FREEPORT-McMoRan COPPER & GOLD INC.
FCX INVESTMENT LTD.
8 1/4% Convertible Senior Notes due 2006
__________________________
INDENTURE
Dated as of August 7, 2001
__________________________
THE BANK OF NEW YORK
TRUSTEE
__________________________
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions 2
Section 1.02. Other Definitions 9
Section 1.03. Incorporation by Reference of Trust
Indenture Act 10
Section 1.04. Rules of Construction 11
Section 1.05. Acts of Holders 11
ARTICLE 2
The Notes
Section 2.01. Designation Amount and Issue of
Notes 12
Section 2.02. Form of Notes 13
Section 2.03. Execution and Authentication 13
Section 2.04. Note Registrar, Paying Agent and
Conversion Agent 14
Section 2.05. Paying Agent to Hold Money and
Notes in Trust 14
Section 2.06. Noteholder Lists 15
Section 2.07. Transfer and Exchange; Restrictions
on Transfer; Depositary 15
Section 2.08. Replacement Notes 25
Section 2.09. Outstanding Notes; Determination of
Holders' Action 26
Section 2.10. Temporary Notes 27
Section 2.11. Cancellation 27
Section 2.12. Persons Deemed Owners 28
Section 2.13. CUSIP Numbers 28
Section 2.14. Default Interest 28
ARTICLE 3
Redemption and Purchases
Section 3.01. Right to Redeem; Notices to Trustee 28
Section 3.02. Selection of Notes to Be Redeemed 29
Section 3.03. Notice of Redemption 29
Section 3.04. Effect of Notice of Redemption 30
Section 3.05. Deposit of Redemption Price 30
Section 3.06. Notes Redeemed in Part 30
Section 3.07. Conversion Arrangement on Call for
Redemption 31
Section 3.08. Repurchase of Notes at Option of
the Holder upon Change of Control 31
Section 3.09. Effect of Change of Control
Repurchase Notice 36
Section 3.10. Deposit of Change of Control
Repurchase Price 37
Section 3.11. Notes Purchased in Part 38
Section 3.12. Covenant to Comply with Securities
Laws upon Purchase of Notes 38
Section 3.13. Repayment to the Issuers 38
ARTICLE 4
Covenants
Section 4.01. Payment of Principal, Premium, Interest
on the Notes 39
Section 4.02. Reports by the Issuers 39
Section 4.03. Compliance Certificate 39
Section 4.04. Further Instruments and Acts 40
Section 4.05. Maintenance of Office or Agency 40
Section 4.06. Delivery of Certain Information 40
Section 4.07. Existence 41
Section 4.08. Maintenance of Properties 41
Section 4.09. Payment of Taxes and Other Claims 41
Section 4.10. Liquidated Damages Notice 41
ARTICLE 5
Successor Corporation
Section 5.01. When Issuers May Merge or Transfer
Assets 42
ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default 43
Section 6.02. Acceleration 45
Section 6.03. Other Remedies 46
Section 6.04. Waiver of Past Defaults 46
Section 6.05. Control by Majority 46
Section 6.06. Limitation on Suits 47
Section 6.07. Rights of Holders To Receive Payment 47
Section 6.08. Collection Suit by Trustee 48
Section 6.09. Trustee May File Proofs of Claim 48
Section 6.10. Priorities 48
Section 6.11. Undertaking for Costs 49
Section 6.12. Waiver of Stay, Extension or Usury Laws 49
ARTICLE 7
Trustee
Section 7.01. Duties and Responsibilities of the
Trustee; During Default; Prior to Default 50
Section 7.02. Certain Rights of the Trustee 51
Section 7.03. Trustee Not Responsible for Recitals,
Dispositions of Notes or Application of
Proceeds Thereof 52
Section 7.04. Trustee and Agents May Hold Notes;
Collections, etc 52
Section 7.05. Moneys Held by Trustee 53
Section 7.06. Compensation and Indemnification of
Trustee and its Prior Claim 53
Section 7.07. Right of Trustee to Rely on Officers'
Certificate, etc 54
Section 7.08. Conflicting Interests 54
Section 7.09. Persons Eligible for Appointment as
Trustee 54
Section 7.10. Resignation and Removal; Appointment of
Successor Trustee 54
Section 7.11. Acceptance of Appointment by Successor
Trustee 56
Section 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee 56
Section 7.13. Preferential Collection of Claims
Against the Issuers 57
Section 7.14. Reports by the Trustee 57
Section 7.15. Trustee to Give Notice of Default, but
May Withhold in Certain Circumstances 57
ARTICLE 8
Discharge of Indenture
Section 8.01. Discharge of Indenture 58
Section 8.02. [Intentionally Omitted] 58
Section 8.03. Paying Agent to Repay Monies Held 58
Section 8.04. Return of Unclaimed Monies 58
ARTICLE 9
Supplemental Indentures
Section 9.01. Without Consent of Holders 59
Section 9.02. With Consent of Holders 59
Section 9.03. Compliance with Trust Indenture Act 60
Section 9.04. Revocation and Effect of Consents,
Waivers and Actions 61
Section 9.05. Notation on or Exchange of Notes 61
Section 9.06. Trustee to Sign Supplemental Indentures 61
Section 9.07. Effect of Supplemental Indentures 61
ARTICLE 10
Conversion
Section 10.01. Conversion Right and Conversion Price 62
Section 10.02. Exercise of Conversion Right 62
Section 10.03. Fractions of Shares 63
Section 10.04. Adjustment of Conversion Price 63
Section 10.05. Notice of Adjustments of Conversion Price 74
Section 10.06. Notice Prior to Certain Actions 74
Section 10.07. Company to Reserve Common Stock 76
Section 10.08. Taxes on Conversions 76
Section 10.09. Covenant as to Common Stock 76
Section 10.10. Cancellation of Converted Notes 76
Section 10.11. Effect of Reclassification,
Consolidation, Merger or Sale 76
Section 10.12. Responsibility of Trustee for
Conversion Provisions 78
ARTICLE 11
Security
Section 11.01. Security 78
ARTICLE 12
Miscellaneous
Section 12.01. Trust Indenture Act Controls 81
Section 12.02. Notices 81
Section 12.03. Communication by Holders with Other
Holders 82
Section 12.04. Certificate and Opinion as to
Conditions Precedent 82
Section 12.05. Statements Required in Certificate or
Opinion 83
Section 12.06. Separability Clause 83
Section 12.07. Rules by Trustee, Paying Agent,
Conversion Agent and Note Registrar 83
Section 12.08. Legal Holidays 83
Section 12.09. GOVERNING LAW 83
Section 12.10. No Recourse Against Others 84
Section 12.11. Successors 84
Section 12.12. Benefits of Indenture 84
Section 12.13. Table of Contents, Heading, Etc 84
Section 12.14. Authenticating Agent 84
Section 12.15. Execution in Counterparts 85
EXHIBITS
Exhibit A Form of Global Note
Exhibit B-1 Transfer Certificate
Exhibit B-2 Form of Letter to Be Delivered by
Institutional Accredited Investors
CROSS REFERENCE TABLE*
TIA SECTION INDENTURE SECTION
310(a)(1) 7.09
(a)(2) 7.09
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.09
(b) 7.08; 7.09; 7.10; 7.11
(c) N.A.
311(a) 7.13
(b) 7.13
(c) N.A.
312(a) 2.06
(b) 12.03
(c) 12.03
313(a) 7.14(a)
(b)(1) 7.14(a)
(b)(2) 7.14(a)
(c) 12.02
(d) 7.14(b)
314(a) 4.02; 4.03; 12.02
(b) 11.01(e)
(c)(1) 12.04
(c)(2) 12.04
(c)(3) N.A.
(d) 11.01(d)
(e) 12.05
(f) N.A.
315(a) 7.01
(b) 7.15; 12.02
(c) 7.01
(d) 7.01
(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) 2.05
318(a) 12.01
N.A. means Not Applicable
------------------------------
Note: This Cross Reference Table shall not, for any
purpose, be deemed to be part of the Indenture.
INDENTURE dated as of August 7, 2001 between FREEPORT-
McMoRan COPPER & GOLD INC., a Delaware corporation (the
"Company"), FCX INVESTMENT LTD., a Cayman Islands exempted
limited liability company (the "Co-Obligor," and together
with the Company, the "Issuers," and each, an "Issuer") and
THE BANK OF NEW YORK, a New York banking corporation, as
Trustee hereunder (the "Trustee").
RECITALS OF THE ISSUERS
The Issuers have duly authorized the creation of an issue of
their 8 1/4% Convertible Senior Notes due 2006 (herein called
the "Notes") of substantially the tenor and amount
hereinafter set forth, and to provide therefor the Issuers
have duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when the Notes are
executed by the Issuers and authenticated and delivered
hereunder, the valid and legally binding obligations of the
Issuers, and to make this Indenture a valid agreement of the
Issuers, in accordance with their and its terms, have been
done. Further, all things necessary to duly authorize the
issuance of the Common Stock of the Company issuable upon
the conversion of the Notes, and to duly reserve for
issuance the number of shares of Common Stock issuable upon
such conversion, have been done.
The Notes will be partially secured pursuant to the terms
of the Pledge Agreement (as defined herein) by Pledged
Securities as provided by Article 11 of this Indenture.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended,
that are required to be a part of and to govern indentures
qualified under the Trust Indenture Act of 1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all
Holders of the Notes, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the
plural as well as the singular;
(2) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
GAAP; and
(3) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section or other
subdivision.
"Additional Pledged Securities" has the meaning
specified in the Pledge Agreement.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified
person. For purposes of this definition, "control" when used
with respect to any specified person means the power to
direct or cause the direction of the management and policies
of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors of
an Issuer, or any duly authorized committee of such board.
"Board Resolution" means a resolution duly adopted by the
Board of Directors, a copy of which, certified by the
Secretary or an Assistant Secretary of the applicable
Issuer, to be in full force and effect on the date of such
certification, shall have been delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which the banking
institutions in The City of New York or the city in which
the Corporate Trust Office is located are authorized or
obligated by law or executive order to close or be closed.
"Capital Stock" of any corporation means any and all shares,
interests, rights to purchase, warrants, options,
participations or other equivalents of or interests in
(however designated) stock issued by that corporation.
"Class A Common Stock" means the Class A Common Stock, par
value $.10 per share, of the Company, authorized at the date
of this instrument as originally executed.
"Class B Common Stock" means the Class B Common Stock, par
value $.10 per share, of the Company, authorized at the date
of this instrument as originally executed.
"Closing Price" of any security on any date of determination
means:
(1) the closing sale price (or, if no closing
sale price is reported, the last reported sale price) of
such security on the New York Stock Exchange on such date;
(2) if such security is not listed for trading on
the New York Stock Exchange on any such date, the closing
sale price as reported in the composite transactions for the
principal U.S. securities exchange on which such security is
so listed;
(3) if such security is not so listed on a U.S.
national or regional securities exchange, the closing sale
price as reported by the NASDAQ National Market;
(4) if such security is not so reported, the last
quoted bid price for such security in the over-the-counter
market as reported by the National Quotation Bureau or
similar organization; or
(5) if such bid price is not available, the
average of the mid-point of the last bid and ask prices of
such security on such date from at least three nationally
recognized independent investment banking firms retained for
this purpose by the Company.
"Closing Time" has the meaning specified in the Purchase
Agreement.
"Collateral Account" means an account established with the
Collateral Agent pursuant to the terms of the Pledge
Agreement for the deposit of the Pledged Securities to be
purchased by the Co-Obligor with a portion of the net
proceeds from the sale of the Notes.
"Collateral Agent" means The Bank of New York, as collateral
agent under the Pledge Agreement.
"Common Stock" means the Class A Common Stock and Class B
Common Stock. Subject to the provisions of Section 10.11,
shares issuable on conversion or repurchase of Notes shall
include only shares of Common Stock or shares of any class
or classes of common stock resulting from any
reclassification or reclassifications thereof; provided,
however, that if at any time there shall be more than one
such resulting class, the shares so issuable on conversion
of Notes shall include shares of all such classes, and the
shares of each such class then so issuable shall be
substantially in the proportion which the total number of
shares of such class resulting from all such
reclassifications bears to the total number of shares of all
such classes resulting from all such reclassifications.
"common stock" means any stock of any class of capital stock
which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the issuer.
"Company" means the party named as the "Company" in the
first paragraph of this Indenture until a successor replaces
it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor. The foregoing
sentence shall likewise apply to any subsequent such
successor or successors.
"Conversion Agent" means any person authorized by the
Issuers to convert Notes in accordance with Article 10
hereof.
"Co-Obligor" means the party named as the "Co-Obligor" in
the first paragraph of this Indenture until a successor
replaces it pursuant to the applicable provisions of this
Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business
shall be administered, which office at the date hereof is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, or such other address as the Trustee may
designate from time to time by notice to the Holders and the
Issuers, or the principal corporate trust office of any
successor Trustee (or such other address as a successor
Trustee may designate from time to time by notice to the
Holders and the Issuers).
"Date of Delivery" has the meaning specified in the Purchase
Agreement.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person
specified in 2.07(d) as the Depositary with respect to such
Notes, until a successor shall have been appointed and
become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" shall mean or
include such successor.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"Holder" or "Noteholder" as applied to any Note, or other
similar terms (but excluding the term "beneficial holder"),
means any Person in whose name at the time a particular Note
is registered on the Note Registrar's books.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof,
including the provisions of the TIA that are deemed to be a
part hereof.
"Initial Pledged Securities" has the meaning specified in
the Pledge Agreement.
"Initial Purchaser" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated.
"Institutional Accredited Investor" means an institutional
"accredited investor" as described in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Issue Date" of any Note means the date on which the Note
was originally issued or deemed issued as set forth on the
face of the Note.
"Issuer Order" means a written order signed in the name of
the Issuers by any two Officers of each Issuer.
"Issuers" means the Company and the Co-Obligor, and "Issuer"
means either of them.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind
in respect of such asset given to secure indebtedness,
whether or not filed, recorded or otherwise perfected under
applicable law (including any conditional sale or other
title retention agreement, any lease in the nature thereof,
any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction with respect to any
such lien, pledge, charge or security interest).
"Liquidated Damages" has the meaning specified for
"Liquidated Damages Amount" in Section 2(e) of the
Registration Rights Agreement.
"Notes" has the meaning ascribed to it in the first
paragraph under the caption "Recitals of the Issuers".
"Officer" means the Chairman of the Board, the Vice
Chairman, the Chief Executive Officer, the President, any
Executive Vice President, any Senior Vice President, any
Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of an Issuer.
"Officers' Certificate" means a written certificate
containing the information specified in Sections 12.04 and
12.05, signed in the name of the Issuers by any two Officers
of each Issuer, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be signed
by an authorized financial or accounting Officer of each
Issuer but need not contain the information specified in
Sections 12.04 and 12.05.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 12.04 and 12.05, from
legal counsel. The counsel may be an employee of, or counsel
to, the Issuers.
"Overallotment Option" means the overallotment option
granted by the Issuers to the Initial Purchaser to purchase
up to $78,750,000 aggregate principal amount of Notes to
cover overallotments pursuant to the Purchase Agreement.
"person" or "Person" means any individual, corporation,
limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, or government or any agency or political
subdivision thereof.
"Pledge Agreement" means the Collateral Pledge and Security
Agreement, dated as of August 7, 2001, among the Co-Obligor,
the Trustee and the Collateral Agent, as such agreement may
be amended, restated, supplemented or otherwise modified
from time to time.
"Pledged Securities" means the U.S. Government Obligations
to be purchased by the Co-Obligor and held in the Collateral
Account in accordance with the Pledge Agreement.
"Portal Market" means The Portal Market operated by the
National Association of Securities Dealers, Inc. or any
successor thereto.
"principal" of a Note means the principal amount due on the
Stated Maturity as set forth on the face of the Note.
"Purchase Agreement" means the Purchase Agreement dated as
of August 1, 2001, between the Issuers and the Initial
Purchaser.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Redemption Date" or "redemption date" means the date
specified for redemption of the Notes in accordance with the
terms of the Notes and this Indenture.
"Redemption Price" or "redemption price" shall have the
meaning set forth in paragraph 5 of the Notes.
"Registration Rights Agreement" means that certain
Registration Rights Agreement, dated as of August 7, 2001,
between the Issuers and the Initial Purchaser, as amended
from time to time in accordance with its terms.
"Regular Record Date" means, with respect to the interest
payable on any Interest Payment Date, the close of business
on January 15 or July 15 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department
of the Trustee, including any vice president, assistant vice
president, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions
similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject,
and who shall have direct responsibility for the
administration of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to
time.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of
1933 (or any successor statute), as amended from time to
time.
"Significant Subsidiary" means any direct or indirect
Subsidiary of the Company that meets any of the following
conditions:
(1) the Company's and its other Subsidiaries'
investments in and advances to such Subsidiary exceed 20% of
the total assets of the Company and its Subsidiaries
consolidated as of the end of the most recently completed
fiscal year;
(2) the Company's and its other Subsidiaries'
proportionate share of the total assets (after intercompany
eliminations) of such Subsidiary exceed 20% of the total
assets of the Company and its Subsidiaries consolidated as
of the end of the most recently completed fiscal year; or
(3) the Company's and its other Subsidiaries'
equity in the income from continuing operations before
income taxes, extraordinary items and cumulative effect of a
change in accounting principle of such Subsidiary exceed
20% of such income of the Company and its Subsidiaries
consolidated for the most recently completed fiscal year.
"Stated Maturity," when used with respect to any Note or any
installment of interest thereon, means the date specified in
such Note as the fixed date on which the principal of such
Note or such installment of interest is due and payable.
"Subsidiary" means (i) a corporation, a majority of whose
Capital Stock with voting power, under ordinary
circumstances, to elect directors is, at the date of
determination, directly or indirectly owned by an Issuer, by
one or more Subsidiaries of such Issuer or by such Issuer
and one or more Subsidiaries of such Issuer, (ii) a
partnership in which an Issuer or a Subsidiary of such
Issuer holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person
(other than a corporation) in which an Issuer, a Subsidiary
of such Issuer or such Issuer and one or more Subsidiaries
of such Issuer, directly or indirectly, at the date of
determination, has (x) at least a majority ownership
interest or (y) the power to elect or direct the election of
a majority of the directors or other governing body of such
person.
"Supplement" has the meaning specified in the Pledge
Agreement.
"TIA" means the Trust Indenture Act of 1939 as in effect on
the date of this Indenture; provided, however, that in the
event the TIA is amended after such date, TIA means, to the
extent required by any such amendment, the TIA as so
amended.
"Trading Day" means a day during which trading in Notes
generally occurs on the New York Stock Exchange or, if the
Common Stock is not listed on the New York Stock Exchange,
on the principal other national or regional securities
exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional
securities exchange, on the National Association of Notes
Dealers Automated Quotation System or, if the Common Stock
is not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other
market on which the Common Stock is then traded.
"Trustee" means the party named as the "Trustee" in the
first paragraph of this Indenture until a successor replaces
it pursuant to the applicable provisions of this Indenture
and, thereafter, shall mean such successor. The foregoing
sentence shall likewise apply to any subsequent such
successor or successors.
"United States" means the United States of America
(including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction (its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands).
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by or
acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not
callable or redeemable at the option of the issuer thereof
at any time prior to the Stated Maturity of the Notes, and
shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S.
Government Obligation or a specific payment of interest on
or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by
such depository receipt.
"Voting Stock" means with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to
vote for the election of directors of such Person.
Section 1.02. Other Definitions.
Term Defined in Section
"Act" 1.05(a)
"Agent Members" 2.06(d)
"Authenticating Agent" 12.14
"Bankruptcy Law" 6.01
"Certificated Notes" 2.07(b)
"Change of Control" 3.08(a)
"Change of Control Repurchase Date" 3.08(a)
"Change of Control Repurchase Notice" 3.08(d)
"Change of Control Repurchase Price" 3.08(a)
"Conversion Price" 10.01
"Current Market Price" 10.04(g)
"Custodian" 6.01
"Event of Default" 6.01
"Exchange Act" 3.08(a)
"excluded securities" 10.04(d)
"Expiration Time" 10.04(f)
"fair market value" 10.04(g)
"Globe Note" 2.07(b)
"Legal Holiday" 12.08
"Liquidated Damages Notice" 4.10
"Non-Electing Share" 10.11
"Note Register" 2.07(a)
"Note Registrar" 2.07(a)
"Notice of Default" 6.01
"Paying Agent" 2.03
"Principal Amount" 2.07(b)
"Purchased Shares" 10.04(f)
"Record Date" 10.04(g)
"Reference Period" 10.04(d)
"Restricted Note" 10.02
"Restricted Securities" 2.07(d)
"Rule 144A Information" 4.06
"transfer" 2.07(d)
"Trigger Event" 10.04(d)
Section 1.03. Incorporation by Reference of Trust Indenture
Act. 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 Notes" means the Notes.
"indenture Note holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture Notes means the Issuers.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or
defined by SEC rule have the meanings assigned to them by
such definitions.
Section 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles as in effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation;
and
(e) words in the singular include the plural, and
words in the plural include the singular.
Section 1.05. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by their agent duly appointed in
writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Issuers. Such instrument
or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the
Trustee and the Issuers, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged
to such officer the execution thereof. Where such execution
is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall
also constitute sufficient proof of such signer's authority.
The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee
deems sufficient.
The ownership of Notes shall be proved by the Note Register
or by a certificate of the Note Registrar.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall
bind every future Holder of the same Note and the holder of
every Note issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee
or the Issuers in reliance thereon, whether or not notation
of such action is made upon such Note.
If the Issuers shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or
other Act, the Issuers may, at its option, by or pursuant to
a resolution of the Board of Directors each Issuer, fix in
advance a record date for the determination of Holders
entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the
Issuers shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of
record at the close of business on such record date shall be
deemed to be Holders for purposes of determining whether
Holders of the requisite proportion of outstanding Notes
have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the outstanding Notes shall
be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not
later than six months after the record date.
ARTICLE 2
The Notes
Section 2.01. Designation Amount and Issue of Notes. The
Notes shall be designated as "8 1/4% Convertible Senior Notes
due 2006". Except pursuant to Sections 2.07, 2.08, 3.06,
3.11 and 10.02 hereof, Notes not to exceed the aggregate
principal amount of $525,000,000 (or $603,750,000, if the
Overallotment Option is fully exercised by the Initial
Purchaser) upon the execution of this Indenture, or from
time to time thereafter, may be executed by the Issuers and
delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Notes upon a
Issuer Order, without any further action by the Issuers
hereunder.
Section 2.02. Form of Notes. The Notes and the Trustee's
certificate of authentication to be borne by such Notes
shall be substantially in the form set forth in Exhibit A,
which is incorporated in and made a part of this Indenture.
Any of the Notes may have such letters, numbers or other
marks of identification and such notations, legends and
endorsements as the officers executing the same may approve
(execution thereof to be conclusive evidence of such
approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with
any rule or regulation of any securities exchange or
automated quotation system on which the Notes may be listed,
or to conform to usage.
Any Global Note shall represent such of the outstanding
Notes as shall be specified therein and shall provide that
it shall represent the aggregate amount of outstanding Notes
from time to time endorsed thereon and that the aggregate
amount of outstanding Notes represented thereby may from
time to time be increased or reduced to reflect transfers or
exchanges permitted hereby. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in
the amount of outstanding Notes represented thereby shall be
made by the Trustee, in such manner and upon instructions
given by the holder of such Notes in accordance with this
Indenture. Payment of principal of and interest and
premium, if any, on any Global Note shall be made to the
holder of such Note.
The terms and provisions contained in the form of Note
attached as Exhibit A hereto shall constitute, and are
hereby expressly made, a part of this Indenture and, to the
extent applicable, the Issuers and the Trustee, by their
execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Section 2.03. Execution and Authentication. The Notes
shall be executed on behalf of the Issuers by an Officer of
each Issuer, under its corporate seal reproduced thereon,
which may be manual or facsimile. The signatures of such
Officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the
Notes the proper Officers of the Issuers shall bind the
Issuers, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold
such offices at the date of authentication of such Notes.
Notes shall be dated the date of their authentication.
No Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless
there appears on such Note a certificate of authentication
substantially in the form provided for herein duly executed
by the Trustee or an Authenticating Agent by manual
signature of an authorized officer, and such certificate
upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and
delivered hereunder.
The Notes shall be issued only in registered form without
coupons and only in denominations of $1,000 in principal
amount and any integral multiple thereof.
Section 2.04. Note Registrar, Paying Agent and Conversion
Agent. The Issuers shall maintain an office or agency where
Notes may be presented for registration of transfer or for
exchange ("Note Registrar"), an office or agency where Notes
may be presented for purchase or payment ("Paying Agent")
and an office or agency where Notes may be presented for
conversion ("Conversion Agent"). The Note Registrar shall
keep a register (the "Note Register") in which, subject to
such reasonable regulations as it may prescribe it shall
provide for the registration and transfer of the Notes. The
Issuers may have one or more co-registrars, one or more
additional paying agents and one or more additional
conversion agents. The term Paying Agent includes any
additional paying agent, including any named pursuant to
Section 4.05. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to
Section 4.05.
The Issuers shall notify the Trustee of the name and address
of any such agent. If the Issuers fail to maintain a Note
Registrar, Paying Agent or Conversion Agent, the Trustee
shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.06. The Issuers
or any Subsidiary or an Affiliate of either of them may act
as Paying Agent, Note Registrar, Conversion Agent or co-
registrar.
The Issuers initially appoint the Trustee as Note Registrar,
Conversion Agent and Paying Agent in connection with the
Notes.
Section 2.05. Paying Agent to Hold Money and Notes in
Trust. Except as otherwise provided herein, on or prior to
each due date of payments in respect of any Note, the
Issuers shall deposit with the Paying Agent a sum of money
(in immediately available funds if deposited on the due
date) or Common Stock sufficient to make such payments when
so becoming due. The Issuers shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Noteholders or
the Trustee all money and Common Stock held by the Paying
Agent for the making of payments in respect of the Notes and
shall notify the Trustee of any default by the Issuers in
making any such payment. At any time during the continuance
of any such default, the Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee
all money and Common Stock so held in trust. If the Issuers,
a Subsidiary or an Affiliate of either of them acts as
Paying Agent, it shall segregate the money and Common Stock
held by it as Paying Agent and hold it as a separate trust
fund. The Issuers at any time may require a Paying Agent to
pay all money and Common Stock held by it to the Trustee and
to account for any funds and Common Stock disbursed by it.
Upon doing so, the Paying Agent shall have no further
liability for the money or Common Stock.
Section 2.06. Noteholder 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
Noteholders. If the Trustee is not the Note Registrar, the
Issuers shall cause to be furnished to the Trustee at least
semiannually on January 1 and July 1 a listing of
Noteholders dated within 15 days of the date on which the
list is furnished 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 Noteholders.
Section 2.07. Transfer and Exchange; Restrictions on
Transfer; Depositary. (a) Upon surrender for registration
of transfer of any Note, together with a written instrument
of transfer satisfactory to the Note Registrar duly executed
by the Noteholder or such Noteholder's attorney duly
authorized in writing, at the office or agency of the
company designated as Note Registrar or co-registrar
pursuant to Section 2.04, and satisfaction of the
requirements of such transfer set forth in this Section, the
Issuers shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized
denomination or denominations, of a like aggregate principal
amount and bearing such restrictive legends as may be
required by this Indenture. The Issuers shall not charge a
service charge for any registration of transfer or exchange,
but the Issuers may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges
that may be imposed in connection with the transfer or
exchange of the Notes from the Noteholder requesting such
transfer or exchange.
At the option of the Holder, Notes may be exchanged for
other Notes of any authorized denomination or denominations,
of a like aggregate principal amount, upon surrender of the
Notes to be exchanged, together with a written instrument of
transfer satisfactory to the Note Registrar duly executed by
the Noteholder or such Noteholder's attorney duly authorized
in writing, at such office or agency. Whenever any Notes are
so surrendered for exchange, the Issuers shall execute, and
the Trustee shall authenticate and deliver, the Notes which
the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the
Issuers, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon
such registration of transfer or exchange.
The Issuers shall not be required to make, and the Note
Registrar need not register, transfers or exchanges of Notes
selected for redemption (except, in the case of Notes to be
redeemed in part, the portion thereof not to be redeemed) or
any Notes in respect of which a Change of Control Repurchase
Notice (as defined in Section 3.08(d)) has been given and
not withdrawn by the Holder thereof in accordance with the
terms of this Indenture (except, in the case of Notes to be
purchased in part, the portion thereof not to be purchased)
or any Notes for a period of 15 days before the mailing of a
notice of redemption of Notes to be redeemed.
(b) So long as the Notes are eligible for book-entry
settlement with the Depositary, or unless otherwise required
by law, all Notes that, upon initial issuance are
beneficially owned by QIBs or as a result of a sale or
transfer after initial issuance are beneficially owned by
QIBs, will be represented by one or more Notes in global
form registered in the name of the Depositary or the nominee
of the Depositary (the "Global Note"), except as otherwise
specified below. The transfer and exchange of beneficial
interests in any such Global Note shall be effected through
the Depositary in accordance with this Indenture and the
procedures of the Depositary therefor. The Trustee shall
make appropriate endorsements to reflect increases or
decreases in the principal amounts of any such Global Note
as set forth on the face of the Note ("Principal Amount") to
reflect any such transfers. Except as provided below,
beneficial owners of a Global Note shall not be entitled to
have certificates registered in their names, will not
receive or be entitled to receive physical delivery of
certificates in definitive form ("Certificated Notes") and
will not be considered holders of such Global Note.
(c) (i) So long as the Notes are eligible for book-
entry settlement with the Depositary, or unless otherwise
required by law, upon any transfer of a Certificated Note to
a QIB in accordance with Rule 144A that requests delivery of
such Note in the form of an interest in the Global Note, and
upon receipt of the Certificated Note or Notes being so
transferred, together with a certification, substantially in
the form of Exhibit B-1 hereto, from the transferor that the
transfer is being made in compliance with Rule 144A (or
other evidence satisfactory to the Trustee), the Trustee
shall make an endorsement on the Global Note to reflect an
increase in the aggregate Principal Amount of the Notes
represented by such Global Note, and the Trustee shall
cancel such Certificated Note or Notes in accordance with
the standing instructions and procedures of the Depositary.
(ii) Upon any sale or transfer of a Note to the
Company or any Subsidiary thereof (other than pursuant to a
registration statement that has been declared effective
under the Securities Act or after the expiration of the
holding period applicable to sales thereof under Rule 144(k)
under the Securities Act), the transferor shall, prior to
such sale or transfer, furnish to the Issuers and/or Trustee
such certifications, including a certification substantially
in the form of Exhibit B-1 hereto, legal opinions or other
information as they may reasonably require to confirm that
the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. Upon any transfer of a
beneficial interest in the Global Note to the Company or
such Subsidiary, as the case may be, the Trustee shall make
an endorsement on the Global Note to reflect a decrease in
the aggregate Principal Amount of the Notes represented by
such Global Note, and the Issuers shall execute a
Certificated Note or Notes in exchange therefor, and the
Trustee, upon receipt of such Certificated Note or Notes and
an Issuer Order, shall authenticate and deliver such,
Certificated Note or Notes.
(iii) Upon any sale or transfer of a Note to an
Institutional Accredited Investor (other than pursuant to a
registration statement that has been declared effective
under the Securities Act or after the expiration of the
holding period applicable to sales thereof under Rule 144(k)
under the Securities Act), such Institutional Accredited
Investor shall, prior to such sale or transfer, furnish to
the Issuers and/or the Trustee a signed letter containing
representations and agreements relating to restrictions on
transfer substantially in the form set forth in Exhibit B-2
hereto and the transferor shall, prior to such sale or
transfer, furnish to the Issuers and/or Trustee such
certifications, including a certification substantially in
the form of Exhibit B-1 hereto, legal opinions or other
information as they may reasonably require to confirm that
the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. Upon any transfer of a
beneficial interest in the Global Note to an Institutional
Accredited Investor, the Trustee shall make an endorsement
on the Global Note to reflect a decrease in the aggregate
Principal Amount of the Notes represented by such Global
Note, and the Issuers shall execute a Certificated Note or
Notes in exchange therefor, and the Trustee, upon receipt of
such Certificated Note or Notes and an Issuer Order, shall
authenticate and deliver such, Certificated Note or Notes.
(iv) Upon any sale or transfer of a Note outside
the United States in compliance with Rule 904 under the
Securities Act (other than pursuant to a registration
statement that has been declared effective under the
Securities Act or after the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the
Securities Act), the transferor shall, prior to such sale or
transfer, furnish to the Issuers and/or the Trustee such
certifications, including a certification substantially in
the form of Exhibit B-1 hereto, legal opinions or other
information as they may reasonably require to confirm that
the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. Upon any transfer of a
beneficial interest in the Global Note to such transferee,
the Trustee shall make an endorsement on the Global Note to
reflect a decrease in the aggregate Principal Amount of the
Notes represented by such Global Note, and the Issuers shall
either (1) execute a Certificated Note or Notes in exchange
therefor, and the Trustee, upon receipt of such Certificated
Note or Notes and an Issuer Order, shall authenticate and
deliver such, Certificated Note or Notes or (2) if a Global
Note with respect to Notes transferred in compliance with
Regulation S under the Securities Act has previously been
executed and authenticated, the Trustee shall make an
endorsement on such Global Note to reflect a corresponding
increase in the aggregate Principal Amount of Notes
represented by such Global Note.
(v) Upon any sale or transfer of a Note pursuant to
the exemption from registration provided by Rule 144 under
the Securities Act, the transferor shall, prior to such sale
or transfer, furnish to the Issuers and/or the Trustee such
certifications, including a certification substantially in
the form of Exhibit B-1 hereto, legal opinions or other
information as they may reasonably require to confirm that
the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act. Upon any transfer of a
beneficial interest in the Global Note to such transferee,
the Trustee shall make an endorsement on the Global Note to
reflect a decrease in the aggregate Principal Amount of the
Notes represented by such Global Note, and, at the request
of the transferee, either (1) the Issuers shall execute a
Certificated Note or Notes in exchange therefor, and the
Trustee, upon receipt of such Certificated Note or Notes and
an Issuer Order, shall authenticate and deliver such,
Certificated Note or Notes or (2) if a Global Note that does
not bear the legend set forth in Section 2.07(d) has
previously been executed and authenticated, the Trustee
shall make an endorsement on such Global Note to reflect a
corresponding increase in the aggregate Principal Amount of
Notes represented by such Global Note.
Any Global Note may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Indenture as may be
required by the Trustee, the Depositary or by the National
Association of Securities Dealers, Inc. in order for the
Notes to be tradeable on The Portal Market or as may be
required for the Notes to be tradeable on any other market
developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any
securities exchange or automated quotation system upon which
the Notes may be listed or traded or to conform with any
usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Notes
are subject.
(d) Every Note that bears or is required under this
Section 2.07(d) to bear the legend set forth in this Section
2.07(d) (together with any Common Stock issued upon
conversion of the Notes and required to bear the legend set
forth in Section 2.07(e), collectively, the "Restricted
Securities") shall be subject to the restrictions on
transfer set forth in this Section 2.07(d) (including those
set forth in the legend set forth below) unless such
restrictions on transfer shall be waived by written consent
of the Issuers, and the holder of each such Restricted
Security, by such Noteholder's acceptance thereof, agrees to
be bound by all such restrictions on transfer. As used in
Section 2.07(d) and 2.07(c), the term "transfer" encompasses
any sale, pledge, loan, transfer or other disposition
whatsoever of any Restricted Security.
Until the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or
any successor provision), any certificate evidencing such
Note (and all securities issued in exchange therefor or
substitution thereof, other than Common Stock, if any,
issued upon conversion thereof, which shall bear the legend
set forth in Section 2.07(e), if applicable) shall bear a
legend in substantially the following form, unless such Note
has been sold pursuant to a registration statement that has
been declared effective under the Securities Act (and which
continues to be effective at the time of such transfer), or
unless otherwise agreed by the Issuers in writing, with
written notice thereof to the Trustee:
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES THEREOF UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION) (THE "RESALE RESTRICTION PERIOD")
ONLY (A) TO FREEPORT-MCMORAN COPPER & GOLD OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) OUTSIDE THE UNTIED STATES
TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) or (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, INCLUDING UNDER RULE 144, IF
AVAILABLE, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR
THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL
TIME WITHIN ITS OR THEIR CONTROL. IF ANY RESALE OR OTHER
TRANSFER OF THIS SECURITY OR SHARES OF COMMON STOCK ISSUED
UPON CONVERSION OF THIS SECURITY IS PROPOSED TO BE MADE
PURSUANT TO CLAUSE (D) ABOVE PRIOR TO THE EXPIRATION OF THE
RESALE RESTRICTION PERIOD (OR THE DATE OF REGISTRATION
THEREOF), THE TRANSFEROR SHALL BE REQUIRED TO DELIVER A
LETTER FROM THE TRANSFEREE TO THE TRUSTEE WHICH SHALL
PROVIDE, AMONG OTHER THINGS, THAT THE TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) or (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS SECURITY OR THE SHARES
OF COMMON STOCK ISSUED UPON CONVERSION OF THIS SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT. PRIOR TO
THE EXPIRATION OF THE RESALE RESTRICTION PERIOD, THE ISSUERS
AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
EXPIRATION OF THE RESALE RESTRICTION PERIOD.
Any Note (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall
have expired in accordance with their terms or as to
conditions for removal of the foregoing legend set forth
therein have been satisfied may, upon surrender of such Note
for exchange to the Note Registrar in accordance with the
provisions of this Section 2.07, be exchanged for a new Note
or Notes, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by this
Section 2.07(d).
Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in Section 2.07(c),
with respect to transfers of beneficial interests in a
Global Note, and in this Section 2.07(d)), a Global Note may
not be transferred as a whole or in part 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.
Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on
whose behalf Agent Members may act shall have any rights
under this Indenture with respect to any Global Note
registered in the name of the Depositary or any nominee
thereof, or under any such Global Note, and the Depositary
or such nominee, as the case may be, may be treated by the
Issuers, the Trustee and any agent of the Issuers or the
Trustee as the absolute owner and holder of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Issuers, the Trustee or any
agent of the Issuers or the Trustee from giving effect to
any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may
be, or impair, as between the Depositary, its Agent Members
and any other person on whose behalf an Agent Member may
act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any
Note.
The Depositary shall be a clearing agency registered under
the Exchange Act. The Issuers initially appoint The
Depository Trust Company to act as Depositary with respect
to the Notes in global form. Initially, the Global Note
shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited
with the Trustee, as custodian for Cede & Co.
If at any time the Depositary for a Global Note notifies the
Issuers that it is unwilling or unable to continue as
Depositary for such Note, the Issuers may appoint a
successor Depositary with respect to such Note. If a
successor ▇▇▇▇▇▇▇▇▇▇ is not appointed by the Issuers within
ninety (90) days after the Issuers receive such notice, the
Issuers will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of
Notes, will authenticate and deliver, Certificated Notes, in
aggregate principal amount equal to the principal amount of
such Global Note, in exchange for such Global Note.
If a Certificated Note is issued in exchange for any portion
of a Global Note after the close of business at the office
or agency where such exchange occurs on any Regular Record
Date and before the opening of business at such office or
agency on the next succeeding Interest Payment Date,
interest will not be payable on such Interest Payment Date
in respect of such Certificated Note, but will be payable on
such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Note is
payable in accordance with the provisions of this Indenture.
Certificated Notes issued in exchange for all or a part of a
Global Note pursuant to this Section 2.07 shall be
registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the
Trustee shall deliver such Certificated Notes to the Persons
in whose names such Certificated Notes are so registered.
At such time as all interests in a Global Note have been
redeemed, converted, canceled, exchanged for Certificated
Notes, or transferred to a transferee who receives
Certificated Notes thereof, such Global Note shall, upon
receipt thereof, be canceled by the Trustee in accordance
with standing procedures and instructions existing between
the Depositary and the Trustee. At any time prior to such
cancellation, if any interest in a Global Note is exchanged
for Certificated Notes, redeemed, converted, repurchased or
canceled, or transferred to a transferee who receives
Certificated Notes therefor or any Certificated Note is
exchanged or transferred for part of a Global Note, the
principal amount of such Global Note shall, in accordance
with the standing procedures and instructions existing
between the Depositary and the Trustee, be appropriately
reduced or increased, as the case may be, and an endorsement
shall be made on such Global Note, by the Trustee to reflect
such reduction or increase.
(e) Until the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act
(or any successor provision), any stock certificate
representing Common Stock issued upon conversion of any Note
shall bear a legend in substantially the following form,
unless such Common Stock has been sold pursuant to a
registration statement that has been declared effective
under the Securities Act (and which continues to be
effective at the time of such transfer) or such Common Stock
has been issued upon conversion of Notes that have been
transferred pursuant to a registration statement that has
been declared effective under the Securities Act, or unless
otherwise agreed by the Issuers in writing with written
notice thereof to the transfer agent:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES THEREOF UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION) (THE "RESALE RESTRICTION PERIOD")
ONLY (A) TO FREEPORT-MCMORAN COPPER & GOLD OR ANY SUBSIDIARY
THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) OUTSIDE THE UNTIED STATES
TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) or (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANY
OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, INCLUDING UNDER RULE 144, IF
AVAILABLE, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR
THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL
TIME WITHIN ITS OR THEIR CONTROL. IF ANY RESALE OR OTHER
TRANSFER OF THIS SECURITY IS PROPOSED TO BE MADE PURSUANT TO
CLAUSE (D) ABOVE PRIOR TO THE EXPIRATION OF THE RESALE
RESTRICTION PERIOD (OR THE DATE OF REGISTRATION THEREOF),
THE TRANSFEROR SHALL BE REQUIRED TO DELIVER A LETTER FROM
THE TRANSFEREE TO THE TRANSFER AGENT WHICH SHALL PROVIDE,
AMONG OTHER THINGS, THAT THE TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH
(A)(1), (2), (3) or (7) OF RULE 501 UNDER THE SECURITIES ACT
AND THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT. PRIOR TO THE EXPIRATION
OF THE RESALE RESTRICTION PERIOD, THE ISSUERS AND THE
TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE EXPIRATION OF THE RESALE RESTRICTION PERIOD.
Any such Common Stock as to which such restrictions on
transfer shall have expired in accordance with their terms
or as to which the conditions for removal of the foregoing
legend set forth therein have been satisfied may, upon
surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures
of the transfer agent for the Common Stock, be exchanged for
a new certificate or certificates for a like number of
shares of Common Stock, which shall not bear the restrictive
legend required by this Section 2.07(e).
(f) Any Note or Common Stock issued upon the
conversion or exchange of a Note that, prior to the
expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor
provision), is purchased or owned by the Company or any
Affiliate thereof may not be resold by the Company or such
Affiliate unless registered under the Securities Act or
resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which
results in such Notes or Common Stock, as the case may be,
no longer being "restricted securities" (as defined under
Rule 144).
Section 2.08. Replacement Notes. If (a) any mutilated Note
is surrendered to the Trustee, or (b) the Issuers, the
Trustee and, if applicable, the Authenticating Agent receive
evidence to their satisfaction of the destruction, loss or
theft of any Note, and there is delivered to the Issuers,
the Trustee and, if applicable, the Authenticating Agent
such Note or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the
Issuers, the Trustee or, if applicable, the Authenticating
Agent that such Note has been acquired by a bona fide
purchaser, the Issuers shall execute and upon their written
request the Trustee or the Authenticating Agent shall
authenticate and deliver, in exchange for any such mutilated
Note or in lieu of any such destroyed, lost or stolen Note,
a new Note of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note
has become or is about to become due and payable, or is
about to be purchased by the Issuers pursuant to Article 3
hereof, the Issuers in their discretion may, instead of
issuing a new Note, pay or purchase such Note, as the case
may be.
Upon the issuance of any new Notes under this Section 2.08,
the Issuers may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee and any
Authenticating Agent) connected therewith.
Every new Note issued pursuant to this Section 2.08 in lieu
of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of
the Issuers, whether or not the destroyed, lost or stolen
Note shall be at any time enforceable by anyone, and shall
be entitled to all benefits of this Indenture equally and
proportionately with any and all other Notes duly issued
hereunder.
The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes.
Section 2.09. Outstanding Notes; Determination of Holders'
Action. Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by
it or delivered to it for cancellation, those paid pursuant
to Section 2.08 and those described in this Section 2.09 as
not outstanding. A Note does not cease to be outstanding
because the Issuers or an Affiliate thereof holds the Note;
provided, however, that in determining whether the Holders
of the requisite principal amount of the outstanding Notes
have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Issuers or any other obligor
upon the Notes or any Affiliate of the Issuers or such other
obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Notes which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Subject to the
foregoing, only Notes outstanding at the time of such
determination shall be considered in any such determination
(including, without limitation, determinations pursuant to
Articles 6 and 9).
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a bona
fide purchaser.
If the Paying Agent holds, in accordance with this
Indenture, on a Redemption Date, or on the Business Day
following the Change of Control Repurchase Date, or on
Stated Maturity, money or securities, if permitted
hereunder, sufficient to pay Notes payable on that date,
then immediately after such Redemption Date, Change of
Control Repurchase Date or Stated Maturity, as the case may
be, such Notes shall cease to be outstanding and interest on
such Notes shall cease to accrue; provided that, if such
Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.
If a Note is converted in accordance with Article 10, then
from and after the time of conversion on the conversion
date, such Note shall cease to be outstanding and interest
shall cease to accrue on such Note.
Section 2.10. Temporary Notes. Pending the preparation of
definitive Notes, the Issuers may execute, and upon an
Issuer Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Notes may
determine, as conclusively evidenced by their execution of
such Notes.
If temporary Notes are issued, the Issuers will cause
definitive Notes to be prepared without unreasonable delay.
After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of
the Issuers designated for such purpose pursuant to Section
2.04, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes the Issuers
shall execute and the Trustee or an Authenticating Agent
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall
in all respects be entitled to the same benefits under this
Indenture as definitive Notes.
Section 2.11. Cancellation. All Notes surrendered for
payment, purchase by the Issuers pursuant to Article 3,
conversion, redemption or registration of transfer or
exchange shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Issuers may at any time deliver to the
Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Issuers may have acquired
in any manner whatsoever, and all Notes so delivered shall
be promptly cancelled by the Trustee. The Issuers may not
issue new Notes to replace Notes it has paid or delivered to
the Trustee for cancellation or that any Holder has
converted pursuant to Article 10. No Notes shall be
authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section 2.11, except as
expressly permitted by this Indenture. All cancelled Notes
held by the Trustee shall be disposed of by the Trustee in
its customary manner.
Section 2.12. Persons Deemed Owners. Prior to due
presentment of a Note for registration of transfer, the
Issuers, the Trustee and any agent of the Issuers or the
Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of
receiving payment of principal of the Note or the payment of
any Redemption Price or Change of Control Repurchase Price
in respect thereof, and interest thereon, for the purpose of
conversion and for all other purposes whatsoever, whether or
not such Note be overdue, and neither the Issuers, the
Trustee nor any agent of the Issuers or the Trustee shall be
affected by notice to the contrary.
Section 2.13. CUSIP Numbers. The Issuers in issuing the
Notes may use "CUSIP" numbers (if then generally in use),
and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any
such notice may state that no representation is made as to
the correctness of such numbers either as printed on the
Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall
not be affected by any defect in or omission of such
numbers. The Issuers will promptly notify the Trustee of any
change in the CUSIP numbers.
Section 2.14. Default Interest. If the Issuers default in
a payment of interest on the Notes, it shall pay, or shall
deposit with the Paying Agent money in immediately available
funds sufficient to pay, the defaulted interest, plus (to
the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent
special record date. A special record date, as used in this
Section 2.14 with respect to the payment of any defaulted
interest, shall mean the 15th day next preceding the date
fixed by the Issuers for the payment of defaulted interest,
whether or not such day is a Business Day. At least 15 days
before the subsequent special record date, the Issuers shall
mail to each Holder and to the Trustee a notice that states
the subsequent special record date, the payment date and the
amount of defaulted interest to be paid.
ARTICLE 3
Redemption and Purchases
Section 3.01. Right to Redeem; Notices to Trustee. The
Issuers, at their option, may redeem the Notes in accordance
with the provisions of paragraphs 5 and 7 of the Notes. If
the Issuers elect to redeem Notes pursuant to paragraph 5 of
the Notes, they shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be
redeemed and the Redemption Price.
The Issuers shall give the notice to the Trustee provided
for in this Section 3.01 by an Issuer Order, at least 45
days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
Section 3.02. Selection of Notes to Be Redeemed. If less
than all the Notes are to be redeemed, the Trustee shall
select the Notes to be redeemed pro rata or by lot or by any
other method the Trustee considers fair and appropriate (so
long as such method is not prohibited by the rules of any
stock exchange on which the Notes are then listed). The
Trustee shall make the selection at least 15 days but not
more than 60 days before the Redemption Date from
outstanding Notes not previously called for redemption. The
Trustee may select for redemption portions of the principal
amount of Notes that have denominations larger than $1,000.
Notes and portions of them the Trustee selects shall be in
principal amounts of $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called
for redemption. The Trustee shall notify the Issuers
promptly of the Notes or portions of Notes to be redeemed.
If any Note selected for partial redemption is converted in
part before termination of the conversion right with respect
to the portion of the Note so selected, the converted
portion of such Note shall be deemed (so far as may be) to
be the portion selected for redemption. Notes which have
been converted during a selection of Notes to be redeemed
may be treated by the Trustee as outstanding for the purpose
of such selection.
Section 3.03. Notice of Redemption. At least 30 days but
not more than 60 days before a Redemption Date, the Issuers
shall mail a notice of redemption by first-class mail,
postage prepaid, to each Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price;
(4) the name and address of the Paying Agent and Conversion
Agent;
(5) that Notes called for redemption may be converted at
any time before the close of business on the Redemption Date;
(6) that Holders who want to convert Notes must satisfy the
requirements set forth in paragraph 8 of the Notes;
(7) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(8) if fewer than all the outstanding Notes are to be
redeemed, the certificate number and principal amounts of
the particular Notes to be redeemed;
(9) that, unless the Issuers default in making payment of
such Redemption Price, any interest on Notes called for
redemption will cease to accrue on and after the Redemption
Date; and
(10) the CUSIP number of the Notes.
At the Issuers' request, the Trustee shall give the notice
of redemption in the Issuers' name and at the Issuers'
expense; provided that the Issuers make such request at
least three Business Days prior to such notice of
redemption.
Section 3.04. Effect of Notice of Redemption. Once notice
of redemption is given, Notes called for redemption become
due and payable on the Redemption Date and at the Redemption
Price stated in the notice, except for Notes which are
converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Notes shall be paid
at the Redemption ▇▇▇▇▇ stated in the notice.
Section 3.05. Deposit of Redemption Price. Prior to 10:00
a.m. (New York City time) on the Redemption Date, the
Issuers shall deposit with the Paying Agent (or if an Issuer
or a Subsidiary or an Affiliate of either of them is the
Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Notes to be
redeemed on that date other than Notes or portions of Notes
called for redemption which on or prior thereto have been
delivered by the Issuers to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as
practicable return to the Issuers any money, with interest,
if any, thereon, not required for that purpose because of
conversion of Notes pursuant to Article 10. If such money is
then held by the Issuers in trust and is not required for
such purpose, it shall be discharged from such trust.
Section 3.06. Notes Redeemed in Part. Upon surrender of a
Note that is redeemed in part, the Issuers shall execute and
the Trustee or an Authenticating Agent shall authenticate
and deliver to the Holder a new Note in an authorized
denomination equal in principal amount to the unredeemed
portion of the Note surrendered.
Section 3.07. Conversion Arrangement on Call for
Redemption. In connection with any redemption of Notes, the
Issuers may arrange for the purchase and conversion of any
Notes called for redemption by an agreement with one or more
investment banks or other purchasers to purchase such Notes
by paying to the Trustee in trust for the Noteholders, on or
prior to 10:00 a.m. New York City time on the Redemption
Date, an amount that, together with any amounts deposited
with the Trustee by the Issuers for the redemption of such
Notes, is not less than the Redemption Price of such Notes.
Notwithstanding anything to the contrary contained in this
Article 3, the obligation of the Issuers to pay the
Redemption Price of such Notes shall be deemed to be
satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is entered
into, any Notes not duly surrendered for conversion by the
Holders thereof may, at the option of the Issuers, be
deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and (notwithstanding
anything to the contrary contained in Article 10)
surrendered by such purchasers for conversion, all as of
immediately prior to the close of business on the Redemption
Date, subject to payment of the above amount as aforesaid.
The Trustee shall hold and pay to the Holders whose Notes
are selected for redemption any such amount paid to it for
purchase and conversion in the same manner as it would
moneys deposited with it by the Issuers for the redemption
of Notes. Without the Trustee's prior written consent, no
arrangement between the Issuers and such purchasers for the
purchase and conversion of any Notes shall increase or
otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this
Indenture, and the Issuers agree to indemnify the Trustee
from, and hold it harmless against, any loss, liability or
expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Notes
between the Issuers and such purchasers, including the costs
and expenses incurred by the Trustee in the defense of any
claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
Section 3.08. Repurchase of Notes at Option of the Holder
upon Change of Control. (a) If there shall have occurred a
Change of Control, all or any portion of the Notes of any
Holder equal to $1,000 or a whole multiple of $1,000, not
previously called for redemption, shall be repurchased by
the Issuers, at the option of such Holder, at a repurchase
price equal to 100% of the principal amount of the Notes to
be repurchased, together with interest accrued and unpaid
to, but excluding, the repurchase date (the "Change of
Control Repurchase Price"), on the date (the "Change of
Control Repurchase Date") that is 45 days after the date the
Issuers delivered the notice required under Section 3.08(c)
(or if such 45th day is not a Business Day, the next
succeeding Business Day); provided, however, that
installments of interest on Notes the Stated Maturity of
which is prior to or on the Change of Control Repurchase
Date shall be payable to the Holders of such Notes, or one
or more predecessor Notes, registered as such on the
relevant Regular Record Date according to their terms.
Subject to the fulfillment by the Issuers of the conditions
set forth in Section 3.08(b) hereof, the Issuers may elect
to pay the Change of Control Repurchase Price in Common
Stock by delivering the number of shares of, at the option
of the Holders, Class A Common Stock or Class B Common Stock
equal to (i) the Change of Control Repurchase Price divided
by (ii) 95% of the average of the Closing Prices per share
of the applicable Common Stock for the five consecutive
Trading Days immediately preceding and including the third
Trading Day prior to the Change of Control Repurchase Date.
Whenever in this Indenture (including Sections 2.01, 6.01(a)
and 6.07 hereof) or Exhibit A annexed hereto there is a
reference, in any context, to the principal of any Note as
of any time, such reference shall be deemed to include
reference to the Change of Control Repurchase Price payable
in respect to such Note to the extent that such Change of
Control Repurchase Price is, was or would be so payable at
such time, and express mention of the Change of Control
Repurchase Price in any provision of this Indenture shall
not be construed as excluding the Change of Control
Repurchase Price in those provisions of this Indenture when
such express mention is not made.
A "Change of Control" of the Company shall be deemed to have
occurred at such time as either of the following events
shall occur:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), acquires the
beneficial ownership (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed
to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, through a purchase, merger or other
acquisition transaction, of 50% or more of the total voting
power of the Company's total outstanding Voting Stock other
than an acquisition by the Company, any of its Subsidiaries
or any of its employee benefit plans;
(ii) the Company consolidates with, or merges with
or into, another Person or conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets
to any Person, or any Person consolidates with or merges
with or into the Company other than:
(A) any transaction (1) that does not result in any
reclassification (excluding a reclassification combining the
Class A Common Stock and Class B Common Stock into one
class), conversion, exchange or cancellation of outstanding
shares of the Company's Capital Stock and (2) pursuant to
which holders of the Company's Capital Stock immediately
prior to such transaction have the entitlement to exercise,
directly or indirectly, 50% or more of the total voting
power of all shares of the Company's Capital Stock entitled
to vote generally in the election of directors of the
continuing or surviving person immediately after the
transaction; and
(B) any merger solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding
shares of Common Stock solely into shares of common stock of
the surviving entity;
(iii) during any consecutive two-year period,
individuals who at the beginning of that two-year period
constituted the Company's board of directors (together with
any new directors whose election to such board of directors,
or whose nomination for election by the Company's
stockholders, was approved by a vote of a majority of the
directors then still in office who were either directors at
the beginning of such period or whose election or nomination
for election was previously so approved) cease for any
reason to constitute a majority the Company's board of
directors then in office; or
(iv) the Company's stockholders pass a special
resolution approving a plan of liquidation or dissolution
and no additional approvals of the Company's stockholders
are required under applicable law to cause a liquidation or
dissolution.
(b) The following are conditions to the Issuers'
election to pay for the Change of Control Repurchase Price
in Common Stock:
(i) The shares of Common Stock to be issued upon
repurchase of Notes hereunder:
(A) shall not require registration under any federal
securities law before such shares may be freely transferable
without being subject to any transfer restrictions under the
Securities Act upon repurchase or, if such registration is
required, such registration shall be completed and shall
become effective prior to the Change of Control Repurchase
Date; and
(B) shall not require registration with, or approval
of, any governmental authority under any state law or any
other federal law before shares may be validly issued or
delivered upon repurchase or if such registration is
required or such approval must be obtained, such
registration shall be completed or such approval shall be
obtained prior to the Change of Control Repurchase Date.
(ii) The shares of Common Stock to be listed upon
repurchase of Notes hereunder are, or shall have been,
approved for listing on the Nasdaq National Market or the
New York Stock Exchange or listed on another national
securities exchange, in any case, prior to the Change of
Control Repurchase Date.
(iii) All shares of Common Stock which may be
issued upon repurchase of Notes will be issued out of the
Company's authorized but unissued Common Stock and will,
upon issue, be duly and validly issued and fully paid and
nonassessable and free of any preemptive or similar rights.
(iv) If any of the conditions set forth in clauses
(i) through (iii) of this Section 3.08(b) are not satisfied
in accordance with the terms thereof, the Change of Control
Repurchase Price shall be paid by the Issuers only of cash.
(c) Unless the Issuers shall have theretofore called
for redemption all of the outstanding Notes, prior to or on
the 30th day after the occurrence of a Change of Control,
the Issuers, or, at the written request and expense of the
Issuers prior to or on the 30th day after such occurrence,
the Trustee, shall give to all Noteholders, in the manner
provided in Section 12.02 hereof, notice of the occurrence
of the Change of Control and of the repurchase right set
forth herein arising as a result thereof. The Issuers shall
also deliver a copy of such notice of a repurchase right to
the Trustee. The notice shall include a form of Change of
Control Repurchase Notice (as defined in Section 3.08(d)) to
be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change of
Control and the date of such Change of Control;
(2) the date by which the Change of Control
Repurchase Notice pursuant to this Section 3.08 must be
given;
(3) the Change of Control Repurchase Date;
(4) the Change of Control Repurchase Price and
whether the Change of Control Repurchase Price will be
payable in cash or Common Stock;
(5) the name and address of the Paying Agent and
the Conversion Agent;
(6) the Conversion Price and any adjustments
thereto;
(7) that Notes as to which a Change of Control
Repurchase Notice has been given may be converted pursuant
to Article 10 hereof only if the Change of Control
Repurchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(8) that Notes must be surrendered to the Paying
Agent to collect payment;
(9) that the Change of Control Repurchase Price
for any Note as to which a Change of Control Repurchase
Notice has been duly given and not withdrawn will be paid
promptly following the later of the Change of Control
Repurchase Date and the time of surrender of such Note as
described in (8) above;
(10) briefly, the procedures the Holder must
follow to exercise rights under this Section 3.08;
(11) briefly, the conversion rights of the Notes;
(12) the procedures for withdrawing a Change of
Control Repurchase Notice;
(13) that, unless the Issuers default in making
payment of such Change of Control Repurchase Price, interest
on Notes submitted for repurchase will cease to accrue on
and after the Change of Control Repurchase Date; and
(14) the CUSIP number of the Notes.
(d) A Holder may exercise its rights specified in Section
3.08(a) hereof upon delivery of a written notice of purchase
(a "Change of Control Repurchase Notice"), substantially in
the form as set forth on the reverse of the Notes, to the
Paying Agent at any time prior to the close of business on
the Change of Control Repurchase Date, stating:
(1) the certificate number of the Note which the
Holder will deliver to be purchased;
(2) the portion of the principal amount of the
Note which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof;
(3) if the Issuers have elected to pay the Change
of Control Repurchase Price in Common Stock, such Holder's
election to receive the Change of Control Repurchase Price
in Class A Common Stock or Class B Common Stock; and
(4) that such Note shall be purchased pursuant to
the terms and conditions specified in paragraph 6 of the
Notes.
The delivery of such Note to the Paying Agent prior to, on
or after the Change of Control Repurchase Date (together
with all necessary endorsements) at the offices of the
Paying Agent shall be a condition to the receipt by the
Holder of the Change of Control Repurchase Price therefor;
provided, however, that such Change of Control Repurchase
Price shall be so paid pursuant to this Section 3.08 only if
the Note so delivered to the Paying Agent shall conform in
all respects to the description thereof set forth in the
related Change of Control Repurchase Notice.
The Issuers shall purchase from the Holder thereof, pursuant
to this Section 3.08, a portion of a Note if the principal
amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the
purchase of all of a Note also apply to the purchase of such
portion of such Note.
Any purchase by the Issuers contemplated pursuant to the
provisions of this Section 3.08 shall be consummated by the
delivery of the consideration to be received by the Holder
promptly following the later of the Change of Control
Repurchase Date and the time of delivery of the Note to the
Paying Agent in accordance with this Section 3.08.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change of Control
Repurchase Notice contemplated by this Section 3.08(d) shall
have the right to withdraw such Change of Control Repurchase
Notice at any time prior to the close of business on the
Change of Control Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with
Section 3.09.
The Paying Agent shall promptly notify the Issuers of the
receipt by it of any Change of Control Repurchase Notice or
written withdrawal thereof.
Section 3.09. Effect of Change of Control Repurchase
Notice. Upon receipt by the Paying Agent of the Change of
Control Repurchase Notice specified in Section 3.08(d), the
Holder of the Note in respect of which such Change of
Control Repurchase Notice was given shall (unless such
Change of Control Repurchase Notice is withdrawn as
specified in the following two paragraphs) thereafter be
entitled to receive solely the Change of Control Repurchase
Price with respect to such Note. Such Change of Control
Repurchase Price shall be paid to such Holder, subject to
receipts of funds and/or Notes by the Paying Agent, promptly
following the later of (x) the Change of Control Repurchase
Date with respect to such Note (provided that the conditions
in Section 3.08(d) have been satisfied) and (y) the time of
delivery of such Note to the Paying Agent by the Holder
thereof in the manner required by Section 3.08(d). Notes in
respect of which a Change of Control Repurchase Notice, has
been given by the Holder thereof may not be converted
pursuant to Article 10 hereof on or after the date of the
delivery of such Change of Control Repurchase Notice unless
such Change of Control Repurchase Notice has first been
validly withdrawn as specified in the following two
paragraphs.
A Change of Control Repurchase Notice may be withdrawn by
means of a written notice of withdrawal delivered to the
office of the Paying Agent in accordance with the Change of
Control Repurchase Notice at any time prior to the close of
business on the Change of Control Repurchase Date
specifying:
(1) the certificate number of the Note in respect
of which such notice of withdrawal is being submitted,
(2) the principal amount of the Note with respect
to which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Note
which remains subject to the original Change of Control
Repurchase Notice and which has been or will be delivered
for purchase by the Issuers.
There shall be no repurchase of any Notes pursuant to
Section 3.08 if there has occurred (prior to, on or after,
as the case may be, the giving, by the Holders of such
Notes, of the required Change of Control Repurchase Notice)
and is continuing an Event of Default (other than a default
in the payment of the Change of Control Repurchase Price
with respect to such Notes). The Paying Agent will promptly
return to the respective Holders thereof any Notes (x) with
respect to which a Change of Control Repurchase Notice has
been withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of an Event of Default
(other than a default in the payment of the Change of
Control Repurchase Price with respect to such Notes) in
which case, upon such return, the Change of Control
Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
Section 3.10. Deposit of Change of Control Repurchase
Price. Prior to 10:00 a.m. (New York City time) on the
Business Day following the Change of Control Repurchase Date
the Issuers shall deposit with the Trustee or with the
Paying Agent (or, if an Issuer or a Subsidiary or an
Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section
2.05) an amount of money (in immediately available funds if
deposited on such Business Day) or Common Stock, if
permitted hereunder, sufficient to pay the aggregate Change
of Control Repurchase Price of all the Notes or portions
thereof which are to be purchased as of the Change of
Control Repurchase Date.
Section 3.11. Notes Purchased in Part. Any Note which is
to be purchased only in part shall be surrendered at the
office of the Paying Agent (with, if the Issuers or the
Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuers
and the Trustee duly executed by, the Holder thereof or such
▇▇▇▇▇▇'s attorney duly authorized in writing) and the
Issuers shall execute and the Trustee or an Authenticating
Agent shall authenticate and deliver to the Holder of such
Note, without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for,
the portion of the principal amount of the Note so
surrendered which is not purchased.
Section 3.12. Covenant to Comply with Securities Laws upon
Purchase of Notes. In connection with any offer to purchase
or repurchase of Notes under Section 3.08 hereof (provided
that such offer or purchase constitutes an "issuer tender
offer" for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), the
Issuers shall (i) comply with Rule 13e-4, Rule 14e-1 and any
other tender offer rules under the Exchange Act which may
then be applicable, (ii) file the related Schedule 13E-3 (or
any successor schedule, form or report) or any other
schedule required under the Exchange Act, and (iii)
otherwise comply with all federal and state securities laws
so as to permit the rights and obligations under Section
3.08 to be exercised in the time and in the manner specified
in Section 3.08.
Section 3.13. Repayment to the Issuers. The Trustee and
the Paying Agent shall return to the Issuers any cash or
shares of Common Stock that remain unclaimed as provided in
paragraph 12 of the Notes, together with interest or
dividends, if any, thereon, held by them for the payment of
the Change of Control Repurchase Price; provided, however,
that to the extent that the aggregate amount of cash or
shares of Common Stock deposited by the Issuers pursuant to
Section 3.10 exceeds the aggregate Change of Control
Repurchase Price of the Notes or portions thereof which the
Issuers are obligated to purchase as of the Change of
Control Repurchase Date, then promptly after the Business
Day following the Change of Control Repurchase Date, the
Trustee shall return any such excess to the Issuers together
with interest or dividends, if any, thereon.
ARTICLE 4
Covenants
Section 4.01. Payment of Principal, Premium, Interest on
the Notes. The Issuers will duly and punctually pay the
principal of and premium, if any, and interest (including
Liquidated Damages, if any) in respect of the Notes in
accordance with the terms of the Notes and this Indenture.
The Issuers will deposit or cause to be deposited with the
Trustee as directed by the Trustee, no later than the day of
the Stated Maturity of any Note or installment of interest,
all payments so due. Principal amount, Redemption Price,
Change of Control Repurchase Price, and cash interest shall
be considered paid on the applicable date due if on such
date (or, in the case of a Change of Control Repurchase
Price on the Business Day following the applicable Change of
Control Repurchase Date) the Trustee or the Paying Agent
holds, in accordance with this Indenture, money or Notes, if
permitted hereunder, sufficient to pay all such amounts then
due.
The Issuers shall, to the extent permitted by law, pay cash
interest on overdue amounts at the rate per annum set forth
in paragraph 1 of the Notes, compounded semiannually, which
interest shall accrue from the date such overdue amount was
originally due to the date payment of such amount, including
interest thereon, has been made or duly provided for. All
such interest shall be payable on demand.
Section 4.02. Reports by the Issuers. The Issuers shall
file with the Trustee (and the SEC after the Indenture
becomes qualified under the TIA), and transmit to holders of
Notes, such information, documents and other reports and
such summaries thereof, as may be required pursuant to the
TIA at the times and in the manner provided pursuant to the
TIA, whether or not the Notes are governed by the TIA;
provided, however, that any such information, documents or
reports required to be filed with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with
the Trustee within fifteen (15) days after the same is so
required to be filed with the SEC. 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 Issuers'
compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 4.03. Compliance Certificate. The Issuers shall
deliver to the Trustee within 120 days after the end of each
fiscal year of the Issuers (beginning with the fiscal year
ending on December 31, 2001) an Officers' Certificate,
stating whether or not to the best knowledge of the signers
thereof the Issuers are in default in the performance and
observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and if the Issuers
shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
Section 4.04. Further Instruments and Acts. Upon request
of the Trustee, the Issuers will execute and deliver such
further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively
the purposes of this Indenture.
Section 4.05. Maintenance of Office or Agency. The Issuers
will maintain in the Borough of Manhattan, the City of New
York, an office or agency of the Trustee, Note Registrar,
Paying Agent and Conversion Agent where Notes may be
presented or surrendered for payment, where Notes may be
surrendered for registration of transfer, exchange,
purchase, redemption or conversion and where notices and
demands to or upon the Issuers in respect of the Notes and
this Indenture may be served. The Corporate Trust Office and
each office or agency of the Trustee in the Borough of
Manhattan, the City of New York, shall initially be one such
office or agency for all of the aforesaid purposes. The
Issuers shall give prompt written notice to the Trustee of
the location, and of any change in the location, of any such
office or agency (other than a change in the location of the
office of the Trustee). If at any time the Issuers 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 address of the Trustee set forth in Section
12.02.
The Issuers may also from time to time designate one or more
other offices or agencies where the Notes 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 Issuers of their obligation to maintain an
office or agency in the Borough of Manhattan, the City of
New York, for such purposes.
Section 4.06. Delivery of Certain Information. At any time
when the Issuers are not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a holder or any
beneficial holder of Notes or shares of Common Stock issued
upon conversion thereof, the Issuers will promptly furnish
or cause to be furnished Rule 144A Information (as defined
below) to such Holder or any beneficial holder of Notes or
holder of shares of Common Stock issued upon conversion of
Notes, or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the
extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act in connection
with the resale of any such security. "Rule 144A
Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act.
Section 4.07. Existence. Subject to Article 5, the Issuers
will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence and rights
(charter and statutory); provided, however, that the Issuers
shall not be required to preserve any such right if the
Issuers shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the
Issuers and that the loss thereof is not disadvantageous in
any material respect to the Noteholders.
Section 4.08. Maintenance of Properties. The Issuers will
cause all properties used or useful in the conduct of their
business or the business of any Significant Subsidiary to be
maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as
in the judgment of the Issuers may be necessary so that the
business carried on in connection therewith may be properly
and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the
Issuers from discontinuing the operation or maintenance of
any of such properties if such discontinuance is, in the
judgment of the Issuers, desirable in the conduct of their
business or the business of any Significant Subsidiary and
not disadvantageous in any material respect to the
Noteholders.
Section 4.09. Payment of Taxes and Other Claims. The
Issuers will pay or discharge, or cause to be paid or
discharged, before the same may become delinquent, (i) all
taxes, assessments and governmental charges levied or
imposed upon the Issuers or any Significant Subsidiary or
upon the income, profits or property of the Issuers or any
Significant Subsidiary, (ii) all claims for labor, materials
and supplies which, if unpaid, might by law become a lien or
charge upon the property of the Issuers or any Significant
Subsidiary and (iii) all stamps and other duties, if any,
which may be imposed by the United States or any political
subdivision thereof or therein in connection with the
issuance, transfer, exchange or conversion of any Notes or
with respect to this Indenture; provided, however, that, in
the case of clauses (i) and (ii), the Issuers shall not be
required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (A) if
the failure to do so will not, in the aggregate, have a
material adverse impact on the Issuers, or (B) if the
amount, applicability or validity is being contested in good
faith by appropriate proceedings.
Section 4.10. Liquidated Damages Notice. In the event that
the Issuers are required to pay Liquidated Damages to
holders of Notes pursuant to the Registration Rights
Agreement, the Issuers will provide written notice
("Liquidated Damages Notice") to the Trustee of their
obligation to pay Liquidated Damages no later than fifteen
days prior to the proposed payment date for the Liquidated
Damages, and the Liquidated Damages Notice shall set forth
the amount of Liquidated Damages to be paid by the Issuers
on such payment date. The Trustee shall not at any time be
under any duty or owe a responsibility to any holder of
Notes to determine the Liquidated Damages, or with respect
to the nature, extent or calculation of the amount of
Liquidated Damages when made, or with respect to the method
employed in such calculation of the Liquidated Damages.
ARTICLE 5
Successor Corporation
Section 5.01. When Issuers May Merge or Transfer Assets.
Each Issuer shall not consolidate with, merge with or into
any other person or convey, transfer or lease all or
substantially all of its properties and assets to any
Person, unless:
(a) either (1) such Issuer shall be the continuing
corporation or (2) the person (if other than such Issuer)
formed by such consolidation or into which such Issuer is
merged or the person which acquires by conveyance, transfer
or lease all or substantially all of the properties and
assets of such Issuer (i) shall be organized and validly
existing under the laws of the United States or any State
thereof or the District of Columbia and (ii) shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of such Issuer under the
Notes and this Indenture;
(b) at the time of such transaction, no Event of
Default and no event which, after notice or lapse of time,
would become an Event of Default, shall have happened and be
continuing; and
(c) such Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture, comply with this Article 5 and that
all conditions precedent herein provided for relating to
such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets
of one or more Subsidiaries (other than to such Issuer or
another Subsidiary), which, if such assets were owned by
such Issuer, would constitute all or substantially all of
the properties and assets of such Issuer, shall be deemed to
be the transfer of all or substantially all of the
properties and assets of such Issuer.
The successor person formed by such consolidation or into
which an Issuer is merged or the successor person to which
such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and
power of, such Issuer under this Indenture with the same
effect as if such successor had been named as such Issuer
herein; and thereafter, except in the case of a lease and
obligations an Issuer may have under a supplemental
indenture pursuant to Section 10.11, such Issuer shall be
discharged from all obligations and covenants under this
Indenture and the Notes. Subject to Section 9.06, such
Issuer, the Trustee and the successor person shall enter
into a supplemental indenture to evidence the succession and
substitution of such successor person and such discharge and
release of such Issuer.
ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default. An "Event of Default"
occurs if:
(a) the Issuers fail to pay when due the principal of
or premium, if any, on any of the Notes at maturity, upon
redemption or exercise of a repurchase right or otherwise;
(b) the Issuers fail to pay an installment of interest
(including Liquidated Damages, if any) on any of the Notes
that continues for 30 days after the date when due; provided
that a failure to make any of the first six scheduled
interest payments on the Notes on the applicable Interest
Payment Date shall constitute an Event of Default with no
grace or cure period;
(c) the Issuers fail to deliver shares of Common
Stock, together with cash in lieu of fractional shares, when
such Common Stock or cash in lieu of fractional shares is
required to be delivered upon conversion of a Note and such
failure continues for 10 days after such delivery date;
(d) the Issuers fail to give notice regarding a Change
of Control within the time period specified in Section
3.08(c);
(e) the Issuers fail to perform or observe any other
term, covenant or agreement contained in the Notes or this
Indenture for a period of 60 days after receipt by the
Issuers of a Notice of Default (as defined below);
(f) (i) the Issuers or any Significant Subsidiary
fails to make any payment by the end of the applicable grace
period, if any, after the final scheduled payment date for
such payment with respect to any indebtedness for borrowed
money in an aggregate amount in excess of $10 million or
(ii) indebtedness for borrowed money of the Issuers or any
Significant Subsidiary in an aggregate amount in excess of
$10 million shall have been accelerated or otherwise
declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required
prepayment) prior to the scheduled maturity thereof as a
result of a default with respect to such indebtedness, in
either case without such indebtedness referred to in
subclause (i) or (ii) of this clause (f) having been
discharged, cured, waived, rescinded or annulled, for a
period of 30 days after receipt by the Issuers of a Notice
of Default;
(g) an Issuer, or any Significant Subsidiary, or any
Subsidiaries of an Issuer which in the aggregate would
constitute a Significant Subsidiary pursuant to or under or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding or the
commencement of any case against it;
(iii) consents to the appointment of a Custodian of
it or for any substantial part of its property;
(iv) makes a general assignment for the benefit of
its creditors;
(v) files a petition in bankruptcy or answer or
consent seeking reorganization or relief; or
(vi) consents to the filing of such a petition or
the appointment of or taking possession by a Custodian;
(h) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against an Issuer or any Significant
Subsidiary or any Subsidiaries of an Issuer which in the
aggregate would constitute a Significant Subsidiary in an
involuntary case or proceeding, or adjudicates an Issuer or
any Significant Subsidiary or any Subsidiaries of an Issuer
which in the aggregate would constitute a Significant
Subsidiary insolvent or bankrupt;
(ii) appoints a Custodian of an Issuer or any
Significant Subsidiary or any Subsidiaries of an Issuer
which in the aggregate would constitute a Significant
Subsidiary or for any substantial part of its or their
properties; or
(iii) orders the winding up or liquidation of an
Issuer or any Significant Subsidiary or any Subsidiaries of
an Issuer which in the aggregate would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect
for 60 days; and
(i) the Pledge Agreement shall cease to be in full
force and effect or enforceable other than in accordance
with its terms.
For purposes of Sections 6.01(g) and 6.01(h) above:
"Bankruptcy Law" means Title 11, United
States Code, or any similar federal or state law for the
relief of debtors.
"Custodian" means any receiver, trustee,
assignee, liquidator, custodian or similar official under
any Bankruptcy Law.
A Default under clause (e) or (f) above is not an Event of
Default until the Trustee notifies the Issuers, or the
Holders of at least 25% in aggregate principal amount of the
Notes at the time outstanding notify the Issuers and the
Trustee, of the Default and the Issuers do not cure such
Default (and such Default is not waived) within the time
specified in clause (e) or (f) above after actual receipt of
such notice. Any such notice must specify the Default,
demand that it be remedied and state that such notice is a
"Notice of Default."
The Issuers shall deliver to the Trustee, within five
Business Days of becoming aware of the occurrence of an
Event of Default, written notice thereof. In addition, the
Issuers shall deliver to the Trustee, within 30 days after
they become aware of the occurrence thereof, written notice
of any event which with the lapse of time would become an
Event of Default under clause (e) above, its status and what
action the Issuers are taking or proposes to take with
respect thereto.
Section 6.02. Acceleration. If an Event of Default (other
than an Event of Default specified in Section 6.01(g) or
(h)) occurs and is continuing, the Trustee by notice to the
Issuers, or the Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding by
notice to the Issuers and the Trustee, may declare the Notes
due and payable at their principal amount together with
accrued interest (including Liquidated Damages, if any).
Upon a declaration of acceleration, such principal and
accrued and unpaid interest to the date of payment shall be
immediately due and payable. If an Event of Default is
cured prior to any such declaration by the Trustee or the
Holders, the Trustee and the Holders shall not be entitled
to declare the Notes due and payable as provided herein as a
result of such cured Event of Default and any such cured
Event of Default shall be deemed waived by the Holders and
the Trustee.
If an Event of Default specified in Section 6.01(g) or (h)
above occurs and is continuing, then the principal and the
accrued interest (including Liquidated Damages, if any) on
all the Notes shall become and be immediately due and
payable without any declaration or other act on the part of
the Trustee or any Noteholders.
The Holders of a majority in aggregate principal amount of
the Notes at the time outstanding, by notice to the Trustee
(and without notice to any other Noteholder) may rescind or
annul an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except
nonpayment of the principal and any accrued cash interest
(including Liquidated Damages, if any) that have become due
solely as a result of acceleration and if all amounts due to
the Trustee under Section 7.06 have been paid. No such
rescission shall affect any subsequent Default or impair any
right consequent thereto.
Section 6.03. Other Remedies. If an Event of Default
occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of the principal,
the premium, if any, and any accrued cash interest
(including Liquidated Damages, if any) on the Notes or to
enforce the performance of any provision of the Notes or
this Indenture.
The Trustee may maintain a proceeding even if the Trustee
does not possess any of the Notes or produce any of the
Notes in the proceeding. A delay or omission by the Trustee
or any Noteholder 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. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Notes at the
time outstanding, by notice to the Trustee (and without
notice to any other Noteholder), may waive an existing Event
of Default and its consequences except (1) an Event of
Default described in Section 6.01(a) or (b), (2) an Event of
Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Noteholder
affected or (3) an Event of Default which constitutes a
failure to convert any Note in accordance with the terms of
Article 11. When an Event of Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or
other Event of Default or impair any consequent right.
Section 6.05. Control by Majority. The Holders of a
majority in aggregate principal amount of the Notes at the
time outstanding may direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is prejudicial to the
rights of other Noteholders or would involve the Trustee in
personal liability unless the Trustee is offered indemnity
satisfactory to it against loss, liability or expense.
Section 6.06. Limitation on Suits. A Noteholder may not
pursue any remedy with respect to this Indenture or the
Notes unless:
(1) the Holder gives to the Trustee written
notice stating that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
reasonable security or 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 such notice, request and
offer of security or indemnity; and
(5) the Holders of a majority in aggregate
principal amount of the Notes at the time outstanding do not
give the Trustee a direction inconsistent with the request
during such 60-day period.
A Noteholder may not use this Indenture to prejudice the
rights of any other Noteholder or to obtain a preference or
priority over any other Noteholder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of the principal
amount, premium, if any, plus Redemption Price, Change of
Control Repurchase Price or any accrued cash interest
(including Liquidated Damages, if any) in respect of the
Notes held by such Holder, on or after the respective due
dates expressed in the Notes or any Redemption Date, and to
convert the Notes in accordance with Article 10, or to bring
suit for the enforcement of any such payment on or after
such respective dates or the right to convert, shall not be
impaired or affected adversely without the consent of such
Holder.
Section 6.08. Collection Suit by Trustee. If an Event of
Default described in Section 6.01(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Issuers for
the whole amount owing with respect to the Notes and the
amounts provided for in Section 7.06.
Section 6.09. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to an
Issuer or any other obligor upon the Notes or the property
of an Issuer or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal amount,
Redemption Price, Change of Control Repurchase Price or any
accrued cash interest in respect of the Notes shall then be
due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have
made any demand on the Issuers for the payment of any such
amount) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
the principal amount, Redemption Price, Change of Control
Repurchase Price or any accrued cash interest and to file
such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel or any other amounts due the Trustee
under Section 7.06) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or similar official in any such
judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments
directly to the Holders, to pay the Trustee any amount due
it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.06.
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 Notes
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 6, it shall pay out the money
in the following order:
(1) to the Trustee for amounts due under Section
7.06;
(2) to Noteholders for amounts due and unpaid on
the Notes for the principal amount, Redemption Price, Change
of Control Purchase Price or any accrued cash interest
(including Liquidated Damages, if any) as the case may be,
ratably, without preference or priority of any kind,
according to such amounts due and payable on the Notes; and
(3) the balance, if any, to the Issuers.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10. At
least 15 days before such record date, the Trustee shall
mail to each Noteholder and the Issuers a notice that states
the record date, the payment date and the amount to be paid.
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 (other than the
Trustee) in the suit of an undertaking to pay the costs of
the suit in the manner and to the extent provided in the
TIA, 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 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Notes at the time outstanding.
Section 6.12. Waiver of Stay, Extension or Usury Laws.
Each Issuer covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive such Issuer from
paying all or any portion of the principal amount,
Redemption Price, Change of Control Repurchase Price or any
accrued cash interest (including Liquidated Damages, if any)
in respect of Notes, or any interest on such amounts, as
contemplated herein, or which may affect the covenants or
the performance of this Indenture; and each Issuer (to the
extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that
it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such
law had been enacted.
ARTICLE 7
Trustee
Section 7.01. Duties and Responsibilities of the Trustee;
During Default; Prior to Default. The Trustee, prior to the
occurrence of an Event of Default hereunder and after the
curing or waiving of all such Events of Default which may
have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture.
In case an Event of Default hereunder has occurred (which
has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct,
except that
(a) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all such Events
of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders pursuant to
Section 6.05 relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers.
Section 7.02. Certain Rights of the Trustee. Subject to
Section 7.01:
(a) the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, Note or other
paper or document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Issuers mentioned herein shall be sufficiently evidenced by
an Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the secretary or an
assistant secretary of the applicable Issuer;
(c) the Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Indenture with the request, order or direction of any of the
Noteholders pursuant to the provisions of this Indenture,
unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all such Events
of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing to do so by
the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding; provided
that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be
paid by the Issuers or, if paid by the Trustee or any
predecessor trustee, shall be repaid by the Issuers upon
demand;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys not regularly
in its employ and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Responsible Officer
of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default
is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and
this Indenture; and
(i) 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. Trustee Not Responsible for Recitals,
Dispositions of Notes or Application of Proceeds Thereof.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as
the statements of the Issuers, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of
this Indenture or of the Notes. The Trustee shall not be
accountable for the use or application by the Issuers of any
of the Notes or of the proceeds thereof.
Section 7.04. Trustee and Agents May Hold Notes;
Collections, etc. The Trustee or any agent of the Issuers
or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes with the same rights it
would have if it were not the Trustee or such agent and,
subject to Sections 7.08 and 7.13, if operative, may
otherwise deal with the Issuers and receive, collect, hold
and retain collections from the Issuers with the same rights
it would have if it were not the Trustee or such agent.
Section 7.05. Moneys Held by Trustee. Subject to the
provisions of Section 8.04 hereof, all moneys received by
the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were
received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law.
Neither the Trustee nor any agent of the Issuers or the
Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 7.06. Compensation and Indemnification of Trustee
and its Prior Claim. Each Issuer, jointly and severally,
covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such
compensation (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust) to be agreed to in writing by the Trustee and the
Issuers, and each Issuer, jointly and severally, covenants
and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all expenses,
disbursements and advances incurred or made by or on behalf
of it in accordance with any of the provisions of this
Indenture (including (i) the reasonable compensation and the
expenses and disbursements of its counsel and of all agents
and other persons not regularly in its employ and (ii)
interest at the prime rate on any disbursements and advances
made by the Trustee and not paid by the Issuers within 5
days after receipt of an invoice for such disbursement or
advance) except any such expense, disbursement or advance as
shall be determined by a court of competent jurisdiction to
have been caused by its own negligence or bad faith. Each
Issuer, jointly and severally, also covenants to fully
indemnify each of the Trustee, each predecessor Trustee, any
Authenticating Agent and any officer, director, employee or
agent of the Trustee, each such predecessor Trustee or any
such Authenticating Agent for, and to hold it harmless
against, any and all loss, liability, claim, damage or
expense (including legal fees and expenses) incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder,
including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. The
obligations of the Issuers under this Section 7.06 to
compensate and indemnify the Trustee, each predecessor
Trustee, any Authenticating Agent and any officer, director,
employee or agent of the Trustee, each such predecessor
Trustee or any such Authenticating Agent and to pay or
reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of
the Notes upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Notes, and the Notes
are hereby effectively subordinated to such senior claim to
such extent. The provisions of this Section 7.06 shall
survive the termination of this Indenture and the
resignation or removal of the Trustee.
Section 7.07. Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 7.01 and 7.02,
whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter
(unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence
or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate,
in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.08. Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of
the TIA, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and
subject to the provisions of, the TIA.
Section 7.09. Persons Eligible for Appointment as Trustee.
The Trustee shall at all times be a corporation or banking
association having a combined capital and surplus of at
least $50,000,000. If such corporation or banking
association publishes reports of condition at least
annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the
purposes of this Section 7.09, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.09, the Trustee shall resign
immediately in the manner and with the effect specified in
Section 7.10.
Section 7.10. Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or
trustees hereafter appointed, may at any time resign with
respect to one or more or all series of Notes by giving
written notice of resignation to the Issuers and by mailing
notice thereof by first class mail to the Holders of Notes
at their last addresses as they shall appear on the Note
Register. Upon receiving such notice of resignation, the
Issuers shall promptly appoint a successor trustee or
trustees by written instrument in duplicate, executed by
authority of the Board of Directors of each Issuer, one copy
of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee or trustees.
If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning trustee may
petition, at the expense of the Issuers, any court of
competent jurisdiction for the appointment of a successor
trustee, or any Noteholder who has been a bona fide Holder
of a Note for at least six months may, subject to the
provisions of Section 7.11, on behalf of himself and all
others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall
occur:
(i) the Trustee shall fail to comply with the
provisions of Section 7.08 with respect to any Notes after
written request therefor by the Issuers or by any Noteholder
who has been a bona fide Holder of a Note for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall
fail to resign after written request therefor by the Issuers
or by any Noteholder; or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent, or a receiver
or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation; or
(iv) the Issuers shall determine that the Trustee
has failed to perform its obligations under this Indenture
in any material respect;
then, in any such case, the Issuers may remove the
Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of
Directors of each Issuer, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section
7.11, any Noteholder who has been a bona fide Holder of a
Note for at least six months may on behalf of himself and
all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor
trustee. If no successor trustee shall have been appointed
and have accepted appointment within 30 days after a notice
of removal has been given, the removed trustee may petition
a court of competent jurisdiction for the appointment of a
successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may at any time
remove the Trustee and appoint a successor trustee by
delivering to the Trustee so removed, to the successor
trustee so appointed and to the Issuers the evidence
provided for in Section 1.05 of the action in that regard
taken by the Noteholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the
provisions of this Section 7.10 shall become effective upon
acceptance of appointment by the successor trustee as
provided in Section 7.11.
Section 7.11. Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in
Section 7.10 shall execute and deliver to the Issuers and to
the predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or
removal of the predecessor trustee shall become effective
and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers,
duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee hereunder;
but, nevertheless, on the written request of the Issuers or
of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall pay over to the
successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights,
powers, duties and obligations. Upon request of any such
successor trustee, the Issuers shall execute any and all
instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless,
retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in
this Section 7.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section
7.09.
Upon acceptance of appointment by any successor trustee as
provided in this Section 7.11, the Issuers shall mail notice
thereof by first class mail to the Holders of Notes at their
last addresses as they shall appear in the Note Register. If
the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called
for by the preceding sentence may be combined with the
notice called for by Section 7.10. If the Issuers fail to
mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the
Issuers.
Section 7.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation or
banking association into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation or banking association resulting from any
merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate
trust business of the Trustee, shall be the successor of the
Trustee hereunder; provided that such corporation or banking
association shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any
further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case at
the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have
been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of
any predecessor Trustee or Authenticating Agent and deliver
such Notes so authenticated; and, in case at that time any
of the Notes shall not have been authenticated, any
successor to the Trustee or any Authenticating Agent
appointed by such successor Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases
such certificate shall have the full force and effect that
this Indenture provides for the certificate of
authentication of the Trustee; provided that the right to
adopt the certificate of authentication of any predecessor
Trustee or to authenticate Notes in the name of any
predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
Section 7.13. Preferential Collection of Claims Against the
Issuers. If and when the Trustee shall be or become a
creditor of an Issuer (or any other obligor upon the Notes),
the Trustee shall be subject to the provisions of the TIA
regarding the collection of the claims against such Issuer
(or any such other obligor).
Section 7.14. Reports by the Trustee. (a) Within sixty
(60) days after May 15 of each year commencing with the year
2002, the Trustee shall transmit to Holders and other
persons such reports dated as of May 15 of the year in which
such reports are made concerning the Trustee and its actions
under this Indenture as may be required pursuant to the TIA.
(b) A copy of each such report shall, at the time of
such transmission to Noteholders, be furnished to the
Issuers and be filed by the Trustee with each stock exchange
upon which the Notes are listed and also with the SEC. The
Issuers agree to notify the Trustee when and as the Notes
become admitted to trading on any national securities
exchange or become delisted therefrom.
Section 7.15. Trustee to Give Notice of Default, but May
Withhold in Certain Circumstances. The Trustee shall
transmit to the Noteholders, as the names and addresses of
such Holders appear on the Note Register, notice by mail of
all Defaults which have occurred, such notice to be
transmitted within 90 days after the occurrence thereof,
unless such defaults shall have been cured before the giving
of such notice; provided that, except in the case of Default
in the payment of the principal of, premium, if any, or
interest (including Liquidated Damages, if any) on any of
the Notes when due or in the payment of any redemption or
repurchase obligation, the Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of
such notice is in the best interests of the Noteholders.
ARTICLE 8
Discharge of Indenture
Section 8.01. Discharge of Indenture. When the Issuers
shall deliver to the Trustee for cancellation all Notes
theretofore authenticated (other than any Notes that have
been destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled
and if the Issuers shall also pay or cause to be paid all
other sums payable hereunder by the Issuers, then this
Indenture shall cease to be of further effect, and the
Trustee, on written demand of the Issuers accompanied by an
Officers' Certificate and an Opinion of Counsel as required
by Section 12.04 and at the cost and expense of the Issuers,
shall execute proper instruments acknowledging satisfaction
of and discharging this Indenture; the Issuers, however,
hereby agree to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the
Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee
in connection with this Indenture or the Notes.
Section 8.02. [Intentionally Omitted].
Section 8.03. Paying Agent to Repay Monies Held. Upon the
discharge of this Indenture, all monies then held by any
Paying Agent of the Notes (other than the Trustee) shall,
upon written request of the Issuers, be repaid to it or paid
to the Trustee, and thereupon such Paying Agent shall be
released from all further liability with respect to such
monies.
Section 8.04. Return of Unclaimed Monies. Subject to the
requirements of applicable law, any monies deposited with or
paid to the Trustee or the Paying Agent for payment of the
principal of, premium, if any, or interest on Notes and not
applied but remaining unclaimed by the holders of Notes for
two years after the date upon which the principal of,
premium, if any, or interest on such Notes, as the case may
be, shall have become due and payable, shall be repaid to
the Issuers by the Trustee or the Paying Agent on written
demand and all liability of the Trustee or the Paying Agent
shall thereupon cease with respect to such monies; and the
holder of any of the Notes shall thereafter look only to the
Issuers for any payment that such holder may be entitled to
collect unless an applicable abandoned property law
designates another Person.
ARTICLE 9
Supplemental Indentures
Section 9.01. Without Consent of Holders. The Issuers and
the Trustee may, from time to time and at any time, enter
into an indenture or indentures supplemental hereto without
the consent of any Noteholder for one or more of the
following purposes:
(a) adding to the Issuers' covenants for the benefit
of the Holders;
(b) surrendering any right or power conferred upon the
Issuers;
(c) providing for the assumption of the Issuers'
obligations to the Holders in the case of a merger,
consolidation, conveyance, transfer or lease in accordance
with Article 5;
(d) reducing the Conversion Price; provided that the
reduction will not adversely affect the interests of Holders
in any material respect;
(e) complying with the requirements of the SEC in
order to effect or maintain the qualification of this
Indenture under the TIA;
(f) making any changes or modifications to this
Indenture necessary in connection with the registration of
the Notes under the Securities Act as contemplated by the
Registration Rights Agreement; provided that this action
does not adversely affect the interests of the Holders in
any material respect;
(g) curing any ambiguity or correcting or
supplementing any defective provision contained in this
Indenture; provided that such modification or amendment does
not adversely affect the interests of the Holders in any
material respect; or
(h) adding or modifying any other provisions which the
Issuers and the Trustee may deem necessary or desirable and
which will not adversely affect the interests of the Holders
in any material respect.
Notwithstanding any other provision of the Indenture or the
Notes, the Registration Rights Agreement and the obligation
to pay Liquidated Damages thereunder may be amended,
modified or waived in accordance with the provisions of the
Registration Rights Agreement.
Section 9.02. With Consent of Holders. With the written
consent of the Holders of at least a majority in aggregate
principal amount of the Notes at the time outstanding, the
Issuers and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or change
in any manner or eliminating any of the provisions of this
Indenture or any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes. However,
without the consent of each Noteholder so affected, a
supplemental indenture may not:
(a) change the maturity of the principal of or any
installment of interest on any Note (including any payment
of Liquidated Damages);
(b) reduce the principal amount of, or any premium or
interest on (including any payment of Liquidated Damages),
any Note;
(c) change the currency of payment of such Note or
interest thereon;
(d) impair the right to institute suit for the
enforcement of any payment on or with respect to any Note;
(e) modify the Issuers' obligations to maintain an
office or agency in New York City;
(f) except as otherwise permitted or contemplated by
provisions concerning corporate reorganizations, adversely
affect the repurchase option of Holders upon a Change of
Control or the conversion rights of Holders;
(g) modify Article 11 in a manner that adversely
affects the interest of the Holders in any material respect;
or
(h) reduce the percentage in aggregate principal
amount of Notes outstanding necessary to modify or amend
this Indenture or to waive any past default.
It shall not be necessary for the consent of the Holders
under this Section 9.02 to approve the particular form of
any proposed supplemental indenture, but it shall be
sufficient if such consent approves the substance thereof.
After a supplemental indenture under this Section 9.02
becomes effective, the Issuers shall mail to each Holder a
notice briefly describing the supplemental indenture.
Section 9.03. Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article
shall comply with the TIA; provided that this Section 9.03
shall not require such supplemental indenture or the Trustee
to be qualified under the TIA prior to the time such
qualification is in fact required under the terms of the TIA
or the Indenture has been qualified under the TIA, nor shall
it constitute any admission or acknowledgment by any party
to such supplemental indenture that any such qualification
is required prior to the time such qualification is in fact
required under the terms of the TIA or the Indenture has
been qualified under the TIA.
Section 9.04. Revocation and Effect of Consents, Waivers
and Actions. Until a supplemental indenture, waiver or
other action by Holders becomes effective, a consent thereto
by a Holder of a Note hereunder is a continuing consent by
the Holder and every subsequent Holder of that Note or
portion of the Note that evidences the same obligation as
the consenting Holder's Note, even if notation of the
consent, waiver or action is not made on the Note. However,
any such Holder or subsequent Holder may revoke the consent,
waiver or action as to such Holder's Note or portion of the
Note if the Trustee receives the notice of revocation before
the date the supplemental indenture, waiver or action
becomes effective. After a supplemental indenture, waiver or
action becomes effective, it shall bind every Noteholder.
Section 9.05. Notation on or Exchange of Notes. Notes
authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuers shall so
determine, new Notes so modified as to conform, in the
opinion of the Trustee and the Board of Directors of each
Issuer, to any such supplemental indenture may be prepared
and executed by the Issuers and authenticated and delivered
by the Trustee or an Authenticating Agent in exchange for
outstanding Notes.
Section 9.06. Trustee to Sign Supplemental Indentures.
The Trustee shall sign any supplemental indenture authorized
pursuant to this Article 9 if the amendment contained
therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture.
In signing such supplemental indenture the Trustee shall be
entitled to receive, and (subject to the provisions of
Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
Section 9.07. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Notes
theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
ARTICLE 10
Conversion
Section 10.01. Conversion Right and Conversion Price.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Note or
any portion of the principal amount thereof which is $1,000
or an integral multiple of $1,000 may be converted at the
principal amount thereof, or of such portion thereof, into
duly authorized, fully paid and nonassessable shares of, at
the option of the Holder, Class A Common Stock or Class B
Common Stock, at the Conversion Price, determined as
hereinafter provided, in effect at the time of conversion.
Such conversion right shall expire at the close of business
on the final maturity date of the Notes.
In case a Note or portion thereof is called for redemption,
such conversion right in respect of the Note or the portion
so called, shall expire at the close of business on the
Business Day preceding the Redemption Date, unless the
Issuers default in making the payment due upon redemption.
In the case of a Change of Control for which the Holder
exercises its repurchase right with respect to a Note or
portion thereof, such conversion right in respect of the
Note or portion thereof shall expire at the close of
business on the Business Day immediately preceding the
Change of Control Repurchase Date.
The price at which shares of Common Stock shall be delivered
upon conversion (the "Conversion Price") shall be initially
equal to $14.30 per share of Common Stock. The Conversion
Price shall be adjusted in certain instances as provided in
paragraphs (a), (b), (c), (d), (e), (f), (h) and (i) of
Section 10.04 hereof.
Section 10.02. Exercise of Conversion Right. To exercise
the conversion right, the Holder of any Note to be converted
shall surrender such Note duly endorsed or assigned to the
Issuers or in blank, at the office of any Conversion Agent,
accompanied by a duly signed conversion notice substantially
in the form attached to the Note to the Issuers stating that
the Holder elects to convert such Note or, if less than the
entire principal amount thereof is to be converted, the
portion thereof to be converted.
Notes surrendered for conversion during the period from the
close of business on any Regular Record Date to the opening
of business on the next succeeding Interest Payment Date
shall be accompanied by payment in New York Clearing House
funds or other funds acceptable to the Issuers of an amount
equal to the interest to be received on such Interest
Payment Date on the principal amount of Notes being
surrendered for conversion; provided, however, that if such
Notes have been called for redemption on a Redemption Date
that occurs after a Regular Record Date and on or prior to
the third Business Day after the Interest Payment Date to
which it relates, no such payment shall be required.
Notes shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of
such Notes for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of
such Notes as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record
holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, the
Issuers shall cause to be issued and delivered to such
Conversion Agent a certificate or certificates for the
number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of
a share as provided in Section 10.03 hereof.
In the case of any Note which is converted in part only,
upon such conversion the Issuers shall execute and the
Trustee or an Authenticating Agent shall authenticate and
deliver to the Holder thereof, at the expense of the
Issuers, a new Note or Notes of authorized denominations in
aggregate principal amount equal to the unconverted portion
of the principal amount of such Notes.
If shares of Common Stock to be issued upon conversion of a
Note that is a Restricted Security (a "Restricted Note"), or
securities to be issued upon conversion of a Restricted Note
in part only, are to be registered in a name other than that
of the Holder of such Restricted Note, such Holder must
deliver to the Conversion Agent a certificate in
substantially the form of Exhibit B-1 hereto, dated the date
of surrender of such Restricted Note and signed by such
Holder, as to compliance with the restrictions on transfer
applicable to such Restricted Note. Neither the Trustee nor
any Conversion Agent, Note Registrar or transfer agent shall
be required to register in a name other than that of the
Holder of Notes or shares of Common Stock issued upon
conversion of any such Restricted Note not so accompanied by
a properly completed certificate.
Section 10.03. Fractions of Shares. No fractional shares
of Common Stock shall be issued upon conversion of any Note
or Notes. If more than one Note shall be surrendered for
conversion at one time by the same Holder, the number of
full shares which shall be issued upon conversion thereof
shall be computed on the basis of the aggregate principal
amount of the Notes (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock
which would otherwise be issued upon conversion of any Note
or Notes (or specified portions thereof), the Issuers shall
pay a cash adjustment in respect of such fraction
(calculated to the nearest one-100th of a share) in an
amount equal to the same fraction of the quoted price of the
Common Stock as of the Trading Day preceding the date of
conversion.
Section 10.04. Adjustment of Conversion Price. The
Conversion Price shall be subject to adjustments, calculated
by the Issuers, from time to time 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 date fixed for the determination of stockholders
entitled to receive such dividend or other distribution
shall be reduced by multiplying such Conversion Price by a
fraction:
(1) the numerator of which shall be the number of
shares of Common Stock outstanding at the close of business
on the Record Date (as defined in Section 10.04(g)) fixed
for such determination, and
(2) the denominator of which shall be the sum of
such number of shares and the total number of shares
constituting such dividend or other distribution.
Such reduction shall become effective immediately after the
opening of business on the day following the Record Date.
For the purpose of this paragraph (a), the number of shares
of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. The Company
will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company. If any
dividend or distribution of the type described in this
Section 10.04(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 outstanding shares of Common Stock shall be
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.
(c) In case the Company shall issue rights or warrants
to all holders of its outstanding shares of Common Stock
entitling them (for a period expiring within forty-five (45)
days after the date fixed for determination of stockholders
entitled to receive such rights or warrants) to subscribe
for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or
having a conversion price per share) less than the Current
Market Price (as defined in Section 10.04(g)) on the
Record Date fixed for the determination of stockholders
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 immediately prior to such Record Date by a fraction:
(1) the numerator of which 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 (or the aggregate
conversion price of the convertible securities so offered)
would purchase at such Current Market Price, and
(2) the denominator of which 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 (or into which the convertible
securities so offered are convertible).
Such adjustment shall become effective immediately
after the opening of business on the day following the
Record Date fixed for determination of stockholders entitled
to receive such rights or warrants. To the extent that
shares of Common Stock (or securities convertible into
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 which would then be in
effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of the delivery of
only the number of shares of Common Stock (or securities
convertible into 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 which would then be in effect if such
Record Date 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 and any amount payable on exercise or conversion
thereof, the value of such consideration if other than cash,
to be determined by the Board of Directors of the Company.
(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
10.04(a) applies) or evidences of its indebtedness, cash or
other assets, including securities, but excluding (1) any
rights or warrants referred to in Section 10.04(c), (2) any
stock, securities or other property or assets (including
cash) distributed in connection with a reclassification,
change, merger, consolidation, statutory share exchange,
combination, sale or conveyance to which Section 10.11
hereof applies and (3) dividends and distributions paid
exclusively in cash (the securities described in foregoing
clauses (1), (2) and (3) hereinafter in this Section
10.04(d) called the "excluded securities"), then, in each
such case (unless the Company elects to reserve such
securities for distribution to the Noteholders upon the
conversion of the Notes so that any such Holder converting
Notes 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 securities which such Holder would
have received if such Holder had converted its Notes into
Common Stock immediately prior to the Record Date), subject
to the second succeeding paragraph of this Section 10.04(d),
the Conversion Price shall be adjusted 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 (as defined in Section 10.04(g))
with respect to such distribution by a fraction:
(1) the numerator of which shall be the Current
Market Price (determined as provided in Section 10.04(g)) on
such Record Date less the fair market value (as determined
by the Board of Directors of the Company, whose
determination shall be conclusive and set forth in a Board
Resolution) on such Record Date of the portion of the
securities so distributed (other than excluded securities)
applicable to one share of Common Stock (determined on the
basis of the number of shares of the Common Stock
outstanding on the Record Date), and
(2) the denominator of which shall be such
Current Market Price.
Such reduction shall become effective immediately prior to
the opening of business on the day following the Record
Date. However, in the event that the then fair market value
(as so determined) of the portion of the securities so
distributed (other than excluded securities) applicable to
one share of Common Stock is equal to or greater than the
Current Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so
that each Holder shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of
securities so distributed (other than excluded securities)
such Holder would have received had such Holder converted
such Note (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.
If the Board of Directors of the Company determines the fair
market value of any distribution for purposes of this
Section 10.04(d) by reference to the actual or when issued
trading market for any securities comprising all or part of
such distribution (other than excluded securities), it must
in doing so consider the prices in such market over the same
period (the "Reference Period") used in computing the
Current Market Price pursuant to Section 10.04(g) to the
extent possible, unless the Board of Directors of the
Company in a Board Resolution determines in good faith that
determining the fair market value during the Reference
Period would not be in the best interest of the Holder.
Rights or warrants distributed by the Company to all holders
of Common Stock entitling the holders thereof to subscribe
for or purchase shares of the Company's Capital Stock
(either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares
of Common Stock;
(ii) are not exercisable; and
(iii) are also issued in respect of future
issuances of Common Stock,
shall be deemed not to have been distributed for
purposes of this Section 10.04(d) (and no adjustment to the
Conversion Price under this Section 10.04(d) will be
required) until the occurrence of the earliest Trigger
Event. If 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 10.04(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
warrant (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.
No adjustment of the Conversion Price shall be made pursuant
to this Section 10.04(d) in respect of rights or warrants
distributed or deemed distributed on any Trigger Event to
the extent that such rights or warrants are actually
distributed, or reserved by the Company for distribution to
holders of Notes upon conversion by such holders of Notes to
Common Stock.
For purposes of this Section 10.04(d) and Sections 10.04(a),
10.04(b) and 10.04(c), any dividend or distribution to which
this Section 10.04(d) is applicable that also includes
shares of Common Stock, a subdivision or combination of
Common Stock to which Section 10.04(b) applies, or rights or
warrants to subscribe for or purchase shares of Common Stock
to which Section 10.04(c) applies (or any combination
thereof), 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, such
subdivision or combination or such rights or warrants to
which Sections 10.04(a), 10.04(b) and 10.04(c) apply,
respectively (and any Conversion Price reduction required by
this Section 10.04(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, such subdivision or combination or such rights
or warrants (and any further Conversion Price reduction
required by Sections 10.04(a), 10.04(b) and 10.04(c) 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 (x) "the date fixed for
the determination of stockholders entitled to receive such
dividend or other distribution", "Record Date fixed for such
determinations" and "Record Date" within the meaning of
Section 10.04(a), (y) "the day upon which such subdivision
becomes effective" and "the day upon which such combination
becomes effective" within the meaning of Section 10.04(b),
and (z) as "the date fixed for the determination of
stockholders entitled to receive such rights or warrants",
"the Record Date fixed for the determination of the
stockholders entitled to receive such rights or warrants"
and such "Record Date" within the meaning of Section
10.04(c), and
(B) any shares of Common Stock included in
such dividend or distribution shall not be deemed
"outstanding at the close of business on the date fixed for
such determination" within the meaning of Section 10.04(a)
and any reduction or increase in the number of shares of
Common Stock resulting from such subdivision or combination
shall be disregarded in connection with such dividend or
distribution.
(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
reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance to which
Section 10.11 hereof applies or as part of a distribution
referred to in Section 10.04(d) hereof), in an aggregate
amount that, combined together with: (1) the aggregate
amount of any other such distributions to all holders of
Common Stock made exclusively in cash within the 12 months
preceding the date of payment of such distribution, and in
respect of which no adjustment pursuant to this Section
10.04(e) has been made, and (2) the aggregate of any cash
plus the fair market value (as determined by the Board of
Directors of the Company, whose determination shall be
conclusive and set forth in a Board Resolution) of other
consideration payable in respect of any tender offer by the
Company or any of its Subsidiaries for all or any portion of
the Common Stock concluded within the 12 months preceding
the date of such distribution, and in respect of which no
adjustment pursuant to Section 10.04(f) hereof has been
made, exceeds 5% of the product of the Current Market Price
(determined as provided in Section 10.04(g)) on the Record
Date with respect to such distribution times the number of
shares of Common Stock outstanding on such date, 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 excess of such combined amount
over such 5% 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.
However, in the event that the then fair market value
(as so determined) of the portion of the securities so
distributed (other than excluded securities) applicable to
one share of Common Stock is equal to or greater than the
Current Market Price on the Record Date, in lieu of the
foregoing adjustment, adequate provision shall be made so
that each Holder shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of
cash such Holder would have received had such Holder
converted such Note (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
of its Subsidiaries for all or any portion of the Common
Stock shall expire and such tender offer (as amended upon
the expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased
Shares (as defined below)) of an aggregate consideration
having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and set
forth in a Board Resolution) that combined together with:
(1) the aggregate of the cash plus the fair
market value (as determined by the Board of Directors of the
Company, whose determination shall be conclusive and set
forth in a Board Resolution), as of the expiration of such
tender offer, of other 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 12 months preceding the expiration of
such tender offer and in respect of which no adjustment
pursuant to this Section 10.04(f) has been made, and
(2) the aggregate amount of any distributions to
all holders of the Company's Common Stock made exclusively
in cash within 12 months preceding the expiration of such
tender offer and in respect of which no adjustment pursuant
to Section 10.04(e) has been made, exceeds 5% of the product
of the Current Market Price (determined as provided in
Section 10.04(g)) as of the last time (the "Expiration
Time") tenders could have been made pursuant to such tender
offer (as it may be amended) times the number of shares of
Common Stock outstanding (including any tendered shares) on
the Expiration Time, then, and in each such case,
immediately prior to the opening of business on the day
after the date of the Expiration Time, the Conversion Price
shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect
immediately prior to close of business on the date of the
Expiration Time by a fraction:
(i) the numerator of which shall be the
number of shares of Common Stock outstanding (including any
tendered shares) at the Expiration Time multiplied by the
Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time, and
(ii) the denominator of which shall be the
sum of (x) the fair market value (determined as aforesaid)
of the aggregate consideration payable to stockholders based
on the acceptance (up to any maximum specified in the terms
of the tender offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased
Shares) on the Expiration Time and the Current Market Price
of the Common Stock on the Trading Day next succeeding the
Expiration Time.
Such reduction (if any) shall become effective immediately
prior to the opening of business on the day following the
Expiration Time. In the event that the Company or any such
Subsidiary, as the case may be, is obligated to purchase
shares pursuant to any such tender offer, but the Company or
any such Subsidiary, as the case may be, 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 10.04(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 10.04(f).
(g) For purposes of this Section 10.04, the following terms
shall have the meanings indicated:
(1) "Current Market Price" shall mean the average
of the daily Closing Prices per share of Common Stock for
the ten consecutive Trading Days immediately prior to the
date in question; provided, however, that if:
(i) 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 10.04(a), (b), (c),
(d), (e) or (f) occurs during such ten consecutive Trading
Days, the Closing Price for each Trading Day prior to (ii)
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;
(ii) 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 10.04(a), (b), (c), (d), (e) or (f) occurs on or
after the "ex" date for the issuance or distribution
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; and
(iii) 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 (i) or (ii) 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 (as determined by the Board
of Directors of the Company in a manner consistent with any
determination of such value for purposes of Section 10.04(d)
or (f), whose determination shall be conclusive and set
forth in a Board Resolution) 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 Section 10.04(f),
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 Section 10.04(a), (b), (c),
(d), (e) or (f) occurs on or after the Expiration Time for
the tender 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 paragraph, the term "ex" date, when used:
(A) 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;
(B) 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
(C) with respect to any tender 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.
Notwithstanding the foregoing, whenever successive
adjustments to the Conversion Price are called for pursuant
to this Section 10.04, such adjustments shall be made to the
Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 10.04 and to avoid
unjust or inequitable results as determined in good faith by
the Board of Directors of the Company.
(2) "fair market value" shall mean the amount
which a willing buyer would pay a willing seller in an arm's
length transaction.
(3) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in
which the holders of Common Stock have the right to receive
any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for
or converted into any combination of cash, securities or
other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or
other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(h) The Issuers may make such reductions in the Conversion
Price, in addition to those required by Section 10.04(a),
(b), (c), (d), (e) or (f), as the Boards of Directors of the
Issuers consider 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 Issuers from
time to time may reduce the Conversion Price by any amount
for any period of time if the period is at least 20 days and
the reduction is irrevocable during the period and the Board
of Directors of each Issuer determines in good faith that
such reduction would be in the best interests of the
Issuers, which determination shall be conclusive and set
forth in a Board Resolution. Whenever the Conversion Price
is reduced pursuant to the preceding sentence, the Issuers
shall mail to the Trustee and each Holder at the address of
such Holder as it appears in the Note Register a notice of
the reduction at least 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 adjustments which by reason of this Section
10.04(i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Article 10 shall be made by the
Issuers 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) In any case in which this Section 10.04 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
Note 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
hereof.
(k) For purposes of this Section 10.04, 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 10.05. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided
(other than in the case of an adjustment pursuant to the
second paragraph of Section 10.04(h) for which the notice
required by such paragraph has been provided), the Issuers
shall promptly file with the Trustee and any Conversion
Agent other than the Trustee an Officers' Certificate
setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is
based. Promptly after delivery of such Officers'
Certificate, the Issuers shall prepare a notice stating that
the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price and the date on which each
adjustment becomes effective, and shall mail such notice to
each Holder at the address of such Holder as it appears in
the Note Register within 20 days of the effective date of
such adjustment. Failure to deliver such notice shall not
effect the legality or validity of any such adjustment.
Section 10.06. Notice Prior to Certain Actions. In case at
any time after the date hereof:
(1) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise
than in cash out of its capital surplus or its consolidated
retained earnings;
(2) the Company shall authorize the granting to
the holders of its Common Stock of rights or warrants to
subscribe for or purchase any shares of Capital Stock of any
class (or of securities convertible into shares of Capital
Stock of any class) or of any other rights;
(3) there shall occur any reclassification of the
Common Stock of the Company (other than a subdivision or
combination of its outstanding Common Stock, a change in par
value, a change from par value to no par value or a change
from no par value to par value), or any merger,
consolidation, statutory share exchange or combination to
which the Company is a party and for which approval of any
shareholders of the Company is required, or the sale,
transfer or conveyance of all or substantially all of the
assets of the Company; or
(4) there shall occur the voluntary or
involuntary dissolution, liquidation or winding up of the
Company;
the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Notes pursuant
to Section 4.03 hereof, and shall cause to be provided to
the Trustee and all Holders in accordance with Section 12.02
hereof, at least 20 days (or 10 days in any case specified
in clause (1) or (2) above) prior to the applicable record
or effective date hereinafter specified, a notice stating:
(A) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights
or warrants, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights or warrants
are to be determined, or
(B) the date on which such reclassification,
merger, consolidation, statutory share exchange,
combination, sale, transfer, conveyance, dissolution,
liquidation or winding up is expected to become effective,
and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, merger,
consolidation, statutory share exchange, sale, transfer,
dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect
therein shall affect the legality or validity of the
proceedings or actions described in clauses (1) through (4)
of this Section 10.06.
Section 10.07. Company to Reserve Common Stock. The
Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued
Common Stock, for the purpose of effecting the conversion of
Notes, the full number of shares of fully paid and
nonassessable Common Stock then issuable upon the conversion
of all Notes outstanding.
Section 10.08. Taxes on Conversions. Except as provided in
the next sentence, the Issuers will pay any and all taxes
(other than taxes on income) and duties that may be payable
in respect of the issue or delivery of shares of Common
Stock on conversion of Notes pursuant hereto. A Holder
delivering a Note for conversion shall be liable for and
will be required to pay any tax or duty which may be payable
in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that
of the Holder of the Note or Notes to be converted, and no
such issue or delivery shall be made unless the Person
requesting such issue has paid to the Issuers the amount of
any such tax or duty, or has established to the satisfaction
of the Issuers that such tax or duty has been paid.
Section 10.09. Covenant as to Common Stock. The Company
covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issue be fully
paid and nonassessable and, except as provided in Section
10.08, the Issuers will pay all taxes, liens and charges
with respect to the issue thereof.
Section 10.10. Cancellation of Converted Notes. All Notes
delivered for conversion shall be delivered to the Trustee
to be canceled by or at the direction of the Trustee, which
shall dispose of the same as provided in Section 2.11.
Section 10.11. Effect of Reclassification, Consolidation,
Merger or Sale. If any of following events occur, namely:
(1) 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),
(2) any merger, consolidation, statutory share
exchange 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
(3) any sale or conveyance of all or
substantially all the properties and assets of the Company
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,
the Company or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee and the Co-
Obligor a supplemental indenture (which shall comply with
the TIA as in force at the date of execution of such
supplemental indenture if such supplemental indenture is
then required to so comply) providing that such Note shall
be convertible into the kind and amount of shares of stock
and other securities or property or assets (including cash)
which such Holder would have been entitled to receive upon
such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance
had such Notes been converted into Common Stock immediately
prior to such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale
or conveyance assuming such holder of Common Stock did not
exercise its rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon
such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance
(provided that, if the kind or amount of securities, cash or
other property receivable upon such reclassification,
change, merger, consolidation, statutory share exchange,
combination, sale or conveyance is not the same for each
share of Common Stock in respect of which such rights of
election shall not have been exercised ("Non-Electing
Share"), then for the purposes of this Section 10.11 the
kind and amount of securities, cash or other property
receivable upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale
or conveyance for each Non-Electing Share shall be deemed to
be the kind and amount so receivable per share by a
plurality of the Non-Electing Shares). Such supplemental
indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments
provided for in this Article 10. If, in the case of any such
reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance, the stock
or other securities and assets receivable thereupon by a
holder of shares of Common Stock includes shares of stock or
other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in
such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance,
then such supplemental indenture shall also be executed by
such other corporation and shall contain such additional
provisions to protect the interests of the Holders of the
Notes as the Boards of Directors of the Issuers shall
reasonably consider necessary by reason of the foregoing,
including to the extent practicable the provisions providing
for the repurchase rights set forth in Section 3.08 hereof.
The Issuers shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at the
address of such Holder as it appears on the Note Register,
within 20 days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of
such supplemental indenture.
The above provisions of this Section 10.11 shall similarly
apply to successive reclassifications, mergers,
consolidations, statutory share exchanges, combinations,
sales and conveyances.
If this Section 10.11 applies to any event or occurrence,
Section 10.04 hereof shall not apply.
Section 10.12. Responsibility of Trustee for Conversion
Provisions. The Trustee, subject to the provisions of
Section 7.01 hereof, and any Conversion Agent shall not at
any time be under any duty or responsibility to any Holder
of Notes to determine whether any facts exist which may
require any adjustment of the Conversion Price, or with
respect to the nature or intent of any such adjustments when
made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in
making the same. Neither the Trustee, subject to the
provisions of Section 7.01 hereof, nor any Conversion Agent
shall be accountable with respect to the validity or value
(of the kind or amount) of any Common Stock, or of any other
securities or property, which may at any time be issued or
delivered upon the conversion of any Note; and it or they do
not make any representation with respect thereto. Neither
the Trustee, subject to the provisions of Section 7.01
hereof, nor any Conversion Agent shall be responsible for
any failure of the Issuers to make any cash payment or to
issue, transfer or deliver any shares of stock or share
certificates or other securities or property upon the
surrender of any Note for the purpose of conversion; and the
Trustee, subject to the provisions of Section 7.01 hereof,
and any Conversion Agent shall not be responsible or liable
for any failure of the Issuers to comply with any of the
covenants of the Issuers contained in this Article.
ARTICLE 11
Security
Section 11.01. Security. (a) At the Closing Time, the
Co-Obligor shall (i) enter into the Pledge Agreement and
comply with the terms and provisions thereof and (ii)
purchase the Initial Pledged Securities to be pledged to the
Collateral Agent for the benefit of the Trustee and the
ratable benefit of the Holders in such amount as will be
sufficient upon receipt of scheduled interest and principal
payments of such Initial Pledged Securities, in the opinion
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public accountants, or
another nationally recognized firm of independent public
accountants selected by the Co-Obligor, to provide for
payment in full of the first six scheduled interest payments
due on the Notes. The Initial Pledged Securities shall be
pledged by the Co-Obligor to the Collateral Agent for the
benefit of the Trustee and the ratable benefit of the
Holders and shall be held by the Collateral Agent in the
Collateral Account pending disposition pursuant to the
Pledge Agreement.
(b) On each relevant Date of Delivery (if such Date of
Delivery is different from the Closing Time), the Co-Obligor
shall (i) enter into a Supplement to the Pledge Agreement
and comply with the terms and provisions thereof and (ii)
purchase the Additional Pledged Securities to be pledged to
the Collateral Agent for the benefit of the Trustee and the
ratable benefit of the Holders in such amount as will be
sufficient upon receipt of scheduled interest and principal
payments of such Additional Pledged Securities, in the
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants, or another nationally recognized firm of
independent public accountants selected by the Co-Obligor,
to provide for payment in full of the first six scheduled
interest payments due on the Notes issued in connection
therewith. The Additional Pledged Securities shall be
pledged by the Co-Obligor to the Collateral Agent for the
benefit of the Trustee and the ratable benefit of the
Holders and shall be held by the Collateral Agent in the
Collateral Account pending disposition pursuant to the
Pledge Agreement.
(c) Each Holder, by its acceptance of a Note, consents
and agrees to the terms of the Pledge Agreement (including,
without limitation, the provisions providing for foreclosure
and release of the Pledged Securities) as the same may be in
effect or may be amended from time to time in writing by the
parties thereto (provided that no amendment that would
materially adversely affect the rights of the Holders may be
effected without the consent of each Holder affected
thereby), and authorizes and directs the Trustee and the
Collateral Agent to enter into the Pledge Agreement and to
perform its respective obligations and exercise its
respective rights thereunder in accordance therewith. The
Co-Obligor will do or cause to be done all such acts and
things as may be necessary or proper, or as may be required
by the provisions of the Pledge Agreement, to assure and
confirm to the Trustee and the Collateral Agent the security
interest in the Pledged Securities contemplated hereby, by
the Pledge Agreement or any part thereof, as from time to
time constituted, so as to render the same available for the
security and benefit of this Indenture and of the Notes
secured hereby, according to the intent and purpose herein
expressed. The Co-Obligor shall take, or shall cause to be
taken, upon request of the Trustee or the Collateral Agent,
any and all actions reasonably required to cause the Pledge
Agreement to create and maintain, as security for the
obligations of the Issuers under this Indenture and the
Notes as provided in the Pledge Agreement, valid and
enforceable first priority liens in and on all the Pledged
Securities, in favor of the Collateral Agent for the benefit
of the Trustee and the ratable benefit of the Holders,
superior to and prior to the rights of third Persons and
subject to no other Liens.
(d) The release of any Pledged Securities pursuant to
the Pledge Agreement will not be deemed to impair the
security under this Indenture in contravention of the
provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the
Pledge Agreement. To the extent applicable, the Issuers
shall cause Section 314(d) of the TIA relating to the
release of property or securities from the Lien and security
interest of the Pledge Agreement and relating to the
substitution therefor of any property or securities to be
subjected to the Lien and security interest of the Pledge
Agreement to be complied with. Any certificate or opinion
required by Section 314(d) of the TIA may be made by an
Officer of the Issuers, except in cases where Section 314(d)
of the TIA requires that such certificate or opinion be made
by an independent Person, which Person shall be an
independent engineer, appraiser or other expert selected by
the Issuers.
(e) The Issuers shall cause Section 314(b) of the TIA,
relating to Opinions of Counsel regarding the Lien under the
Pledge Agreement, to be complied with. The Trustee may, to
the extent permitted by Section 7.01 and 7.02 hereof, accept
as conclusive evidence of compliance of the foregoing
provisions the appropriate statements contained in such
Opinions of Counsel.
(f) The Trustee and the Collateral Agent may, in their
sole discretion and without the consent of the Holders, on
behalf of the Holders, take all actions it deems necessary
or appropriate in order to (i) enforce any of the terms of
the Pledge Agreement and (ii) collect and receive any and
all amounts payable in respect of the obligations of the Co-
Obligor thereunder. The Trustee and the Collateral Agent
shall have the authority necessary in order to institute and
maintain such suits and proceedings as the Trustee and the
Collateral Agent may deem expedient to preserve or protect
its interests and the interests of the Holders in the
Pledged Securities (including the authority to institute and
maintain suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the
Holders, the Collateral Agent or the Trustee).
(g) Beyond the exercise of reasonable care in the
custody and preservation thereof, the Trustee and the
Collateral Agent shall have no duty as to any Pledged
Securities in their possession or any income thereon or as
to preservation of rights against prior parties or any other
rights pertaining thereto, and the Trustee and the
Collateral Agent shall not be responsible for filing any
financing or continuation statements or recording any
documents or instruments in any public office at any time or
times or otherwise perfecting or maintaining the perfection
of any security interest in the Pledged Securities. The
Trustee and the Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of
the Pledged Securities in its possession if the Pledged
Securities are accorded treatment substantially equal to
that which it accords its own property or property held in
similar accounts and shall not be liable or responsible for
any loss or diminution in the value of any of the Pledged
Securities, by reason of the act or omission of the
Collateral Agent, any carrier, forwarding agency or other
agent or bailee selected by the Trustee in good faith.
(h) The Trustee shall not be responsible for the
existence, genuineness or value of any of the Pledged
Securities or for the validity, perfection, priority or
enforceability of the Liens in any of the Pledged
Securities, whether impaired by operation of law or
otherwise, for the validity or sufficiency of the Pledged
Securities or any agreement or assignment contained therein,
for the validity of the title of the Co-Obligor to the
Pledged Securities, for insuring the Pledged Securities or
for the payment of taxes, charges, assessments or Liens upon
the Pledged Securities or otherwise as to the maintenance of
the Pledged Securities. The Trustee shall have no duty to
ascertain or inquire as to the performance or observance of
any of the terms of this Indenture or the Pledge Agreement
by the Co-Obligor or the Collateral Agent.
ARTICLE 12
Miscellaneous
Section 12.01. Trust Indenture Act Controls. This
Indenture is hereby made subject to, and shall be governed
by, the provisions of the TIA required to be part of and to
govern indentures qualified under the TIA; provided,
however, that, unless otherwise required by law,
notwithstanding the foregoing, this Indenture and the Notes
issued hereunder shall not be subject to the provisions of
subsections (a)(1), (a)(2), and (a)(3) of Section 314 of
the TIA as now in effect or as hereafter amended or
modified; provided further that this Section 12.01 shall not
require this Indenture or the Trustee to be qualified under
the TIA prior to the time such qualification is in fact
required under the terms of the TIA, nor shall it constitute
any admission or acknowledgment by any party to the
Indenture that any such qualification is required prior to
the time such qualification is in fact required under the
terms of the TIA. 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 12.02. Notices. Any request, demand,
authorization, notice, waiver, consent or communication
shall be in writing and delivered in person or mailed by
first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the following facsimile
numbers:
if to the Issuers:
Freeport-McMoRan Copper & Gold Inc.
FCX Investment Ltd.
c/o Freeport-McMoRan Copper & Gold Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
The Issuers or the Trustee by notice given to the other in
the manner provided above may designate additional or
different addresses for subsequent notices or
communications.
Any notice or communication given to a Noteholder shall be
mailed to the Noteholder, by first-class mail, postage
prepaid, at the Noteholder's address as it appears on the
registration books of the Note Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with
respect to other Noteholders. If a notice or communication
is mailed in the manner provided above, it is duly given,
whether or not received by the addressee.
If the Issuers mail a notice or communication to the
Noteholders, it shall mail a copy to the Trustee and each
Note Registrar, Paying Agent, Conversion Agent or co-
registrar.
Section 12.03. Communication by Holders with Other Holders.
Noteholders may communicate pursuant to Section 312(b) of
the TIA with other Noteholders with respect to their rights
under this Indenture or the Notes. The Issuers, the Trustee,
the Note Registrar, the Paying Agent, the Conversion Agent
and anyone else shall have the protection of Section 312(c)
of the TIA.
Section 12.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Issuers
to the Trustee to take any action under this Indenture, the
Issuers 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.
Section 12.05. Statements Required in Certificate or
Opinion. Each Officers' Certificate or Opinion of Counsel
with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that each person making such
Officers' Certificate or Opinion of Counsel 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 Officers'
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such
person, he has made such examination or investigation as is
necessary to enable such person to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement that, in the opinion of such
person, such covenant or condition has been complied with.
Section 12.06. Separability Clause. In case any provision
in this Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.07. Rules by Trustee, Paying Agent, Conversion
Agent and Note Registrar. The Trustee may make reasonable
rules for action by or a meeting of Noteholders. The Note
Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
Section 12.08. Legal Holidays. A "Legal Holiday" is any
day other than a Business Day. If any specified date
(including a date for giving notice) is a Legal Holiday, the
action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date
is a payment in respect of the Notes, no interest, if any,
shall accrue for the intervening period.
Section 12.09. GOVERNING LAW. THIS INDENTURE AND THE NOTES
WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Section 12.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of an Issuer
shall not have any liability for any obligations of such
Issuer under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or
their creation. By accepting a Note, each Noteholder shall
waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the
Notes.
Section 12.11. Successors. All agreements of an Issuer in
this Indenture and the Notes shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its
successor.
Section 12.12. Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to
any Person, other than the parties hereto, any Paying Agent,
any authenticating agent, any Note Registrar and their
successors hereunder and the holders of Notes, any benefit
or any legal or equitable right, remedy or claim under this
Indenture.
Section 12.13. Table of Contents, Heading, Etc. The table
of contents and the titles and headings of the Articles and
Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of
the terms or provisions hereof.
Section 12.14. Authenticating Agent. The Trustee may
appoint an authenticating agent (the "Authenticating Agent")
that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of
Notes in connection with the original issuance thereof and
transfers and exchanges of Notes hereunder, including under
Sections 2.03, 2.07, 2.08, 3.06, 3.11 and 10.02, as fully to
all intents and purposes as though the authenticating agent
had been expressly authorized by this Indenture and those
Sections to authenticate and deliver Notes. For all
purposes of this Indenture, the authentication and delivery
of Notes by the Authenticating Agent shall be deemed to be
authentication and delivery of such Notes "by the Trustee"
and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent shall be deemed to
satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such
Authenticating Agent shall at all times be a Person eligible
to serve as trustee hereunder pursuant to Section 7.09.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a
party, or any corporation succeeding to all or substantially
all the corporate trust business of any Authenticating
Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise
eligible under this Section 12.14, without the execution or
filing of any paper or any further act on the part of the
parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the
Issuers. The Trustee may at any time terminate the agency
of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Issuers.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent
shall cease to be eligible under this Section , the Trustee
shall either promptly appoint a successor Authenticating
Agent or itself assume the duties and obligations of the
former Authenticating Agent under this Indenture and, upon
such appointment of a successor Authenticating Agent, if
made, shall give written notice of such appointment of a
successor Authenticating Agent to the Issuers and shall mail
notice of such appointment of a successor Authenticating
Agent to all holders of Notes as the names and addresses of
such holders appear on the Note Register.
The Issuers agree to pay to the Authenticating Agent from
time to time such reasonable compensation for its services
as shall be agreed upon in writing between the Issuers and
the Authenticating Agent.
The provisions of Sections 2.12, 7.03, 7.04, 7.07 and this
Section 12.14 shall be applicable to any Authenticating
Agent.
Section 12.15. Execution in Counterparts. This Indenture
may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective
parties hereto as of the date first above written.
FREEPORT-McMoRan COPPER & GOLD INC.
By:
Name:
Title:
FCX INVESTMENT LTD.
By:
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
Name:
Title:
EXHIBIT A
FOR GLOBAL NOTE ONLY: [UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE ISSUERS OR THEIR AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY
TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.]
IF REQUIRED PURSUANT TO SECTION 2.07(d): [THIS SECURITY AND
THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY, THE SHARES OF
COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
THEREOF UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) (THE "RESALE RESTRICTION PERIOD"),
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH FREEPORT-MCMORAN
COPPER & GOLD OR ANY AFFILIATE OF FREEPORT-MCMORAN COPPER &
GOLD WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO FREEPORT-MCMORAN COPPER & GOLD OR
ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
OUTSIDE THE UNTIED STATES TO NON-U.S. PERSONS IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) or (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
(E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, INCLUDING UNDER RULE
144, IF AVAILABLE, SUBJECT IN EACH OF THE FOREGOING CASES TO
ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY
OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT
ALL TIME WITHIN ITS OR THEIR CONTROL. IF ANY RESALE OR
OTHER TRANSFER OF THIS SECURITY OR SHARES OF COMMON STOCK
ISSUED UPON CONVERSION OF THIS SECURITY IS PROPOSED TO BE
MADE PURSUANT TO CLAUSE (D) ABOVE PRIOR TO THE EXPIRATION OF
THE RESALE RESTRICTION PERIOD (OR THE DATE OF REGISTRATION
THEREOF), THE TRANSFEROR SHALL BE REQUIRED TO DELIVER A
LETTER FROM THE TRANSFEREE TO THE TRUSTEE WHICH SHALL
PROVIDE, AMONG OTHER THINGS, THAT THE TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) or (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY OR THE SHARES
OF COMMON STOCK ISSUED UPON CONVERSION OF THIS SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT. PRIOR TO
THE EXPIRATION OF THE RESALE RESTRICTION PERIOD, THE ISSUERS
AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED
AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
EXPIRATION OF THE RESALE RESTRICTION PERIOD.]
FREEPORT-MCMORAN COPPER & GOLD INC.
FCX INVESTMENT LTD.
8 1/4% Convertible Senior Notes due 2006
No. CUSIP: ▇▇▇▇▇▇▇▇▇
Issue Date:
FREEPORT-MCMORAN COPPER & GOLD INC., a Delaware corporation,
and FCX INVESTMENT LTD., a Cayman Islands limited liability
exempted company, jointly and severally, promise to pay to
___________ or registered assigns, the principal sum of
[_______________] DOLLARS ($[_____________]) on January 31,
2006.
This Note shall bear interest as specified on the other side
of this Note. This Note is convertible as specified on the
other side of this Note.
Additional provisions of this Note are set forth on the
other side of this Note.
Dated:__________ FREEPORT-MCMORAN COPPER & GOLD INC.
By: ______________________________
Name:
Title:
FCX INVESTMENT LTD.
By: ______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the within-
mentioned Indenture (as defined on the other side of this
Note).
THE BANK OF NEW YORK, as Trustee
By:___________________________
Authorized Signatory
By:___________________________
As Authenticating Agent
(if different from Trustee)
Dated:________________________
[FORM OF REVERSE SIDE OF NOTE]
8 1/4% Convertible Senior Note due 2006
1. Cash Interest.
The Issuers, jointly and severally, promise to pay interest
in cash on the principal amount of this Note at the rate per
annum of 8 1/4%. The Issuers will pay cash interest
semiannually in arrears on January 31 and July 31 of each
year (each an "Interest Payment Date") to Holders of record
at the close of business on January 15 and July 15 (whether
or not a business day) (each a "Regular Record Date"), as
the case may be, immediately preceding such Interest Payment
Date. Cash interest on the Notes will accrue from the most
recent date to which interest has been paid or duly provided
or, if no interest has been paid, from the Issue Date. Cash
interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Issuers shall pay cash interest on
overdue principal at the rate borne by the Notes plus 2% per
annum, and it shall pay interest in cash on overdue
installments of cash interest (including Liquidated Damages,
if any) at the same rate to the extent lawful. All such
overdue cash interest shall be payable on demand. The
Issuers further promise to pay Liquidated Damages that it
may from time to time be required to pay pursuant to Section
2(e) of the Registration Rights Agreement at the same time
and in the same manner as payments of interest as specified
herein.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the
Issuers will make payments in respect of the principal of,
premium, if any, and cash interest on this Note and in
respect of Redemption Prices and Change of Control
Repurchase Prices to Holders who surrender Notes to a Paying
Agent to collect such payments in respect of the Notes. The
Issuers will pay cash amounts in money of the United States
that at the time of payment is legal tender for payment of
public and private debts. However, the Issuers may make such
cash payments by check payable in such money. A holder of
Notes with an aggregate principal amount in excess of
$5,000,000 will be paid by wire transfer in immediately
available funds at the election of such holder. Any payment
required to be made on any day that is not a Business Day
will be made on the next succeeding Business Day.
3. Paying Agent, Conversion Agent and Note Registrar.
Initially, The Bank of New York (the "Trustee"), will act as
Paying Agent, Conversion Agent and Note Registrar. The
Issuers may appoint and change any Paying Agent, Conversion
Agent, Note Registrar or co-registrar without notice, other
than notice to the Trustee except that the Issuers will
maintain at least one Paying Agent in the State of New York,
City of New York, Borough of Manhattan, which shall
initially be an office or agency of the Trustee. The Issuers
or any of their Subsidiaries or any of their Affiliates may
act as Paying Agent, Conversion Agent, Note Registrar or co-
registrar.
4. Indenture.
The Issuers issued the Notes under an Indenture dated as of
August 7, 2001 (the "Indenture"), between the Issuers and
the Trustee. The terms of the Notes include those stated in
the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as in effect
from time to time (the "TIA"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in
the Indenture. The Notes are subject to all such terms, and
Noteholders are referred to the Indenture and the TIA for a
statement of those terms.
The Notes are general unsecured obligations of the Issuers
(except as provided in Paragraph 15 hereof) limited to
$525,000,000 aggregate principal amount, or $603,750,000
aggregate principal amount of the Overallotment Option is
exercised fully (subject to Section 2.08 of the Indenture).
The Indenture does not limit other indebtedness of the
Issuers, secured or unsecured.
5. Redemption at the Option of the Issuers.
At any time on or after July 31, 2004, the Issuers may
redeem as a whole, or from time to time in part, the Notes
on at least 30 but not more than 60 days' notice, at the
following prices (expressed in percentages of the principal
amount), together with accrued and unpaid interest
(including Liquidated Damages, if any) to, but excluding,
the date fixed for redemption (the "Redemption Price").
During the Twelve Months Commencing Redemption Price
July 31, 2004 102.75%
July 31, 2005 100.92%
If the Issuers do not redeem all the Notes, the Trustee will
select the Notes to be redeemed in principal amounts of
$1,000 or whole multiples of $1,000 by lot or on a pro rata
basis. If any Notes are to be redeemed in part only, a new
Note or Notes in principal amount equal to the unredeemed
principal portion thereof will be issued. If a portion of a
Holder's Notes is selected for partial redemption and the
Holder converts a portion of its Notes, the converted
portion will be deemed to be taken from the portion selected
for redemption.
No sinking fund is provided for the Notes.
6. Repurchase by the Issuers at the Option of the
Holder.
If a Change of Control of the Company occurs, the Holder, at
the Holder's option, shall have the right, in accordance
with the provisions of the Indenture, to require the Issuers
to repurchase the Notes (or any portion of the principal
amount hereof that is at least $1,000 or an integral
multiple thereof, provided that the portion of the principal
amount of this Note to be outstanding after such repurchase
is at least equal to $1,000) at the Change of Control
Repurchase Price in cash, plus any interest (including
Liquidated Damages, if any) accrued and unpaid to the Change
of Control Repurchase Date.
Subject to the conditions provided in the Indenture, the
Issuers may elect to pay the Change of Control Repurchase
Price in Common Stock by delivering a number of shares of,
at the option of the Holder, Class A Common Stock or Class B
Common Stock equal to (i) the Change of Control Repurchase
Price divided by (ii) 95% of the average of the Closing
Prices per share of the applicable Common Stock for the five
consecutive Trading Days immediately preceding and including
the third Trading Day prior to the Change of Control
Repurchase Date.
No fractional shares of Common Stock will be issued upon
repurchase of any Notes. Instead of any fractional share of
Common Stock which would otherwise be issued upon conversion
of such Notes, the Issuers shall pay a cash adjustment as
provided in the Indenture.
A notice of a Change of Control will be given by the Issuers
to the Holders as provided in the Indenture. To exercise a
repurchase right, a Holder must deliver to the Trustee a
written notice as provided in the Indenture.
Holders have the right to withdraw any Change of Control
Repurchase Notice by delivering to the Paying Agent a
written notice of withdrawal in accordance with the
provisions of the Indenture.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder
of Notes to be redeemed at the Holder's registered address.
If money sufficient to pay the Redemption Price of all Notes
(or portions thereof) to be redeemed on the Redemption Date
is deposited with the Paying Agent prior to or on the
Redemption Date, on and after such Redemption Date interest
ceases to accrue on such Notes or portions thereof. Notes in
denominations larger than $1,000 of principal amount may be
redeemed in part but only in integral multiples of $1,000 of
principal amount.
8. Conversion.
Subject to the next two succeeding sentences, a Holder of a
Note may convert it into, at the option of the Holder, Class
A Common Stock or Class B Common Stock of the Company at any
time before the close of business on the final maturity date
of the Note. If the Note is called for redemption, the
Holder may convert it at any time before the close of
business on the Business Day preceding the Redemption Date.
A Note in respect of which a Holder has delivered a Change
of Control Repurchase Notice exercising the option of such
Holder to require the Issuers to purchase such Note may be
converted only if such notice of exercise is withdrawn in
accordance with the terms of the Indenture.
The initial Conversion Price shall be initially equal to
$14.30 per share of Common Stock, subject to adjustment in
certain events described in the Indenture. The Issuers shall
pay a cash adjustment as provided in the Indenture in lieu
of any fractional share of Common Stock.
To convert a Note, a Holder must (1) complete and manually
sign the conversion notice below (or complete and manually
sign a facsimile of such notice) and deliver such notice to
the Conversion Agent, (2) surrender the Note to the
Conversion Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Conversion Agent, the
Issuers or the Trustee and (4) pay any transfer or similar
tax, if required.
9. Conversion Arrangement on Call for Redemption.
Any Notes called for redemption, unless surrendered for
conversion before the close of business on the Redemption
Date, may be deemed to be purchased from the Holders of such
Notes at an amount not less than the Redemption Price, by
one or more investment bankers or other purchasers who may
agree with the Issuers to purchase such Notes from the
Holders, to convert them into Common Stock of the Company
and to make payment for such Notes to the Trustee in trust
for such Holders.
10. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and integral
multiples of $1,000. A Holder may transfer or exchange Notes
in accordance with the Indenture. The Note Registrar may
require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Note
Registrar need not transfer or exchange any Notes selected
for redemption (except, in the case of a Note to be redeemed
in part, the portion of the Note not to be redeemed) or any
Notes in respect of which a Change of Control Repurchase
Notice has been given and not withdrawn (except, in the case
of a Note to be purchased in part, the portion of the Note
not to be purchased) or any Notes for a period of 15 days
before the mailing of a notice of redemption of Notes to be
redeemed.
11. Persons Deemed Owners.
The registered Holder of this Note may be treated as the
owner of this Note for all purposes.
12. Unclaimed Money or Notes.
The Trustee and the Paying Agent shall return to the Issuers
upon written request any money or Notes held by them for the
payment of any amount with respect to the Notes that remains
unclaimed for two years, subject to applicable unclaimed
property law. After return to the Issuers, Holders entitled
to the money or Notes must look to the Issuers for payment
as general creditors unless an applicable abandoned property
law designates another person.
13. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture or the Notes may be amended with the
written consent of the Holders of at least a majority in
aggregate principal amount of the Notes at the time
outstanding and (ii) certain Defaults or Events of Default
may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the Notes at the
time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Noteholder, the
Issuers and the Trustee may amend the Indenture or the
Notes, among other things, to cure any ambiguity, omission,
defect or inconsistency, or to comply with Article 5 of the
Indenture, or to make any change that does not adversely
affect the rights of any Noteholder, or to comply with any
requirement of the SEC in connection with the qualification
of the Indenture under the TIA.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (1) the
Issuers fail to pay when due the principal of or premium, if
any, on any of the Notes at maturity, upon redemption or
exercise of a repurchase right or otherwise; (2) the Issuers
fail to pay an installment of interest (including Liquidated
Damages, if any) on any of the Notes that continues for 30
days after the date when due; provided that a failure to
make any of the first six scheduled interest payments on the
Notes on the applicable Interest Payment Date shall
constitute an Event of Default with no grace or cure period;
(3) the Issuers fail to deliver shares of Common Stock,
together with cash in lieu of fractional shares, when such
Common Stock or cash in lieu of fractional shares is
required to be delivered upon conversion of a Note and such
failure continues for 10 days after such delivery date; (4)
the Issuers fail to give notice regarding a Change of
Control within the time period specified in the Indenture;
(5) the Issuers fail to perform or observe any other term,
covenant or agreement contained in the Notes or the
Indenture for a period of 60 days after written notice of
such failure, requiring the Issuers to remedy the same,
shall have been given to the Issuers by the Trustee or to
the Issuers and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Notes then outstanding;
(6) (A) the Issuers or any Significant Subsidiary fails to
make any payment by the end of the applicable grace period,
if any, after the final scheduled payment date for such
payment with respect to any indebtedness for borrowed money
in an aggregate amount in excess of $10 million or (B)
indebtedness for borrowed money of the Issuers or any
Significant Subsidiary in an aggregate amount in excess of
$10 million shall have been accelerated or otherwise
declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required
prepayment) prior to the scheduled maturity thereof as a
result of a default with respect to such indebtedness
referred to in subclause (A) or (B) hereof, in either case
without such having been discharged, cured, waived,
rescinded or annulled, for a period of 30 days after receipt
by the Issuers of a Notice of Default; (7) certain events of
bankruptcy, insolvency or reorganization with respect to the
Issuers or any Significant Subsidiary or any Subsidiaries of
the Issuers which in the aggregate would constitute a
Significant Subsidiary and (8) the Pledge Agreement shall
cease to be in full force and effect or enforceable other
than in accordance with its terms. If an Event of Default
(other than an Event of Default specified in clause (6) or
(7) above) occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate principal amount of the
Notes at the time outstanding, may declare all the Notes to
be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the
Notes becoming due and payable immediately upon the
occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may refuse
to enforce the Indenture or the Notes unless it receives
reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee
may withhold from Noteholders notice of any continuing
Default (except a Default in payment of amounts specified in
clause (1) or (2) above) if it determines that withholding
notice is in their interests.
15. Security
The Co-Obligor has entered into the Pledge Agreement and
purchased and pledged to the Collateral Agent for the
benefit of the Trustee and the ratable benefit of the
Holders Pledged Securities in an amount sufficient upon
receipt of scheduled interest and principal payments on such
securities to provide for the payment in full of the first
six scheduled interest payments due on the Notes. The
Pledged Securities will be pledged by the Co-Obligor to the
Collateral Agent for the benefit of the Trustee and the
ratable benefit of the Holders and will be held by the
Collateral Agent in the Collateral Account pending
disbursement pursuant to the Pledge Agreement.
16. Trustee Dealings with the Issuers.
Subject to certain limitations imposed by the TIA, the
Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may
otherwise deal with and collect obligations owed to it by
the Issuers or their Affiliates and may otherwise deal with
the Issuers or their Affiliates with the same rights it
would have if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of
the an Issuer shall not have any liability for any
obligations of such Issuer under the Notes or the Indenture
or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Note,
each Noteholder waives and releases all such liability. The
waiver and release are part of the consideration for the
issue of the Notes.
18. Authentication.
This Note shall not be valid until an authorized signatory
of the Trustee or an Authenticating Agent manually signs the
Trustee's Certificate of Authentication on the other side of
this Note.
19. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN
(=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform
Gift to Minors Act).
20. GOVERNING LAW.
THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
--------------------------
The Issuers will furnish to any Noteholder upon written
request and without charge a copy of the Indenture which has
in it the text of this Note in larger type. Requests may be
made to:
Freeport-McMoRan Copper & Gold Inc.
FCX Investment Ltd.
c/o Freeport-McMoRan Copper & Gold Inc.
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CONVERSION NOTICE
TO: FREEPORT-MCMORAN COPPER & GOLD INC.
FCX INVESTMENT LTD.
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby
irrevocably exercises the option to convert this Note, or
the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, into shares of Class [A /B]
Common Stock of Freeport-McMoRan Copper & Gold Inc. in
accordance with the terms of the Indenture referred to in
this Note, and directs that the shares issuable and
deliverable upon such conversion, together with any check in
payment for fractional shares and any Notes representing any
unconverted principal amount hereof, be issued and delivered
to the registered holder hereof unless a different name has
been indicated below. If shares or any portion of this Note
not converted are to be issued in the name of a person other
than the undersigned, the undersigned will provide the
appropriate information below and pay all transfer taxes
payable with respect thereto. Any amount required to be
paid by the undersigned on account of interest accompanies
this Note.
Dated: ___________________
______________________________
Signature(s)
Signature(s) must be
guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note 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 Note
Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as
amended.
______________________________
Signature Guarantee
Fill in the registration of shares of Common Stock if
to be issued, and Notes if to be delivered, other than to
and in the name of the registered holder:
_________________________________
(Name)
_________________________________
(Street Address)
_________________________________
(City, State and Zip Code)
_________________________________
Please print name and address
Principal amount to be converted
(if less than all):
$_______________________________
Social Security or Other Taxpayer
Identification Number:
_________________________________
CHANGE OF CONTROL REPURCHASE NOTICE
TO: FREEPORT-MCMORAN COPPER & GOLD INC.
FCX INVESTMENT LTD.
THE BANK OF NEW YORK
The undersigned registered owner of this Note hereby
irrevocably acknowledges receipt of a notice from Freeport-
McMoRan Copper & Gold Inc. (the "Company") and FCX
Investment Ltd. (together with the Company, the "Issuers")
as to the occurrence of a Change of Control with respect to
the Company and requests and instructs the Issuers to repay
the entire principal amount of this Note (Certificate
No.____), or the portion thereof (which is $1,000 or an
integral multiple thereof) below designated, in accordance
with the terms of the Indenture referred to in this Note to
the registered holder hereof. If the Issuers have elected
to pay the Change of Control Repurchase Price in Common
Stock, the undersigned hereby elects to receive the Change
of Control Repurchase Price in [Class A Common Stock/Class B
Common Stock].
Dated: ___________________
______________________________
______________________________
Signature(s)
NOTICE: The above signatures
of the holder(s) hereof must correspond with the name as
written upon the face of the Note in every particular
without alteration or enlargement or any change whatever.
Principal amount to be repaid
(if less than all):
$_____________________________
______________________________
Social Security or Other
Taxpayer Identification Number
ASSIGNMENT
For value received
__________________________________________ hereby sell(s)
assign(s) and transfer(s) unto
____________________________________________ (Please insert
social security or other Taxpayer Identification Number of
assignee) the within Note, and hereby irrevocably
constitutes and appoints
____________________________________ attorney to transfer
said Note on the books of the Issuers, with full power of
substitution in the premises.
In connection with any transfer of the Note prior to the
expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor
provision) (other than any transfer pursuant to a
registration statement that has been declared effective
under the Securities Act), the undersigned confirms that
such Note is being transferred:
? To Freeport-McMoRan Copper & Gold Inc. or a subsidiary
thereof; or
? Inside the United States pursuant to and in compliance
with Rule 144A under the Securities Act of 1933, as amended;
or
? Inside the United States to an Institutional Accredited
Investor pursuant to and in compliance with the Securities
Act of 1933, as amended; or
? Outside the Unites States in compliance with Rule 904
under the Securities Act; or
? Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned
confirms that such Note is not being transferred to an
"affiliate" of the Issuers as defined in Rule 144 under the
Securities Act of 1933, as amended (an "Affiliate").
? The transferee is an Affiliate of the Issuers.
Dated: ___________________
____________________________________
____________________________________
Signature(s)
Signature(s) must be guaranteed by
an "eligible guarantor institution" meeting the requirements
of the Note 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 Note Registrar in
addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as
amended.
____________________________________
Signature Guarantee
NOTICE: The signature of the conversion notice, the Change
of Control Repurchase Notice or the assignment must
correspond with the name as written upon the face of the
Note in every particular without alteration or enlargement
or any change whatever.
EXHIBIT B-1
Transfer Certificate
In connection with any transfer of any of the Notes within
the period prior to the expiration of the holding period
applicable to the sales thereof under Rule 144(k) under the
Securities Act of 1933, as amended (the "Securities Act")
(or any successor provision), the undersigned registered
owner of this Note hereby certifies with respect to
$____________ principal amount of the above-captioned Notes
presented or surrendered on the date hereof (the
"Surrendered Notes") for registration of transfer, or for
exchange or conversion where the Notes issuable upon such
exchange or conversion are to be registered in a name other
than that of the undersigned registered owner (each such
transaction being a "transfer"), that such transfer complies
with the restrictive legend set forth on the face of the
Surrendered Notes for the reason checked below:
? A transfer of the Surrendered Notes is made to the
Issuers or any subsidiaries; or
? The transfer of the Surrendered Notes complies with
Rule 144A under the U.S. Securities Act of 1933, as amended
(the "Securities Act"); or
? The transfer of the Surrendered Notes is to an
institutional accredited investor, as described in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act; or
? The transfer of the Surrendered Notes is pursuant to an
effective registration statement under the Securities Act,
or
? The transfer of the Surrendered Notes is pursuant to an
offshore transaction in accordance with Rule 904 of
Regulation S under the Securities Act; or
? The transfer of the Surrendered Notes is pursuant to
another available exemption from the registration
requirement of the Securities Act.
and unless the box below is checked, the undersigned
confirms that, to the undersigned's knowledge, such Notes
are not being transferred to an "affiliate" of the Issuers
as defined in Rule 144 under the Securities Act (an
"Affiliate").
? The transferee is an Affiliate of the Issuers.
DATE: ____________________
________________________________________
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
EXHIBIT B-2
Form of Letter to Be Delivered by Institutional
Accredited Investors
Freeport-McMoRan Copper & Gold Inc.
FCX Investment Ltd.
c/o Freeport-McMoRan Copper & Gold Inc.
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Attention: Treasurer
The Bank of New York
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Attention: Corporate Trust Administration
Dear Sirs:
We are delivering this letter in connection with the
proposed transfer of $_____________ principal amount of the
8 1/4% Convertible Senior Notes due 2006 (the "Notes") of
Freeport-McMoRan Copper & Gold Inc. (the "Company") and FCX
Investment Ltd. (together with the Company, the "Issuers").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning
of Rule 501(a)(1), (2) or (3) under the Securities Act of
1933, as amended (the "Securities Act"), or an entity in
which all of the equity owners are accredited investors
within the meaning of Rule 501(a)(1), (2) or (3) under the
Securities Act (an "Institutional Accredited Investor");
(ii) the purchase of Notes by us is for our own
account or for the account of one or more other
Institutional Accredited Investors or as fiduciary for the
account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7)
under the Securities Act and for each of which we exercise
sole investment discretion or (B) we are a "bank," within
the meaning of Section 3(a)(2) of the Securities Act, or a
"savings and loan association" or other institution
described in Section 3(a)(5)(A) of the Securities Act that
is acquiring Notes fiduciary for the account of one or more
institutions for which we exercise sole investment
discretion;
(iii) we have such knowledge and experience in
financial and business matters that we are capable of
evaluating the merits and risks of purchasing Notes; and
(iv) we are not acquiring Notes with a view to
distribution thereof or with any present intention of
offering or selling Notes or the Common Stock issuable upon
conversion thereof, except as permitted any accounts for
which we are acting as fiduciary shall remain at all times
within our control.
We understand that the Notes were originally offered and
sold in a transaction not involving any public offering
within the United States within the meaning of the
Securities Act and that the Notes and the shares of Common
Stock (the "Notes") issuable upon conversion thereof have
not been registered under the Securities Act, and we agree,
on our own behalf and on behalf of each account for which we
acquire any Notes, that if in the future we decide to resell
or otherwise transfer such Notes prior to the date (the
"Resale Restriction Termination Date") which is two years
after the later of the original issuance of the Notes and
the last date on which the Company or an affiliate of the
Company was the owner of the Note, such Notes may be resold
or otherwise transferred only (i) to the Company or any
subsidiary thereof, or (ii) for as long as the Notes are
eligible for resale pursuant to Rule 144A, to a person it
reasonably believes is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) that
purchases for its own account or for the account of a
qualified institutional buyer to which notice is given that
the transfer is being made in reliance on Rule 144A, or
(iii) to an Institutional Accredited Investor that is
acquiring the Note for its own account, or for the account
of such Institutional Accredited Investor for investment
purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the
Securities Act, or (iv) outside the United States in a
transaction meeting the requirements of Rule 904 under the
Securities Act, or (v) pursuant to another available
exemption from registration under the Securities Act (if
applicable), or (vi) pursuant to a registration statement
which has been declared effective under the Securities Act
and, in each case, in accordance with any applicable
securities laws of any State of the United States or any
other applicable jurisdiction and in accordance with the
legends set forth on the Notes. We further agree to provide
any person purchasing any of the Notes other than pursuant
to clause (vi) above from us a notice advising such
purchaser that resales of such Notes are restricted as
stated herein. We understand that the trustee or the
transfer agent, as the case may be, for the Notes will not
be required to accept for registration of transfer any
Notes, except upon presentation of evidence satisfactory to
the Issuers that the foregoing restrictions on transfer have
been complied with. We further understand that any Notes
will be in the form of definitive physical certificates and
that such certificates will bear a legend reflecting the
substance of this paragraph other than certificates
representing Notes transferred pursuant to clause (vi)
above.
The Issuers and the Trustee and their respective counsel 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 proceeding
or official inquiry with respect to the matters covered
hereby.
We acknowledge that the Issuers, others and you will rely
upon our confirmations, acknowledgments and agreements set
forth herein, and we agree to notify you promptly in writing
if any of our representations or warranties herein ceases to
be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
_______________________________________
(Name of Purchaser)
By:
____________________________________
Name:
Title:
Address: