSETS
SECTION 5.01. When Company May Merge, etc.
---------------------------
The Company shall not consolidate with or merge into, or
transfer or lease all or substantially all of its assets to, another Person
unless such other Person is a corporation, limited liability company,
partnership, trust or other business entity organized under the laws of the
United States, any State thereof or the District of Columbia and such
Person assumes by supplemental indenture all the obligations of the Company
under the Securities, this Indenture and the Registration Rights Agreement,
and immediately after giving effect to the transaction, no Default or Event
of Default has occurred and is continuing.
The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel stating that the proposed
transaction and such supplemental indenture will, upon consummation of the
proposed transaction, comply with this Indenture.
Notwithstanding the foregoing, any subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or any other subsidiary or subsidiaries.
SECTION 5.02. Successor Substituted.
---------------------
Upon any consolidation or merger or transfer or lease of
all or substantially all of the assets of the Company in accordance with
Section 5.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, and shall assume every duty and obligation of, the Company under
this Indenture with the same effect as if such successor corporation had
been named as the Company herein. When the successor corporation assumes
all obligations of the Company hereunder, all obligations of the
predecessor corporation shall terminate.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
(1) the Company fails to pay the principal of or any
premium on the Securities when due (whether or not prohibited by
the provisions set forth in Article Twelve hereof);
(2) the Company fails to pay any interest on the
Securities when due, if such failure continues for 30 days
(whether or not prohibited by the provisions set forth in Article
Twelve hereof);
(3) the Company fails to perform any other covenant in
this Indenture for the period and after the notice specified in
the last paragraph of this Section 6.01;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit
of its creditors; or
(5) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian of the Company for
all or substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90
consecutive days.
The term "Bankruptcy Law" means Title 11, U.S. Code or
any similar Federal or State law for the relief of debtors. The term
"Custodian" means any receiver trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
A default under clause (3) is not an Event of Default
until the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding notify the Company and the Trustee of the
default and the Company does not cure the default within 90 days after
receipt of the notice of such default. The notice must specify the default,
demand that it be remedied and state that the notice is a "Notice of
Default." If the Holders of 25% in aggregate principal amount of the
outstanding Securities request the Trustee to give such notice on their
behalf, the Trustee shall do so. When a default is cured, it ceases.
SECTION 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default
specified in Section 6.01(4) or (5)) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal
amount of the Securities then outstanding by notice to the Company and the
Trustee, may declare the principal amount including any accrued and unpaid
interest on the Securities due and payable upon the earlier to occur of (x)
the fifth (5th) day after notice thereof has been give to holders of
Designated Senior Indebtedness and (y) the date on which all of the
Designated Senior Indebtedness has been accelerated. If an Event of Default
under clause Section 6.01(4) or (5) occurs, the principal amount of all the
Securities will automatically become due and payable without any
declaration or other act on the part of the Trustee or any Holder.
The Company shall promptly notify holders of Designated
Senior Indebtedness if payment of the Securities is accelerated because of
an Event of Default.
After a declaration of acceleration, but before a
judgment or decree of the money due in respect of the Securities has been
obtained, the Holders of not less than a majority in aggregate principal
amount of the Securities then outstanding by written notice to the Trustee
may rescind an acceleration and its consequences if (i) all existing Events
of Default (other than the nonpayment of principal of and interest on the
Securities which has become due solely by virtue of such acceleration) have
been cured or waived, (ii) the rescission would not conflict with any
judgment or decree and (iii) the Company shall have paid all amounts due
pursuant to Section 7.07.
SECTION 6.03. Other Remedies.
--------------
Notwithstanding any other provision of this Indenture, if
an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment
of the principal of, premium, if any, and interest on the Securities or to
enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the
right or remedy or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Subject to Sections 6.02, 6.07 and 9.02, the Holders of a
majority in aggregate principal amount of the Securities then outstanding
by notice to the Trustee may waive any past Default or Event of Default and
its consequences, except a Default or Event of Default in the payment of
the principal of or interest on any Security, a failure by the Company to
convert any Securities into Common Stock or any Default or Event of Default
in respect of any provision of this Indenture or the Securities that, under
Section 9.02, cannot be modified or amended without the consent of the
Holder of each Security affected. When a Default or an Event of Default is
waived, it is cured and ceases.
SECTION 6.05. Control by Majority.
-------------------
The Holders of a majority in aggregate principal amount
of the Securities then outstanding may 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 it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture,
is unduly prejudicial to the rights of other Holders or would involve the
Trustee in personal liability; provided that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 6.06. Limitation on Suits.
-------------------
Except as provided in Section 6.07, a Holder may pursue a
remedy with respect to this Indenture or the Securities only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding make a written request
to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity;
and
(5) during such 60-day period the Holders of a majority
in aggregate principal amount of the Securities then outstanding
do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 6.07. Rights of Holders to Receive Payment or Convert.
-----------------------------------------------
Notwithstanding any other provision of this Indenture,
(i) the right of any Holder to receive payment of the principal of and
interest on the Security, on or after the respective due dates expressed in
the Security, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without
the consent of the Holder and (ii) the right of any Holder to bring suit
for the enforcement of the right to convert the Security shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(l) or
(2) occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Company for the whole
amount of principal and interest remaining unpaid and amounts due to the
Trustee under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee, any predecessor Trustee and the Holders allowed in
any judicial proceedings relative to the Company, its creditors or its
property.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to holders of Senior Indebtedness to the extent
required by Article Twelve;
Third: to Holders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, premium,
if any, and interest, respectively, and
Fourth: to the Company.
The Trustee, upon prior written notice to the Company,
may fix a record date and payment date for any payment by it to Holders
pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action
taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit other than the Trustee of an
undertaking to pay the costs of the suit, and the court in its discretion
may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 shall not apply to a suit by the Trustee, a suit by a
Holder or group of Holders of more than 10% in aggregate principal amount
of the outstanding Securities, or to any suit instituted by any Holder for
the enforcement or the payment of the principal or interest on any
Securities on or after the respective due dates for such Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If 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.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others shall be
inferred or implied; and
(2) 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 examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Section 6.05.
(d) The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity satisfactory to it
against any loss, liability or expense.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated
in the document; if, however, 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 expense of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate and/or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) 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.
(d) The Trustee may consult with counsel of its own
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.
(e) The Trustee may act through agents or attorneys and
shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(f) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its discretion, rights or powers hereunder.
(g) 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
may, in absence of bad faith on its part, rely upon an Officers'
Certificate.
(h) 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, unless such Holders shall have offered
to the Trustee reasonable security or indemnity satisfactory to it against
costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction.
(i) The Trustee shall not be charged with knowledge of
any Default or Event of Default with respect to the Securities unless
either (1) a Trust Officer shall have actual knowledge of such Default or
Event of Default or (2) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or by any Holder.
(j) 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.
(k) 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.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or an Affiliate thereof with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities; it shall not be accountable
for the Company's use of the proceeds from the Securities; and it shall not
be responsible for any statement in the Securities other than its
certificate of authentication.
SECTION 7.05. Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing
and if it is actually known to a Trust Officer of the Trustee, the Trustee
shall mail to each Holder a notice of the Default or Event of Default
within 30 days after it occurs unless such Default or Event of Default has
been cured or waived. Except in the case of a Default or Event of Default
in payment of the principal of, premium, if any, and interest on any
Security, the Trustee may withhold the notice if and so long as it in good
faith determines that withholding the notice is in the interests of
Holders.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 1 beginning with May 1,
2002, the Trustee shall mail to each Holder, to the extent required by TIA
ss. 313(c), a brief report dated as of such reporting date that complies
with TIA ss. 313(a). In such event, the Trustee also shall comply with TIA
ss. 313(b).
A copy of each report at the time of its mailing to
Holders shall be mailed to the Company and filed by the Trustee with the
SEC and each stock exchange, if any, on which the Securities are listed.
The Company shall promptly notify the Trustee when the Securities are
listed on any stock exchange or delisted therefrom.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time
such compensation for its services as shall be agreed upon in writing from
time to time. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and out-of-pocket
expenses of the Trustee's agents and counsel.
The Company shall fully indemnify the Trustee against any
and all loss, claim, damage or liability or expense (including the
reasonable fees and expenses of counsel) incurred by it in connection with
the acceptance or administration of this trust and the performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers and duties hereunder. The Company need not
pay for any settlement made without its consent. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnification.
The Company need not reimburse any expense or indemnify against any loss or
liability determined by a court of competent jurisdiction to have been
caused by the Trustee's own negligence or bad faith.
To secure the Company's payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in
trust to pay the principal of, premium, if any, and interest on particular
Securities.
The indemnity obligations of the Company with respect to
the Trustee provided for in this Section 7.07 shall survive any resignation
or removal of the Trustee and the termination of this Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(4) or (5) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.08.
The Trustee may resign by so notifying the Company in
writing 30 days prior to such resignation. The Holders of a majority in
aggregate principal amount of the Securities then outstanding may remove
the Trustee by so notifying the Trustee and the Company in writing and may
appoint a successor Trustee with the Company's consent. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor Trustee
takes office, the Holders of a majority in aggregate principal amount of
the Securities then outstanding may appoint a successor Trustee to replace
the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of at least 10% in aggregate principal
amount of the outstanding Securities may petition at the expense of the
company any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall upon payment of all
amounts due it hereunder promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07.
SECTION 7.09. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business
to, another corporation, the successor corporation without any further act
shall be the successor Trustee, if such successor corporation is otherwise
eligible hereunder.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies
the requirements of TIA ss. 310(a)(1). The Trustee shall always have a
combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply
with TIA ss. 310(b).
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA ss. 311(a), excluding
any creditor relationship listed in TIA ss. 311(b). A Trustee who has
resigned or been removed shall be subject to TIA ss. 311(a) to the extent
indicated.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. Termination of Company's Obligations.
------------------------------------
The Company may terminate its substantive obligations in
respect of the Securities if the Securities mature within one (1) year, or
all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving notice of redemption,
by delivering all outstanding Securities to the Trustee for cancellation
and paying all sums payable by it on account of principal of, premium, if
any, and interest on all Securities or otherwise. In addition to the
foregoing, the Company may terminate its obligations under Sections 3.07,
4.03 and 4.06 (other than with respect to the corporate existence of the
Company), and no Default or Event of Default under Section 6.01(3) shall
thereafter apply, by (i) depositing with the Trustee, under the terms of an
irrevocable trust agreement, money or direct non-callable obligations of
the United States of America for the payment of which the full faith and
credit of the United States is pledged ("U. S. Government Obligations")
sufficient (without reinvestment), in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the principal of,
premium, if any, and interest on the Securities at maturity or an earlier
redemption, (ii) delivering to the Trustee either an Opinion of Counsel or
a ruling directed to the Trustee from the Internal Revenue Service to the
effect that the Holders of the Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit and
termination of obligations and (iii) delivering to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating compliance with all
conditions precedent provided for herein. In addition, the Company may,
provided that no Default or Event of Default has occurred and is continuing
or would arise therefrom (or, with respect to a Default or Event of Default
specified in Section 6.01(4), occurs at any time on or prior to the 91st
calendar day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 91st day)),
terminate all of its substantive obligations in respect of the Securities
(including its obligations to pay the principal of, premium, if any, and
interest on the Securities) by (i) depositing with the Trustee, under the
terms of an irrevocable trust agreement, money or United States Government
Obligations sufficient (without reinvestment) to pay the principal of,
premium, if any, and interest on the Securities at maturity or on earlier
redemption, (ii) delivering to the Trustee either a ruling directed to the
Trustee from the Internal Revenue Service to the effect that the Holders of
the Securities will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and termination of obligations or
an Opinion of Counsel addressed to the Trustee based upon such a ruling or
based on a change in the applicable Federal tax law since the date of this
Indenture to such effect and (iii) delivering to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating compliance with all
conditions precedent provided for herein.
Notwithstanding the foregoing paragraph, the Company's
obligations in Article Ten and Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07,
2.10, 2.12, 2.13 and 4.01 (but not with respect to termination of
substantive obligations pursuant to the third sentence of the foregoing
paragraph), 4.02, 7.07, 7.08, 8.03 and 8.04 shall survive until the
Securities are no longer outstanding. Thereafter the Company's obligations
in Sections 7.07, 8.03 and 8.04 shall survive such satisfaction and
disharge.
After such delivery or irrevocable deposit and delivery
of an Officers' Certificate and Opinion of Counsel, the Trustee upon
request shall acknowledge in writing the discharge of the Company's
obligations under the Securities and this Indenture except for those
surviving obligations specified above.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the United
States Government Obligations deposited pursuant to this Section 8.01 or
the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
outstanding Securities.
SECTION 8.02. Application of Trust Money.
--------------------------
Subject to the provisions of Section 8.03, the Trustee
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 8.01. It shall apply the deposited money and the money
from U.S. Government obligations through the Paying Agent and in accordance
with this Indenture to the payment of the principal of, premium, if any,
and interest on the Securities. Money and securities so held in trust are
not subject to the subordination provisions of Article Twelve.
SECTION 8.03. Repayment to Company.
--------------------
The Trustee and the Paying Agent shall promptly pay to
the Company upon request any excess money or securities held by them at any
time. The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of the principal of,
premium, if any, and interest that remains unclaimed for two years;
provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may, at the expense of the Company,
cause to be mailed to each Holder, notice stating that such money remains
and that, after a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance of such money
then remaining will be repaid to the Company. After payment to the Company,
Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates
another Person.
SECTION 8.04. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with Section 8.01 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 8.01; provided, however,
that to the extent the Company makes any payment of the principal of,
premium, if any, and interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS
SECTION 9.01. Without Consent of Holders.
--------------------------
The Company, when authorized by a Board Resolution, may
modify, amend or supplement this Indenture or the Securities without notice
to or the consent of any Holder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Sections 5.01 and 10.07;
(3) to provide for uncertificated Securities in addition
to certificated Securities; or
(4) to make any change that does not adversely affect the
rights of any Holder.
SECTION 9.02. With Consent of Holders.
-----------------------
The Company, when authorized by a Board Resolution, may
modify, amend or supplement this Indenture or the Securities without notice
to any Holder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities.
Subject to Section 6.07, the Holders of a majority in aggregate principal
amount of the outstanding Securities may waive compliance by the Company
with any provision of this Indenture or the Securities without notice to
any other Holder. However, without the consent of each Holder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section
6.04, may not:
(1) change the stated maturity of the Securities;
(2) reduce the principal, premium, if any, or interest on
the Securities;
(3) change the place of payment from New York, New York
or change the currency in which the Securities are payable;
(4) waive a default in the payment of the principal of,
premium, if any, or interest on any Security;
(5) make any change in Section 6.04, Section 6.07 or this
Section 9.02;
(6) modify the provisions of Article Twelve in a
materially adverse manner to the Holders; or
(7) make any change that adversely affects the right to
convert any Security.
Furthermore, an amendment under this Article Nine may not
make any change that adversely affects the rights of any holder of Senior
Indebtedness under Article Twelve unless the holders of such Senior
Indebtedness consent to such change pursuant to the terms governing such
Senior Indebtedness.
It shall not be necessary for the consent of the Holders
under this Section 9.02 to approve the particular form of any proposed
amendment or supplement, but it shall be sufficient if such consent
approves the substance thereof.
Promptly after an amendment under this Section 9.02
becomes effective, the Company shall mail to Holders a notice briefly
describing the amendment.
SECTION 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment, waiver or supplement to this Indenture
or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the
Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to its Security or
portion of a Security if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
After an amendment, supplement or waiver becomes
effective with respect to the Securities, it shall bind every Holder unless
it makes a change described in any of clauses (1) through (7) of Section
9.02. In that case the amendment, supplement or waiver shall bind each
Holder of a Security who has consented to it and, provided that notice of
such amendment, supplement or waiver is reflected on a Security that
evidences the same debt as the consenting Holder's Security, every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms
of a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on
the Security as directed and prepared by the Company about the changed
terms and return it to the Holder. Alternatively, if the Company so
determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee Protected.
-----------------
The Trustee may, but shall not be obligated to, sign any
amendment, supplement or waiver authorized pursuant to this Article that
affects the Trustee's rights, duties or obligations. The Trustee shall be
entitled to receive and may conclusively rely upon, in addition to the
documents required by Section 13.04, an Opinion of Counsel and an Officers'
Certificate that any supplemental indenture, modification, amendment or
waiver complies with the Indenture.
ARTICLE TEN
CONVERSION
SECTION 10.01. Conversion Privilege; Restrictive Legends.
-----------------------------------------
A Holder of a Security may convert the principal of such
Security into Common Stock at any time during the period stated in
paragraph 9 of the Securities. The number of shares issuable upon
conversion of a Security is determined as follows: divide each $1,000 of
the principal amount to be converted by the Conversion Price in effect on
the conversion date and round the result to the nearest 1/100th of a share.
The Conversion Price is subject to adjustment in accordance with Section
10.06.
A Holder may convert a portion of the principal of such
Security if the portion is at least $1,000 principal amount or an integral
multiple of $1,000 principal amount. Provisions of this Indenture that
apply to conversion of all of a Security also apply to conversion of a
portion of it.
Any shares issued upon conversion of a Security shall
bear the Private Placement Legend set forth in Exhibit B(I) until after the
second anniversary of the later of the Issue Date for such Security and the
last date on which the Company or any Affiliate of the Company was the
owner of such shares or the Security (or any predecessor security) from
which such shares were converted (or such shorter period of time as
permitted by Rule 144(k) under the Securities Act or any successor
provision thereunder or such longer period of time as may be required under
the Securities Act or applicable state securities laws unless otherwise
agreed by the Company and the Holder thereof).
SECTION 10.02. Conversion Procedure.
--------------------
To convert a Security a Holder must satisfy the
requirements in paragraph 9 of the Securities. The date on which the Holder
satisfies all those requirements is the conversion date. As soon as
practicable, the Company shall deliver to the Holder through the Conversion
Agent a certificate for the number of full shares of Common Stock issuable
upon the conversion and a check in lieu of any fractional share. The Person
in whose name the certificate is registered shall be treated as a
shareholder of record on and after the conversion date.
Except as described below, no payment or adjustment will
be made for accrued interest on, or liquidated damages with respect to, a
converted Security or for dividends on any Common Stock issued on
conversion. If any Security is converted during the period from but
excluding, a record date for the payment of interest to, but excluding, the
next succeeding interest payment date, unless such Security has been called
for redemption on a redemption date between such dates, such Security must
be accompanied by funds equal to the interest payable to the registered
Holder on such interest payment date on the principal amount so converted.
A Security converted on an interest payment date need not be accompanied by
any payment, and the interest on the principal amount of the Security being
converted will be paid on such interest payment date to the registered
Holder of such Security on the applicable record date.
If a Holder converts more than one Security at the same
time, the number of full shares issuable upon the conversion shall be based
on the total principal amount of the Securities converted.
Upon surrender of a Security that is converted in part
the Trustee shall authenticate for the Holder a new Security equal in
principal amount to the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a
Legal Holiday in a place where a Conversion Agent is located, the Security
may be surrendered to that Conversion Agent on the next succeeding day that
is not a Legal Holiday.
SECTION 10.03. Fractional Shares.
-----------------
The Company will not issue fractional shares of Common
Stock upon conversion of Securities and instead will deliver a cash
adjustment in lieu of the fractional share based upon the current market
value of the Common Stock. The current market value of a fraction of a
share is determined by multiplying the current market price of a full share
by the fraction, and rounding the result to the nearest cent. For purposes
of this Section, the current market price of a share of Common Stock is the
Closing Price of the Common Stock on the Trading Day immediately preceding
the conversion date.
SECTION 10.04. Taxes on Conversion.
-------------------
If a Holder converts its Security, the Company shall pay
any documentary, stamp or similar issue or transfer tax due on the issue of
shares of Common Stock upon the conversion. However, the Holder shall pay
any such tax which is due because the shares are issued in a name other
than the Holder's name.
SECTION 10.05. Company to Provide Stock.
------------------------
The Company shall reserve out of its authorized but
unissued Common Stock or its Common Stock held in treasury enough shares of
Common Stock to permit the conversion of all of the Securities, including
such greater number of shares of Common Stock into which such Securities
shall be convertible into as a result of a Conversion Price adjustment
contemplated by Section 10.06 hereof.
All shares of Common Stock which may be issued upon
conversion of the Securities shall be validly issued, fully paid and
non-assessable.
The Company will endeavor to comply with all securities
laws regulating the offer and delivery of shares of Common Stock upon
conversion of Securities and will endeavor to list such shares on each
national securities exchange on which the Common Stock is listed.
SECTION 10.06. Adjustment of Conversion Price.
------------------------------
The Conversion Price shall be adjusted from time to time
by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or
make a distribution to all holders of the outstanding Common Stock
in shares of Common Stock, the Conversion Price in effect at the
opening of business on the date following the Record Date with
respect to shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price
by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding at the close of business on the Record
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 reduction
to become effective immediately after the opening of business on
the day following the Record Date. If any dividend or distribution
of the type described in this Section 10.06(a) is declared but not
so paid or made, the Conversion Price shall again be adjusted to
the Conversion Price which would then be in effect if such
dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to
all holders of its outstanding shares of Common Stock entitling
them to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price on the Record
Date fixed for the determination of shareholders entitled to
receive such rights or warrants, the Conversion Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of
business on the date after such Record 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 Record Date plus the
number of shares which the aggregate offering price of the total
number of shares so offered for subscription or purchase would
purchase at such Current Market Price, and of which the
denominator shall be the number of shares of Common Stock
outstanding on the close of business on the Record Date plus the
total number of additional shares of Common Stock so offered for
subscription or purchase. Such adjustment shall become effective
immediately after the opening of business on the day following the
Record Date fixed for determination of shareholders entitled to
receive such rights or warrants. To the extent that shares of
Common Stock are not delivered pursuant to such rights or
warrants, upon the expiration or termination of such rights or
warrants the Conversion Price shall be readjusted to the
Conversion Price that would then be in effect had the adjustments
made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of shares of Common Stock
actually delivered. In the event that such rights or warrants are
not so issued, the Conversion Price shall again be adjusted to be
the Conversion Price that would then be in effect if such date
fixed for the determination of shareholders entitled to receive
such rights or warrants had not been fixed. In determining whether
any rights or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such Current Market
Price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants, the value of
such consideration, if other than cash, to be determined in good
faith by the Board of Directors.
(c) In case the outstanding shares of Common Stock shall
be split or subdivided into a greater number of shares of Common
Stock, the Conversion Price in effect at the opening of business
on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and conversely, in
case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case
may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision
or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class
of capital stock of the Company (other than any dividends or
distributions to which Section 10.06(a) applies) or evidences of
its indebtedness, cash or other assets (including securities, but
excluding (1) any rights or warrants referred to in Section
10.06(b), (2) dividends and distributions paid exclusively in cash
and (3) any capital stock, evidences of indebtedness, cash or
assets distributed upon a merger or consolidation to which Section
10.07 applies) (the foregoing hereinafter in this Section 10.06(d)
called the "Subject Securities"), unless the Company elects to
reserve such Subject Securities for distribution to the Holders
upon conversion of the Securities so that any such Holder
converting Securities will receive upon such conversion, in
addition to the shares of Common Stock to which such Holder is
entitled, the amount and kind of such Subject Securities which
such Holder would have received if such Holder had converted its
Securities into Common Stock immediately prior to the Record Date
for such distribution of the Subject Securities, then, in each
such case, the Conversion Price shall be reduced so that the same
shall be equal to the price determined by multiplying the
Conversion Price in effect immediately prior to the close of
business on the Record Date with respect to such distribution by a
fraction of which the numerator shall be the Current Market Price
on such date less the fair market value on such date of the
portion of the Subject Securities so distributed applicable to one
share of Common Stock and the denominator shall be such Current
Market Price, such reduction to become effective immediately prior
to the opening of business on the day following the Record Date;
provided, however, that in the event the then fair market value of
the portion of the Subject Securities so distributed applicable to
one share of Common Stock is equal to or greater than the Current
Market Price on the Record Date, then in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder
shall have the right to receive upon conversion of a Security (or
any portion thereof) the amount of Subject Securities such Holder
would have received had such Holder converted such Security (or
portion thereof) immediately prior to such Record Date. In the
event that such dividend or distribution is not so paid or made,
the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such dividend or
distribution had not been declared.
For purposes of this Section 10.06(d), rights or warrants
distributed by the Company to all holders of Common Stock
entitling the holders thereof to subscribe for or purchase shares
of the Company's capital stock (either initially or under certain
circumstances) that are (i) deemed to be transferred with such
shares of Common Stock; (ii) not exercisable; and (iii) issued in
respect of future issuances of Common Stock, until the occurrence
of a specified event or events ("Trigger Event") shall be deemed
not to have been distributed and no adjustment to the Conversion
Price with respect thereto shall be made until the occurrence of
the earliest Trigger Event. If any such right or warrant is
subject to subsequent events, upon the occurrence of which such
right or warrant shall become exercisable to purchase different
securities, evidences of indebtedness or other assets or entitle
the holder to purchase a different number or amount of the
foregoing or to purchase any of the foregoing at a different
purchase price, then the occurrence of each such event shall be
deemed to be the date of issuance and record date with respect to
a new right or warrant (and a termination or expiration of the
existing right or warrant without exercise by the holder thereof).
In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with
respect thereto, that resulted in an adjustment to the Conversion
Price under this Section 10.06(d), (1) in the case of any such
rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the
Conversion Price shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event,
as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a
holder of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made
to all holders of Common Stock as of the date of such redemption
or repurchase, and (2) in the case of such rights or warrants all
of which shall have expired or been terminated without exercise,
the Conversion Price shall be readjusted as if such rights and
warrants had never been issued.
For purposes of this Section 10.06(d) and Sections
10.06(a) and (b), any dividend or distribution to which this
Section 10.06(d) is otherwise applicable that also includes shares
of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock applies (or both), shall be deemed
instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or warrants
(other than such shares of Common Stock or rights or warrants)
(and any Conversion Price reduction required by this Section
10.06(d) with respect to such dividend or distribution shall then
be made) immediately followed by (2) a dividend or distribution of
such shares of Common Stock or such rights or warrants (and any
further Conversion Price reduction required by Sections 10.06(a)
and (b) with respect to such dividend or distribution shall then
be made), except (A) the Record Date of such dividend or
distribution shall be substituted as "the date fixed for the
determination of shareholders entitled to receive such dividend or
other distribution", "Record Date fixed for such determination"
and "Record Date" within the meaning of Section 10.06(a) and as
"the date fixed for the determination of shareholders entitled to
receive such rights or warrants", "the Record Date fixed for the
determination of the shareholders entitled to receive such rights
or warrants" and "such Record Date" within the meaning of Section
10.06(b) and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at the
close of business on the Record Date fixed for such determination"
within the meaning of Section 10.06(a).
With respect to any shareholder rights plan existing on
the date hereof or in the event that the Company implements any
other shareholder rights plan, upon conversion of the Securities
the Holders will receive, in addition to the Common Stock issuable
upon such conversion, the rights issued under such rights plan
(notwithstanding the occurrence of an event causing such rights to
separate from the Common Stock at or prior to the time of
conversion); provided, a Holder who is a holder of Common Stock
(or direct or indirect interests therein) at the time of
conversion, but who is not entitled as such a holder to such
rights pursuant to the terms of any such plan, shall not be
eligible to receive any such rights hereunder. Any distribution of
rights or warrants pursuant to a shareholder rights plan complying
with the requirements set forth in the immediately preceding
sentence of this paragraph shall not constitute a distribution of
rights or warrants for the purposes of the other provisions of
this Section 10.06(d).
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any
cash that is distributed upon a merger or consolidation to which
Section 10.07 applies or as part of a distribution referred to in
Section 10.06(d)), in an aggregate amount that, combined together
with (1) the aggregate amount of all other such all-cash
distributions to all holders of its Common Stock within the twelve
(12) months preceding the date of payment of such distribution,
and in respect of which no adjustment pursuant to this Section
10.06(e) has been made, and (2) the aggregate of any cash plus the
fair market value of consideration payable in respect of any
tender offer by the Company or any subsidiary for all or any
portion of the Common Stock concluded within the twelve (12)
months preceding the date of payment of such distribution, and in
respect of which no adjustment pursuant to Section 10.06(f) has
been made (such aggregate amount, the "Common Dividend Amount"),
exceeds 10% of the product of the Current Market Price on the
Record Date with respect to such distribution times the number of
shares of Common Stock outstanding on such date (the "Market
Capitalization"), then, and in each such case, immediately after
the close of business on such date, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to
the close of business on such Record Date by a fraction (i) the
numerator of which shall be equal to the Current Market Price on
the Record Date less an amount equal to the quotient of (x) the
amount by which the Common Dividend Amount exceeds 10% of the
Market Capitalization and (y) the number of shares of Common Stock
outstanding on the Record Date and (ii) the denominator of which
shall be equal to the Current Market Price on such date; provided,
however, that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater
than the Current Market Price of the Common Stock on the Record
Date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder shall have the right to receive
upon conversion of a Security (or any portion thereof) the amount
of cash such Holder would have received had such holder converted
such Security (or portion thereof) immediately prior to such
Record Date. In the event that such dividend or distribution is
not so paid or made, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be in effect if such
dividend or distribution had not been declared.
(f) 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 shall require the payment to holders of
Common Stock of an aggregate consideration that together with
(1) the aggregate of the cash plus the fair
market value of consideration payable in respect of any
other tender offers by the Company or any of its
subsidiaries for all or any portion of the Common Stock
expiring within the twelve (12) months preceding the
expiration of such tender offer and in respect of which
no adjustment pursuant to this Section 10.06(f) has been
made, and
(2) the aggregate amount of any all-cash
distributions to all holders of the Company's Common
Stock made within twelve (12) months preceding the
expiration of such tender offer and in respect of which
no adjustment pursuant to Section 10.06(e) has been made,
exceeds 10% of the product of the Current Market Price as of the
time of expiration of such tender offer times the number of shares
of Common Stock outstanding at such time, then, and in each such
case, immediately prior to the opening of business on the day
after the expiration of such tender offer, the Conversion Price
shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date of the
expiration of such tender offer by a fraction of which the
numerator shall be the number of shares of Common Stock
outstanding on the date of expiration of the tender offer
multiplied by the Current Market Price of the Common Stock on the
Trading Day next succeeding the date of expiration of the tender
offer and the denominator shall be the sum of (x) the fair market
value of the aggregate consideration payable for all shares of
Common Stock validly tendered and not withdrawn as of the date of
expiration of the tender offer and (y) the product of the number
of shares of Common Stock outstanding less all shares validly
tendered and not withdrawn as of the date of expiration of the
tender offer and the Current Market Price of the Common Stock on
the Trading Day next succeeding the date of expiration of the
tender offer, such reduction (if any) to become effective
immediately prior to the opening of business on the day following
the date of expiration of the tender offer. In the event the
Company is permanently prevented by applicable law from effecting
any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such tender offer had not
been made. If the application of this Section 10.06(f) to any
tender offer would result in an increase in the Conversion Price,
no adjustment shall be made for such tender offer under this
Section 10.06(f).
(g) For purposes of this Section 10.06, the following
terms have the meanings indicated:
(1) "Closing Price" with respect to any
securities on any day shall mean the closing sale price
regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing
bid and asked prices, regular way, in each case on the
Nasdaq National Market or New York Stock Exchange, as
applicable, or, if such security is not listed or
admitted to trading on such Nasdaq National Market or New
York Stock Exchange, on the principal national security
exchange or quotation system on which such security is
quoted or listed or admitted to trading, or, if not
quoted or listed or admitted to trading on any national
securities exchange or quotation system, the average of
the closing bid and asked prices of such security on the
over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated,
or a similar generally accepted reporting service, or if
not so available, in such manner as furnished by any New
York Stock Exchange member firm selected from time to
time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in
a Board Resolution.
(2) "Current Market Price" shall mean the
average of the Closing Prices per share of Common Stock
for the ten (10) consecutive Trading Days immediately
prior to the date for which a Current Market Price is
required; provided, however, that:
(1) if the "ex" date (as hereinafter
defined) for any event (other than the issuance
or distribution requiring such computation) that
requires an adjustment to the Conversion Price
pursuant to Section 10.06(a), (b), (c), (d),
(e), (f) or (g) occurs during such ten
consecutive Trading Days, then the Closing Price
for each Trading Day prior to the "ex" date for
such other event shall be adjusted by
multiplying such Closing Price by the same
fraction by which the Conversion Price is so
required to be adjusted as a result of such
other event,
(2) if the "ex" date for any event
(other than the issuance or distribution
requiring such computation) that requires an
adjustment to the Conversion Price pursuant to
Section 10.06(a), (b), (c), (d), (e), (f) or (g)
occurs on or after the "ex" date for the
issuance or distribution requiring such
computation and prior to the day in question,
then the Closing Price for each Trading Day on
and after the "ex" date for such other event
shall be adjusted by multiplying such Closing
Price by the reciprocal of the fraction by which
the Conversion Price is so required to be
adjusted as a result of such other event, and
(3) if the "ex" date for the issuance
or distribution requiring such computation is
prior to the day in question, after taking into
account any adjustment required pursuant to
clause (1) or (2) of this proviso, the Closing
Price for each Trading Day on or after such "ex"
date shall be adjusted by adding thereto the
amount of any cash and the fair market value of
the evidences of indebtedness, shares of capital
stock or assets being distributed applicable to
one share of Common Stock as of the close of
business on the day before such "ex" date.
For purposes of any computation under Sections
10.06(f) or (g), the Current Market Price of the Common
Stock on any date shall be deemed to be the average of
the daily Closing Prices per share of Common Stock for
such day and the next two succeeding Trading Days;
provided, however, that if the "ex" date for any event
(other than the tender offer requiring such computation)
that requires an adjustment to the Conversion Price
pursuant to ▇▇▇▇▇▇▇ ▇▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇) and
(g) occurs on or after the date of expiration of the
tender or exchange offer requiring such computation and
prior to the day in question, the Closing Price for each
Trading Day on and after the "ex" date for such other
event shall be adjusted by multiplying such Closing Price
by the reciprocal of the fraction by which the Conversion
Price is so required to be adjusted as a result of such
other event.
For purposes of this definition, the term "ex"
date, (1) when used with respect to any issuance or
distribution, means the first date on which the Common
Stock trades regular way on the relevant exchange or in
the relevant market from which the Closing Price was
obtained without the right to receive such issuance or
distribution, (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, and (3) when used with respect to any tender
or exchange offer means the first date on which the
Common Stock trades regular way on such exchange or in
such market after the Expiration Time of such offer.
(3) "fair market value" shall mean the amount
which a willing buyer would pay a willing seller in an
arm's length transaction determined in good faith by the
Board of Directors, whose determination shall be
conclusive and described in a Board Resolution.
(4) "Record Date" shall mean, with respect to
any dividend, distribution or other transaction or event
in which the holders of Common Stock have the right to
receive any cash, securities or other property or in
which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash,
securities or other property, the date fixed for
determination of shareholders entitled to receive such
cash, securities or other property (whether such date is
fixed by the Board of Directors or by statute, contract
or otherwise).
(5) "Trading Day" shall mean (x) if the
applicable security is listed or admitted for trading on
the New York Stock Exchange or another national security
exchange, a day on which the New York Stock Exchange or
such other national security exchange, as the case may
be, is open for business, (y) if the applicable security
is quoted on the Nasdaq National Market, a day on which
trades may be made thereon or (z) if the applicable
security is not so listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York
are authorized or obligated by law or executive order to
close.
(h) The Company may make such reductions in the
Conversion Price, in addition to those required by Sections
10.06(a), (b), (c), (d), (e) and (f), as the Board of Directors
considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax
purposes.
To the extent permitted by applicable law, the Company
from time to time may reduce the Conversion Price by any amount
for any period of time if the period is at least twenty (20) days
and the reduction is irrevocable during the period. Whenever the
Conversion Price is reduced pursuant to the preceding sentence,
the Company shall mail to the Holder of each Security at his last
address appearing on the register maintained by the Registrar a
notice of the reduction at least fifteen (15) days prior to the
date the reduced Conversion Price takes effect, and such notice
shall state the reduced Conversion Price and the period during
which it will be in effect.
(i) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustment that would otherwise be required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All calculations under this Article Ten shall be made
by the Company and shall be made to the nearest cent or to the
nearest one hundredth of a share, as the case may be. No
adjustment need be made for a change in the par value or no par
value of the Common Stock.
(j) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee, and
any Conversion Agent other than the Trustee, an Officers'
Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts
requiring such adjustment. Unless and until a Trust Officer of the
Trustee shall have received such Officers' Certificate, the
Trustee shall not be deemed to have knowledge of any adjustment of
the Conversion Price and may assume without inquiry that the last
Conversion Price of which it has knowledge remains in effect.
Promptly after delivery of such certificate, the Company shall
prepare a notice of such adjustment of the Conversion Price
setting forth the adjusted Conversion Price and the date on which
each adjustment becomes effective and shall mail such notice of
such adjustment of the Conversion Price to the Holder of each
Security at his last address appearing on the register maintained
by the Registrar, within twenty (20) days of the effective date of
such adjustment. Failure to deliver such notice shall not affect
the legality or validity of any such adjustment.
(k) In any case in which this Section 10.06 provides that
an adjustment shall become effective immediately after a Record
Date for an event, the Company may defer until the occurrence of
such event (i) issuing to the Holder of any Security converted
after such Record Date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the
Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash
in lieu of any fraction pursuant to Section 10.03.
(l) For purposes of this Section 10.06, the number of
shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common Stock held
in the treasury of the Company.
SECTION 10.07. Effect of Reclassification, Consolidation, Merger or Sale.
---------------------------------------------------------
In the case of (i) any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation, merger or
combination of the Company with another corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange
for such Common Stock or (iii) any sale or conveyance of the properties and
assets of the Company as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock shall be entitled
to receive stock, securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock, then, unless an
adjustment with respect thereto shall be made pursuant to Section 10.06,
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture providing that the
Securities shall be convertible into the kind and amount of shares of stock
and other securities or property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon
conversion of such Securities immediately prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance assuming
such holder of Common Stock did not exercise rights of election, if any, as
to the kind or amount of securities, cash or other property receivable upon
such consolidation, merger, statutory exchange, sale or conveyance. Such
supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
this Article Ten. If, in the case of any such reclassification, change,
consolidation, merger, combination, sale or conveyance, the stock or other
securities and assets receivable thereupon by a holder of shares of Common
Stock include shares of stock or other securities and assets of a Person
other than the successor or purchasing corporation, as the case may be, in
such reclassification, change, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such
other Person and shall contain such additional provisions to protect the
interests of the Holders as the Board of Directors shall reasonably
consider necessary by reason of the foregoing.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder of Securities, at its
address appearing on the register maintained by the Registrar, within
twenty (20) days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.
SECTION 10.08. Notice of Certain Transactions.
------------------------------
If:
(1) the Company proposes to take any action that would
require an adjustment in the conversion rate;
(2) the Company proposes to take any action that would
require a supplemental indenture pursuant to Section 10.07; or
(3) there is a proposed liquidation, winding up or
dissolution of the Company,
the Company shall mail to Holders a notice stating the proposed record date
for a dividend or distribution or the proposed effective date of a
subdivision, combination, reclassification, consolidation, merger,
transfer, lease, liquidation or dissolution. The Company shall mail the
notice at least 10 days before such date. Failure to mail the notice or any
defect in it shall not affect the validity of the transaction.
SECTION 10.09. Company Determination Final.
---------------------------
Any determination that the Board of Directors makes
pursuant to this Article Ten is conclusive, absent manifest error.
SECTION 10.10. Trustee's Disclaimer.
--------------------
The Trustee has no duty to determine when an adjustment
under this Article or under the terms of the Securities should be made, how
it should be made or what it should be. Such information shall be timely
provided to the Trustee in an Officers' Certificate. The Trustee has no
duty to determine whether any provisions of a supplemental indenture under
Section 10.07 are correct. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the Company's failure
to comply with this Article. Each Conversion Agent other than the Company
shall have the same protection under this Section 10.10 as the Trustee.
ARTICLE ELEVEN
[RESERVED]
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior Indebtedness.
----------------------------------------------
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that
the indebtedness represented by the Securities and the payment of the
principal of (and premium, if any) and interest on each and all of the
Securities is hereby expressly subordinate and junior, to the extent and in
the manner hereinafter set forth, in right of payment to the prior payment
in full of all Senior Indebtedness.
(a) Upon any distribution of assets of the Company, upon
any dissolution, winding-up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Company or otherwise, then
the holders of all Senior Indebtedness shall first be entitled to receive
payment of the full amount due thereon in cash or other consideration
satisfactory to the holders of Senior Indebtedness in respect of principal
(and premium, if any) and interest, or provision shall be made for such
amount in cash or other consideration satisfactory to the holders of Senior
Indebtedness, before the Holders of any of the Securities are entitled to
receive any payment or distribution of any character, whether in cash,
securities or other property, on account of the principal of (or premium,
if any) or interest on the indebtedness evidenced by the Securities.
For purposes of this Article Twelve, the words, "cash,
securities or other property" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinated at least to the
extent provided in this Article Twelve with respect to the Securities to
the payment of all Senior Indebtedness which may at the time be
outstanding; provided that (i) the Senior Indebtedness is assumed by the
new corporation, if any, resulting from any reorganization or readjustment,
and (ii) the rights of the holders of Senior Indebtedness (other than
leases which are not assumed by the Company or the new corporation, as the
case may be) are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another Person
upon the terms and conditions provided for in Article Five shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 12.01(a) if such other Person shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article Five.
(b) No payment shall be made by the Company with respect
to the principal of, premium, if any, or interest on the Securities or to
acquire any of the Securities, if (i) any default in payment of the
principal of or premium, if any, or interest on, or any other obligation
under any Designated Senior Indebtedness occurs and is continuing (a
"Payment Default") beyond any applicable grace period with respect thereto,
unless and until all such payments due in respect of such Designated Senior
Indebtedness have been paid in full in cash or other consideration
satisfactory to holders of Senior Indebtedness or such default shall have
been cured or waived or shall have ceased to exist, (ii) any event of
default, other than a Payment Default, with respect to any Designated
Senior Indebtedness occurs and is continuing permitting the holders of such
Designated Senior Indebtedness (or a trustee or other representative on
behalf of the holders thereof) to declare such Designated Senior
Indebtedness due and payable prior to the date on which it would otherwise
have become due and payable, and the Trustee receives notice thereof from
the Company or by any holders of such Designated Senior Indebtedness (or a
trustee or other representative on behalf of the holders thereof) (the
"Payment Blockage Notice"), for a period (the "Payment Blockage Period")
ending on the earlier of the date on which such event of default shall have
been cured or waived or shall have ceased to exist or 179 days after
receipt of the Payment Blockage Notice, or (iii) any judicial proceeding
shall be pending with respect to any such default in payment or event of
default; provided, further, any number of additional Payment Blockage
Periods may be commenced during an existing Payment Blockage Period;
provided, however, that no such additional Payment Blockage Period shall
extend beyond the initial Payment Blockage Period. Notwithstanding anything
in the subordination provisions of this Indenture or the Securities to the
contrary, (x) in no event will a Payment Blockage Period extend beyond 179
days from the date of the Payment Blockage Notice in respect thereof was
given and (y) there shall be no new Payment Blockage Period unless and
until 360 days have elapsed since the initial effectiveness of the prior
Payment Blockage Period. No nonpayment default that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be the basis for a subsequent payment blockage notice, unless
the default has been cured or waived for a period of not less than 90 days.
(c) If the maturity of the Securities is accelerated, no
payment may be made on the Securities until all amounts due or to become
due on Senior Indebtedness have been paid in full in cash or other
consideration satisfactory to holders of Senior Indebtedness or until such
acceleration has been cured or waived.
(d) In the event that, notwithstanding the foregoing
provisions of Sections 12.01(a), (b) and (c), any payment on account of
principal of or interest on the Securities shall be made by or on behalf of
the Company and received by the Trustee, by any Holder or by any Paying
Agent (or, if the Company is acting as its own Paying Agent, money for any
such payment shall be segregated and held in trust), at a time when such
payment is not permitted by any of such provisions, then, unless and until
all Senior Indebtedness (or Designated Senior Indebtedness, in the case of
Section 12.01(b)) is paid in full in cash or other consideration
satisfactory to the holders thereof, or such payment is otherwise permitted
to be made by the provisions of each of Sections 12.01(a), 12.01(b) and
12.01(c) (subject, in each case, to the provisions of Section 12.07), such
payment on account of principal of or interest on the Securities shall be
held in trust for the benefit of, and shall be immediately paid over to,
the holders of Senior Indebtedness (or Designated Senior Indebtedness, in
the case of Section 12.01(b)) or their representative or representatives or
the trustee or trustees under any indenture under which any instruments
evidencing any of the Senior Indebtedness (or Designated Senior
Indebtedness, in the case of Section 12.01(b)) may have been issued, as
their interests may appear.
Regardless of anything to the contrary herein, nothing
shall prevent (A) any payment by the Company or the Trustee to Holders of
amounts in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Section 3.01 prior to the receipt by
the Trustee of a Payment Blockage Notice, and (ii) such notice of
redemption is given not earlier than 75 days before the Redemption Date, or
(B) any payment by the Trustee to the Holders of amounts deposited with it
pursuant to Section 8.01.
SECTION 12.02. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness
to which the indebtedness evidenced by the Securities is in the
circumstances subordinated as provided in Section 12.01, the Holders of the
Securities (together with the holders of any other indebtedness of the
Company which is subordinate in right of payment to the payment in full of
all Senior Indebtedness, which is not subordinate in right of payment to
the Securities and which by its terms grants such right of subrogation to
the holders thereof) shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to such Senior
Indebtedness until all amounts owing on the Securities shall be paid in
full, and, as between the Company, its creditors other than holders of such
Senior Indebtedness, and the Holders of the Securities, no such payment or
distribution made to the holders of Senior Indebtedness by virtue of this
Article which otherwise would have been made to the Holders of the
Securities shall be deemed to be a payment by the Company on account of
such Senior Indebtedness, it being understood that the provisions of this
Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
SECTION 12.03. Obligation of Company Unconditional.
-----------------------------------
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness,
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and
when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights,
if any, under this Article of the holders of Senior Indebtedness in respect
of cash, property or securities of the Company received upon the exercise
of any such remedy.
SECTION 12.04. Modification of Terms of Senior Indebtedness.
--------------------------------------------
Any renewal or extension of the time of payment of any
Senior Indebtedness or the exercise by the holders of Senior Indebtedness
of any of their rights under any instrument creating or evidencing Senior
Indebtedness, including without limitation the waiver of default
thereunder, may be made or done without notice to or assent from the
Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other action
in respect of, any liability or obligation under or in respect of, or of
any of the terms, covenants or conditions of any indenture or other
instrument under which any Senior Indebtedness is outstanding or of such
Senior Indebtedness, whether or not such release is in accordance with the
provisions of any applicable document, shall in any way alter or affect any
of the provisions of this Article or of the Securities relating to the
subordination thereof.
SECTION 12.05. [Reserved]
---------
SECTION 12.06. Effectuation of Subordination by Trustee.
----------------------------------------
Each Holder of Securities, by his acceptance thereof,
authorizes and directs the Trustee in his or her behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided
in this Article and appoints the Trustee his or attorney-in-fact for any
and all such purposes.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any such dissolution, winding up,
liquidation or reorganization proceeding affecting the affairs of the
Company is pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, liquidating trustee or
agent or other Person making any payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, and as to other facts pertinent to the right of such Persons
under this Article, and if such evidence is not furnished, the Trustee may
defer any payment to such Persons pending judicial determination as to the
right of such Persons to receive such payment.
SECTION 12.07. Knowledge of Trustee.
--------------------
Notwithstanding the provisions of this Article or any
other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any Senior Indebtedness, of any default in
payment of principal, premium (if any) or interest on any Senior
Indebtedness, or of any facts which would prohibit the making of any
payment of moneys to or by the Trustee, or the taking of any other action
by the Trustee, unless and until a Trust Officer of the Trustee having
responsibility for the administration of the trust established by this
Indenture shall have received written notice thereof from the Company, any
Holder of Securities, any Paying or Conversion Agent of the Company or the
holder or representative of any class of Senior Indebtedness, and, prior to
the receipt of any such written notice, the Trustee shall be entitled in
all respects to assume that no such default or facts exist; provided,
however, that unless on the third Business Day prior to the date upon which
by the terms hereof any such moneys may become payable for any purpose the
Trustee shall have received the notice provided for in this Section 12.07,
then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and
apply the same to the purpose for which they were received, and shall not
be affected by any notice to the contrary which may be received by it on or
after such date.
SECTION 12.08. Trustee's Relation to Senior Indebtedness.
-----------------------------------------
The Trustee shall be entitled to all the rights set forth
in this Article with respect to any Senior Indebtedness at the time held by
it, to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of or
payments to the Trustee under or pursuant to Section 7.07.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and the Trustee shall not be liable to any holder of Senior
Indebtedness if it shall pay over or deliver to Holders, the Company or any
other Person moneys or assets to which any holder of Senior Indebtedness
shall be entitled by virtue of this Article or otherwise.
SECTION 12.09. Rights of Holders of Senior Indebtedness Not Impaired.
-----------------------------------------------------
No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
SECTION 12.10. Certain Conversions Not Deemed Payment.
--------------------------------------
For the purposes of Article Ten only, (1) the issuance
and delivery of junior securities upon conversion of Securities in
accordance with Article Ten shall not be deemed to constitute a payment or
distribution on account of the principal of, premium, if any, or interest
on Securities or on account of the purchase or other acquisition of
Securities, and (2) the payment, issuance or delivery of cash (except in
satisfaction of fractional shares pursuant to Section 10.03), property or
securities (other than junior securities) upon conversion of a Security
shall be deemed to constitute payment on account of the principal of,
premium, if any, or interest on such Security. For the purposes of this
Section 12.10, the term "junior securities" means (a) shares of any stock
of any class of the Company or (b) securities of the Company that are
subordinated in right of payment to all Senior Indebtedness to
substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. Nothing
contained in this Article Twelve or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its
creditors (other than holders of Senior Indebtedness) and the Holders, the
right, which is absolute and unconditional, of the Holder of any Security
to convert such note in accordance with Article Ten.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 13.02. Notices.
-------
Any notice, request or communication by the Company or
the Trustee to the other is duly given if in writing and delivered in
person, mailed by first-class mail or by express delivery to the other's
address stated in this Section 13.02. The Company or the Trustee by notice
to the other may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication to a Holder shall be mailed
by first-class mail to its address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same
time.
All notices or communications shall be in writing.
The Company's address is:
Venator Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
The Trustee's address is:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
SECTION 13.03. Communication by Holders with Other Holders.
-------------------------------------------
Holders may communicate pursuant to TIA ss. 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA ss. 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the
Trustee to take any action under this Indenture the Company shall furnish
to the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied
with.
Each signer of an Officers' Certificate or an Opinion of
Counsel may (if so stated) rely, effectively, upon an Opinion of Counsel as
to legal matters and an Officers' Certificate as to factual matters if such
signer reasonably and in good faith believes in the accuracy of the
document relied upon.
SECTION 13.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each Officers' Certificate or Opinion of Counsel with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary
to enable him or her to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION 13.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar, Paying Agent or Conversion Agent may
make reasonable rules and set reasonable requirements for their respective
functions.
SECTION 13.07. Legal Holidays.
--------------
A "Legal Holiday" is a Saturday, a Sunday or a day on
which banking institutions are not required to be open in The City of New
York, in the State of New York or in the city in which the Trustee
administers its corporate trust business. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall
accrue on that payment for the intervening period.
A "Business Day" is a day other than a Legal Holiday.
SECTION 13.08. No Recourse Against Others.
--------------------------
All liability described in the Securities of any
director, officer, employee or shareholder, as such, of the Company is
waived and released.
SECTION 13.09. Duplicate Originals.
-------------------
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 13.10. Governing Law.
-------------
The laws of the State of New York, without regard to
principles of conflicts of law, shall govern this Indenture and the
Securities.
SECTION 13.11. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.12. Successors.
----------
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 13.13. Separability.
------------
In case any provision in this Indenture or in 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 and a Holder shall have no claim
therefor against any party hereto.
SECTION 13.14. Table of Contents, Headings, etc.
--------------------------------
The Table of Contents, Cross-Reference Table and headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first above written.
VENATOR GROUP, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BANK OF NEW YORK
as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
REGISTERED [Face of Security]
NUMBER DOLLARS
CUSIP______________ VENATOR GROUP, INC.
5.50% CONVERTIBLE SUBORDINATED NOTE DUE 2008
VENATOR GROUP, INC., a New York corporation (herein
called the "Company"), for value received, hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of $125,000,000 Dollars on
June 1, 2008, and to pay interest thereon as provided on the reverse hereof
on the principal sum, until the principal hereof and any unpaid and accrued
interest is paid or duly provided for. The right to payment of principal,
premium, if any, and interest is subordinated to the rights of Senior
Indebtedness as set forth in the Indenture referred to on the reverse side
hereof.
Interest Payment Dates: June 1 and December 1, with the
first payment to be made on December 1, 2001.
Record Dates: May 15 and November 15.
IN WITNESS WHEREOF, VENATOR GROUP, INC. has caused this
instrument to be duly signed.
VENATOR GROUP, INC.
By:
--------------------------------------------------
Name:
Title:
By:
--------------------------------------------------
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------------------
Authorized Officer
[REVERSE OF SECURITY]
VENATOR GROUP, INC.
5.50% CONVERTIBLE SUBORDINATED NOTE DUE 2008
1. Interest. Venator Group, Inc., a New York corporation
(the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay interest
semi-annually in arrears on June 1 and December 1 of each year, with the
first payment to be made on December 1, 2001. Interest on the Securities
will accrue on the principal amount from the most recent date to which
interest has been paid or duly provided for or, if no interest has been
paid, from June 8, 2001. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Maturity. The Securities will mature on June 1, 2008
unless earlier converted, redeemed or repurchased pursuant to the
terms hereof and the Indenture.
3. Method of Payment. The Company will pay interest on
the Securities (except defaulted interest) to the Persons who are
registered Holders of Securities at the close of business on the record
date set forth on the face of this Security next preceding the applicable
interest payment date except that (i) interest payable upon redemption or
repurchase, unless the date of redemption or repurchase is an interest
payment date, will be payable to the Person to whom the principal is
payable and (ii) in the case of any Security or portion of any Security
that is converted into Common Stock during the period from, but excluding,
a record date for any interest payment date to, but excluding, that
interest payment date either (A) if the Security, or portion of the
Security, has been called for redemption on a redemption date that occurs
during that period, or is to be repurchased on a Repurchase Date that
occurs during that period, the Company will not be required to pay interest
on that interest payment date in respect of any Security, or portion of any
Security, that is so redeemed or repurchased; or (B) if otherwise, any
Security or portion of any Security that is not called for redemption but
is submitted for conversion during that period must be accompanied by funds
equal to the interest payable on that interest payment date on the
principal amount so converted. Holders must surrender Securities to a
Paying Agent to collect the principal payments. The Company will pay the
principal, premium, if any, and interest in money of the United States that
at the time of payment is legal tender. Principal and interest may, at the
Company's option, be paid either (i) by check mailed to the address of the
Person entitled to the interest as it appears in the register kept by the
Registrar (provided (a) payments to the Depositary will be made by wire
transfer of immediately available funds to the account of the Depositary or
its nominee and (b) a Holder with an aggregate principal amount of
Securities in excess of $10 million will, at the written election of the
Holder, filed on or before the relevant record date with the Trustee, be
paid by wire transfer in immediately available funds); or (ii) by transfer
to an account maintained by that Person located in the U.S.
4. Paying Agent, Registrar, Conversion Agent. Initially,
The Bank of New York (the "Trustee") will act as Paying Agent, Registrar
and Conversion Agent. The Company may change any Paying Agent, Registrar or
Conversion Agent without notice. The Company may act in any such capacity.
5. Indenture. The Company issued the Securities under an
Indenture dated as of June 8, 2001 (the "Indenture") between the Company
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) (the "Act") as in
effect on the date of the Indenture. The Securities are subject to all such
terms, and Holders are referred to the Indenture and the Act for a
statement of such terms. The Securities are general unsecured subordinated
obligations of the Company limited to a maximum of $125,000,000 aggregate
principal amount (plus such additional amount (up to an aggregate of
$150,000,000) purchased by the Initial Purchasers pursuant to the option
described in Section 2.02), except as otherwise provided in the Indenture
(except for Securities issued in substitution for destroyed, mutilated,
lost or stolen Securities). Terms used herein which are defined in the
Indenture have the meanings assigned to them in the Indenture.
6. Optional Redemption by the Company. At any time on or
after June 4, 2004, the Company may redeem the Securities on at least 20
days' notice as a whole or, from time to time, in part at the following
prices, expressed as a percentage of the principal amount, together with
accrued interest to, but excluding, the date fixed for redemption:
Redemption
Period Price
Beginning June 4, 2004 and ending on May 31, 2005.............. 103.1%
Beginning June 1, 2005 and ending on May 31, 2006.............. 102.4%
Beginning June 1, 2006 and ending on May 31, 2007.............. 101.6%
Beginning June 1, 2007 and ending on May 31, 2008.............. 100.8%
Any accrued interest becoming due on the date fixed for redemption will be
payable to the holders of record on the relevant record date of the
Securities being redeemed.
7. Notice of Redemption. Notice of redemption pursuant to
paragraph 6 will be mailed at least 20 days before the redemption date to
each Holder of Securities to be redeemed at its registered address.
Securities in denominations larger than $1,000 principal amount may be
redeemed in part but only in whole multiples of $1,000 principal amount. On
and after the redemption date interest ceases to accrue on Securities or
portions of them called for redemption.
8. Repurchase at Option of Holder. Pursuant to Section
3.07 of the Indenture within 10 days after a Repurchase Event occurs, the
Company is required to give notice of the Repurchase Event to the Holders.
Each Holder has the right, at its option, to require the Company to
repurchase all or any portion of the Securities 30 days after the notice of
repurchase event is mailed. The Repurchase Price will be 100% of the
principal amount of the Securities submitted for repurchase, plus accrued
and unpaid interest to, but excluding, the Repurchase Date. If a Repurchase
Date is an interest payment date, then the interest payable on that date
will be paid to the holder of record on the relevant record date. Subject
to the conditions of Section 3.07 of the Indenture, the Company, at its
option, instead of paying the Repurchase Price in cash, may pay the
Repurchase Price in Common Stock, valued at 95% of the average of the
Closing Prices for the five Trading Days immediately before and including
the third Trading Day preceding the Repurchase Date.
9. Conversion. A Holder of a Security may convert the
principal of such Security into Common Stock at any time after the date of
original issuance of the Security to the close of business on the business
day prior to June 1, 2008, or (x) if the Security is called for redemption
by the Company, the Holder may convert it at any time before the close of
business on the date that is one business day before the date fixed for
such redemption, or (y) if the Security is to be repurchased by the Company
pursuant to paragraph 8 hereof, the Holder may convert it at any time
before the close of business on the date that is one business day before
the date fixed for such repurchase. The initial Conversion Price is $15.806
per share of Common Stock, subject to adjustment in certain circumstances
as set forth in Section 10.06 of the Indenture. To determine the number of
shares issuable upon conversion of a Security, divide each $1,00 of the
principal amount to be converted by the Conversion Price in effect on the
conversion date and round the result to the nearest 1/100th share. The
Company is not required to issue fractional shares of Common Stock upon
conversion and, instead, will pay a cash amount as provided in Section
10.03 of the Indenture. Except as provided in Article Ten of the Indenture,
no payment or adjustment for the principal of, premium, if any, interest on
or liquidated damages with respect to, the Securities or for dividends on
any Common Stock will be made. If a Holder surrenders a Security for
conversion between the record date for the payment of interest and the next
interest payment date, such Security, when surrendered for conversion, must
be accompanied by payment of an amount equal to the interest thereon which
the registered Holder on such record date is to receive. A Security which
the Holder has elected to be repurchased may be converted only if the
Holder withdraws its election to have such Security repurchased in
accordance with the terms of the Indenture before the close of business on
the business day prior to the Repurchase Date.
To convert a Security a Holder must (1) complete and sign
the Conversion Notice, with appropriate signature guarantee, on the back of
the Security, (2) surrender the Security to a Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by the
Registrar or Conversion Agent, (4) pay the amount of interest, if any, the
Holder may be paid as provided in the last sentence of the above paragraph
and (5) pay any transfer or similar tax if required. A Holder may convert a
portion of a Security if the portion is $1,000 principal amount or an
integral multiple of $1,000 principal amount.
Any shares issued upon conversion of a Security shall
bear the Private Placement Legend until after the second anniversary of the
later of the issue date for the Securities and the last date on which the
Company or any Affiliate of the Company was the owner of such shares or the
Security (or any predecessor security) from which such shares were
converted (or such shorter period of time as permitted by Rule 144(k) under
the Securities Act or any successor provision thereunder) (or such longer
period of time as may be required under the Securities Act or applicable
state securities laws as set forth in the Opinion of Counsel delivered to
the Conversion Agent, unless otherwise agreed by the Company and the Holder
thereof).
10. Subordination. The Securities are subordinated in
right of payment, in the manner and to the extent set forth in the
Indenture, to the prior payment in full of all Senior Indebtedness. Each
Holder by accepting a Security agrees to such subordination and authorizes
the Trustee to give it effect.
11. Denominations, Transfer, Exchange. The Securities are
in registered form without coupons in denominations of $1,000 principal
amount and whole multiples of $1,000 principal amount. The transfer of
Securities may be registered and Securities may be exchanged as provided in
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents. 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 cover any tax or other
governmental charge payable in connection therewith. The Registrar need not
exchange or register the transfer of any Security selected for redemption
in whole or in part. Also, it need not exchange or register the transfer of
any Securities for a period of 15 days before the mailing of a notice of
redemption of the Securities selected to be redeemed.
12. Persons Deemed Owners. The registered Holder of a
Security may be treated as the owner of such Security for all purposes.
13. Merger or Consolidation. The Company shall not
consolidate with, or merge into, or transfer or lease all or substantially
all of its assets to, any Person unless, among other things, the Person is
organized under the laws of the United States, any State thereof or the
District of Columbia and such Person assumes by supplemental indenture all
the obligations of the Company under the Securities, the Indenture and the
Registration Rights Agreement and after giving effect to the transaction no
Default or Event of Default exists.
Notwithstanding the foregoing, any subsidiary of the
Company may consolidate with, merge into or transfer all or part of its
properties and assets to the Company or any other subsidiary or
subsidiaries of the Company.
14. Amendments, Supplements and Waivers. Subject to
certain exceptions, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding, and any
existing Default or Event of Default may be waived with the consent of the
Holders of a majority in aggregate principal amount of the Securities then
outstanding. Without notice to or the consent of any Holder, the Indenture
or the Securities may be amended or supplemented to cure any ambiguity,
omission, defect or inconsistency, to provide for uncertificated Securities
in addition to certificated Securities, to comply with Sections 5.01 and
10.07 of the Indenture or to make any change that does not adversely affect
the rights of any Holder.
15. Defaults and Remedies. An Event of Default includes
the occurrence of any or the following: default in payment of the principal
of or any premium on the Securities; default for 30 days in payment of
interest; failure by the Company for 90 days after notice to it to comply
with any of its other agreements in the Indenture or the Securities; and
certain events of bankruptcy or insolvency. If any Event of Default occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding may declare all the
Securities to be due and payable, subject to certain limitations contained
in the Indenture. Holders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount
of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing Default or Event of Default (except a Default or Event of
Default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company must furnish an
annual compliance certificate to the Trustee.
16. Registration Rights. The Holders are entitled to
shelf registration rights as set forth in the Registration Rights
Agreement. The Holders shall be entitled to receive liquidated damages in
certain circumstances, all as set forth in the Registration Rights
Agreement.
17. Trustee Dealings with Company. The Trustee under the
Indenture, or any banking institution serving as successor Trustee
thereunder, in its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as
if it were not Trustee.
18. No Recourse Against Others. No past, present or
future director, officer, employee or shareholder, as such, of the Company
shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
19. Authentication. This Security shall not be valid
until authenticated by the manual signature of the Trustee or an
authenticating agent.
20. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON
WRITTEN REQUEST AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE
MADE TO:
VENATOR GROUP, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: Treasurer
[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
---------------------------------------------------------
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(please print or type name and address)
-------------------------------------------------------------------------------
the within Security and all rights thereunder, and hereby irrevocably
-------------------------------------------------------------------------------
constitutes and appoints attorney to transfer the Security on the books of
-------------------------------------------------------------------------------
the Company with full power of substitution in the premises.
Dated:_______________________ ____________________________________________
NOTICE: The signature on this assignment
must correspond with the name as it
appears upon the face of the within
Security in every particular without
alteration or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:___________________________________________________________
(Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which requirements
include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as
may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.)
In connection with any transfer of this Security
occurring prior to the date which is the earlier of (i) the date of the
declaration by the Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities
Act") covering resales of this Security (which effectiveness shall have
been suspended or terminated at the date of the transfer) and (ii) June 8,
2003 the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with transfer:
[Check One]
(1) ____ to the Company or a subsidiary thereof; or
(2) ____ pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
(3) ____ to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933, as amended) that has furnished to the Trustee a
signed letter containing certain representations and
agreements (the form of which letter can be obtained from
the Trustee); or
(4) ____ outside the United States to a "foreign purchaser" in
compliance with Rule 904 of Regulation S under the
Securities Act of 1933, as amended; or
(5) ____ pursuant to the exemption from registration provided by
Rule 144 under the Securities Act of 1933, as amended; or
(6) ____ pursuant to an effective registration statement under the
Securities Act of 1933, as amended; or
(7) ____ pursuant to another available exemption from the registration
statement requirements of the Securities Act of 1933,
as amended.
and unless the box below is checked, the undersigned confirms that such
Security is not being transferred to an "affiliate" of the Company as
defined in Rule 144 under the Securities Act of 1933, as amended (an
"Affiliate"):
|_| The transferee is an Affiliate of the Company.
(If the Security is transferred to an Affiliate, the restrictive legend
must remain on the Security for two years following the date of the
transfer).
Unless one of the items is checked, the Trustee will
refuse to register any of the Securities evidenced by this certificate in
the name of any Person other than the registered Holder thereof; provided,
however, that if item (3),(4),(5) or (7) is checked, the Company or the
Trustee may require, prior to registering any such transfer of the
Securities, in their sole discretion, such written legal opinions,
certifications (including an investment letter in the case of box (3) or
(4)) and other information as the Trustee or the Company have reasonably
requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
If none of the foregoing items are checked, the Trustee
or Registrar shall not be obligated to register this Security in the name
of any Person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 2.16
of the Indenture shall have been satisfied.
Dated: Signed:
------------------- -----------------------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is
purchasing this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act of 1933, as amended, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
---------------------------------------- --------------------------
NOTICE: To be executed by an
executive officer
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
|_|
To convert only part of this Security, state the principal amount to be
converted (must be in multiples of $1,000):
$______________________________________________________________________________
If you want the stock certificate made out in another person's name, fill
in the form below:
_______________________________________________________________________________
(Insert other person's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type other person's name, address and zip code)
_______________________________________________________________________________
Date:______________ Signature(s): __________________________________________
(Signatures must be guaranteed by
an "eligible guarantor
institution" meeting the
requirements of the Registrar,
which requirements include
membership or participation in
the Security Transfer Agent
Medallion Program ("STAMP") or
such other "signature guarantee
program" as may be determined by
the Registrar in addition to, or
in substitution for, STAMP, all
in accordance with the Securities
Exchange Act of 1934, as
amended.)
Signature(s) guaranteed by:
---------------------------------------------------
(Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Registrar in addition to,
or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.)
OPTION OF HOLDER TO ELECT PURCHASE NOTICE
If you want to elect to have this Security purchased by
the Company pursuant to Section 3.07 of the Indenture, check the box: |_|
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.07 of the Indenture, state
the principal amount:
$ ----------------------------------
(in an integral multiple of $1,000)
Date:__________________ Signature(s):
(Sign exactly as your name(s) appear(s)
on the other side of this Security)
Signature(s) guaranteed by: ________________________________________
(Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Registrar, which requirements
include membership or participation
in the Security Transfer Agent
Medallion Program ("STAMP") or such
other "signature guarantee program"
as may be determined by the
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.)
EXHIBIT B
FORM OF LEGENDS
I. PRIVATE PLACEMENT LEGEND
Each Security issued under the Indenture shall bear a
legend (and any common stock issued upon conversion of such Security shall
bear a comparable legend) substantially in the following form:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY
AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THIS SECURITY (OR ITS PREDECESSOR) MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
II. GLOBAL SECURITY LEGEND
Any Global Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends
required in the case of a Restricted Security) in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS
OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16
OF THE INDENTURE.
EXHIBIT C
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[Date]
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: Venator Group, Inc. (the "Company")
5.50% Convertible Subordinated Notes
due 2008 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of $__________
aggregate principal amount of the Securities, we confirm that such purchase
has been effected pursuant to and in accordance with Regulation S under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, we represent that:
(1)(2) [We are not a U.S. person and are not acquiring
the Securities for the account or benefit of any U.S. person]. [We
are a U.S. person who purchased securities in a transaction that
did not require registration under the Act.]
(2) We agree to resell the Securities only in accordance
with the provisions of Regulation S, pursuant to registration
under the Securities Act, or pursuant to an available exemption
from registration; and we agree not to engage in hedging
transactions with regard to such securities unless in compliance
with the Securities Act.
__________
(2) One of the two following sentences must be used.
You, the Company and counsel for the Company are entitled
to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered
hereby. Terms used in this certificate have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------------
Authorized Signature
EXHIBIT D
Form of Notice of Transfer Pursuant to Registration Statement
[Date]
Venator Group, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Re: Venator Group, Inc. (the "Company")
5.50% Convertible Subordinated Notes Due 2008
(the "Securities")
Ladies and Gentlemen:
Please be advised that _____________ has transferred
$___________ aggregate principal amount of the Securities or __ shares of
the Company's common stock, $.001 par value per share, issuable on
conversion of the Securities ("Stock") pursuant to an effective Shelf
Registration Statement on Form S-3 (File No. 333- ) filed by the Company.
We hereby certify that the prospectus delivery
requirements, if any, of the Securities Act of 1933 as amended, have been
satisfied with respect to the transfer described above and that the
above-named beneficial owner of the Securities or Stock is named as a
"Selling Security Holder" in the Prospectus dated __________________ or in
amendments or supplements thereto, and that the aggregate principal amount
of the Securities, or number of shares of Stock transferred are [a portion
of] the Securities or Stock listed in such Prospectus, as amended or
supplemented, opposite such owner's name.
Very truly yours,
____________________________________________
(Name)
EXHIBIT E
Form of Opinion of Counsel in Connection with Registration of Securities
------------------------------------------------------------------------
[Date]
The Bank of New York
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▇▇▇ ▇▇▇▇ New York 10286
Attention: Corporate Trust Department
Re: Venator Group, Inc. (the "Company")
5.50% Subordinated Convertible Notes Due 2008
(the "Securities")
Ladies and Gentlemen:
Reference is made to the Securities issued pursuant to a
certain indenture dated as of June 8, 2001 by and between the Company and
The Bank of New York, as trustee (the "Trustee"). The Securities were
issued in transactions exempt from registration under the Securities Act of
1933, as amended (the "Securities Act"). The Company has filed with the
Securities and Exchange Commission (the "SEC") a registration statement on
Form S-3 (number 333-____) (the "Registration Statement") relating to the
registration under the Securities Act of $[ ] principal amount of the
Securities and the shares of Common Stock of the Company (the "Shares")
issuable upon conversion of the Securities being registered. The
Registration Statement was declared effective by order of the SEC dated
[_____________].
We have acted as counsel for the Company in connection
with the issuance of the Securities and the preparation and filing of the
Registration Statement and are familiar with the Securities, the Indenture,
the Registration Statement, the above-mentioned SEC order and such other
documents as are necessary to render this opinion.
We have been orally advised by the SEC that the Indenture
has been qualified under the Trust Indenture Act of 1939, as amended, and
that the Registration Statement was declared effective under the Securities
Act at _____, on ____________, 200_, and we have been orally advised by the
SEC that no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of our knowledge, no proceedings
for that purpose have been instituted or are pending or threatened by the
SEC.
This opinion is being furnished only to you in connection
with the Indenture and is solely for your benefit and is not to be used,
circulated, quoted or otherwise referred to for any other purpose or relied
upon by any other person for any other purpose without our prior written
consent.
Yours truly,